## Chapter 4 A complete encyclopaedia of new law

Volume X.

**HUSBAND AND WIFE**

**TO**

**WITNESSES**

**WALTER A. SHUMAKER, EDITOR**

**HASCAL R. BRILL, Jr., Associate**

ST. PAUL, MINN.

**THE KEEFE-DAVIDSON COMPANY**

1908.

**Figure Captions**
CORNELL UNIVERSITY

JUL 11 1912

LAW LIBARY.

TOPICAL INDEX.

Use the index in your latest number. Ignoro all previous indexes in volumes and numbers. The latest index ettes by volume and page to the latest treatment of any subject.

You do not have to study classification. This index contains the name of every subject

you are familiar with and not merely the titles of our articles.

The page citation at the beginning of each article directs to the particular subdivision wanted. There you can find its latest treatment and also a volume and page citation to the same points in earlier volumes.

Black figures refer to volume; light figures to pages.

This index is revised and reprinted every month. Remember to start with the latest index

and you cannot go astray or miss anything.

**A.**

**ACCOUNTING, ACTION FOR, 9, 17. See, also, Estates of Decodents, 9, 1204; Guardiannab, 9, 1556; Partnership, 10, 110; Trusts, 10, 1929.**

**ACCOUNTTS STATED AND OPEN ACCOUTS.**

**9, 19.**

**ACCREITION, see Riparian Owners, 10, 1530.**

**ACCOUNTULATIONS, see Perventies and Accumulations, 10, 1167.**

**ABAREVATIONS, see Contracts, 9, 22.**

**Pleading, 10, 1173; Indictment, etc., 10, 57; Names, etc., 10, 915, and the like.**

**ABDUCTION, 0, 7.**

**ABETTING CRIMZE, see Criminal Law, 9, 853.**

**ABIDE THE EVENT, see Costa, 9, 818; Payment into Court, 10, 1158; Stay of Proceedings, 10, 1726; Stipulations, 10, 1728.**

**ABODE, see Domicile, 9, 1010.**

**ABORTION, 9, 8.**

**ABASCONDING DEBTORS, see Attachment, 0, 283; Civil, Arrest, 9, 570; Bankruptcy, 9, 343; Limitation of Actions, 10, 635.**

**ABENTRES, 9, 9.**

**ABSTRACTS OF TITLE, 9, 9.**

**ABBUS OF PROCESS, see Malicious Prosecution and Abuse of Process, 10, 657.**

**ABUTING OVINERS, see Highways and Streeds, 9, 1611, 1616; Eminent Domain, 9, 1073; Municipal Corporations, 10, 900.**

**ACCEPTANCE. Titles treating of the subject of an acceptance should be consulted. See Contracts, 9, 657; Deceds, etc., 9, 950, and the like.**

**ACCESSION AND CONFUSION OF PROMETRY, 9, 10.**

**ACCESSORITIES, see Criminal Law, 9, 854.**

**ACCIDENT--in equity, see Mistake and Acident, 10, 853--resulting in legal injury, see Master and Servant, 10, 700; Negilance, 10, 822; Carrlerap, 9, 455; Damages, 9, 869; Insurance, 10, 385.**

**ACCOMMODATION PAPER, see Negotiable Instruments, 10, 978.**

**ACCOMPICES, see Criminal Law (Hiability), 9, 853; Indictment and Prosecution (weight of testimony), 10, 57.**

**ACCORNED AND SATISFACTION, 9, 11.**

**(1)**

**ACCOUNTING, ACTION FOR, 9, 17. See, also, Estates of Decodents, 9, 1204; Guardiannab, 9, 1556; Partnership, 10, 110; Trusts, 10, 1929.**

**ACCOUNTTS STATED AND OPEN ACCOUTS.**

**9, 19.**

**ACCREITION, see Riparian Owners, 10, 1530.**

**ACCOUNTATIONS, see Perventies and Accumulations, 10, 1167.**

**AASKOVINEDGMENTS, 9, 22.**

**ACCTIONs, 9, 27.**

**ACTIONS, 9, 27.**

**ACCTIONs and procedure are excluded tc**

**separate topics. See headings deacorb**

**in them.**

**ACT OF GOOD, see Carrlers, 9, 478, 502; Contracts, 9, 698; Insurance, 10, 335; Negligence, 10, 925.**

**ACDITIONAL ALLOWANCES, see Costs, 9, 824.**

**ADDITIONAL INSTRUCTIONs AFTER RE-THERENT OF JURY \[Special Article\], 4, 1718.**

**ADEDMPTION OF LEGACIES, see Willis, 10, 2076.**

**ADJOMING OVINERS, 9, 28. See, also, Fences, 9, 1368.**

\*\*ADJOURNMBENTS, see Courts, 9, 841; Continuance and Postponent, 9, 649.

**II**

**APFIDAVITS, 9, 56,**

**APPORTIONMENT LAVS, see Elections, 9,**

**APFIDAVITS OF MERITS OF CLAIM OR DEFENSE, 9, 56.**

**APFREICATIONS, see Witnesses, 10, 2079;**

**Jury, 10, 541.**

**APFRAY. No cases have been found during the period covered by Vol. 9. See 6, 64.**

**AGENCY, 9, 58**; with Special Articles, Agency Implied From Relation of Parties, 8, 101; Revocation of Agency By Operation of Law, 4, 1295.\*\*

**AGENCY IMPLED FROM RELATION OF PARTIES \[Special Article\], 3, 101.**

**AGISTMENT, see Animals, 9, 104; Liens, 10, 632.**

**AGREED CASE, see Submission of Controversy, 10, 1759; Appeal and Review, 9, 108; Stipulations, 10, 1728.**

**AGRICULTURE, 9, 82.**

**AIDER BY VERDICT, ETC., see Indictment and Prosecution, 10, 57; Pleading, 10, 1233.**

**AIDER BY EXSECTIONI, see Creditors' Sult, 9, 844; Supplementary Proceedings, 10, 1765.**

**ALTBI, see Indictment and Prosecution, 10, 57.**

**ALIENS, 9, 84.**

**ALIIMONY, 9, 89.**

**ALI/TERATION OF INSTRUMENTS, 9, 88.**

**AMBASSADORS AND CONSULS, 9, 99.**

**AMBIGUITY, see those parts of titles like Contracts, 9, 682; Statatos, 10, 1715; Willis, 10, 2059, which treat of Interprettation.**

**AMENDMENTS, see Indictment and Prosecution, 10, 84; Pleading, 10, 1210; Equity, 9, 1133, and procedure titles generally.**

**AMIUCUS CURIARE, 9, 100.**

**AMOTION, see Associations and Societies, 9, 274; Corporations, 9, 777.**

**AMOUNT IN CONTRROVERST, see Appeal and Review, 9, 128; Jurisdiction, 10, 516; Costs, 9, 818.**

**ANCEPT DOCUMENTS, see Evidence, 9, 1279.**

**ANIMALAS, 9, 100.**

**ANUNTIES, 9, 108.**

**ANNOTHER SUIT PENDING, see Abatement and Revival, 9, 1: Stay of Procedings, 10, 1726; Jurisdiction, 10, 522.**

**ANSWERS, see Equity, 9, 1139; Pleading, 10, 1198.**

**ANTENTENTIAL CONTRracts AND SETTLEMENTS, see Husband and Wife, 10, 3.**

**ANTI-TRUST LAWS, see Combinations and Monopoles, 9, 576.**

**APPEAL AND REVIEW, 9, 108.**

**APPEARANCE, 9, 223.**

**APPEALATE COURTS AND JURISDICTION, see Appeal and Review, 9, 131; Jurisdiction, 10, 527.**

**APPLICATION OF PAYMANENTS, see Payment and Tender, 10, 1152.**

**APPORTIMENT, see Officers and Public Employes, 10, 1048; Estates of Decedents, 9, 1161; Trusts, 10, 1920, and the like; Powers, 10, 1260.**

**APPORTIONMENT LAVS, see Elections, 9, 1041; Offices, etc., 10, 1043; States, 10, 1703.**

**APPRENICES, 9, 236.**

**ARBITATION AND AWARD, 9, 236.**

\*\*ARCHITECTBASTARDS, 9, 383.

BENEFFICAL ASSOCIATIONS, see Fraternal Mutual Benefit Associations, 9, 1449, also Associations, etc., 9, 274; Corporations, 9, 733.

BENEFFICALRIES, see Insurance, 10, 364; Trusta, 8, 2183; Willis, 10, 2036; Fraternal, etc., Associations, 9, 1466.

BETTERMENTS, see Accession, etc. (right of occupying claimant to re-aver), 9, 10; Ejectment, etc. (procedure for allow-anco), 9, 1037.

BETTING AND GAMING, 9, 388.

BIGAMY, 9, 392.

BILL OF DISOVERY, see Discovery and Inspection, 9, 990.

BILLS AND NOTRES, see Negotiable Instruments, 10, 962; Banking and Finance, 9, 339.

BILLS IN EQUITY, see Equty, 9, 1110; and the titles treating of special relief each as Cancellation of Instruments, 9, 454; Injunction, 10, 246; Judgements, 10, 482; Quotiente Title, 10, 1347.

BILLS OF LADING, see Carrlers, 9, 475; Sales, 10, 1534; Negotiable Instruments, 10, 962.

BILLS OF SALLE, see Sales, 10, 1534; Chattel Mortgrages, 9, 650; Fraudulent Conveyances, 9, 1508.

BIRTH REGISTERS, see Census and Statie-tlcs, 9, 544; Evidence, 9, 1267.

**BLACKMAIL, 9, 893.**

BLASPHETARY, see Profanity and Blasphemy, 10, 1277.

BLENDED PROPERTIES, see Accession and Counfusion of Property, 9, 10; Conversion as Tort, 9, 723; Conversion in Equty, 9, 723; Trusts, 10, 1907; Willis, 10, 2035.

BOARD OF HEALTH, see Health, 9, 1687.

BOARDS, see Offecars and Public Employes, 10, 1048, also see various titles like Coun- ttes, 9, 831, 838; Municipal Corporations, 10, 886.

BODY EXECUTION, see Civil Arrest, 9, 570.

BONA FIDES, see Negotiable Instruments, 10, 980; Notice and Record of Title, 10, 1015; Fraudulent Conveyances, 9, 1156.

BONNS, 9, 394. See, also, Municipal Bonds, 10, 875; Counties, 9, 834; Municipal Corporations, 10, 906; States, 10, 1702.

"BOTTLE" AND "CAN" LAWS, see Commerce, 9, 717.

BOTTOMRY AND RESPONDENTIA, see Shipping and Water Traffic, 10, 1656.

BOUCHRY AND SOLD NOTRES, see Franuds, Statute of, 9, 144; Renders, 9, 418; Factors, 9, 1349.

BOUNDARIES, 9, 397.

BOUNTITIES, 9, 406.

BOYCOTT, see. Conspiracy, 9, 601; Injunction, 10, 268; Threats, 10, 1855; Trade Unions, 10, 1873.

BRANDS, see Animals, 107; Commerce, 2, 717; Forestry and Timber, 9, 1408; Trade Marks and Trade Names, 10, 1863.

**BRBAC OF HARIAGE PROMINS, 9, 407.**

BREACH OF THE PEACE, see Disorderly Conduct, 9, 995; Surety of the Peace, 8, 2050.

**BRIBEARY, 9, 408.**

**BRIDGES, 9, 408.**

**BRROKERS, 9, 413.**

**BUILDING AND CONSTRUCTION CONTTracts, 9, 424.**

**BUILDING AND LOAN ASSOCIATIONS, 9, 437.**

**BUILDINGS AND BUILDING RESTRIC TRUS, 9, 441.**

**BUILDING AND BUILDING RESTRIC TRUS, 9, 441.**

**BUILDING AND SURILE SALLE, see Fraudulent Conveyances 9, 1610; Constitutional Law, 9, 610.**

\*\*BUILDING OF PROOF, see Evidence, 9, 1232, and topics dealing with the particular issue with reference to which the burden is considered.

**BRUGLARY, 9, 448.**

**BURT RECORDS, see Restoring Instruments and Records, 10, 1327.**

**BY-LAWS, see Association and Societies, 9, 874; Corporations, 9, 773.**

\*\*BY-LAWS-AMENDMENT AS AFECTING EXISTING MEMBERSHIP CONTRACTS \[Special Article\],

\*\*

**CHATTELS, see titles treating of various rights in personality other than choses in action. Distinction between chattels and reality, see Property, 10, 1280.**

**CHBATS, see False Pretense, etc., 9, 1354; Deceft, 9, 935; Fraud, etc., 9, 1476, and the like.**

**CHBECKS, see Banking, etc., 9, 334; Negotiable Instruments, 10, 962.**

**CHILLDREN, see Adoption of Children, 9, 34; Parent and Child, 10, 1072; Infants, 10, 235; Descent and Distribution, 9, 970; Wills, 10, 2035.**

**CHINESR, see Aliens, 9, 86-88.**

**CIGARETTES, see Tobacco, 10, 1356.**

**CITATIONS, see Process, 10, 1262; Estates of Decedents, 9, 1154; Appeal and Review, 9, 135.**

**CHITEENS, 9, 569.**

**CIVILARREST.-9, 570.**

**CIVIL DAMAGE ACTS, see Intoxicating Liquors, 10, 456.**

**CIVIL DEATH, see Convicts, 9, 729.**

**CIVIL RIGITS, 9, 572.**

**CIVIL SERUICE, see Officers and Public Employs, 40, 1047.**

**CLEARING HOUSERS, see Banking and Finance, 9, 34.**

**CLEARKS OF COURT, 9, 572.**

**CLOUD ON TTLE, see Queting Title, 10, 1352; Covenants for Title, 9, 845; Venders and Purchasers, 10, 1942.**

**CLUBS, see Associations and Societies, 9, 274.**

**CODICILS, see Willis, 10, 2035.**

**COGNOVIT, see Confession of Judgment, 9, 594.**

**COLLEGES AND ACADEMIES, 9, 575.**

**COLLISTON, see Shipping and Water Traffic, 10, 1658.**

**COLOR OF TITLE, see Adverse Possession, 9, 48.**

**COMBINAIONS AND MONOPOLIES, 9, 576.**

**COMMERENCE, 9, 588.**

**COMMECRIAL PAPER, see Negotiable Instruments, 10, 962.**

**COMMTMTHENTS, see Arrest and Binding Over, 9, 253; Contempt, 9, 648; Indictment and Proscution, 10, 185; Fines, 9, 1360.**

**COMMON AND PUBLIC SCHOOLS, see Schools and Education, 10, 1397.**

**COMINY PROPERT, see Husband and Writing, 10, 85.**

**COMPARATIVE NEGLIGENCE, see Negitimacle, 10, 943.**

**COMMEIANT FOR ARREST, see Arrest and Binding Over, 9, 251.**

**COMPLAINTS IN PLEADING, see Pleading, 10, 1189.**

**COMPOSITION WITH CREDITORS, 9, 593.**

**COMPOUNDING OFFENSES, 9, 594.**

**COMPROMIS AND SETTLEMENT, see Accord and Satisfaction, 9, 12; Releases, 10, 1502; Discontinueance, Dismissal, and Nonsuit, 9, 982.**

**CONCREALED WEAPONS, see Weapons, 10, 2030.**

**CONCREALING BIRTH OR DEATH. No cases have been found during the perfod covered by Vol. 9. See 5, 608.**

**CONDERNAATION PROCEDINGS, see Eminent Domain, 9, 1091, 1104.**

**CONDITIONAL SALES, see Chattel Mortgages, 9, 560; Fraudulent Conveyances, 9, 156; Sales, 10, 1659.**

**COMPESIGN AND AVODANCE, see Pleading, 10, 1202.**

**COMPESIGN OF JUDGMENT, 9, 594.**

**COMPESIGN, see Indictment and Prosecution, 10, 114.**

**CONIFSCATION, see Constitutional Law (due process), 9, 631; Yish and Game Laws, 9, 1364.**

**CONFLICT OF LAWS, 9, 596.**

**COMPROMIITY ACT, see Coupts, 9, 844.**

**CONFUSION OF GOODS, see Accession and Confusion of Property, 9, 10.**

**CONNECTING CARRIBERS, see Carriers (contracts, duties and liability), 9, 473; Railroads (leases and joint agreements), 10, 185.**

**CONNIDERATION, see Contracts, 9, 662.**

\*\*CONNODLIDATION (of actions), see Trial, 10, 1896; (of corporations), see Corporations, 9, 75CUSTs IN THE CIRCUIT COURT OF APPLEALS \[Special Article\], **3,** 954.

**COMPENTREFEATING, 9,** 827.

**COMPUTIES, 9,** 827.

**COMPUTES AND PARAGRAPHS, see Pleading, 10,** 1188, 1198; Indictment, etc., 10,\*\* 64.

**COMPUTY COMMISSIONERS OR SUPERVISERS,** **9,** 820\*\*;\*\* **Highways and Streets,** **9,** 1603; Towns; Townships, 10,\*\* 1862.

**COMPUTY SEAT, see Counties,** **9,** 829.

**COMPULING CARS, see Master and Servant (inquiries to servants),** 10\*\*,\*\* 1725\*\*;\*\* **Railroads (statutory regulations),** 10,\*\* 1365\*\*.

**COMPONS, see Bonds,** **9,** 396; Municipal Bonds,\*\* **10**,\*\* 875, and titles relating to public or private corporations which canstarily issue bonds; Negotiable Instruments (interest coupons),\*\* 10\*\*,\*\* 962\*\*; Carriers (coupon tickets),\*\* 9,\*\* 466\*\*.

**COMPUT COMMISSIONERS. Officers so-call-ed are sometimes appellate judges (see Judges,** 10\*\*,\*\* 462\*\*;\*\* **Courts,** 9,\*\* 840\*\*), and sometimes immaterial officers of courts (see Masters and Commissioners,\*\* 10\*\*,\*\* 812\*\*;\*\* **United States Marshals and Commissioners,** 10\*\*,\*\* 1936\*\*).

**COMPTS,** **9,** 829.

**COMPENANT, ACTION OF,** **9,** 845.

**COMPENANT, see titles relating to instruments, wherein covenants are embodied, e. g., Contracts,** 9\*\*,\*\* 654;\*\* **Decads of Conveyance** 9\*\*,\*\* 953;\*\* **Landford and Tennar (leases),** 10\*\*,\*\* 574;\*\* **Vendors and Purchashers (land contracts),** 10\*\*,\*\* 1952\*\*;\*\* **see Buildings, etc. (covenants restrictive),** 9\*\*,\*\* 443\*\*.

**COMPENANT's FOR TITLE,** **9,** 845\*\*.

**COMPERTURE, see Husband and Wife,** 10\*\*,\*\* 2.

**CREDIT INSURANCE, see Indemntity,** 10\*\*,\*\* 43;\*\* **Insurance,** 10\*\*,\*\* 380\*\*.

**CREDITOR'S SUIT,** **9,** 849.

**CRIMINAL CONVERSAATION, see Husband and Wife (civil liability),** 10\*\*,\*\* 21;\*\* **Adultery (crime),** 9\*\*,\*\* 37;\*\* **Divorce (ground)** 9\*\*,\*\* 998\*\*.

**CRIMINAL LAW,** **9,** 851.

**CRIMINAL PROCEDUKE, see Indictment and Prosecution,** 10\*\*,\*\* 57\*\*.

**CROPS, see Agriculture,** 9\*\*,\*\* 822\*\*;\*\* **Emblements and Natural Products,** 9\*\*,\*\* 1072\*\*;\*\* **Landford and Tennar (rening for crops),** 10\*\*,\*\* 587;\*\* **Chatlot Mortgages (mortgages on crops),** 9\*\*,\*\* 560\*\*.

**CROSS BILLS AND COMPLAINTS, see Equil- by,** 9\*\*,\*\* 1135\*\*;\*\* **Pleading,** 10\*\*,\*\* 1209\*\*.

**CROSSINGS, see Highways and Streets,** 9\*\*,\*\* 1588;\*\* **Railroads,** 10\*\*,\*\* 1365\*\*.

**CRUELT AND UNUSUIAL PUNISHEMENTS, see Criminal Law,** 9\*\*,\*\* 856\*\*.

**CRUELTY, see Animals,** **5**,\*\* 120\*\*;\*\* **Divorce,** 9\*\*,\*\* 100;\*\* **Infants,** 10\*\*,\*\* 241\*\*;\*\* **Parent and Child,** 10\*\*,\*\* 10\*\*,\*\* 10\*\*.

**CUMULATIVE EVIDENCE, see Trial (reception and exclusion of evidence),** 10\*\*,\*\* 1900\*\*;\*\* **New Trial, etc. (newly-discovered cumulative evidence),** 10\*\*,\*\* 1006\*\*.

**CUMULATIVE PUNISHEMENTS, see Criminal Law,** 9\*\*,\*\* 856\*\*.

**CUMULATIVE VOTES, see Corporations,** 9\*\*,\*\* 774.

**CURATIVE ACTS, see Statutes,** 10\*\*,\*\* 1724\*\*.

**CURTS,** **9,** 857\*\*.

**CURTS AND USAGES,** **9**,\*\* 857\*\*.

**CUSTOM'S LAWS,** **9**,\*\* 860\*\*.

**D.**

**DAMAGES,** **9**,\*\* 869\*\*.

**tal Suffering,** **6**,\*\*
**DEL CREEDER AGENCY, see Agency, 0, 58;**

Factors, 7, 1642.

DEMARD, see titles treating of particular rights or remedies of which demand may be an element. Compare Payment and Tender, 10, 1147; Payment into Court, 10, 1158.

DEMURRAGE, see Carriers, 9, 492; Shipping and Water Traffic, 10, 1565.

DEMURRERS, see Pleading, 10, 1204; Equtlty, 9, 1137.

DEMURRER TO EVEDENCE, see Directions verdict, etc., 9, 851.

DENTISTS, see Mediene and Surgery, 10, 825.

DEMURRER, see Pleading, 10, 1173.

DEPOSITARIES, of goods, see BaIIman, 9, 825; of public funds, see Counties, 9, 835; Municipal Corporations, 10, 907; States, 10, 1703.

DEPOSITIONS, 9, 964.

DEPOSITS, sees Warehousing and Deposts, 10, 1994; Banking, etc., 9, 334-339; Payment into Court, 10, 1168.

DEPUTY, see Officers and Public Employes, 8, 1194, 1121; also titles relating to particular offices as Sheriffs, etc., 10, 1650.

DESTENT AND DISTRIBUTION, 9, 970.

DESTECTYES, see Municipal Corporations (police organizations), 10, 896; Officers and Public Employes, 10, 1043; Licenses (private detectives), 10, 622; and as to their creditbility as witnesses, see Wiltsess, 10, 2095; Divorce, 9, 937.

DESTENTMIATION OF CONFLIUCTING CLAINS TO REALITY, sss Gutting Title, 10, 1347.

DESTENTUS, 9, 976.

DEVIATION, see Carriers, 9, 466; Shipping and Water Traffic, 10, 1655.

DILATORY PLELAS, see Abstument and Revival, 9, 4; Pleading, 10, 1173.

DIRECTING VERDICT AND DEMURRER TO EVEDENCE, 9, 975.

DISCALMINERS, see Causes of Action and Defense, 9, 635; Costs, 9, 812; Pleading, 10, 1173.

DISCONTANCE, DISMISAL AND NONSUIT, 9, 982.

DISCOVERY AND INSPECTION, 9, 990.

DISCRETION, see articles treating of procedures or relief resting in discretion.

Review or control of discretion, see Appeal and Review, 9, 206; Mandamus, 10, 662; Prohibition, Writ of, 10, 1277; Certarolari, 9, 542.

DISTRICAL ARCHESEMENT, see Elections, 9, 1041.

DISTRICAL AND NONSUIT, see Discontinue, etc., 9, 984.

DISCREDLY CONDUCT, 9, 985.

DISCREDLY NOUNET, 9, 985.

DISCREDLY NOUNET, 9, 986.

DISCREDLY NOUNET, 9, 985.

DISCREDLY NOUNET, 9, 986.

DISCREDLY NOUNET, 9, 745; Partnership, 10, 1116.

DISTRLES, see Landiord and Tennant, 10, 894.

DISTRICAL ATTORNETS, see Attorneys and Counselors, 9, 816.

DISTRICAL OF COLUMEDIA, see Territories and Federal Possessions, 10, 1854.

DISTRIURRANCE OF PUBLIC ASSERBLAGES, 9, 937.

DICTEMES, see Sewers and Drains, 10, 1631; Waters and Water Supply, 10, 2015; Ditch and Canal Rights \[Special Article\], 3, 1112.

DIVIDDENDS, see Corporations, 9, 764; Bank-rupty, 9, 873; Assignments for Benefit of Creditors, 9, 272; Inasolvery, 10, 294.

DIVISION OF OPINION, see Appeal and Re

\*\*EXAMINATION OF WITNESSES, 9, 1312. EXCEPTIONS AND OBJECTIONS, see Savling Questions for Review, 10, 1572; Equity, 9, 1141; Masters and Comministers, 10, 812; Reference, 9, 1706; EXCEPTIONS, BILL OF, see Appe Appeal and Review, 9, 150. EXCANGE OF PROPERT, 9, 1315. EXCHANGES AND BOARDS OF TRADE, 9, 1326. EXCEPTIONS, 9, 1128. See, also, Civil Arrest, 9, 570. EX EXECUTORS AND ADMINISTRATORS, see Estates of Decedents, 9, 1154. EX EXEXPLARY DAMAGES, see Damages, 9, 872. EXEMPTIONS, 9, 1339. See, also, Homeheads, 9, 1635. EXEMPTIONS AND SHOWS, 9, 1344. EXEMPTIONS, see Pleading, 10, 1186; Equity, 9, 1110; Trial (reception of evidence), 10, 1900; Appeal and Review (inclusion in record), 9, 144. EXCONERATION, see Contribution, 9, 720; Guaranty, 9, 1345; Surrelyth, 10, 170; Indemnity, 10, 44; Marshaling Assets, etc., 10, 690; Estates. of Decedents, 9, 1154. EXPERIMENTS, see Evidence, 9, 1304. EXPERIEVIDENCE, see Evidence, 9, 1289, EXPISUYES AND INFLAMMABLES, 9, 1345. EX POST FACTO LAWS, see Constitutional Law, 9, 839; Criminal Law, 9, 852. EXPERESS COMPANIES, see Carriers, 9, 477; Raulroads, 10, 1385; Corporations, 9, 738. EXTORITION. No cases have been found during the period covered by Vol. 9, See 7, 1639. See, also, Blackmall, 9, 893; Threats, 10, 1855. EXTRADITION, 9, 1347. F. FACTORS, 9, 1349. F. FACTORS' ACTS, see Factors, 9, 1349; Pledges, 10, 1253; Sales, 10, 1334. FALSE IMPRISONMENT, 9, 1351. FALSE PERSONATION. No cases have been found during the period covered by Vol. 9, See 5, 1415. FALSE PRETENSES AND CHEATS, 9, 1353. FALSE REPRESENTATIONS, see Decedent, 9, 935; Fraud and Undue Influence, 9, 1475; Estoppel, 9, 1219; Sales (warranties), 10, 1546; Insurance (warranties), 10, 350, 375, and all contract titles. FALSE SWEARING, see Perjury, 10, 1162. FALSEITYING RECORDS, see Records and Fllea, 8, 1702. FAMILY SETTLEMENTS, see Estates of Decedents, 9, 1154. FEDERAL PROCEUDURE, see Admiralty, 9, 29; Appeal and Review, 9, 108; Equity, 9, 110; Jurisdiction, 10, 512; Removal of Causes, 10, 1508. Consult the parti-ular titles treating of that matter of procedure under Investigation. Operation of Conformity Act, see Courts, 9, 844. FELLOW-SERYANTS, see Master and Servant, 10, 736. FENCES, 9, 1358. See, also, Adjoining Owners, 9, 185. FENRIES, 9, 1359. FIDELITY INSURANCE, see Insurance, 10, 336; Indemnity, 10, 43.

**VI**

G.

IMMIGRATION, see Aliens, 9, 84.

IMPAIRING OBLIGATION OF CONTRAACT, see Constitutional Law, 9, 628.

GAME AND GAME LAWS, see Fish and Game Laws, 9, 1284.

IMPEACHMENT, see Officers, etc., 10, 1054;

Vitnesses, 10, 2095; Evidence, 9, 1307.

GAMING, see Betting and Gaming, 9, 885;

Gambling Contracts, 9, 1522.

GAMING HOUBS, see Betting and Gaming, 9, 385; Disorderty Houses, 9, 995.

GARNishment, 9, 1525.

GAS, 9, 1532.

GENERAL AVERAGE, see Shipping and Wwa-

ter Traffic, 10, 1670.

GENERAL ISSUE, see Pleading, 10, 1241.

GIFTS, 9, 1534.

Good WILL, 9, 1539.

GOVERNOR, see States, 10, 1703; Offleers and

Public Employices, 10, 1043.

GRAND JURY, 9, 1540.

GRAND RENT8, see Landord and Tenant, 8, 648.

GURANTY, 9, 1545.

GURADIANS AND LITEM AND NEXT

FRENDS, 9, 1544.

GURADIANSHIP, 9, 1551.

H.

HAREAAS COPRUS (AND REPEIGNADO), 9, 1559.

Habitual DRUNKARDS, 9, 1563.

Habitual DRUNKARDS. No cases have

been found during the period covered.

HANDWRITING, PROOF OF, see Evidence,

9, 1282.

HARBO MASTERS, see Navigable Waters, 10, 917; Shipping and Water Traffic, 10, 1656.

HARMELES AND PREJUDICAL ERROR, 9, 1563.

HawkERS AND PEDDLERS, see Peddling, 10, 1150.

HELATH, 9, 1586.

HEARING, see Appeal and Review, 9, 199;

Equity, 7, 1376; Motions and Orders, 10, 873; Trial, 10, 1386.

HEARSAY, see Evidence, 9, 1263; Indirectment and Prosecution, 10, 111.

HEIRS, DEVISHES, NEXT OF KIN AND LEGATES, see Descent and Distribution, 9, 970; Elstates of Decedents, 9, 1154; Willis, 10, 2035.

HERD LAWS, see Animals, 9, 100.

HIGHWAYS AND STRIEETS, 9, 1588.

ROLLDAYS, 9, 1629.

HOMESTERS, 9, 1629.

HOMESTERS, 9, 1636.

HORSE RACING, see Racing (regulation generally), 10, 1365, and Betting and Gaming, 9, 885.

HORSER, see Animals, 9, 100; Sales (warranty), 10, 1546,

HOSPITALS, see Asylums and Hospitals, 9, 280.

HOUSSES OF REFUAGE AND REFORMATION; RIBS, see Charitable, etc., Institutions, 1, 607; Prisons, etc., 10, 1261.

HUSBAND AND WIFER, 10, 1.

I.

ICE, see Waters and Water Supply, 10, 2005.

ILLEGAL CONTRACTS, see Contracts, 9, 671.

IMMIGRATION, see Aliens, 9, 88.

IMPAIRING OBLIGATION OF CONTRAACT, see Constitutional Law, 9, 628.

IMPEACHMENT, see Officers, etc., 10, 1054;

Vitnesses, 10, 2095; Evidence, 9, 1307.

Right of Jurros to impeach their own verdict, see New Trial, etc., 10, 1012.

HOSPITALS, see Institutions, 10, 26.

HUSBAND AND WIFER, 10, 1.

I.

ICE, see Waters and Water Supply, 10, 2005.

ILLEGAL CONTRACTS, see Contracts, 9, 671.

IMMIGRATION, see Aliens, 9, 88.

IMPAIRING OBLIGATION OF CONTRAACT, see Constitutional Law, 9, 628.

IMPEACHMENT, see Officers, etc., 10, 1054;

Vitnesses, 10, 2095; Evidence, 9, 1307.

Right of Jurros to impeach their own verdict, see New Trial, etc., 10, 1012.

HOSPITALS, see Institutions, 10 INTERPRETEATION, see titles treating of the various writings of which an interpretation is sought, as Contracts, **9**, 682. INTERPRETETS, see Examination of Witnesses, **9**, 1312. INTERRETSATE COMMARRCE, see Commerce, **9**, 684. Compare Carriers, **9**, 466. INTERPREVENTION, see Parties, **10**, 1086.

INTERSCATING LIQUORS, **10**, 417. INTOXICATION, see Incompetency (effect on capacity to contract), **10**, 40\*\*; Criminal Law (capacity to commit crime), **9**, 883. Intoxicating Liquors (offense of drunkness), **10**, 460. Habitual Drunkards (guardinship), **9**, 1568. INVENTIONS, see Patents, **10**, 1127; and as to rights in unpatented inventions, see Property, **10**, 1281. INVESTMENTS, see Estates of Decedents, **9**, 1168; Trusts, **10**, 1923; also as to investment institutions, see Banking and Finance, **9**, 334. IRIRICATION, see Waters and Water Supply, **8**, 2278, 2283; also see Special Article, **3**, 112. ISLAADS, see Boundaries, **9**, 402; Navigable Waters, **10**, 917; Waters and Water Supply, **10**, 1996; Riparian Owners, **10**, 1528. ISSUE, see Willis (interpretation), **8**, 2326. ISSUEES TO JURY, see Equity, **9**, 110; Jury, **10**, 541. J. JEOPAIL, see Harmless and Prejudicial Error, **9**, 1663; Pleading, **10**, 1233, and like titles. JEOPAIL, see Criminal Law, **9**, 854; indicment and Prosecution, **10**, 87. JETTSION, see Shipping, **10**, 1555. JOINDER OF CAUSSES, see Pleading, **10**, 1192. JOINDER ADVENTUREDS, **10**, 460. JOINT EXECUTORS AND TRUSTEESS, see Estates, **9**, 1199; Trusts, **10**, 1907. JOINT LIABILITIES OR AGREEMENTS, see Contracts, **9**, 654, and like titles; Torts, **10**, 1857. JOINT STOCK COMPANES, **10**, 462. JOINT TENANCY, see Tennants in Common and Joint Tenants, **10**, 1850. JUDGES, **10**, 462. JUDGMENT NOTDES, see Confession of Judgment, **9**, 595. JUDGMENTS, **10**, 467. JUDICAL NOTICE, see Evidence, **9**, 1229; Pleading, **10**, 1131. JUDICAL SALES, **10**, 507. JURISDICTION, **10**, 512. JURY, **10**, 541. JUSTICES OF THE PEACE, **10**, 553. JUSTIFICATION, EXCUSE, AND MITIGATION OF LIBEL AND SLANDER \[Special Article\], **6**, 430. JUVENILE COURTS, see Infants, **10**, 241. K. K. KIDNAPPING, **10**, 570. L. LABELS, see Commerce (unlabeled goods), **9**, 583; Food (unlabeled food products), **9**, 1368; Trade Marks and Trade Names, **10**, 1856. LABOR UNIONS, see Trade Unions, **10**, 1872; Associations and Societies, **9**, 274; Conspiracy (boycetting), **9**, 602; Injunction, **10**, 267. LACHES, see Equity, **9**, 1123. LAKES AND PONDS, see Navigable Waters, **10**, 817; Rlparman Owners, **10**, 1528; Waters and Water Supply, **10**, 2003. LANLOLOR AND TENANT, **10**, 871. See Social Article, Fluctures of Tenants, **6**, 338. LAND PATENTS, see Public Lands, **10**, 1296. LANDENY, **10**, 600. LANDENY, **10**, 600. LANDENY, **10**, 600. LANDENY, **10**, 610. LANDENY, **10**, 610. LANDENY, **10**, 611. LANDENY, **10**, 612. LANDENY, **10**, 613. LANDENY, **10**, 614. LANDENY, **10**, 615. LANDENY, **10**, 616. LANDENY, \*\*1
LOAN AND TRUST COMPANIES, see Banking and Finance, **9**, 334; Corporations, **9**, 733.

LOANS, see Baillment, **9**, 223; Banking and Finance, **9**, 327; Implied Contracts, **10**, 33; Mortgages, **10**, 835; Usury, **10**, 1937.

LOCAL IMPROVEMENTS AND ASSESS-MENTS, see Public Works and Improvements, **10**, 1324.

LOCAL OPTION, see Intoxicating Liquors, **10**, 419.

LOGS AND LOGING, see Forestry and Timber, **9**, 1410.

LOST INSTRUMENTS, see Restoring Instruments and Records, **10**, 1526.

LOST PROPERTTY, see Property, **10**, 1285.

LOTTERIES, **10**, 656.

M.

\*\*MAMING; MAYREI, **10**, 656.

MALICE, see Criminal Law, **9**, 851; Homplicde, **9**, 1636; Torts, **10**, 1857.

MALICOUS ABUSE OF PROCESS, see Malicious Prosocation and Abuse of Process, **10**, 657.

MALICOUS MISHCHET, **10**, 657.

MALICOUS FROSCUTION AND ABUSE OF PROCESS, **10**, 657, supplementing special article, **4**, 470.

MANDANUS, **10**, 662.

MANDATE, see Baillment, **9**, 326; Appeal and Review, **9**, 226.

MARINE INSTRANCE, see **2**, 792, and topic shipping and Water Traffic, **10**, 1671.

MARITIME LIENS, see Shipping and Water Traffic, **10**, 1656.

MARKET REPROTRS, see Exchanges and Boards; of Trade, **9**, 1286; Telagraphs and Telephones, **6**, 1677.

MARKETS, see Municipal Corporations, **10**, 896.

MARKS, see Animals, **9**, 107; Commerce, **9**, 583; Food, **7**, 1670; Forestry and Timber, **9**, 1408; Trade Marks and Trade Names, **10**, 1865; and see Directions (marks on ballot), **9**, 1050.

**MARIRAGE, 10**, 686.

MARIRAGE SETTLEMENTNS, see Husband and Wife, **10**, 1.

MARRISHALING ASSETS AND SECURITIES, **10**, 690.

MARRISHALING ESTATE, see Estates of Decedents, **9**, 1169.

\*\*MATRIAL LAW \[Special Article\], **2**, 800.

**CI, 4**, 640.

**MASTER AND SERVANT, 10**, 691. See Special Article, Liability of Master For Assault by Servant, **5**, 275.

**MASTER AND commissioners, 10**, 812.

\*\*MASTERS OF VESESELS, see Shipping and Water Traffic, **10**, 1655.

**MECHANICS' LIENS, 10**, 814.

\*\*MEDICINE AND SURGERY, **10**, 828.

\*\*METRIAL SURFERING AS AN ELEMENT OF DAMAGES \[Special Article\], **6**, 629.

**METRIAL SURFERING AS AN ELEMENT OF DAMAGES IN TELEGRAPH CASES, 6**, 1678.

\*\*METRICAL AGENCIES. No cases have been found during the period covered by Vol 10. See **2**, 890.

\*\*MERGERER IN JUDGMENT, see Former Adjudication, **9**, 1422.

MERGER OF CONTRACTS, see Contracts, **9**, 695.

\*\*MERGERER OF ESTATES, see Real Property, **10**, 1464.

**MILITARY AND NAVALLAW, 10**, 834.

MILITTA, see Military and Naval Law, **10**, 826.

\*\*MILLS. No cases have been found during the period covered by Vol. 10. See **6**, 643.

\*\*MILLS AND MINERIALS, **10**, 839.

\*\*MINISTERS OF STATE, and Consals, **9**, 99.

**MINUTS, see Judgments, 10**, 473.

NONRESIDENCE, see Absentee, 9, 9; Aliens, 9, 84; Citizens, 9, 569; Dominie, 9, 1010; Attachment, 9, 283; Process, 10, 1262.

NOSNULT, see DIMENSIONAL, etc., 9, 983.

NOTAHIES AND COMISSIONNERS OF DEEDS, 10, 1014.

NOTES OF ISSULE, see Dockets, Calendars and Trial Lists, 9, 1048.

NOTICE, see Notice and Record of Title, 10, 1013, and like titles treating of the subject-matter in respect to which notice is imputed.

NOTICE AND RECORD OF PETTER, 10, 1015.

NOTICE OF CLAIM OR DEMAND, see Canners of Action, etc., 9, 639; Highways and Streets, 9, 1620; Municipal Corporations, 10, 912; Master and Servant, 10, 773; Negricence, 10, 921; Raitroads, 10, 1265; Carrica, 9, 484, 485.

NOTICEB, see titles treating of the subject-matter whereof notices are required.

Compare Process, 10, 1262.

NOVATION, 10, 1030.

NUISANNC, 10, 1031.

O.

OATHS. No cases have been found during the period covered by Vol. 10. See S, 1191.

OBSCENTITY, see Indccency, Lewdness and Obsentity, 10, 42.

OBSTUCTING JUSTICE, 10, 1043.

OCUPTATION TAXES, see Licenses, 10, 622.

OFFER AND ACCEPATANCE, see Contracts, 9, 657.

OFFER OF JUDGMENT, see Confession of Judgment, 9, 596; Judgments, 9, 215; Costa, 9, 813.

OFFICE JUDGMENTS, see Defaults, 9, 960.

OFFICEB AND PUBLIC EMPLOYES, 10, 1043.

OFFICAL BONDS, see Bonds, 9, 394; Indemits, 10, 43; Officers, etc., 10, 1064; Surteyth, 10, 1768.

OPENING AND CLOSING, see Argument and Conduct of Counsel, 9, 240.

OPENING JUDGMENTS, see Judgments, 10, 476.

OPINIONS OF COURT, see Appeal and Review, 9, 226; Courts, 9, 844; Former Addication, 9, 142; Share Decide, 10, 1695.

OPTIONS, see Contracts, 9, 662; Gambling Contracts, 9, 152; Vendors and Purchanges, 10, 1945.

ORDER OF PROOF, see Trial, 10, 1902. Compare Examination of Witnesses, 9, 1312.

ORDERS FOR PAYMENT, see Non-Negotiable Paper, 10, 1014.

ORDERS OF COURT, see Motions and Orders, 10, 874; Former Adjudication, 9, 1422.

ORDIN ANCES, see Municipal Corporations, 10, 892; Constitutional Law, 9, 611.

OYSTERS AND CLAMS, see Fish and Game Laws, 9, 1367.

P.

PARODONS AND PAHOLES, 10, 1071.

PARENT AND CHILD. 10, 1072.

PARKS AND PUBLIC GROUNDS, 10, 1079, supplementing special article, 4, 876.

PARLIAMENTARY LAW, 10, 1080.

PAROL EVIDENCE, see Evidence, 9, 1250.

PAITERS, 10, 1081.

PAITERS, 10, 1088.

PAITERS, 10, 1100.

PARITY VALES, 10, 1124.

PASSENGERS, see Carrriers, 9, 496.

PATENTS, 10, 1127.

PAUPERS, 10, 1145.

PAWNBROKERS AND SECOND HAND DEALERS, 10, 1147.

PAYMENT AND TENDER, 10, 1147.

PAYMENT INTO COURT, 10, 1158.

PEDDIING, 10, 1158.

PEDDIING, 10, 1266.

PEDDIING AND FORFEITUREES, 10, 1160.

PANIERSIONS, 10, 1161.

PEONAGE, see Slaves, 10, 1673. Compare Charitable and Correctional Institutions, 1, 507; Conducts, 9, 729.

PERFORMANCE, see Contracts, 9, 69, 496; And Other contract title.

PERPLUARY, 10, 1162.

PERPETUATION OF TESTIMONT, see Equity, 9, 1110; Dep * **idi** TOPICAL INDEX.

POOR LITIGANTS, see Coets (in forma pau-

peris), 9, 814

POSSSE COMITATUS, see Arrest and Binding

Over, 9, 252.

Possession, WRIT OF. No cases have

been found during the period covered

by Vol. 10, See 8, 1441.

Possession& VARIANT, 10, 1255.

POSTAL LAW, 10, 1255.

POSTPONEMENT, see Continuance and Post-

ponent, 9, 649.

POWERS, 10, 1259.

POWERS OF ATTORNEY, see Agency, 9,

81; Attorneys and Counselors, 9, 313;

Frauds, Statute of, 9, 1434.

PRACCIPE, see Process, 10, 1263: Witnesses

(subpoena), 10, 2012.

PRAYERS, see Equty, 9, 1133; Pleading, 10,

1197.

PRACTORY TRUSTS, see Trusts, 10, 1907;

Wills, 10, 2074; Charitable Gifts, 9, 553.

PRELIMINARY EXAMINATION, see Arrest

and Binding Over, 9, 253.

PRELIMINARY SUITS, see Causes of Action

and Defenses, 9, 539; Discontinuance,

Dismissal and Nonsnit, 9, 932; Pleading, 10, 1173.

PRESCRIPTION, see Adverse Possession, 9,

39; Easements, 9, 1020; Limitation of

Actions, 10, 635.

PRESUMPTIONS, see Evidence (civil), 9,

1232; Inditement and Prosection (crim-

10, 101.

PRINCIPAL AND AGENT, see Agency, 9, 58.

PRINCIPAL AND SURETY, see Suretyshlp,

10, 1768.

PRIOR APPRORATION, see Waters and

Water Supply, 10, 2009.

PRIORITIES BETWEEN CREDITORRS, see

Lions, 10, 632, and titles there referred

to. Also Bankruptty, 9, 370, and similar

tiles dealing with distribution of assets.

**PRISON, JAILS, AND REFORMATORIES,**

10, 1261.

- **PRIVACY, RIGHT OF, see Torts, 10, 1857.**

PRIVATE INTERNATIONAL LAW, see Con-

file of Lawa, 9, 596.

PRIVATE SCHOOLS, see Colleges and Acad.

emles, 9, 575.

PRIVATE WAYS, see Easements, 9, 1021.

PRIVILEGE, see Libel andlander, 10, 613.

Arrest and Binding Over, 7, 268; Civil

Arrest, 9, 570; Witnesses, 20, 2190.

PRIVILEGED COMUNICATIONS, see Libel

and Slander, 10, 609; Witnesses, 10, 2089.

PRIZE, see War, 8, 2257.

PRIZE FIGHTING. No cases have been

found during the period covered by volume, 10. See 4, 1070.

PROBATE, see Wills, 10, 2051.

PROBESS, 10, 1262.

PROODUCTION OF DOCUMENTS, see Discovery and Inspection, 9, 591; Evidence, 9,

1287.

PROFANTITY AND BLASPHENY, 10, 1277.

PROFERT, see Fleading, 10, 1185.

PROFITS A PRENDRE, see Real Property,

**10, 1448; Ensements, 9, 1017.**

PROBITION, WRIT OF, 10, 1277.

PROOMETERS, see Coproations, 9, 740, also

compare Contracts, 9, 654; Fraud and

Undue Influence, 9, 1475.

PROBERT, see Covenants, 9, 1475.

PROFITES A PRENDRE, see Real Property,

10, 1448; Ensements, 9, 1017.

PROBITION, WRIT OF, 10, 1277.

PROOMETERS, see Coproations, 9, 740, also

compare Contracts, 9, 654; Fraud and

Undue Influence, 9, 1475.

PROBERT, see Covenants, 9, 1475.
REASONABLE DOUBT, see Indictment and

Prosecution, 10, 57.

RECAPTION, see Assault and Battery, 9, 261; Trespass, 10, 1875; Replevin, 10, 1514.

RECEIPTORS, see Attachment, 9, 289; Executions, 9, 1331.

RECEIPTTS, see Payment and Tender, 10, 1147; Evidence, 9, 1331. See, also, for particular kinds of receplits Warehousing, etc., Warehouse receplits), 10, 1994; Banking, etc. (certificates of deposits), 9, 334; Executions (forthcoming re-eights), 9, 1331.

RECEIPTERS, 10, 1465.

RECEIVING STOLEN GOODS, 10, 1484.

RECEITALS, see Entoppel, 9, 1218; Municipal Bonds, 10, 880; Statutes, 10, 1717.

RECEITALS OF LAW IN UNICIPAL BONDS

\[Special Article\], 4, 717.

RECEOGNIZANCES, 10, 1485.

RECORADI, see Justices of the Peace, 10, 533.

RECEORDING DEDERS AND MORTGAGES, see Notice and Record of Title, 10, 102.

REESONDENTS, see Shipping, etc., 10, 1656.

RECDRDS AND Files, 10, 1486.

RECDRDS AND Files, 10, 507; Mortgages, 10, 871.

RECEITALS OF LAW IN UNICIPAL BONDS

\[Special Article\], 4, 717.

RECEOGNIZANCES, 10, 1485.

RECEORDARI, see Justices of the Peace, 10, 533.

RECEORDING DEDERS AND MORTGAGES, see Notice and Record of Title, 10, 102.

RECEORDING AND MORTGAGES, see Notice and Record of Title, 10, 102.

RECEORDAND Files, see Persons, Jafis and Reformatories, 10, 1261.

RECEIGHTS OF DEEDS, see Notice and Record of Title, 9, 1032; Officers, etc., 10, 1043.

RECEIGHTSATION, see Notice and Record of Title, 10, 1029.

REHEARING, see Appeal and Review, 9, 280; Equity, 9, 1150; New Trial, etc., 10, 938.

REINSURANCE, see Insurance, 10, 889.

REJOINDERS, see Pleading, 10, 1173.

RELIATION, see topics treating of various legal acts to which the doctrine of relation may be applied, such as Contracts, 9, 554; Deceds, etc., 9, 943; Trespas, 10, 1875.

RELEASES, 10, 1502.

RELIEF FUNDS AND ASSOCIATIONS, see Praternal, etc., Associations, 9, 1449; Master and Servant, 10, 691.

RELIGIOUS SOCIETIES, 10, 1503.

REDAMIANDERS, see Real Property, 10, 1448; Perpetuities, etc., 10, 1167; Wille, 10, 2063.

REREMEDY AT LAW, see Equity, 9, 113; Injunction, 10, 248, and other topics dealing with equitable remedies.

REMITTYUR, see Appeal and Review, 9, 223; Judgments, 10, 469; New Trial, etc., 10, 999; Damages, 9, 908.

RENOVAL OF CAVES, 10, 1508.

RENDITION OF JUDGMENT, see Judgments, 10, 473; Justices of the Peace, 10, 533.

RECEIEDER, see Pleading, 10, 1177.

RERELEGIANDO, see Habeas Corpus, etc., 9, 1559.

RECEIEDERIVN, 10, 1514.

REPLICATION, see Pleading, 10, 1202.

REPORTED QUESTIONS, see Appeal and Review, 9, 11, 111.

xiii

REPORTTS, see Records and Files, 10, 1486.

Reporting decelions of courts, see Courts, 9, 844.

RERERERERESTATIONS, see Deced, 9, 935.

105; Esteppel, 9, 1219; Sales (warrant), 10, 1565.

REREREREVEES, see Pardons and Pardos, 10, 1071; Homelide, 9, 1636.

REES ADVIDICATA, see S.

SAFE DEPOSITS, see Warehousing and Deposits, **10**, 1994; Banking and Finance, **9**, 338.

SALES, **10**, 1534.

SALVAGE, see Shipping, etc., **10**, 1658.

SATISACTION AND DISCCHARGE, see Acord and Satisfaction, **9**, 16; Contracts, **9**, 695; Judgments, **10**, 503; Mortgages, **10**, 859; Payment and Tender, **10**, 1147; Releases, **10**, 1602.

SAVING QUESTIONS FOR REVIEW, **10**, 1572.

SAVINGS BANKS, see Banking, etc., **9**, 334.

SCANDAL AND IMPERTINENCE, see Equty, **9**, 1130; Pleading, **10**, 1173.

SCHOOL LANDS, see Public Lands, **10**, 1296; Schools and Education, **10**, 1607.

SCHOOLS AND EDUCATION, **10**, 1697.

SCHRE FACIAS, **10**, 1618.

SEALS, see Names, Signatures, and Seals, **10**, 917. Compare titles relating to instruments whereed seal is required.

SEAARTN, see Shipping, etc., **10**, 1655.

SEARCH AND SEIZURE, **10**, 1618.

SEAWEED, see Waters and Water Supply, **10**, 1986.

SECONDARY EVIDENCE, see Evidence, **9**, 1244.

SECONDARAND DEALERS, see Pawnbrock-crg, etc., **10**, 1147.

SECRPET BALIOT, see Elelections, **9**, 1050.

SECURITY FOR COSTS, see Costs, **9**, 813.

SEDUCTION, **10**, 1619.

SELF-DSTEENSE, see Assault and Battery, **9**, 257; Homelde, **9**, 1644.

SENTENCE, see Indictment and Prosecution, **10**, 184.

SEPARATE PROPERTTY, see Husband and Wite, **10**, 1.

SEPARATE TRIALS, see Trial (civil), **10**, 1896; Indictment and Prosecution (criminad), **10**, 57.

SEPARATION, see Divorce, **9**, 999; Husband and Wite (separation agreements), **10**, 4.

SEQUESTRATION, **10**, 1622.

SERVICE, see Process, **10**, 1262.

SET-OFF AND COUTERCLAY, **10**, 1623.

SETTLEMENT OF CASE, see Appeal and Review, **9**, 157.

SETTLEMENTS, see Accord, etc., **9**, 11; Estates of Decedentia, **9**, 1204; Guardalshp, **7**, 1912; Trusts, **10**, 1907.

SEVERANCE OF ACTIONS, see Pleading, **10**, 1173; Trial, **10**, 1896.

SEWEERS AND DRANKS, **10**, 1631.

SHAM PLEADINGS, see Pleading, **10**, 1173.

SHELLEY'S CASE, see Real Property, **10**, 1439; Deeds of Convayance, **9**, 943.

SHERIFFS AND CONSTARLES, **10**, 1648.

SHERIFFS SALES, see Executions, **9**, 1333; Judicial Sales, **10**, 507.

SHIPPING AND WATER TRAFFIC, **10**, 1656.

SIDEWALKS, see Highways and Sreets, **9**, 1616;

SIGNATUREES, see Names, etc., **10**, 916.

SIMILITER, see Pleading, **10**, 1202.

SIMULTANEOUS ACTIONS, see Election and Waiver. **9**, 1037.

SLANDER, see Label and Slander, **10**, 609.

SLANCES, **10**, 1673.

SLEEPING CARS, see Carriers, **9**, 466; Taxes, **10**, 1776.

SOCIETIES, see Associations and Societies, **9**, 274.

SODOY, No cases have been found during the period covered by Vol. **10**. See **8**, 1946.

SOCICATION TO CRIME, see Criminal Law, **9**, 831, and topics treating of the crime sol solletted.

SPANISH LAND GRANTS, see Public Lands, **8**, 1503.

SPECIAL ASSESSMENTS AND TAXES, see Public Works and Improvements, **10**, 1307.

SPECICAL INTERROGATORIES TO JURY, SUPPOENA, see Witnesses, 10, 2112; Equuty, 9, 1127; Process, 10, 1262,

SUBROGATION, 10, 1760.

SUBSCRIBING PLEADINGS, see Pleading, 10, 1178; Equuty, 9, 1120.

SUBSCRIPTIONS, 10, 1762.

SUBSTUTION OF ATTORNEYS, see Attorneys and Counemelors, 9, 303.

SUBSTITUTION OF PARTIES, see Abatement and Revival, 9, 5; Parties, 10, 1087.

SUBRYAFS, see Pipe Lines and Subwaya, 10, 1171.

SUCCESS, see Descent and Distribution, 9, 970; Estates of Decedents, 9, 1164; Taxes (successional taxes), 10,1837; Willis, 8, 3205.

SUICIDE, 10, 1762.

SUMMARY PROCEDINGS, see Landford and Tennat, 10, 597.

SUMMARY PROSEUTIONS, see Indictment and Prosecution, 10, 238,

SUMMARY, see Process, 10, 1252.

SUMMARY, 10, 1762.

SUPERSEDEAS, see Appeal and Review, 9, 141-144.

SUPPLEMENTAL PLEADINGS, see Equuty, 9, 1133; Pleading, 10, 1224..

SUPPLEMENTARY PROCEEDINGS, 10, 1765.

SUPPORT AND MAINTENANCE, see Allmory, 9, 89; Husband and Wife, 10, 4, 13; Infants, 10, 238; Insane Persons, 10, 285; Parent and Child, 10, 1074; Guardinalshp, 9, 1553.

SURCHARGING AND FALSEITYING, see Achemating, Action for, 9, 117; Estates of Decedents, 9, 1104; Trusts, 10, 1807.

SURETY OF THE PEACE. No cases have been found during the period covered by 10, 10, See 8, 2050.

SURETYSHIP, 10, 1768.

SURUFACE VATERS, see Waters, etc., 10, 2005; Railroads, 10, 1381; and as to duty to maintain highways in such manner as to prevent diversion, see Highway, etc., 9, 1589.

SUPPLUSAGE, see Equuty, 9, 1130; Pleading, 10, 1173.

SUPRISE, see New Trial, etc., 10, 1005; DeTaints, 9, 960; Mistake and Accident, 10, 853.

SURROGATES, see Courts, 9, 839; Estates of Decedents, 9, 1154; Willis, 10, 2035.

SURVEYORS, see Countes, 9, 827; Boundaries, 9, 897.

SURVIVORSHIP, see Death and Survivor-ship (presamptions), 9, 295; Deeds, etc.

Interpretation, 9, 851; Willis, 10, 2035.

SUSPENSION OF POWER OF ALIANATION, see Perpetulties and Accumulations, 10, 1167.

T.

TAKING CASE FROM JURY, see Drecting Verdict, etc., 9, 975; Discontinuance, Dismismisal and Nonsuit, 9, 882; Questions of Law and Fact, 10, 1346.

TAXES, 10, 1776.

TELEGRAPHS AND TELEPHONS, 10, 1841.

TENANTS IN COMM AND JOINT TENANTS, 10, 1850.

TENDER, see Payment and Tender, 10, 1147.

TERRMS OF COURT, see Courts, 9, 840; Docketa, Calendars and Trial Lists, 9, 1008.

TERRitories AND FEDERAL POSSIONS, 10, 1834.

TESTAMENTARY CAPACITY, see Willis, 10, 2038.

THETAFERS, see Buildings and Building Restrictions, 9, 441; Exhibtions and Shows, 9, 1344.

**9, 1344.**

THEET, see Larency, 10, 601.

THEAETS, 10, 1855.

TICKETS, see Carriers, 9, 499; ExhFlitions and Shows, 9, 1344.

TIDE LANDS, see Public Lanas, 10, 1296; Waters, etc., 10, 1396.

TIME, 10, 1856.

TIME TO PLEAD, see Pleading, 10, 1240.

TITLE AND OVNERSHIP, see Property, 10, 1280, and topics treating of particular property and of the transfer thereof.

TITLE INURANCE, see Insurance, 10, 363.

TOLacco, 10, 1856.

TOLL

- \[1\] VINEW, see Trial, 10, 1906; Eminent Domain, 9, 1101; Mines and Minerals (statutory right of view), 10, 839.
- \[2\] VOTTING TRUSTS, see Corporations, 9, 733; Trusts, 8, 2169.
- \[3\] W. WAIVER, see Election and Waiver, 9, 1037;
- \[4\] WAR. No cases have been found during the period covered by Vol. 10. See 8, 2257.
- \[5\] WAREHOUSING AND DEPOSITS, 10, 1994.
- \[6\] WARRANTS, see Arrest and Binding Over, 9, 251; Search and Seizure, 10, 1618.

CURRENT LAW

(Copyright 1908 by The Keefe-Davidson Company.)

Volume X. MAY, 1908. Number L

**HUSBAND AND WIFE.**

**SS 1. Disabilities of Coverture In General;** **SS 6. Labillity for Necessary, 13.**

**SS 2. Mutual Dutties, Obligations, and Privi-**

**SS 6. Contract Rights and Liabilities of Husleges, 2.**

**SS 7. Contract and Property Rights of Wife**

**SS 8. Property Rights Inter Se, 5.**

**SS 9. Contracts or Other Dealings, 2.**

**SS 8. Property Rights Inter Se, 5.**

**SS 1. In General, 5.**

**SS 1. Disabilities of Coverture In General;**

**SS 1. Labillity for Necessary, 13.**

**SS 2. Mutual Dutties, Obligations, and Privi-**

**SS 2.** Inherent in the Relationship, 2.\*\*

**SS 2. Contracts or Other Dealings, 2.**

**SS 3. Property Rights Inter Se, 5.**

**SS 4. In General, 5.**

**SS 5. Rights of Husband in Wife's Proper-**

**SS 5. Labillity for Necessary, 13.**

**SS 6. Contract Rights and Liabilities of Husleges, 2.**

**SS 7. Contract and Property Rights of Wife**

**SS 8. Property Rights Under the Communi-**

**SS 9. Contracts or Other Dealings, 15.**

**SS 10. Contracts in General, 15.**

**SS 11. Payment**

**SS 12. Contracts of Wife in Husband's Proper-**

**SS 13.**

**SS 14. In General, 5.**

**SS 15. Payment**

**SS 16. Payment**

**SS 17. Payment**

**SS 18. Payment**

**SS 19. Contracts of Wife or Both, 25.**

**SS 19. Contracts of Wife, 25.**

**SS 10. Contracts of Wife, 25.**

**SS 11. Repeating and Procedure Generally as**

**SS 12. Contracts of Wife, 25.**

**SS 13. Contracts of Wife, 25.**

**SS 14. In General, 5.**

**SS 15. Payment**
and acknowledgments by married women.17 Conveyances between husband and wife as a fraud upon creditors is considered herein.18

SS 1. \_Disabilities of coverture in general; statutory relaxations.\_See 1. 122 - The emancipation of married women has been a gradual growth or evolution, the various stages or steps of which are marked by the various statutes,19 but it may be stated generally that the common-law rule of discrimination between husband and wife has been swept away by modern legislation so that a married woman is relieved in most of the states from the ordinary disabilities of coverture.20 Powers and disabilities with relation to particular matters are treated in the subsequent sections relating to such matters. Where a married woman is made sui juris, a public service company is obliged to serve her the same as anyone else.21

SS 2. \_Mutual duties, obligations, and privileges. A. Inherent in the relationship,\_See 1. 124 - The duty of the husband to support his wife is treated in another section.22

(SS 2) \_B. Contracts or other dealings.\_See 1. 125 - In some states the common-law disability of husband and wife to contract with each other still obtains,23 and in others the power to so contract is still limited to a greater or less extent,24 but in most of the states such disability has been entirely removed for most intents and purposes.25 When the contract of a married woman with her husband is valid, she will be held to its performance the same as any other party to a contract.26

\_Gifts.\_See 1. 125 - In most states, gifts between husband and wife are valid.27

Footnote 25: The author is grateful to the anonymous referee for his comments.

17. See Acknowledgments, 9 C. L. 22.

01. See $ 7E.

01. See Thompson v. Minnich, 227 III. 430, 81 NE 386, reviewing the Illinois status.

01. Dodge v. Rush, 28 App. D. C. 149; Bronson v. Brady, 28 App. D. C. 250.

01. Married woman entitled to have gas supplied to house rented by her and in which she conducted business in own right.

58 SE 908, Bona Hdo gift by wffe to hus-Appl.105 SWV 17. Evidence held not to show that married woman was lessee of house for which she demanded supply of gas. Id.

22. See post, $ 11. Proceedings to Compel Support of Wffe.

01. Rev. Code 1852, as amended in 1832, p. 400 (14 Laws Del. e. 550, $ 9), giving, in 119 La. 41, 43 B 505. Act No. 94, p. 137, of general terms, a married woman power to execute a bond, did not remove her common-law disability to contract with her husband and to execute bond to him. Masteu v.

58 SE 193, Bona Hdo gift by wffe to hus-Appl.105 SWV 17. Evidence held not to show that married woman was lessee of house for which she demanded supply of gas. Id.

24. The fact that a negotiable note of a wife is payable to her husband does not of itself impart invalidity because apparpar-entity made without approval of superior court not wife's domicle. Where such note does not involve a sale of the wife's separate estate to the husband, it is valid without such approval. Farmers' & Traders' Bk. v.

01. Subanks \[Ga. App.\] 59 SE 193.

01. Under D. C. Code, $ 1151 (31 Stat. 1373, c. 854), a husband and wife may contract with each other. Bronson v. Brady, $ 8 App. D. C. 250. Since act of 1893, married woman may become husband's partner. Italo-French Produce Co. v. Thomas, 31 Pa. Super-Ct. 503. Bill of sale by husband to wife held valid under P. L. Pa. 1887, No. 224, p. 332. Pedrick v. Keummell \[N. J. Law\] 65 A 906.

01. Partition on behalf of wife as to property purchased by husband in joint name of self and wife denied on ground of her
    Such gifts, however, must be clearly proved,\[28\] but may be inferred or presumed from the circumstances.\[20\] The Federal courts will not recognize a gift contrary to the laws of the state.\[30\]

_Ante-nuptial contracts._ See 8 C. L. 128.--An agreement to marry is a sufficient consideration for an ante-nuptial contract or settlement.\[31\] Such contracts or settlements are usually upheld when fair and equitable\[82\] and executed according to law,\[33\] but may be rendered nugatory by reason of failure to perform,\[34\] and in some cases may be disaffirmed on account of disability of parties.\[35\] The disposition and control of future acquired property may be included,\[36\] and also homestead rights\[37\] and rights by way of inheritance or survivorship.\[38\] Such contracts will be liberally con * 4.

10 Cur. Law. HUSBAND AND WIFE SS 3B.ceedings against the husband for support,\[58\] or in bar of the wife's rights as widow.\[54\] When equity has exclusive jurisdiction of contracts between husband and wife,\[58\] it has jurisdiction to enforce a separation agreement though the parties are divorced at the time such jurisdiction is invoked,\[59\] and, though such a suit is held to be a form of legal proceeding carried on in a court of equity,\[57\] equitable defenses are available therein.\[58\] The amount agreed to be paid for the wife's support is not necessarily affected by changed conditions.\[59\] The duration of the agreement is a matter of construction,\[60\] subject, of course, to rescission for cause.\[61\] The rights of the wife are not necessarily divested by a divorce obtained by her.\[42\] Parties to a suit for divorce may agree upon a division of their property,\[43\] and a stipulation for separate maintenance entered into upon dismissal of a divorce suit binds the husband as for alimony.\[54\] A conveyance by a husband to his wife pursuant to a separation agreement may be sustained as a voluntary conveyance notwithstanding void stipulations on her part.\[58\] \_Conveyances, mortgages, and contracts concerning reality.\[59\]_See SS C. L. 128_--In some states a deed by a wife to her husband is void,\[46\] as is also an executory contract for the sale of land by a husband to his wife,\[57\] and such a contract, being absolutely void, cannot be sued on even in equity,\[68\] but when a conveyance has been executed equity may decree a reconveyance.\[69\]_See SS 3. Property rights inter se. A. In general,\[59\]_See SS C. L. 128_--A common law ornaments and wearing apparal acquired by a married woman from her husband remain his property during his life,\[60\] and the wife's personal property owned at the time of her marriage becomes the property of the husband,\[71\] and it will be presumed that this rule prevails in other states where the contrary does not appear.\[72\]_

Where the husband acquires title in this manner he will retain it until it is divested 54. Contract held to bar rights as widow.\[59\] _the husband, though he thereby lost his_

Bechtel v. Barton, 147 Mich. 318, 13 Det. Leg.\_

Insuband was not imposed on and at the time

N. 1047, 110 NW 935. 55. Such contracts are enforceable only of the execution of the agreement was at

in equity. Buttiar v. Buttiar \[N. J. Eq.\] 65 least charging his wife with the things

A 485. 56, 57. Buttiar v. Buttiar \[N. J. Eq.\] 65 A 485. 58. Buttiar v. Buttiar \[N. J. Eq.\] 65 A 485. 58. Buttiar v. Buttiar \[N. J. Eq.\] 65 A 485. 58. Buttiar v. Buttiar \[N. J. Eq.\] 65 A 485. 59. 50. 51. 52. 53. 54. 55. 56. 57. Buttiar v. Buttiar \[N. J. Eq.\] 65 A 485. Equitable defenses arising subsequently to

a former adjudication are available. Id. Equity has jurisdiction under Kirby's Dig.

59. Agreement for support acquiesed in

without objection for twelve years could not be repudiated or changed because children

to be repudiated or changed because children

had grown up, occupied lucrative positions, and were no longer a charge upon the

58. Shipulations as to dover rights. Hell-

and were no longer a charge upon the

therther. Adams v. Adams, 32 Pa. Super. Ct.

59. 60. Agreement to pay wife rents during

life of husband and to pay her a certain

sum, term not specified, held to obligate

husband to pay such sums during their Joint

lives. Buttiar v. Buttiar \[N. J. Eq.\] 65 A 485. 61. Defeath held not to have shown any

60. Shoulder v. Buttiar \[N. J. Eq.\] 65 A 485. 62. Buttiar v. Buttiar \[N. J. Eq.\] 65 A 485. 63. 64. 65 A 485. Divorce resulting in change of estate held

by the entirety to one held in com-

mon did not affect agreement to pay

wife certain sum per month. Id. Where

agreement provided that husband was to

ceive all rents from property owned by him

and his wife, and he was to pay her a certain

sum per month, the latter obligation was

id.

71, 72.

in some manner recognized by law.\[78\] Realty in which such property is invested after marriage, title being taken in the husband's name, becomes the property of the husband.\[74\] The husband cannot inherit from the wife's relations.\[75\] Where the marriage is void the husband acquires no rights against the wife's property by reason of his payment of an encumbrance thereon.\[76\]

(SS 3) \_C. Rights of wife in husband's property.\_See * C. L. 120.--The wife acquires no title by reason of the fact that she is improperly made a grantee in a deed to the husband.\[77\] Under certain conditions she may acquire rights in or against her husband's property by way of subrogation,\[78\] or by reason of his investment or appropriation of her funds.\[79\] Where the wife enters and holds land under her husband, her holding after his death is not adverse to the heirs of her husband,\[80\] and the character of such possession is not changed by failure to have dower assigned.\[81\] A husband cannot dispose of his estate by gift to his children so as to defeat the just claims of his wife by virtue of her marital rights.\[82\]

(SS 3) \_D. Estates in common, jointly, and by the entities.\[83\] See * C. L. 131.--An estate by entities is one held by husband and wife by virtue of title acquired by them jointly after marriage, each taking the whole property and estate, with right of survivorship upon the death of the other.\[83\] Such an estate is created where land is conveyed to a husband and wife jointly.\[84\] Such an estate cannot exist as to

- 73. Mere admissions of husband that he holds for wife's heirs is insufficient to divest his title. Ellington v. Harris, 127 Ga. 85, 56 SE 134.
- Removal to another state in which common-law rule does not prevall does not divest his title. Ellington v. Harris, 127 Ga. 85, 56 SE 134.
- 74. Ellington v. Harris, 127 Ga. 85, 56 SE 134.
- 75. Estate descends to wife, and husband's interest then attaches. De Hatre v. Edmonds, 200 Mo. 246, 98 SW 744.
- 76. Brown v. Brown \[Miss.\] 43 # 178.
- 77. Gross v. Jones, 89 Miss. 44, 42 S 802.
- 78. Where a widlow paid balance of purchase price for land sold to her husband, she was entitled, as against the heirs of the husband, to a lien on the land for the amount so paid. Moore v. Gulley, 30 Ky. L. R. 442, 98 SW 1011. Where husband deserted wife, leaving her in possession of his homeseted, she acquires no title by redemption of property from execution sale, rents and profits being used to redeem. Kennedy v. Gulkey \[Ark.\] 98 SW 969.
- 79. Where wife entrusted her money to her husband to invest for her and he made an equitable and fair division of the property acquired by the investment of such money, together with his own, his estate was not chargeable with the money of the wife so invested. In re Watson, 115 App. Div. 310, 100 XYS 933.
- 80, \*\*S1. Moore v. Gulley, 30 Ky. L. R. 442, 98 SW 1011.
- 81. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines v. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 82. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 83. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 84. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 85. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 86. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 87. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 88. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 89. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 99 SW 604.
- 80. Chase of beneficiary of insurance policy from estate to children set aside in part as being a fraud upon the wife as it such extent. Gaines, 20 Ky. L. R. 710, 10 Cur. Law. HUSBAND AND WIFE $ 3E. 7

personality. \[88\] A purchase by the wife at an execution sale of property held by the entirety constitutes her a trustee for her husband as a cotenant. \[88\] A divorce does not change the nature and quality of an estate by the entirety. \[87\] In some states such estates remain as at common law, \[88\] or still exist with more or less modification, \[88\] while in others they have been abolished. \[89\] A judgment against one of the parties alone is not a lien on property held by the entirety, \[91\] and cannot be enforced against the same. \[92\]

(SS 3) \_E. Wife's separate property.\_See $&$ C. L. \[132\]--Under the various statutes a married woman's separate property may consist of the property owned by her at the time of her marriage and the proceeds thereof, \[88\] or of her earnings when replaced by her husband, \[88\] or property in which such earnings are invested, \[88\] but the burden of proving that property acquired by a married woman during overture was her separate property is upon the party asserting such fact. \[88\] The duration of such an estate may depend upon her power of disposition, \[88\] and while under some of the statutes she may give her separate property to her husband, \[88\] her intention to do so must out describing them as husband and Wife, and whose marriage was void, constituted is not lien on property held by them by the tenanta in common and not by the entirety. \[88\] V. Kayner \[Mich.\] 14 Det. Leg. N. 631, 118 NV7 719. \[88\] Equilatera e estate by entirety is created by a contract by husband and wife to purchase land. Evidence held to show contract by husband and wife and not by husband alone. \[88\] W. Kichardson \[Ark.\] 148 SV 538. \[88\] Estate by entirety attaches to a trust resulting from the husband's wrongful investment of the proceeds of wife's separate property in other property, taking title in his own name, the wife not being entitled to the resulting interest as her separate property. \[88\] Frost v. Frost, 200 Mo. 474, 88 SV 527. \[88\] S5. In re Baum, 121 App. Dlv. 495, 106 NY8 113. \[88\] Even though such personality be the proceeds of a sale of reality held by the entirety, the estate by the entirety being terminated by the sale, Id. \[88\] A. Alves v. Lyon, 216 Pa. 604, 66 A 81. \[88\] M. Alles v. Lyon, 216 Pa. 604, 66 A 81, citing Lewis Appeal, 85 Mic. 340, 48 NWV 586, 14 Am. St. Rep. 94. \[88\] S8. Frost v. Frost, 200 Mo. 474, 98 SW 527. \[88\] Not affected by Rev. St. 159, 4340, relating to separate property of married woman. Id. \[88\] Not abolished by married woman's act of 1862. \[88\] V. Robinson \[N.\] 3.62 \[88\] S28. Since the married woman's act gave to husband and wife the right each to one-half of reents and profits of an estate by the entirety, a purchaser at sale under execution against husband acquires the husband's right to such rents and profits. Id. One purchasing at sale under execution against the husband, his interest in property held by him and his wife by the entirety by reason of a conveyance, since the married woman's act, acquires a frechold estate of the same quality that he would have acquired by a conveyance from the husband. \[88\] U. Under Gen. St. 1882, # 2035-207, providing that a married woman's property shall be her separate property, and giving her absolute dominion over it, a husband and wife hold as tenants in common land conveyed to them jointly. Green v. Cannady \[88\] S7 SE 828. \[88\] Under Const. art. 3, # 45, declaring that property of wife shall be protected from the two-half of the two-

## 8 Husband and Wife $ 4a.

10 Cur. Law.

clearly appear." Payment by the husband to the wife of her funds received by him will not be presumed,1 nor will her election to accept the provisions of his will necessarily preclude her rights as a creditor of his estate for her funds received by him."

"Reduction to possession" by a husband of his wife's separate estate does not mean, under the Ohio statute, the acquiring of mere physical possession, but it must clearly appear that the title passed by her assent to absolute ownership of the estate or some part of it by him, and where such assent cannot be shown physical possession cannot be asserted to her prejudice.3

_Trusteeship of husband.See $ C. L. 132_

$ 4. _Property rights under the community system.4 A. What law governs. See $ C. L. 1676_--Personal property acquired by either husband or wife in a foreign jurisdiction which is by the law of such jurisdiction the separate property of the one or the other continues to be separate property, no matter where it is carried;5 as is also property, real or personal, in which it is invested." The right of a wife to a tacit lien or mortgage for the repayment of property brought by her into the marriage community must have arisen under the law of their domicile at the date of their marriage."

(SS 4) B. What property is community and what separate.See $ C. L. 134\_--Under the various statutes proceeds of the earning power of the community,8 business conducted by the husband and wife as partners,9 property acquired during marriage,10

99. The meaning and effect of the Key property of his wife in his own name, and at Law of 1861 (58 O. L. 54), and its modification, after directing payment of his cation in 1871 (68 O. L. 48), was to provide a shield for a femmer covert and give her "his" estate a sum greater than the value a separate estate. The burden is therefore of her property which came into his hands, upon the husband, or those claiming under him, to show that his possession of the capital of his wife's separate estate (as a distinct. McLean v. Miller, 5 gulshed from the income) was not in the capacity of agent or trustee, but that he acquired tide by assent on the part of his wife to absolute ownership in him. McLean v. Miller, 5 Ohio N. P. (N. S.) 57. Inasmuch as the statute of limitations does not begin to run during covertime, it is impossible to assume that there is a presumption of payment because of time, or that the wife's silence or conduct during all the years of her husband's possession constituted inches, or that she intended to make a gift to him of the property which passed into his possession, or that she is estoped because of failure to assert her rights during coverture, since to recognize any of these deafness would be to override the statute of limitations and permit by indirection what may not be done directly. Id. The fragmentary declarations by the wife now deceased, introduced in evidence in this case, are not sufficient to establish a gift from the wife to the husband, even if a gift inter vivos can be established by a preponderance of the testimony, and much less de those declarations establish a gift clearly and convincingly. Id.

L No presumption that husband paid over to wife money paid to him in her absence and recepted for by him as her agent. Miller's Ekate, 37 Pa. Super. Ct. 20. Distinction recognized between payments to husband in wife's presence and those made in her absence. Id. No presumption of payment from lapse of time. McLean v. Miller, 5 Ohio N. P. (N. S.) 57.

2. Where a husband holds the separateand property purchased with community funds,\[11\] constitute community property, while property acquired prior to the marriage,\[12\] property purchased with separate funds\[18\] or paid for therewith, and the proceeds of such property,\[14\] and gifts made for separate use,\[15\] constitute separate property. In some of the states presumptions are indulged from the manner of acquisition or the character of the conveyance which must be overcome by the party relying upon a contrary theory.\[10\] There is no presumption that a wife's separate property is converted into community property from the fact that the purchase money on a sale thereof is made payable to the husband and wife.\[17\] An advancement of community funds to pay a claim against separate property does not render the latter community property.\[18\] Where a married woman is authorized to contract as a femme sole, a suit against her for a debt contracted by her individually involves no issue as to community property.\[19\] A purchaser from a married woman may be estopped to assert that the property was community.\[20\] In the absence of objection a general allegation of the character of the property is sufficient.\[21\] In Louisiana a separation of property is effected by suit.\[22\]

tion upon such property, Ainsa v. Moses\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 604, 100 SWP\[r\] enhanced with separate funds constitute separate property. Hester v. Stine\[Wash.\] 791.

10. All property acquired during marriage, other than by gift, devise, or descent, becomes community property, regardless of to a donation made specially and separately whether parties live together and of their relative contributions to such acquisition.

December community property, Hurst v. Moren\[Tex. Civ. App.\] 104 SWP\[r\] 104. Property decded to married man is presumed to be community property. Henry V. Vagnish\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 711, 103 SWP\[r\] 192. Presumption under Civ.

10. Early work on the subject of this paper was done by the authors of the
    (SS 4) _C. Rights and powers as to, and liability of, community property. See e C. L. 135_.\_In California the furniture and furnishings of the home of the community cannot be disposed of without the wife's consent.\[28\] A trustee of community property cannot sell the same without the consent of both parties to the community.\[24\] In a proper case a receiver may be appointed for such property at the instance of one of the parties to the community.\[25\] A putative wife may enjoy all the rights of a legal wife as to community property.\[26\] The rights of the respective parties in the community property continue until forfeited in some manner recognized by law.\[27\] While a judgment against a wife may be collected out of community property,\[28\] separate debts are postponed to community debts.\[29\] Property purchased partly with separate and partly with community funds is liable for community debts pro tanto.\[30\] A voluntary conveyance of community property by the husband and wife is invalid as to creditors.\[31\] Community property is liable for funds of one of the spouse's separate estate used for benefit of community.\[32\] The husband is a necessary party to a suit upon purchase-money notes executed by the purchaser of community propcrty and to foreclose a mortgage on such property.\[33\] In Texas only the husband can sue for damages to community property.\[24\] Where the wife is sui juris and in separate estate, she may sue alone for damages by trespass upon property held by entirety.\[35\] (SS 4) \_D. Rights and powers as to, and liability of, separate property.\[36\]_See e C. L. 1739_.\_The wife may sue alone in regard to her separate property.\[37\] Where a married woman is authorized to contract with regard to her separate property,\[37\] a judgment prejudice to their legitimate, the burden of sustaining the judgment is upon relying upon. It then you have to be able to be against her n upon such a contract may be collected out of her separate property.\[38\] Separate property is not liable for community debts,\[39\] but both community and separate property may be liable for the same debt.\[40\] The husband is liable to wife where he appropriates her separate estate.\[41\] Where the husband receives funds belonging to his wife, it is his duty to apply them to the extinguishment of any claims he may have against her or her property.\[42\] The husband's claim for funds expended on his wife's separate property is merged where he acquires such property by her will.\[48\] Where the husband and wife are separated in property, and he mingles her affairs with his own in order to charge her with matters and accounts growing out of such mingling, he must show positively that they relate to her affairs.\[44\] Where a married woman sues for her separate property, a general allegation of ownership is sufficient without alleging coverture and separate ownership.\[45\] The wife is a proper party to a controversy involving an issue as to whether certain property is hers separately.\[46\] (SS 4) \_E. Succession to and administration of the community._See s C. L. 136_. A married person who dies leaving an estate of less than $500 value cannot be said to have died rich within the meaning of the Louisiana statutes.\[47\] \_Rights and powers of the survivor._See s C. L. 136_.\_The survivor has the right to discharge encumbrances upon the property,\[48\] may pay debts of the community and appropriate community property by way of reimbursement, provided this is done fairly and without detriment to the rest of the property,\[49\] convey the community

art. 1970. Lane v. Moon \[Tex. Civ. App.\] \[43 S 687. Debts of wife paid during marriage are presumed to have been paid by **38**. Lane v. Moon \[Tex. Civ. App.\] 19 Tex. **38**. **408**. **413**. **414**. **415**. **416**. **417**. **418**. **419**. **419**. **420**. **421**. **422**. **423**. **424**. **425**. **426**. **427**. **428**. **429**. **430**. **431**. **432**. **433**. **434**. **435**. **436**. **437**. **438**. **439**. **444**. **445**. **446**. **447**. **448**. **449**. **449**. **450**. **451**. **452**. **453**. **454**. **455**. **456**. **457**. **458**. **459**. **451**. **452**. **453**. **454**. **456**. **457**. **458**. **459**. **459**. **451**. **452**. **454**. **456**. **457**. **458**. **459**. **459**. **451**. **452**. **453**. **454**. **456**. **457**. **458**. **459**. **459**. **459**. **451**. **452**. **454**. **458**. **459**. **459**. **451**. **452**. **453**. **454**. **455**. **456**. **457**. **458**. **459**. **459**. **459**. **451**. **452**. **454**. **459**. **451**. **452**. **453**. **454**. **455**. **456**. **457**. **458**. **459**. **459**. **451**. **452**. **454**. **453**. **454**. **455**. **456**. **457**. **458**. **459**. **459**. **459**. **451**. **452**. **454**. **455**. **456**. **457**. **458**. **459**. **459**. **459**. **451**. **452**. **453**. **454**. **455**. **456**. **457**. **458**. **459**. **459**. **459**. **451**. **452**. **454**. **451**. **453**. **454**. **455**. \*\*45 property 50 to pay community debts,51 agree for extension of time on community debts,52 and sue to recover community property.53 A party may by antenuptial agreement relinquish right as survivor to community property,54 but failure of the other party to fulfill the contract will revive such rights.55 Ordinarily the survivor is entitled to the usufract under the laws of Louisiana 56 without giving security.57 A widow is a necessary part to a suit by heirs to dissolve a sale by her husband of community property on the ground of nonpayment of the price,58 and if she is es-topped to seek such a dissolution the whole action must fail.59

\_Accountability to heirs and creditors.\_See 8 C. L. 136--Where the estate is insolvent,60 and all the debts are paid by the survivor, the heirs of the deceased member transactions with decedents, especially where | court, of suits by the defendant, nor can only issue was wire's power to appropriate | such injunction or the pendency of such community property by way of replumbures- suits operate as a bar either in the justice's ment for community debts paid by her. | court or on appeal to district court to plain-Id. Testimony as to agreement whereby | iff's recovery of possession. | Id. Defense wife had accepted control and possession of property as compensation for community | business of the deceased and conducting a debts paid by her held not incompetent under | business of his own, that he is entitled to a Rev. St. 1855, art. 2302, or because interest | year to complete such liquidation, and that | of witnesses was identical with that of | plaintiff, but inadmissible because not being | demanded, held insufficient. | Id. raised by the pleadings, the only issue being | 54. In |e Warner's Senate \[CaI. App.\] 92 P the wire's power to appropriate community | 191. Where petition by son for administra-property as reimbursement for community | defute paid. | Id. | 50. Deed by survivor who was also guaran for heirs of other party to community | heid conveyance as survivor as well as guaran. | Id.

10 Cur. Law. **HUSBAND AND WIFE SS 5.**

of the community can assert no liability against the survivor. \[61\] The liability of the survivor to the heirs for rents and profits \[62\] is a liability as tenant in common and not as trustee. \[68\] Prima facie a deed from the father to the son based upon a nominal consideration and conveying an interest in community lands is in discharge in whole or in part of the son's community claim. \[64\] A single suit may be maintained to charge community property with a claim in favor of the separate estate of one of the parties for partition of community property, and for an accounting as to the community estate. \[68\]

\_Community debts and claims.\_See 8 C. L. 187.--Community creditors are entitled to priority as to community property. \[68\] Claims in favor of the separate estate of one of the parties to the community have already been considered. \[67\] In a suit against an administrator in which community property is sought to be subjected to a community debt, the survivor may be joined as a party defendant, \[68\] but a judgment therein will constitute a lien on the property regardless of any adjudication against such survivor. \[69\]

(SS 4) \_F. Dissolution of community.\_See 8 C. L. 187.--After divorce the parties hold as tenants in common as to community property not disposed of by the decree for divorce. \[70\] The rights of the parties after divorce depend upon the terms of the statutory provisions in regard thereto. \[71\]

SS 5. \_Liability for necessaries.\_See 8 C. L. 187.--A purchase of necessaries by the wife is presumed to be upon her husband's credit, \[72\] and while this presumption lasts he alone is liable; \[73\] but the wife generally may contract for necessaries furnished herself and children," and the husband is not liable where the credit is extended to the wife herself." The husband is not liable where he furnishes his wife with necessaries and a reasonable cash allowance " unless he undertakes to pay for the same." The husband may be liable even though he and his wife are living apart." The husband and not the wife is presumably liable for rent for the house occupied by them." When the law makes provision for the prosecution or defense by the wife of actions for divorce, expenses incurred by her in such prosecution or defense cannot be charged to her husband as necessaries." The sole test as to what are necessaries is not utility or utility combined with ornament." The power of the wife to bind the husband for necessaries, where such power exists, is for her benefit, and not for the benefit of those with whom she may deal." In Illinois both the husband and wife are liable for family expenses," and the husband is liable for such expenses incurred by his wife in the absence of notice to the creditor of any circumstance changing the general rule."

## 6 Contract rights and liabilities of husband as to third persons." See 5 C. L. 139

The law prefers the wife to other creditors of the husband," especially where she secures her claim by proceedings giving her legal priority." Under some circumstances the wife is entitled to subrogation to the rights of the husband's creditors."

74. Sayles' Rev. Civ. St. art. 2970, Lane v. out during the month and'renting and oce-Moon \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 556, cupying another house. Smith v. Getz, 9 103 SWV 211. Where husband and wife are both joined as required by Sayles' Rev. Civ. St. art. 1201, a judgment against wife will be presumed to be for necessaries. Id.

01. Husband not bound where contract shows on its face that it is intended to bind the wife individually and alone. Contract for attorney's fee in divorce proceedings. Zent v. Sullivan \[Wash.\] 91 P 1088. Evidence held insubfficient to show that wife made agreement to charge herself. Valois v. Gardner, 106 NYS 808.

01. Weingreen v. Beckton, 102 NYS 520. Allowance to wife of $1,200 or $1,300 a month by husband worth $200,000, with an income of $200,000, held smilement. Oatman v. Watrans, 105 NYS 174.

01. Evidence held not to show promise to pay. Oatman v. Watrous, 105 NYS 174.

01. Services rendered by nurse to wife during confinement held necessaries for which husband was liable, though he and wife were living apart. Schneider v. Rosenbaum, 52 Misc, 143, 101 NYS 529.

Credit held to have been extended to wife and not to husband where they were living apart and she was supporting herself and the seller had knowledge of the facts. Pickhardt v. Pratt, 105 NYS 236. Where the husband and wife are living apart, the bar-den of proof is upon one supplying her with necessaries to show that the circumstances were such as to render the husband liable.

79. Weimer's Adm? v. Smith, 30 Ky. L. R. 1311, 101 SWV 327. Married woman living with her husband is liable for rent of premises occupied by them and family only where she has expressly agreed to charge herself personally for such rent. Vanderberg v. Kansas City, Mo., Gas Co. \[Mo. App.\] 105 SWV 17. A month's rent for a dwelling-honse occupied by a man and his family is a claim for necessaries and, as such, ground for attachment as provided in SS 5521, Rev. St., and does not lobe its character as a claim for necessaries by the tenants moving
    _Agency of wife for husband.See_ S C. L. 199--A husband is not bound for his wife's debts and contracts.88 Nor will agency of the wife for the husband be presumed 88 except in exceptional cases 89 or where the contract is for necessaries.91 Agency may be inferred from the husband's ratification of the wife's prior acts,92 and the husband may bind himself for his wife's acts by subsequent assent thereto.88 Whether credit was extended to the wife or the husband 84 is ordinarily a question of fact for the jury.98

_Construct and property rights of wife as to third persons. A. Agency of husband for wife.See_ S C. L. 199--A husband may act as his wife's agent,94 but such agency will not be presumed from the marital relation,97 and when it is relied on it must be proved.98 Such agency may be shown by previous acts and words of authorization,99 or subsequent ratification,1 or both,2 or by the wife's admissions.8

(SS 7) B. Contracts in general.See\_ S C. L. 140--At common law the contract of a married woman is absolutely void,4 and such incapacity still prevails to a more or less extent in some of the states,8 but in many of the states she may contract practically the same as if she were a femme sole,8 and in such case one contracting with

entitled to subrogation to rights of first 59 SE 223. Evidence held not to sustain discretion as against attaching credit.rissal of action on ground that defendant. Eberhardt V. Wahl's Adm'r. 30 Ky. L. R. 412, 98 SVW 994. No right of subrogation of itself did not impart or disclose the char-

where wife redeemed husband's homeseted 4acter of the propriorship, was doing busl-

from execution sale with rents and profits 1ness as his wife's agent. Anderson v. Walsh of homesetead. Kenady v. Gilkey \[Ark.\] 98 \[N. Y.\] 81 NE 764. Husband held authorized

to conduct negotiations for sale of wife's

by 698. Husband not bound for price of

found so as to blind her for a deficiency of goods purchased by wife for her sons,

acreage, Rathke v. Tyler \[Iowa\] 111 NW

though he did not protest when subsequently

435.

he became aware of the transaction. Rich-

99. Black v. McQuaid \[N. J. Err. & App.\] 68 A

by 68 A 102.

C. T. Rep. 83, 105 SVW 54.

1. Black v. McQuaid \[N. J. Err. & App.\] 68 A

1. Husband held not liable on contract by

wife for purchase of goods in order to set

other persons in which husband's acts as her sons up in business. Richbury v. Sherwood \[Tex.\] 18 Tex. Ct. Rep. 627, 102 SVW 965.

admissible to prove agency in particular

90. Where wife requests medical aid for an

01.

infant, it will be presumed that she is act-

in as agent for her husband; but such pre-

plumbing on wife's property held proved.

should v. McQuaid \[N. J. Err. & App.\] 68 A

102.

001. See, note, &, Elability for Necessary.

001. Amissions to other persons than the

001. Payment of prior bill made by wife

rendered husband liable for subsequent bill.

her general agent. Ham v. Brown \[Ga. App.\]

Bonwitt, Teller & Co. V. Lovett, 100 NYS 800.

88 83. Wife's purchase of hat held rathided by

108.

subsequent acts and promises of husband.

Landgrot V. Tanner \[Ala.\] 44 83 897.

94. Complaint for price of goods furnished

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

10 her is charged with no duty of seeing that she gets the benefit of her contract as against her husband.7 The validity of a contract by a married woman depends upon her status as defined by the statute in force at the date of such contract.8 When a married woman has a general right to contract subject to certain restrictions, the burden is on her to show that her negotiable note falls within some of such restrictions,9 and to show that the holder had notice of its invalidity when he took it.10 A fully executed release by a married woman of her inchoate right of lower constitutes a sufficient consideration for a promise to pay her a sum of money.11 Where a married woman's contract is void because of her disability, she cannot ratify it after the disability is removed.12 Capacity to contract follows a married woman wherever he goes.13

Footnote 13: The author is grateful to the anonymous referee for his help and for his help and for his help and for his help.

Footnote 14: The author is grateful to the anonymous referee for his help and for his help and for his help and for his help.

Footnote 15: The author is grateful to the anonymous referee for his help and for his help and for his help and for his help and for his help.

Footnote 16: The author is grateful to the anonymous referee executes a mortgage on separate property to secure an open account against her husband, she becomes only a surety for the account.\[18\] The provisions of a note, secured by mortgage, executed by a married woman to secure her husband's debt, are entitled to such protection as the mortgage may afford.\[19\] Though a married woman cannot become surety for her husband, she may change her separate property in equity for his debt.\[20\]

(SS 7) _D. Conveyances, mortgages, contracts to convey, powers.\[See 8 C. L. 143_\]\_

A married woman may acquire property by conveyance to her.\[21\] In Louisiana proceedings to annul a purchase of land by a wife for want of authority can be instituted only by the husband or wife or their heirs.\[22\] In Tennessee, it is only where a conveyance to a married woman creating in her a separate estate gives her the absolute power of disposition ,as if she were a femme sole that she can convey without privy examination.\[23\] In Kentucky a married woman may receive by conveyance and may convey the same as if she were a femme sole.\[24\] In Missouri special provision is made for conveyances by a married woman whose husband is under guardianship.\[25\] There is some doubt and conflict as to the power of a married woman to convey property held in trust for her separate use,\[26\] but it seems to be settled that she cannot do so contrary to restrictions in the instrument creating the trust.\[21\] A bona fide purchaser for value of a wife's property from her husband acting as her agent is not bound to see to the application of the proceeds,\[28\] and is not affected by the duress of the husband in getting her to execute the deed where he, the purchaser, has no notice of such duress.\[29\] Though a wife cannot convey her own property without the joinder of her husband, she may convey property held by her in trust for him without such joinder.\[20\] A wife's use of her own land may be limited by covenants in her husband's deed where she joins therein.\[21\]

**Presumption arising from form of contract that married woman was principal held**

101 SWY 769.

overcome by evidence that husband received 24. Under Acts 1894, p. 176, c. 76. Noel v. proceeds. Black v. McCariey's Exr, 31 Ky.

Fitzpatrick, 30 Ky. L. R. 1011, 100 SWY 321.

L. R. 1198, 104 SWY 387.

**18. Such surstvishly is invalid same as any**

bid at a commissioner's scale of land. Id. other form of surstvishly by married woman\*\*

**25. Under Rev. St. 1899, $ 434 (Ann. St. for husband. Indianapolis Brew. Co. v. 1906, p. 287), providing for conveyance by a Behnke \[Ind. App.\] $1 NE 119. Where, in an married woman whose husband is under guardianship by joint deed executed by her by a husband and wife, it appears that the priority is her separate estate, it must be**

\*\*26. Under Acts 1894, p. 176, c. 76. Noel v. proceeds. Black v. McCariey's Exr, 31 Ky.

Fitzpatrick, 30 Ky. L. R. 1011, 100 SWY 321.

**27. Where ded creating trust provided that she might direct the trustee to convey,**

**28. Doeud**
A personal judgment may be rendered against a married woman on foreclosure of a mortgage executed while she was single,\[82\] but not where she was married at the time she executed the mortgage.\[33\] Where a married woman is authorized to deed her property, she may contract for a sale through an agent,\[34\] but such agency must be constituted as required by law.\[35\] A wife's sole contract to convey may be valid though she can convey only with the jounder of her husband.\[36\] The validity of a married woman's contract to convey is controlled by laws existing at the time of the execution of such contract.\[37\] Conveyance by a married woman by power of attorney\[38\] is prohibited in Kentucky.\[39\] (SS 7) _E. Rights of creditors. Of wife.\[36\] & C. L. 144_--Property purchased by the husband and conveyed by the wife is presumptively liable for her debts.\[40\] Of husband.\[36\] & C. L. 145\_--A wife is not liable for her husband's debts or obligations,\[41\] nor is her separate property liable therefor,\[42\] and ordinarily the husband's creditors, as such, can acquire only the husband's rights or interest in his wife's property.\[43\] It is held in Kentucky, however, that where a husband invests his wife's funds in property, taking title in himself, such property is liable for his debts.44 Where a wife claims as against a creditor of her husband, that property to which her husband holds the record title is in fact her separate property, she must allege and prove a resulting trust in her favor,45 but where the husband's right to reduce the wife's property to possession is taken away, the burden is no longer upon her to prove whence she derived her property or that it is her separate estate.48

Footnote 48: The author is grateful to 10 Cur. Law. HUSBAND AND WIFE SS 9B. 21

such damages are her separate property." A wife cannot recover damages for wages which her husband might have earned but for the defendant's tort."

(SS 9) _B. Criminal conversation and alienation of affections._\[**56** \*\*& C. L. 146--\*\*In a suit for alienation of affections the gist of the action is loss of consortium, and alienation of affections is matter of aggravation." Description is therefore an essential element of the cause of action," and the defendant must, to some extent at least, be to blame for the alienation." Malice also must be proved," especially where the action is against the parents of the party whose affections are alleged to have been alienated." At common law a wife could not maintain such an action," but this rule has been abrogated in most of the states."

67. Western Union Tel. Co. v. Rowe \[Tex. be married or unmarried it is still to them Civ. App.\] 16 Tex. Ct. Rep. 863, 98 SVP 228. 68. Reason being that she has no right of trees. Natural affection establishes and conclusion to recover his earnings. Glenn v. Vaccent Union Tel. Co., 1 Ga. App. 821, 58

Code, it is "nature's profession to assist, shell 83.

69. Dodge v. Rush, 28 App. D. C. 149.

quire, therefore, more proof to sustain the 70. Codoni v. Donati \[Cal. App.\] 91 P 423. 43. Absence of husband for seven days held not destin the wife against her will, or that he

flation is the wife against her will, or that he

71. Evidence held insufficient to show that entices her away from her husband from defendant was to blame for alienation of himproof motives. Bad or unworthy motives

affections of plaintiff's husband. Smith v. cannot be presumed. They ought to be pol-

Glimp, 131 M. App. 121.

tively shown, or necessarily deduced from the facts and circumstances detailed. This

72. Leavell v. Leavell, 122 Mo. App. 654, 99

principle appears for me to preserve, in due

73. Leavell v. Leavell, 122 Mo. App. 654, 99

dependence upon each other, and to maintain

87V 460. Wife's father is not liable for en-

in harmony, the equally strong and sacred

flation be far away from her husband in the ab-

interests of the parent and the husband. The

sence of malice. Mutter v. Knibbs, 193 Mass.

quo amino ought, then, in this case, to have

556, 79 NE 762. Parents liable where they

been made the test of inquiry and the rule of

malicously cause a separation of husband

decision." In the case last above cited, it

and wife by alienation of affections. Klein , 31 Ky. L. R. 28, 101 SVP 382.

was said: "It cannot be that the law disre-

v. Klein, 31 Ky. L. R. 28, 101 SVP 382.

Earts the tender relations of kinship and

Instructions in action by wife against hus-

natural affection between parent and child

band's parents as to alienation of plaintiff's

and the duties which such relations impose, affections by her own father held improper

even though the child is married. In case of

as not supported by evidence. Klein v.

unambigness and disagreements between the

Xlelin, 31 Ky. L. R. 28, 101 SVP 382.

Instructions in action by presumption of good faith on part

conceive of the indifference on the part of

of parent held improper where defendant

merely denied the charges and made no att-

is that the child naturally turns to the part-

tempt to justify them. Id.

ent for comfort and advice under such cir-

Note: In order to properly characterize

cumstances. There are laws of natural affection's actions or conduct, it is necessary to

tion and of natural duty, and municipal law

consider the circumstances, situation, and

will not obstruct their free operation as long

relationship which exist. Thus, as affecting

as they are not abused. The presumption in

a married couple, acts and conduct of a

fact and in law in all such cases must be, and

stranger which would be justy characterized

ix, that the parent will act only for the best

as those of a malicious intermediate might

interest of the child and for the honor of the

be but the natural impulse of the parents

family." Every legal presumption is that

which would be set down to their credit by

the parent acted for the best interest of the

all right-thinking people. This is the view

child. Reed V. Reed, 6 Ind. App. 317, 39 NE

of all of the authorities which we have found

$38, 51 Am. St. Rep. 210. Can it be said that,

where the relationship of the defendant has

if a parent shall advise his child in food

been considered. Hutcheson v. Peck, 5 Johns.

fath, the does so at the risk of financial ruin!

\[N. Y. 186; Tucker v. V. Tucker, 74 Miss. 39, 13

$95, 82 Z. R. A. 623; Payne v. Williams, 4

under pearl of legal consequences, must keep

Baxt. \[Ten.\] 582; Rice v. Rice, 10
Defenses.See S C. L. 148--It is no defense that the plaintiff has secured a divorce,76 or that the alienation had already been caused by the plaintiff's own conduct.77

Footnote 77: The original statement of the 10 Cur. Law. HUSBAND AND WIFE SS 10

23

linquent spouse," but the declarations of such spouse about the defendant are not admissible." Evidence of acts prior to those charged is admissible in explanation of those charged," but conditions prior to the marriage may be proved only to the extent that they entered into the cause of the alienation." The competency of the husband or wife as a witness depends upon whether the action involves criminal conversation." Evidence of adultery between the plaintiff's spouse and the defendant is not admissible in an action. for alienation of affections not involving criminal conversation."

\_Damages.\_See * C. L. 140--The damages awarded " may include exemplary or punitive damages." Mental suffering is necessarily involved and may be proved without any allegation of special damages." Evidence of the defendants financial condition is inadmissible except as bearing on exemplary or punitive damages." The defendant may plead in mitigation of damages that the alienation complained of was caused by plaintiff's own conduct."

SS 10. \_Remedies and procedure generally as affected by coverture.\_See * C. L. 140--In an action against a husband and wife, evidence of the coverture is admissible under a plea of nul tied record."

\_Right of action; parties.\_See * C. L. 150--The right of action for wrongs to the person * and alienation of the affections * and involving community property * have already been considered. In many of the states a wife may sue without joining her husband." Capacity to sue or be sued follows a married woman into another state

Park \[Colo.\] 91 P 830. Where both parties

silver where husband's mother maliciously assumed that husband's declarations were

altered his affections from plaintiff. Klein indarmissible without his consent, in action,

by wife, and he refused to consent, their re-

ages held not excessive in action by husband

jection was not available on appeal. Id.

against wife's parents for alienation of her

92. Letters written by wife showing that

after affections. White V. White \[Main.\] 112 NWW

her affections had already been alienated

627.

held admissible. Merrill V. Leisnerling, 149

90. VWhite V. White \[Kan.\] 90 P 1087.

Mich. 433, 14 Det. Leg. N. 472, 112 NWW 1072.

93. Declarations by husband to wife

of jury in matter of exemplary damages.

about defendant. Dodge v. Rush, 28 App. D. C. 149.

1. Klein v. Klein, 31 Ky. L. R. 28, 101 SWV

1. Dodge v. Rush, 28 App. D. C. 149.

1. In an action by a wife for the alienation

1. Flinders v. Bailey, 133 Iowa, 616, 111

tion of her husband's affections, evidence of

her general reputation for chastly prior to

action for alienation affections of plaintiffs

her marriage is not admissible where such

wife, held not cured by instruction

reputation did not, to some extent, cause

verdict was rendered for $10,000. Id.

the separation. White V. White \[Kan.\] 90 P 1087.

**P 1087.**

**96.** In an action for alienation of the wife's

affections by means of adultery, the husband

damages for personal injury, the defendant

cannot testify. Merrill V. Leisnerling, 149

in an action for alienation plaintiff's wife's

Mich. 428, 14 Det. Leg. N. 472, 112 NWW 1072.

affections may plead that her affections had

Where count for criminal conversation and

already been alienated by her husband's own

count for alienation of affections are joined,

conduct. Allen V. Besecker, 105 NYS 418,

as authorized by Supreme Court Rule No. 17,

1. Forsyth v. Barnes, 28 III 326, 81 NE

testlimony of husband and wife, being com-

1028.

petent for all purposes under the second

count, could not be excluded because

1028.

tent under first count only to prove mar-

1.5em

Figure 10: The $\\chi^{2}$-$\\chi^

to which she goes upon a temporary sojourn unless the public policy of such state forbids.\[10\] The right of the assignee of a married woman to sue is not dependent upon her capacity to sue.\[11\] The wife is not a necessary party to suit to foreclose a mortgage executed by the husband while single,\[12\] or to a bill for the specific performance of a paid contract executed by her husband for the conveyance of real estate in which she has only contingent interests as wife.\[13\] The general practice acts may be looked to in order to determine matters of general practice, such as joinder of parties \[14\] and severance on judgment.\[15\]

Limitations.\[See\] C. L. \[13\]--Disability of coverture is generally included in the exceptions of statutes of limitations as to persons under disability,\[16\] and, under the general policy of preventing litigation between husband and wife, limitations do not run upon claims by the one against the other during the continuation of the relationship,\[17\] and by analogy the same principle applies as to laches.\[18\] This principle also applies to actions between one of the parties to a marriage and one claiming under the other.\[19\] Disability of a married woman cannot be tacked to that of her ancestor from whom she inherited, while married, the property in question.\[20\] When the disability of coverture has been removed, limitations against the claim of a married woman to property inherited by her during marriage runs from the death of the ancestor as to the whole estate, and not merely as to the estate of the husband by reason of his marital rights.\[21\]

## 11 Proceedings to compel support of wife

See 1C. L. \[15\]--A wife cannot maintain an action for damages against her husband for failure to supply her with the necessaries of life or for any other breach of marital duty,\[23\] but in a proper case

section two of the act which provides that the husband need not be joined. Id. Under P. L. N. J. \[1946, p. 525, providing that wife "may" maintain action alone, renders jonlender of husband improper. Id. Under Rev., \[1905, SS 408, subd. I, a wife may petition for pre-bate of her father's will in soleem form without joining her husband, even if he were opposed. In re Beauchamp's Will \[N. C.\] 59 SE 687. Suit against agent in regard to plaintiff's separate property. Harvey v. Sparks Bros. \[Vasah.\] 88 P 1108.

10. Woman from Missouri unable in Louis-iana without jonlender of husband. Freret v. Traylor. \[119 La.\] 307, 44 S 26.

01. Wife may transfer note executed to her by husband and transfere may sue thereon, regardless of her right to sue. Bronson v. Brady, \[28 App. D. C. 250.

01. Adams V. Bartlett \[Tex. Civ. App.\] 13 Tea. Ct. Rep., 503, 102 SW7 719.

01. Taylor v. Mathews \[Fla.\] 44 S 146.

01. Under Code Civ. Proc., 1902, $ 138, providing that all parties interested in a contract must be joined as parties in action thereon, husband an? wife may jointly sue carrier for loss of their joint baggage. Park v. Southern R. Co. \[LS.\] 58 SE 951.

01. Under Pub. Acts 1839, p. 309, No. 199, as amended by Pub. Acts 1908, p. 171, No. 187, judgment may be rendered against husband soleem in suit before justice against both, and rule is same on appeal as in original cases.

01. The general practice acts in circuit court. Hillman v. Hulett, 149 Mich. \[289, 14 Det. Leg. N. 458, 112 NW 918.

01. Acts 1894, p. 176, c. 76, authorizing married woman to sue; did not remove disability so as to allow limitations as to action relating to land to run against a married woman. Dukes v. Davis, \[30 Ky. L. R. 1348 191 SW 900. Code 1833, SS 148, 165, suspended.

10 Cur. Law. HUSBAND AND WIFE SS 11. she is entitled to separate support from her husband.28 The prime essential of such a case is that her separation from her husband be due to his and not her fault.24 An action for money had and received being of an equitable nature, where a husband brings such an action against his wife she may urge her right to separate support as a defense.25

Statutes providing for criminal prosecution against a husband for not supporting his wife are penal and must be construed as such.28 "Abanzon" as used by such a statute is equivalent to desertion " and must be such that if continued for the statutory period would be ground for divorce.28 A separation agreement is held a defense,29 but the contrary is held as to a separation by mutual consent.28 The wife's refusal to live with her husband is no defense when she has good cause for such refusal,31 nor can the defendant escape a judgment on the ground that he is willing to support his wife.22

\_Procedure.\_See 8 C. L. 153--Jurisdiction of proceedings for separate support 28 may attach without reference to a divorce.34 Where the husband executes a conveyance in fraud of the wife's right, a subsequent decree in her favor for separate support gives her a proper status as a creditor to sue to set the conveyance aside.35

The procedure in criminal prosecutions against a husband for failure to support his wife is largely statutory.36 The general rules as to instructions apply.37

23. Evidence held sufficient to warrant de-

Not retroective: In order to warrant a conceree for separate maintenance. Bond v. Bond

viction under Crim. Code, # 212a (Laws. 1903, \[Vwah.\] 88 p 943. A conveyance in fraud of

p. 642, c. 137), both the "abandonment" and wife's right to separate support will not

the "failure to support" must have occurred defeat such right. Shepherd v. Shepherd

since the statute took effect. State v. Hoon

\[Mass.\] 31 NE SS7. 27, 28, 29. Virtue v. People, 122 Ill. App. 222.

24. Suit for separate maintenance cannot

be maintained except for a cause which

would warrant a divorce. Shors v. Shors,

30. Spencer v. State \[VWs.\] 112 NYW 462.

133 Iowa, 22, 110 NYW 16. Right to separate

support is not defeated by the mere fact that the plaintiff was not without fault in the

279, 466, 858, though the wife refuses to quarrels preceding the separation. Jones v. Jones, 124 Ill. App. 201. Not entitled to separate support where separation is by

the had communicated a loathsome disease mutual consent. Rosenbleet v. Rosenbleet,

to her. People v. Palminterf, 103 NYS 1048.

122 Ill. App. 408. Where husband and wife

agreed before marriage that they are to

prosecution under charter of Greater New

live separately for awrith, she claimed main-

York, Laws 1901, p. 279, c. 466, $ 685, the

tain action for separation under Code Civ.

Proc. $ 1762 until she has made an effort to

get him to live with her. Dennison v. Denison v. Denison, 52 Misc. 37, 102 NYS 621.

IInhuman treatment must be such as to

shmself. People v. Palminterf, 103 NYS 1068.

endanger life in order to warrant separation.

Shors v. Shors, 133 Iowa, 22, 110 NYW 16.

Repeated charges of level and unachause con-

duct and of adultery held in connection with

other acts sufficient, though no physical in-

jury was inhifted. Id.

**Controle of home belongs to wife as against**

all others except husband, and she does not

forfeit her right to separate support by

retusal to live in house controlled by hus-

band's mother. Brewer v. Brewer \[Neb.\] 113 NYW 161.

**Offense** condensed on condition of future

good conduct is revived by subsequent repetitions of the acts charged as the ground of

the action. Shors v. Shors, 133 Iowa, 22, 110

1.

**25. Where money sued for was lawfully**

collected by wife and applied to her own support. Whittle v. Whittle (Cal. App.) 91 P

170.

**26. Strictly construed. Virtue v. People, 122 Ill. App. 223.**

10.

## 26 Implied contracts.

### Relief obtainable

See 8 C. L. 154--As a general rule a personal decree against the husband and the subjection of his property thereto is all that can be obtained in civil proceedings for support,\[38\] but suit money may be allowed,\[39\] and the custody and maintenance of the children may be disposed of.\[40\] Provision cannot be made for support beyond the life of the husband.\[41\] In determining the amount to be allowed, property conveyed in fraud of the wife's right to separate support may be considered.\[42\]

The relief in criminal prosecutions is for the indemnity of the public.\[43\] A deposit paid pursuant to a void order may be recovered back.\[44\]

### Effect of decree

See 8 C. L. 155--This article treats only of the effect of the marital relation on the criminal responsibility of the parties,\[45\] criminal prosecutions against the husband for nonsupport of the wife,\[46\] and such other offenses as may arise out of the marital relation and relate exclusively to the parties. Other criminal matters are excluded.\[47\]

Ice; Illegal Contracts; Imligation; Imligation; Obligation of Contract; Imganceance; See latest topical index.

## 3 Implied contracts.

### Definitions and Distinctions, 27.

- 8 2. Words and Labor or Services and Ma-Paid, 33.
- 9.1 Use and Occupation, 37.
- Materials Furnished by Member of Family, 31. Right to Recover for Improvements Made on Lands of 8.
- 10.2 Remeties and Procedure, 37.
- 11.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.1 1.2 1.4 1.6 1.8 1.9 1.1 1.2 1.5 1.7 1.8 1.9 1.1 1.1 1.2 1.6 1.9 1.1 1.3 1.4 1.7 1.8 1.9 1.1 1.0 1.1 1.1 1.2 1.3 1.5 1.6 1.7 1.8 1.9 1.1 1.1 1.4 1.8 1.9 1.0 1.1 1.1 1.1 1.2 1.3 1.6 1.9 1.1 1.1 1.4 1.9 1.2 1.1 1.5 1.7 1.9 1.1 1.6 1.9 1.1 1.7 1.8 1.9 1.0 1.1 1.1 1.1 1.0 1.1 1.1 1.2 1.4 1.9 1.2 1.5 1.6 1.7 1.9 1.1 1.8 1.9 1.1 1.1 1.0 1.1 1.1 1.2 1.3 1.4 1.9 1.0 1.1 1.1 1.1 1.5 1.6 1.7 1.9 1.1 1.8 1.9 1.1 1.1 1.1 1.2 1.4 1.9 1.2 1.6 1.9 1.2 1.7 1.9 1.1 1.1 1.1 1.0 1.2 1.1 1.3 1.4 1.9 1.1 1.5 1.7 1.9 1.1 1.6 1.8 1.9 1.1 1.9 1.2 1.1 1.1 1.1 1.6 1.9 1.2 1.1 1.7 1.9 1.2 1.1 1.1 1.1 1.2 1.3 1.4 1.9 1.3 1.5 1.6 1.7 1.9 1.1 1.8 1.9 1.2 1.1 1.9 1.3 1.6 1.9 1.4 1.9 1.5 1.7 1.9 1.6 1.9 1.7 1.9 1.8 1.9 1.9 1.1 1.1 1.1 1.1 1.2 1.4 1.9 1.6 1.9 1.7 1.9 1.8 1.9 1.9 1.1 1.1 1.1 1.0 1.1 1.1 1.2 1.3 1.4 1.9 1.5 1.7 1.9 1.9 1.1 1.1 1.1 1.6 1.9 1.1 1.1 1.2 1.7 1.9 1.1 1.1 1.2 1.4 1.9 1.1 1.1 1.2 1.5 1.7 1.9 1.1 1.1 1.1 1.2 1.6 1.9 1.2 1.7 1.9 1.2 1.8 1.9 1.1 1.1 1.1 1.2 1.9 1.3 1.4 1.9 1.5 1.7 1.9 1.9 1.1 1.1 1.1 1.2 1.1 1.3 1.5 1.7 1.9 1.1 1.1 1.

10 Cur. Law. IMPLIED contracts SS 3.3.

_The scope of this topic is noted below. \[48\]_

SS 1. _Definitions and distinctions._\[See 8 C. L. 158.--Implied contracts are either implied in fact or in law. \[49\] An implied contract in fact arises in cases where, according to the ordinary course of business and the common understanding of men, a mutual intent to contract is implied. \[50\] A quasi contract, or a contract implied in law, is a mere fiction in law and arises where there is no evidence of intention to contract, but where, in the light of the circumstances of the case, the acts and conduct and verbal statement of the parties imply a duty to pay for a benefit conferred. \[51\] The existence of an express contract excludes an implied contract covering the same subject-matter. \[52\]

SS 2. _Work and labor or services and material furnished._\[See 8 C. L. 158.--Where beneficial 53 services are rendered and accepted, the law will imply a promise \[54\] to pay their reasonable value, \[58\] especially if rendered upon request \[50\] or with permission or

- 48. It includes all cases as to the implication of contract in law or fact. It excludes practice in the action of assumpist (see Asmussen, 9 C. L. 277), implied terms in exapsy therefor could be implied from the facts press contracts (see Contracts, 9 C. L. 654), alleged in the complaint, and a demurer thereof was properly sustained. Beattie v. tabular relations (see Attorneys and Counsel-). \[McMullen \[Conn.\] 67 A 488. When defendant os, 9 C. L. 300; Ballmert, 9 C. L. 323, and 11ke topics). Many cases as to right to recover on quantum merit or quantum valuelet as an option upon breach or part performance of express contracts will also be found in such topics as Brolecz, 9 C. L. 413; Building and Construction Contracts, 9 C. L. 424; Contracts, 9 C. L. 654; Sales, 8 C. L. 1751. Election between tort and implied contract is treated in Election and Walviger, 9 C. L. 1037. 49. Christians v. McDermott Estate, 123 Mo. App. 448, 100 SVV 83. 50. Christianson v. McDermott Estate, 123 Mo. App. 448, 100 SVV 63. Evidence of a contract implied in fact is generally to be found either in some writing made by the parties or in verbal communications which passed \[57\].
- 51. A contract implied by law rests upon evidence and has no actual existence, but is simply a mythical creation of the law. The law says it shall be taken that there was a promise, when in point of fact there was none. It is a legal fiction resting wholly for its support on a plain legal obligation and a plain legal right. Cottam v. Wisdom \[Ark.\] 104 SWV 164. Thus, in an action to recover the value of personal services rendered by plaintiff in carving for and nursing they are bound to contract. \[50\] A quasi contract, or a contract implied in law, is a mere fiction in law and arises where there is no evidence of intention to contract, but where, in the light of the circumstances of the case, the acts and conduct and verbal statement of the parties imply a duty to pay for a benefit conferred. \[51\] The existence of an express contract excludes an implied contract covering the same subject-matter. \[52\]
- 52. _Work and labor or services and material furnished._\[See 8 C. L. 158.--Where beneficial 53 services are rendered and accepted, the law will imply a promise \[54\] to pay their reasonable value, \[55\] especially if rendered upon request \[50\] or with permission or
- 48. It includes all cases as to the implication of contract in law or fact. It excludes practice in the action of assumpist (see Asmussen, 9 C. L. 277), implied terms in exapsy therefor could be implied from the facts press contracts (see Contracts, 9 C. L. 654), alleged in the complaint, and a demurer thereof was properly sustained. Beattie v. tabular relations (see Attorneys and Counsel-). \[McMullen \[Conn.\] 67 A 488. When defendant os, 9 C. L. 300; Ballmert, 9 C. L. 323, and 11ke topics). Many cases as to right to recover on quantum merit or quantum valuelet as an option upon breach or part performance of express contracts will also be found in such topics as Brolecz, 9 C. L. 413; Building and Construction Contracts, 9 C. L. 424; Contracts, 9 C. L. 654; Sales, 8 C. L. 1751. Election between tort and implied contract is treated in Election and Walviger, 9 C. L. 1037. 49. Christians v. McDermott Estate, 123 Mo. App. 448, 100 SVV 83. 50. Christianson v. McDermott Estate, 123 Mo. App. 448, 100 SVV 63. Evidence of a conflict implied in fact is generally to be found either in some writing made by the parties or in verbal communications which passed \[57\].
- 56. The implied promise is as efficacious other at his request may recover quantum merit or quantum valuelet as an express one. Jones & Co. v. Moore, 30 Urwatt, 104 NYS 1009, 104 NYS 1009, 105, 106, 107, 108, 109, 110, 111, 112,

## 8 Implied contracts SS 2.

10 Cur. Law. consent 57 or pursuant to law.88 Such services, however, must be rendered with an expectation of compensation,59 and must be accepted with knowledge, actual or constructive, that they are so rendered.60 The general rule is that if a person performing services knows they are not for the benefit of the person making the request, and that he is under no legal obligation to pay therefor, he cannot recover against him, in the absence of an express promise to pay for them made before the services were rendered,61 but this rule is not of invariable application.62 The reasonable value of servic-

In an action against a decedent's estate to

amount prescribed by SS 1457. Marion County

establish a claim for services rendered dur-

v. Bonds \[Ark.\] 99 SW SW 533. Where, under

ing the six years prior to his death, it ap-

a city ordinance, it is the duty of the chief

pearing that plaintiff and decedent had stood

of the fire department to assign a fireman

in the same relations to each other for six-

to duty in a theatre, who shall be paid by

teen years, fact that at commencement of

the manager of the theatre, a fireman re-

these relations decedent asked plaintiff to

doire such services may recover the

look after him and take care of him held

sonable value thereof, in an action against

not to be irrelevant to fact that during last

six years of this period the services of

plaintiff in taking care of decedent were

rendered at his request. Leonard V. Gillette.

79 Conn. 664, 66 A 502. To the general rule

that, in order to recover, services must have

been rendered at defendants request, there

is an exception where a person lies under

a moral and legal obligation to do an act

and another does it for him under such circumstances of

numerances of urgent necessity that human

ity and decency admit of no time for delay.

Sheridian County Com'rs V. Denebrink \[Wyo.\]

89 P 7. Thus, where it was both the legal

and moral obligation of board of county

commissioners to furnish a physician for

an injured man, but it was unable to make

a request therefore because not in session

at time of injury, and upon its failure to

so plaintiff performed the services which the

exigencies of the case required to save a

human life, with expectation of being reim-

bursed therefor, held plaintiff was entitled

to recover. Id.

MT. Where services were rendered with

permission of defendant and he stated that

he was to pay for same and that the bill

would be taken care of, held plaintiff

method to recover. Meikelham V. Clarke

\[R. I.\] 67 A 450. In an action to recover for

work and labor in grading defendant's lot,

held that, taking into consideration all sur-

at the request of the father, the fact of that

rounding circumstances and having due

fard to-weight of evidence, defendant was

tion with other circumstances, if there are

not estopped to deny that such work was

done with his permission and consent

can that the father called him on his own

Erickson v. Hochbrune \[Wash.\] 91 P 485.

vecure the service of carrying the mail from

reence, 203 Mo. 363, 101 SW 571. In an action

defendants' station to the post office was

per by a physician to recover of defendant the

formed for defendant under circumstances

value of professional services rendered

defendants' son at his (defendants') request,

must have known the service was for it and

evidence held sufficient to submit to jury

not another, it would be liable, for, in

the questions whether defendant intended

mitting and accepting continuous valuable

service, it must be presumed there was

a tit did understand that he would pay

promise to pay for its reasonable value

for services which a telegram sent by

even though no express employment was

shown. Silver v. Missouri, etc., R. Co., 125

Plaintiff Knowing financial standing of

M.o. App. 402, 102 SW 521.

58. Where, under Kirby's Dig. SS 1455,

wan considerable and sufficient to pay for

thorising the county court to allow ac-

scurces is admissible to show whether plain-

counts incurred by any person in preventing

the spread of and in nursing and caring for

the surcyles. Id. Plaintiff's general profession

expression afflicted with smallbox, plaintiff

sonal reputation not having been drawn in

rendered such service, held, in an action to

question, evidence of his good standing in

recover compensation therefor, that plain-

community is not admissible to show value

tiffs made out their cases by proof that the

charges made were reasonable for the servic-

lng and skill admissible to show value of

ice rendered, and not in excess of the

services. Id.

ices rondered by physicians to persons incapable of contracting by reason of injury or sickness may be recovered on an implied contract.\[93\] Since an express contract negatives an implied one, no recovery quantum mernit for services rendered thereunder can be had,\[64\] but a recovery may be had on the common counts, although the evidence discloses a special agreement, when such agreement has been executed and fully performed, and no duty remains but the payment of the price in money by the defendant.\[65\] Where an express contract does not fix the amount of compensation for services rendered thereunder, a promise to pay their reasonable value will be implied.\[66\] Where services are rendered or materials furnished under an entire contract, which before completion is abandoned by the employer,\[67\] or completion of which is prevented by acts of the employer,\[68\] or which is terminated by the enact-

63. Services rendered to person receiving injuries in street car accident which rendered him unconscious, and who died with-out regaining consciousness. Cottam v. Wisdom \[Ark.\] 104 SWV 164. Held that court properly refused to require plaintiff to prove, in addition to the value of the services, the benefit, if any, derived by the deceased from the operation. Id. Held, the patient being unconscious at time of rendition of services, his financial condition could not be considered, where there was no contract, but recovery had on a legal fiction. Id. 64. Appleton Waterworks Co. v. Appleton \[Wis.\] 113 NWV 44; Carbon Hill Coal Co. v. Cunningham \[Ala.\] 44 S 1016. As a breach does not lpso fact terminate a contract, the fact that the contract has been violated does not authorize a recovery quantum merrit for work comprehended within, and done under, if. Id. Where plaintiff gave up profession of teaching to become a companion of her fixed by the contract. Cleveland, etc., R. Co. v. Moore \[Ind.\] 82 NS E5. Additional allow-ances held not justified on theory that making of certain changes in plans per se worked an abrogation of the entire contract, even for purposes of damages, thus entitling plaintiff to recover the reasonable value of the entire work. Id. In an action to recover for services rendered a decedent under an alleged promise that the latter would pay plaintiff well and liberally for all services, but of her estate at the time of her death, and that such allowance payment would be sufficient to keep plaintiff well during the balance of her life, if being contended by defendant that in any event plaintiff was limited to a recovery of such sum as "would be sufficient to keep her well during the balance of her life," and was not entitled to recover quantum mernit, held, the evidence of the contract being wholly oral, it was properly left to the jury to determine whether such contract was for full compensation in any event, together with a further assurance that such compensation would be sufficient for plaintiff's future support or whether it was intended that plaintiff was to be limited to a sum adequate for such support, although her services may have been worth more. McNamara v. Michigan Trust Co., 148 Mich. 346, 14 Det. Leg. N. 250, 111 NWV 1066.

01. But so long as the contract continues executory the plaintiff must declare specially. Carbon Hill Coal Co. v. Cunningham \[Ala.\] 44 S 1016.

01. Where stenographic services are rendered under a contract but there was no meeting of minds as to compensation, the ment of a valid law,"\* a recovery quantum merit may be had for such services rendered and materials furnished," if accepted by the employer or he has received benefit therefrom," but if the employee wrongfully abandons or deliberately violates his contract and fails to perform services or furnish materials in compliance therewith, he cannot recover by way of quantum merit." Where, although there has not been an absolute compliance with the contract, a substantial part of the work has been performed, a recovery may be had on a quantum merit for labor performed and materials furnished," if accepted by the other party," or he has received and retained the benefits of such work." An action for the contract price may be maintained either upon the contract, upon an allegation of performance, or upon a quantum merit, where one has substantially though not completely performed his agreement, and the other party has received and retained the benefits of such performance." Where labor and materials have been furnished upon real estate under a contract which contains an illegal element under a prohibitory statute, and where the contract remains entirely executory in that part which is illegal, and is disaffirmed because of its illegality, the disaffirming party has a right to have compensation for the benefit conferred upon the real estate." Where, in order to comma plete work contracted for, it is necessary to do work not within the contract, additional compensation may be recovered for whatever the extra work is reasonably worth,\[7\] and an employee may recover reasonable compensation for services rendered on request outside of the sphere of his employment.\[78\] The law will usually imply a promise to pay for materials furnished and accepted, but in Kentucky no recovery may be had for board furnished by one other than the keeper of a tavern or house of private entertainment in the absence of an express contract.\[79\] A municipality cannot become indebted for personal services rendered it upon implied assumpsit.\[80\]

\_Services and materials furnished by member of family._See 8 C. L. 158_--Where the relationship of a family exists between parties rendering and accepting beneficial services, the general rule that a promise of compensation therefor is implied does not obtain.\[81\] Accordingly, services rendered by a child to a parent,\[82\] or one in loco parents,\[83\] or between others living together as a family,\[84\] are presumptively gratu-

and that in reference to the objectionable part it remained wholly executory. Id.

- \[noitemsep,nolistsep\]
  itous. This presumption, however, is not conclusive and will not be indulged where the surrounding facts and circumstances disclose a contrary intent.\[85\] In some states the general rule is that the presumption must be overcome by an express contract \[86\] proven by direct and positive evidence,\[87\] or by circumstantial evidence equivalent thereto,\[88\] but this rule is subject to the exception that, where services are rendered in reliance upon an express oral promise to deed or devise real estate, although the promise be not enforible because not in writing, still a contract to pay the reasonable value of the services may be implied and recovered upon provided the express promise be satisfactorily proven.\[88\]

_Right to recover for improvements made on lands of another.\[90\]--In order for one to recover compensation for improvements made on another's land, it is necessary that he should have made such improvements in good faith while in bona fide adverse possession of the land under color of title.\[91\] Under the Nebraska Occupying Claimant's Act, expenditures on land for the benefit thereof made in good faith and in honest reliance upon an apparent or presumptive record title may be recovered although the unsuccessful claimant was not in possession.\[92\]_

held to entitle son-in-law to recover for board \[dence that both father and son expected that and 1odging. Scorchfield v. Hayes \[Iowa\] 112 NWV 1100. Evidence held not to entitle \[dence that both father and son expected that 1odging. Scorchfield v. Hayes \[Iowa\] 112 NWV 1100. Evidence held not to entitle \[dence that both father and son expected that 1odging. Scorchfield v. Hayes \[Iowa\] 112 NWV 1100. Evidence held not to entitle \[dence that both father and son expected that 1odging. Scorchfield v. Hayes \[Iowa\] 112 NWV 1100. Evidence held not to entitle \[dence that the services were rendered for the former, together with whom he was living. Hodge v. Hodge \[Vash\] 91 P 764. \[dence that 1odging. Scorchfield v. Hayes \[Iowa\] 91 P 764. \[dence that 1odging. Scorchfield v. Hayes \[Iowa\] 112 NWV 1103. Evidence held to justify an inference of an ex-compensation, though void under the statute of frauds, is admissible in evidence as a cir-unstance ending to show that such servocies were not rendered gratuitously. Butler v. Kent \[Ala.\] 44 S 863; Hoskins v. Saunders \[Conn.\] 66 A 785; In re Taylor's Elstate \[IwV.\] 111 NWV 229. It does not follow as matter of law that there is an implied contract or obligation on the part of a parent to pay because a child rendered extraordinary services, but such services, when proved, may be considered by jury in deederming question as to whether there was an Implied contract for compensation. Williams v. Walden \[Ark.\] 100 SWV 898. In-struction held erroneous, which allowed jury to consider question of the acceptance of a son's services by his father, in determining whether or not there was an implied contract to pay therefore, as whether such servocies were performed voluntarily or on request the burden was on the son to establish a contract-expressed or Implied. Id. \[dence that 1odging. Scorchfield v. Voss v. Voss \[Vis.\] 113 NWV 1097. Presumption must be overcome by showing that relation between parties was that of debtor and creditor evidenced by some arrangement or contract. In re Marx's Estate \[Vis.\] 111 NWV 1103. Instruction that if plaintiff was entitled to pay for services then the presumption was that compensation was due and unpaid, and that question as to payment was a matter of defense, held correct. Id. Where plaintiff, propriet of a millinery business, abandoned such business and became defendant's housekeeper at his request and on the mutual understanding that she was to be paid for the services so rendered, she is entitled to recover, notwithstanding the family relation thus created. Webster v. Armstrong \[Iowa\] 113 NWV 549. \[dence that 1odging. Scorchfield v. Hayes \[Iowa\] 113 NWV 1097. \[dence that 1odging. Scorchfield v. Hayes \[Iowa\] 113 NWV 1097.

## 8 Moneys had and received and money paid

An action for money had and received, or money paid for the benefit of another is founded upon equitable principles. No privity of contract between the parties is required, except that which results from circumstances showing an equitable obligation.\[93\] Where one has money which in equity and good conscience belongs to and ought to be paid to another, an action for money had and received will lie for its recovery,\[94\] though

behaf of public, held immaterial, it not being disputed that the improvements were in fact made, that plaintiff made the payment, or that the amount paid was not in excess of their value. Id. In such case, owner of fee contract was not executed, he is entitled to cannot he compelled to convey to claimant hes title or interest upon being paid or tender to repar it and the value of the horse as ered the apprassed value, but the parties should be treated as tenants in common of indivisible real estate, and property sold and proceeds distributed in proportion to the several interests or shares. Id.

98, Commercial Nat. Bk. v. Sloman, 106 NYS 5085: Criglier v. Duncan, 121 Mo. App. 381, 99 SVW 61.

94, Whittle v. Writtle \[Cal. App.\] 91 IP 170; Rhodes & Son Permiture Co. v. Jenkins \[Ga. App.\] 58 SE App.\] 58 SE 897; Tjams v. Andrews \[C. C. A\] 151 F 725.

**Recovery allowed:** Where it appeared that plaintiff bought of a person, who had been acting as agent of defendant carrier to sell its tickets, certain documents purporting to be passage tickets or defendant, nothing appearing at time tickets were bought to modify plaintiff of defendant's revocation of agency, if it had done so, and tickets exactly like those in question had been accepted by defendant, held plaintiff, having paid his money to defendants's agent for valid tickets, is entitled to recover it from defendant, defendant having repudiated the act of its agent and notified plaintiff that the tickets were worthless. Simmoneli v. White Star Line \[R. I.\] 66 A 836. Where plaintiff gave defendant money for the purpose of purchasing a saloon for him, and defendant bought the saloon with plaintiff's money, but took possession him-self, operated it, received the proceeds, refused to let plaintiff have the saloon, and finally ejected him from it, held plaintiff had a cause of action against defendant as for money had and received. Manning v. Fain \[N. J. Law\] 66 A 908. A surety on a note who has received credit for the amount of the debt in another transaction is liable for the amount to the principal debtor who has been compelled to pay it. McGee v. McGee, 125 III. App. 436. Villi lie against one who being entrusted with note for collection fails to turn over proceeds. Harr v. Roome, 28 App. D. C. 214. Where contract was made for sale of real estate to defendant, but title was rejected, certain rents paid to defendant may be recovered as for money had and received. Cohen v. Jacobwitz, 52 Misc. 600, 10 NYS 519. Where a rentoe, given by a tenant to his landload, was transferred to plaintiff before maturity and subsequently to the transfer the land was sold under execution against the landord, and the purchaser without notice of the transfer of the note, collected the rents, held plaintiff was entitled to recover in an action for money had and received the rents so collected by the purchaser. Young v. Garber 10 Curr. L -- 8.

there be no express promise,95 but there may be deducted, however, amounts which the same equitable considerations require plaintiff in his turn to pay.96 Money pro-eured by duress or compulsion,97 or through fraud and deceit,98 may be recovered as

taken for public use without just compensa- | and that the money came lawfully into her ion. Armour v. Roberts, 151 F 846. Liabil- | possession, it being received by her in pay- | to refund enforceible against successor of | of for money had and received." Generally, money paid under a mistake of a material fact 1 may be recovered,2 but the rule is not applicable when, under an assumption of fact known to both parties to be doubtful, there has been a voluntary payment in extinguishment of a claim.3 Money voluntarily paid, with full knowledge of all the facts, cannot be recovered.4 As a general rule money voluntarily paid under a mis-

ress of a judicial order procured by fraultultent statement of facts which were essential to the order of the court. Colon v. Hebbard, 105 NYS 805. Unlawful fine acquiesed in by patrolman cannot be recovered back. Gay v. Chicago, 124 Ill. App. 686. Where imports were detained by government on theory that back. Betz v. New York, 103 NYS 886. Mis- and importer himself pursues the law and does, without dissent or suggestion of oppression or dures, whatever is necessary to procure his goods, he makes his own in-

commercial paper within the rule entilting interpretation of the law, and if he interpret it mistakenly he cannot at one time affirm its application by his action and thereafter

since of the forgery was given to the party re-

the statute. Newhall V. Jordan, 149 F 586.

Eclipse such payment within a reasonable field no evidence to show that plaintiff was

time after its discovery. National Exchange conscious of duress or unlawful constraint

Bk. of Providence v. U. S. \[C. C. A.\] 151 F to pay what he did not owe, in the payment

402. Heild, United States having been guilty of revenue tax, to obtain his property. Id.

Unlawful penalty exacted by customs of-

If. Evidence held to show no mistake either

feers may be recovered from the United

States. Narciso Basse v. U. S., 40 Ct. Cl. 202.

R. 992, 104 SW 858. Money paid under mis-

98. A bank which pays forged checks

drawn on it to another bank which has

payor was negligient. Hathaway V. Delaware

cashed them may on subsequently discover-

County, 185 N. X. 368, 78 NE 158. Payment

ing the forgery recover from the bank which

by wife of husband's debt under mistaken

eashed them if it has not been placed in any

belief that property sized therefor belonged

worse position than it would have been had

to her cannot be recovered back. Pelletier

it refused payment when presented. Canadian

v. State Nat. Bk, 117 La. 835, 41 S 640.

Bk. of Commeree v. Bingham \[Wash\] 91 N. Where Insurance policy was paid, the

185. Evidence held not to show overpay-

saved having been absent and unheard of

ments to building and loan association were

for more than seven years, under the mis-

procured through fraud or bad faith on part

taken belief that he was dead, and under a

of officers of association. Carter v. Iowa

compromise on the question whether any-

State Business Men's Bldg. & Loan Ass'n

thing was payable, and to avoid litigation

\[Iowa\] 112 N NV 828. In action to recover

plaintiff elected to make payment, held, the

rent paid in advance for premises, which

evidence showing that question whether assignment

plaintiff alleged were falsely and fraudulent-

served was dead was distinctly within con-

ly represented to him as being dry when they

termilation of both parties, that plaintiff con-

were in fact damp, and on account of the

caded his liability by voluntarily paying

misrepresentations he rescended the lease

and abandoned the premises, evidence that

the proofe that the rule is not applicable when, under an assumption of

while residing in the house members of the

plaintiff's family were taken sick with cools,

tonsillits, and lumbago, held inadmissible to

stoke. R. Co. \[C. C. A.\] 149 F 973. Crediting of

show dampness of house. Wintersteen v. Krumphshaar, 104 NYS 665.

bladder to corporation held not a voluntary

99. Action to recover fees paid by can-

didates under protest in compliance with

nancs printed on ballots, held proper procedure, where plaintiff allege insm

to fit by carrier, and with full knowledge of

time before election for them to institute an

action or any special proceedings, either at

alistafaction, charges for transportation,

law or otherwise, for purpose of compelling

their names to be placed on the ballot, and

defendant by demnurer admits this allega-

tion. Johnson v. Grand Forks County \[N. D.\]

113 NYS 1071.

**I.** Mistake of fact as to whose account payment should be charged held from the evidence not to be material. Kessler v. Herkt-

lotz \[N. Y.\] 82 NE 739.

**2.** Portion of purchase money returned under mistake in mathematical calculation

as to what amount should have been paid.

Stowell V. Ames, 148 Mich. 439, 14 Det. Leg.

take of law cannot be recovered,5 but the rule does not apply to a payment by public officials of a claim not authorized by law,6 though a mere voluntary payment is insufficient.7 Where one pays money which another in equity and good conscience ought to pay, especially if compelled to do it, he may recover the same under a promise implied in law.8 Where money has been paid in satisfaction of a judgment which is afterwards reversed, the law implies a promise to restore it to the party from whom it was exacted.9 Money loaned may be recovered in an action for money

ered back. Fourche Planting Co. v. Brown \[Ark.\] 104 SWV 1120. Taxes voluntarily paid 505, 110 NUV 292. An action as for money cannot be recovered back. Petty v. Beers, 127 Ill. App. 598. 5. Newhall v. Jordan, 149 F 586. Where taxes are paid on imports, and importer him-self pursues the law, making his own interpretation thereof, and. he interprets it mistakenly, there can be no recovery of taxes so paid, as it is a pure mistake of law. Id. Draft to order of joint parties induced by one to his copparty. Rawson v. Bethesda 642. Municipality may recover back amount Baptilet Church, 123 Ill. App. 239. Voluntary payment made under mistake of law cannot be recovered back. Subst v. Gring, 32 Pa. McCarthy v. Bloomington, 127 Ill. App. 215. Super. Ct. 541. Difference between simple interest and compound interest paid under mistake of law held not recoverable. Clausen v. Puvogel, 114 App. Div. 455, 100 NYS 49. Where a child was born after making a bill, devising testator's property to his wife, and widow assuming that devise was not affected by the birth of the child conveyed and a part of said property which, after attempt-ed mesne conveyances, the then assumed owner mortgaged to defendant and after-wards conveyed to plaintiff, who paid the mortgage under the mistaken belief that the their ded conveyed title in fee to the prem-ises, held plaintiff could not recover the amount so paid, the mistake having been one of law. Beloff v. Dime Sav. Ek. of VII-Ilamsubstr, 118 App. Div. 20, 103 NYS 273. Plaintiff, a railroad, paid the full tax assessed against it, and such assessment included all its property in the county subject to taxation. Through a mistake of fact with reference to township boundaries a portion of the road was apportioned to the wrong township. After discovery of the mistake the auditor assessed such portion as omitted property in the proper township and plaintiff again paid taxes on it, which it seeks to recover. Held that the mistake gave the auditor no authority to assess omitted property, for none had been omitted, and the payment being voluntary there could be no recovery in absence of a statute authorizing it. Baltimore, etc., R. Co. v. Oregon Tp. \[Ind. App.\] 81 NE 106. 6. Jay County Com'rs v. Pike Civil Tp., 168 Ind. 535, 81 NE 489. Under the statutes a county auditor has no right to tax and collect any fee or compensation for proving and delivering lists of road taxes to township trustees, and a civil township may recover back township funds paid by its trustees for such lists. Id. Such an action in court not being an action on a claim created in violation of 25 of the Country Reform Law, ben,$\\phi$ $ 5594e1, Burn's Ann. St. 1901, the want of an appropriation by the council to pay the claim is no defense. Id. St-e may recover sum paid to state bookbinder in excess of price authorized by law and erroneously allowed by the * 10Cur. Law. IMPLIED CONTRACTS SS 6.

- 10A party to a contract failing to perform cannot recover the money paid thereunder \[11\] though the other party thereto may recover what he has parted with.\[12\]
- 12
- 14_Use and occupation.\_See 8 C. L. 164.-Since the right to recover for use and occupation of real estate involves the relation of landlord and tenant, it is treated in that topic.\[13\] An action for use and occupation will not lie against one whose possession is tortious, for the reason that the relation of landlord and tenant does not exist by implication in such cases.\[14\] The use of a room in a hotel, no agreement being made as to rent, raises an implied promise to pay only the fair rental value.\[15\]
- 15_Torts which may be waived and suad on as implied contracts.\[16\]
- 16_Remedies and procedure.\[17\]\_--The action upon implied contract must be brought within the time prescribed by the statute.\[18\] An action for money had and received,\[19\] or for goods sold and delivered,\[20\] may be maintained by the person having an interest therein. All parties having a common interest in the subject-matter may be joined as plaintiffs in an action for money had and received.\[21\] In an action
- 16_Evidence held to sustain finding that the money was received and not from date amount saved for was not advanced as a loan but in payment of taxes. Fourche Planning Con. v. Brown \[Ark.\] 104 SV 1120. Evilendence held insufficient to sustain finding that money was loaded to defend and not (or, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1120, 104 SV 1121, 104 SV 1121, 104 SV 1122, 104 SV 1121, 104 SV 1122, 104 SV 1123, 104 SV 1124, 104 SV 1125, 104 SV 1126, 104 SV 1127, 104 SV 1128, 104 SV 1129, 104 SV 1121, 104 SV 1121, 104 SV 1122, 104 SV 1123, 104 SV 1124, 104 SV 1125, 104 SV 1126, 104 SV 1127, 104 SV 1128, 104 SV 1129, 104 SV 1130, 104 SV 1140, 104 SV 1141, 104 SV 1142, 104 SV 1143, 104 SV 1144, 104 SV 1145, 104 SV 1146, 104 SV 1147, 104 SV 1148, 104 SV 1149, 104 SV 1149, 104 SV 1150, 104 SV 1160, 104 SV 1171, 104 SV 1181, 104 SV 1190, 104 SV 1191, 104 SV 120, 104 SV 1211, 104 SV 1212, 104 SV 1222, 104 SV 123, 104 SV 124, 104 SV 125, 104 SV 126, 104 SV 127, 104 SV 128, 1 for money paid, the defendants are not entitled to set off an indebtedness due from plaintiff to a third person.\[22\] A complaint in an action to recover the value of services rendered and materials furnished,\[23\] or for money paid out for defendant's benefit and at his request,\[24\] must allege all facts essential to a recovery. A reply to purely defensive matter is only necessary when the pleader wishes to confess and avoid.\[25\] Generally, in an action to recover quantum meruiti for services rendered, plaintiff has the burden of showing the rendition of such services,\[26\] but there is a presumption that he was to be remunerated. Held instructions should have been refused requiring plaintiff, in order to recover, to show that when she rendered services she did so with expectation of being compensated therefor,\[27\] but in an action for labor performed and materials furnished under a building contract, the burden of proving full performance of the contract is not on the plaintiff, where the defendant has issued a final certificate which the contract provides shall be conclusive evidence of performance.\[28\] In an action to recover quantum meruiti for services rendered, plaintiff has the burden of showing the value thereof.\[28\] In an action to recover quantum meruiti for services rendered, the request for the service and its performance being admitted by defendant, the burden is on him to show that plaintiff undertook to render such service gratuitously or at a lower rate than alleged.\[29\] In an action to establish a claim for services against a decedent's estate, evidence as to the value of the estate,\[21\] or the value of the services, is admissible,\[22\] and in an action for services rendered, in securing options for the purchase of lands, evidence of the value of the lands is competent as bearing upon the value of such serv 10 Cur. Law. INCEST.

ices. \[88\] Where, in an action under the common counts for labor performed and materials furnished, the contract has been performed and it only remains to pay the contract price, the contract may be read in evidence to show its terms, \[84\] and where services are rendered and materials furnished under a contract partially performed, the latter is evidence of their value. \[88\] In an action to recover the value of professional services, the reasonableness of the charge cannot be established by showing what the plaintiff charged another person in a similar case, \[88\] but evidence showing that plaintiff's standing in the profession is high is admissible. \[87\] The objection of a variance may be waived. \[88\] The question of what is the reasonable value of professional services is peculiarly within the province of the jury. \[88\] A count upon a contract and one upon a quantum merit for the same relief may be submitted to the jury together, under an instruction that there can be but one recovery, \[88\] but where the case was not submitted to the jury on the theory of quantum merit, no recovery can be had thereunder, on failure to establish the express contract. \[41\] The recovery cannot exceed the amount stated in the bill of particulars. \[42\]

Implied Trusts; Implied WARRANTIES; Imputching; ImprisonmXT for Deft; Improvements, see latest topical index.

Services in securing options for the purchase of coal lands. Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, 82 NE 250.

34. Evidence held to show that building had been fully performed. Concord Apartment House Co. v. OPBrien, 228 Ill. 340, 81 NE 1038.

01. City of St. Charles v. Stokokey \[C. C. A.J. 154 F 772.

01. Evidence that plaintiff charged another a smaller sum, for similar services, than that demanded of defendant, held inadmissible. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. In action by veterinary surgeon to recover value of professional services, testimony of another veterinary surgeon that he considered plaintiff a competent surgeon and that his opinion would be all right to rely on held admissible. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. Where defendant, in its instruction, submitted to jury the right of plaintiff to recover on a quantum merit, it cannot on appeal object that there was no count upon a quantum .meruit in the declaration. Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, 82 NE 250.

01. Services rendered by veterinary surgeon. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. City of St. Charles v. Stokokey \[C. C. A.J. 154 F 772.

01. Action to recover for services rendered by architect. Bluemner v. Garvin, 104 NYS 1009.

01. Where in an action for work and labor the value of the services is stated in a .

01. Services in securing options for the purchase of coal lands. Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, 82 NE 250.

01. Evidence held to show that building had been fully performed. Concord Apartment House Co. v. OPBrien, 228 Ill. 340, 81 NE 1038.

01. City of St. Charles v. Stokokey \[C. C. A.J. 154 F 772.

01. Evidence that plaintiff charged an- either customer a smaller sum, for similar services, than that demanded of defendant, held inadmissible. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. In action by veterinary surgeon to recover value of professional services, testimony of another veterinary surgeon that he considered plaintiff a competent surgeon and that his opinion would be all right to rely on held admissible. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. Where defendant, in its instruction, submitted to jury the right of plaintiff to recover on a quantum merit, it cannot on appeal object that there was no count upon a quantum .meruit in the declaration. Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, 82 NE 250.

01. Services rendered by veterinary surgeon. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. City of St. Charles v. Stokokey \[C. C. A.J. 154 F 772.

01. Action to recover for services rendered by architect. Bluemner v. Garvin, 104 NYS 1009.

01. Where in an action for work and labor the value of the services is stated in a .

01. Services rendered by veterinary surgeon. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. Where defendant, in its instruction, submitted to jury the right of plaintiff to recover on a quantum merit, it cannot on appeal object that there was no count upon a quantum .meruit in the declaration. Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, 82 NE 250.

01. Services rendered by veterinary surgeon. Marshall v. Bahnsen, 1 Ga. App. 485, 57 SE 1006.

01. City of St. Charles v. Stokokey \[C. C. A.J.

intercourse 4 and acts of laxicurious familiarity not amounting to intercourse 50 may be considered by the jury. The state must prove the commission of the crime beyond a reasonable doubt,51 but the exact date of its commission need not be established.52 Where one of the parties to the incestuous relationship is an accomplice,53 corroboration is required, and the necessity for corroboration must be presented to the jury under proper instructions.54

## 11 Incompetency

### 1 Mental Weakness Sufficient to Consti- 8 2. Effect of Incompetency on Contracts, 41.

tute Inespacity, 40.

### 1 The scope of this topic is noted below.55

SS 1. \_I Mental weakness sufficient to constitute incapacity,\_See S C. L. 160 must be such as to render the person whose act is brought into judgment wholly incapable, at the time of the act in question, of understanding its nature and effect or the business being transacted.56 Limited intelligence 57 or occasional weakness of the

a particular act held erroneous under Rev.

With the same intent that he does. Smith v. St. 1899, $ 2172 (Ann. St. 1906, p. 1394), making each act of intercourse a crime. State v.

S38; Schwartz v. St., 65 New 19, $1 NW 190;

40. In determining spirit or innocence of

Mercher v. State, 17 Tex. App. 457, 457. Millink v.

acused, jury may consider acts of intercourse prior to the one upon which state re-

State \[Tex. Cr. App.\] 26 SW SW 504; Porath v.

Use for conviction. State v. Print, 202 Mo.

Nw 1061. In Whittaker v. Commonwealth,

49, 100 SWV 411. Where defendant on cross-

examined denied confession of intercourse may be convicted of incest, with his minor

with sister prior to act relied on, the confession was held properly admitted not to

though, perhaps, she consented, for she was

tst his credibility but to prove the issue.

People v. Block, 105 NYS 275.

50. State v. Pruitt, 202 Mo. 49, 100 SWV 431.

01. Improper caresses held insinficient

to sustain conviction, no act of intercourse

being shown. Hardin v. Com. \[Ky.\] 99 SW

328. Evidence held sufficient to sustain conviction of father for incestuous relation

with daughter. Bridges v. state \[Neb.\] 113 NW 1048.

52. Under Rev. St. 1899, $ 2172 (Ann. St. 1906, p. 1394), state need not prove that of

01. State v. Pruitt, 202 Mo. 49, 100 SWV 431.

01. Clr1 under sixteen maintaining in-

cestuous relations with father under physi-

cal and moral coercion held not an accomplice.

Hec. Bridges v. State \[Neb.\] 113 NW 1048.

Note: "A woman who voluntarily yields

herself to an incestuous intercourse is re-

garded as an accomplice with the man, and

after testimony is governed by the law of ac-

complete testimony: Solomon v. State, 113 Infants, 8 C. L. 267, and like topics, and the

Ga. 192, 38 SE 32 SE: it is: Kent., SE N. D. (disability of adjudicated lunatics to contract

683, 80 NWV 476, 13 Am. St. Rep. 176; Smeh V. 1978; Smeh V. 1979; Smeh V. 1989; Smeh V. 1999; Smeh V.

mind or wanderings of the intellect during sickness is not sufficient.54 Extreme old age and debility, however, may raise a presumption of incapacity.55

SS 2. \_Effect of incompetency on contracts.\_See 6 C. L. 179--A contract by an incompetent will be sustained if fair and free from oppression 60 or necessary for his support,54 but pure and honest motives will not make transactions legal.54 The contracts of incompetent person are generally not void but voidable.55

SS 3. \_Remedies and procedure.\_See 6 C. L. 171--Findings of a lunacy commission are prima facie only.54 Mental incapacity once shown may be presumed to continue until contrary is proven.55 To avoid a contract on a plea of incapacity disaffirmance should be made, and 56 the consideration should generally be returned within a reasonable time 67 or liability denied thereon.58 Incompetency must be clearly alleged 60 in the pleading seeking relief on account thereof.59 The burden of showing

grantor is capable of understanding and did

understand that the owned property and could

SE 162.

dispose of it, held sufficient to make a dead.

Chase v. Spencer \[Mich.\] 14 Det. Leg. N. 615,

sufficient evidence of permanent and continuous incompetency. Studebaker v. Fay-

lor \[Ind. App.\] 80 NE 861.

incapacity is upon him who alleges it,\[71\] and must be proved by a preponderance of the evidence.\[72\] Some authorities, however, limit this rule to incapacity but temporary and occasional.\[73\] Evidence as to condition before and after the act in question may be relevant.\[74\]

## 11 Indecency, Lewdness, and obscurity

_The scope of this topic_ is noted below.\[75\]

_Prostitution.\[28\]_ See s C. L.\[17\]--Statutes in most states make it a criminal offense to induce a female under age to enter a house of assignation or prostitution, and the fact that the accused was ignorant of her age is immaterial.\[78\] Consent on the part of the husband to his wife becoming an innate of a house of prostitution is also made criminal by some statutes,\[71\] notwithstanding the fact that she did not take up her residence therein for the purposes of prostitution,\[78\] and under such a statute an information in the language of the statute is sufficient,\[78\] but as the husband's assent is the gist of the offense, the jury should be instructed as to the legal effect of his efforts to induce her to leave.\[80\]

_Obscene words or publications.\[28\]_ See s C. L.\[17\]--Under the New York statute to render a publication indecent, it must be obscene,\[81\]

_Lascivious conduct.\[28\]_ See s C. L.\[17\]--Blanket statutes in many states make criminal indecent acts not covered by other statutes,\[82\] and offenses thereunder must be distinguished from other offenses against morality or against the person for which specific provision is made\[83\] unless the violation thereof necessarily results in the

the nature and effect of his acts held insuffling.\[29\]

prostitution that defendant shall be charged event.\[30\] Fritz v. Jones, 117 App. Div. 643, 102 NYS 519,

70.\[31\]

Incapacity cannot be alleged for the first time in the reply.\[32\]

77.\[33\]
10 Cur. Law. INDEMNITY SS 2.

commission of another crime. \[84\] Statutes in some states prohibit the lascivious co-habitation \[85\] of persons of opposite sex, one or both of whom is married, but not to each other, \[86\] but the illicit relationship must be shown beyond a reasonable doubt. \[87\]

Lascivious conduct in private is not a crime within a statute prohibiting acts tending to outrage public decency or injurious to public morals. \[88\]

## 11 Indemnity.

\[\] 1 Definition and Distinctions, 43.

## 3 Interpretation and effect of contract

See S. C. L. 172. The contract will be given a reasonable construction according to the intention of the parties.\[98\] Surety on a fidelity bond is liable only for acts within the scope of the employment disclosed by the application " and only as to funds in the hands of the bonded employe at the time of the execution of the bond or coming into his hands during its life." Every provision will be given effect if possible and practicable." When the written and printed provisions cannot be reconciled, the written provisions prevail." If the contract is susceptible of two constructions, one favorable and the other unfavorable to the indemnitor, the latter, if consistent with the object for which the contract was made, must be adopted.\[1\] Doubt and uncertainty about the effect of correspondence

sideration, indemnitor cannot escape liability policy such costs and interest were not re-on the last renewal on ground that bond was coverable, but only $5,000 together with not signed by servant. Aetna Indemnity Co.

or defendant in defense of the legal pro-

v. Crowe Coal & Min. Co. \[C. C. A.\] 154 F 454.

95. An indemnitor bond is simply a contract of supership, and the same rules apply in

Mills V. Frankfort Marine Acc. & Plate Glass

its construction that apply to contracts gen-

Ins. Co. \[R. I.\] 68 A 58.

arily except that the letter of the contract

Agreement between ee-obligors an bendi

should be more strictly construed. Father

Where a bond is secured by mortgage on

v. Kaneen, 5 Ohio N. P. (N. S.) 614.

property of one of obligors, and other ob-

Terms of employe's guaranty bendi limit-

ing liability to loss occasioned by employe's

gor's consent to his release from liability

lacexy or embexlement. Williams V. U. S.

on bond, in event of foreclosure of mort-

Pidelity & Guaranty Co. \[M.\] 66 A 485.

Notice of loss: Where an employer's indemnitor

half of such judgment, co-obligor may main-

demnitor bond against loss resulting from

stain action on such agreement without haver

servants embexlement or lracxy provides

that notice of loss shall be given "immedi-

v. Nellany, 52 Misc. 364, 102 NYS 264.

ately after the occurrence" of the crime

Certifications of damages by archletes:

"shall have come to the knowledge of the

In action on building contractor's bond, facts

employer," notice required is only such as

head to show sufficient excuse for failure to

reasonable diligence, under all circumstances

comply in absolute strictness with require-

of case, dictates after knowledge is obtained

ments of contract as to certification of dam-

of such facts as would justify a careful and

sages by archletes employed to superintend

product man in believing the crime to

have been committed. Aetna Indemnity Co.

w. Crowe Coal & Min. Co. \[C. C. A.\] 154 F 454.

https://www.cowe.co/
upon the contract should be resolved in favor of sustaining the contract as executed.2 An employer's liability bond is essentially a contract of indemnity against loss, and the general rules governing the construction of insurance policies are applicable to it.3 An indemnity company can recover only such premiums on a surety bond as are earned during the existence of its liability thereunder.4 If the contract is silent as to the term for which it is to run, the court will determine its life from the facts and circumstances surrounding the parties at the time of its execution.5 Where a municipal contractor's bond is to continue in force until the work is "completed and accepted," liability thereunder continues until both contingencies have occurred.6 An agreement to indemnify another for loss sustained under a contract with a third person must be read in connection with such contract.7 Under a bond to indemnify against loss arising from the "fraud or dishonesty" of an employe, liability extends to any loss arising from a breach of trust.8 But a bond to insure the honesty of factor does not make the insurer liable for the factor's failure to turn over to the principal on demand property belonging to him or the proceeds thereof,9 nor does a bond insuring the honesty of an employe cover money collected by him before the bond went into effect and afterwards dishonestly converted.10 A subcontractor's bond cannot be construed as a special guaranty where there are no words importing an intention to create such a guaranty incorporated in the bond.11

Footnote 10: Cur. Law.

**SS 4.** _Actions on contract_.See **& C. L. 176**.\_Suit may be brought by_a corporation where it is the real party in interest though the contract was made with its directors.12 Where the contract is assignable, suit may be brought by the assignee.13 Persons for whose indemnification bond is given may sue in name of obligee for their use.14 The petition must state facts sufficient to constitute a cause of action.18 Alllegations in complaint which are legitimate and essential to a full statement of plain-

**2.** \_Acta Indemnity Co. v. Crowe Coal & Min. Co. \[C. C. A.\] 184 F 545.\_S. Liability not confined to loss arising from embezzlement or latency. United Bonding and Trust Co. v. New Amsterdam Casquity Co., 125 Ill. App. 33.\_S. Liability under municipal contractor's bond held to terminate twelve months after completion of building in relation to which bond was given. Aetna Indemnity Co. v. Ryan, 63 Mine, 614, 103 NYS 756.

diff's cause of action will not be stricken out on motion.16 The indemnitor cannot allege the obligees incapacity as an association to sue.17 In Missouri where the answer alleges that the contract was executed on the faith of a written statement made by plaintiff, plaintiff's failure to verify its replication of general denial is not an admission that such statement formed the basis of the contract.18 Evidence of an offer by defendant to compromise the claim is not admissible.19 In an action upon a fidelity bond, evidence of the employee's general course of conduct in plaintiff's affairs is admissible to show the spirit and intent that moved him.20 The ordinary rules as to the inadmissibility of immaterial 21 and opinion evidence 22 prevail. The evidence must show that happening of the contingency upon which the defendant's liability is to arise.23 In an action on a fidelity bond, the burden of proof is upon the plaintiff to show that the loss sustained was the result of the misconduct of the employee,24 and the burden is upon the defendant to prove a breach by plaintiff of the conditions of the bond.25 Where it is conceded in an action on the bond of a bank cashier that certain collateral was embezzled during the term covered by his bond, the burden is on the sureties to show that any part of such collateral was subsequently returned and placed in the files of the bank.26 Where one is responsible over to another and is notified of the pendency of a suit involving the subject-matter of the indemnity, the judgment rendered in such suit conclusively fixes his liability in an action on the contract of indemnity.27 An instruction that is plainly repugnant to the terms of the contract is erroneous.28 In an action on a fidelity bond an * 10 Cur. Law. **INDEMNITY SS 6.**

**erroneous instruction that a provision in bond that plaintiff will make frequent audits and examinations is too vague to be regarded is not cured by a subsequent instruction that it was plaintiff's duty to take reasonable precautions to detect and prevent any act on the part of the employee tending to render defendant liable.**\[99\]

**The verdict must be sustained by the evidence.**\[99\]

**SS 5.**\_Defense.\_See * C. L. 175--Whether the statements in the application are or are not warranties,\*\*\[31\]

**a material misrepresentation will avoid the contract.**\[32\]

**It is a good defense that plaintiff has sustained no loss within the meaning of the contract**\[99\]

**or that the conditions on which the contract was issued have not been performed by him,**\[99\]

**as where he fails to notify the indemnitor upon discovery of loss**\[99\]

**or to make stipulated periodical examination of accounts.**\[99\]

**A denial of liability on a fidelity bond is a waiver of proofs of loss or of defects in those furnished,**\[99\]

**and, where proofs of loss are retained by indemnitor without objection and not returned with demand for new proofs until after time for making proofs has terminated, further proofs are waived.**\[99\]

**In an action on a municipal contractor's bond conditioned to pay any judgment obtained against the municipality in an action for damages for contractor's negligence, settlement and satisfaction of such a judgment by the municipality after appeal taken is no defense unless it was made in bad faith.**\[99\]

**Where an indemnitor knowing the capacity in which persons were acting insured their fidelity as "brokers," he is estopped from setting up the defense that they were in fact acting as commission merchants.**\[99\]

**SS 6.**\_Measure of recovery.\_See * C. L. 176--The measure of recovery is the loss proximately resulting from the happening of the contingency insured against.\*\*\[99\]

**personal dishonesty or "culpable negligence" on faith of answers made to certain inter-of employee, wherein culpable negligence is defined to mean "failure to exercise that degree of care and caution which men of ordinary prudence and intelligence usually exercise in regard to their own affairs," it is error to instruct jury that degree of care and caution, failure to exercise which will render indemnitor liable, is "the very high-est, you might almost say the highest, possible," and "an extraordinary and very high degree." United Fidelity & Quaranty Co., 145 F 273.**

**v. Des Moines Nat. Bk. \[C. C. A.\] 145 F 273.**

**29.**
**Sinclair & Co., National Surety Co., 132 Iowa, 549, 107 N NV 184.**

**30.**
**Evidence held sufficient to sustain verdict finding that indemnitore gave the notice of loss required by contract. Aetna Indemnitory Co. v. Crowe Coal & Min. Co. \[C. C. A.\] 154 F 545.**

**31.**
**Sinclair & Co. v. National Surety Fidelity and Deposit Co., 76 Ohio St. 252, 81 NNE 330.**

**32.**
**Plaintiff's representation that certain persons were acting as his "brokers" is not shown to be fraudulent by fact that by his contract with such persons he appointed them his "brokers or commission merchants."**

**Sinclair & Co. v. National Surety Co., 132 Iowa, 549, 107 N NV 184.**

**33.**
**Application as to past conduct of bonded employee. Vinkler Brokerage Co. v. Fidelity & Deposit Co., 119 La. 735, 44 S 449; Livingston v. Fidelity & Deposit Co., 76 Ohio St. 253, 81 NE 330.**

**33.**
**Complaint held not to show loss under agreement to indemnify plaintiff for loss sustained under contract with third person. Nachod v. Hindley, 118 App. Div. 658, 103 NYS 801.**

**34.**
\*\*Renewal contract held not executed
Where a contractor's bond covenants to indemnify for any damages resulting from failure to perform, interest is recoverable upon the amount of such damages from the date of their certification as required by the contract.\[12\]

## Independent Contractors.

_The scope of this topic_ is noted below.\[48\]

_Definition and requisites of the relation._--An independent contractor is one who renders services in the course of an occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.\[44\]

The terms of the contract are decisive of the question whether the relation of independent contractor or servant is created.\[45\]

The employer must have no right of control as to the mode of doing the work contracted for,\[46\]

but the independence of the relation may be changed by a practical construction of the contract in the performance of the work, so as to constitute the contractors mere servants of the employer.\[47\]

A reservation by the employer of the right by himself or his agent to supervise the work merely for the purpose of seeing that the contract is complied with,\[48\]

or of the right of making any alteration in the work that may be determined to be necessary or desirable,\[49\]

does not affect the independence of the relation; nor is the independence of the

\\begin{tabular}{l l} brought by Ilenholders (Id.), and, where such & one employed by a corporation to unload \\ a bond covenants to complete building on & cars is paid by the car load and employs his \\ before a specified date, amount of rent that & own helpers does not make him an Independ- \\ could have been obtained for building & dent contractor. Foster v. National Steel \\ & (see Contracts, 9 C. L. 454; Building and & Co., 216 TA. 219, 65 A. 618. One who has had \\ & & some experience at breaking horses, but who \\ & & does not follow vocation of horse breaking, \\ & & does not in accepting another's offer to break \\ & contractors' failure to perform. Tally v. & a horse become an independent contractor. \\ & Gamahl \[Cal.\] 80 P 1049. & Millhul v. Brocker, 119 M. App. 332, 97 SWP \\
**42a. See 8 C. L. 176.** & 540. & 540. \\
\*\*43. It includes liability of employer for & 45. McHerrage v. Newcomer & Co., 117 \\ negligence of an independent contractor. & Tenn. 595, 104 SWP 700. & \\ & It excludes all matters of general contract & 40. Johnson v. Helbing \[Cal. App.\] 92 P \\ & (see Contracts, 9 C. L. 454; Building and & 366\]

Louisville & N. R. Co. v. Cheatham \\ & Construction Contracts, 9 C. L. 424), and the & (Tenn.) 100 SWP 802. Property owner work- \\ & general rules of negligence (see Master and & ing on a city street in front of their proper- \\ & Servant, 8 C. L. 840; Negilence, 8 C. L. 1090; ties in edelence to an ordinance are not \\ & 44. Johnson v. Helbing \[Cal. App.\] 92 P \\ & 360; McKarrage v. Newcomer & Co., 117 \\ & & inelual authorities have no control. Meyers \\ & 595; 100 SWP 700; Louisville & N. R. Co. v. & V. Philadelphia, 217 Pa. 159, 68 A. 261. \\ & Cheatham \[Tenn.\] 100 SWP 902. Where & 47. Evidence held not to show such a Prac- \\ & fendants contracted with a repaired or submit- & total construction of a railroad contract \\ & ines to put their avnings in good condition & Louisville & N. R. Co. v. Cheatham \\ & and agreed to pay him what work was & 100 SWP 002. & \\ & & 48. Johnson v. Helbing \[Cal. App.\] 92 P \\ & & of employer and independent contractor. & 360: Louisville & N. R. Co. v. Cheatham \\ & McHerrage v. Newcomer & Co., 117 \[Tenn.\] 100 SWP 902. & That contract between \\ & 100 SWP 700. One with whom road directors & railroad and contractors provides that work \\ & of county contract in pursuance of Actis & is to be done to satisfaction of railroad's \\ & 1904, p. 388, e. 226, for repair of highway at & engineer and according to specifications and \\ & his own cost, and through servants selected & such explanatory drawings and instructions \\ & and controlled by him, is an independent & as may be furnished by engineer does not \\ & contractor. Symons v. Road Directors for & affect independence of contractor's relation. \\ & Allegany County \[M.O.\] 65 A 106T. Where & Id. Nor is the independence of such relation \\ & in action against road directors evidence affected by a provision in such contract that \\ & shows work was done under such act. pre- & engineer shall decide on quality and quan- \\ & sumption arises relation affected by a provision that the contractors shall not let or transfer the contract without the written consent of the employer or his agent; " nor, in the case of a railroad contract, by a provision that the contractors shall discharge disorderly employees when directed to do so by the engineer." That the employer is a builder and is doing the woodwork on his own building does not affect the independence of the contractor for the stonework."

\_Liability for negligence.--\_As a general rule an employer of an independent contractor is not liable to third persons for his negligence, or that of his subcontractors or servants," but to this rule there are several exceptions, as where the employer has not used care to select a competent person as contractor," or where the work is in itself.

unlawful " or a nuisance in itself," or necessarily attended with danger to others," or where it will of necessity result in injury to another," or where the thing to be done or the manner of its execution involves a duty to the public incumbent upon the employer," or where the employer interferes with the contractor in the performance of the work," or where the contractor acts under the direction of the employer's

may be determined necessary or desirable by

consequences of such contractor's incompemem-railroad's engineer. Louisville & N. R. Co.

v. Cheatham \[Tenn.\] 100 SVW 902; McHarge v. Newcomer

- 50. Provision that railroad contract shall

- 60.117enn. 595, 100 SVW 700; consent of engineer. Louisville & N. R. Co.

- 61. Louisville & N. R. Co. v. Cheatham

- 62.2007

- 63.3000

- 64.3000

- 65.3000

- 66.3000

- 67.3000

- 68.3000

- 69.3000

- 60.3000

- 61.

agent. \[61\] The doctrine of independent contractors applies to corporations except so far as such contractors are performing acts made lawful only by the charter power of the corporation. \[62\] Thus, a railroad company cannot absolve itself from liability to passengers on its depot grounds by reason of any contract with independent contractors. \[63\] In an action for negligence defendant may, under a general denial of liability, show that the injury was caused by the negligence of an independent contractor. \[64\] If defendant pleads that the injury was caused by the servants of an independent contractor, a replication by way of confession and avoidance must allege such additional facts as will defeat or obviate such defense. \[65\] Where injuries are shown to be due to the negligence of an independent contractor, the declaration of such contractor at the time of the injury is not admissible. \[66\] An independent contractor is liable to third persons for injuries resulting from his negligence, \[67\] and is not relieved from liability by the fact that his employer is also liable for negligence in relation to the same injury. \[68\] The employer is liable for an injury to a servant of the contractor resulting from his neglect to keep the place, \[69\] or the appliances upon which \[60\] the work is to be done, in proper condition and repair; and where the contract requires him to furnish and maintain the instruments for carrying on the work, he is liable for an injury to a servant of the contractor resulting from his neglect to keep such instruments in a safe condition. \[61\] The employer's servants are not fellow-servants of the contractors' servants, \[63\] and therefore the employer is liable where the negligence of his servants results in injury to a servant of the contractor, \[64\] But the employer is not liable for an injury to the servant of the contractor caused by the negligence of the servants of another contractor in his employ. \[65\] In an action for personal injuries by a servant, the burden is upon the defendant to prove that plaintiff was the servant of an independent contractor. \[66\] In such an action plaintiff's original petition alleging that he was in the employ of an independent contractor of defendant, is admissible in evidence in support of defendant's ple that plaintiff was in the service of an independent contractor. \[67\] Where a master directs his servant to aid in work upon which an independent contractor is employed, he is

1

**61. Contractor in employ of railroad, by** safe condition. William Cameron & Co. v. direction of engineer in charge of work, left left \[Team. Civ. App.\] 100 SWV 194.

**72.** Otis Steel Co. v. Wingle \[C. C. A\] 152

**62.** Otis V. Chleaga & N. P. M. Ec., 118

**73.** Otis Steel Co. v. Wingle \[C. C. A\] 152

**71.** App. 433.

**63.** Louisville & N. R. Co. v. Cheatham

**74.** Otis V. Cheatham

**75.** Otis V. Cheatham

**76.** Brown v. Rockwell City Canning Co., 128 Iowa, 631, 110 NWV 12.

**65.** Replication held not to allege such additional facts. Symons v. Road Directors for Allegancy County \[Md.\] 65 A 1067.

**66.** Symons v. Road Directors for Allegancy County \[Md.\] 65 A 1067.

**77.** Louisville & N. R. Co. v. Cheatham

**78.** Railroad company and contractor both liable for injuries to passenger falling into unguarded and unlighted excavation on depot grounds. Louisville & N. R. Co. v. Cheatham \[Team.\] 100 SWV 902.

**79.** Pooster v. National Steel Co., 216 Pa.

**79.** Smith v. Twin City Rapid Transit Co., 102 Minn. 4, 115 NWV 1001.

**71.** Injury resulting from employer's fall-ure to exercise reasonable care to keep delivery way for moving lumber in reasonably liable for injury to the servant resulting from the negligence of the contractor's servants.\[17\]

INDLIANS.

**SS 1. Who Are Indians and What is Their**

ture of Title, 54. Leases, 56. Actions\*\*

Legal Status, 51.\*\*

**SS 2. Federal and State Government of Indians and Their Habitat, 52.**

**SS 3. Tribal Government Subject to Federal**

**SS 4. Indian Lands and Properties, 52.**

**SS 5. Nations, 57.**

Matters common to public lands,\[78\] officers,\[78\] and contracts\[80\] are elsewhere treated.

**SS 1.**_Who are Indians and what is their legal status,\[85\]_

The power of congress over the matter of citizenship in the Five Civilized Tribes was plenary and it could adopt any reasonable means to ascertain who were entitled to its privileges.\[81\] It could authorize a review of the judgments of the United States courts of the Indian Territory in citizenship cases, although by the terms of prior legislation such judgments had become final.\[82\] In a test case in the Choctaw and Chickasaw citizenship court against ten persons in whose favor judgments of citizenship had been entered in the Indian Territory courts, one similarly situated, but not made a party to the proceeding, who does not transfer his case from the territorial to the citizenship court, is bound by the judgment in the latter court.\[83\] A regulation of the interior department making it essential to the validity of the adoption of one as a member of an Indian tribe that it be approved by the Indian office, is within the power of the department under the Federal statutes.\[84\] The manner of breaking off and recasting tribal affiliations depends upon the peculiar usages and customs of each particular tribe.\[85\] The Indian tribes have always been recognized as possessing so much of the qualities of national political independence as to enable them to make treaties with the Federal government.\[86\] This is especially so in respect of territory assigned to them as reservations.\[87\] Under the general allotment act\[88\] the allottees cease to be wards of the government so far as their personal acts and political status is concerned,\[88\] but the government may still protect their property rights in the lands allotted.\[90\] The Puehlo Indians of New Mexico are not wards of the government, nor are they in charge of an Indian superintendent or agent.\[91\] In New York any demand or right of action by an Indian, jurisdiction of which is not conferred upon a peacemaker's court, may be prosecuted and enforced in any court of the state.\[92\]

**77. Britt v. Carolina N. R. Co., 144 N. C. 1901, p. 262. United States v. Hitchcock, 205**

242, 56 SE 910. U. S. 80, 51 Law. Ed. 718, ag. 26 App. D. C. 290.

**78. See Public Lands, 8 C. L. 1486.**

**79. See Offhaers and Public Employes, 8 C. L. 1191.**

**80. See Public Contracts, 8 C. L. 1473. See, 80, United States, 8 C. L. 1473. See, 88, Act February 8, 1887, c. 119 (24 Stat. 388).**

**81. Wallace v. Adams, 204 U. S. 415, 51 Law Ed. 547, ag. 143 F 716.**

**82. Wallace v. Adams, 204 U. S. 415, 51 Law Ed. 647, ag. 143 F 716.**

**83. Fullace v. Adams, 204 U. S. 415, 51 Law Ed. 647, ag. 143 F 716.**

**84. U. S. Rev. St. 463, U. S. Comp. St.**

## 2 Federal and state government of Indians and their habitat

See 1. L. 180

Indians are subject to the general laws of the state in which they reside unless specially expected,93 and if any exception exists it must be shown.94 The North Carolina statute,95 requiring Indian children in a certain district to attend school, is not unconstitutional.96 It does not require that the children shall be sent to the Federal government school, but authorizes sending them to any other school.97 A state court has no jurisdiction of a controversy necessarily involving a determination of the title, and, incidentally, of right of possession of Indian allotments while the same are held in trust by the United States.98

## 3 Tribal government subject to Federal domination

See 8 C. L. 181

A marriage between members of a tribe in accordance with the law of the tribe is valid.98 Between June 38, 1898, and April 28, 1904, the courts of the Chickasaw nation had exclusive jurisdiction of all probate matters,1 but the United States courts had jurisdiction to determine whether a Chickasaw Indian could devise allotted lands.2 An attorney at law appointed by the principal chief of the Muskogee nation, under an act of the national council for a fixed period, to perform certain duties at a prescribed annual salary is not an officer of the nation but merely a servant.3 An officer of an Indian nation cannot be removed until the existence of a cause for removal has been determined after notice to the officer of the charges against him and an opportunity given him to be heard in his defense.

## 4 Indian lands and properties

See 8 C. L. 182

Where the language of a treaty with the Indians in regard to their lands is susceptible of more than one construction, it is to be construed in the sense in which they would naturally have understood it,5 but due regard must be had to the construction given the treaty by the officers charged with the supervision of Indians.8 Treaty stipulations apply to half-breeds as well as full-bloods, unless otherwise specially provided in the treaty.' A treaty between the United States and an Indian tribe in relation to territory assigned to the tribe as a reservation is subject to congressional revision and approval, and congress may amend such provisions as affect the United States or its subjects or entirely supersede them.8 If a conflict is alleged to exist between the treaty and the act of amendment, the courts will endeavor to give effect to both, but, if they cannot be reconciled, will give effect to the legislative amendment.9 The peculiar provisions of

no peaecmakers' court, is ousted from possession of land which she was holding in accordance with customs and practices recognized by tribe, she may see in state courts to recover possession. Peters v. Tallchief, 121 App. Div. 309, 106 NYS 64, rvg. 52 Misc. 617, 102 NYS 972.

83, 94 State v. Wolf \[N. C.\] 59 SE 40.

95. Laws 1905, p. 227, c. 213.

01. Not an excess of legislative power. Const. art, 9, 15. State v. Wolf \[N. C.\] 59 SE 40. Nor is it unconstitutional on ground that it is class legislation (Id.), or because it applies to only one locality or district (Id.).

01. State v. Wolf \[N. C.\] 59 SE 40.

01. McKay v. Kalston 204 U. S. 458, 51 Law. Ed. 566, rvg. 45 Or. 116, 14 F 491, 78 P 52; Parr v. U. S., 153 F 462. Neither by Act of August 15, 1894 (28 Stat. at L. 286, c. 290), nor by amendment of Feb. 6, 1901, (31 Stat. at L. 760, c. 217), was such jurisdiction conferred upon state courts. McKay v. Kalston, 244 U. S. 458, 51 Law. Ed. 566, rvg. 45 Or. 116, 74 F 491, 78 P 322.

01. Children of such marriage entitled to inherit as heirs of their father. Ortley v. Eoss \[Neb.\] 110 NW 892.

01. Cur. Law.

01. Act June 28, 1898, c. 517, 30 Stat. 495; Aet April 28, 1904, c. 1824, 33 Stat. 577.

01. Checkasaw court had jurisdiction of probate of will executed and offered for probate between such dates. Hayes v. Earringer \[Ind. T.\] 104 SVV 937.

01. Hayes v. Barringer \[Ind. T.\] 104 SVV 937.

01. Therefore, an action by such attorney against principal chief to recover salary and enjoin diversion of money appropriated for that purpose is not an action to try title to an office. Porter v. Murphy \[Ind. T.\] 104 SVV 658. The nation is not a necessary party to such suit. Id.

01. Porter v. Murphy \[Ind. T.\] 104 SVV 658.

5, 6. United States v. Moore. 154 F 712.

7. Smith v. Bonifer, 154 F 883.

1. Vadsworth v. Boysen \[C. C. A.\] 148 F 711.

1. Vadsworth v. Boysen \[C. C. A.\] 148 F 711.

1. Vadsworth v. Boysen \[C. C. A.\] 148 F 711. Agreement between United States and Shosh\* 10 Cur. Law. **INDIANS SS 4.** an act ratifying and amending an agreement with the Shoshone and Arapahoe Indians for the cessation of a portion of their lands has recently been interpreted by the courts.10 In recent years it has been the policy of the Federal government to bring about a gradual disintegration of the tribal relations among those Indians who have so far advanced in civilization as to make it expedient to do so, and in pursuance of this policy many treaties have been entered into and acts passed providing for the allotment of Indian land in severalty, what persons are entitled to allotment,11 and when their titles vest,12 are questions that must generally be determined from the terms of the treaty, or statute. The right to the allotment of a particular tract is in him who made the prior selection and who was in possession at the time of the allotment.18 The decision of the secretary of the interior as to whether one is a member of an Indian tribe and as such entitled to an allotment of tribal land is final.14 Statutory provision was made for the sale of such portions of the lands allotted to the Puyallup Indians as were not required for homes upon the written consent of the allottes.15 Under the agreement between the United States and the Creek tribe as ratified by act of congress,16 the decision of the secretary of the interior upon the question whether the present needs and the reasonable prospective growth of a town requires that certain lands shall be included in the town site is controlling, in the absence of a clear, unequivocal, and convincing showing that it is wrong and was induced by fraud or imposition.17 A conveyance of the exclusive right to select certain land as an allotment and to obtain a patent therefor is a conveyance of an interest in real estate greater than a lease for a year, and must, under the statute of frauds, be in writing.18 What passes by a grant of Indian lands must be determined, as in the case of other grants, from the terms of the conveyance.19

locate a certain number of acres of cededed lands, were lands and to pay cash therefor at a certain married, Allotments not having yet been made. Subsequently each by separate application applied for a different allotment, but trust patent was by mistake made out right upon surrender of lease to locate and both selections. It was held that marriage coded lands, did not confine such location and mistake in patent did not deprive wife to lands situated within boundaries of origin was issued, and that she was entitled to 148 F 771.

11 Under allotment act March 3, 1885, c. 218, 23 Stat. 340, purtaining to Umatilla reservation, members of confederated tribes of Valla Wallas, Cavusese, and Umatillas entitled to allotments, though not at time residing on reservation. Smith v. Bonifer, 154 F 883. Under this act construed in con-acrement

## 54 Indians $ 4.

An action to enjoin an Indian agent from obstructing plaintiff in selecting coal lands on reservation, as authorized by act of congress, is not a suit against the United States but one against an individual wrongdoer of which the courts have jurisdiction.\[20\]

\_Nature of title,See s c. L. 184.\_The United States holds the legal title to an Indian reservation in trust for the Indians thereon,\[21\] and is entitled to the continued flow of the waters of a public stream on which the reservation borders, so far as may be necessary for the beneficial use of the property.\[22\] Surplus waters in excess of such needs are subject to diversion and appropriation by any person entitled to the benefit thereof under local laws and customs and acts of congress pertaining thereto.\[23\] An Indian in the Indian Territory might before allotment dispose of his holdings to another Indian in order that he might select his allotment in other lands.\[24\] Although in allotting reservation lands among certain tribes the allottees have been given an immediate fee simple title with right of alienation,\[25\] the Federal allotment acts generally provide that the land allotted shall not be alienated until the expiration of a prescribed period after allotment. In the interim the government holds the lands in trust for the sole use and benefit of the allottee or his heirs,\[26\] and an attempted conveyance or contract to convey by the allottee \[27\] or his heir \[28\] is void, and such contract cannot be specifically enforced.\[29\] The restraint upon alienation does not, however, preclude an allottee from cutting timber for sale.\[30\] An allottee cannot during the period of restriction devise his allotment.\[31\] A judgment rendered during such period

occupancy and improvements, equivalent to loted and period of restrictions upon alienation has expired, one not an Indian citizen land \[Ind. T.\] 104 SUV 874.

20. And this though agent pretends to be lends. Kelly v. Harper \[Ind. T.\] 104 SUV 839.

Ludler these acts, agreement between white v. Boysen \[C. C. A.\] 148 F71.

21. En. United States v. Conrad Inv. Co.,

LIGO to procure title to Indian lands in 156 F 123.

What amount of water is or will eventually be necessary for this purpose?

longe is for the government, in its adminis-

eliminateh were removed to convey to white

23. United States v. Conrad Inv. Co., 156 F

01. Under acts of congress relating to pub. v. Brown \[Ind. T.\] 104 SUV 877. Money paid

lic lands, an irrigation company may divert a such surplus waters, and as incident to

argement cannot be recovered back. Id. right may extend a dam to bank of stream

bordering reservation. Id. Approval by

Act March 1, 1901, c. 67, $ 31 Stat. 863;

secretary of interior of survey and plat of

irrigation canal does not esto government

from objecting to amount of water such

canal will divert from stream. Id.

24. Thomson V. Hcalangill \[Ind. T.\] 103

svv 565. Indian holding land in excess of

\[Ind. T.\] 104 SUV 826.

that allowed by Curtis bill, Act June 28, 1988, c. 517, $ 16, 11, $ 17, $ 504, 502, might make

valid sale thereof within nine months after

passage of bill. Id.

\*5. Under the treaty of 1883 with chiefs

Moses and Sar-Sarp-Kin, of Columbia reservation, and Act of July 4, 1884 (23 Stat. 79,

c. 180), ratifying it, each of family or

male adult acquired fee simple title with right of alienation to land allotted him.

United States v. Moore, 154 F 712.

26. Under general allotment act, Act Feb. 8, 1887, c. 119, $ (24 Stat. 358), government

so holds lands for 25 years after allotment

Beall v. Graham \[Kan.\] 88 F 545.

27. Under general allotment act, Act Feb. 8, 1887, c. 119, 24 Stat. 388, a conveyance by

allotted within 25 years from the time of

the allotted in the support of the United States v. Police

Dooley, 151 F 67.

Under Act June 28, 1888, c. 517, $ 29, 30 Stat. 607, and Act July 1, 1982, c. 1362, 32 Stat. 642, until land has been al-

28. Under Act March 2, 1895, c. 188 (28 Stat. 907), and patents issued in pursuance

thereof, bel of allotted cannot alien land

within 25 years after date of patent. Good-

rum v. Brudfa \[Ind. T.\] 104 SUV 8942.

29. Sayver v. Brown \[Ind. T.\] 104 SUV 877:

Harris v. Hardridge \[Ind. T.\] 104 SUV 826.

30. Indian allottes under Stockbridge and

Munsese treaty of 1856 (11 Stat. at L. 663), and Act of Congress of 1871 (16 Stat. at against an adult hair of an allotee is not a lion upon his inherited lands situated in the county where the judgment is rendered."2 The homesetead of an Indian differs in no particular from the remainder of his allotment, called the "surplus," except in the length of time it is made inalienable."8 An attempted conveyance by a citizen of the Creek nation before the expiration of period of restriction is not susceptible of ratification, and no rule of estoppel will prevent the assertion of its invalidity, and this whether it be of the homesetead or of the surplus."4 An illegal contract of sale of Indian lands is not rendered legal by a subsequent statute removing restrictions on sale of such lands."5 An Indian to whom an allotment has been made in the manner required by the New York statutes acquires a substantial right in the land allotted entitling him to the exclusive possession thereof,"36 and the right to convey "7 or devise it."8 The United States may maintain an action on behalf of an allotee to set aside a conveyance made before the expiration of the period during which alienation is prohibited, and to enjoin the grantee from occupying the premises or asserting any claim thereto adverse to the allotee,"8 but it cannot maintain an action to recover the value of timber removed from the land by a purchaser thereof."8 In an action to determine the validity of deeds conveying allotted lands, a judgment that the grantor had complete right to convey the lands, "to the extent of his interest therein" is only a finding that he could convey such title as was permitted by law to be conveyed."1 The illegitimate children of an allotee are his or her heirs for the purpose of inheriting the lands allotted,"2 and by express statutory provision the children of the marriage between a white man and an Indian woman who is recognized by her tribe are entitled to allotents in the distribution of the tribal property."3 Where an Indian to whom reservation lands have been allotted, under the lottment act, Act Feb. 8, 1887, c. 119, 24 Stat.

10. Laws 1854, p. 369, c. 175, $ 1: Laws 1882, 388. In re House's Helirs (VWs.) 112 NW7 27.

01. D1575, 1596, e. 679, $ 7, 90. Peters v. Tall-

01. Paul v. Graham \[Kat.\] 88 P 543.

01. Act July 1, 1902, c. 1362, $2 Stat. 641.

01. Laws 1892, p. 1574, c. 679, $ 2. Peters

Hayes v. Barringer \[Ind. T.\] 104 SWV 937.

44. The homesetead allotment cannot be eliminated by allotee until expiration of twenty-one years from date of allotment, if he live that is entitled to possession as against daughter long. Id. A devise of an allotment in Choctaw and Chickasaw nations, whether it be to convey fee of what is termed a "home-stead" or the "surplus," if executed during period when land is declared inalienable, is void. Id.

01. Act June 30, 1902, c. 1923, $ 16, $2 Stat.

01. Alfrey v. Colbert \[Ind. T.\] 104 SWV 638.

01. Aceri April 21, 1904, c. 1402, 33 Stat. 204, removing restrictions upon alienation by allotees who are not of Indian blood, expressly excepted minors. Therefore, fact that minor induced purchase of his allotment by misrepresenting his age will not es-top him from asserting invalidity of sale and having conveyance canceled. Id. But in such case vendees are entitled to recover back money paid by them for land. Id. Transaction held not an original conveyance but an attempted ratification after reaching majority of sale made during minority, and therefore void under statute. Id.

01. Act April 21, 1904, c. 1403, $ Stat. 204, removing restrictions upon sale of lands other than homesetads by persons not of Indian blood, did not validate prior contract of sale by intermarried citizen of Chickasaw nation. Sayer v. Brown \[Ind. T.\] 104 SWV 877. Or prior contract by a Creek freedom. Harris v. Hardridge \[Ind. T.\] 104 SWV 826.

01. Laws 1854, p. 369, c. 175, $ 1: Laws 1882, 388. In re House's Helirs (VWs.) 112 NW7 27.

01. In re House's Helirs (VWs.) 112 NW7 27.

01. Bell v. Graham \[Kat.\] 88 P 543.

01. Bell v. Graham \[Kat.\] 88 P 543.

01. Bell v. Graham \[Kat.\] 88 P 543.

01. Bell v. Graham \[Kat.\] 88 P 543.

01. Act July 1, 1902, c. 1362, $2 Stat. 641.

01. The homesetead allotment cannot be eliminated by allotee until expiration of twenty-one years from date of allotment, if he live that is entitled to possession as against daughter long. Id. A devise of an allotment in choctaw and Chickasaw nations, whether it be to convey fee of what is termed a "home-stead" or the "surplus," if executed during period when land is declared inalienable, is void. Id.

01. Act June 30,

- 56 **INDLIANS SS 4.** 10 Cur. Law.

act of 1887,44 dies, the right of his widow to dower is governed by the laws of the state in which the lands are situated.45 The husband of a deceased Indian woman who was an allotlee of land upon the Umatilla reservation, is entitled to curtesy in his wife's allotment.46 Where a trust patent was issued to an Indian for land previously allotted to him and his wife, the question whether the wife upon obtaining a divorce solely on account of his faults is equitally entitled to some share in the property is one solely within the jurisdiction of the court granting the divorce.47

10 Cur. Law. INDICMENT AND PROSCUITION

complaint must state facts showing that plaintiff is entitled to recover. \[49\] Plaintiff's failure to deny allegations in the answer showing that she is not entitled to recover is an admission and will preclude recovery. \[50\]

SS 5. \_Rights and liabilities of others in Indian country dealing with Indians.\_See 5 C. L. 1780

SS 6. \_Crimes and offenses by and relating to Indians.\_See 6 C. L. 1780

It is a penal offense to sell or give intoxiants to any Indian who is a ward of the government or whose land is held in trust by the government, \[49\] and it is a crime to order intoxicating liquor from without the Indian Territory and receive it within the territory. \[61\] Under a Federal statute \[62\] it is a criminal offense for a clerk in the office of the commissioner of the Five Civilized tribes, \[49\] having the custody of a record deposited in the office of the commissioner, \[50\] to fraudulently withdraw it with intent to make a copy of it. \[63\] Cherokee Indians residing in North Carolina are subject to its criminal laws, \[64\] and it is a criminal offense for such Indians in a certain district to withhold their children from school. \[65\] When an Indian is prosecuted for a crime, as the jury may entertain racial prejudice against him the court should be especially careful to observe the rules of evidence. \[66\] The conviction and imprisonment of an Indian agent for malfeasance in office is not a bar to an action on his bond. \[67\]

SS 7. \_Indian depredations.\_See 8 C. L. 188

## 8. **Indicment and prosecution.**

SS 1. Limitation of Time to Institute. SS. D. Issues, Proof, and Variance, 77. Names, 78. Time, 79.

SS 2. Jurisdiction, 59. E. Defects, Defenses, and Objections, 79. Venne, 61. F. Joinder, Separation, and Election, 81. G. Amendments, 84. A. Necessity of Indicment, 64. H. Conviction of Lesser Degrees and Included Offenses, 85. J. Arrangement and Plea, 86. Pleas in Abatement and Special Pleas, 87. causation, 68. Certainty, 70. Bad SS 6. Preparation For, and Matters Preliminaries and Ungrammatical Conror to, Trial 90. Right to Speedy Struction, 71. Surplusage, 71. Venne, 72. Intentor Knowledge 72. Time, 72. Tension of Perks, 72. Setting 7. Postopement of Trial, 94. Youth Written or Printed Matter, 88. D sciones of Gulf, 106. Other Offenses, Convrietions, and Acqutitals, 107. Character and Reputation, 110.

- 11. New Trial, Arrest of Judgment, and Refenses, Convrietions, and Acqutitals, 107. Character and Reputation, 110.
- 12. Sentence and Judgment, 134.
- 13. Record or Minutes and Commitment, 140.
- 14. Corke, 119.
- 15. New Trial, Arrest of Judgment, and Refenses, Convrietions, and Acqutitals, 107. Character and Reputation, 110.

trolled,"." depend upon the terms of the statute and the nature of the offense. Limitations are not suspended by commencement of a prosecution unless the offense for which the prosecution was instituted is the same as that for which defendant is presently prosecuted."

## 8 2. Jurisdiction

The power and jurisdiction of committing magistrates," the jurisdiction of municipal and other inferior courts, and whether the same is exclusive," must be determined by reference to the statutes creating and fixing the powers of such courts," the measure of jurisdiction being usually the nature and gravity of the offense and the penalty imposed.".".

- \[leftmargin=0.5cm\]
- The date of the commission of the offense determines the question of limitations in forgery, the date of instrument forged is immaterial. People v. McPherson \[Cal.\]
- A. App. j 91 P 1098. Limitations do not run against conspiracy until commission of an overt act. United States v. Bradford, 148 F premises. Read v. Shipley, S1 Ky. L. R. 1255, 413. Limitations run against indictment for conspiracy from the time of the last overt act. Cooke v. People \[Ill.\] 82 NE 863; United States v. Brace, 149 F 874. A prosecution for a conspiracy on an overt act intervenuder is barred in three years after such overse. State v. Ayers \[Or.\] 84 P 653. U. S. \[C. C. A.\] 154 F 577. Evidence insulment to show that an overt act had been committed within three years. Id.
- To constitute a "person fleeding from justice" so as to toll limitations under Rev. St. 1 646, it is not necessary that he should have left the United States, but only that he has left the district under circumstances indicating that he intended to evade authority. Greene v. U. S., 154 F 401.
- King v. State \[Ala.\] 44 S 200.
- A. committing magistrate has in general only such jurisdiction as is given him by statute. Harris v. Rolelette County \[Ind.\] 112 NNV 971. A justice of the peace has no authority under Revised Codes to appoint counsel to defend accused brought before him for preliminary hearing. Id. Pre-liminary hearing is not a trial within Rev. Code 1905, $ 10216. Id. Under the statutes of California a justice of the peace exercises.
- The power and jurisdiction of committing papers of a magistrate has equal authority with magistrates, and, on examinantion of one charged with grand laremy, if he determines that the crime has not been committed, he must discharge him. People v. Swain \[Cal. App.\] 90 P 720. In Nebraska a county court or judge has the same powers and jurisdiction in criminal matters as a justice of the peace, and may entertain a complaint, issue a warrant, conduct the preliminary hearing in a case where the offense is beyond his jurisdiction, and may hold defendant to ball for his appearance in the district court. Stetter v. State \[Neb.\] 110 NNV 761. Upon complaint duty made, the district court may sit as examining magistrate to try whether the crime has been committed and whether there is probable cause to believe that defendant committed it. Cooke v. State \[Neb.\] 113 NNV 532. Clerk of circuit court and ex offlio clerk of the county court of Shelby county, Alabama, has authority to take the afflavit of the prosecutor in prosecution under Liquor Law (Ats 186-97, p. 124, $ 3), regulating trial of misdemeanors in that county. Roland v. State, 147 Ala. 149, 41 S 963. An afflavit on which a prosecution was based being lost, county the record of the preliminary hearing of certain persons jointly charged with others does not deprive the magistrate of jurisdiction on a subsequent hearing of another.\[54\] The jurisdiction of municipal courts is usually restricted to offenses committed within the limits of the corporation.\[85\]

No warrant of arrest is necessary to give jurisdiction where one arrested without warrant is before the court." Where an accusation charges an offense within the jurisdiction of the court, an insufficient accusation of a second offense, beyond the jurisdiction of the court, will not deprive it of jurisdiction of the offense which is properly charged.\[87\]

A court which has jurisdiction of an offense is not deprived thereof merely because like jurisdiction is conferred upon another court.\[88\] A continuing crime consisting of a continuing act or series of acts set on foot by a single impulse and operated by an intermittent force, which runs through several jurisdictions, is committed and cognizable in each.\[89\]

States are commonly given concurrent jurisdiction over offenses committed upon navigable waters lying between them.\[90\] In homicide cases, courts of the state in which the homicidal act was committed have jurisdiction though death occurred in another state.\[91\] Under the statutes of Tennessee, where a principal felon is not subject to the jurisdiction of the courts of the state, an accessory before the fact cannot be prosecuted therein.\[92\]

Federal courts have jurisdiction of offenses committed on lands granted by a state to the United States, jurisdiction over which has been ceded to the United States.\[93\] A United States district court has jurisdiction over an offense against Federal laws \[94\] committed within the district,\[95\] and of offenses committed on board

turbing public worship, the fact that one jurisdiction under the penal code which of the witnesses was struck by a plank does not show use of weapons so as to make the v. U. S. \[C. C. A.\] 155 F 48.

offense one beyond the jurisdiction of a ma- gistrate. State v. Jones \[S. C.\] 88 SE.

The district court of the parish of New Orleans is without juvenile jurisdiction. In re Parker, 118 La. 471, 43 S 48. In Kansas

so, Under Act Cong. March 6, 1820, c. 22, the district court has no jurisdiction over a defendant under 16 years of age except to transfer the cause to the juvenile court. State v. Dunn \[Kan.\] 90 P 231.

of one who in Kentucky went on a boat and

84. State v. Pratt \[S. D.\] 112 N NV 152.

01. The municipal court of Chicago has no jurisdiction outside the city limits. People v. Strassheim, 228 Ill, 581, 81 NE 1129.

Under 2 Rev. St. 1899, art. 18, $ 13, the St. Louis court of criminal correction has no jurisdiction to try misdemeanors committed outside the limits of the city. State v. Anderson, 191 Mo. 134, 90 SVP 95.

86. People v. Markowitz, 104 NYS 872. Acused being properly before the court, it was immaterial to the court's power to try him that several terms of court had passed since the issuance of the warrant and that the warrant was functions officio. Roland v. State, 147 Ala. 149, 41 S 963.

01. Fountain v. Fitzgerald \[Ga. App.\] 68 SE

01.

01. Act April 28, 1904, c. 1778, conferring jurisdiction upon municipalities to punish certain acts, does not affect the jurisdiction of the district court over the same acts, which are made offenses by Carter's Alaska Code, 30 Stat, 1253. Rosencranz v. U. S. \[C. C. A.\] 155 F 38. An ordinance prohibiting gambling, enacted by a town under 33 Stat 529, does not deprive the district court of an American vessel on the high seas."4 A Federal court has no jurisdiction of a habeas corpus proceeding to discharge a state prisoner where the only question involved is as to his identity." A Federal district court has jurisdiction at a special term to try an indictment returned at a general term."5 The Federal district court of Indian Territory was held to have jurisdiction of a homicide by one not a member of an Indian nation, one of the two men killed being an Indian and the other a citizen of the United States."5

\_Transfer.\_56e 8 C. L. 191--Status usually govern the transfer of causes from one court to another,1 and procedure.2 Where the court to which a change of venue is erroneously taken retransfers the cause to the court from whence it came, the latter acquires jurisdiction.3 In Georgia, if the evidence in a trial in a city court shows defendant to be guilty of an offense of which the court has no jurisdiction, a new trial should be granted and defendant held to await the action of the grand jury."

Footnote 10: Cur. Law. INDICEMENT AND PRORECTION SS 3.

Footnote 11: The author is grateful to the author.

Footnote 12: The author is grateful to the author.

Footnote 13: The author is grateful to the author.

Footnote 14: The author is grateful to the author.

Change of venueSee S C. L. 191.--The right to a change of venue 11 and the power to grant it 12 being statutory, statutory requirements as to procedure should be complied with 13 In Missouri, where the prosecuting attorney appears at the hearing on an application for change of venue and offers proof, the application will not be denied for want of notice 14 In Alabama a motion for change of venue which only alleges that a fair trial cannot be had, without setting out facts to sustain the allegation, is demurrable 15 In some jurisdictions it is held that an application for a change of venue upon a statutory ground and in the proper form should be granted 16

en route may be prosecuted in any county through which the car passes, violates Const. art. 6, $ 27, giving right to jury trial in the county where offense was committed. People v. Brock. 149 Mich. 464, 14 Det. Leg. N. 506, 112 NW 1116.

7. Where deceased was fatally wounded in one county and died next day in another, defendant was properly prosecuted in the latter county. Britton v. Com., 29 Ky. L. R. 857, 96 SW 556.

1. Ann. St. 1906, p. 1471, provides that where it appears before verdict or judgment that prosecution is in wrong county the court may order the case transferred, held not error to refuse to transfer where it appeared that theft was committed in the county though the goods were first seen in possession of defendant in another county. State v. Grubb, 201 Mo. 585, 99 SW 1083.

1. Under Code 1906, $ 1404, where a cashier of a Mississippi bank appropriated its funds on deposit in another state by means of checks, one drawn in such other state and the other in Mississippi, he was chargeable with embersizent in Mississippi, Richard Werger v. State \[Miss.\] 44 S 772.

1. Where two persons embeszled property and placed it on a train in one county to be shipped through another to its destination, and one codefendant accompanied the property, held the venue for trial of one remaining could be laid in county through which property was shipped. Burk v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 582, 95 SW 1064. Under Rev. Code Cr. Proc. 8 72, that where crime is committed partly in one county and partly in another, jurisdiction is in either, defendant in embeszlement case may be tried in county in which he received and was to return property, though he took it into another county. State v. Allen \[LS. D\] 110 NVP 89. Under Acts 28 Leg. p. F94, providing that court in which indictment is filed shall retain jurisdiction, and Code Cr. Proc. 1895, arts. 238, 240, providing that one who steas or embeszles may be prosecuted in county w.rere he takes the property, the court in the county first indicting acquires jurisdiction, and courts of another county are deprived of jurisdiction if defendant asserts his right to be tried there. Pearce v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 44, 98 SW 861. The venue of embeszlement is the county where the act by which the money was converted or secreted was done. Knight v. State \[Ala.\] 44 S 585. The mere forming of an intent is insufficient. Id.

1. State v. Barrington, 198 Mo. 23, 95 SW 235. Change can be granted only on application of accused. Miller v. People, 230 Ill. 65, 82 NE 521.

1. Fitzgerald v. Com., 30 Ky. L. R. 348, 98 SW 319.

1. Notice: Accused asked for time to prepare an application for a continuance but instead prepared a motion for a change of venue. Change of venue properly denied. State v. Davis, 203 Mo. 616, 102 SW 528. Motion for change of venue not supported by withdraws of two compurgators properly denied.

1. State v. Barrington, 201 Mo. 585, 99 SW 319.

1. Notice: Accused asked for time to prepare an application for a continuance but instead prepared a motion for a change of venue. Change of venue properly denied. State v. Davis, 203 Mo. 616, 102 SW 528. Motion for change of venue not supported by withdraws of two compurgators properly denied. Turner v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 35, 89 SW 975. Acused filed an afflavit for change of venue stating he could not obtain a fair trial and that he was unable to procure compurgators. There were .creditbile witnesses who would have made a afflavit had the facts warranted it, and the judge told accused's attorneys they could sign but they declined. Held not error to refuse change of venue. Johnson v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 244, 1083.

1. Under Code 1906, $ 1404, where a cashier of a Mississippi bank appropriated its funds on deposit in another state by means of checks, one drawn in such other state and the other in Mississippi, he was chargeable with embersizent in Mississippi. Richberry v. State \[Miss.\] 44 S 772.

1. Where two persons embeszled property and placed it on a train in one county to be shipped through another to its destination, and one codefendant accompanied the property, held the venue for trial of one remaining could be laid in county through which property was shipped. Burk v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep.

in others it is held that it may be denied though a prima facie case is made, where the application is found, upon investigation, not to be sustained by the facts.17 Thus, it is held that the decision of a trial judge upon an application for change of venue will not be disturbed on appeal unless it amounts to an abuse of discretion or is based upon a ground not authorized by statute,18 and the same rule applies to the selection of the county to which the case is to be sent, in case a change is ordered.19 The presumption is in favor of the propriety of the action of the trial court.20 An application on the ground of prejudice is properly denied where it does not appear that accused will be deprived of a fair and impartial trial,21 but should be granted if such a trial cannot be had.22 Accused will not be heard to complain of a denial of change where he did not exhaust his peremptory challenges.28 Error in denying a change is not cured by summoning a jury from another county.24 Where the court has jurisdiction of the subject-matter, a motion for a change of venue on the ground that accused cannot have a fair and impartial trial is waived by going to trial upon the merits.28 In Kentucky, where the commonwealth's attorney has filed a statement showing the existence of lawlessness in the county and has moved for a change of venue, he will not be permitted to withdraw such statement,29 and where fact of lawlessness in the county is personally known to the judge, and also shown by statement of the commonwealth's attorney, no further showing is necessary.27 Where an application for a change of venue refers in terms to but one of several defendant's, but is treated as applying to all, and the reason for the change applies alike to all the cases, a change of all the cases will not be disturbed.28 An order denying a change may, in Kentucky, be subsequently set aside when the proper showing is made.29 Where, in Missouri, a change is granted for each of the cases, and the reason for the change is made.29 Where, in Missouri, a change is granted for each of the cases, and the reason for the change is made.

prejudice of the judge, defendant is not prejudiced by the fact that the case is set by such judge in the presence of the judge who is to try the case.30 On an application for the removal of a Federal prisoner from the district where he is found to the district of the indictment, the removing judge must pass on the validity of the indictment and deny the application if the indictment is bad.31 The filing of a certified copy of the indictment makes a prima facie case in such cases which is not overcome by the bare denial of the defendant.32

SS 4. \_Indictment and information. A. Necessity of indictment.\_See 8 C. L. 192. Whether the prosecution shall be instituted by rule,33 by affidavit,34 by information,35 or by indictment,36 depends upon the constitutional and statutory provisions of the particular jurisdiction governing the procedure therein. A written accusation of some kind is essential.37 The amendment to the constitution of the United States providing that no person can be held to answer for a capital or otherwise infamous offense, unless on a presentment, or indictment of a grand jury,38 applies only in the Federal courts and not in the state courts, but it is not repugnant to the Kansas statutes providing for the trial of capital and infamous crimes upon presentment by information based upon a preliminary examination.39

(SS 4) \_B. Finding and filing and formal requisites.\_See 8 C. L. 192.\_The formal requisites of the preliminary accusation vary in different jurisdictions.40

warrant such change it may set aside an order denying it and grant application though statute provides that only one change shall be permitted. Flecher v. Com., 30 Ky. L. R. 600, 99 SW 328. Under 29 Ky. L. R. 955, 96 SW 855. 114, 2257, prosecutions where fine-direction is less than $100 or imprisonment not more that 40 days may be by information. Ball change shall be permitted. Flecher v. Com., 30 Ky. L. R. 600, 99 SW 328. Under 29 Ky. L. R. 955, 96 SW 855. 114, and the fifth amendment of Federal constitution, offenses not punishable by imprisonment in the penentikary are not infamous and may be prosecuted by information. 114, and the fourth shall set the case for trial and notify some other judge to try it. State v. Church, 199 Mo. 605, 98 SW 16. 114. 2257, prosecutions where fine-direction is less than $100 or imprisonment not more that 40 days may be by information. Ball change shall be permitted. Flecher v. Com., 30 Ky. L. R. 600, 99 SW 328. Under 29 Ky. L. R. 955, 96 SW 855. 114, and the fifth amendment of Federal constitution, offenses not punishable by imprisonment in the penentikary are not infamous and may be prosecuted by information. 114, and the fourth shall set the case for trial and notify some other judge to try it. State v. Church, 199 Mo. 605, 98 SW 16. 114. 2257, prosecutions where fine-direction is less than $100 or imprisonment not more that 40 days may be by information. Ball change shall be permitted. Flecher v. Com., 30 Ky. L. R. 600, 99 SW 328. Under 29 Ky. L. R. 955, 96 SW 855. 114, and the fifth amendment of Federal constitution, offenses not punishable by imprisonment.

### 10 Cur. Law. INDICMENT AND PRONECUTION SS 4B.

\_Indictment.\_See s C. L. 199.-In Pennsylvania the district attorney may in his discretion for exceptional cause prefer a bill without a previous binding over of accused. \[41\] Decisions dealing with the endorsement \[42\] and signing \[43\] of the indictment, the caption thereof, \[44\] and the introductory and concluding portions of the accusation, \[45\] and separate counts thereof, \[46\] are given in the notes. The indictment should show that the grand jurors were properly summoned, impaneled, and sworn. \[47\] The return should be made to the proper court. \[48\] An error in the file mark may be

committed it, held sufficiently complied with

ties and court, the crime, and that it was

People v. Blanchino \[Cal. App.\] 91 P 112.

Complain under ordinance referring there

by title, number and date of approval, with-

out setting same out either in full or in legal

effect, held sufficient. Nichols v. Salem \[Or.\]

cutions to be carried on in name of state.

89 P 804.

At. Exercise of discretion will not ordinance

rily be reviewed. Commonwealth v. Sharp-

less, 31 Pa. Super. Ct. 96

42. Under Acts 1905. p. 609, c. 169, an in-

idemt must be endorsed by the foreman

of the grand jury. Cole v. State \[Ind.\] 82

NE 796. County attorney need not endorse

his name on indictment. Nelson v. State

\[Tex. Cr. App.\] 19 Tex. Ct. Rep. 140, 101 SWV

1012. Failure of foreman of grand jury to

sign certificate on back of bill that "wit-

nesses marked "X" had been sworn and ex-

amined is cured by Revalsal 1905, 8254, cur-

195. Mar 549, 1905.

ing informalities in indictments. State v.

Long, 143 N. C. 670, 57 SE 349. Want of the us-

ual memorandum on the back of an indictment, "a true bill" signed by the foreman of

the grand jury, does not vitiate the indictment. State v. Grove, 61 W. Va. 697, 87 SE 296. Rev. St. 1899, 82517, requiring names of

witnesses to be indorsed on indictment, does

net impose such duty on prosecuting attorney, and it will be presumed that the

names were so indorsed by the grand jury,

and a plea in abatement that they were

omitted by the prosecuting attorney in or-

der to surprise accused presents no issue

for the jury. State v. Barrington, 198 Mo.

28, 95 SWV 235. Where the names of a large

number of witnesses were so indorsed, a plea in abatement on such ground was

prepared overruled. Id. Mansf. Ark. Dig. & 2103,

providing that names of witnesses must be

on an indictment, is in force in Indian Terriory, and Rev. St. U. S. & 1033, requiring

in indictment and names of all witnesses to be

delivered to accused two days before trial,

is not in force and not applicable. Leftridge

v. U. S., 6 Ind. T. 305, 97 SVV 1018.

43. Under Code, 8251, indictment need

not be signed by county attorney. State v.

Mathews, 133 Iowa, 398, 109 NWV 616. Proper

for deputy to sign county attorneys name

to indictment under Code, 803. Id. That

foreman of grand jury signed "foreman"

"grand jurors for Falls county," it was not

and prosecuting attorney signed "prosecut-

therefore for failing to show the grand

ing attorney" (names being signed), the

idemt was not defective for failing to

show their official character, the county

being otherwise shown. State v. Glison,

114 Mo. App. 652, 98 SVV 400. As it is not

essential that indictment have the name

presiding judge of the court in which the

of the grand jury at the bottom, it was

inmmaterial that prosecuting attorney added

idemt after trial began. James v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 885, 106 SVV 179.

http://www.

corrected by the clerk under the direction of the court.49 The presumption is in favor of the regularity of the proceedings,50 and usually prevails when recitals in the record show compliance with the law.51 The findings on different counts submitted should not be contradictory.52 An indictment against several persons, described in the order, noting the finding and return thereof as an indictment against one of such persons is good as against the person named in the order.53 An indictment is not invalidated by the fact that specially employed counsel examined witnesses before the grand jury,54 nor by the admission of incompetent evidence,55 nor by failure of the grand jury to appoint a foreman.56 It is proper to employ an interpreter in examining witnesses in the grand jury room.57 In Iowa the grand juror may act and return a verdict on the minutes of the proceedings before the committing magazine.58 In Arkansas a grand jury may take up a charge which has been dismissed and return an indictment of its own motion.59 In Louisiana nine jurors may find a bill,50 in Arkansas twelve are necessary.51

information is not vitiated because of misstatement of the term of its presentation."5 A legal complaint is in some states essential to the validity of an information by the county attorney."6 The preliminary complaint and the information must charge the same offense.67 Different colonies need not be stated in separate counts of the complaint and warrant on which the information is based, though stated in separate counts of the information.68 In some states affidavits on which the information is based must be filed with the information.69 Such affidavits should be properly acknowledged." Where an affidavit is filed and referred to in the information, verification by the prosecuting officer may not be necessary.71 In New York a district attorney may file an information for any offense disclosed by the return of a magistrate.72

ginia it is not necessary that the record show that the finding was recorded in the circuit court; it is sufficient that the presentment be set forth in extenso in the order of the court, entered of record, and made a part thereof.\[13\]

\_Affidavits.--\_Where prosecution is by affidavit, the statutory requirements as to form should be observed.\[74\] In Alabama a variance between the warrant and affidavit is immaterial.\[75\]

(SS 4) _C. Requisites and sufficiency of the accusation. General rules.See & C. L._

\[194\]--A conviction can only be permitted to stand when it is predicated upon an rule that an indictment in the language of the statute is sufficient applies only where all facts constituting the offense are set forth in the statute.\[44\] Thus, where the language of a statute is such that the acts therein stated may or may not constitute a crime, according to the intent with which they are done or the circumstances, the particular intent or circumstances must be alleged.\[85\] It is held in Kentucky that the words of the statute or equivalent words should be used in charging a statutory offense, and that common-law forms should be followed in charging common-law offenses.\[86\] The words of a statute defining crime, used in an indictment, are to be construed according to their ordinary significance and in connection with the context.\[87\]

In determining the sufficiency of an indictment or information, technical accuracy must yield to the fair and obvious meaning of the language employed,\[88\] and mere technicalities not affecting the substantial rights of accused should be ignored.\[89\] The offense charged must be determined from the indictment unaided by intendment or by construction supplying an omission.\[90\] Ambiguity and uncertainty in an indictment are taken most strongly against the pleader.\[91\] The indictment will not be held bad for failure to allege facts necessarily implied from those stated.\[92\] The facts constituting the offense must be affirmatively averred and not introduced by way of recital.\[88\] The allegations should not be repugnant \*\* nor contradictory.\[85\] If a statement laid under the videlicit is material and enters into the substance of the description of the offense and is inconsistent with the premises, the indictment is void.\[90\] While each count of an indictment must in the charging part distinctly charge an offense, this rule has no reference to formal allegations which may be sup-

the facts that it may determine their sum-

S9. Enough if accused is fatiy apprised

ciency in law. Geist v. U. S., 26 App. D. C.

of the charge against him. State v. Swan,

594.

31 Utah, 386, 88 P 12.

88. An indictment is sufficient which

01. State v. Von Kutzleben \[Iowa\] 113 NVW

states the offense in the language of the

484.

statute or so plainly that the nature of the

601. Terre Haute Brew. Co. v. State \[Ind.\]

offense may be easily understood by the

82 NNE 81. An indictment alleging that the

jury. Anderson v. State \[Ga. App.\] 58 SE

offense was committed in Cook County,

401.

001. State v. Harroun, 199 Mo. 519, 88 SW

mitted within the limits of Chicago, it is

467. An information in the language of the

presumed that it was committed outside such

statute is sufficient only when the words

thereof set forth the elements of the offense and state the facts thereof. McGinnis

282 NNE 81.

81 NNE 112.

v. State \[IVyo.\] 91 P 986. An indictment

charging a physician with hiding himself

bring whisky into a certain county neces-

out as a physician without having passed

sarily included the charge that he had it in

the required examination, following the language of the statute, is insufficient because

Ky. L. R. 720, 99 SW SW 612. Reasonable

not stating how he was holding himself out.

State v. Wilson, 79 Vt. 379, 65 A 88. Where

a statute states the elements of a crime, it

is generally sufficient in an information or

82 NNE 81.

language of the statute. Applied to crime of

inceist. Cordson v. State \[Neb.\] 108 NV 764.

86. Language of statute not specific

enough to charge crime of keeping wife in

house of prostitution under St. 1891, p. 285,

c. 206. People v. Conness \[Cal. App.\] 88 P

815 (Ladvance sheets only\].

s6. Under Cr. Code Proc. **SS 122-124**, pre-

servling requisites of an indictment. Commonwealth v. Drewery, $1 KY. L. R. 635, 103

SW 266.

87. Amorous v. State, 1 Ga. App. 313, 57

SE 99.

88. Clement v. U. S. \[C. C. A.\] 149 F 305.

"Gunshot" wound includes one made by

"Pistol." State v. Barrington, 198 Mo. 38, 95

89. Neither clause can be rejected as sur-

Pusque. Maioney v. People, 229 Ill. 593, 82

NE 889.

plied by reference to the beginning or conclusion of the indictment."7 A count may refer to and adopt matter in a previous count."8 Where the first count referred to in other counts is afterwards dismissed, it may still be looked to to supply date and venue of offense."9 Where the distinction between principal and accessory has been abolished, one who aids and abets may be indicted as a principal.1 An indictment charging one as accessory must be as full and definite as to the elements of the offense as one charging accused as principal.2 In Georgia principals in the first and second degrees in the crime of murder are punished alike and no distinction need be made between them in the indictment.3 Where an indictment alleges former conviction of crime to subject defendant to additional punishment, the indictment may be good as to the crime charged though the former conviction cannot be shown under it.4 An indictment charging former convictions need not allege that they have been vacated or reversed.5 Whether an information need allege facts to avoid the statute of limitations depends upon the time of issuance of the warrant."

\_Certainity.\_See 8 C. L. 194. The indictment, information or accusation, must be sufficiently definite and certain as to the offense charged 7 and each essential element thereof,8 as to give accused notice of the particular crime with which he is charged

97. Manovitch v. State \[Tex. Cr. App.\] 16 reads to maintain water closets at stations, Tex. Ct. Rep. 712, 96 SVV 1. The words "against the peace and disparity of the state", Louis, etc., R. Co. (Ark.) 103 SVV 623. In-at the conclusion of an indictment belong to the entire indictment, Where a demurrer to the second count was sustained, such phrase remained and applied to the first count. Starting v. State \[Miss.\] 43 S 952.

01. Benson v. U. S., 37 Arp. D. C. 381; Hyde v. U. S., 27 Arp. D. C. 362.

01. Manovitch v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 712, 96 SVV 1.

01. Manovitch v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 712, 96 SVV 1.

01. Rosencarna v. U. S. (C. C. A.) 155 F 38.

01. Wright v. State, 1 Ga. App. 158, 57 SE

01. To convict one of aiding and abetting another in a crime, it is necessary either to charge the principal with him in the indictment, or, if this be not done, to state the principal's name, or that it is unknown, and the facts showing the aiding and abetting should appear. Taylor v. Com., 28 Ky. L. R. 819, 99 SVV 581.

01. Bradley v. State, 128 Ga. 29, 57 SE 287.

01. Satterfield v. Com., 105 Va. 867, 52 SE 975.

01. Gragg v. Com., 31 Ky. L. R. 873, 104 SWV 285.

01. An information filed after the time limited by statute for the commencement of the prosecution need not allege facts re- lied upon to take the case out of the statute where the warrant was issued in good faith and was placed in the hands of an officer to be executed before, but the arrest was not made until after, the statutory period. State v. Waterman \[Kan.\] 88 P 1074.

01. Offense must be set forth with clearness and certainty. Armour Packing Co. v. U. S. \[C. C. A.\] 159 F 1. The indictment need only charge in ordinarily intelligible terms such facts as will apprise accused with reasonable certainty of the particular offense oharged. Goslin v. Com., 28 Ky. L. R. 883, 90 SWV 223. The criterion for judging the sufficiency of an indictment is whether the words employed make the charge clear to the "common understanding." Refinement and technicality must yield to substantial things. Ex parte Pierce, 155 F 663. Indictment under Acts 1903, p. 303, requiring rail-roads to maintain water closets at stations, etc., held bad for uncertainty. State v. St. Louis, etc., R. Co. (Ark.) 103 SVV 623. In-dictment under Acts 1903, p. 303, requiring railroads to maintain certain accommodations at depots. Id. \[Ark.\] 103 SVV 625.

AMdivat charging one with being an accessory before the fact to the act of a notary public in feloniously affixing her signature to a dead held insufficient to charge an offense notwithstanding Cr. Code, 1 188. Riley v. State, 168 Ind. 657, 81 NE 726.

Indictment or information held good: Where there had been two local option elections in a county, an information for violation of local option law was not bad because not alleging which election was relied upon. Riggs v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 83, 96 SVV 26. An indictment charging that one did empexle certain money that came into his hands held sufficiently specific and not bad as pleading a conclusion. State v. Hoffman, 134 Iowa, 587, 112 NWV 103. An indictment for nomil-cide need not plead the statute alleged to have been violated. United States v. Battle, 154 F 540. Indictment of bank officer and the nature thereof,9 and enable him to properly prepare his defense,10 and to enable him to avail himself of a judgment thereon in defense of another prosecution for the same offense,11 and to qualify the court to determine whether or not the facts therein stated are sufficient to support a conviction.12 The practice varies as to the right of accused to a bill of particulars.18

_Bad spelling and ungrammatical construction_ See 8 C. L. 195 will not alone render an information or indictment fatally defective,14 but this rule does not cure omission of essential language.15

\_Surplusage.\_See 8 C. L. 195--Nonessential averments which, if stricken, leave the offense well charged, may be rejected as surplusage 16 and may be disregarded 17 if defendant is not prejudiced thereby.18 When an information sufficiently charges an offense, not essentially continuous, committed on a specified day and year, with an

\\begin{tabular}{l|l} transgression, and every essential element & not render it defective. Manovitch v. State of it. Armour Packing Co. v. U. S. \[C. C. A.\] \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 712, 96 SWV 153 F 1. Indictment for murder which does & L. Indictment charging that two defendants not connect the shooting with the inflation & did then and there unlawfully and with of the fatal wound is insulfient. State v. "his" malice aforethought, etc., held not defective for grammatical error. Wilson v. \\ Birks, 199 Mo. 268, 97 SWV 578. In Alabama & & \\ the means with which the offense was committed & State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 865, 90 SWV 312. "Farudulently" in indictment & 90 SWV 312. "Farudulently" in indictment is equivalent to "fraudulently." Wells v. \\ it is alleged defendants & & \\ \\end{tabular}

It is not a member, the indictment for conspiracy & State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 443, 98 SWV 851. Indictment designating date of offense as a day in "Aug." cannot be quashed \\ must set forth facts constituting every element of such offense. Imbedon v. People \[Colo.\] 90 P 608. Under Code 1896, 9493, & \\ in charging an offense committed in a public place, it is sufficient description to allege & \\ that it was committed in a public place. & \\ Walker v. State \[Ala.\] 43 S 188. & \\ \\end{tabular}

**9.** The indictment must be sufficiently definite and certain to give defendant notice of the particular crime with which he is charged, and the nature thereof. State v. Witherspoon, 115 Tenn. 138, 90 SWV 552. & \\ \\end{tabular}

**10.** Armour Packing Co. v. U. S. \[C. C. A.\] 15% F 1. An indictment which is so vague and indefinite as to mislead defendant in preparing his defense is insufficient. Douglass v. State \[Fla.\] 43 S 424. Where every essential ingredient of the offense is set forth with sufficient certainty to enable defendant to prepare his defense, and the jury to understand the nature of the offense, it is sufficient. Williams v. State \[Ga. App.\] 58 SE 1071. & \\ \\end{tabular}

**11.** Armour Packing Co. v. U. S. \[C. C. A.\] 153 F 1. An indictment is sufficiently certain if it alleges facts sufficient to enable accused to make his defense and to plead the judgment in bar to another prosecution for the same offense. Clement v. U. S. \[C. C. A.\] 149 F 305. Indictment must so describe and identify the offense that the judgment in the case could be relied on another prosecution on the same facts as a former conviction or acquittal. State v. Witherspoon, 115 Tenn. 138, 90 SWV 852. & \\ \\end{tabular}

**12.** Armour Packing Co. v. U. S. \[C. C. A.\] 153 F 1.

**13.** See post, & \\ \\end{tabular}

**14.** Needless use of word "with" information held not render it objectionable, State v. Long, 201 Mo. 664, 100 SWV 587. Where third count of an indictment referring to first count alleged that the defendant did on a certain date, at a certain place, etc., the omission of "there" from expression "then and there," in the charging part, did \\ \\end{tabular}

**15.** Indictment for murder held fatally defective for omission of "did" before "kill." Hall v. State \[Miss.\] 43 S 810. & \\ \\end{tabular}

**16.** Compinal charged embezzlement of carriage and harness, and then alleged that "in the manner aforesaid did take, steal and carry away, said buggy and double harness." Heid, complaint did not charge two offenses, as quoted words were immaterial and unnecessary and could be treated as surplusage. State v. Allen \[S. D.\] 110 NWV 92. An information for failure to stop an automobile on a public highway when signaled by a person driving a horse that the signal was given by one riding for and on behalf of the driver is surplus unnecessary continuedo, the continuendo does not injure the information but may be rejected as surplusage.19

_Venue_,See 8 C. L. 195--It must appear that the crime was committed within the jurisdiction.20 In Missouri it is not necessary to state any venue in the body of the information.21 Where a crime is alleged to have been committed on land purchased by the Federal government, an allegation of title in the government is not necessary.22

_Intent or knowledge_.See 8 C. L. 195--When an information charging a misdemeanor alleges that the act which constitutes the offense was done knowingly and willfully, no other or further criminal intent need be alleged or.proved.23 A charge that the act was "knowingly" done is good.24 In charging a felony, the indictment need not include the word "felonious" or "feloniously," 25 When the word "feloniously" is used unnecessarily, it amounts only to charging that the crime is a felony and cannot be construed as meaning knowingly or with knowledge.26 If the act done may be criminal in several aspects according to the intent or purpose in doing it, an averment of the specific intent is essential.27

_Time_,See 8 C. L. 195--When time is not of the essence of the offense, failure to state the time, or an imperfect statement of it, will not invalidate the information or indictment.28 An indictment charging commission of a crime on an impossible date is fatally defective.29 A clerical error in the statement of time will be disregarded where the time otherwise appears.30

_Designation of persons_.See 8 C. L. 195--The use of the ordinary abbreviation of a Christian name 31 or of initials 32 or of the name by which a person is known 33 is held sufficient. If the name specified and the name by which the person is known 33

19. So held of information charging adnl-tery on Feb. 13, 1905, and diverse other days thenee continuously between Feb. 13, 1905, and August 1, 1905, State v. Thompson, 31 Utah, 228, 87 P 709.

01. The words "in Swainskoro, Georgia," are apt words to convey the meaning that the acts alleged occurred within the territorial limits of the municipality bearing that name. Mason v. State, 1 Ga. App. 54, 58 SE 139.

01. Under Rev. St. 1899, $ 2527, the venue is sufficiently stated in the margin. State v. Moore, 203 Mo. 624, 102 SWV 537.

01. United States v. Battle, 154 F 540.

01. State v. Gregory, 74 Kan. 467, 87 P 370.

01. Charge that defendant "knowingly" attered forged check as true held sufficient. State v. Waterbury, 133 Iowa, 135, 110 NW 328.

01. State v. Judd, 132 Iowa, 296, 109 NW 392.

01. Contra: Indictment for murder held insufficient because not charging that it was "feloniously" committed. Wright v. U. S., 18 Okl. 610, 90 P T22.

01. Ex perta Goldman \[CaI, App.\] 88 P 819.

01. Hence, where a crime or the subject thereof has been concealed, the purpose of concealment must be charged (e. g., that it was accessory to and charged with intent to conceal the perpetration of the felony) to distinguish the crime charged from others that might be laid on the same facts (Id.), and an indictment for accessory concealment must set out acts constituting a concealment (Id.). General allegation that he knowingly "concealed" is bad. Id.

01. Under Rev. St. 1899, $ 2535, an informa- tion charging a robbery on the "-- day of November, 1905," was not bad. State v. Moore, 203 Mo. 624, 102 SWV 507. If the date upon which the crime was committed was not an essential element, the date need not be set forth. State v. Collins \[R. I.\] 67 A.

01. Date of offense in a capital case is not of the essence and may be amended as crime does not fall within statute of limitations. State v. Cornelius, 118 La. 146, 42 S 754. Under Revism 1905, $ 255, that no judgment upon any indictment for felony or misdemeanor shall be stayed or reversed for omitting to state the time at which the offense was committed where time is not of the essence, an indictment for bigamy (Revisal 1905, $ 2361) is not bad for failing to state the date of either of two marriages. State v. Long, 140 N. C. 670, 67 SE 349.

01. Indictment charging that offense was committed June 21, an impossible date, is fatally defective. Stephens v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 340, 103 SWV 904.

01. More clerical error in stating year of organization of grand jury, real dates also appearing, held immaterial. Hinson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 43, 100 SWV 33.

01. Sufflicency of indictment not affected by abbreviation of accused's name from "John" to "Jno." State v. Granger, 203 Mo. 556, 102 10 Cur. Law. INDICMENT AND PROSECTION SS 4C. 73

are idem sonans, the designation is sufficient.\[34\] In homicide cases deceased may be designated by his proper name * * and slight errors therein are immaterial.\[48\] That one count sets out deceased's name, and another uses his initials and alleges that his Christian names are unknown, does not make the indictment demurrable.\[37\] An indictment for selling liquor to persons to the grand jury unknown is not defective for failure to set out the names of such persons.\[88\] Defendant may be designated by a name by which he is commonly known.\[39\] Insertion of the name of another in the charging clause in place of defendant's is a fatal error.\[40\] In prosecution of an agent of a foreign company for violating a local option law, the charge should be against defendant direct; it is not necessary to allege agency, nor that he acted for a corporation, partnership, or individual.\[41\] In Kentucky an error in the name of the corporation defendant may be corrected.\[42\]

\_Setting forth written or printed matter.\_See 8 C. L. 196--Where the basis of the offense is a written instrument, it should be set out in haec verba or the substance stated.\[43\]

\_Description and ownership of property.\_See 8 C. L. 197--Property which is the subject of the crime must be described with reasonable certainty as to its nature,\[44\] value \[45\] and location,\[48\] and, in crimes against property, ownership must be alleged \[47\]

34. "Ravler" is idem sonans with "Reviar" fusion" sufficiently charges that he is an in-set up as true name. Howard v. State \[Ala.\] didvual. Morrison v. State \[Ala.\] 44 S 43.

44 S 95. Indictment should not be quashed 40. Indictment for rape is fatally defective on ground that prosecuctors' name was spelled "Dorgan" in one place and "Dur-gan" in another, the names being idem State v. Stephens, 195 Mo. 261, 97 SW 860.

sonans. O'Donnell v. People, 224 Ill, 218, 79

41. Well v. State \[Tex. Cr. App.\] 90 SWV 644.

NE 689. Accused was indicted under name 42. Under Cr. Code Proc. % 125, provid-"George Rawlin" and filed a plea of mis-nomer alleging his true name to name of defendant shall holdant" and that he had never been known % 728, and Ky. 1902, % 467, providing that and called by the name under which he was indicted. On trial of this issue it appeared that his name was spelled "Roland," but pronounced "Rolin;" held plea was properly overvended, the name in the indictment and that by which accused was known and called being idem sonans. Roland v. State, 127 Ga. 401, 56 SE 412.

35. Deceased is sufficiently described by his proper name in indictment for murder. State v. Hogan, 117 La. 863, 42 S 852. Indictment for murder of "Asaria Simmons, alias Dunmy." is not bad for failing to allege the Christian name of "Dummy," or that it was unknown to the grand jury. Falkner v. State \[Ala.\] 41 S 409.

01. Indictment for murder not denurrable because an "${}^{\\prime}$ in name of. deceased is dotted in one count and not in another. Harrison v. State, 144 Ala. 20, 40 S 568. Indictment during that "J. E. Butt" was killed, and said "T. J. Butt" died, etc., not fatally defective. Bell v. State \[Ark.\] 104 SWV 1108.

01. Harrison v. State, 144 Ala. 20, 40 S 568.

01. State v. Dowdy \[N. C.\] 58 SE 1002.

01. Where accused was known as "Mud McCue" as well as by his true name Frank McCue, the court did not err on correcting the record to show the true name in refueling to strike the alias from the face of the indictment. McCue v. State \[Tex. Cr. App.\] 19 Tex. Cr. Rep. 289, 108 SWV 858. Incliment naming a defendant as "Charles Payles, commonly called "Happy Jack," is not bad because of use of term "Happy Jack.". State v. Barick, 60 W. Ya. 576, 65 SE 652. Designating accused as "E. C. Mor-

01. Information for swinding alleging that increased intended to defraud prosecutor of $2.70 in money sufficiently places value on the property since under the statute money has a distinctive meaning significant of value. Speer v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 287, 97 SWV 469.

01. An indictment which designates a house by its street number need not set though the corporate character of the owner need not be stated.\[48\] Allegation of ownership in one having possession is good though he holds as agent or baillee.\[49\]

_Description of money._\[See 8 C. L. 197\]. In the case of certain crimes the word "money" must be used.\[50\] In Arkansas an indictment for lareny must state whether money taken was gold, silver or paper;\[51\] but an indictment for grand lareny is not fatally defective, for failure so to do, if it also alleges the taking of other property exceeding ten dollars in value.\[52\] Averment of a certain amount of money is sufficient in Colorado.\[53\] In Texas an allegation of the taking of a certain amount of money which passed current as money of the United States is sufficient.\[54\] While the substitution of marks or signs in an indictment in the place of words is extremely dangerous, the dollar sign is in such common use that a court would not be justified in holding an indictment bad because the dollar mark is used in place of the word dollars.\[55\]

_Duplicity._\[See 8 C. L. 198\]. While a single indictment or information may not charge more than one separate and distinct offense,\[56\] the allegation in different

forth the number in words. It is an arbij-

is bad for duplicity, where' it charges

tary symbol and should be set forth in

embezzlement and misapplication of "funds

acceptance with the fact. State v. Castle

and credits" without describing either, and

(N. J. Law! 66 A. 1059).

47. Ownership of a room in a school

dormitory, and especially of the goods

items must be separately described. Id. An

therein, should be 'laid in an indictment for

indictment charging two distinct offenses

burglary thereof. Mays v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 720, 91 SV7 703.

48. Under Act March 19, 1904. Providing

punishment for breaking open safe belonging to person. firm, bank or corporation, in-

seine net, etc., and also prohibiting use of

dictment need not allege that a bank whose

safe was blown was a corporation. Stamper

v. Com., 20 Ky. L. R. 679, 99 SV7 304.

49. In lareey or burglary, ownership of

the property may be laid in person having

possession though he holds it as agent or

baillee. Bradley v. State \[Ga. App.\] 58 SE

1064.

0001. An indictment of an officer of a

National bank under Dev. St. S. 520, for misapplication of "funds and credits," is insulficient where it does not use the word

"money." United States v. Smith, 152 F 545,

51. Under Kirby's Dig. 9 1844, providing

that in an indictment for lareny it shall

not be necessary to describe kind of money

taken further than to allege gold, silver or

paper, an indictment which does not allege

whether gold, silver or paper was taken, is

insufficient. Cook v. State, 80 Ark. 495, 97

svm 683.

45. An indictment for grand lareny

under Kirby's Dig. 9 1844, is not fatally

defective for failure to allege whether gold,

silver or paper, was taken where it alleges

that other property exceeding in value $10

was taken. Cook v. State, 80 Ark. 495, 97

53. Under Mills' Ann. St. 1433, money is

svm 683.

54. An indictment for lareny describing

money taken as $10 in money which passed

current as money of the United States held

sufficient. McCue v. State \[Tex. Cr. App.\]

19 Tex. Ct. Rep. 289, 103 SW 883.

55. Rev. St. $ 7215. State v. Lang, 5 Ohio

N. P. (N. S.) 369.

56. Field double: Indictment under Rev.

St. $ 5902, against officer of National bank

10 Cur. Law.

counts all of which refer to the same transaction ${}^{87}$ of different modes ${}^{58}$ or mcans ${}^{59}$

Gourdain v. U. S. \[C. C. A.\] 154 F 483. Information in 11 counts for illegally selling in conductivity that defendant did several intoxicating liquor, the last count of which charged the maintenance of a nuisance, held that led to aqp, 100, 58 SE 67. Indictment for maintaining a nuisance in violation of Acts 1905, p. 709, c. 169, $ 535, force and robber by intimidation may both be charged in one indictment either in one or in separate counts. Pen. Code 1895.

Gourdain v. U. S. \[C. C. A.\] 154 F 483.

of committing the offense will not render the accusation duplicitons. Where only the higher degree of crime is specifically charged, an information is not bad for charging facts which if established would justify conviction for another crime of like nature but of a lower grade,60 especially where such facts are ingredients of each crime.61

\_Exceptions and provisos.\_See 8 C. L. 196--Exceptions or provisos which qualify or describe the offense must be negatively.62 Exceptions and provisos which do not form a part of the description of the offense need not be negatively.63 It is sufficient to state exceptions to a limitation statute in the language of the statute.64

\_Statutory crimes.\_See 8 C. L. 196--Generally it is sufficient in charging a statutory offense to use the language of the statute 65 or equivalent terms.64 It is only when the statute denocuncing the offense is couched in generic terms that the information need go beyond the language of the statute.67 The circumstances of the offense need be

bad for duplicity. Reum v. State \[Tex. Cr.\] & \[Tex. Cr.

## 10 Cur. Law. Indictment and prosecUTION SS 4D.

set out only when they constitute, or are necessary to complete, the offense.\[98\] The conjunctive is properly used between terms used interchangeably in the statute.\[99\] Where the statute denounces several acts which are stated disjunctively in the statute, an information embracing all of them in one count must state them conjunctively.\[70\] (SS 4) _D. Issues, proof, and variance_,\[88\] S. C. L. 197--Every essential averment must be proved substantially as laid,\[71\] but unnecessary allegations need not be

An indictment charging a statutory offense \[\] alias Dummy" and proof that decedent was in the language of the statute is sufficient \[\] generally known as Dummy. Falkner v. when such language describes the acts constituting the offense sufficiently to apprise \[\] owned building burned but leased it to defendant of the nature of the charge. Glover v. State, 126 Ga. 594, 65 SE 592.

While an indictment may be set forth in the general language of the statute, it must be accompanied by a statement of all participants of the Offense without uncertainty or ambiguity. United States v. Baltimore & O. R. Co., 155 F 997. Indictment for violation of interstate commerce act held insulin- \[\] clent. Id.

68. State v. Swan, 81 Utah, 836, 88 P 12.

01. Indictment for running ten-pin alley \[\] latency of horse, mare, gelding, etc., grand "and" bowling alley for profit without a license held not bad for use of conjunctive "and" the words "tenpin" alley and "bowling" alley being used interchangeably in the statute. O'Neal v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep.\] 19 Tex. Ct. Rep.\] 19 Tex. Ct. Rep.\] 160 W SV 191.

01. Information charging carrying of knuckles made of metal or some hard sub- \[\] stance was defective as charging several things disjunctively. Countryman v. State \[\] Tex. Cr. App.\] 19 Tex. Ct. Rep.\] 19 Tex. Ct.

proved,"2 and an immaterial variance may be disregarded."2 Proof of a crime other than that charged will not warrant conviction,"4 but where more than one crime is charged there may be a conviction of one regardless of proof of the others,"5 and where there' are several counts, proof sufficient to sustain one is enough."6 An indictment for conspiracy charging two or more overt acts is sustained by proof of one of such acts."7 The state may prove a conspiracy between accused and a third person to commit the crime charged, though such third person is not joined with accused in the information."8

\_Names.\_See S. L. 198--The name of the injured person must be proved substantially as laid,"9 but the rule of idem sonans applies."8 In some jurisdictions a variance as to name is not fatal if the identity of the person named is otherwise established."81

ship in each of those alleged to be joint owners. State v. Hamilton \[S. C.\] 57 SE 1998.

charging that defendant forged, uttered, owners. State v. Hamilton \[S. C.\] 57 SE 1998.

that such deed was forged whether by defendant or another, and that defendant uttered the same with intent to defraud. People v. Allerdive, 105 NYS 395.

addmission of secondary evidence to prove such fact is therefore harmless. Ager v. State \[Gia. App.\] 58 SE 374.

73. "Jonestown Bank" and "Jonestown Bank of Jonestown" is an immaterial variance. Richberger v. State \[Miss.\] 44 S 772.

Where an indictment for perjury alleged false swearing in trial for disorderly conduct and for carrying a pistol, and proof shows false swearing on trial for disorderly conduct, the variance is not fatal because not prejudial to substantial rights. Gardner v. State, 80 Avrk. 264, 97 SW 48. Indictment charging offer to bribe officer that-accused said "How much will you take to turn me loose and let me go and get away?"and language proved was "How much will you take to turn me loose and let me go?"field no variance, Evans v. State \[Tex. Cr. App.\] 89 SW 1080.

74. One charged with running a "blind tiger" cannot be convicted of ordinary violation of local option law. Gorman v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 876, 105 SW 200. It is not sufficient to prove that defendant was guilty of some other offense. Lowell v. People, 229 Ill. 227, SS2 NE 236, Acts 1905, p. 720, making bartering, selling, or giving away liquor an offense, defines three offenses, and proof of one will not sustain a conviction of either of the others. State v. Reed, 168 Ind. 588, 81 NE 571.

01. Where an indictment in three counts charged both ungrilary and lareven, the charges though joined in each count were independent crimes and accused could be convicted of either without being found guilty of the other. Miller v. People, 229 Ill. 376, 82 NE 891.

01. Indictment for violating primary election law (20 Del. Laws 1897, p. 375), alleging in several counts the stealing, mutilation, etc., of ballots, is satisfied by proof of any one of such charges. State v. Tyre \[Del.\] 67 A 199. Where several counts are included in an information, a conviction on one may be sustained though the jury ignore others, and a judgment on one with no verdict as to the others operates as an acquitantial as to them. Ford v. State \[Neb.\] 112 NW 600. Under an indictment 104 SW 607.

01. Under the V. State \[Tex. Cr. App.\] 112 NW 600.

01. Under the V. State \[Tex. Cr. App.\] 112 NW 600.

01. Where in assault indictment gave name of injured person as "Kamegay" but proof showed it was "Konegay", there was fatal variance. Haygood v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 308, 102 SW 890.

01. Where inadvertment give * 10 Cur. Law. Indictment and prosecution SS 4E. 79

_Time_ See 8 C. L. 198 need be proved as laid only when it is an essential element of the offense.82

(SS 4) \_E. Defects, defenses, and objections.\_See 8 C. L. 198--Defects in the finding of the indictment or irregularities in the organization and proceedings of the grand jury,83 and formal defects apparent on the face of the indictment,84 are ordinarily required to be raised by motion to quash or by plea in abatement before pleading to the merits,85 such defects being waived by failure to urge the proper and timely objection.86 Defects in the charge may be cured by verdict.87 The grounds of a motion to quash 88 or dismiss 89 and grounds of demurrer 80 vary in different jurisdictions.

82. Under Cr. Code Prac. SS 129, If time be tion in such manner waives It. Thomas v. not a material element of the felony, it is Territory (Arriz. 89 P 691. A motion to sufficient to prove commission thereof at dismiss a criminal complaint on the ground any time before indictment returned. Drake v. Com., 31 Ky. L. R. 1286, 104 SW costs its too late unless made before defend- and leads. State v. Sheehan \[R. I. 66 A on government work to work overtime, the time as laid in the indictment does not con- gramly after case has been called for fine the proof within the limits of that period, but proof that it was committed on case was to be tried before the grand jury or about such date is sufficient. United and made no objection. Ransom v. State, 116 States v. Sheehan \[A-Kirk Cont. Co., 149 P 899. Tenn. 356, 96 SW 553. Motion to quash an 83. Under Code 1896, SS 5269, no objection can be taken to an indictment on any ground jurors had not paid their poll tax ground going to the formation of the grand jury. Pate v. State \[Ala.\] 43 S 343. A ples of not guilty waives the objection that since the preliminary hearing there have been a number of sessions of the grand jury at which no indictment was returned, to be present at the impanching of the wind was based was filed. Williams v. State \[Ind.\] 82 NE 790. Where a defend- ant is held to answer, he may not object to the indictment because of defects in selecting and impanching the grand jury. Code 1897, SS 5321. State v. Johnson \[Iowa\] 111 NWV 827. Where on motion to substitute induction, accused was before the court and could have excepted if substitution was not correct, whether it was could not be submitted to the jury, Stevens v. State \[Tex. Cr. App.\] 15 Tex. Ct. Rep. 936, 95 SW 505.

01. One cannot object to the verification of an information for the first time on motion for new trial. Must be made before plea. Emery v. State \[Neb.\] 11 NWV 874. After a plea of not guilty, an objection that the information is indefinite, unintelligible, and uncertain, is not available. State v. Newman, 34 Mont. 344, 87 P 462.

01. An objection going to the form and manner of charging an offense, and not to the substance, the defect being apparent on the face of the indictment, is waived by pleading to the merits without interposing a motion to quash. Koppala v. State \[Wyo.\] 89 P 576.

01. Objection that indictment charges two offenses is waived where not demurrer to on that ground. Meers v. State \[Ark.\] 104 SWV 10%. Defendant having pleaded not guilty, any evidence on issues is admissible over objection that indictment is insufficient. State v. Lounanis, 79 Vt. 463, 65 A 532. Failure to insert at the foot or to endorse upon an indictment the names of witnesses examined before the grand jury is ground for setting aside the indictment on motion on arrasignment (Pen. Code 8 863, subd 2), but failure to raise the objection.

A motion to quash will be denied if any of the counts are good." Want of particularity is not a ground for quashal where defendant is entitled to a bill of particulars,"92 but a motion to quash lies for such defect in some states."93 In Oregon the obb

was there at the request of the judge who was ill, and did not express an opinion unfavorable to accused. Jones v. State \[Wie.\] 118 NW 428. \[Ala.\] 43 S 179. An indicment will not be quashed because it was not presented to the court by the foreman of the grand jump in the presence of 11 other Jurons. Williams v. State \[Ala.\] 43 S 182. Mistake in middle initial of grand juror is not ground for quashing indicment under Code 1896, $ 5269. Harrison v. State, 144 Ala. 20, 40 S 684. A motion to quash an indicment made before pleading on the ground of illegality of the grand jury is timely. Marsh v. People, 226 Ill. 464, 80 NE 1006. Where an indicment is bad for duplicity, the court may quash it instead of requiring the state to elect. Chase v. Van Enuren Circuit Judge, 148 Mich. 149, 111 NW 750. Under Rev. St. 1893, $ 2517, requiring names of material witnesses to be endorsed on the indicment, but providing that others may be called, the mere fact that the names of some of the material witnesses were not endorsed on the indicment is no ground for quashing it. State v. Barrington, 198 Mo. 23, 95 SW 255. In Missouri, where the grand jury which returns an indicment for crime is in session when the crime is committed, a plea in statement and motion to quash on the ground of irregularity in the selection of the grand jury does not lie State v. Crane, 202 Mo. 54, 100 SW 422. One indicted by a grand jury, two members of which were disqualified, cannot interpose a plea in abatement but may attach the legality of the jury by motion to quash the indicment. State v. Lang \[N. J. Law\] 66 A 942. Where the ground of attack on an indicment is that the crime was committed in another county, the remedy to present such objection is by plea in abatement rather than by motion to quash. State v. Lewis, 142 N. C. 626, 55 SE 600. In Oregon, a motion to quash an information will not lie on the ground that the finding of it was not justified by the records before the district attorney and the testimony of the witness whose name was endorsed thereon, nor on the ground that testimony of witnesses whose names were not on the information was reexcluded. Curning B. & C. Comp. $ 1284, 1262. State v. Kellisher \[Or.\] 88 P 867. Objection to indicment on ground that enforces were excluded from grand jury on account of race must be presented by plea in abatement and not by motion to quash, Tansom v. State, 116 Tenn. 355, 96 SW 963. That affDatavit upon which information is based is not signed by one who is credible is not ground for a motion to quash. Reactor v. State \[Tex. Cr. App.\] 90 SW 41. Motion to quash because not settling out year when found, not dated, and not showing when grand jury was impaneled, is addressed to courts discretion. State v. Lounanis, 79 V. 463, 65 A 522. Irregularity in the action of the clerk of court in acting as clerk of jury commisioners and suggesting names of persons to serve as grand jurors held insufficient to sustain a motion to quash or plea in abate.

10 Cur. Law. INDICMENT AND PROSECTION SS 4F. SS1

jection that an indictment does not state a crime may be taken at the trial under a plea of not guilty.\*\* In Alabama, an oral demurrer to a warrant will not lie.\*\* In Missouri where two indictments for the same offense are pending against the same defendant, the second suspends the first,\*\* hence, failure to quash the first, on motion, is harmless.\*\* Members of the grand jury will not be permitted to impeach an indictment duly found, returned in open court and filed as such, by testifying as to what was said by the prosecuting'officer while advising with them.\*\* The sufficiency of the indictment cannot be challenged for the first time on appeal unless it fails absolutely to charge an offense.\*\* The objection that proceedings were had on a holiday is waived by failure to object until after verdict.1 If the indictment is too deficient to charge any offense, habeas corpus is a proper remedy.2 Where no question as to the right to try accused on two counts is raised until the proofs are closed, the court, in passing upon the question, is not limited to the face of the indictment, but may consider it in the light of the evidence introduced when the question is raised.3 Procedure upon the hearing of a motion to quash is discussed in the note.4 Upon overruling a demurrer to an indictment for a misdemanor, the court may enter judgment at once or permit the demurrer to be withdrawn and plea interposed.3 Where some counts of an indictment are good and others covering the same matter bad, it is not error to allow trial to proceed on all, since a conviction will be referred to a good count.6 It is competent for the trial court to order the resubmission of a criminal charge to the grand jury where the indictment is clearly defective.7 This is a matter resting in the court's discretion.8 A second indictment by the same grand jury after quashal. of the first is good.8 A person indicted may inspect the minutes of the grand jury.10 In a criminal prosecution collateral attack may be made on a judgment where the purpose of the prosecution is to punish a crime committed by means of such judgment.11

(SS 4) \_F. Joinder, separation, and election.\_See 8 C. L. 390--Separate and distinct

94. B. & C. Comp. f 1365, expressly so pro-

July, testimony as to proceedings in other vides. State v. Reyncr \[Or.\] 91 P 301.

95. Dillard v. State \[Ala.\] 44 S 396.

01. Under Rev. St. 1898, 8 523. State v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 301, 103 Williams, 191 Mo., 205, 90 SW 448.

01. It is quashed by operation of law. State v. Williams, 191 Mo. 205, 90 SW 448.

01. United States v. Tallmadge \[N. M.\] 91 P 729.

01. Duplicity cannot be first raised on appeal. State v. Brown \[Iowa\] 109 NW

01. Policy of supreme court is to quhold indictments and informations where law has been substantially compiled with. Barber V. State \[Fla.\] 42 S 86.

01. Acused may not suffer proceedings to take place on a holiday, and after verdict in a motion to quash, ask reversal on that ground. State v. Duncan, 118 La. 702, 43 S 283.

01. Ex parte Goldman \[Cal. App.\] 88 P 819.

01. People v. Pock, 147 Mich. 84, 13 Det. Leg. N. 1004, 11 NW 459.

01. Motion to quash indictment on ground that grand jury were not properly drawn, unsupported by evidence, properly den:ed. Morris V. State \[Ala.\] 39 S 608. On motion to quash an indictment and plea in abate.

01. Check of prosecuting attorney's alleged omission from indictment of names of witnesses. It is error to exclude sub-

01. Check of prosecuting attorney's obeans of witnesses before grand jury. State v. Barrington, 198 Mo. 23, 85 SW 235.

On motion to quash an indictment because of race discrimination in formation of grand

10 Cur. L.-6 ofenses cannot be joined in the same count,\[12\] but offenses of the same nature may be joined in one indictment in separate counts.\[13\] In such case, each count must be complete in itself.\[14\] In Missouri different degrees of an offense may be charged in separate counts, but the statute does not apply to crimes not divided into degrees and which cannot be divided.\[15\] Where the indictment charges in separate counts more than one distinct colony and the evidence develops different transactions, the state will, upon request by defendant, be forced to elect the count upon which it will prosecect.\[16\] When this is required, the election should as a general rule be made before the defendant enters upon his evidence, and as soon as the prosecution has developed the testimony sufficiently to identify the transaction.\[17\] The state, and not defendant, has the right of election when required.\[18\] When an election is not required, the court in its charge may submit the law only as to one of the counts, and

12. See supra. SS 4 C. Duplicity.

01. Offense of keeping and maintaining a level house and of keeping a common ill-governed, and disorderly house may be joined. Jones V. State \[Ga. App.\] SS EE 559. Adutery and fortification may be charged in separate counts. Garland V. State \[Tex. Cr. App.\] SS 88, 104 SWS 89. Several high grade offenses may be joined but in such case only a single issue will be permitted to go to the jury. Miller v. State \[Neb.\] 111 NWP 687. Count for burning property of another and for settling fire to one's own property with intent to defraud insurer may be joined. Posey v. U. S. 25 App. D. C. 302. '14. When different offenses are charged in the same information, they must be stated in separate counts and each count must be complete in itself. State v. Nicholas, 124 Mo. App. SS 101 SWS 618. Charge that defendants were living in "open and notori", thus adultery, with "lewhy and inactivally" cohibiting with each other, and with "open gross levelness and lascivious behavior," contained three offenses. Rev. St. 1899, & 2175. Id.

01. Ann. St. 1906,p. 1504. State v. McKee \[Mo. App.\] 104 SWS 486.

01. Blackwell v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 766, 100 SWS 774. Question of duplicity may be raised by motion to require an election. Need not be raised by direct attack under Code, SS 5284, declaring that an indictment must charge but one offense. State v. Von Kutzbleen \[Iowa\] 113 NWP 484. Under an indictment charging wrecking of a train with intent to rob and also with murder of one killed by the wreck, the state should elect on which count it would rely. Id. On prosecution for statutory rape where prosecuting witness testified to the particular offense charged and subsequent ones, the court should confine the jury to the consideration of but one and require the state to elect at the close of its case. State v. Palmberg, 199 Mo, 233, 97 SWS 566. Where, in prosecution for incust, more than one act of intercourse is proved within three years prior to indictment, the state may be required to elect upon which act it will rely. State v. Pruitt, 202 Mo, 49, 100 SWS 421. Where indictment charged that defendant unlawfully sold and retained indicating liquors without a license, defendant was entitled to demand an election as to which sale the state would rely upon, that its evidence be confined thereto. Kittrell v. State, 89 Miss. 666, 42 S 603. Where several sepa- when this is done, it is tantamount to an election by the state.\[19\] Where an indictment contains several counts and the court elects for the state to submit the case on certain counts, the others pass out of the indictment and cannot form the basis for further prosecution under this indictment.\[20\] The right to require an election may be waived by defendant by proceeding with the trial to the merits without objection or requiring an election.\[21\] No election should be required where the different counts relate to the same transaction,\[22\] and charge the same offense,\[23\] or different offenses of the same grade, carrying the same punishment,\[24\] nor where but one offense can be found under the evidence.\[25\] In Texas, no election between counts charging misdemeanors can be required,\[20\] and in Illinois the court may in its discretion refuse

19Blackwell v. State \[Tex. Cr. App.\] 18\[\] Gerson v. State \[Tex. Cr. App.\] 96 SW 37. Tex. Ct. Rep. 766, 100 SW 774. Not error to Indirect charging defendant with selling divour to a certain Indian in one count and with furnishing liquor to a certain person in another held not to charge two distinct offices. Taylor v. U. S., 6 Ind. T. 350, 98 SW 125.

20Traery v. State \[Tex. Cr. App.\] 16\[\] Tex. Ct. Rep. 712, 96 SW 125. Where the court in its charge selects one of two dates in an indictment upon which violation of law is alleged to have occurred, and the jury is confined to such date, it amounts to an election by the state though the court had previously refused to require the state to elect. Wells v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 176, 105 SW 820.

21B. Tracy v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 852, 90 SW 308.

22. Where rape was charged in five counts, alleging different dates, and the evidence was as to different acts, and defendant made no objection and did not move to require an election, and the court charged that the jury should convict if they found any one of the acts charged was committed within 12 months, held defendant could not claim that caused at the same place (to connect account elected to stand on the last count. Blackwell v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 766, 100 SW 774.

22In an indictment charging the same transaction as theft and swinding, in two counts, it was not error to refuse to require the state to elect. Brink v. State \[Tex. Cr. App.\] 17\[\] Tex. Ct. Rep. 49, 98 SW 863.

23Where two counts in an information relate to the same transaction and charge the same offense, it is not error to refuse to require the state to elect. State v. Williams, 191 Mo. 205, 90 SW 448. Indtment containing two counts, one charging that defendant killed a person and the other that he was present adding and abetting, charges but a single offense and it was not error to refuse to compel an election. Britton v. Com., 29 Ky. L. R. 857, 96 SW 556. Counts charging embezzlement of 8250 in money and draft for that amount held to charge same offense. People v. Peck, 147 Mich. 84, 13 Det. Leg. N. 1004, 110 NWV 495. Where accused was indicated on two counts, one for cutting a fence and one for cutting part of a fence, he was not prejudiced by court's refusal to compel state to elect upon which count it would rely. Hen to require an election between counts for several misdemeanors.\[27\] Accused is not injured by an election to prosecute for a lower offense included in that shown.\[28\] But it has been held that where the evidence, if sufficient to convict of any offense, shows the offense charged and not an attempt to commit such offense, accused cannot, at the election of the prosecuting attorney, be tried for the attempt.\[29\] The county attorney is not required to state under which particular section of the code defendant is being prosecuted.\[30\]

In New Jersey police commissioners may be jointly indicted for neglect of their duty as such.\[31\] In Florida it is not a ground of objection that material witnesses for defendant were joined with him as accessories.\[32\]

(SS 4) _G. Amendments.\[86, 85, 8, 9, 10\]_-An indictment may be returned to the grand jury for an addition thereto.\[38\] In Alabama an original affidavit may be amended to conform to the statue.\[34\] In Georgia solieitor of a city court may amend an accusation at any time before defendant has pleaded provided the affidavit of the prosecutor will sustain the accusation as amended, unless such amendment is forbidden by the act creating the city court.\[86\] In Kentucky the court may order a warrant amended after the evidence is in, to show a fact necessarily included in the charge.\[39\] In Missouri an information may be amended as to matter of form or substance at any time before trial by leave of court.\[37\] In Mississippi an indictment can be amended only by an order of the court spread on the minutes, specifying the amendment.\[38\] An order authorizing amendment may be entered nunc pro tunc after motion for new trial.\[39\] An indictment may be amended to conform to the proof if the identity of the offense is in no way changed.\[40\] In Texas a mistake in the jurat of the complaint may be corrected,\[41\] but a complaint cannot be amended on account of misnomer of accused.\[42\]

between counts in an indictment for misde-memeanors. Bivins v. State \[Tex. Cr. App.\]

Marrison v. State \[Ala.\] 44 S 150, Affidavit 17 Tex. Ct. Rep. 91, 91, 97 SVV 88. In prosecution for gaming, state was not required to elect on which of games claimed to have been played by defendant it would rely upon. Williams v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 307, 97 SVV 498.

**27.** Johnson v. People, 124 III. App. 213.

**28.** Accused is not injured nor deprived of his right to know the nature of the charge against him by the fact that the state elects to prosecute for largency from the person, though the evidence shows the higher and including offense of rubber in the night time. State v. Smith, 180 Mo. 706, 90 SVV 440.

**29.** Under Ann. Code 1892, 874, one accused of rape could not be tried for an attempt. Davis v. State, 89 Miss. 21, 42 S 542.

**30.** Any error in denying a motion harmless where defendant was afterwards informed before defense was commenced. State v. Newman, 34 Mont. 434, 87 P 462.

**31.** State v. Castle \[N. J. Law\] 64 A 1069.

**32.** Especially where they testified for him. Douglas v. State \[ET=1\] 43 S 424.

**33.** Where an indictment charged an illegal sale of liquor on a certain date, it was not error to order the indictment returned to the grand jury to have added to it the amendment "and at divers other times within the twelve months last past." Hateter v. Com., 106 Va. 827, 55 SE 677.

**34.** Under Code 1896, 8 4306, an original affidavit may be amended to conform to the language of the statue. Hamilton v. State \[Ala.\] 44 S 968. Affadavit for trespass omitting a portion of the wording of the statue properly allowed to be amended before trial.

**35.** Offensive and the state v. State \[Ala.\] 44 S 150, Affidavit 17 Tex. Ct. Rep. 91, 91, 97 SVV 88. In prosecution for gaming, state was not required to be amended. Dillard v. State \[Ala.\] 44 S 853. Affidavit for stealing chickens properly allowed to be amended to conform to the situation. Bates v. State \[Ala.\] 44 S 968.

**36.** Meduire v. Com., 30 Ky. L. R. 720, 99 SVV 612.

**37.** State v. Coleman, 199 Mo. 112, 97 SVV 574. Information under Ann. St. 1906, p. 138, providing that if any person shall will disturb disturb peace of a neighborhood or of any person or family, was properly amended by substituting an information containing an additional count charging during of individuals, since both counts deal with same transaction, are founded on same substitute and call for same punishment. State v. Simpson \[Mo. App.\] 100 SVV 592.

**38.** Under Code 1806, 9 1509. Shurley v. State \[Miss.\] 44 S 299.

**39.** Richberger v. State \[Miss.\] 44 S 772.

**40.** Meduire v. State \[Miss.\] 44 S 802.

\*\*41.

## 10 Cur. Law. INDICMENT AND PR PROSCUITION SS 4H.

(SS 4) \_H. Conviction of lesser degrees and included offenses.\_See S C. L. 201.

Conviction may be had of any offense included in that charged,\[43\] or any lesser degree of the offense charged,\[44\] or of an attempt to commit the offense charged,\[45\] but not of an offense containing elements not included in the offense charged.\[46\]

plain on the trial by changing name of person in \_j_urat to conform to facts, name inserted being put there by mistake. Flour- noy v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 750, 100 SWV 151.

42. Lazenberg v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 91, 97 SWV 87. If subject to amendment on this account, it cannot be amended over the objection of accused merely because on application for a continuance he stated his name, which differed from that in complaint. Id.

01. Indictment for homolicide by abortion includes murder in second degree, manslaughter, and assault. State v. Fleetweded \[De1.\] 65 A 772. Under indicment for murder in the first degree, state may show facts proving that or any included offense. Gregory v. State \[Ala.\] 42 S 829. Charge of assault with intent to ravish includes simple assault and assault and battery. Payne v. state \[Ala.\] 42 S 988. In prosecection for assault with intent to rav, instructions for acquittal if evidence did not show crime charged should not be given, as assault. Fuerst v. State, 115 Tenn. 357, might be found, Pitman v. State \[Ala.\] 42 S 993. A conviction of the offense of larceny from a store, compound larceny and alleging value of property not being deburred turned to will sustain a verdict for simple mercury. State v. Reyner \[Or.\] 91 P 301, shows the higher offense of robbery in the nighttime. State v. Smith, 190 Mo. 706, 90 SVV 440. Person charged with felonious assault may be convicted of common assault.

State v. Ostmann, 123 Mo. App. 14, 100 SWV 696. Though an indictment does not charge the offense intended, where it is good as a charge of a lesser offense and the punishment imposed is such as might be imposed for such lesser offenses, a verdict of "guitly" will not be reversed. Id. One indicted under Comp. Laws, SS 11715, for taking incident liberties with a female under fourteen years of age, may be convicted of assault and battery. People v. Sanford, 149 Mich. 266, 14 Det. Leg. N. 396, 112 NWV 810. An information based on the South Dakota statute, Rev. Pen. Code, 5 285, charging defendant with shooting with intent to kill, the lesser offense of shooting without justifiable or exconsable cause with intent to injure, and a conviction for such offense may be had under it. State v. Horn (S. D.) 111 NWV 552. Under the Missouri statutes upon a trial under an indictment for a felonious assault, defendant may be convicted of a common assault. State v. Wilson \[Mo. App.\] 103 SWV 110. Where indictment was for homolicide alleged to have been committed by shooting, by drowning, and by unknown means in perpetration of a robbery, a noble of count charging murder in perpetration of robbery does not prevent court from charging to or robbery. State v. Barrington, 188 Mo. 23, 95 SWV 236. Where indictment charges assault with intent to commit rape, it is proper to submit only that offense and simple assault. State v. Johnson, 138 Iowa, 38, 110 NIV 170. Under Pen. Code, 5 240, one accused of assault to rav may be convicted or as a result. State v. Barrington, 188 Mo. 23, 95 SWV 236. Where indictment charges assault with intent to commit rape, it is proper to submit only that offense and simple assault. State v. Johnson, 138 Iowa, 38, 110 NIV 170. Under Pen. Code, 5 240, one accused of assault to rav may be convicted or as a result. State v. Barrington, 188 Mo. 23, 95 SWV 236. Where indictment charges assault with intent to commit rape, it is proper to submit only that offense and simple assault. State v. Johnson, 138 Iowa, 38, 110 NIV 1710. Under Pen. Code, 5 240, one accused of assault to rav may be convicted or as a result. State v. Barrington, 188 Mo.

## 5. _Arragment and plea._

See 5. L. 201.--To sustain a conviction, accused must be arraigned \[47\] at some stage of the proceedings,\[48\] and issue made by some plea to the indictment \[49\] though the offense is a misdemeanor only.\[50\] In some states, however, formal arragment may be dispensed with with the consent of accused.\[51\] Accused has a right to have counsel \[52\] and to have a copy of the indictment or information \[53\] before being required to plead, but both rights may be waived.\[54\] In Illinois it is improper to enter a plea of guilty until accused has been informed of his rights and the consequences of such plea.\[55\] Whether accused shall be allowed to change his plea is a matter largely discretionary with the court,\[54\] but this discretion is a judicial one which should be exercised in favor of innocence and liberty and a trial upon the merits.\[57\] A plea of not guilty ignorantly or inadvertently made, without legal advice, should be permitted to be withdrawn to permit the hearing of a motion to drawn should be made at the earliest date \[command=

- \[command=

- \[0.

- 58. So held where plea was entered before counsel had been appointed for accused. Hill

- 59. Under statute requiring such motion to be made at time of arafment or calling indictment for trial, if no arragmentment. Taylor V. Comm. 2, 85. K. L. 819, 90 SV 581.

- 60. Hughes & Co. v. Com. \[KY\] 101 SW

- 1194. Under Pen. Code, # 1940, 1943, 1836, a plea of not guilty puts in issue charge of counter confections in the information. State v. Gordon, 55 Mont, 458, 90 P 173.

- 61. Leiby v. State \[Neb\] 1132 NY 125.

- 62. State v. Kelley, 206 Mo. 685, 105 SW 606.

- 63. State v. Herlihy, 102 Me. 310, 66 A 64.

- 64. Record showing such plea followed by sentence of the court held sufficient though it was not recited that defendant was adjudged guilty. State v. Herlihy, 102 Me.

- 65. State v. Philip \[TWash\] 87 P 955.

- 66. Code Cr. Proc. 1895, art. 470, providing for substitution in case of lost indictment, is not related to clause in same article providing for presentment of new indictment in case of loss, and, on substitution of lost indictment on day of trial, defendant is not entitled to two days to plead allowed by another statute. James v. State \[Tex Cr. App.\] 19 Tex. Cr. Rep. 885, 105 SV 178.

- 67. State v. Plainettl, 79 VT. 286, 65 A 84.

- 68. State v. Plainettl, 79 VT. 286, 65 A 84.

- 69. State v. Plainettl, 79 VT. 286, 65 A 84.

- In robbery a plea of former conviction for pettlercury founded on same facts is good. Floyd v. State, 80 Ark. 94, 96 SV 125. Where assaults were separate, were upon two different individuals, and were not in response to a joint attack, a plea of former conviction could not be maintained though one of the assaults immediately followed the other. Fews v. State, 1 Ga. App. 122, 58 SE 64.

- 70. Where the court instructed jury to find defendant not guilty, under first and third counts of an indictment, a plea of former acquitated cannot be made as against conviction under second count. Dalton V. People, 224 Ill. 383, 79 NE 669. Rev. St. U. S. # 5618 makes it an offense to conspire to prevent an officer of the United States from discharging his duties. Field, where an as-the one on trial. \[48\] Where the offense is one capable of repetition, mere proof of conviction by the record and of identity of parties is not enough.69 A plea of former conviction must' allege that such conviction was by a court of competent jurisdiction at a time provided by law for holding court 70 and in California, the place where judgment was rendered.71 Where a plea of former acquittal or conviction is determined against accused, he is entitled to plead over and to a trial on his plea of not guilty.72 In determining whether two indictments charge the same offense, the test usually applied is whether the evidence necessary to support the second would support conviction under the first.73 A plea of former acquittal, based on a collusive and illegal proceeding, is properly overruled.74 Defendant is entitled to a jury trial of a plea of former acquittal 75 unless the plea presents only a question of law,76 or unless accused consents to a trial by the court.77

What constitutes a former jeopardy so as to sustain a plea thereof is elsewhere fully discussed.78 A few illustrative holdings are given in the note.79 A

he was entitled to acquittal if he was guilty of simple assault only or if there was reasonable doubt as to such guilt. Walker v

of his plea, and the solicitor pleads that the State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 375, 87 SWV 1043. A conviction of an affray by fighting with one person cannot be pleaded in bar of a prosecution for an aggravated assault upon another. Blekham v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 77. 101 SWV 210. Information charged six illegal liquor sales in different counts and on different dates and defendant was convicted on specified or offense. Held, verdict was not an acquittal on all but one count and, on reversal of conviction, information stood as though no trial had been had. State v. Pianfetti, 79 Vt. 236, 65 A 84.

69 So held in prosecution for illegal sale of liquor. State v. Pianfetti, 79 Vt. 236, 65 A 84.

70 Plea held demurrable. Gregory v. State \[Ala.\] 42 S 829.

71 A plea of former conviction must state where the judgment was rendered, as required by Pen. Code, 8117. People v. Solanl \[Cal. App.\] 91 F 654.

72 State v. Pianfetti, 79 Vt. 236, 65 A 84.

73 Charge of breach of trust of a certain amount on a certain day, and charge of breach of trust of funds of same person in a different amount on a later day, are same. State v. Dewees, 76 S. C. 72, 56 SE 674.

74 One indicted for a midsemeanor was arrested and gave ball. He then went to his attorney's office and the latter directed the jailer to take him into custody, which the jailer did without legal authority. Accused was then taken before county judge and discharged, no notice having been given county attorney or time for trial fixed. Held, plea of former acquittal based on these proceedings should be overruled, whole plan being designed to afford ground for such plea by collusion. McDermott v. Com., 30 Ky. L. R. 1227, 100 SWV 830.

75 State v. Potter, 125 Mo. App. 465, 102 SWV 688; State v. Dewees, 76 S. C. 72, 56 SE 674.

76 Whether acquittal of charge of sale on day following that of sale charged was a bar held for court. State v. Potter, 125 Mo. App. 465, 102 SWV 668. Where a plea of former acquittal is bad on its face, it may be decided by the court without reference to the jury. Watson v. State \[Md.\] 66 A 635.

10 Cur. Law. INDICTMENT AND PROSECTION SS 5. 89

plea of former jeopardy may be interposed at any stage of the trial,80 and in Texas a plea of former jeopardy in the same tribunal may be relied upon without presenting any formal plea.81 The court cannot of its own motion overrule a plea of former jeopardy for defects therein or on facts within his personal knowledge.82 A plea of former jeopardy on the ground that it did not appear affirmatively from the record that the jury were discharged because of inability to agree is properly overruled where the record is amended to show such discharge.83

Footnote 83: The author is grateful to the anonymous referee for the support of the work.

A plea in abatement is proper where there is a defect in the record shown by facts extrinsic thereto.84 Where a so-called plea in abatement does not state facts sufficient to constitute such a plea and contains no negation of any element of the offense charged, it is demurrable.85 Where defendant pleaded in abatement and improper ground raised by the defense is a since he cannot again be tried for embez-former jeopardy. Commonwealth v. Ball, 31

- 90 INDICITMENT AND PROSECTION SS 6. 10 Cur. Law. also not guilty, he is entitled to have his plea in abatement first separately tried and determined." Where a plea in abatement presents questions of law only, it is proper for the trial court to determine such questions without the intervention of a jury," but defendant is entitled to a jury trial of issues of fact." The grounds for the plea are sometimes fixed by statute " and in such case the statutory showing should be made."

If defendant wishes to urge that the offense was committed in another county, his remedy is not by motion to quash or in arrest but by plea in abatement," and the objection that the offense was committed outside the state must be proved as a fact under the plea of not guilty." A plea alleging that the court was not lawfully constituted because the attempted act of the governor in directing the holding of the term and signing the judges' commission was a nullity " is not a plea to the jurisdiction but an attack on the very existence of the court." It therefore cannot be considered, since a court cannot pass upon its own existence as a court." In Georgia, by statute, where the grand juries at two several terms of court act upon a bill of indictment against a person charged with crime and each fails to find the bill true, it is a bar to any further prosecution of the same person for the same offense whether under the same or another name or charge, and such defense may be pleaded in bar or given in evidence under the general issue." In Alabama a plea of insanity must be filed at the time of arraignment." In California under the statutes relating to confession of former conviction, the act of a court in requiring a defendant to plead to a charge of a former conviction is not in excess of jurisdiction " and is not prejudical to defendant."

SS 6. \_Preparation for, and matters preliminary to, trial.\_See S. C. L. 2002--Proper time to prepare should be allowed." The right to service of a copy of the information or indictment," or to have the same read," may be waived, though such statutory provisions should be complied with." An immaterial discrepancy between the 10 Cur. Law. INDICMENT AND PROSECTION SS 6.91

original and defendant's copy is not fatal.\* Bill of particulars may be ordered where the offense is alleged in general terms.\* The prosecution may be allowed to file an additional' bill which merely adds further specification.7 It is commonly provided that accused must be given notice of the witnesses who will be called by the state, by endorsement of their names on the indictment. In Idaho witnesses whose names are not so endorsed cannot be called even in rebuttal.8 In Kentucky, they may be called,\* and in Colorado, their testimony is admissible in rebuttal.10 In some states, they may be called unless defendant establishes a claim of surprise.11 Names of witnesses need not, in Alabama, be endorsed on defendant's copy.12 In Iowa, where proper notice that certain witnesses will testify is duly served, their testimony is admissible though their names are not endorsed on the indictment,13

was served when case was set for trial, but there were one or two continuances where him is reasonable knowledge of the of-state. Keener v. State \[Tex. Cr. App.\] 19

Fonse charged. Commonwealth v. Hartford, Tex. Ct. Rep. 318, 103 SVP 904. In Alabama

193 Mass. 464, 79 NE 184. Indictment against a person accused of violating a city of anti-ance is entitled to a copy of a written complaint showing the nature and cause in violation of 3 U. S. Comp. St. p. 2931, ob-of the accusation against him, whether the cause of action was civil or criminal or in the nature of both. City of Birmingham v.

be made definitive by bill of particulars or new O'Hearm \[Ala.\] 42 S 836. A defect thereof cannot be supplied by a statement of the cause of the complaint filed by the city attorney in the appellate court (Id.), not by a copy of the charge as entered on the docket of the police judge (Id.).

5. Variance between "whose" and "shoot-ing" in indictment and "who" and "shooking" in copy served, not fatal. Andrews v. State \[Ala.\] 44 S 896. Discrepancy between original indictment and defendant's copy, in date of commission of offense, held not to indicate that original had been materially changed since returned by grand jury. State v. Hatstead, 182 Iowa, 188, 109 NW 613.

1. Where an indictment is sufficiently certain, it is within the discretion of the trial court to refuse to require the filing of a bill of particulars. Fields v. U. S., 27 App. D. C. 433. A defendant who desires fuller information in regard to matters not named in the statute as ingredients of the offense, and hence not necessary to be charged, should ask for a bill of particulars as allowed by Revista 1905, SS 244. State v. Long.

143 N. C. 670, 57 SE 249. Under indictment for buriglarising a dwelling, accused was not entitled to a bill of particulars setting forth date of offense: it not being a material ingredient. Drake v. Com., 31 Ky. L. R. 1286, 104 SKV 1000. Indictment charging conversion or moneys, bills, bank checks and drafts belonging to the state and coming into accused's hands as auditor, is sufficiently definite and certain. Accused is not entitled to a bill of particulars showing us, from whom, on what account, etc., moneys, etc., came into his hands. Sherrick v. State, 167 Ind. 846, 79 NE 193. If the indictment alone is not sufficiently full to give the defendant his constitutional right to know the nature of the charge against him, he is entitled to a bill of particulars as a matter of right. Where charge of abortion did not describe instrument used, defendant was entitled to a bill of particulars under Rev. Laws, c. 218, 5 39. Commonwealth V. Sinclair \[Mass.\] 50 NE 79. By Rev. Laws, c. 218, 39, the court may require the state at any stage of a and though they did not appear before the grand jury,\[14\] and such witnesses may testify, without notice, where accused consents at the trial.\[15\] Notice need not be given of the production of letters of the defendant.\[16\] While accused has a constitutional right to be represented by counsel, which right should not be infringed,\[17\] the court need assign counsel to accused only when accused requests such assignment and shows financial inability to employ counsel.\[18\] It is not error to inquire of accused as to his ability to employ counsel in the presence of the jurors.\[19\] Failure to request the appointment of counsel waives the right thereto.\[10\] It is error to require defendant's attorneys to deliver to the prosecuting attorney a transcript of the evidence in a habeas corpus proceeding taken and transcribed for the private use of defendant's attorneys by their own stenographer.\[21\] In Louisiana where accused had made the required oath, he is entitled to summon witnesses beyond the statutory six as matter of right.\[22\]

_Right to speedy trial.\[25\]_ See S. C. L. 206--In the note are given holdings under statutes designed to secure this right.\[23\] Statutes violating the right of accused to a speedy

knew what his testimony would be, it was isimaterial that his real name was H. S. Sanders, and that he was commonly called "Alce" when defendant had notice of this fact. State v. Mathews, 193 Iowa, 898, 109 NIV 616.

\*\*14.\*\*Code, $ 5573, providing that district attorney shall give accused notice of name. place of residence, and occupation of witnesses, who did not appear before the grand jury, is compiled with by a notice containing the name of a person, residence Chicago, and occupation housewife. State v. Harmann \[Iowa\] 112 NW 623.

\*\*15.\*\*Where accused consented to introduction of witnesses whose names were not endorsed on the indictment, and concerning whom no notice had been given, in order to avoid a continuance asked by state in order to give the required notice, it was proper to allow such witnesses to testify. State v. Arthur \[Iowa\] 109 NIV 1083.

\*\*16.\*\*Code, $ 5573, relating to notice of production of witnesses, does not require notice that letters of defendant will be introduced, nor that minutes of the contents of the letters should be attached to the indictment. State v. Bennett \[Iowa\] 110 NIV 150.

\*\*17.\*\*Instruction that jury will not consider remarks of counsel as evidence or for any purpose, unless they are justified by the evidence, does not deprive defendant of his \[Iowa\]. It is not error to inquire of counsel. Spicer v. State \[Tex. Cr. App.\] 20

\*\*18.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Spicer v. State \[Tex. Cr. App.\] 20

\*\*19.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*19.\*\*The preliminary proceedings, It is not error to require accused charged with murder above, 1d.

\*\*14.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*19.\*\*The preliminary proceedings, It is not error to require accused charged with murder above, 1d.

\*\*14.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*15.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*16.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*17.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*18.\*\*The court need not appoint counsel for either accused if he is able to employ counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*19.\*\*The preliminary proceedings, It is not error to require accused charged with murder above, 1d.

\*\*19.\*\*The court need not appoint counsel for either accused if he is able to apply counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*19.\*\*The court need not appoint counsel for either either accused if he is able to apply counsel. Rev. St. 1899, $ 2560. State v. Terry, 201

\*\*19.\*\*The court need not appoint counsel for * 10 Cur. Law. INDICMENT AND PROSECTION SS 6.

- 11.1 trial are invalid. \[34\] Some statutes provide for the calling of a special term for the trial of a person accused of certain crimes. \[25\] Where there is no statutory rule as to placing of criminal cases on the trial calendar common usage prevails and persons accused may be put on trial at any time after arrest, though courts are guided by the guaranty of a speedy trial. \[28\]
- 12.1 _Preliminary inquest as to sanity._ See S. C. L. 204--Under common-law rules and statutes of many states, \[27\] upon a suggestion of insanity at any time before or during trial, the court has power to investigate the sanity of defendant. \[28\] If a statute prescribes a mode of investigation, it should be followed. \[29\] At common law, the investigation may be by a jury, a commission, or by the court, \[30\] the matter being one resting in the court's discretion. \[31\] In some states, the court, having jurisdiction of a person charged with crime, has the exclusive right to determine his mental fitness to answer and make a proper defense. \[32\] In Missouri the court may refuse to summon a jury, if upon investigation it is convinced of the sanity of accused. \[33\] In some jurisdictions, the question of sanity is made a separate issue. \[34\] In others it is held that a preliminary trial of the question of defendant's
- 13.1 _Preliminary inquest as to sanity._ See S. C. L. 204--Under common-law rules and statutes of many states, \[27\] upon a suggestion of insanity at any time before or during trial, the court has power to investigate the sanity of defendant. \[28\] If a statute prescribes a mode of investigation, it should be followed. \[29\] At common law, the investigation may be by a jury, a commission, or by the court, \[30\] the matter being one resting in the court's discretion. \[31\] In some states, the court, having jurisdiction of a person charged with crime, has the exclusive right to determine his mental fitness to answer and make a proper defense. \[32\] In Missouri the court may refuse to summon a jury, if upon investigation it is convinced of the sanity of accused. \[33\] In some jurisdictions, the question of sanity is made a separate issue. \[34\] In others it is held that a preliminary trial of the question of defendant's
- 14.1 _Preliminary inquest as to sanity._ See S. C. L. 204--Under common-law rules and statutes of many states, \[27\] upon a suggestion of insanity at any time before or during trial, the court has power to investigate the sanity of defendant. \[28\] If a statute prescribes a mode of investigation, it should be followed. \[29\] At common law, the investigation may be by a jury, a commission, or by the court, \[30\] the matter being one resting in the court's discretion. \[31\] In some states, the court, having jurisdiction of a person charged with crime, has the exclusive right to determine his mental fitness to answer and make a proper defense. \[32\] In Missouri the court may refuse to summon a jury, if upon investigation it is convinced of the sanity of accused. \[33\] In some jurisdictions, the question of sanity is made a separate issue. \[34\] In others it is held that a preliminary trial of the question of defendant's
- 15.1 _Preliminary inquest as to sanity._ See S. C. L. 204--Under common-law rules and statutes of many states, \[27\] upon a suggestion of insanity at any time before or during trial, the court has power to investigate the sanity of defendant. \[28\] If a statute prescribes a mode of investigation, it should be followed. \[29\] At common law, the investigation may be by a jury, a commission, or by the court, \[30\] the matter being one resting in the court's discretion. \[31\] In some states, the court, having jurisdiction of a person charged with crime, has the exclusive right to determine his mental fitness to answer and make a proper defense. \[32\] In Missouri the court may refuse to summon a jury, if upon investigation it is convinced of the sanity of accused. \[33\] In some jurisdictions, the question of sanity is made a separate issue. \[34\] In others it is held that a preliminary trial of the question of defendant's
- 16.1 _Preliminary inquest as to sanity._ See S. C. L. 204--Under common-law rules and statutes of many states, \[27\] upon a suggestion of insanity at any time before or during trial, the court has power to investigate the sanity of defendant. \[28\] If a statute prescribes a mode of investigation, it should be followed. \[29\] At common law, the investigation may be by a jury, a commission, or by the court, \[30\] the matter being one resting in the court's discretion. \[31\] In some states, the court, having jurisdiction of a person charged with crime, has the exclusive right to determine his mental fitness to answer and make a proper defense. \[32\] In Missouri the court may refuse to summon a jury, if upon investigation it is convinced of the sanity of accused. \[33\] In some jurisdictions, the question of sanity is made a separate issue. \[34\] In others it is held that a preliminary trial of the question of defendant's
- 17.1 _Preliminary inquest as to sanity._ See S. C. L. 204--Under common-law rules and statutes of many states, \[27\] upon a suggestion of insanity at any time before or during trial, the court has power to investigate the sanity of defendant. \[28\] If a statute prescribes a mode of investigation, it should be followed. \[29\] At common law, the investigation may be by a jury, a commission, or by the sanity should be ordered only when he becomes insane after the indictment; the defense of insanity at the time of commission of the crime charged is to be tried at the trial.\[35\] In Washington, where persons accused are found to be insane before trial, they cannot be deported to another state which is their place of residence.\[36\]

SS 7. _Postponement of trial._ See 8 C. L. 204--An application for a continuance is addressed to the sound discretion of the trial court \[37\] and its ruling will be interfered with on appeal only where a clear abuse of discretion appears.\[38\] Subject to this rule, lack of time for preparation,\[39\] absence or illness of counsel,\[40\] illness

**35.**: Constructing statutes on subject of

nonnantly. State v. Crane, 202 Mo. 54, 100

where jury was procured from panel in

SWV 422.

**36.**: Statute providing for deportation of

Where trial has already been postponed

dangerous insane persons (Ball, Ann. Codes

once, it is not an abuse of desertion to

& St. 2650) is invalid because not en-

doney time to prepare a motion for con-

forceable outside limits of state. State v.

tinance after the case is actually called.

King County Super, Ct. \[Vwah.sh\]. 85 P 207.

Williams v. State \[Fla.\] 43 S 428.

Such persons should be kept within the juris-

89.\*\*: Held Proper to deny application for

diction so that they can be tried if they

continance on ground of lack of time for

become same. Id.

preparation. Territory v. Emilio \[N. M.\]

89 P 239. Error to refuse continuance where

Denial of continuance is largely a matter of

defendant was indicated only eight days

discretion. Tedford v. U. S. \[Ind. T.\] 104

before his case was called and defendant

SWV 608. Graniting continuance is discre-

had a material witness who was in another

tionary with the trial court. Common-

county and whom he agreed to have ready

wealth v. Carnes, 30 Ky. L. R. 506, 98 SWV 104.

45.

**38.**: State v. Sublett, 191 Mo. 163, 90 SWV 574.

Denial of continuance will not be reversed

in absence of abuse of discretion. Nick v.

State, 128 Ga. 573, 58 SE 48. Refusal to

grant continuance is not ground for new

trial in absence of abuse of discretion,

danger v. State, 79 Ark. 594, 89 SWV 1003.

In the absence of rule of court or statute,

the court is not bound to follow a custom of

mowwealth v. Delero \[Pa.\] 67 A 764. Refusal

allowing continuances without cause. Commonwealth v. Delero \[Pa.\] 67 A 764. Not

correct for defendant had six days to pre-

space and it did not appear that accused

absence of witness when court was not

were unable to obtain their witnesses or

informed as to where or how affluent

not
his information as to what witness would

more time been granted. State v. Chitman,

testify to. State v. Crane, 209 Mo. 54, 100

117 La, 950, 42 S 437. Refusal of continu

SWV 422. Refusal to allow motion for con-

unance not prejudial where counsel were

thunance for absent witness to be opened

after most of jurors had been impanled,

days after refusal to continue, and case

to show that witness was only temporarily

was simple. Commowealth v. Renzo, 216

absent from the state, cannot be held an

Pa. 147, 65 A 30. Where a prisoner has

abuse of discretion. McFarland v. State

been arrested and complaint filed against

\[Ark.\] 103 SWV 169. Denial of continuance

in, the preliminary hearing may be post-

to secure information concerning jurors held

not an abuse of discretion. Imboden v. Peo-

reasonable time. Code 1904, $ 3963. Hill

ple \[Colo.\] 90 P 608. Denial of continuu-

v. Smith \[Va.\] 59 SE 475. Not error to deny

ance not an abuse of discretion. Territory

continuance in homelice case for pnrpose of

v. Price \[N. M.\] 91 P 738. Where accused

refused to state whether he desired to wait

Moss v. State \[Ala.\] 44 S 498. Not error to

n day for an absent witness who telegraphed

refuse continuance until the relation of

that he was on the way, the court had a

husband and wife was established between

right to proceed. Follis v. State \[Tex. Cr.\].

defendant and a witness so that she would

Appl.\] 19 Tex, Ct. Rep 120, 101 SVV 242.

Not an abuse of discretion to continue

a

case over a term where defendant had

demnred to the indictment and it was

understood that he was standing on the

rule on the indictment until late in the

term. State v. Johnson \[Iowa\] 111 NVV of accused \[41\] and surprise,\[42\] may or may not be ground for a continuance, according to the showing made. A postponement need not be granted to allow time to procure affidavits in support of a motion for change of venue,\[43\]

_Continuance should be granted for the absence of a witness_,\[See 8 C. L. 204 when it is made to appear that due diligence has been exercised to procure the attendance of the witness \[44\] or his deposition,\[45\] and that he will probably be preserly refused. Jones v. State, 12S Ga. 23, vState \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 16S, 57 SE 213. Where defendant employed his 101 SWV. 797. Showing of diligence used in own counsel who was not present when effect to obtain testimony held sufficient case was called owing to unintentional misstatement by solicitor general, and but could not be executed, and that the court refused to postpone the trial and deposition of the witness could not be ob-compelled defendant to proceed with coun- tained. Yants v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 230, 94 SWV 1029. Improper Johnson v. State, 1 Ga. App. 729, 57 SE 1056.

41. Denial of continuance is error where heens who had been subpoaned several days it appears that accused is so weak from Sickness and, wounds that he cannot pro- plec v. Fong Chung \[Cal. App.\] 91 P 105.

ced, and such error is ground for new

Showing as to diligence held insufficient. Irial. Sacra v. Com., 29 Ky. L. R. 1010, 96

State v. Allen, 113 La. 705, 37 S 614; High SWV 85S. Where the only evidence on v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 779, motion for continuance was the affavati of 18 SWV 849; Hull V. State \[Tex. Cr. App.\] 18

atending physician that defendant was in 17 Tex. Ct. Rep. 779, no fit condition to attend because of a

State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 304, 102

wound, and evidence showed that he walked

SSV 921. In the absence of exercise of due diligence to procure attendance of witnesses, a

the doctor's office, 2 blocks, every day, it

continuance will be denied. State v. Bailey was within discretion of the court to

\[Kan.\] 91 P 1066. Defendant is not entitled retuse continuance. Goddard v. State, 78

to have the case remain open one day to

Ark. 226, 95 SWV 476. Motion for continua-

summon witnesses whom he could have had

uance in seduction case, on ground that

at the trial. State v. Vickhair, 118 La. 968,

prosecuritz had not recovered from an ill-

14 S 683. Acussed cannot complain of denial

ness and that her condition would excite

of continuance where he had ample

the sympathy of the Jurons and prejudice

tuity to procure the witnesses at the defendant's case properly denied.

Fucker

rrial. Id. Where diligence in obtaining

v. State. 77 Ark. 23, 90 SWV 151.

witness was not shown, and his testimony

42. Not error to deny motion for con-

on a former trial was read to the jury,

tinance where state substituted more

denial of continuance was proper. State v. specific indictment under which additional

Sublett, 191 Mo. 163, 90 SWV 974. Hold effort

proof was not required and defendant

to learn whereabouts of desired witness

could not have been surprised. O'Donnell

was not sufficient. Yants v. State \[Tex. v. People, 224 Ill. 218, 79 NE 629. In prosec-

Cr. App.\] 16 Tex. Ct. Rep. 230, 94 SWV 1019.

cution for selling liquor in Indian Terr-

Application denied where no effort had been

tory, a witness testified that on day prior

to arrest of accused he saw him and what

testmony appeared improbable. Hall v. he thought was the same liquor at a cer-

State \[Tex. Cr. App.\] 90 SWV 176. Where

tain town. Held not error to refuse to

subpoena was not issued for witness until

promtt continuance on ground of surprise

to procure evidence to rebut such testi-

error to refuse continuance on ground of

mony. Ellis v. U. S., 6 Ind. T. 291, 97 SWV 1013. Refusal of continuance on ground

on ground

54, 100 SWV 422. Afflavit for continua

of surprise proper where defendant had

not requested state's witnesses to disclose

summoned or subpoensens issued for them.

what he would testify to before trial.

Richardson v. State \[Tex. Cr. App.\] 16 Tex.

Afflavit held not to show sufficient effort

Ct. Rep. 220, 94 SWV 1016. Names of cer-

tain witnesses were not inadorsed on indict-

Id. Continuance properly denied where

ment until after jury was sworn. Held

defend ent at the time to which the continuance is taken.40 The present whereabouts of the witness should be shown.41 The application should further show what the testimony of the witness will be,48 that the testimony is competent, relevant, and

$7 SEW 96. Where one continuance had been granted to procure absent witness and no diligence was exercised to procure his attendance, and his testimony was merely impeaching, refusal of second continuance was not error. Wright v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 312, 97 SWF 698. Not error to deny continuance where diligence was not exercised to procure, absent witnesses, and their testimony was of such character that it would probably not change the result. Teese v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 309, 97 SWF 697. An application for a second continuance for an absent witness who was a fugitive from justice stating merely that information had recently been received that he was at a certain place in another state, and that there had not been time to get his deposition, is insufficient as not showing efforts to ascertain his whereabouts. Moore v. State \[Tex. Cr. App.\] 96 SWF 321. Where it appeared that accused was indicted two months before date of trial, had counsel all the time, and no showing was made why absent witnesses had not been served with process before they left the county, held sufficient diligence not shown. Harper v. State \[Tex. Cr. Rep. 304, 103 SWF 921. State, 73 Ark. 594, 96 SWF 1003. Continuance to procure absent witness properly denied where no diligence was shown and evidence was cumulative and implementing. White v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 399, 98 SWF 264. Application for continuance to procure absent witnesses, who had left county two or three months before the trial properly denied for want of diligence, where no effort was made to procure their testimony. Early v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 272, 103 SWF 868. Motion to postpone because of absence of witnesses properly denied where not made until after trial opened and there was no sufficient showing of diligence, Welch v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 522, 95 SWF 105.

45. No abuse of discretion in denying continuance where cause was postponed a month by a change of venue, and accused had secured an order allowing him to take the depositions of the absent witnesses and one was taken and no reason appeared why the other was not taken, and both witnesses were out of the state. Rucker v. State, 77 Ark. 25, 90 SWF 151. No error to refuse continuance to allow deposition of absent witness to be taken in another state. State v. Crane, 202 Mo. 54, 100 SWF 422. Continance for absent witness properly denied where it appears that he is nonresident and the motion does not show why his deposition was not taken or how his testimony is to be procured. McFarland v. State \[Ark.\] 103 SWF 169.

01. Motion for continuance properly denied where it was not shown that desired testimony could be procured at the next term of court, nor that application was not made merely for delay. Jones v. State, 128 Ga. 23, 57 SE 318. Where material witness lived eight miles from court house and could have been procured in short time, a postponement should be allowed. Stegar v.

- 10 Cur. Law. INDICMENT AND PROSCUTION SS 7. 97
- 10.2 material,49 probably true,50 and not merely cumulative,51 corroborative,52 or im-

and % he knows of this from information refused. White v. State \[Tex. Cr. App.\] 18 only, he ought to submit the affmadvit of his program. Bradley v. State, 18 Ga. 20, properly refused where evidence desired was immaterial to defense. Woodrich v. State \[Tex. Cr. App.\] 90 SWV 828. In assault ground for continuance. Doss v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 614, 95 SWV 1040; held not sufficiently material to require a continuance. Davis v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 149, 97 SWV 66; Keyes v State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 219, 102 SWV 1122. Denial of continuance for 1165. Early v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 272, 103 SWV 865; Washington v. White \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 301, 103 SWV 829. Not error to deny postpone. 19 Tex. Ct. Rep. 138, 101 SWV 887. Application for protecure witness to testify that defendant had had a difficulty with companion of deceased. Doss v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 614, 95 SWV 1040; been communicated to defendant properly Denial of continuance because of absent witness held proper where it appeared that the SWV 1043. Where testimony of absent witnesses did not appear to be material to the outcome of the case. Williams v. State \[Tex. Cr. App.\] 19 Tex. Rep. 222, 103 property refused. Johnson v. Com., 29 KY. SVV 1147. Refusal of continuance for absent witnesses in. A case in which ins insantly is a adjuornment for testimony which would defense is harmless where it appeared that probably not change result of the trial. such witness heard defendant yeilling in State v. Finn, 199 Mo. 597, 98 SWV 9. Motion middle of night and found him in road in a fit where it does not appear whether that the testimony is material, as required defendant was intoxated or what caused by rule of court, properly denied. State v. the condition. Young v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 178, 102 SWV 1144. Absent testimony held material; Continance should have been granted to procure testimony would have resulted in a differ-

- 10.3 current verdict, denial of continuance is not and witness for the state were together and reversable error. Harris v. State \[Tex. Cr. on Apply.\] 20 Tex. Ct. Rep. 144, 105 SWV 801. and that deceased made a statement tend-
- 10.4 current verdict, denial of continuance is not and witness for the state were together and reversable error. Harris v. State \[Tex. Cr. App.\] 94 SWV 1051. Testimony of ant, it was proper to refuse a continuance
- 10.5 current verdict, denial of continuance is not and witness for the state were together and reversable error. Harris v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 144, 105 SWV 801. and that deceased made a statement tend-
- 10.6 current verdict, denial of continuance is not and witness for the state were together and reversable error. Harris v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 144, 105 SWV 801. and that deceased made a statement tend-
- 10.7 current verdict, denial of continuance is not and witness for the state were together and reversable error. Harris v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 144, 105 SWV 801. and that deceased made a statement tend-
- 10.8 current verdict, denial of continuance is not and witness for the state were together and reversable error. Harris v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 144, 105 SWV 801. and that deceased made a statement tend-
- 10.9 current verdict, denial of continuance is not and witness for the state were together and reversable error. Harris v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 144, 105 SWV 801. and that deceased made a statement tend-
  peaching," and that the same facts cannot be proved by other available witnesses."44 In some states a continuance will be granted though due diligence be not shown, if it appears that the testimony sought to be obtained is material and probably true."55 The mere fact that the state will contradict the testimony of the absent witness is no ground for refusing a continuance,"56 and it is not proper to pass upon the credial.

Rep. 128, 97 SVW 499; Purdy v. State \[Tex. State \[Tex. Cr, App.\] 19 Tex. Ct. Rep. 225, Cr. App.\] 17 Tex. Ct. Rep. 295, 97 SVW 480. 102 SVW 1152; Early v. State \[Tex. Cr. App.\] Continuance need not be granted where new evidence is not material and probably untrue. Crenshaw v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 257, 100 SVW 1197. Application for a continuance properly denied where it appears that the evidence sought is probably untrue. Searles v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 873, 105 SVW 151. Continuance for absent witnesses properly refused where their names were not among those defendant desired summmed and it appeared that their residence was unknown and that their testimony would probably not be true. Davis v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 218, 102 SVW 1150. No error in refusing continuance for absence of witness when it was not shown that he would return, and the record showed his testimony would be untrue. Andrews v. State \[Tex. Cr. App.\] 100 SVW 522. Continuance properly denied where no subphase for absent witnesses was served, and defendant did not know where they were, and the testimony they would give was disproved by defendant's testimony and that other witnesses. Shelton v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 41, 100 SVW 955. Not error to refuse continuance in order to procure nonexpert testimony to insainty of accused, where most of the witnesses were beyond the jurisdiction, and it appeared that they had not seen accused for some time, and the testimony they would give appeared, in the light of that received, to be probably untrue. Turner v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 35, 89 SVW 975. Application for continuance properly denied where substance of it was contravened by testimony of accused and rendered improbable by testimony on trial. Baird v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 123, 101 SVW 991. 51. Not error to refuse a continuance for cumulative evidence. Harper v. State, 79 Ark. 594, 96 SVW 1003; Washington v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 301, 103 SVW 879; Kelley v. U. S. \[Ind. T.\] 104 SVW 604. No continuance for witness who would testify to same facts as three eyewitnesses testified to. Cravens v. State \[Tex. Cr. App.\] 19 Tex. Cr. Rep. 304, 103 SVW 921. When testimony of absent witness would be cumulative only, held not error to refuse continuance on ground of absence of witness. State v. Crane, 202 Mo. 54, 100 SVW 422. Where all of defendant's testimony eliminated question of self defense, it was not error to deny continuance to procure evidence of threats. Williams v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 224, 103 SVW 1147. 52. Refusal of continuance for purposes of procuring testimony which would be only corroborative held not an abuse of discretion. Gallaher v. State, 78 Ark. 299, 95 SVW 463. Not error to refuse continuance for merely impeaching evidence. Rector v. State \[Tex. Cr. App.\] 90 SVW 41; Corpus v. 921. 53. Not error to refuse continuance for merely impeaching evidence. Rector v. State \[Tex. Cr. App.\] 90 SVW 41; Corpus v. 922. 54. Not error to refuse continuance for arbitrary types of evidence. Harper v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 225, 103 SVW 868; Benson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 257, 101 SVW 911. Not error to refuse a continuance to procure impeaching testimony, no foundation having been laid for impeachment. Harper v. State, 79 Ark. 594, 96 SVW 103. 54. Not error to deny continuance for a witness where one who knew the facts was present in the court room at the trial. Caddell v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 275, 97 SVW 705. Discreation in overwriting motion for continuance for absent witnesses held not abused where it did not appear that tact could not be proved by other testimony. Renfore v. State \[Ark.\] 104 SVW 542. Continuance will not be granted for speculative testimony which is provable by other witnesses. Corpus v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 225, 102 SVW 1152. Second application for a bility of the absent witness in ruling upon the application for a continuance." But it is proper to deny a continuance where the affidavits in support of the motion are, on investigation, found to be false," as where an affidavit of the absent witness is attached to the motion denying the showing made as to what he would testify to." Refusal of a continuance is proper, in some states, where the state offers to admit that the witness will testify as stated in the application." An affidavit for a continuance cannot be contradicted," when the state has admitted that a certain absent witness, if present, would testify as set forth in the affidavit," and where the affidavit is by accused, it is prejudicial error to admit an attachment for the absent witness with the sheriff's return showing that witness was out of the jurisdiction." The rule as to diligence in procuring attendance of witnesses for whose absence a continuance is asked is less strict on a first application than on a second one." A third or fourth application for a continuance because of absence of the same witness should be overruled." Absence of a witness whose testimony on a former trial has been preserved by bill of exceptions is not, in Missouri, a ground for continuance."

_The application_\[see e.g. C. L. 206\] must make the showing required by the statute " and be properly verified." A statement by counsel that no objection is made to the form of an application does not waive matters of substance."

87. In passing upon a motion for a continuance, it is error to pass upon proof of S 495.

a statement by the absent witness contra- dictory to the testimony shown in the motion, and to weigh in advance the testi- dancy of the absent witness. Sneed v. Ct. Rep. 407, 93 SW740.

State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 820, 100 SW 922.

88. Where affidavits in support of motion for continuance to procure absent witnesses were investigated, and process issued for witnesses and it appeared that they had not been in the county for more than one year, held not error to deny continuance on ground that affidavits were false. Fitzgerald v. Com., 30 Ky. L. R. 349, 98 SW719.

01. Tune v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 249, 94 SW7231.

01. Continuance properly refused where state admitted truth of testimony of absent witnesses. Jackson V. State \[Tex. Cr. App.\] 90 SWV 34. Accused stated what he expected to show by absent witness, and state offered to admit he would so testify if the matter was properly reduced to writing, and testi- mony was merely cumulative. Held not error to deny continuance. Gaines v. State, 146 Ala. 16, 41 S 865. Where there was no showing that absent witness would be present at the next term, and the state offers to admit that he would testify as stated, a refusal of a continuance is not improper. State v. Williams, 76 S. C. 135, 56 SE 783. Where state offered to admit that witnesses if present would testify to facts stated in affidavit for continuance, it was held no error to deny continuance. Foster v. State \[Neb.\] 112 NW 656. Not error to deny continuance where state admits that witnesses would so testify and the fact could be otherwise proven. Richberger v. State \[Miss.\] 44 S 772. Comp. Laws 1897, 5 2987, authorizing denial of continuance for absence of witnesses if other party will admit that absent witness, if present, will testify as alleged in the appli- cation, applies in criminal cases. Territory v. Emilio (N. M.\] 89 P 239.

## 8. Dismissal or noble prosequi before trial

See 8 C. L. 200.--The practice as to entering a noble prcesqui varies.\[70\]

## 9. Evidence. Judicial notice

See 8 C. L. 200.--Judicial notice will be taken of public laws,\[71\] including acts of congress,\[72\] and of special acts of the legislature by which prohibition is in force in particular portions of the state \[73\] or the jurisdiction of city courts established.\[74\] Municipal ordinances will be judicially noticed by municipal courts,\[75\] but not by other courts,\[76\] nor will any other court take judicial notice of conditions in a city by which the reasonableness of an ordinance may be determined.\[77\] Upon appeal from a city court to a higher court and a trial de novo therein, the latter will take judicial notice of whatever facts the municipal court is required to judicially notice upon the trial therein.\[78\] But a different rule prevails in the supreme court, where such cases are not triable de novo, and such matters must be included in and made a part of the record presented for review.\[79\] Judicial notice will be taken of the names and signatures of officers of the court,\[80\] of the duties of the sheriff,\[81\] of facts concerning the public survey,\[82\] of facts of common knowledge,\[83\] and that a certain city is in a certain county of the state,\[84\] but not that a certain precinct is in a certain town.\[85\]

## 10.1 In prosecutions for violations of such ordinances. Steiner v. State \[Neb.\] 110 NWP

2.1 Held proper to allow prosecuting attorney to dismiss a count charging defendant as accessory without filing written reasons. Tune v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 249, 94 SWF 231. Held proper to allow collector to noble prosequi first indicent with aowed purpose of getting out a second and coupling the trial of defendant with that of another charged with a separate offense. State v. Thomas 15 S. C. 477, 55 SE 893. Where on motion to-direct a verdict of not guilty the court intimates that the evidence does not show an offense, the state may enter a noble prosequi. State v. Hamilton \[Del.\] 67 A 836. A discontinuance must be the act of a prosecuting officer indicating his intention to abandon the prosecution. Does not result from omission of a ministerial officer. Smith v. State \[Ala.\] 43 S 129.

3.1 Judicial notice will be taken that common law of marriage is in force in Indian Territory. Porter v. U. S. \[Ind. T.\] 104 SWF 855.

3.2 Court of criminal appeals will take judicial notice that United States has passed statute making laws of Arkansas operative in Indian Territory. Blink v. State \[Tex. Cr. App.\] 85 SWF 107%.

3.3.3.4.5.6.78.8.

## 10 Cur. Law.

INDICMENT AND PRINCENTIONS 8? JERRARY101

\_Presumptions and burden of proof.\_See & C. L. 207.-Innocence being presumed," the burden is upon the state 87 to establish beyond a reasonable doubt 88 every essen-

money unit of the United States of the value could acquut held improper because placof 100 cents, and will also recognize the different kinds and denominations of currency issued by the United States. McDonald v. State \[Ca. App.\] 19 Tex. Ct. Rep. 163, 101 SVW 800. State \[Ga. App.\] \[58 SE 1067. Judicial notice will be taken of what is meant by "green-be-k". Id.

_Judicial notice cannot be taken that ".ough on Rats" contains arsenic and is always applied to the same compound. State v. Bydenburg \[Lowan\] 112 NW 634. The court does not judicially know that "Hop ale" and "Hop Jac" are matl liquons. Daniel v. State \[Ala.\] 43 S 22. Court cannot Judicially notice that cotton is a thing of value to supply deficiency in indictment for lareven. Wright v. State, 1 Ga. App. 158, 67 SE 1050._

_84. Judicial notice will be taken that a certain city is in a certain county. State v. State \[Iowa\] 113 NW 322._

_85. Courts cannot take judicial notice that a certain precinct is in a certain town where boundaries of such precinct are subject to change by county court. State v. Carmody \[Or.\] 91 P 441._

_85. In every criminal case the accused is presumed to be innocent until his guilt is proved beyond a reasonable doubt. State v. Johnse \[Del.\] 65 A 763; State v. Samuels \[Del.\] 67 A 164; State v. Honey \[Del.\] 65 A 764; State v. Wolf \[Del.\] 66 A 739; State v. Stewart \[Del.\] 67 A 786; United States v. Richards, 149 F 443; United States v. Cole, 154 F 890. The presumption of innocence is sufficient to turn the scales in a doubtful case. State v. Samuels \[Del.\] 67 A 164._

Finding of indictment by grand jury is no evidence of guilt. United States v. Richards, 149 F 443. One accused of murder is presumed innocent and is entitled to acquutil unless guilt is proved beyond a reasonable doubt. Watkins v. Comm., 29 Ky. L. R. 1273, 97 SWV 740. The presumption that one would not remain a party to a conspiracy to defend after his co-conspirators had adopted a criminal course overcomes the presumption that he is still a party arising from proof of prior connection with it. Dalton v. U. S. \[C. C. A.\] 154 F 461. Charge that presumption of innocence casts on state burden of showing guilt beyond a reasonable doubt, and that if guilt is so proven the presumption of innocence can have no effect, held correct. Harrison v. State \[Tex. Cr. Ala.\] 43 E 764 S 568. The presumption of innocence terminates upon the introduction of evidence which satisfies the jury beyond reasonable doubt. Strickland v. State \[Ala.\] 44 S 90.\_

\_87. Instruction held erroneous as placing the burden of proof on defendant. Cooper v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 115, 89 SWV 816. Under an indictment charging that defendant did "then and there" commit the assault, the state has the burden to prove such 'allegation, and a charge that defendant had the burden to prove an milieu set up by him is error. Glover v. U. S. \[C. C. A.\] 147 F 426. Instruction requiring jury to find that defendant between nine and thirteen years of age did not have sufficient discretion to understand the nature and illegality of the offense before they tial element of the crime charged. \[99\] The essential facts necessary to be shown to prove the commission of the offense by the principal must also be shown on trial of an accessory. \[90\] The burden is upon defendant to prove any special defense, \[91\] but

\\begin{tabular}{l l l} dence. United States v. Dexter, 154 F 890. & has elapsed, the state has the burden to \\ A reasonable doubt is a substantial one & prove that the offense was committed within \\ & maining in the minds of the jury after & the period, Nelson v. State \[Ais.\] 43 S 966. \\ & consideration of all the evidence, and not a & Conviction cannot be had without proof of \\ & mere vague or fanciful one, State v. Tyre & the corpus deletti beyond a reasonable doubt. \\ & \[Del.\] 67 A 199; State v. Stewart \[Del.\] 67 A & Tatum v. State, 1 Ga. App. 778, 67 SE 956. \\ & 786; State v. Johns \[Del.\] 65 A 761; State v. Honey & \\ & \[Del.\] 65 A 764; State v. Uzzo \[Del.\] 65 A & \\ & 776. A reasonable doubt entertained after & \\ a consideration of all the evidence inures & to the benefit of the defendant. State v. & Stewart \[Del.\] 67 A 786. \\ & beyond a reasonable doubt in a consid- & \\ & creation of all the evidence the truth of the & facts is shown to a reasonable and moral \\ & certainty and satisfies the judgment of & those bound to act conscientiously by it. \\ & State v. Samuels \[Del.\] 67 A 164. Reasonable doubt is a reasonable substantial doubt & \\ & remaining in the minds of the jury after & \\ & careful consideration of the evidence, and & \\ & such doubt as reasonable men would entertain & \\ & tail under the circumstances. State v. & Cebhus \[Del.\] 67 A 150; State v. Briscoe & \\ & \[Del.\] 67 A 154; State v. Wright \[Del.\] 66 A 739. & \\ & 864; State v. Stewart \[Del.\] 67 A 786; State v. Cepheus \[Del.\] 67 A 160; State v. Prince & \\ & \[Del.\] 67 A 154; State v. Samuel \[Del.\] 67 A 164; State v. Fleetwood \[Del.\] 65 A & \\ & 772. The state must prove that the offense & \\ & was committed prior to the accsation, pre- & sentiment, or indictment. Askew v. State \[Ga. App.\] 59 SE 311; Tharpe v. State \[Ga. App.\] 58 SE 1070. Under indictment for & \\ & passing a forged check on a bank, "a corporation," it is necessary to prove incorporating of the bank. Visdom v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 74, 95 SW 505. \\ & The state must prove an allegation in the & \\ & Indictment that the robbery was committed & \\ & on a person to the grand jury unknown. & \\ & Floyd v. State, 80 Ark. 94, 96 SWV 125. Where & \\ & an offense is alleged to have been unknown & \\ & to the state, it need only be shown that it & \\ & was unknown to the prosecector in order & \\ & to make prima fancf procof of the allegation. Cohen v. State \[Ga. App.\] 59 SE 4 & \\ & Under Rev. Laws, c. 208, to warrant \\ & Viction of one as accessory before the fact & \\ & it must be shown that someone committed & \\ & the principal felony, that is, that when he \\ & committed the set he had guilty intent. & \\ & Commowealth v. Asherowski \[Mass.\] 82 & \\ & NE 13. Where evidence to prove an essenst- & \\ & tail element of the offense is excluded on & \\ & objection of defendant, no evidiction can be & \\ & bad. People v. Burnham, 104 NYS 725. Proof & \\ & of a headline attached to a newspaper article is insufficient to sustain indictment for & \\ & libel. Miller v. State \[Ark.\] 99 SWV 633. & \\ & In prosecection for obtaining money by & \\ & false pretenses from a corporation, the state & \\ & need not prove the fact of incorporation. & \\ & State v. Briscoe \[Del.\] 67 A 154. In larceny & \\ & it must be shown that the property taken & \\ & was personal and that it was taken by & \\ & defendant. State v. Wolf \[Del.\] 66 A 739. & \\ & Asportation must be shown. Id. Intent to \\ & steal must be shown. Id. Where accused & \\ & testifies that more than the statutory period & \\ & & this burden is sustained by a preponderance 92 of all the evidence.93 Where a pro-viso or exception does not form a part of the description of the offense, but withdraws or excepts a case or class of cases from the operation of the statute, the burden is upon defendant to bring himself within the exception; 94 if the exception or proviso merely forms a part of the description, it must be negatived by the indictment and the state must prove the negative allegation.95 Only the absence of a reasonable doubt on the part of the whole jury will justify conviction; 96 if any individual juror entertains a reasonable doubt, accused must be acquitted.97 The presumption of innocence is not a matter of evidence 98 but is a conclusion of law having no relation to a condition of. mind produced by proof.99 The law presumes that a person intends the ordinary consequences of his voluntary act,1 but no such presumption arises from an accidental act.2 The suppression of testimony raises a presumption that if produced it would be unfavorable to the party suppressing it,8 but no presumption arises from failure to call a witness who could not have known material facts,4 and testimony is admissible to account for the absence of a witness whose testimony is material.5 Identity of name is presumptive evidence of identity of person.6 A condition shown to exist is presumed to continue until its nonex istence is shown," but the presumption of continuance of insanity obtains only when a permanent form is shown." One presumption of fact cannot be based upon another presumption of fact."

_Relevancy and competency in general_. See s C. L. 207...In general, all evidence, otherwise competent, having any tendency to prove or disprove any fact in issue,10 is

- **7.** In seduction where a woman is proven unchaste, the presumption is that she so continues. Kerr v. U. S. \[Ind. T.\] 104 SVN 809.
- **8.** The rule that insanity once shown to exist is presumed to continue applies only where such insanity or the cause thereof is permanent in nature. Sims v. State \[Tex. Cr. Cr. Rep. 28, 101 SV 218. Where theory of defense was that the crime was committed by a witness for the state who testified that he was present at the time, statements continue, and the burden is upon the state to show sanity at the time of committing the defense. Vooten v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 157, 102 SV 416.
- **9.** Vaughn v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 96, 101 SV 445.
- **10.** Heid admissible: In assault with intent to kill, evidence that defendant had a pistol at time of assault is admissible as tending to show character. State v. Spaugh, 193 Mo. 147, 9: SVW 901. Certain evidence as to whereabouts of accused held properly admissible on question of ailbl. People v. Pembroke \[Cal. App.\] 92 P 668. Where the state introduced an exclamation made by deceased as he was shot, defendant could throw the basis of such exclamation. State v. Lively, 119 La. 363, 44 S 128. Where defendant claimed he had paid a fine in a certain case because it was cheaper than to stand trial, it was proper to allow justice to testify to conversation at the time showing that fine was made only $5 out of consideration for defendant's family. People v. De Camp. 146 Mich. 533, 18 Det. Leg. N. 862, 108 NV 1047. Accused should be allowed to explain away unfavorable inferences from evidence against him. Pitman v. State \[Ala.\] 42 S 993. Proof of keeping liquor for sale after date alleged in indictment thereof held admissible. State v. Kennard \[N. H.\] 65 A 376. Proof of shows going on at time admissible to fix time of killing. Nelson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 140, 101 SVW 1012. In prosecution for maintaining a nuisance in conducting a saloon where it does not appear that it was conducted in a disorderly manner, evidence is admissible that accused had a license. Sopher v. State \[Ind.\] 81 NE 913. In prosecution, certain notes showing that defendant had a business transaction with a third person on a certain date were admissible to prove a material date. Ellington v. State \[Tex. Cr. App.\] 99 SVW 927. Accused having pleaded insanity and introduced a judgment of the county court finding him insane, statements by persons who knew him and had dealings with him that they had not noticed anything wrong with him, etc. were admissible to show that he had become same. Taylor v. State \[Tex. Cr. App.\] 90 SVW 647. On prosecution for robbery, evidence that other parties might have committed it is admissible. Chancev v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 526, 96 SVW 12. Where defendant attempted to prove anilbl, evidence that he was in the city where the robbery was not admissible whether direct or circumstantial,11 and its remoteness goes ordinarily to its weight and not to its admissibility,12 though evidence only remotely relevant may be excluded in the discretion of the court.13 Evidence is admissible which tends to connect accused with the crime,14 to show his mental capacity and condition,15 to

Footnote 13: The author is grateful to the anonymous referee for his comments on the manuscript.

to do with the commission of the crime. Ross v. State \[Tex. Ross v. State \[Ind.\] 82 NE 781. Error to Admit testimony that accused was man witness had seen when accused was at the time under arrest. Ripley v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 49, 100 SWP 943. That the statutory reward has been claimed and paid by the county for the arrest of defendant in a homicle case cannot be shown. Boykin v. State, 89 Miss. 19, 42 S 601. Testimony of sheirift that he had received information that would have caused him to arrest one oTher than defendant not admissible. Chan- cey v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 526, 96 SWP 12. In prosecution for seduction, evidence that prosecuting witness had been offered money to dismiss a pending civil action held inadmissible. State v. State, 89 Nugent, 134 Iowa, 237, 111 NWP 927. In local option case, evidence that accused had been in liquor business prior to alleged sale held inadmissible. Harris v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 270, 97 SWP 704. Proof that rolls of false money were found in defendants possession some months after commission of larceny inadmissible, no connection being shown. People v. Smille, 118 App. Div. 611, 108 XYS 848. In prosecution for burigarty, testimony that about a month after alleged offense witness went to scene of burigarty and tracked supposed perpetrator to certain place and there arrested defendant is not admissible. Jordan v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 596, 96 SWP 35. In homicle, evidence that deceased had raped a woman and was forced to marry her was inadmissible. Serna v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 133, 105 SWP 795. In homicle it was not error to exclude testimony that defendant's brother offered his own horse for comparison of tracks claimed to have been made by defendant's horse. Sasser v. State \[Ga.\] 59 SE 255. In homicle, the widow of decedendar may not state number and ages of her children. State v. Rutledge \[Iowa\] 113 NWP 461. In prosecution for unlawfully keeping liquor, a search warrant and return thereon are not admissible. State v. Collins \[R. L\] 67 A 796. Evidence concerning business of deceased, that it had made him enemies who threatened him with personal violence, 1s irrelevant. State v. Barrington, 183 Mo. 23, 95 SWP 235.

**11.** Circumstantial evidence is admissible though there are eye-witnesses. Commonwealth v. Karamarkovcl \[Pa.\] 67 A 650. Consistency may be proved by facts from which conspiracy may be inferred. State v. Sykes, 191 Mo. 62, 88 SWP 851. Proof that defendant and another who admitted guilt were recently frequently together before the crime was admissible to show conspiracy. State v. Arthur \[Iowa\] 109 NWP 1083. Where it appeared that deceased was shot by a man standing behind a clump of bushes, evidence of tracks there was admissible though there was no evidence of size of shoes worn. Doss v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 514, 95 SWP 1040. In prosecution for theft of cotton, proof of tracks on the scene was not error though they were not conspiracy.

show animus, motive, or intent.10 While the expectation of receiving money may be shown in some cases as a motive for crime,11 proof that accused was in indigent circumstances and of his financial condition is usually excluded.18 Proof of the conduct of a bloodhound which was put on a trail and which led the searchers to accused was held competent19 at least in corroboration of other evidence identifying tracks as those accused.20 Immaterial evidence should not be admitted though the court is of the opinion that it is harmless to defendant, and such evidence, if admitted, should be stricken on motion.21 On trial of one as an accomplice, evidence inadmissible against the principal is inadmissible against the accomplice,21 but guilt of the principal may be shown by any legitimate evidence.23 Though an indictment may be returned not true as to one of two defendants, evidence competent against both is competent against the other defendant.24

Footnote 23: The author is grateful to the anonymous referees for their comments.

_Acts disclosing consciousness of guilt,25 such as flight,26 concealment,27 resistance of, or attempts to prevent, arrest,28 attempt to escape from custody,29 failure_

signed by him shortly after the homicide, a forgery, evidence which would be inad-held admissible on the issue of insanity, it also appearing that he had read and understood the peeling. Peeling v. Willard, 150 Cal. 543, 89 P 124. To overcome presumption that boy under fourteen is incapable of having a felonious intent, evidence that witness knew him, that he was bright, that talked with good sense, held competent. Neville v. State \[Ala.\] 41 S 101L.

16. In homicide, evidence tending to show animus of defendant toward deceased is admissible. Morris v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 40, 98 SV 873. Proof of motive is admissible in homicide cases, as that decedent had procured an indictment against accused and had started suit for slander against him. Ball V. Com., 31 Ky. L. R. 188, 101 SV 956. Proof that deceased had large sum of money which accused took held admissible in homicide case. State v. Bailey, 7S Conn. 589, 65 A 961. In assault case, proof of other assaults at the same time and parts of the same occurrence was admissible to show motive. Greenwell v. Com., 30 Ky. L. R. 1822, 100 SV 852. In assault with intent to kill where wife of person assaulted testified that defendant insulted her, her testimony that she told her husband of the insult was admissible on question of motive. Harzill v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 360, 97 SV 1057. In prosecution for homicide committed in an attempt to produce an abortion, evidence that defendant had previously solited patrange and held herself out as able and willing to produce an abortion was admissible. Clark v. Peeling, 224 Ill. 554, 79 NE 941.

01. As that accused had spoken of his father, whom it was charged that he killed, having money in the bank. Johnson v. State, 128 Ga. 71, 57 SE 84.

01. May be admissible in trials for minor crimes, but not where charges are of a grave nature, such as murder. Johnson v. State, 128 Ga. 71, 57 SE 84.

19, 20, State v. Hunter, 143 N. C. 607, 56 SE 547.

21. HISler v. State \[Fla.\] 42 S 692. Where defendant is an Indian, the court should be more careful than usual to observe the rules of evidence, since the jury may have been prejudiced on account of race of defendant. Peeling v. Solomon, 106 TXS 1110.

01. On a trial of one as an accompllee to to appear and stand trial,\[30\] attempts to suppress evidence,\[81\] or the prosecution,\[32\] attempt to corrupt juror on former trial,\[38\] accused being connected therewith,\[34\] may be proved. Accused should be allowed to explain or rebut inferences arising from proof of such facts.\[38\] Thus, the fact of flight being shown, defendant may submit evidence tending to explain the same, or showing the reasons and considerations which caused him to flee.\[39\] But a defendant cannot, except under peculiar circumstances, show that he did not become a fugitive, when accused or suspected of the crime.\[37\]

\_Other offenses, convictions, and acquittals.\_See s C. L. 210_Proof of other distinct and separate offenses is usually inadmissible.\[38\] Exception is made however, of

sault on witness as latter started for officers to show flight, proof that defendant was arcl to arrest defendant admissible. Scott v., rested at his home and made no resistance was properly excluded. Delaney v. State \[Ala.\] 42 S 815. The fact that the state proved that defendant surrendered after the that in escaping defendant shot at a person who attempted to stop him. State v. Spaugh, 200- Md. 571, 98 SWV 56. Attempt to escape from posses trying to arrest accused may be "disup". Taylor v. State \[Tex. Cr. App.\] 90 1 necessity, where the offenses are so blended that proof of one necessarily involves proof of the other,39 both being parts of one transaction,40 or where evidence otherwise admissible incidentally tends to show another offense,41 or when necessary to rebut an inference from a fact in evidence.42 Evidence of other crimes is also admissible to show motive43 to establish the identity of the person charged,44 to prove knowledge or intent,45 or where the several offenses form part of a single sys tem,46 and occasionally as part of a circumstantial ease.47 Where an offense is a

United States v. Dexter, 154 F 890. In prose-

admissible on question of intent. People v.

Letvin of post office clerk for emhezzling

letters containing articles of value, evidence

of other offenses of like nature is admissible

inert, preceding false reports are admissible

on intent. State v. Jackson \[S. D.\] 113 NWV S. \[C. C. A.\] 163 F 551. In Georgia, where

one is prosecuted upon appeal before the

mayor and aldermen of a city for a violation of an ordinance, it is not error to admit

giving like prescriptions to other the same

evidence of the violation of the ordinance

by defendant on one or more days different

ford v. State \[Tex. Cr. App.\] 19 Tex. Ct.

from those alleged in the accusation. Bell

Y. Forsyth, 126 Ga. 448, 55 SE 230. In prose-

charge of threats to accuse of crime to ex-

cution for receiving stolen goods, evidence

of other like offenses held admissible to

others is admissible to show intent. State

show guilty knowledge. Lipsey v. People, continuing one, evidence that the same state of affairs existed before and after the date laid is admissible on the question of intent.\[48\] The application of these rules in prosecution of crimes whose gravamen is voluntary sexual intercourse is discussed in articles dealing with those crimes.\[49\]

The fact of prior indictment \[50\] or conviction \[51\] is usually inadmissible, except on the issue of credibility as a witness,\[52\] or where former convictions are charged.\[58\]

_Character and reputation.\[58\]_ See s C. L. \[21\].\_ Defendant may always offer evidence of his character at the time of the alleged offense and have the same considered as substantive evidence in his favor.\[54\] When defendant thus places his character in issue,\[55\] it is open to attack by the state.\[56\] Proof should be confined to traits involved,\[87\] and to times prior to the offense charged.\[58\] In prosecutions for criminal offenses against females, where the character of the female is directly involved.\[51\]

\[52\]

\[53\]

\[54\]

\[55\]

\[56\]

\[57\]

\[58\]

\[59\]

\[57\]

\[58\]

\[59\]

\[58\]
10 Cur. Law. INDICMENT AND PROSECTION SS 9. 111

evidence thereof is relevant.\[59\] In homicide cases the character of deceased for peace and quiet cannot be shown by the state, until attacked by defendant.\[60\] Proof of reputation must be limited to knowledge of reputation,\[61\] but evidence that witness never heard anything against defendant is admissible for what it is worth.\[62\]

_Hearasy.\[56\]_ & C. L. 122--Unsworn statements of third persons, not in the presence of accused,\[63\] and testimony based on information derived from others,\[64\] is inadmissible, aside from a few well-known exceptions.\[65\]

59. As in prosecution for eloping with a married woman previously of chaste character, State v. Connor, 142 N. C. 700, 55 SE 787.

witness told a policeman that defendant and 60. For discussion of evidence on this issue, see Homicide, & C. L. 106, In homicide the state cannot in the first instance put that the officer did not dare to arrest them, character of deceased in issue as being a peaceable man. Furyear v. State \[Tex, Cr. App.\] 17 Tex. Ct. Rep. 721, 98 SVW 258.

41. Character evidence on behalf of defendant must be limited to the witness' knowledge of this reputation and cannot be 64, 43 N. C. 700, 55 SE 787.

01. For discussion of evidence on this issue, see Homicide, & C. L. 106, In homicide the state cannot in the first instance put that the officer did not dare to arrest them, character of deceased in issue as being a peaceable man. Furyear v. State \[Tex, Cr. App.\] 17 Tex. Ct. Rep. 721, 98 SVW 258.

01. Character evidence on behalf of defendant must be limited to the witness' knowledge of this reputation and cannot be 64, 43 N. C. 700, 55 SE 787.

01. Textimony as to what a third person said. Andrews v. State \[Ala.\] 44 S 696. Declarations by third persons not in presence of accused. Town of Brighton v. Miles \[Ala.\] 658, 90 P 878. Where an accomplice has condensed and has taken the stand and testified, we are to permit others who have heard sha was 16 years of age. Confidence v. State \[Ark.\] 104 SW 542. Statements made to arresting officer not in presence of defendant are not admissible against him. People v. Soloman, 106 NYS. 1110. Statements and complaint made by member of prosecutri's family to third person as to commission of offense are not admissible in prosecution for rape. State v. Fowler \[Idaho\] 88 P 787. Error to permit witness testifying to statement of accused against interest to repeat what he had said to accused. Kevern v. People, 224 Ill. 170, 78 NE 574. In prosecution for homicide committed in an attempt to produce an abortion, proof of what deceased had said to a physicalian two years before, while treating her for after effects of an abortion, was hestasy.

01. Textimony statements of third persons, not in the presence of accused,\[63\] and testimony based on information derived from others,\[64\] is inadmissible, aside from a few well-known exceptions.\[65\]

01. As in prosecution for eloping with a married woman previously of chaste character, State v. Connor, 142 N. C. 700, 55 SE 787.

01. Textimony statements of third persons, not in the presence of accused,\[63\] and testimony based on information derived from others,\[64\] is inadmissible, aside from a few well-known exceptions.\[66\]

725, 111 NVP 19 Evidence as to what a third witness told a policeman that defendant and 60. For discussion of evidence on this issue, see Homicide, & C. L. 106, In homicide the state cannot in the first instance put that the officer did not dare to arrest them, character of deceased in issue as being a peaceable man. Furyear v. State \[Tex, Cr. App.\] 17 Tex. Ct. Rep. 721, 98 SVW 258.

73. Textimony statements of third persons, not in the presence of accused,\[63\] and testimony based on information derived from others,\[64\] is inadmissible, aside from a few well-known exceptions.\[65\]

01. Textimony statements of third persons, not in the presence of defendant. State v. Connor, 142 N. C. 700, 55 SE 787.

01. Textimony statements of third persons, not in the presence of defendant,\[63\] and testimony based on information derived from others,\[64\] is inadmissible,\[65\] and testimony based on information derived from others,\[64\] is inadmissible,

#### 113.3.1 Additional and Discussion

The following question is that the cused return a sum of money won from him.

Butler v. State \[Ark.\] 103 SW 828. Admissions consisting of statements made on former trial held admissible. State v. People v. Robertson \[Cal. App.\] 92 P 498.

In prosecution for rape, prosecuting attorney may state defendants' declarations to her at the time with reference to his conduct with other girls. People v. Davis \[Cal. App.\]

91 P 810. Admissions which in connection with other facts tend to prove defendants' gault are admissible without preliminary proof that they were voluntarily made.

People v. State \[Cal. App.\] 89 P 997. Proof that accused had said, when accusing statements were made to him, that a person named had "through him down" and "given him away" held admissible though accused had previously said be knew nothing about the stolen horse. People v. Melandrez \[Cal. App.\] 88 P 372. Admissions and statements by the defendant, not amounting to a conclusion of guilty that, are admissible against him whether voluntary or not. People v. Willard, 150 Cal. 84, 89 P 124. Proof that just after shooting one present said to accused that he had made a mistake and ought not to have shot the boy and that accused an-sweet that he had done wrong, held admisible. Fuller v. State, 127 Ga. 47, 55 SE 1047.

In homicide declaration by accused shortly

- \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, after the killing that he had killed deceased
- \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, "Weathered than he's admissible. Stacy v.
- \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, "Weathered than he did not take the telephone with a person whom he
- \[Tex. Cr. App.\] 99 custom to carry the question of identity to the jury. State v. Usher \[Iowa\] 111 NW NW 811. Where accused and another held for same crime were kept in one cell on first floor of the jail, an alleged admission of
- \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, "Weathered than he's admissible. Stacy v.
- \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, "Weathered than he did not take the telephone with a person whom he
- \[Tex. Cr. App.\] 99 custom to carry the question of identity to the jury. State v. Usher \[Iowa\] 111 NW NW 811. Where accused and another held for same crime were kept in one cell on first floor of the jail, an alleged admission of
- \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, "Weathered than he did not take the telephone with a person whom he
- \[Tex. Cr. App.\] 99 custom to carry the question of identity to the jury. State v. Usher \[Iowa\] 111 NW NW 811. Where accused and another held for same crime were kept in one cell on first floor of the jail, an alleged admission of
  inating accused, made in his presence and hearing,"85 and not denied by him, where the circumstances are such as to naturally call for a denial, if innocent.89 Ordinarily, admissions of one defendant are not competent against another, no conspiracy being shown.70 Acused is entitled to explain declarations proved against him.71

charged, and not amounting to a confession of guilt."3 A confession is admissible, as substantive evidence,"4 if voluntarily made,"5 and not induced by threats, duress or improper inducements."6 The mere fact that accused was in the custody of an officer at the time will not alone render his confession incompetent."7 In some

73. Riley v. State, 1 Ga. App. 651, 57 SE 1031. Proof of inventory admission will directly rely on authors' knowledge. Ranson v. State \[Tex. Cr. App.\] 97 SW 312, Where son v. State \[Ga. App.\] 59 SE 101.

01. A confession is in the nature of positive testimony. Burke v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 582, 95 SW 1064.

01. Voluntary confessions admissible. Richberger v. State \[Miss.\] 44 S 712. Confession in prosecution for arson held admissibility. Davis v. State \[Ala.\] 44 S 546.

01. Where witnesses tefined that confession was voluntarily made and circumstances did not indicate the contrary, this testimony, with the presumption that it was voluntary, was sufficient to warrant its admission, not-withstanding accused's testimony to the contrary. State v. State \[Tex. Cr. App.\] 19 Tex. Ct.

89 V E03. Voluntary confessions by defendant that he had killed deceased, giving his reasons and detailing the circumstances, held admissible, State v. Bohannon, 142 N. C. 695, go lighter with him, held inadmissible. John-55 SE 797. Where defendant after a homi-clde, went to a neighbor and requested the sign are indisby and induced without "the slightest hope render to the marshal, and the neighbor did so, defendant was not arrested by the neigh-statement held not so made, and hence indisby, and statements made to him were admissibility. Gregory v. State \[Tex. Cr. App.\] 57 SE 934. Confession of negro boy, stupid 94 SW 1041. Admissions or confessions not shown to be voluntary are not admissible. Campbell v. State \[Ala.\] 43 S 743:

76. Confession of homi decide obtained by defective who falsely stated to accused that he (defective) had committed various crimes, including homicles, held admissible, Spenn-cer v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 594, 90 SW 638. Conversation between arresting officer and defendant competent, no promises, threats, or inducements having been made. Dupree v. State \[Ala.\] 42 S 1004. Where witnesses to whom confession was made stated that accused was not threatened nor offered clemmcy, and they were not contradicted, confession was admissible. State v. Hottman, 198 Mo. 110, 94 SW 237. Confession of killing held not to have been induced by threats, fear, or promise and admissible, though accused was in custody, after attempt at restainted, and was taken to where body of deceased lay. Territory v. Emilio

\[N. M.\] 89 P 239. The fact that accused was in the custody younger and excited incident to his arrest at time he was warned, just before making a confession, does not warrant a charge that Berrington, 198 Mo. 23, 95 SW 235. It is no a confession obtained by coercion could not be considered. Herndon v. State \[Tex. Cr. App.\] 99 SW 558. In order to exclude confession, it must appear that some inducement was held out by some one in authority. State v. Spaugh, 20 Mo. 571, 98 SW 55, Confession procured by threats is involuntary per se. People v. Slivers \[Cal. App.\] 92 P 506. Confession held involuntary where made on urgent request and promises held out by district attorney and a detective. Id. Indisby, 253, 95 SW 235. It is no a confession that they were made in response to questions assuming his guilt. Id. Confession is not incompetent because made after arrest where defendant was warned and no promise or threats made him. State v. Church, 199 Mo. 605, 98 SW 16. Confession v. Spaugh, 200 Mo. 571, 98 SW 55, Confession procured by threats is involuntary per se. People v. Slivers \[Cal. App.\] 92 P 506. Confession held involuntary where made in response to question assuming guilt, no plan to trap access being shown and no hope held out. Birkenfeld v. State, 104 Md.

253, 65 A 1. Where accused was told his confession could be used against him, and said it was true, it was held voluntary, though he was confined by an officer and states it appear that accused was duly warned that a confession could be used against him," but this showing is not required in the absence of statute." The confession need not be contemporaneous with the warning; it is admissible if made in such proximity as to time and under circumstances reasonably showing that accused was mindful of the caution and warning when he made the statement." The warning need not have been given by the person to whom the confession is made." A confession will be presumed to have been voluntarily made in the absence of any showing or circumstances to the contrary." The mental condition of accused at the time goes to the weight of the confession, but not necessarily to its admissibility." The mere fact that accused was a foreigner," or that his confession * 10 Cur. Law. INDICMENT AND PROSCUITION SS 9.

fession was in a foreign language, \[85\] will not alone exclude proof of it. Voluntary admissions and confessions are admissible though they tend to show other crimes \[86\] or to implicate other persons, \[87\] but a confession of a wholly different crime is inadmissible. \[88\] Statements in connection with a confession may be admissible though the confession itself was improperly obtained. \[89\] A confession may be used to discredit accused as a witness though not voluntarily made. \[90\] Evidence is admissible to show presence of accused, \[91\] what was said to him, \[82\] but not to show what the officers believed would be done with accused if he confessed. \[93\] Whether a proper predicate for the consideration of a confession has been laid may be for the jury, \[94\] and in such case the question should be submitted under proper instructions. \[95\]

_Acts and declarations of co-conspirators_ See S. C. L. 214 in furtherance of the conspiracy, \[96\] prior to the accomplishment of its purpose, \[97\] are admissible \[98\] when the and when it appears that the acts and dec-lished, declarations of one, though made in the larations were in furtherance of the common design. State v. Roberts, 201 Mo. 702, 100 SWV 484. Conversations between witness and another relating to paying for a ranch with stolen horse, without defendant's knowledge, held inadmissible against defendant on trial for lareeny, the conspiracy being planned later. State v. Allen, 34 Mont. 403, 87 P 177. Proof of agreement between alleged conspirators in absence of defendant and before formation of conspiracy held inadmissible. Green v. State \[Tex. Cr. App.\]. 15 Tex. Ct. Rep. 31, 90 SWV 115. 97. Acts and statements of co-conspirator after conspirator and not in presence or hearing of defendant, inadmis. 31he Smith v. People, 38 Colo. 503, 88 P 453. Acts and declarations after the conspirator are inadmis-symmetation of the conspiracy are inadmis-sible against a co-conspirator. State v. Roberts, 201 Mo. 702, 100 SWV 484, Declara-tion of conspirator after accomplishment of conspiracy inadmissible against co-conspirator. State v. Myers, 198 Mo. 225, 94 SWV 242. Acts and declarations of conspirators in defendant's absence, after consummation of conspiracy, not admissible. Benton v. State, 78 Ark. 284, 94 SWV 688. In lareeny where theory of the state was that it was committed pursuant to conspiracy, statements of third person made in absence of acensed after commission of offense were inadmis-sible. Shifted v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 217, 102 SWV 1147. In rape of an elderly woman, statements of an alleged co-conspirator several hours after commission of offense as to having had intercourse with some old woman was not admissible though made in presence of defendant. State v. Forshee, 198 Mo. 14, 97 SWV 933. Fact of flight of co-conspirator jointly indicted with defendant, after indictment, inadmisible. Shifted v. People, 38 Colo. 509, 88 P 453. Flight of conspirator irrelevant on trial of co-conspirator, State v. Sykes, 191 Mo. 62, 89 SWV 851. 98. Evidence of statements, conversations, and conduct of alleged conspirators, not a part of the transactions charged in an in-dictment under the Valentine Anti-trust law, but offered to establish the existence of the alleged illegal combination, is not admissible against a defendant who was not present and did not concur in such statements, conversations, or conduct. Hughes v. State, 9 Ohio C. C. (N. S.) 369. Conversation between defendant and two others just before difficulty in which killing occurred showing a conspiracy to injure admissible. Hannera v. State, 147 Ala. 27, 41 S 573. Evidence that accused and his father had conspired to kill decentral may be shown by evidence that the father had stated that they were looking for him, etc. Ferguson v. State \[Ala.\] 43 B 16. Any act or declaration by one conspirator against another in perpetration of alleged conspiracy may be shown against himself and co-conspirators. Chample v. State, 77 Ark. 444, 95 SWV 477. Where conspiracy is shown, acts of one in furtherance of the common design are admissible against others. But v. State \[Ark.\] 98 SWV 723. **Facts** which tend to establish conspiracy are not rendered inadmissible because they supply evidence tending to prove guilty of the conspirator. People v. Stokes \[Cal. App.\] 89 P 907. Where conspiracy is fully estab- fact of conspiracy has first been shown.\* But the existence of the conspiracy need only appear prima facie, in the first instance, to render such evidence admissible,1 proof by circumstantial evidence being sufficient.2 The court may, in its discretion, receive proof of declarations or acts before the conspiracy is proved.8 In such case there should be an instruction that the proof of such acts or statements is to be disregarded if the conspiracy is not found to exist,4 the question of the actual existence of a conspiracy being ultimately for the jury.5

Footnote 18: The author is grateful to the anonymous referee for his constructive comments.

\_Res gestae.\_See 3 C. L. 214.-In general, all of the facts and circumstances forming a part of the entire transaction in issue may be shown,6 and this has been held to

charge of cutting fences held admissible \[ng fight between strikers and strike break-against accused though co-defendant was \]ers, evidence concerning acts of other strikers was inadmissible against defendant, no App.\] 96 SWW 87. Where the evidence established. \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 49, 100 SWW and declarations of the parties in pursuance thereof, not in the presence of each other, are admissible. State v. Grove, 61 V. Va. 687, 57 SE 296. In prosecution for bribery \]there conspiracy was shown, it was admisible to show that a conspiracy in homelide bribes to other members of the board of council to influence their action on same \]should be shown by direct evidence. Cirmatter, Schultz v. State \[VWs.\] 113 NWV 428. \[St.\] 99. Evidence held to show conspiracy to commit abortion so that declarations of one conspiracy so as to admit evidence of acts design and during its execution held admis-sible. State v. Crofford, 133 Iowa, 478, 110 NWV 921. Evidence sufficient to show a conspiracy as foundation for admitting declarations of one conspirator in an action against another. Commonwealth v. Hargis, 30 Ky., State v. Miller, 311 Mo. 887, 90 SW 767. \[L. R. 510, 99 SW 348. Evidence sufficient to show that conspiracy to murder decedent \]Ct. Rep. 115, 89 SW 816. Where statements was on foot when there are admissible against one entering that he is a co-conspirator, but there is no into the conspiracy, Driggers v. U. S. \[Ind. T.\] 104 SWV 1166.

include, in homicide and assault cases, the killing or injury of a third person." Exclamations or declarations of parties to the transaction, or persons present, contemporaneous or nearly so, with facts in issue which they tend to explain or illuminate, are admissible as a part of the res gestae * provided they may fairly be consid ered as arising naturally from the transaction,9 and where all idea of premeditation and design is excluded.10 Declarations forming a part of the res gestae are admissible without showing the competency of the declarant as a witness.11

\_Expert and opinion evidence.12--Ordinarily, witnesses are not allowed to testify to bare conclusions of fact.18 An opinion or conclusion is admissible, however,

### 122 INDICHTANT and PROSCUSSION $ 9. 10 Cur. Law.

State \[Ala.\] 42 S 862. Question asked a witness by a juror as to what caused him to suspect defendant held objectionable as calling for an opinion where witness answered that he believed so because of certain facts. Scargys & State \[Arx.\] 89 SWV 1104. Question held objectionable as calling for a conclusion. People v. Robertson \[Cal. App.\] 92 F 498. The belief of a witness cannot supply the place of substantive material facts. Griffin v. State \[Ga. App.\] 58 SB 781. Error to ask defendant, "Dld you go into the saloon that night for the purpose of bringing on a fight." State v. Barber \[daho\] 85 P 418. In prosecution of husband for murder of his wife, it was error to allow a certain witness to characterise certain conduct of defendant toward his wife as cruel. State v. Blydenburg \[Iowa\] 112 N NV 634. Conclusion of witness that waiting room was not suitable and convenient. Illinois Cent. R. 225, 94 SWV 242. Defendant being charged as Co. v. Com., 28 Ky. L. R. 802, 90 SWV 602. Witness to whom procestrick in rape case complained shortly after the act could not testify that she "understood" from the apearance of procestrick that she had been mistreated. State v. Werts, 191 Mo. 569, 90 SWV 838. In arsen evidence describing shoes worn by accused and foot prints found near scene of crime is admissible, but a witness making the comparison may not express an opinion that the foot prints were made by accused. Heldelbaugh v. State \[Neb.\] 113 N NV 145. Conclusion of witness, who saw blood and pieces of skull in corner of room where shooting occurred, as to where shot was fired from. State v. Jennings, 48 Or. 483, 87 P 524. 89 P 421. More conclusion on facts held inadmissible, Richardson v. State \[Tex. Cr. App.\] 16 Tex. Ct. Hep. 220, 94 SWV 1016. Why witness was watching for defendants. Wade v. State \[Tex. Cr. App.\] 14 Tex. Ct. Hep. 370, 90 SWV 503. Question properly excluded as calling for a conclusion. Sue v. State \[Tex. Cr. App.\] 20 Tex. Ct. Hep. 125, 106 SWV 804. Whether witness, from what he saw, did not think that both sides were doing the shooting. Willis v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 870, 90 SWV 110. In prosecution on indictment for vargancy and being a professional gambler, statement that defendant was a gambler without any facts on which conclusion was based was not competent. Leatherman v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 75, 95 SWV 504. A witness may state facts and even his best recollection thereof, but not his impression or opinion as to what he may have done based on his habit of doing things. Green v. State \[Tex. Cr. App.\] 15 Tex. Ct. Rep. 81, 90 SWV 111. In the first was proper to sustain an objection to a question as to whether witness believed or had reason to believe that defendant found the money he lost, as it called for an opinion. Elliston v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 717, 99 SWV 999. In homicable case accused claimed he collapsed and became unconscious Immediately after killing, and state claimed he was shamming. Held error to allow witnesses to state symptoms of shamming. People v. Koerner, 117 App. Div. 40, 20 Crim. R. 516, 102 NYS 93. Harrelles error where two physicians, who examined accused, testified they thought he was shamming. Id.

**Held not mere conclusions:** Whether there was any way that witness could tell when a ticket was sold, except from the ticket, did not call for an opinion, but for witness' own knowledge. People v. Lowrite \[Cal. App.\] 87 P 253. Identity of a person may be estab-based by a witness solely from having heard his voice. This ls not opinion but direct and positive evidence. Mack v. State \[Fla.\] 44 S 706. Whether a witness heard one use across words toward another. State v. Rutledge \[Iowa\] 113 N NV 461. Testimony of prosecutri's in sedation case that she defined to lead a virtuous life at a certain time. State v. Bennett \[Iowa\] 110 NVP 150.

Testimony of a witness referring to an act which took place in his presence "It seems to me that he elosed the door behind him, but I cannot say positive that he did, I was so far away". Mimbs v. State \[Ga. App.\] 58 SE 499. Answer to question how often accused wrote to a certain person that she wrote a good deal. State v. Meyers, 198 Mo. 225, 94 SWV 242. Defendant being charged as accessory, nonexpert may state opinion con-ecmings from friendly relations between accused and principal offender. State v. Turner, 143 N. C. 641, 87 SE 158. Witness properly allowed to testify that roadway near the scene of a murder was so hard that a track could not follow defendants'track on that acount. State v. Sanders, 75 S. C. 409, 56 SSE 35. Testimony that decedent did not own or have possession of a pwhere the mature of the facts on which it is founded make their adequate statement impossible, or where the matter is one involving such special knowledge, skill or experience, that it is not to be supposed that the jury can, unaided, draw a proper inference therefrom.\[14\] As to such matters, any person shown to be of special learning and experience may express his opinion.\[15\] Nonexpert opinion is received on matters adequate knowledge of which may be gained by general observation,\[16\] including a person's sanity or mental or physical condition, or appearance,\[17\] when a

14. **Lfeld proper subject for opinion evi-** **denee: Expert may testify where bullet which** **horse when driven at a lope is competent caused death entered the head. Williams v.** **t** **to give opinion that he heard such horses. State, 147 Ala. 10, 41 S 992. The sound made** **Holder v. State \[Tenn.1 104 SWV 225. Gradu-** **by** **plots of different caller is a proper** **ate physicians held qualified to state whether** **subject of expert testimony.** **West v. State** **strypchnins was cause of death, though they** **had had no actual experience with it.** **Hice** **about how long before his examination.** **q** **SWV 1024. Undetraker with 20 years' ex-** **Crommwealth v. Campbell, 31 Pa. Snper.** **ctt. 9. Expert testimony is admissible to** **tain wound in** **decessed's back was fatal,** **Cecil v. State \[Tex. Cr. App.\] 18 Tex. Ct. 9.** **denee: Visualizing the terms of act in an indict-** **Cecil** **v. State \[Tex. Cr. App.\] 18 Tex. Ct.** **Whether a 30-30 rifle wound make a hole of** **v. State \[Tex.** **denee:** **stiff in a fence picket is a proper** **subject for expert testimony.** **State v. Remington \[Or.\] 91 P 478. Physician of 15 years** **Cr. App.\] 95 SWV 514. Error to permit physi-** **standing who saw and dressed wound may** **c** **c** **c** **to testify to size and caliber of ball** **testify that "Knuck" would be a deadly** **when he said he had never owned a pistol weapon. State v. Spaugh, 198 Mo. 147, 97 and had had no practical experience with** **SWV 901. Where defendant when arrested** **freams.** **Ripley v. State \[Tex. Cr. App.\] 19 was wearing a hat belonging to deceased, a** **Tex. Ct. Rep.\] 430 SWV 943. Medical studoctor who examined both may testify that** **dention not competent as expert on insantity, location of cuts in the hat corresponded to** **Hamilton v. U. S., 26 App. D. C. 382. A** **physican** **who is not a graduate of a media-** **markovic \[Pa.\] 67 A 650. In trial for abortion, experts were properly allowed to give** **g** **and has had no experience with gun opinions as to kind of instrument and mana-** **shot wounds is not qualified to give an gun-** **ner of use which would produce the condition in which they found the woman. Commonwealth v. Shankar \[Mass.\] 80 NE 799.** **Where knife was used in** **homicle, it was** **Int** **d** **on** **the** **jury can, unaided, draw a** **in** **instrument of certain size was a deadly** **wepapon.** **Hardin v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep.\] 231, 103 SWV 401. One who who was qualified as an expert may. testify as to** **(in** **danee:** proper predicate has been laid by a statement of the facts on which the opinion is based \[18\] accompanied by a showing as to the extent and means of observation of the witness.\[19\] A nonexpert may not give an opinion on accused's mental condition based solely on his behavior in the court room.\[20\] An expert may base his opinion on what he himself knows and has observed,\[21\] and where the facts are before the jury, the opinion need not be brought out by a hypothetical question.\[22\] Medical witnesses may be asked if they agree with statements in standard medical works.\[23\] A hypothetical question must conform to the evidence,\[24\] should not assume facts not in evidence\[25\] nor require the witness to weigh the evidence.\[26\] The question need not embrace all the evidence;\[37\] it is proper to include facts embraced in the assault. Jacobs v. State, 146 Ala. 103, 42 8 19 20.

01. An opinion of a nonexpert on the question of sanity is not evidence unless predicate thereof has been laid. United States v. Chisholm, 153 F 80S. A nonexpert called to give his testimony on question of insanity must first relate the facts upon which he predicates his opinion. Fults v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 458, 98 SW 1057. Nonexpert cannot testify on sanity or in-sanity, without stating all the facts on which he bases his opinion. Taylor v. State \[Tex. Cr. App.\] 90 SW 647. Nonexpert testimony that deceased was delriven when he made a declaration inadmissible without statement of facts on which it was based. State v. Now Wells \[Iowa\] 109 NNV 1016.

01. One who is familiar with intoxicating liquors is competent to testify as to whether a beverage drank was intoxicating. Town of Brighton v. Miles \[Ala.\] 44 S 894. Non-expert cannot give opinion as to sanity unless he shows acquaintanceship. Atkins v. State \[Ten.\] 105 SW 355. One who has worked with a person a couple of days is not competent to give an opinion as to in-sanity. Young v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 178, 102 SW 1144. Witnesses who had seen defendant only once or twice and only within two years are incompetent to testify as to his sanity. Wells v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 443, 98 SW 851. A nonexpert, who testified that he had known defendant four months and as a rule saw him twice a day, and one who had known him two years and stated that he saw him frequently, held not sufficient predicate for admitting opinion. Sims v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 962, 98 SW 555. Witness who merely testified that he had talked with accused a number of times, without stating the subjects of conversation, held not qualified to give opinion on whether accused could harbor a criminal intent. Binkley v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 799, 100 SW 780. Witness who has seen accused's shoes and certain tracks, but has not measured them, is not competent to testify that tracks were made by accused. Transferly v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 92, 101 SW 234. Nonexpert who saw and talked with a person once is not qualified to testify to his sanity. Burton v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 102, 101 SW 226. One giving an opinion as to value of tools should not be permitted to use catalogue price list as basis for fixing value. Kepp v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 242, 103 SW 592. Opinion as to responsibility of accused based on facts in question and on witness' examul.

01. The question was not answered in the court theory of the party propounding it.28 It has been held error to permit physicians to visit defendant in jail and testify for the state as to his sanity.20

_Best and secondary evidence._ See 8 C. L. 217--The rule that the best evidence available must be produced 80 excludes oral or other secondary proof of the contents of a writing 31 or record,32 except where it is but collaterally involved,83 or where the writing or record has been lost or destroyed,34 and due search made, if lost,35 or where the writing is in possession of the other party who has failed to pro-

126: INDICITENT AND PROSECTION SS 9. 10 Cur. Law.

duce it after notice,28 when notice is required.37 An expert accountant may testify to the result of his examination of voluminous books,38 and custodians of records are allowed to state that certain facts do or do not appear therein.39 Instruments made in multiplicate are all originals.40 Lajing of predicate for introduction of secondary evidence may be done in absence of jury.41

Footnote 40: https://www.

proved if introduced to prove merely a collateral fact. \[44\] Part of an instrument being introduced by one party, the other may introduce all of it that is relevant. \[45\] A few decisions as to proof of handwriting are given in the note; \[46\] the subject is more fully discussed elsewhere. \[47\] The court will take no notice of how papers offered in evidence were obtained, nor will it form a collateral issue to determine whether they were legally obtained. \[48\]

_Demonstrative evidence and experiments_, See 6 C. L. 218_It is proper to introduce and identify \[49\] objects connected with the offense, \[50\] such as weapons used by the parties, \[51\] and objects tending to connect accused with the offense, \[52\] or which throw light on the acts in question. \[53\] Photographs, \[54\] and diagrams, \[55\] and maps \[56\] illus-

Rep. 242, 103 SWV 392. A typewritten letter Rep. 85, 90 SWV 312. Witness identified the signed by stencil is not admissible as an admission unless it purports to have been ant have shortly before a homicide. Held acknowledged by the writer. Sprinkle v. not error to allow witness to state that the U. S. \[C. C. A.\] 150 F 56. Such letter is not admissible as against the person who dic-

year. Turner V. State \[Tex. Cr. App.\] 14 dated it, in the absence of evidence sufficient

Tex. Ct. Rep. 35, 89 SWV 975.

to connect him with the offense. Id. In a

**50**, In assault with intent to kill by shoot-

prosecution under Rev. St. 5 4580, for using

ing at one since deceased, the jaw bone of

the malls to further a scheme to defraud,

letters received by defendant are admissible

legators. People v. Vway, 104 NYS 217.

it it appears that they were used in connection with the scheme. Walker v. U. S.

Mos v. State \[Ala.\] 44 S 598.

\[C. C. A.\] 152 F 111. Documentary evidence

51. In homicide a jack knife taken from

should not be admitted without proof of its

poechet of deceased and which he had in his

genuiness. Jordt v. State \[Tex. Cr. App.\]

hand shortly before the homicide was ad-

95 SWV 514.

44. State v. Waldrop, 73 S. C. 60, 52 SE 793.

19 Tex. Ct. Rep. 95, 105 SWV 509. Proper to

45. Where part of a written instrument is

introduced by one party, all of the instruments and to identify and describe it. Alarcon v.

ment on the same subject may be introduced. Corpus v. State \[Tex. Cr. App.\] 19

90 SWV 179. Proper to exhibit weapon used

Tex. Ct. Rep. 236, 102 SWV 1152. This rule

applies as to examination of witnesses. Id.

Note error to permit state to offer part of

a written statement made by defendant

before the grand jury, defendant being

until to introduce the balance. Ellington v.

Stau \[Tex. Cr. App.\] 19 SSV 597.

40. In forgery it was admissible to sub-

mit the forged instrument and a writing of

defendant executed while he was in jail

where witness who testified to the writing

stated that it was voluntarily done by defendant

with ten minutes after he had

was admissible to introduce defendants'

been warned that anything he might do

could be used against him. Johnson v.

Tex. Ct. Rep. 180, 103 SWV 188. Where evi-

State \[Tex. Cr. App.\] 102 SWV 1133. Defendant-

ant"s signature on pleas filed by him held

pints, it was not error to show defendant's

incomponent as standards of comparison with

the letters to prove the handwriting therein in

favor of defendant. Washington v. State,

Id. Articles found in accused's house, sim-

124 Ga. 423, 52 SE 910. Where charge was

lair to those seen at scene of homicide, and

having in possession a forged deced, a note

and chatt mortgage executed by defendant

were competent as standards of comparison

with signature on deced. Under Rev. St. 1899,

$ 4679. State v. Stark, 202 Mo. 210, 100 SWV 642. Only writings admitted as his genuine

handwriting by one accused are competent

as standards of comparison of writings, and

not such documents as might be valid though

written by others at defendant's request.

State v. Branch \[Or\] 87 P 635.

47. See Evidence, 9 C. L. 1228.

01. Imboden v. State \[Colo.\] 90 P 608.

01. Where stick used by deceased in a

fight with defendant was lost, it was error

to exclude testmomy as to how a stick exhibited

to witness compared with that used.

Vilson v. State \[Tex. Cr. App.\] 14 Tex. Ct.

Vilson v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 85, 102 SWV 112.

49. Where part of a written instrument is

introduced by one party, all of trative of the testimony or throwing light on the facts are competent. Whether the jury shall be allowed to inspect articles in evidence,\[57\] whether exhibition of wounds or scars,\[58\] or portions of defendant's person\[50\] shall be allowed, and whether proof of experiments shall be received, are questions addressed largely to the discretion of the trial court.\[60\]

_Evidence at preliminary examination or at former trial.See 8 C. L. 218_--Where it is shown that the witness is dead or beyond the jurisdiction or otherwise inaccessible,\[61\] his testimony upon the preliminary examination,\[62\] or upon a former trial,\[63\] is\_

he was shot are admissible to show where \[ceased was killed properly allowed to be shots entered his body. Clark v. State \[Tex. Exhibited to jury as a part of the res gestane. Cr. App.\] 19 Tex. Ct. Rep. 199, 102 SVV 1136. In homicide where state's theory was that deceased was shot in the jack, his clothes were admissible. Sue v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 128, 105 SVV 804. After a showing that the clothing worn by deceased at the time of the killing was in the same condition at the time of trial, and had been in the custody of a witness continuously, it was proper to admit it. Tardiness in producing it would go to its effect only. State v. Craft, 118 La. 117, 42 S 718.

54 Photographs of defendant's hand taken with his permission held admissible where the hand was peculiar and marks made by such hand were found at scene of crime. Powell v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 722, 99 SVV 1005. In homicide a photograph of scene of crime held admissible. People v. Grill \[Cal.\] 91 P 576. Skill of deceased, and photographs thereof before removal of brain, held competent evidence. State v. Bailey, 79 Conn. 589, 65 A 951.

55 Diagram admissible to explain witness testimony when shown to be correct on his cross-examination. Territory v. Emilio \[N. M.\] 89 P 239. Diagram of locus in quo held admissible though it appeared incorrect in some particulars. Territory v. Price \[N. M.\] 91 P 738.

56 Map made by witness from survey and shown by him to be correct held admissible to illustrate and explain testimony. Hisler v. State \[Fla.\] 42 S 692. Map of place of blasting held admissible. City of Spokane v. Patterson \[Wash.\] 89 P 402. Map showing subject of testimony is admissible to enable the jury to understand and apply the evidence. West v. State \[Fla.\] 48 S 445. In prosecution for assault with intent to kill map of locus in quo is competent though made at direction of prosecuting attorney to illustrate his theory of the case. State v. Remington \[Or.\] 91 P 473.

57 When objects are offered for the inspection of the jury, such inspection is allowable only when it appears that their condition is substantially the same as at the time when the act charged occurred. Certain colts, three years older than at time in question, held not proper for inspection by jury, State v. Cook \[Idaho\] 88 P 240. In prosecution for illegal sale of liquor, the jury may taste the liquor seized and produced in evidence to aid in determining whether it is intoxicating. Schulenberg v. State \[Neb.\] 112 NYV 304.

58 Scar on person assaulted properly allowed to be exhibited in assault case. Mayes v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 966.

100 SVV 386. Scar of wound on witnesses made by defendant in same fight in which defendant in which 10 Cur. Law. INDICMENT AND PROSCUTION SS 9. 129admissible, and may be proved by the testimony of persons who heard it,6\* such as the judge or justice before whom it was given,65 or by properly authenticated transcript or stenographic report.66 The sufficiency of the search for a witness whose testimony on a former trial is desired to be introduced is a matter addressed to the discretion of the trial court.67 Where there is an issue or doubt as to the accuracy of the predicate laid for the introduction of such testimony, the predicate should be submitted to the jury as a question of fact to be determined before such testimony is considered.68 Former testimony of accused is sometimes excluded on the ground of privilege.69 Records of proceedings of a commission which examined by court in determining whether attach-said at examining trial is not objectionable as secondary. Willis v. U. S., & Ind. T. 424, was last seen traveling with a show a month before, are sufficient conditions warranting secondary evidence of his testimony at the examining trial. Allen v. State \[Ark.\] 105 SW 70. Rev. St. 1899, $ 1349, authorizing the reading of evidence given at a former trial does not authorize such reading where the witness is present in court at the time it is offered. State v. Coleman, 199 Mo. 112, 97 SW 574. 62Where witnesses who testified at preliminary hearing were at time of trial beyond jurisdiction of the court, but accused was present and could have cross-examined at the preliminary trial. It is competent to prove their testimony. Butler v. State \[Ark.\] 108 SW 832. The fact that accused was not represented by counsel at preliminary hearing does not render such testimony incompetent. Id. Pen. Code, & 886, permitting testimony taken before committing magnitude to be read where witness is dead does not deny does where defendant has had right of cross-examination. People v. Clark \[Cal.\] 90 F 548. Testimony of witness given at preliminary hearing held admissible where she was too ill at the time of trial to appear, notwithstanding right of accused to be confronted with witnesses. Spencer v. State \[Wis.\] 112 NW 462. Where witness could not be found after considerable search, transcript of testimony at preliminary examination was held admissible. People v. Melanrez \[Cal. App.\] 88 F 372. The introduction of testimony of one since deceased, reduced to writing at the preliminary hearing, at which time accused was confronted with the witness. does not violate the constitutional rights of accused. Neither U. S. Const. Amend. 6, nor Bill of Rights, & 10, are thereby violated. Porech v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 761, 99-SW 1122. 63The testimony of a witness, since deceased, given at a trial in which he was cross-examined by the opposite party, or where there was opportunity for cross-examination, is admissible at a subsequent trial of the same proceeding. State v. Herlihy, 102 Me. 310, 66 A 643. 644. Ky. St. 1903, $$ 4645-4645, providing for taking of stenographic notes at trial, does not change method of proving testimony of deceased witnesses by Ty-standers, and does not make stenographer's notes best evidence on subsequent trial. Austin v. Com., & 80 Ky. L. R. 295, 98 SW 295. Under status requiring examining magistratio to make in writing only a general statement of substance of what witnesses before him testfilled to, testimony as to what defendant 10 Cur. L. -- 9. 129 * 130 **INDICITMENT AND PROSECTION SS 9.** 10 Cur. Law.\*\*

**accused and had him committed to an asylum are inadmissible to establish insanity as a defense to a criminal prosecution.**${}^{\\text{\\text{\\textregistered}}}$

\_Quantity required and probative effect._See s C. L. 218_--The credibility of witnesses 71 and the weight to be given their testimony,72 including testimony of experts,71 of accomplices,71 and of accused,72 are questions for the jury. Ordinarily positive testimony is to be given greater weight than negative,72 but this rule does not apply where all the witnesses had equal opportunities to observe the facts.72 Purely impeaching evidence is not to be considered as substantive proof.72 Evidence of good character may be of itself sufficient to raise a doubt, but if the jury on all the evidence is convinced beyond reasonable doubt, character evidence is unavailing.73 Conviction may rest upon circumstantial evidence,73 provided it is such\*\*

70. People v. Willard, 150 Cal. 543, 89 P

**mony was given at his investigation. Holmgren v. U. S. \[C. C. A.\] 156 F 439.**

**ment roll, fixing the mental status of accused and the papers, affladavits, etc., therein, are**

**hearsay. Id.**

**71. Weight of testimony of witness shown to have made contradictory statements out of court is for the jury. Raymond v. People,**

**126 11. 433, 80 NE 986.**

**72. Weight to be given confession is for jury. State v. Adams \[DeL\] 65 A 610. Where testimony is conflicting, the jury must re-concite it if possible, and if they cannot they should give credit to the testimony they deem most worthy of belief. State v. Briscoe \[Del.\] 67 A 154. Positive evidence of one credible witness may be sufficient to support a conviction, where corpus delicti is proved. Buckley v. State \[Neb.\] 112 NW 283. The uncontradicted testimony of one credible witness is sufficient proof of facts testified to. Lipsey v. People, 227 Ill. 364, 81 NE 348.**

**Where on a trial for aggravated assault the prosecuting witness testified, it was not error to refuse to the other eyewitness to testify. Thompson v. State \[Tex. Cr. App.\] 89 SSV 1081.**

**73. Opinions of experts on the question of insanity are not controlling but the jury should reach their conclusion from all the evidence. United States v. Chisholm, 153 F 808.**

**74. Why may consider expert testimony the same as other testimony and it is not error to refuse to limit it. Turner v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 35, 89 SSV 975.**

**75. Testimony of experts and physicians is to be tested by same rules as other testimony. State v. Crane, 202 Mo. 54, 100 SSV 422.**

**76. Testimony and admissions must be considered by the jury in connection with other evidence and should receive as much weight as it is entitled to. State v. Briscoe \[DeL\] 67 A 154.**

**77. An accomplice is a competent witness, the fact that he is an accomplice going only to weight of his testimony. Powell v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 722, 99 SW 1005. Testimony of accomplices should be scrutinized with great care. United States v. Richards, 149 F 442. Testimony of an accomplice is to be weighed by considering his connection with the crime, his interest, appearance on stand, reasonableness and consistency of his testimony. Butt v. State \[Ark.\] 89 SSV 723. On a prosecution for per-ury, in naturalization proceedings, an applicant for citizenship is not an accomplice within the rule that testimony of an accomplice must be received with caution, where it does not appear that the false test.**

**78. The testimony of a defendant who takes the stand on his own behalf is entitled to consideration and should be subjected to the same tests as to credibility that are applied to other witnesses. Burke v. State \[Neb.\] 112 NW 573.**

**79. Where evidence for the state is wholly negative, and that for defendant is definite, positive, and unimpeached, and clearly establishes the innocence of accused, the negative must yield to the positive testimony, and a verdict contrary to this rule must be reversed as contrary to law. Jacobs v. State,**

\*\*1 Ga. App. 519, 57 SE 1063. Positive testi-

**many must be preferred where it can be accepted as true without rejecting the negative as untrue. Id.**

**77. The rule that positive testimony is ordinarily to be preferred to negative is inapplicable where two witnesses flatiy contradict each other as to a matter which, if it existed or occurred would have been equally known to both. Phillips v. State, 1 Ga. App. 687, 67 SE 1079. The rule that the existence of a fact testified to by one positive witness is not to be believed rather than that such fact did not exist because many witnesses who had the same opportunities to observe swear that they did not see it does not apply when one of two persons having equal facilities for seeing swears that it did not.**

\*\*75. Evidence introduced merely to impeatable a witness is not to be considered as substantive proof. Fisin1 v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 8 as to exclude every reasonable hypothesis of innocence.\[81\] Testimony of an accomplice" is not ordinarily sufficient to support conviction unless corroborated \[83\] by other proof connecting accused with the crime,\[84\] though in some states uncorroorated testimony of an accomplice seems to be sufficient to support conviction of certain crimes.\[85\] An admission \[86\] or confession \[87\] will not alone support a con-

81. Hazelwood v. Territory, 17 Okl. 515, an accomplice is insufficient to support a con-

87 P 470: Duckworth v. State \[Ark.\] 103

viction. State v, Kelliher \[Or.\] 88 P 867. To

89V 601. Circumstantial evidence must be consistent with guilt and inconsistent with

complice, such testimony should usually be any other rational conclusion. State v. Sam-

croborated in some material part though

uels \[Del.\] 67 A 164: State v. Tyre \[Del.\] 67

not in all participants. United States v. A 199. Circumstantial evidence must be such

as to exclude every reasonable hypothesis ex-

accomplice held insufficient in burglary case.

cept that of guilt. United States v. Richards,

149 F 443; Strong v. State \[Tex. Cr. App.\] 19

Rep. 217, 102 SWV 1129. Evidence held in-

Tex. Ct. Rep. 969, 105 SWV 785. To warrant

sufficient to corroborate accomplice in trial

conviction on circumstantial evidence, all circumstances must be proven and when taken

App. Div. 516, 20 Crim. R. 424, 101 XYS 1016.

together must prove moral certainty of guilt.

Testimony of accomplice held sufficiently cor-

State v. Byldenburg \[Iowa\] 113 NEW 634. Circumstantial evidence is insufficient if it

Territory \[Okl.\] 91 P 783. Corbocrative

does not show defendant's guilt to the ex-

proof in burglary case held insufficient, not

clusion of every other reasonable supposi-

tion. Amorous v. State, 1 Ga. App. 313, 57

v. State \[Tex. Cr. App.\] 15 Tex. Ct. Rep. 81,

SE 999. Circumstantial evidence must be inconsistent with any theory of innocence and

viding that conviction cannot be had on un-

the facts must be affirmatively established.

corroborated testimony of an accomplice.

Griffin v. State \[Ga. App.\] 68 SE 781. The

state must prove every material allegation

shows commission of offense and circumst-

necessary to constitute the offense charged,

stances thereof. Simpson v. Com, 31 Ky. L.

and when a given act may be done under

k. 769, 103 SWV 332. Testimony of accomplice

certain circumstances without guilt, the proof

held sufficiently corroborated to sustain con-

must take the act out of the exception. Fer-

viction for recovering stolen goods. State v.

guason v. State, 1 Ga. App. 841, 58 SE 67. Circumstantial evidence will not sustain a con-

dence as to possession of stolen property

viction over several reasonable hypotheses

and prior attempt to commit the crime held

of innocence. Murray v. State \[Ga. App.\] 58 SE 1060. In homolde where evidence is

ly on direct testimony of accomplice. Cook

circumstantial facts and circumstances

v. State, 80 Ark. 498, 91 SWV 683. Defendant

should be consistent with each other, with

was charged with receiving stolen goods in

the guilt of defendant, and inconsistent with

two counts. Field testimony of one who was

any reasonable theory of innocence and of

such character as to produce moral conviction on an unprejudiced mind. State v. Fran-

frest, was independent evidence on the second

cls, 193 Mo. 671, 98 SWV 11. Instruction

turing circumstantial evidence to exclude

every hypothesis instead of every "reason-

able" hypothesis except guilt is erroneous.

Strickland v. State \[Ala.\] 44 S 90.

82. Persons knowingly receiving property

stolen by defendant, and concealing the fact

of the theft, were accessories and corroboration of their testimony was necessary. Rich

rad v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep.

832, 90 SWV 1017. Mere concompliancement of crime

or falsely denying knowledge thereof does

not make an accomplice within the accomplice

vidence reduce rule. Alexander v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 878, 90 SWV 1112.

Coemplyeva of one indleted for practicing

dentity without license need not be correctorated, but were it necessary, corroboration by defendant himself is sufficient.

pe v. Stein, 112 App. Div. 896, 87 NTYS 923.

One who acted with accused with the knowi-

edge and consent of owner and officers (in

staling cattle) held not an accomplice within.

in the corroboration rule. Sanchez v. State

\[Tex. Cr. App.\] 14 Tex. Ct. Rep. 589, 90 SWV 681.

641. Ref viction. But a confession, coupled with independent proof of the corpus deliciti "8" is sufficient without other corroboration of the confession.89 Evidence of good character is to be considered as substantive proof,90 but is not alone enough to show excuse, justification, or mitigation.91

SS 10. _Trial_, See * C. L. 220--The right to a trial by jury and matters connected with the selection of the jury are elsewhere discussed.92

(SS 10) _A. Conduct of trial in general_,See * C. L. 220--While accused has a right to a public,93 fair, and impartial 94 trial, yet the regulation of the proceedings rest largely in the trial court's discretion, the exercise of which will rarely be interfered with by appellate courts.95 To warrant such interference, it much appear that accused has been prejudiced.96 In the notes are given decisions applying this rule as to the conduct of the trial and the order of proceedings in general,97 as to

86. An admission is a statement of a fact \[the jury deem it entitled to. State v. Stew- or facts pertinent to the issues and tending, in connection with other facts, to prove guilt, but which is alone insufficient to authorize \[Eq. 2.20\]. In that if previous good construction, Hansom v. State \[Eq. 2.21\]. A finalised be received with caution unless deliberately made and fully proven, Lipsey v. People, 237 Till 364, 81 NE 448. Testimony of accused in a former prosecution that he had been convicted of a folony held insufficient in a subsequent prosecution to prove an allegation of former conviction. People v. Chadwick \[Cal. App.\] 87 P 384.

01. An uncorroborated confession will not sustain a conviction. Rucker v. State \[Eq. 2.21\]. A finalised be seen 295. A confession not being plenary and not being connected with the specific act of auditory charged held not sufficent to support a conviction. McAllister v. State \[Eq. 2.22\]. The law does not favor convictions based upon confessions and least of all upon implied confessions. Jones v. State \[Eq. 2.21\]. SS NE 559.

01. Full proof of the corpus delici, independently of a confession, is not required. It'may be proved by the confession, corroboration made by other evidence. So held in homicide case. State v. Banusik \[N. J. Err. & App.\] 64 A 994. One may be convicted on confessions coupled with proof of commission of the crime. Marshall v. State \[Ark.\] 104 SW 594. Proof of corpus delicit in homide, together with defendant's confession of complexity therein, is sufficient to support conviction. Gallego's v. State \[Tex. Cr. App.\] 89 SW 492. Corpus delicit cannot be estabished by proof of confession but where it has been proved confession may be used to connect defendant with the crime. Ex parte Patterson \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 710, 85 SW 1061. In prosecution of juror for accepting a hribe in a will contest in which he sat as juror, his confession that he had accepted the hribe to render a verdict against the validity of the will was held sufficiently more, the defendant being offered appropriately by other proof that he was a juror, that the person who he said gave him money was employed in the case, and that verdict was against the will. Common-wealth v. Killiou, 194 Mass. 155, 80 NB 232.

01. Where crime is proved aside from confession, defendant may be convicted without corroboration of confession. Burk v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 582, 95 SW 1064.

01. Evidence of good character of accused is to be considered in connection with all \[Eq. 2.21\]. Where no demand for a ste what persons not connected with the trial shall be allowed in the court room,98 as to the conduct of spectators,99 as to guarding accused in the court room, or taking measures to prevent his escape.1 There should be at least substantial compliance with statutes requiring the indictment and plea to be read to the jury.2 In some states, county commissioners have no authority to employ additional counsel in criminal prosecutions,8 but it has been held that accused cannot complain of the employment of additional counsel, notwithstanding such want of power.4

Footnote 18: The author is grateful to the anonymous referee for the support of this work.

_Order of proof_ See 8 C. L. 220 is discretionary,5 and the action of the court in re-

nographer is made in a criminal trial, but a

99. That mother of decedent shed tears, mere inquiry on behalf of the defendants as

sobbed, etc., on witness stand, held not a

to whether one would be present, there is no

ground for reversal, where court could not prejudidical error in going to trial without a

control her conduct. Vaughn v. State \[Tex. stenographer. Oberner v. State of Ohio, 8

Cr. App.\] 19 Tex. Ct. Rep. 96, 101 SW 445.

Ohio C. C. (N. S.) 93. The three days allowed

Misconduct of a bystander is generally not

for the motion includes holidays except when

ground for discharge of the jury unless of

the last day is a holiday. Id. Where special

such a nature as to necessarily influence

judge presided at opening of trial and made

their verdict. State v. Wimby, 119 La. 139,

no memorandum of jurors on special venite

43 S 984. In homicide it was not error to

who were excused and when regular judge

permit decedent's widow to sit in court

took charge counsel could not state what

room, and while weeping make unanticipated

jurors had been excused and the court ex

outbreak denouncing defendant, she having

been immediately ejected. Stevens v. Com.,

rected absent jurors from the bench and diacemine,

10 Ky. L. R. 299, BSW 284. Defendant con-

it was not error to overrule objection the

not complain of sweeping of widow of deced-

following day to proceeding in absence of

dent during argument of counsel. State v.

part of jurors of original special venite.

Hughes v. State \[Tex. Cr. App.\] 18 Tex. Ct.

Rep. 625, 95 SW 1034. The court has a right

1. Where accused charged with murder,

to hear cases as they stand on the docket.

of two guards in the court room to watch

Commonwealth v. Carnes, 30 Ky. L. R. 506,

him was not objectionable as unduly preju-

98 SW 1045. Under Code Cr. Proc. 1859, art

dicing the jury. State v. Kenny \[S. C.\] 57

697, providing the order of procedure, it was

see 859. Where court ordered manacles

not error to refuse defendant's request to

moved from defendant during trial but al-

make a statement to the jury after it was

impaneled where it did not appear that he

was refused permission to make such state-

ment at the time provided by statute. Owen

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 974,

105 SW 513. No error in closing evidence

against defendant's objection that he had

other witnesses to introduce, but could not

because they were not in the court room,

where defendant did not inform the court as

to who the witnesses were not as to what

points they would testify, and did not take

steps to secure their attendance. State v.

Mauplin, 196 Mo. 164, 93 SW 879.

98. Not error to refuse to permit others

jointly indicted with defendant to be in court

room to add defendant's counsel in cross-

examination. Parnell v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 331, 98 SW 269. Where the

spectators at a criminal trial of lascivivons or

immoral character are so obtwisive as to

embarass a witness during the examination,

and it becomes apparent to the trial court

that the due administration of justice is

being impeded, the court may temporarily

clear the court room of all persons except

court officers, couns#, witnesses and defendant. State v. Callahan, 100 Minn. 63, 110 NW

342. Although the record does not expressly

show a withdrawal or limitation of the

der, it will be inferred that it was for a

temporary purpose only, and that it was not

emfrored after the reason for it ceased to

exist. Id. An order of exclusion infringing

the right to a public trial is beyond the

power of the court. Held improper to exclude all except jury, defendant's counsel,

members of bar, newspaper men, and one

other, in trial of rape case. State v. Hensley,

79 Ohio St. 255, 79 NE 462.

99. That mother of decedent shed tears,

more inquiry on behalf of the defendants as

sobbed, etc., on witness stand, held not

to whether one would be present, there is no

ground for reversal, where court could not

control her conduct. Vaughn v. State \[Tex. stenographer. Oberner v. State of jecting or receiving evidence out of its proper order," or in permitting, or refusing to permit, the case to be reopened to admit further proof," will be interfered with on appeal only where an abuse of discretion " or error of law " appears.

6. In assault with intent to kill, evidence of threats, offered before the nature of the in court's discretion. State v. Boylan, 19 defines was shown, was properly rejected. State v. Horn \[S. D.\] 111 NWV 552. It is within the discretion of the court to grant expression to the prosecution to introduce additional evidence in chief after the close of the defense, and after requests for instructions to the jury have been passed on. Hughes v. State, 9 Ohio C. C. (N. S.) 363. Temporary exclusion of testimony as incompetent at the time held not error though the witnesses was not recalled, accused being fully advised as to nature of ruling. State v. Arnold, 206 3c. 589, 105 SWP 641.

Laring predicate: Permitting reading of testimony of a witness at preliminary hearing before evidence that the witness had left the state. People v. Grill \[Cal.\] 91 P 515. Where connecting evidence is essential to render other evidence relevant, it is discretenessary with the court to first require connecting evidence. Ross v. State \[Ind.\] 82 NE 781. The proper rule in examining non-export is to first lay a predicate for his opinion, though failure to comply with such rule is not reversible error where facts are stated to a chemist, held not objectionable as not \[Tenn.\] 105 SV 353. Not error to admit record showing daily sales of tickets, on state-ment of district attorney that he would show it to be a book of original entries by test-mony of the witness who made them. People v. Lowrie \[Cal. App.\] 87 P 253. Court may permit acts and declarations of conspiracy before proof cf conspiracy. Schultz v. State \[Viss.\] 113 NW 428. Not material whether evidence to show conspiracy be introduced before or after acts of one con-epiratory admitted against another. Butt v. State \[Ark.\] 98 SV 723. Acts of one con-epiratory should not be admitted against another until conspiracy is shown but the court in its discretion may change order of proof. Chapline v. State, 77 Ark. 444, 95 SVP 477. Admission of acts and declarations of a compensator before proof of the conspiracy where the district attorney stated that he would show the conspiracy, and the jury were charged that unless they believed such conspiracy was established, to disregard the evidence. People v. Stokes \[Cal. App.\] 89 P 997.

Proof of corpus dellett: Permitting evidence before corpus dellett is established not ground for reversal unless prejudice appears. People v. Bianachino \[Cal. App.\] 91 P 112. In homiede death and the fact that it was brought about by some criminal agency should as a general rule, precede proof connecting defendant with the crime, but the order of proof is within the discretion of the trial court and it will not be reviewed unless substantial injustee have resulted. State v. Guthrie \[N. C.\] 59 SE 652. In prosecution for Audrtery, a contention that admissions by accused forming links In circumstantial evidence should not have been admitted until after proof of corpus dellett is without merit, not within rule as to order of proof of confessions. Till v. State \[Viss.\] 111 NWV 1109.

Rebuttal: What evidence may be received by the court may be made?

The court may be made?

- 10 Cur. Law. INDICMENT AND PROSCUITION SS 10A.

\_Conduct and remarks of judge,\_See 8 C. L. 221.--In general the trial judge should confine himself to an enunciation of the law,10 leaving to counsel the duty of eliciting testimony,11 and to the jury the determination of the credibility of witnesses and the weight of their testimony,12 and he should admit or exclude offered testimony without comment,13 and avoid remarks or comments tending in any manner to prejudice the right of accused to a fair and impartial trial.14 But these matters rest largely in the discretion of the trial judge, and improper conduct or remarks will be held ground for reversal only when prejudice results.15 Thus it has been held not improper for the court to examine witnesses,16 to caution or otherwise instruct the jury 17 or witnesses,18 to prevent useless delays in the course of examina tion which do not tend to throw light on the issues,\[19\] to admonish counsel,\[20\] to explain rulings,\[21\] where in so doing he avoids intimating any opinion on the facts,\[22\] or the credibility or character of witnesses\[23\] or accused.\[24\] Reference to the failure of accused to testify is usually improper.\[25\] The court has no right to interrupt proper and legitimate argument.\[26\]

_Consolidation_ See s C. L. 222 of indictments charging offenses of the same nature and degree, under the same statute, is proper.\[27\]

_Severance_ See s C. L. 222 rests largely in discretion.\[28\] An application for prior to answer "yes" or "no" to question whether he he knew decedents reputation as being revealed and law-abliding. Vaughn v. State \[Tex. Cr. App.1 19 Tex. Ct. Rep. 56, 101 SW 445.\]

Court held not to have intimated any opinion on the truth or falsist of a witness" destinony by informing him that will'll try any opinion upon the facts. Rouse v. State punishable by death, and giving him an opportunity to change his testimony if he eisred. People v. Soeder, 150 Cal. 12, 87 P 1016. It was not improper to allow the jury to know that a witness testified with such knowledge. Id.

**19.** State v. Caron, 118 La. 349, 42 S 960. Where an accused is being tried before the court without a jury, it is not error for the judge to intervene and curtail a rambling statement as to irrelevant matters, after he has said all he desires to say about the offense. Sutton v. State \[Ga. App.\] 58 SE 544.

**20.** It is proper for the court to admonish counsel whose conduct and attitude tends to disconcercert and intimidate a child witness. People v. Collins \[Cal. App.\] 91 P 158. Remarks of court to the effect that witness had answered question as positively as he could honestly do so, held not error where counsel was endeavoring on cross-examination to draw out a more definite answer. Wilson v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 355, 90 SW 312. Court discovered that accused's counsel knew of accused's absence from the court room before the court was aware of it, and said in a low voice to his counsel that he was trying to give them a fair trial that they did not seem to appreciate it. It appeared that the remark could not have been heard by the jury. Held no ground for reversal. Vanderford v. State, 126 Ga. 753, 55 EE 1025.

**21.** Remark of court in overvelling objection to a question, that he could not put that kind of a bridle on the district attorney, held not improper. Watson v. State (Tex. Cr. App.\] 19 Tex. Ct. Rep. 955, 105 SW 509.

**22.** The court in stopping improper argument should not express an opinion as to what has or has not been proven. Parizer v. State \[Ga. App.\] 89 SE 204. Error for judge to elicit certain testimony and then tell jury what the effect of it would be if true. State v. Potter, 126 Mo. App. 465, 102 SW 468. Remark of judge as to what he was "inclined to think" on a disputed point held prejudicial error. State v. Turner, 125 Mo. App. 21, 102 SW 499. Remarks of court held calculated to impress the jury with the belief that the court considered certain evidence very material and error was not cured by subsequent directions to disregard the same. Rice v. State (Tex. Cr. App.\] 19 Tex. Ct. Rep. 353, 103 SW 1156. For the trial judge to remark in the presence of the jury that are "inclined to the court". State v. Pratt \[S. D.\] 112 NW trial of a codefendant on the ground that there was no evidence against him and that defendant desired his testimony should be granted,\[20\] or, in denying it, the court should guaranty immunity from future prosecution based on testimony given by co-defendant.\[30\] Joint trial of persons indicted for conspiracy is ordinarily proper.\[31\]

\_Production, examination, and supervision of witnesses,See * C. L. 222--\_Acused has the right to be confronted by the witnesses against him,\[32\] to cross-examine them,\[23\] and, by or through his counsel to be advised of all evidence submitted against him.\[34\] Defendant's attorney should be allowed to inspect documents submitted to witnesses for the state to refresh their recollection.\[35\] It is not error for the state to refuse to place a particular witness on the stand, where he was present and could have been called by accused.\[36\] In Minnesota the state is not required to call all the persons whose names are endorsed upon the indictment as having testified before the grand jury.\[37\] If not called by the state, the witness may be called by defendant,\[38\] and the failure of either party to call the witness may in the discretion of the court be commented upon by counsel before the jury.\[39\] In Louisiana the defendant has no right to have all the testimony of eyewitnesses reduced to writing in advance of any testimony being adduced or objection thereto made.\[40\]

Questions should be definite and certain\[41\] and so framed as to indicate what information is desired,\[42\] and should not assume facts.\[43\] Facts showing the relevancy of testimony offered should be disclosed,\[44\] but a preliminary question is not objectionable though further evidence may be necessary to render admissible the testimony sought to be elicited.\[45\] In the examination of ignorant and illiterate witnesses who do not understand the English language nor the procedure of courts greater latitude should be allowed than in the examination of average witnesses.\[46\] The allowance of leading questions,\[47\] allowing jurors to question witnesses,\[48\] allowance.

152. Separate trial of a defendant under an indictment charging felony against sev- or, in denying it, the court should guaranty immunity from future prosecution based on testimony given by co-defendant.\[30\] Joint trial of persons indicted for conspiracy is ordinarily proper.\[31\]

\_Production, examination, and supervision of witnesses,See * C. L. 222--\_Acused has the right to be confronted by the witnesses against him,\[32\] to cross-examine them,\[23\] and, by or through his counsel to be advised of all evidence submitted against him.\[34\] Defendant's attorney should be allowed to inspect documents submitted to witnesses for the state to refresh their recollection.\[35\] It is not error for the state to refuse to place a particular witness on the stand, where he was present and could have been called by accused.\[36\] In Minnesota the state is not required to call all the persons whose names are endorsed upon the indictment as having testified before the grand jury.\[37\] If not called by the state, the witness may be called by defendant,\[38\] and the failure of either party to call the witness may in the discretion of the court be commented upon by counsel before the jury.\[39\] In Louisiana the defendant has no right to have all the testimony of eyewitnesses reduced to writing in advance of any testimony being adduced or objection thereto made.\[40\]

Questions should be definite and certain\[41\] and so framed as to indicate what information is desired,\[42\] and should not assume facts.\[43\] Facts showing the relevancy of testimony offered should be disclosed,\[44\] but a preliminary question is not objectionable though further evidence may be necessary to render admissible the testimony sought to be elicited.\[45\] In the examination of ignorant and illiterate witnesses who do not understand the English language nor the procedure of courts greater latitude should be allowed than in the examination of average witnesses.\[46\] The allowance of leading questions,\[47\] allowing jurors to question witnesses,\[48\] allowance.\[49\]

152. Separate trial of a defendant under an indictment charging felony against sev- or, in denying it, the court should guaranty immunity from future prosecution based on testimony given by co-defendant.\[30\] Joint trial of persons indicted for conspiracy is ordinarily proper.\[31\]

\_Production, examination, and supervision of witnesses,See * C. L. 222--\_Acused has the right to be confronted by the witnesses against him,\[32\] to cross-examine them,\[33\] and, by or through his counsel to be advised of all evidence submitted against him.\[34\] Defendant's attorney should be allowed to inspect documents submitted to witnesses for the state to refresh their recollection.\[35\] It is not error for the state to refuse to place a particular witness on the stand, where he was present and could have been called by accused.\[36\] In Minnesota the state is not required to call all the persons whose names are endorsed upon the indictment as having testified before the grand jury.\[37\] If not called by the state, the witness may be called by defendant,\[38\] and the failure of either party to call the witness may in the discretion of the court be commented upon by counsel before the jury.\[39\] In Louisiana the defendant has no right to have all the testimony of eyewitnesses reduced to writing in advance of any testimony being adduced or objection thereto made.\[40\]

Questions should be definite and certain\[41\] and so framed as to indicate what information is desired,\[42\] and should not assume facts.\[43\] Facts showing the relevancy of testimony offered should be disclosed,\[44\] but a preliminary question is not objectionable though further evidence may be necessary to render admissible the testimony sought to be elicited.\[45\] In the examination of ignorant and illiterate witnesses who do not understand the English language nor the procedure of courts greater latitude should be allowed than in the examination of average witnesses.\[46\] The allowance of leading questions,\[47\] ing witnesses to explain testimony,\[49\] allowing an interpreter to be used,\[50\] limiting the number of witnesses on a particular issue,\[51\] preventing mere repetition of testimony,\[52\] the exclusion of cumulative testimony,\[53\] allowing a witness to refresh his memory,\[54\] allowing testimony to be given in narrative form,\[55\] whether witnesses shall be excluded until called to testify,\[56\] whether a witness who has not been excluded,\[57\] or who has violated a rule of exclusion,\[58\] shall be allowed to testify are all matters ad-

trial. State v. Kendall, 143 N. C. 659, 57 SE & shown where court permitted witness for state to remain in court and assist in prosecution where he was first examined. Id. 49. Where a hypothetical question was "defusal" to be "def 10 Cur. Law. INDICMENT AND PROSECTION SS 10A. 139

dressed to the trial court's discretion. Profert may be denied where the facts can be shown by testimony.\[59\] It has been held not error to allow the prosecutrix, in prosecution for seduction, to have her baby with her while testifying,\[60\] and to allow the prosecuting attorney to call the attention of the jury to the child in his argument.\[61\] Prompting of witnesses should be stopped, when discovered.\[62\] In Texas a witness may be recalled to restate his testimony when a controversy arises in regard to it,\[63\] but this does not authorize calling the stenographer to state a witness' testimony where in a controversy between counsel and the jury, the jury do not desire the witness recalled.\[64\]

The extent to which the cross-examination of witnesses may be carried is a matter resting largely in discretion,\[65\] especially where accused is being examined,\[64\] or where the purpose is to impeach a witness,\[67\] though, usually the cross-examination.

sworn at the close of defendant's testi- prisonment unless she swore out the commony. Martin v. Com., 30 Ky. L. R. 1196, plaintiff against defendant. People v. Mitchell 100 SW 872. When court did not know that oil \[Cai. App.\] S8 P 853. Where brother of accused testified that he himself killed prohibited time, and witness did not inten- do noten- do exist, it was competent cross-examination to talk with a subse of discretion. This statement and show that he had fabricated a defense for his brother. Hardin v. State v. Welch, 191 Mo. 179, 89 SVW 945. In assault it is not an abuse of dis- crettion to refuse profert to be made to 103 SVW 401. Where a witness testified that he killed decedent, it was competent to show on cross-examination what his belief was as to his testiminity and the proba- bility of his being punished. Id. In mur- do. 696, 105 SVW 618.

61. In seduction case, counsel for accused requested that prosecuting witness and her baby be required to remain during the argu- manents, which was done, and counsel argued that child favored a third person more than accused. Heid not error to allow state's attorney to call attention of jury to child while prosecutrix was testifying. Howe v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 152, 102 SVW 409.

01. When judges believe somes one in the court room is indicating answers to a witness, he should have the matter investigation in the absence of the jury. But an investigation in the presence of the jury was harmless error where court instructed jury next day to disregard the occurrence. People v. Kcorner, 117 App. Div. 40, 20 Crim. R. 515, 102 SVW 93.

63, 64. Vaughn v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 19 Tex. Ct. Rep. 96, 101 SVW 445.

65. State v. Blee, 133 Iowa, 725, 111 NVW 19; State v. Quirk \[Minn.\] 112 NVW 409. It is not proper cross-examination to ask a witness if he knows what will happen to him in another world if he testifies falsely. State v. Armstrong, 118 La. 480, 43 S 57. Refusal to permit counsel to ask witness for the state about a difficulty between counsel and the jury, the jury do not desire the witness recalled.\[64\]

01. State v. Blee, 133 Iowa, 725, 111 NVW 19; State v. Quirk \[Minn.\] 112 NVW 409. It is not proper cross-examination to ask a witness if he knows what will happen to him in another world if he testifies falsely. State v. Armstrong, 118 La. 480, 43 S 57. Refusal to permit counsel to ask witness for the state about a difficulty between counsel and the jury, the jury do not desire the witness recalled.\[64\]

01. State v. Katon \[Vwash.\] 91 P 250. A witness to which objections were repeatedly assigned to him in asking defendants' witnesses if they did not know of previous crimes of defendant, etc., held out error. Shlipp v. Com., 80 Ky. L. R. 904, 99 SVW 945. In a prosecution for rape, where prosecutrix testified that she had been paid for submitting, it whether he had received a retainer by the prosecut and in what capacity he acted. Cross-examine her for the purpose of show- ing that she had been threatened with im-330. It is proper cross-examination for the tion should be confined to matters brought out on the direct examination \[68\] and to issues in the case.\[69\] It is improper to allow the state to discredit a deposition, taken after due notice and read without objection, by showing that it was taken at a time and place when the prosecuting attorney could not be present.\[70\] Where the state has agreed that an absent witness would, if present, have testified as stated in an affladvir for continuance, it should not be allowed to show that the witness was not used at a former trial.\[71\]

Testimony not responsive to a question should, on motion, be stricken,\[72\] if incompetent or irrelevant,\[73\] but a motion to strike will be denied when the testimony is responsive to a question which was not objected to,\[74\] or where the matter admitted has been covered by the cross-examination,\[75\] or where the motion is directed against all of an answer, a part of which is admissible,\[76\] or where other similar evidence has been admitted without objection.\[77\] The state is not entitled to have part of the answer of its own witness stricken as not responsive.\[78\] It is not the duty of the court, of its own motion, to exclude testimony which was admitted provisionally.\[79\]

_The statement of the prisoner_ See S. C. L. \[22\] under the Georgia statute is a matter peculiar to the practice in that state.\[80\]

_Icused must be present_ See S. C. L. \[22\] at all stages of the trial \[81\] and when purpose of impairing testimony of a witness to ask whether he contributed money to the same matter as to which other wit-doing. Id.

**68.** Where the state inquires as to part of a conversation, the defense may show it all. State v. Rutledge \[Iowa\] 113 NV 461.

**69.** Improper to allow cross-examination which has no bearing on testimony. Smith v. State \[Miss\] 43 S 465. In prosecution of husband for murder of his wife, cross-examination to show ill treatment of her by him held erroneous. State v. Bylydenburg \[Iowa\] 112 NV 634.

**70.** State v. Barnett, 203 Mo. 640, 102 SVW 506.

**71.** Smith v. State \[Miss\] 43 S 465.

**72.** To avoid an improper answer to a proper question, a motion to strike should be made. Golden v. State \[Fla\] 44 S 948. An unresponsive answer is properly stricken. Fleming v. State \[Ala\] 43 S 219.

**73.** Motions to strike testimony that has been admitted must be predicated upon to limb not to include hearsay matter. some feature of irrelevancy, incompetency, or legal inadmissibility of the testimony. Marshall v. State \[Fla\] 44 S 742.

**74.** A defendant who permits a witness to answer a question, objectionable on its face, cannot have the answer stricken. State v. Fyles, 206 Mo. 626, 105 SWP 613. Not error to refuse to exclude testimony where no objection was made to the question calling for it. Dowling v. State \[Ala\] 44 S 403. In prosecution for robbery, evidence relative to the taking of a revolver from person robbed admitted without objection, it was proper to overrule a motion to strike it. State v. Finn, 199 Mo. 597, 98 SVW 9.

**75.** After cross-examination as to certain statement, it is too late to move to exclude it. Moss v. State \[Ala\] 44 S 598.

**76.** Where an answer was unresponsive in part only, a motion to strike the entire answer was properly refused. People v. Pennbroke \[Ca\]. App.\] g2 P 668. Where part only of an answer is irresponsive, motion to strike should be confined to the objectionable part. People v. Craig \[Ca\]. 91 P 997.

## 10 Cur. Law. INDICMENT AND PROSECUTION SS 10B.

verdict is returned, \[82\] but his right to be present may be waived, \[83\] though not by failure of his counsel to object. \[84\] Presence of accused is not required in misde-meanor cases in some states. \[85\] Absence of accused at preliminary proceedings, \[86\] or at subsequent proceedings having to do with correction of the record, \[87\] has been held not error. Error in receiving testimony during absence of accused is cured by having it repeated in his presence. \[88\]

\_Absence of judge. See * C. L. 228.--\_The judge should be present during the taking of evidence, \[89\] during argument, \[80\] and when the verdict is received. \[91\] A brief absence from the court room has been held harmless error. \[92\] Failure of the judge to be present when the jury views premises may be waived. \[93\] The court is open while the judge is on the bench, \[94\] and a verdict will not be set aside for failure of the minutes to show affirmatively the opening of court from day to day. \[95\]

(SS 10) \_B. Argument and conduct of counsel.\_See * C. L. 224.--\_In general the conduct * and argument \[97\] of counsel are subject to the discretionary direction and \[82\]

- 82. Where accused was in room adjoining the court room when verdict was returned, but his view was obstructed by sherift standing in the doorway, held he was deprived of his right to be present. Percer v. State \[Tenn.\] 103 SVV 780.
- 83. Reception of verdict in absence of defendant, who was out on mail and could not be found by officers after the court wanted 30 minutes, held defendant waived his right to be present. Stoddard v. State \[Vis.\] 112 NWV 453.
- 84. Right of defendant to be present in court room when verdict is returned can not be waived by failure of his counsel to make objection to the rendition of the verdict until he can be present. Percer v. State \[Tenn.\] 103 SWV 780.
- 85. In Kentucky a trial of a charge of a misdemeanor may be had in the absence of defendant, and without a plea. Criminal libel; accused gave bond for appearance but failed to appear, and counsel refused to enter plea. Jury instructed to take in-dictment as confessed and fix punishment. Walsalon v. Com., 21 Ky. L. R. 378, 102 SWV 275. In a misdemeanor case the verdict may be received in the absence of defendant. Loving v. State \[Tex. Cr. App.\] 100 SWV 154.
- 86. Under Rev. St. $ 2610, declaring that no person can be tried unless he be present during trial, he need not be present when an order is made authorizing sherift to summon a jury for subsequent date fixed for the trial. State v. Barrington, 198 Mo. 23, 95 SWV 235.
- 87. Personal presence of defendant in proceedings connected with the case subsequent to trial and sentence is not required where such proceedings relate only to the correction of the record. Nagel v. People, 229 Ill. 598, 82 NE 315.
- 88. Where a witness gave some testimony during absence of accused from the court room, and court on discovering this had him brought in and jury was told to disregard the testimony given during absence of accused, and witness then repeated his testimony, it was held that no prejudice resulted. Vanderford v. State, 126 Ga. 753, 55 SE 1025.
- 89. Under Pen. Code. $ 1119, when jury views the place where the crime was committed, it is receiving evidence and the verdict is returned, \[82\] but his right to be present may be waived, \[83\] though not by failure of his counsel to object. \[84\] Presence of accused is not required in misde-meanor cases in some states. \[85\] Absence of accused at preliminary proceedings, \[86\] or at subsequent proceedings having to do with correction of the record, \[87\] has been held not error. Error in receiving testimony during absence of accused is cured by having it repeated in his presence. \[88\]

\_Absence of judge. See * C. L. 228.--\_The judge should be present during the taking of evidence, \[89\] during argument, \[80\] and when the verdict is received. \[91\] A brief absence from the court room has been held harmless error. \[92\] Failure of the judge to be present when the jury views premises may be waived. \[93\] The court is open while the judge is on the bench, \[94\] and a verdict will not be set aside for failure of the minutes to show affirmatively the opening of court from day to day. State v. Grigsby, 117 La. 1046, 42 S 497.

- 96. The conduct of counsel during the trial is subject to the direction of the trial judge, and his discretion in that respect will not be controlled by the appellate court in the absence of manifest abuse to the prejudice of one of the parties. State v. \[Bachistry, 100 Minn. 107, 110 NPV 383. Where after a witness had been sworn and taken control of the trial judge. It is not the province of the prosecuting attorney to instruct as to the law," but it is his duty as well as that of the judge to see that accused has a fair trial." It is improper for counsel to attempt to get before the jury evidence which has been excluded \[1\] or which is clearly inadmissible and of a prejudicial character," or to attempt to show the previous condition of a witness whose inability to appear at time of trial is shown." The jury having the burden of proof on the issue being tried has the right to open and close the argument thereon." In Missouri special counsel employed by the state may make the closing argument."

_Opening address._ See a C. L. 224--Counsel may state the nature of the case " and what he expects the evidence to show," and may be allowed to read the bill of particulars as part of his opening statement," but argument tending to prejudice the jury should be avoided."

_In summing up_ See a C. L. 224--counsel may discuss the evidence fully \[10\] and by the stand the county attorney stepped to and testify, it was error to allow the the witness box and spoke to him in the presence of the court, but while defendants counsel was absent from the room, it was not error to permit him to testify.

\[Iowa\] 113 NVV 461.

\[Iowa\] 113

10 Cur. Law. INDICHTENT AND PROSECTION SS 10B.

way of argument \[11\] state his views as to the conclusions to be drawn therefrom,\[12\] and the fact that the argument is illogical is no ground of exception,\[13\] nor will verdicts be disturbed merely on account of the inadvertent mistakes of counsel as to matters of evidence.\[14\] His remarks should, however, be confined to the record,\[15\] and it is

held proper. Cook v. State \[Ala.\] 44 S 549.

\[ that he knew defendant was guilty and that Argument based on evidence held not preju- a certain witness told the truth held an ex-decision. State v. Force, 100 Minn. 396, 111 NW

\[ progression of opinion, and proper. State v. 297. Argument predicated on statement \]Bricker \[Iowa\] 112 NWV 645. Argument to made during a conversation which was effect that evidence clearly establishing guit shown by the evidence, proper. Hamilton v.

\[ thate \[Ala.\] 44 S 968. Heid proper to refer to \]Rued by a particle of evidence is legitimate details of homelde shown by evidence and argument, Shuv V. State \[Tex. Cr. App.\] 20

\[\]Insight on death penalty. Spencer v. State \[Tex. Cr. Hep.\] 11, 106 SWV 500. In prosecution \[Tex. Cr. App.\] 14-Tex. Ct. Hep.\] 631, 90 SWV

\[ for their where evidence showed that defa-638. Where defendant admitted illicit re-fendant was seen near prosecuting witness' indications with another girl and there was evidence of declarations by him of similar re-

\[\]Rueda (1998). Since court takes judicial notice of the statement. Tune v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep.\] 249, 94 SWV 231. Suggestion statement of counsel in argument that cer-

\[ than day was Sunday was not error. Win-

\[\]In argument. State v. Kincald, 142 N. C. 687,

\[\]Ct, Rep. 271, 103 SWV 892. Where evidence

\[\]S5 SE 647. In prosecution for murder of

showed a conspiracy between three to kill, infnant, it is not error for prosecuting attor-

\[\]Argument that all were present and helped

\[\]Oto the killing and all were guilty, no matter-

\[\]Dance showed that defendant had debauched

\[\]ther who fired fatal shot, not ground for re-

\[\]The infant's mother and made her a house-

\[\]V. State \[Tex. Cr. App.\] 1003. Since court takes judicial notice of

\[\]The statement. Tune v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep.\] 249, 94 SWV 231. Suggestion

\[\]A statement of counsel in argument that cer-

\[\]In counsel's argument, to explain discep-
improper to state what would have been shown by evidence which was excluded \[16\] or by a person who did not testify,\[17\] though it has been held proper to refer to the fact that a witness who was called was not examined as to facts within his knowledge,\[18\] or that no evidence was introduced on a particular issue,\[19\] or that a particular witness, sworn and placed under rule, was not called.\[20\] It is not error to call attention to accused, his identity being in issue.\[21\] Direct or indirect reference to the failure of accused to testify \[22\] or make a statement \[23\] is error. Reference to extraneous matters by

\\begin{tabular}{l|l}
77 Ark. 19, 90 SVV 619. Improper argument & State, 75 Ohio St. 407, 79 NE 929. Statement \\ not based on evidence held prejudicial to accused because asserting that he was in conspiracy with another to defraud prosecutor. & of prosecuting attorney that there were some \\ & & \\ & & \\ & & \\ & \\ & & \\ & \\ & & \\ & \\ & & \\ & \\ & \\ & & \\ & \\ & \\ & & way of illustration is usually improper.\[24\] Argument otherwise improper may be permitted when provoked by or in answer to argument for the other side\[25\] It has been held improper to use inflammatory language against accused,\[26\] to appeal to the jurors' emotions or prejudices,\[27\] to criticise acts of the court,\[28\] to refer to failure to

on failure of defendant to testify. State v. Ala. 27, 41 S 973. Argument of counsel in Jones \[S. D.\] 113 NV 716. Not error for district attorney to merely reflect to fact that one jointly indicted with S 1015. The fact that the argument of the defendant did not testify. People v. Yee Foo prosecuting attorney in criticizing the argument of the defendant's attorney is illogical.

\[Cal. App.\] 189 AP 450. Argument held not objectionable as alluding to defendant's fail-

\[Yes.\] is no ground for a new trial. State v. Rugre to testify. Gallegas v. State \[Tex. Cr.\], 117 La. 1040, 42 S 495. Counsel disagreed App.\] 90 SW 492. Remarks of prosecuting attorney held not to violate rule that failure

\[Yes.\] is a definition of maltec afterthought as given by accused's attorney and said to jury,

\[Yes.\] is a definition of maltec afterthought as upon. State v. Miles, 199 Mo. 630, 89 SW 25.

\[Yes.\] is a statement of counsel in argument held not

\[Yes.\] is a statement of defendant to failure of defendant to

\[Yes.\] is a statement of defendant's attorney challenged county at-

\[Yes.\] is a statement of defendant's attorney to explain why a subpoenaed witness

\[Yes.\] is a statement of defendant's attorney from referring

\[Yes.\] is a statement of defendant to explain certain

\[Yes.\] is a statement of defendant who call a person incompetent to testify,\[29\] or to apply offensive and abusive language to accused \[30\] or his witnesses,\[41\] but invective or characterization sustained by the proof is not usually held prejudicial.\[32\] Arguments that in order to stop or prevent crime accused should be convicted \[33\] and severely punished \[34\] have been held not improper, but there are contrary holdings.\[35\] The reading of extracts from \[36\] and discussion of other reported cases,\[37\] reading of the evidence in another case \[38\] or the decision on a former trial,\[39\] and the use of documentary \[40\] or demonstrative \[41\]:

- **withoutal rights.**" People v. Buck \[Cal.\] 91
- **in prosecution for theft there was evidence** **r** **p** **529.** It is error in argument to refer to failure of accused's write to testify, she being verbally incompetent by saturate. Jamison v. U. S. \[Ind. T.\] 104 SW 872.
- **30.** Prosecuting attorney stated in argument that defendants attorney had tampered with witnesses and attempted to "bufalo and bulldoze" the court and himself, and that defendant was a secundral and a jurer. Hoid cause for reversal, court having only requested counsel to keep within the record. State v. Clapper, 203 Mo. 549, 102 SW 560. In local option case, defendant was not prejudiced by fact that county attorney referred to these "boot leggers." **W**inslow v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 813, 98 SW 866. Properfor court to instruct the jury to disregard statement of attorney in argument that in his opinion the state had made the strongest case that had been made against any of the boodlers. But v. State \[Ark.\] 98 SW 723.
- **31.** Argument of counsel in referring to Chinese society (highbimeters) as an "alibi factory," etc., held not reversible error under the evidence. People v. Yee Foo \[Cal.\] App.\] 89 P 450. Crilcimento of defendant's wittemeses calling them "monds" and "pains" improper, but not reversible error. State v. Noweils \[Iowa\] 109 NW 1016.
- **32.** Inective based on evidence and inferences legitimately to drawn therefrom is not inhibited. Johnson v. U. S. \[C. C. A.\] 154 F 46. In homicide where defendant killed his neele because she refused to sub-mit to his embraces, reference to him as a monster in his passions, licentious in his dessters, etc., held not ground for reversal. State v. Lang \[N. J. Law\] 66 A 942. Remarks of prosecuting attorney in prosecution for rape that prosecurity was proven to have unimpeached character, but the brute of a defendant had introduced no proof of his, held not prejudicial. Lake v. Com., 31 Ky. Lv. R. 1823, 104 SW 1003. That prosecuting attorney characterized legitimacy of a witness as a "damnable yarn" and said defendant was "vicious as a rattlesnale and active as a hornet" held not reversible error. People v. Tubes, 147 Mich. 1, 13 Det. Leg. N, 959, 110 NW 132. Statement that if such affairs as that on trial were to go unrebuled and justified by verdicts, people had better discharge officers and arm and protect themselves held not reversible error. Id.
- **33.** General discussion of evils of crime **w**lich law in issue sought to prevent held not prejudicial error. Pitman v. State \[Ala.\] 42 S 933. Prosecuting attorney's remarks that he had done his duty and that it re-mained for jury to do theirs, and that there were twenty-three murders confined in largely to discretion of trial court. Id.
- **v**. Com., 31 Ky. Lv. R. 536, 102 SW 812. Where state and received in evidence during the dence in the course of the argument, are matters resting largely in the trial court's discretion.

_Necessity of ruling and exception_ to preserve the objection to improper argument \[42\] and _effect of instructions and admonitions_ to cure improper argument \[43\] are treated in succeeding sections.

(SS 10) \_C. Questions of law and fact.\_See S C. L. 226_The credibility of all the witnesses,\[44\] the weight of the testimony,\[45\] the sufficiency of the evidence upon the whole case,\[44\] and, in general, all disputed questions of fact,\[47\] are for the jury. The competency of a particular witness\[48\] and the admissibility of evidence\[49\] are pri-trial of a criminal case but not then read as evidence. Dorsey v. State \[Ga. App.\] S8 to the jury may be read by the prosecuting scheme 477. It is error to direct the jury to find defendant guilty without any direction to pass on the evidence of credibility of witnesses. State v. Godwin \[N. C.\] 59 SE 132.

41. Where defendant used a map in testlings, but the map was not introduced in evidence, it was not error to refuse to allow his attorney to use it in his argument. Nobles v. State, 127 Ga. 212, 58 SE 125.

01. See post, SS 14.

01. See post, SS 15.

01. Credibility of testimony of prostitute is for jury. State v. Hill \[Vash.\] 89 P 180.

Credibility of witness who has served term in pentiternity is for jury. State v. Hubbard, 201 Mo. 639, 100 SV 586. Credibility of defendant's testimony is for jury. Instruction held not erroneous. Harrison v. State, 144 Ala. 20, 40 S 568. It is the province of the jury to pass upon the credibility of witnesses and the weight of testimony. People v. White \[Cal. App.\] 90 P 471; State v. Samuels \[Del.\] 67 A 164; State v. Stewart \[Del.\] 67 A 786; Moody v. State, 1 Ga. App. 772, 58 SE 262; Cothran v. State \[Ga. App.\] 85 SE 644; State v. Pogg, 206 Mo. 696, 100 SV 68. They jury may believe a witness whose testimony is attacked by impexching testimony, and though several witnesses charged him with being the perpetrator of the offense. Cothran v. State \[Ga. App.\] 85 SE 544. Instruction held erroneous as imposing restrictions on the power of the jury to determine the credibility of witnesses as provided by Code CI. Proc. 8239. State v. Pogg, 85 Mont. 535, 80 P 787.

45. Davis v. State \[Ala.\] 44 S 561; State v. Smith, 190 Mo. 106, 90 SV 440; State v. Maupin, 196 Mo. 164, 93 SV 879. Conflicting testimony should be reconciled if possible, but if not the jury must determine to what testimony most weight shall be given. State v. Stewart \[Del.\] 67 A 786. The jury are not bound by opinions of experts on the quese tion of sanity where they are satisfied that their conclusions are erroneous. United States v. Chisolm, 149 F 284. Though the jury should endeavor to reconcile conflicting testimony, it is their privilege to determine what portion is most worthy of belief. United States v. Cole, 153 F 801. In determining weight to be given testimony, the jury should consider relationship of the witness, his means of information and opportunity for knowing the facts, and his manner of testifying. Id. Weight to be given character evidence is for the jury. Miller v. People, 229 III. 376, 82 NE 391. The jury are the judges of the weight to be given dying declarations and also whether they were made under each circumstances as to be considered at all. Moody v. State, 1 Ga. App. 772, 58 SE 262.

It is a violation of Civ. Code 1895, 4334, to charge that threats are of little importance marily for the court, but where evidence is admitted upon a controverted predicate, the predicate should be submitted to the jury 50 with instructions to consider the evidence if they believe the predicate and to disregard it if they do not.51 In some cases the jury must find the degree of the offense charged 52 and fix the punishment.58 Whether an ordinance is void or valid is a question of law.54

(SS 10) \_D. Taking case from jury.\_See $s$ C. L. 226--The case should not be taken from the jury if there is evidence to support a conviction for the crime charged 58 or an included offense; 58 if there is not such evidence the case should be withdrawn.57 A verdict may be directed on account of defectiveness of the indictment 58 if the defect is one which would be fatal on motion in arrest.59 A motion to dismiss for insufficiency of evidence is not waived by introducing character evidence after it is denied.60

(SS 10) \_E. Instructions. Necessity and duty of charging.\_See $s$ C. L. 227--In some jurisdictions, the court is required of its own motion to instruct on the general features of the case.61 In others it is not required to charge at all,62 and in

cicently proved to admit acts and declarations

fusal of general charge for defendant proper of co-conspirators is a question for the court.

shultz v. State \[Wis.\] 113 Nw 428. Under Code Civ. Proc. $ 3441, the determination of admissible confessions is for the court.

state v. Sherman, 35 Mont. 512, 90 P 981.

50. Question of existence of conspiracy

so as to render acts of one admissible against

others held for the jury. State v. Caine, 134 Towa, 147, 111 NW 443. Whether a witness

is an accomplice requiring corroboration in

order to convict is a question of fact, and

a charge under the statute that testimony

of an accomplice must be corroborated in

order to convict is sufficient, and it was not

error to further charge that a witness was

an accomplice. Driggers v. U. S. \[Ind. T.\] 104 SVV 1166.

51. Carbough v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 241, 93 SVV 738. Proper to submit confessions to jury with instructions to

disregard them if they found they were induced by hope or fear. Johnson v. State

(Tex. Cr. App.\] 16 Tex. Ct. Rep. 244, 94 SVV 224.

52. Under an information for murder by poisoning, it is the province of the jury to find the degree of offense, and under Rev.

St. 1887, $ 7925, 7926, the court cannot de-

prive them of such right by preemptory

charge that defendant is guilty of murder

in the first degree if at all. State v. Quarles

\[Idan0\] 89 P 636. In Idaho, whenever a crime is distinguished into degrees, the jury,

if they convict, must find the degree of the crime of which defendant is guilty. Rev. St.

1887, $ 7925. Under this act degree of murder or manslaughter must be found by jury

and not by court, though Imolide is by poisoning. State v. Phinney \[Idan0\] 89 P 634.

53. Under Mansf. Dhg, $ 2283, which is in

force in Indian Territory, one on trial for

crimo is entitled to have the jury fix his

punishment if it does not exceed a fine to

certain amount or imprisonment exceeding

a certain term. Taylor v. U. S., & Ind. T.

350, 98 SVV 123.

54. City of Lebanon v. Zanditon \[Kan.\]

89 P 10.

55. Where the evidence of the state only

tends to establish guilt and defendant offers

no evidence, it is error to direct verdict for

state. King v. State \[Ala.\] 44 S 200, Re others only on request."95 Where instructions are given, an 'acused is entitled to have his theory specifically and correctly presented,"44 and to have instructions given on every defensive issue raised "85 and on all included offenses of which conviction might be had."66 Statutory presumptions should be charged "7 and instructions given as to the consideration of particular kinds of testimony,"88 and the purposes for

$2, 111 NWV 739. Whether request be made submitted, being an issue. Swinger v. State or not, the controlling issue in the case must be submitted by such appropriate instructions as will direct attention to it, and by such clear exposition of the applicable rules as will enable the jury to intelligently

Benson v. State \[Tex. Cr. App.\] 19 Tex. Ct.

deal with it. Glazer v. State \[Ga. App.\] 58

Rep. 257, 103 SWP 911. Though defendant's SE 1126. Failure to do so practically amounts to directing verdict. Id. It is a

willelect compliance with the courts duty to declare the law applicable to every phase of the case to submit statutory definitions. State v. Trace, 35 Mont. 652, 90 P.

791. Where the case depends wholly on cir-

cumstantial evidence, the jury should be instructed without request that guilt must be

be shown to the exclusion of every other

reasonable hypothesis. Glazer v. State \[Ga. App.\] 58

App.\] 58

SE 1126; Lett v. State \[Ga. App.\] 59

SE 85.

62. In Maryland a court may advise the jury as to the law but is not required to do so at request of counsel. Instructions given

are merely advisory and may be disregarded by the jury. Esterline v. State \[Md.\] 66 A.

269. In Mississippi the court has no authority to charge in the absence of written request. In the absence of written request

the court has no authority in Mississippi

to authorize a verdict for a lesser degree of

the crime charged. Canterberry v. State \[Miss.\] 43

678.

001. The office of instructions is to inform

the jury as to the rules of law pertinent to

the issues involved in such manner as to enable them to intelligently apply the evidence thereto. Rouse v. State \[Ga. App.\] 58

SE 416. Defendant is entitled to have the charge fully applicable to the facts. Trinkle

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 950,

105 SWP 201. Error to refuse a charge based on defendant's theory of defense. Taylor v.

Com., 28 Ky. L. R. 819, 90 SWP 581.

65. State v. Quirk \[Minn.\] 112 NWV 409. A charge should be given on a defensive issue

reasonably raised by evidence. Tankersley

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 160,

101 SWP 897. Where evidence of insurity is

introduced under a pie of not guilty, an instruction upon insanity should be given

with reference to the caution with which

Carter v. State \[Ga. App.\] 58

SE 522. Charge on presumption of insanity when shown to

exist in permanent and continuing form

should be given where there is evidence that

acused was insane prior to act and continued so to the time thereof. Wooten v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 167,

102 SWP 416. In homicide where evidence

showed that defendant had drunk heavily

during day and had taken morphine held

he was entitled to a charge under Pen. Code

1895, art. 41, relative to insanity produced

by ardent spirits, as well as on insanity produced

duced by drugs and ardent spirits combined.

Phillips v. State \[Tex. Cr. App.\] 17 Ct. Rep.

787, 98 SWP 868. In trial for killing of turkeys,

thesis; right of accused to defend his crop

from damage by them, should have been

thesis; right of accused to defend his crop

from damage by them, should have been

thesis; right of accused to defend his crop

from damage by them, should have been

thesis; right of the scope of this paper.

69. In Maryland a court may advise the jury as to the law but is not required to do so at request of counsel. Instructions given

where the house was burned or merely

are merely advisory and may be disregarded by the jury. Esterline v. State \[Md.\] 66 A.

68. In Mississippi the court has no authority to charge in the absence of written request

quest. In the absence of written request

the court has no authority in Mississippi

to authorize a verdict for a lesser degree of

the crime charged. Canterberry v. State \[Miss.\] 43

678.

001. The office of instructions is to inform

the jury as to the rules of law pertinent to

the issues involved in such manner as to enable them to intelligently apply the evidence thereto. Rouse v. State \[Ga. App.\] 58

SE 416. Defendant is entitled to have the charge fully applicable to the facts. Trinkle

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 950,

105 SWP 201. Error to refuse a charge based

on defendant's theory of defense. Taylor v.

Com., 28 Ky. L. R. 819, 90 SWP 5 which particular testimony may be considered."55 The court should uniformly charge that the jury are the exclusive judges of the facts and of the credibility of witnesses.76 Where the court of its own motion gives instructions, they must be correct 77 and fully cover the subject to which they pertain.78 The court in instructing is not required to see that the charge covers every feature of the case. If an instruction is not as full as desired,79 or omits reference to particular issues,79 subjects 79

dence. Burk v. State \[Tex. Cr. App.\] 16 Tex. 70. Wadhams v. State \[Tex. Cr. App.\] 18 Ct. Rep. 582, 85 SWV 1064. In prosecution for Tex. Ct. Rep. 727, 99 SWV 1014. Defendant that of cattle where head of animal was ils entitled to a charge that jury are exfound in defendants possession, it was error clusive judges of the acts proved and the to refuse instruction as to identification of weight to be given testimony. Taylor v., head though charge on circumstantial evidence had been given. Bailey v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 765, 100 SWV 393.

71 The court may instruct on any material question on which there is evidence (deserving of consideration. People v. Quinn-facts are consistent with innocence, the defendants entitled to an acquuttial. Riley v. State, 1 Ga. App. 651, 57 SE 1031. Failure to give a requested instruction on the cirumstances under which accused voluntarily (where the subject is referred to in the surrendered held not cured by general in-struction that flight of accused is only a circumstance to be considered. Bell v. State, \[Ga. App.\] 88 SB 416. A trial judge must 89 Mhss. 810, 42 S 642. Where the intent (concerity and fairly present to the jury defendants's contentions if he attempts to state (Pem. Code 1895, 898, providing that, if circumstances from which guilty intent could be inferred are equally consistent with an innocent intent, defendant should be "charge, as contentions of defendant. Moore acquutted, should be charged. Cooper v. State, 1 Ga. App.\] 59 SE 20. Where defendant took a caf to his employer's farm and with his employer's assistance branded it with his employer's brand, the law as to an ae-compilce's testimony should have been "charged as to the employer's testimony. Leak v. State \[Tex. Cr. App.\] 97 SWV 476; Saye v. State \[Tex. Cr. App.\] 98 SWV 851; Gonzales v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 880, 105 SWV 196. Where an accomplice testifies against accused, he is entitled to an instruction that the testimony of the accomplice must be corroborated, and such instruction must include a statement that corroboration is insufficient if it merely shows the circumstances of the crime, since there must be other evidence connecting defendant with the offense. Fisher v. Territory, 17 Okl. 455, 87 P 801. In a dudivery where paramount of accused testifies, charge should be given on testimony of accomplices. Garland v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 886, 104 SWV 898. Where evidence of defendant's good character is introduced, court should charge in substance that they should consider this in determining guilt or innocence, but that if offense charged was found they could not acquut because of previous good character. State v. Werts, 191 Mo. 569, 90 SWV 838. Where subtl negro boy of 12 was charged with arson, failure to charge on whether he knew right from wrong, etc., was reversible error. Ownly v. Com., 31 Kly. L. R. 5, 101 SWV 366.

72 The court may instruct on any material question on which there is evidence (deserving of consideration. People v. Quinn-facts are consistent with innocence, the defendants entitled to an acquuttial. Riley v. State, 1 Ga. App.\] 92 P 493.

73 State v. Rutledge \[Iowa\] 113 NWV 461. While it is not incumbent on a trial judge to charge as to impeachment of witnesses, still where the subject is referred to in the surrendered held not cured by general in-struction should be given. Rouse v. State \[Ga. App.\] 88 SB 416. A trial judge must 89 Mhss. 810, 42 S 642. Where the intent (concerity and fairly present to the jury defendants's contentions if he attempts to state (Pem. Code 1895, 898, providing that, if circumstances from which guilty intent could be inferred are equally consistent with an innocent intent, defendant should be "charge, as contentions of defendant. Moore acquutted, should be charged. Cooper v. State, 1 Ga. App.\] 502, 57 SE 1016.

73 Carter v. State \[Ga. App.\] 68 SE 592.

74 Carter v. State \[Ga. App.\] 68 SE 692. The fact that charge as to extent to which character could be considered was too narrow cannot be complained of where no request was made. Powers v. State, 117 Tenn.

363, 97 SWV 815. Meagness of charge on (dying declarations cannot be complained of where no request was made. Id. Where the general charge correctly states the law, a, special instruction need not be given if not requested. State v. Williams, 76 S. C. 185, 5 or theories," or is deemed misleading," or not sufficiently specific," or if an amplification of the charge is desired," or if special instructions," or if definitions are desired," a suitable instruction should be requested." A requested instruction should be strictly correct " and must assert a proposition of law," and be made in

$8 SB 49. If all phases of the case are not covered, requests should be made. Douglass berry charge) not error in absence of re-v. State \[Fla.\] 43 S 424. One cannot com-quest. State v. Parsons \[Wash.\] 87 P 349. plain of failure to charge where such failure was in effect a withdrawal of the crime with lower degrees of the crime charged of which which he is charged from the jury. State v. Gordon, 196 Mo. 185, 95 SWV 420. Omission to give cautionary instructions as to evidence of accused. State v. Barutu \[TWash.\].

$1 P 977. Reference to a certain fact in evidence without calling attention to the fact that it had been denied was not error. It is only in prosecutions for murder that the judge is required to instruct on lesser people v. Ferone, 105 NYS 448.

$75. In absence of request, no error can be predicted on failure to charge onmpenching testsimony. Moody v. State, 1 Ga. App. 772, 58 SE 262. In absence of a proper request, it is not error to fail to charge that im-peaching testsimony should be considered for no other purpose. Sasser v. State \[Ga.\] 59 SE 255. There being no evidence other than defendants statement upon which to base assignment of error in failure to charge, it was not reversible error to fail to charge In absence of a request. Robberson v. State \[Ga. App.\] 58 SE 544. In assault to kill, failure to charge on aggravated and simple assault. Roper v. U. S. \[Ind. T.\] 104 SWV 584. Failure to charge as to credibility of witnesses. State v. Thurman, 121 Mo. App. 374, 98 SSV 819. In bromide case it was not error to omit to charge on reasonable doubt. Mabry v. State, 80 Ark. 345, 97 SWV 285. A special charge on a particular proposition should be requested. State v. Thompson, 76 S. C. 116, 56 SE 789. Instruction on a shift should be specially requested where plea of not guilty was entered. State v. Bond, 191 Mo. 555, 90 SWV 830. Omission to charge on a shift. Hedelbaugh v. State \[Neb.\] 113 NWV 145. Omission to charge on a shift, not error where defendant admitted his presence at the time and place of the offense, and the record showed nothing to the contrary. Jones v. State \[Tex. Cr. App.\] 101 SWV 1012. One cannot complain of omission in or fail-ure to instruct where he made no request. State v. Gordon, 196 Mo. 185, 95 SWV 420. Court having charged entire statute or voluntary manslashighter, omission of charge on cooling time was not error, no request being made. Rogers v. State, 128 Ga. 67, 57 SE 297. Where there was evidence tending to show confestion was not free and voluntary though a warning was given, a charge on the subject should have been given. Follis v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 120, 101 SWV 423. Assult being a misdemeanor if accused desired an instruction on simple assault, he should request it. High v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 779, 98 SWV 849. Failure to charge that one or both defendants might be convicted or acquitted, not error in absence of request or suggestion for such instruction. State v. Barnett, 203 Mo. 640, 102 SWV 506. Failure to charge on lesser and included offenses is not error in the absence of a request for such charge. McConnell v. State \[Neb.\] 110 NWV 606.

the form required by law.\[85\] If several instructions are requested in bulk, all may be refused if one is bad.\[86\] The court may modify a requested instruction and give it as modified.\[87\] A request in proper form and not covered by other instructions should be given.\[88\]

\_Relation to indicitment and evidence.--\_Instructions should be predicated upon and be applicable to the issues raised by the indictment,\[89\] and evidence introduced \[90\]

true. People v. Williamson \[Cal. App.\] $2 $8, Ager v. State \[Ga. App.\] $5 SE 374. P 313. Not error to refuse a request defect-ive in form and language. Griffin V. State \[Ala.\] $8 197. Proper to refuse a request requiring too high a degree of proof. Boyd v. State \[Ala.\] $2 $24. Not error to refuse is evidence of lower degrees of the offense, an instruction partly erroneous. State v. State \[Na.\] $18. C.1 $9 SE 690. Requested special charges requiring correction or limit.

Here to refuse to charge on a child when there was evidence in support thereof. Har-Ridaeu, 118 La. 385, 42 S 973. Where a sub-stantive proposition is desired to be presented to the jury, it should be requested as such and not as a part of another instruction. Knapp v. State, 168 Ind. 153, 79 NE 1076. A special charge though not properly drawn should be given where it covers one of the defenses. Vadhams v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 172, 99 SW 1014.

84. Request asserting no proposition of law properly refused. Johnson v. State \[Ala.\] $4 $670.

01. Charge on the effect of evidence not requested in writing as required by Code \[Cal. App.\] $2 $13. Where charge re-quested is neither certified as refused nor read to the jury, it will be treated on appeal

complain of failure to give instructions not requested in writing. De Lam v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 390, 95 SW 532.

Under Pen. Code, $2 $070, amended by Laws \[Tex. Cr. App.\] $2 $070, amended by Laws \[1901, p. 178, IT accused is not satisfied with \[80\].

instructions given, it is his duty to submit one in writing more fully concerning the particular matter. State v. Gordon, $5 Mont. 458, 90 P 173.

86. Gregory v. State \[Ala.\] $2 $29; Jones v. State \[Ala.\] $4 $ 179; Andrews v. State \[Ala.\] $3 $196; McComb v. State \[Ala.\] $43 $67; Morrison v. State \[Ala.\] $4 $3: Morrison v. State \[Ala.\] $4 $3: Morrison v. State \[Ala.\] $4 $3: Morrison v. State \[Ala.\] $4 $5 : Morrison v. State \[Ala.\] $4 $5 : Morrison v.

\[This.\] 43 S 678: State v. Tyree, 201 Mo. People v. White \[Cal. App.\] 90 P 471. Charge 574, 100 SVW 645; Giddings v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 84, 96 SVW 926; Burnett v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 788, 100 SW 381; Brittium v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 175, 105 SVW 811; Jeremy Linder, 76 Ohio St. 463, 81 NE 753. Instrute-Imp. Co. v. Com., 106 Va. 482, 56 SE 224. Where there was no evidence that defend-ant's character was good, a charge that the fact of good character could be considered was misleading. State v. Penna, 35 Mont. 525, 80 P 787. In nonunicide where testimony makes a clear case of murder and the theory of accused is self-defense, Pen. Code 1895, 88 70, 72, are not applicable and failure to charge them is not error. McDonald v. State \[Ga. App.\] 59 SE 242. A charge submitting a manner of assault or charged, but which might have been considered is bad as not applicable to facts. Smith v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 868, 104 SVW 899. Instruction held inapplicable to evidence. Philadelphia without certificate. State v. Hefferman \[R. I.\] 65 A 284. \*\*Error to give instruction not applicable to evidence though correct as an abstract proposition. State v. Elsey, 201 Mo. 561, 100 SW 11. Error to charge on the law of positive and negative testimony, where such rule is inapplicable. Mill v. State \[Ga. App.\] 58 SE 673. Instruction on self-defense held not applicable to evidence. Filippo v. People, 224 IL 212, 79 NE 609. Instruction on instruction and not excluded,"1 and requested instructions which do not conform to this rule may be refused."22

ant. Abel v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 361, 97 SVV 1055. Not error to fail & State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 78, 97 to define "heat of passion" where there was no issue of manashangher. State v. Barling-

from prosecutors possession. Bogan v.

ton, 198 Mo. 28, 95 SVV 235. Special charge on law of accomplices not required by the SVV 171. Held required in theft case. Bur-

evidence in this case. Territory v. Meredith

Lett v. State \[Tex. Civ. App.\] 19 Tex. Ct.

In _M.J_ 91 P 731. Failure to charge on imtexization as motive is not-error where defense is allbi. People v. White \[Cal. App.\] 80 P 471.

Evidence held to justify a charge on the theory that defendant, an office, shot toward

evidence was direct. Glasco v. State \[Tex. Cr. App.\] 99 SVV 851. As to intoxication as a defense. State v. Steidley \[Iowa\] 118 NVV

jury evidence which had been excluded,

383. Where defendants counsel referred in

his argument to the nationality and familles

84.

of deceased and defendant, the court propo-

early instructed that the jury had nothing to

Poople v. McPherson \[Cal. App.\] 91 P 1098;

do with these matters. People v. Taylor

\[Cal. App.\] 87 P 215. Where in prosecusion

v. U. S. \[Int.\] 141 SVV 1166: State v. Hop-

for robbery defendant was charged with

revrevins conviction of burglary, held not

118 La. 85, 42 S 973; People v. Tubbs, 147

error to charge on definition and punishment

Mich. 1, 15 Del. Leg. N. 959, 110 NVV 183; State

of burglary. State v. Paisley \[Mont.\] 92 P

V. Miller, 91 Mo. 867, 90 SVV 761; State v. Medgord \[Orl.\] 88 P 306; State v. Waldrop, 73 S.

Charge en circumstantial evidence not re-

c. 60, 52 SE 798; Smith v. State \[Tex. Cr. App.\]

quired where there was both circumstantial

13 Tex. Ct. Rep. 839, 89 SVV 817; Selph v. State

and direct evidence. Nobles v. State, 127

Trex. Ct. Rep. 267, 90 SVV

Ga. 212, 56 SE 125. Charge of circumstantial

174; McKinzie v. State \[Tex. Cr. App.\] 19

evidence not required in burglary case

Tex. Ct. Rep. 149, 108 SVV 141; State v. John-

where defendant was seen and identified in

son \[Vasha\]. 91 P 949. Charge on lesser de-

prosecutor's room as he escaped. Keith v.

grees of crime not involved. Fewvs v. State,

State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 516, 1 6a. App.\] 126, 58 SE 64. Request misleading

94 SWV 1044; Smith v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 150, 102 SVV 406. In prosecusion for stealing a hop, charge on circumstatinal

(Ala.) 43 S 871. In local option case where

stantial evidence is not necessary because

evidence as to ownership of hog is not

election. Luck v. State \[Tex. Cr. App.\] 17

clear, there being direct evidence that the

Trex. Ct. Rep. 358, 97 SVV 1049. Where in lar-

hog belonged to prosecuting witness. Wash-

ington v. State \[Tex. Cr. App.\] 20 Tex. Ct.

Rep. 143, 105 SVV 788. Not necessary where

defendant possesses. Gant v. State \[Tex. Cr. App.\] 20 Tex. Rep 371, 105 SWV 795. Where

fused to charge that accused could not be

direct testimony established the case. Stout

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 234,

neemplices held not error where there were

103 SVV 391. Where in theft defendant admitted the taking and was found in possession of the goods, held the only question was

so that the one of intent and the case was not one

on circumstantial evidence. Flagg v. State

\[Tex. Cr. App.\] 19 Tex. Ct. Rep. 160, 103 SWV 852. Where crime is proven by positive evl-

Genee. Dobbs v. State \[Tex. Cr. App.\] 19

Trex. Ct. Rep. 236, 103 SWV 918. Evidence

burglary case held direct and charge on cir-

cumstantial evidence not required. Smith v
A requested instruction substantially coucred by the charge given may be refused,98 though in better form than the one given.94 The court is not, however,

tention to argument of counsel relative to 104 SWV 1166; Green v. U. S. \[Ind. T.J 104 SWV enforcement of law in absence of anything 1159; Kerr v. U. S. \[Ind. T.\] 104 SWV 809; indicating that there was such argument. State v. Krung \[Lowa\] 118 NW 822; State v. Adams v. State \[Tex. Cr. App.\] 20 Tex. Ct. Leonard \[Iowa\] 112 NW 874; State v. Hoff-Rep. 9, 105 SWV 497. Instructions on murder 112 NW 874; State v. \[Hoff-In first degree properly refused where acc- 31 Ky. L. R. 1343, 105 SWV 107; Goodman cused has been acquitted of art crime. Al-Co. v. Comn. 30 Ky. L. R. 519, 88 TW 252; State len v. State \[Ala.\] 42 S 106. Charge v. Cornellus, 118 La. 146, 42 S 154; State v. on former jeopardy. Barber v, State \[Ala.\] Descart, 117 La. 1016, 42 S 486; McCoy v. 43 S 808. Not error to reverse charge \[Mins.\] 44 S 814; State v. Edwards, 203 on theory that defendant sold liquor as 30. 528, 102 SWV 520; State v. King, 203 Mo. agent of purchased when it was not pre- 560, 102 SWV 515; State v. Paulsgrove, 203 sented by evidence in prosecection under 103, 101 SWV 27; State v. Vaughan, 200 local option law. Carter v. State \[Tex. Cr.\] Mo. 1, 98 SWV 2; State v. Coleman, 199 Mo. App.\] 89 SWV 835. Instruction on theory that 112, 97 SWV 574; State v. Barrington, 193 evidence was wholly circumstantial properly 103, 93, 95 SWV 235; State v. Crittenden, 191 refused where there was other evidence. Mo. 17, 89 SWV 952; State v. Paulsgrove \[Mont.\] Gordon v. State, 147 Ala. 42, 41 S 847. Re- 92 P 566; State v. Phillips \[Mont.\] 92 P 299; fussl to give instruction that there was no 36 State v. Tracey, 35 Mont. 552, 90 P 791; State v. O'Brien, 35 Mont. 482, 89 P 514; Wheeler monwalth v. Brennor, 194 Mass. 17, 79 NE v. State \[Neb.\] 113 NWV 253; Territory v. 799. Refusal to charge on anfth proper. Emilho \[N. M.\] 89 P 239; State v. Megordon Sanchez v. State \[Tex. Cr. App.\] 14 Tex. Ct. \[Or.\] 88 P 364; State v. Collins \[R.\] 87 A Rep. 589, 90 SWV 641. In murder trial, not 798; State v. Emerson \[S. C.\] 58 SE 974; State error to refuse instructions on murder 112 NWV 880; State v. Al- 120 second degree and manslaughter in fourth \[N. D.\] 113 NWV 89; Atkins v. State degree, where evidence would not have jus- \[Tenn.\] 106 SWV 853; Carnes v. State \[Tex. Lifed verdicts for those offenses. State v. Cr. App.\] 108 SWV 853; Vaughn v. State \[Tex. Paulsgrove, 203 Mo. 193, 101 SWV 27. Not Cr. App.\] 19 Tex. Ct. Rep. 96, 101 SWV 445; error to refuse to charge on hypnoticing - 10 Tex. Ct. Rep. 96, 102 SWV 45; fusesm when there was no evidence of such influence. Cross v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 11, 100 Tex. Ct. Rep. 79, 101 SWV 218. Proper to re- 19 Tex. Ct. Rep. 41, 100 Tex. Ct. Rep. 79, 101 SWV 218. Proper to re- 19 Tex. Ct. Rep. 41, 100 Fuse charge on insemitarily when there was no evidence thereof but only evidence that 104 SWV 941; Clark v. State \[Tex. Cr. App.\] 108 SWV 852; Write v. debate thereof but only evidence that 100 SWV 941; Clark v. State \[Tex. Cr. App.\] 108 SWV 156; McCororado v. State \[Tex. Cr. App.\] 113 Raz. Ct. Rep. 816, 100 SWV 854; Where prosecution is 1 v. State \[Tex.

justified in refusing a correct special charge on the ground that it is covered in the general charge. \[95\]

\_Form and general substance._See 8 C. L. 230_.\_It is not necessary for the judge to make introductory remarks as to the importance of the case, but the making of such remarks is not error requiring a new trial if there is no mis-statement of the law and nothing said which would prejudice the jury against accused. \[96\] Instructions should apply the law to the facts instead of announcing mere general rules. \[97\] Instructions stating merely abstract propositions should not be given. \[98\] They should be stated in as simple, orderly, clear, and precise manner as is possible. \[99\] Matters admitted

for defendant to establish self-defense beyond satisfied the jury of guilt beyond reasonable a reasonable doubt, covered. People v. Gatto, doubt, failure to charge that the burden of 105 NYS 165. Requested charges in prosecac-proof was on the state was not error. tion for seduction. State v. Fogg, 206 Mo. Jones v. State \[Tex. Cr. App.\] 19 Tex. 696, 105 SWV 618. Where law of self-defense is once charged, it need not be repeated in charge in favor of defendant on circumstan-charge on special phase of the case. Austin v. Com., 30 ky. L. R. 295, 88 SVV 295; State v. Arnold, 206 Mo. 589, 105 SWV 641. Where in rape the court submitted the issue of con-sent, it was not error to refuse to further charge conversely. Lake v. Com., 31 Ky. L. \[1232, 104 SVV 1003. Instruction on burden of proof resting on state. Cole v. State \[Tex. Cr. App.\] 19 Tex. 6, 101 SWV 44. To contrast the statement with the evidence, language on special phase of the case. Austin v. Com., 30 ky. L. R. 295, 88 SVV 295; State v. Arnold, 206 Mo. 589, 105 SWV 641. Where in rape the court submitted the issue of con-sent, it was not error to refuse to further charge conversely. Lake v. Com., 31 Ky. L. \[1232, 104 SVV 1003. Instruction on burden of proof resting on state. Cole v. State \[Tex. Cr. App.\] 19 Tex. 6, 101 SWV 44. To contrast the statement with the evidence, language on special phase of the case. Austin v. Com., 30 ky. L. R. 295, 88 SVV 295; State v. Arnold, 206 Mo. 589, 105 SWV 641. Where in rape the court submitted the issue of con-sent, it was not error to refuse to further charge conversely. Lake v. Com., 31 Ky. L. \[1232, 104 SVV 1003. Instruction on burden of proof resting on state. Cole v. State \[Tex. Cr. App.\] 19 Tex. 6, 101 SWV 44. To contrast the statement with the evidence, language on special phase of the case. Austin v. Com., 30 ky. L. R. 295, 88 SVV 295; State v. Arnold, 206 Mo. 589, 105 SWV 641. Where in rape the court submitted the issue of con-sent, it was not error to refuse to further charge conversely. Lake v. Com., 31 Ky. L. \[1232, 104 SVV 1003. Instruction on burden of proof resting on state. Cole v. State \[Tex. Cr. App.\] 19 Tex. 6, 101 SWV 44. To contrast the statement with the evidence, language on special phase of the case. Austin v. Com., 30 ky. L. R. 295, 88 SVV 295; State v. Arnold, 206 Mo. 589, 105 SWV 641. Where in rape the court submitted the issue of con-sent, it was not error to refuse to further charge conversely. Lake v. Com., 31 Ky. L. R. 295, 88 SVV 191. Where in rape the court submitted the issue of con-sent, it was not error to refuse to further charge conversely. Lake v. Com., 31 Ky. L. R. 295, 88 SVV 295; State v.

10 Cur. Law. INDICMENT AND PRODUCTION SS 10E. 157 or established beyond dispute should be eliminated.1 They must be consistent2 and should not be argumentative in form.3 Tlte language should be intelligible.4 clear, and free from ambiguity,5 and not misleading.6 Technical terms should be

### 158. Indictment and Prosecution SS 10E. 10 Cur. Law.

defined,' but words commonly used and understood need not be,\* and it is held that no attempt should be made to define "reasonable doubt.""

Instructions should state propositions of law 10 and state them correctly." The evidence should be referred to only in so far as necessary to present the legal questions in the cause.13 All defenses, whether consistent or inconsistent, should be submitted.13 The contentions of the defendant and the state should be alike fairly stated,14 and no charge should be given which would tend to prejudice the jury against either.15 Under some circumstances it is held proper for the court to a correct principle of law. State v. Patter, Instruction merely tending to refute or off-125 Mo, App. 465, 102 SVW 668, Instruction ser parts of argument of prosecuting at-erroneous because limiting jury to finding (forney properly refused. Tribble v. State, of aliding and abetting as charged in in-145 Ala, 25, 40 $385: Bluett v. State \[Ala.\] dictment. Taylor v. Com., 28 Ky. L. R. 819, 44 $8 84. The court should not instruct as 90 SW 581. Under an indictment charging to the effect conviction will have upon de-burrelary and larexp, an instruction is \[endant. Menn v. State \[Vri.3\] 112 NW 85. properly refused which is not limited to 11. Not error to refuse to charge that the burglary but permits a conviction of lax-140 when no the state to prove all allegacity. Does V. State, $9 Miss. 754, 42 $605.

Not misleading: Obvious use of "defense":

- \[1\] instead of "evidence" in charge on reason. \*
- \[2\] capital of mine who commits a table doubt State v. Nugent, 134 Iowa, 257. \*
- \[3\] 111 NW 927. So as to prevent discussion of \[1\].
- \[4\] 168, 97 SW 692. Where illegal size of liquor \[1\].
- \[5\] 169, 78 NE 1076. In that it reiterated how \[1\] is punishable by the "or" imprisonment, it the testimony or a witness for the state is \[1\] is prunishable to assess fine "and" im-subould be considered. Green v. State \[Trex. Cr. App.\] 17 Tex. Ct. Rep. 781, 98 SW 1055. \*
- \[6\] 184, 81 NE 348. Instruction held not erroneous as authoring conviction on an- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or or- or- or- or- or or- or- or or- or- or or- or or- or or- or or- or or- or or or- comment on failure of accused to testify.\[16\] Too low a degree of proof should not be imposed.\[17\] But accused cannot complain where too high a degree of proof is imposed on the state.\[18\] It is not essential that the entire case be presented in a single instruction.\[19\] Verbal inaccuracies and inelegancies should be avoided, but are generally held not ground for reversal.\[20\] In charging a statutory rule, it is generally held proper to use the language of the statute,\[21\] and in charging a statutory clause that he used against him, but that if he does take & App.J 64 A 994. Facts presented in the stand he can be subjected to all forms of cross-examination. People v. Ryan, 105 calling attention of jury to failure of defendants to testify. State v. Twining \[N. J. 807, 96 SVV 518. An instruction in prosecution for rape is not erroneous as urging a counter because it directs consideration \[18\].

\[19\] **If.** An instruction that if the jury believe "from the evidence" a certain fact they shall find guilty is erroneous as not re-inposed before they could adjudge that he believed.

\[20\] **If.** An instruction on evidence authorizing conviction to exceed if not more so than it should have been. Day v. Com., 28 Ky. L. R. 600, 98 SVV 326.

\[21\] **If.** An instruction that "from the evidence" a certain fact they shall find guilty is erroneous as not re-inposed before they could adjudge that he believed.

\[22\] **If.** An instruction on evidence authorizing conviction to exceed if not more so than it should have been. Day v. Com., 28 Ky. L. R. 600, 98 SVV 326.

\[23\] **If.** An instruction in prosecution for rape is not erroneous as urging a counter because it directs consideration \[18\].

\[24\] **If.** An instruction on evidence authorizing conviction to reject the evidence that he believed.

\[25\] **If.** An instruction on evidence authorizing conviction to reject the evidence that he believed.

\[26\] **If.** An instruction on evidence authorizing conviction to reject the evidence that he believed.

\[27\] **If.** An instruction on evidence authorizing conviction to reject the evidence that he believed.

\[28\] **If.** An instruction on evidence authorizing conviction to reject the evidence that he believed.

\[29\] \*\*If.

of which are simple and plain, the court should avoid any explanation which may add to or take from them.\[22\] It is held in Georgia that it is error to charge the rule as to positive and negative testimony in the language of the statute.\[23\] Evidence admitted for a certain purpose should be limited to such purpose.\[24\] Belief beyond a reasonable doubt need not be incorporated into each instruction.\[25\] Instructions which tend to prejudice defendant should not be given.\[26\] The rule requiring the charge to be delivered in writing is complied with by reading from the decisions of the court of last resort.\[27\] It is not improper to charge that the jury should accept the law as given them by the court \[28\] and to consider the instructions as a whole.\[29\] It is not improper in instructing on the law of the case to read the statute defining the crime charged.\[30\] Questions of law should not be submitted.\[31\] Rules of evidence especially ad-

242. Court may charge in language of stat-

state that scused may testify but that his

57 SE 1079.

failure to do so shall not be considered

against him. Cravens v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 304, 103 SWP 921.

Court should charge on reasonable doubt

in accordance with Cr. Code. Prac. $ 238,

providing that if there be reasonable doubt

of guilt defendant should be acquitted.

Howell v. Com., 31 Ky. L. R. 853, 104

SVV 685. Where the court charges in the language of a statute which is reasonably clear, the defect therein must be specifically pointed out. Burnett v. State, 80 Ark. 225,

96 SWV 1007. Instruction in form of Pen. Code, $ 21, that intent is manifested by circumstances connected with the offense, etc., is not objectionable. State v. Gordon, 35

Mont. 458, 90 P 173. Giving an instruction containing Pen. Code, $ 244, that the interest of defendant should be considered in weighing his testimony, does not deprive him of the presumption of innocence which attends him until guilt is established. State v. Farnham, 35 Mont. 375, 87 P 788. Not error to charge Pen. Code, $ 986, 987.

garding amount of mental conviction required to warrant verdict of guilty. Howell v. State, 124 Ga. 698, 52 SE 649. In Georgia it is held that the better practice in charging on the effect to be given the statement of accused is to charge the statute and nothing more. Caesar v. State, 127 Ga. 710,

57 SE 66. In charging upon the prisoner's statement, the court can use no better language than that embodied in Pen. Code

1895, $ 1010. Rouse v. State \[Ga. App.\] 58

SE 416.

22. Where statute defines an accessory as one "who stands by, aids, abets, or as-slists," the court should not have added "sented." Clerget v. State \[Ark.\] 103 SWV 381. Under a statute providing that persons un-der 18 years of age sentenced to the penlentiary may be sent to the reform school by board of commissioners or sentences to penlentiary by the judge, it is error to charge that one accused of crime if convicted, would be sent to the reform school, since It did not conform to the statute

which was alternative. Pittman v. State (Ark.) 105 SW 874. It would not be error to charge so much of the law as to correctly show the alternatives without indicating what disposition would be made of accused in case of conviction. Id.

23. Pen. Code 1895, $ 985, is Inaply
    VOL. X. NO. 2. CURRENT LAW, JUNE, 1908. 161 (Copyright, 1906, by The Keefe-Davidson Company.)

INDICITMENT AND PROSECTION--Cont'd.

dressed to the discretion of the court are not appropriate subject-matter of instructions.${}^{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\

dence,"" confessions 40 and expert testimony," statement of accused 42 and his interest as affecting his testimony," principals and accessories," insanity," and defini 164 INDICITMENT AND PROSECTION SS 10E. 10 Cur. Law.

tions of terms,44 the credibility of witnesses 47 and rules to be observed in the consideration of evidence in general,48 are illustrated in the notes.

\_Invading province of jury or charging on the facts.\_See 8 C. L. 231.-Instructions must not invade the province of the jury.49 As a general rule it is erroneous to

46. Instruction on murder not bad for

this error to charge that important and omission of "Telminously." State v. Miles, 199 striking contradictions in statements of Mo. 530, 98 SW 25. Charge defining murder

witnesses should be attributed to perfurty is not objectionable because in two para-

rather than to hattention of defect of graphs, Green v. State \[Tex. Cr. App.\] 17

memory. State v. Sloan, 35 Mont. 867, 89. Tex. Ct. Rep. 781, 98 SW 1069. Failure to

define "safe" not error where it was clear

where no question of intent is involved and

the offense is proved by undisputed evi-

been made. Stephens v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 648, 98 SW 7.

In bursley held proper to charge as to.

47. Instruction as to credibility of wit-

nessness held correct. Dawson v. State \[Ga.\] 187 NYS 232.

App.\] 18 SS EE 1065. Instruction as to decid-

bility of witness held to properly submit the

rule as to belief where his statements were

bear upon the consideration of evidence in contradictory. Miller v. People, 229 III. 376,

this case all that common knowledge of

82 NE 391. Instructions as to credibility of

witness who has testified falsely to a m-

ment have. Marshall v. State \[Ga.\] 44 S

serial fact is erroneous where it directs in-

stead of permits the jury to disregard such

bility where it cannot possibly be considered

estimony and excludes corroboration by

for any other purpose. Su v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 128, 105 SW 804.

Cr. App.\] 20 Tex. Ct. Rep. 129, 105 SW 804.

v. State, 131 Wis. 168, 111 NW 256. Proper to

Proper to charge, "If there are conflicts be

release to charge that the fact that witnesses

used by the state who refused to testify

on the ground that their testimony would

tend to incriminate them created no pre-

same sign. People v. Hummel,

cage from jail might be considered as a

104 NYS 306.

48. Instruction on proof of identity of

sufficiently specific on the question of mno-

accused by means of tracks held prejudicial

error. Spell v. State, 89 Mis. 683, 42 S 238.

While the fact that positive testimony af-

Instruction that jury should recoemie

defunct if possible, but if not, it was for them

didtery thereof has been introduced would.

to say which to believe, held not erroneous.

without more render a charge on positive

Sheltion v. State, 144 Ala. 106, 42 S 80. It

and negative testimony inappropriate, still

is the duty of the court in a criminal case

to charge when requested to do so, that

proper charge on that subject would not be

if the jury can reconcile the evidence on

arms reasonable hypothesis consistent with

excessed's innocence they should do so and

the court should also charge that in wig-

acquit. Lipscomb v. State, 130 Wis. 238,

109 NW 98. In homiolee case held not

error for court to call attention of jury to

4. State \[Ga. App.\] 58 SE 285.

conflict in evidence as to whereabouts of

4. State claimed by defendant to have been

credible witnesses was one worthy of belief.

used by deceased. State v. Bailey, 79 Conn.

Knapp v. State \[Tex. Cr. App.\] 19 Tex. Ct.

589, 65 A 951. Repeated instructions that

Rep. 75, 101 SW 440. Instruction which de-

jury may not "look to" certain evidence

prives jury of right to pass upon bias of a

property refused. Sheltion v. State, 144 Ala. 114 Ala.

witness. Wright v. Annion \[Ala.\] 44 S:

106, 42 S 80. Where accused was charged

with robbery and former convictions, the

event taken in connection with his pre-

court should charge positively not to con-

vious threats are evidence that defendant

sider prior convictions if they found de-

was in danger." Bluett v. State \[Ala.\] 44 S:

fendant not guilty of robbery. State v.

84. Instruction impairing the weight to be

Gordon, 38 Mont. 458, 90 P 173. Requested

charge that corpus deficit must be proved

larger, 105 NYS 537. A charge that state-

before confusions could be considered

remouns because not defining corpus dellett.

Ciled with defendant's innocence. Creagh.

Burgess v. State \[Ala.\] 42 S 861. Instrucu-

to on credibility of charge on the weight of evidence 50 or for the court to intimate an opinion thereon, 51

evidence to construe everything against ac-

certain fact. Benson v. State \[Tex. Cr. eused. State v. Palisey \[Mont.\] 92 P 560. Rep.\] 19 Tex. Ct. Rep. 257, 103 SWV 911.

Requests not to return a verdict for any Inercury mn instruction that possession of higher degree of crime than mannasiaughter,

property recently stolen, if unexplained, was Thomas v. State \[Ala.\] 43 S 371. Proper to

sufficient upon which to convict, etc. Duck-

refuse to charge that there is not sufficient

worth v. State \[Ark.\] 103 SWV 601. The evidence to prove a certain fact. Williams

testimony should not be reviewed in such

v. State \[Ala.\] 43 S 720. An instruction in-

detail as to imply that the contention of

timating that "prominent and striking" con-

one party has been established or that cer-

tadictions in the stories of witnesses

tain testimony is entitled to greater weight

should be attributed to deliberate perjury,

than other testimony. Rouse v. State \[Ga.

State v. Allen, 34 Mont. 408, 87 P 177. Also

App.\] 58 SE 416. Instruction that there

instruction that coincidence in all parts of

was no evidence to prove a certain fact.

stories of two witnesses creates suspicion

State v. Collins \[R. L\] 67 A 796. Instruction

of practice and concert. Id. Instruction that

as to consideration of expert medical tes-

jury should be very cautious and careful in

timony. People v. Buck \[Cal.\] 91 P 529.

weighing child's testimony. Gordon v.

Instruction as to corroboration of prose-

State, 147 Ala. 42, 41 S 847. In homelide case

aux in subduction case. State v. Sublett,

an instruction that mallee was not to be

191 Mo. 163, 90 SWV 374. Instruction that no

inferred from use of deadly weapon 1f

man would have right to assavil prosecutor

dence showed any circumstances from

under facts shown. Jacobs v. State, 146 which a want of mallee might be inferred.

Ala. 108, 42 S 70. Error to charge to take

Austin v. State, 145 Ala. 87, 40 S 989.

secondary evidence of testimony given at

struction invading province of jury prop-

the preliminary hearing as though wit-

erly refused. Shelton v. State, 144 Ala. 106,

43 S 848. Instruction

43 S 848.

Investron a self-defense. Kirby

50. The only appropriate charge on the

v. State \[Ala.\] 44 S 38. Error to charge that

subject of the weight of evidence is that

a certain fact, if true, would be a strong

the state is required to prove guilt beyond

circumstance to show guilt. State v. Kehr,

a reasonable doubt. Milli v. State \[Ga. App.\]

133 Iowa, 35, 110 NWV 149. In local option

58 SE 673. Request on the weight of evil-

case, charge for conviction 1f jury believed

dence refused. Thomas v. State \[Ala.\] 43 that

that manner in which defendant procured

S 371; Riggsby v. State \[Ala.\] 44 S 605;

and disposed of liquor was trick to evade

Fleming v. State \[Ala.\] 43 S 219; Davis v.

the law. Howard v. Com., 81 Ky. L. R. 816,

State \[Ala.\] 44 S 561; Crowson v. State

104 SWV 263. Instruction that evidence that

\[Tex. Cr. App.\] 18 Tex. Ct. Rep. 178, 100 SWV 263.

other offense was admitted solely to

1782.

**Relab on weight of evidence. Hutchins v.**

peach defendant as a witness and should be

State \[Tex. Cr. App.\] 101 SWV 795. Instruc-

used for that and no other purpose. Counts

tion on confession as corroborative testi-

v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 111, 89

mony. Follis v. State \[Tex. Cr. App.\] 19

58V 972. Charge requiring jury to disbelieve

Tex. Ct. Rep. 120, 101 SWV 242. Instruction

or self-defense. King v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 112, 101 SWV 237.

v. State, 89 Miss. 119, 42 S 541. A charge that

Where theory of state was conspiracy

tow would' be a charge on the facts in violation

father and son to kill deceased, and that

father bought cartridges, a charge that evil-

of Const. art. 6, 8 19. People v, King \[Cal.

dence of the purchase of cartridges was to

not enough evidence to authorize verdict of

conspiracy existed. Dobbs v. State but, in some jurisdictions this rule is not observed,52 and the trial judge may point out the salient features of the evidence and state how the evidence strikes his mind both as to force and inferences he would draw from it.53 A charge violating this rule may be harmless.54

Footnote 52: The author is grateful to the anonymous referee for his comments on the manuscript.

_The charge is to be construed as a whole, See S. C. L. 227 and no statement therein is erroneous for incompleteness supplied by other parts.55 Instructions are likewise_

_constitutes murder, It is proper to charge_ |ect relative to which it was given. Young that they do constitute such offense. Bleich v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 178, v. People, 227 Ill. 80, 81 NE 36. Instruction requiring jury to believe certain facts from evidence. State v. Hazlett \[N. D.\] 113 NW\_ |574. Instruction in prosecution for robbery. Chancev. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 526, 96 SWV 12. Instruction reciting facts held not a comment on them. State v. Gohl \[Wash.\] 90 P 259. Instruction in homolide. People v. Grill \[Cal.\] 91 P 515. Charge on self-defense. Logan v. State \[Ala.\] 43 S 10. Charge that it is not necessary to find that homolide was done on day charged. McLeod v. State, 128 Ga. 17, 57 SE 83. Charge relative to murder in second degree. Gant v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 371, 105 SWV 799. 11, 107 SWV 799. 11, 108 NW 122. 122.

to be construed in connection with the pleadings and evidence.\[58\] It is not necessary that a single charge should cover the entire case.\[87\] If as a whole they are correct, it is not ground for reversal that excerpts standing alone might be incomplete and obscure.\[58\] Especially in the absence of an appropriate request.\[59\]

\_Assumption of facts.\_See 8 C. L. 2011. The court in instructing may not assume the existence of controverted facts \[60\] or of facts which it is the province of the jury to

Va. 1, 52 SE 981. Held to cover charges requested. Herd V. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 829, 99 SWV 119. A charge on the subject of reasonable doubt in approparate terms on the whole case is sufficient

\[Ga. App.\] 58 SE 471; Clark V. State \[Neb.\]

without charging the law on that subject in connection with each proposition submit-

ted. Harris v. State, 1 Ga. App. 136, 57 SE

\[Tex. Ct. Rep. 109, 95 SWV 1062. Charge on able death helper when considered in connection with other instructions. Sims v. State \[Fla.\] 44 S 737. Instruction on reasonable doubt not prejudical to accused. State v. McCausland \[Iowa\] 113 NWV 852.

**Error in one Instruction** eured by others:

\[\] error in instruction on assault with intent to kill cured by other instructions given.

Satterwhite v. State \[Ark.\] 100 SWV 70.

VWhere court presented defendants' contentions, failure to add that if found true he

should be acquitted was not error where

a later portion of the charge stated under

what circumstances defendant should be

found not guilty. Jordan v. State, 127 Ga.

\[278, 56 SE 422. Not necessary to define

"adequate cause" in charge on implied malice where such definition is given in other

instructions. Manning v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, 98 SWV 251. Error

in requiring jury to find absence of both defu-

liberation and premeditation in order to re-

duce crime to murder in second degree was

harmlessP Beene v. State, 79 Ark. 460, 96 SWV

151.

**Definition of murder not erroneous** for failure to prescribe penalty which is prescribed in another instruction. O'Day v. State \[Tex. Cr. App.\] 97 SWV 474.

Com., 38 Ky. L. R. 848, 99 SWV 837. In theft a charge that if the jury did not find that

that taking was done in H. county was not

error where the doctrine of reasonable

douth was applied to all the facts. Stephens

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 349, 103 SWV 904.

56. State v. Pugh \[Kan.\] 90 P 242. Charge

construted in connection with the evidence

held not misleading. People v. Thorne, 148

Mich. 293, 14 Pett. Leg. N. 66, 111 NWV 741.

57. Davis v. State \[Fla.\] 44 S 757.

01. People v. Qumpy \[Cal. App.\] 92 P 493;

State v. Neil \[Idaho\] 90 P 860. Immaterial

that isolated portions might be misleading.

Davis v. State \[Fla.\] 44 S 757. Not ground

for reversal that a single paragraph standing alone might be faulty. Bode v. State

\[Neb.\] 113 NWV 996. As a whole held proper

though containing some objectionable statements. Martin v. Territory, 18 Okl. 370, 90

P 13. The correctness of a portion of the charges is to be determined from the charge

as a whole. Danford v. State \[Fla.\] 43 S 598. Excerpts from charge held not erroneous. Lewis v. State \[Ga. App.\] 58 SE

1470. Error may not be predicated on a detached sentence of instructions. Green v. U. S. \[Ind. T.\] 104 SWV 1159. Isolated portions will not be criticised. Green v. State

\[Tex. Cr. App.\] 19 Tex. Ct. Rep. 907, 105 SWV
ascertain," but uncontroverted "2" or admitted facts," or facts conclusively established,"44 may be assumed. Requested instructions which violate this rule may be refused."55

\_Ignoring material evidence, theories or defenses, or giving undue prominences thereto.\_See S. C. L. 236--Instructions should be so framed as not to withdraw from the consideration of the jury or ignore any material issue," evidence," defense," or meritorious theory,"" nor should they single out and give undue prominence to

"unsatisfactorily accounted for" was prima facta evdence of guilt, assumed that his explanation of possession was unsatisfactory. Miller v. People, 229 Ill. 376, 82 NE 391. Heid erroneous as assuming that defendant, a boy under 14, was a bright boy, his capacity being in Issue. Neville v. State \[LAla.\] 41 S 1011. Instruction in legal option case held erroneous as assuming that illegal sale had been made. Ball v. Com., 20 Ky. L. R. 600. 99 SW 326. Charge that evidence that defendant had influenced a witness to leave the state should be considered only for a particular purpose held objectionable as assuming the truth of such evidence. Rice v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 396, 94 SVV 1024. Heid erroneous as assuming that statements were made by a certain witness. Green v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 781, 98 SVV 1059. Assuming fact of convinance. Randell v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 308, 90 SVV 1012. Instruction on corroboration of acceptance erroneous as assuming that they told the truth. Barton v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 855, 90 SVV 877; Dixon v. State \[Tex. Cr. App.\] 15 Tex. Ct. Rep. 26, 90 SVV 878.

**Rule not violated**: Instruction in prosecution for Increrely held not to assume the fact that defendant committed larceny. Castev. State, 79 Ark. 453, 96 SWV 150. Instruction in larceny held not to assume that prosecutor's money was taken fraudulently. Braxton v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 787, 99 SVV 994. In prosecution for murder, a charge that if decreduct had been guilty of certain acts was not erroneous as charging that such act must have been established as a fact. Bays v. State \[Tex. Cr. App.\] 99 SVV 561. Not objectionable as assuming that weapon named was deadly. State v. Meyers, 198 Mo. 225, 94 SVV 242. As assuming that offense had been committed. Rice v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 336, 94 SVV 1024. Instruction in homid. cide held not to assume that shooting had been proved. Robinson v. State \[Ga.\] 58 SE 842. An instruction to consider the fact "if such be a fact" does not assume such fact. Fletcher v. State \[Ind.\] 81 NE 1083. Heid not to assume that defendant was to be convicted. Nash v. State, 79 Av.\] 120, 95 SVV 147; Imboden v. State \[Colo.\] 90 P 608; Stakes v. State \[Fla.\] 48 T59.

**61**: It is error to instruct the jury to assume a fact as proven though the evidence is without conflict. People v. Craig \[Cal.\] 91 P 997. It is error to assume that testi-mony for the state is true, though unconstrated facts. State v. Sparegrove, 134 Ithmory. Southern Exp. Co. v. State, 1 Ga. App.\] 59, 99 SVV 83.

**62**: A.664. The **63**: A.

particular evidence,7 witnesses,71 or contentions.72 Requested instructions which violate this rule may be refused,73 but facts decisive of the case may be particularly referred to,74 and a theory not involved may be ignored.75

Kennedy v. Com., 31 Ky. L. R. 546, 102 SV -- calling particular attention to testmony of $63. Error to fail to submit question of -- certain witnesses and has a tendency to in-coolome time in monticle case. Armstrong -- v. State (Tex. Cr. App.) 14 Tex. Ct. Rep. 619, (iv) the credibility of certain witnesses. Hisler -- v. State (Fla.) 42 S 692.

certain evidence and under a certain count, -- 72. Instruction held erroneous as giving -- ignoring counts under which a conviction -- would be warranted under the evidence. -- Koser v. People, 224 TL 201, 78 NE 615.

Further v. State (Tex. Cr. App.) 15 Tex. Ct. Commnewsuit, V. Kronick (Mass.) 82 REO. 413, 95 SV 541. Error to give undue NE 39; State v. Mehojovich, 118 La. 1013, 43 S 600; Commnewsuit v. Thomas, 31 Ky. L. -- R. 899, 104 SW 236. Emphasizing Importance of expert testing) held to require granting of new trial. Smith v. State, 127 -- data. -- S6, 56 SE 116. Request requiring -- yet. -- did to be based on proof of a single fact. Moss v. State (Ala.) 44 S 598. It is not proper to single out a confession of defend- -- antin the charge unless to instruct on the -- necessary of a warning having been given. Jordan v. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 78, 101 SV 247. In monticle a charge calling particular attention to a hat intro- -- 43 A S 34. General affirmative charge which -- duced held erroneous as giving undue promi- -- include not submit credibility of testmony, -- hence to particular facts. Parnell v. State (Ala.) 44 S 805. It was not -- 17Tex. Cr. App.) 19 Tex. Ct. Rep. 240, 103 SW -- error to refuse to change that conviction -- construct no such answer-- to -- prevent this weakening, an instruction limiting -- its consideration to the latter purpose is -- 17 Tex. Ct. Rep. 948, 105 SW 178. Authorizing -- account if the jury believed certain -- to -- NW 609. Should not single out and give prominence to particular facts. Carrol v. State (Tex. Cr. App.) 17 Tex. Ct. Rep. 783, 98 SW 859. Should not single out any portion of the evidence and predicate -- and tending to vary or impair the force of charge thereon. Green v. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 907, 105 SW 205.

Should not single out and give undue promi- -- hence to one phase of the testmony. -- Desg -- v. State (Ala.) 43 S 484.

Rule violated: Instruction on self-defense condensed because unduly emphasizing certain facts. George v. State, 145 Ala. -- 4, 40 S 561. It is error for the trial court -- to review the evidence in an argumentative manner or to single out and give undue prominence to the testmony of particular witnesses. State v. States 93 Minn. 461, 109 NW 1070. Field erroneous as singling out a particular fact which occurred long after the homicide. Rice v. State (Tex. Cr. App.) 16 Tex. Ct. Rep. 396, 94 SW 1024. Intruction directing particular attention to certain facts bearing on a particular issue and ignoring others in improper. State v. Grove, -- 61 W. Va. 607, 157 NE 296. Charge singling out particular facts and charging as to their weight. Miller v. State (Tex. Cr. App.) 20 Tex. Ct. Rep. 3, 105 SW 502.

Rule not violated: Instruction following allegations of indictment held not improper as pointing out particular evidence. Illinois Cent. R. Co. v. Com., 28 Ky. L. R. 892, 90 SW 602. Instruction in prosecution for rape held not to give undue prominence to matters to be considered in corroboration. State v. McCausland (Iowa) 113 NW 852.

73. Instructions giving prominence to certain testmony or witnesses. State v. Lab- -- rpla \[N. J. Err. & App.\] 67 A S 36. A charge -- to be used in the proof of a single fact. -- is not -- 17 Tex. Ct. Rep. 396, 94 SW 1024.

Footnote 83: The author is grateful
Cautionary instructions.--The giving of cautionary instructions rests in the discretion of the court,76 especially where the circumstances do not make them necessary,77 and failure to give such instructions cannot be complained of where no request is made.78

Footnote 7: The _Cautionary instructions_ are the only ones that are not available to the court,76.

(SS 10) \_F. Custody of jury, conduct and deliberations.\_See 8 C. L. 237--Whether misconduct of the jurors, or acts or language of the court or deputies, or others, during the trial and deliberations of the jurors, are such as to call for a reversal of the judgment or the granting of a new trial, depends upon the circumstances. In the notes are collected decisions dealing with such matters as separation of jurors,79 misconduct or improper suggestions of jurors during their deliberations,80 or before the submission of the case,81 such as reference to a juror's personal knowledge,82

be found. State v. Zorn, 292 Mo. 12, 100 SWV. Williams, 76 S. C. 135, 56 SE 783. Where 591. Not error to ignore theory of imperfect self-defense under such facts. Id.

76. Not an abuse of discretion to charge that presence of defendants' family in the court room should not influence 'them in making up their verdict. Day v. State \[Fla.\] 44 S 715. As to the duty of jurors not to yield their conscientious convictions to will of majority, etc. State v. Philipps \[Mon.\] 92 P 299. Not error to refuse cautionary instructions in regard to two witnesses one aged 9 and the other 11. State v. Labriola \[N. J. Err. & App.\] 67 A 386. Proper to give cautionary instruction as to deductive evidence but form thereof rests largely in discretion. Gassesheimer v. U. S., 26 App. D. C. 432.

Instructions held proper: The court may call attention to the fact that the jury are to try the case on the evidence and not by their sympathies. Lindsey v. State \[Fla.\] 43 S 87. It is proper to charge that jury must not discuss or consider failure of accused to testify. Herndon v. State \[Tex. Cr. App.\] 99 SWV 558. It is not error to caution the jury against considering failure of defendant to testify, though it is usually not error to fall to so charge. Adams v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 9, 105 SW 497. Where counsel had suggested that prosecution was for purpose of laying foun-dation for civil suit, it was proper for the court to give a cautionary instruction to disregard this suggestion entirely. State v. Clark \[N. J. Law\] 64 A 984.

7. State v. Megorden \[Or.\] 88 P 306.

1. Failure to give usual cautionary instruction on testmony of an accomplice not error when no request was made therefor and attention of court was not called to its failure to give it. State v. Weatherman, 202 Mo. 6, 100 SWV 482.

1. Where two jurors separated from the main body temporarily, which fact was known to defendant and his counsel, but he did not object until after verdict, he will be deemed to have waived the irregularity. Valler v. State \[Ga. App.\] 58 SE 1106.

Momentary separation of one juror from the rest while retiring in the court room, under the eye of the judge and in the sheeriffres presence, held no ground for setting verdict aside, when no misconduct was shown. State v. Sims, 117 La. 1036, 42 S 494. One juror was accidentally separated from the others while going to dinner, and others went to a barber shop in charge of a deputy. There was no showing that they had discussed the case. Held not to require new trial. State or discussion of the failure of accused to testify,\[88\] communication between jurors and others,\[84\] the reading of newspapers during the trial,\[85\] taking articles to the jury room and examining them,\[86\] conduct of deputy in charge of jury,\[87\] the admonishing of the jury before adjourments,\[88\] remarks of the court to the jury when they were unable to agree.\[89\] The length of time the jury should be kept together deliberating upon a verdict is a matter resting in the sound discretion of the trial court.\[89\] The

\\begin{tabular}{l|l}

jury must be governed exclusively by the evidence," and have no right to arbitrarily disregard relevant and competent evidence.92

(SS 10) \_G. Verdict.\_See & C. L. 239--While verdicts should be certain and import a definite meaning, free from ambiguity,93 all fair intendments in support of them are made,94 and verbal errors or omissions are held immaterial,95 and they will be held sufficient as to form if the meaning and intention of the jury can be clearly ascertained therefrom.96 They should be construed with reference to the indictment and the entire record.97 It is proper to direct the jury to retire and correct an informal verdict,98 or one not in the intended form.99 While a correction may be made under direction of the court,1 it is error for the court to rewrite the verdict and have the foreman sign, without sending the jury out to deliberate.2

The length of time a jury should be left to other counts had not been shown. Lear v. deliberate is within the discretion of the U. S. \[C. C. A.\] 147 F 349.

trial court. State v. Harris, 112 L. 297, 44

88. Where a jury returned a verdict de- 82. Held not error to send jury back a 82. Held not error to send jury back a 82. Held not error for the third time after additional instructions and admonishing them strongly as to importance it. Steudle v. Ter. \[OkL\] 91 P 1024. Jury of agreement. State v. Rowell, 75 S. C. 494.

may properly be sent back to put their verdict in proper form where there has been no separation such as would injure or 11 to l, and they reported that it was immaterial44 Ala. 16, 41 S 865. Where verdict of ben out 30 hours and the court directed 82. Held not error to send jury back a 82. Held not error to send jury back a 82. Held not error to permit it to be altered by striking out quoted clause where the verdict as orig- 82. Held not error to send jury back a 82.

10 Cur. Law. INDICMENT AND PROSECTION SS 10G.

A verdict of guilty must identify with clearness and certainty the crime found,\* and must be responsive to the charge in the indictment,\* and to the proof.\* A general verdict will be presumed responsive to the proof.\* A verdict in the language of the statute defining the offense found is good.7 A verdict of guilty "as charged" is a verdict of guilty of the offense stated and not of any included offense.\*

Where there are several counts, findings thereon must be consistent.\* Where but one offense is charged in two counts, a general verdict is sufficient.10 A general verdict may be applied to either of several counts of an indictment,11 and will be referred to counts which are good.11 Where only one count was relied on, a general verdict will be referred thereto.13 A verdict of guilty of an offense included in that

App.J 58 SE 689; Murray v. State \[Ga. App.\] defendant is found guilty of former convictions the verdict shall be "W" find the charge of previous convictions true," is directory only, and a verdict finding defendant guilty of former convictions though informal is not fatally defective. State v. Gordon, 35 Mont, 458, 90 P 173. In Tennessee under an indictment charging assault with intent or commit murder in the first degree, a verdict of "guilty as charged" is sufficiently certain as a verdict finding that offense. Fuvert v. State, 115 Tenn. 357, 89 SW 955. Where an information charged burigary and larecy, crimes of the same degree, and the verdict found defendants guilty as charged and also found the value of the goods stolen, the verdict was good as finding the crime of larecy. Perry v. People, 38 Colo. 23, 87 P 796. Va. Code 1904. # 3907, makes third offense of petit large-ceny punishable by not less than one nor more than two years in the pentientiary. Indictment charged two former convictions. Heid verdict finding defendant guilty as charged and assessing punishment at one year in the pentientiary showed a finding of two former convictions and was good. Satisfelled v. Com., 105 Va. 867, 52 SE 979. "We the jury find accused guilty of an attempt to burn a dwelling" not sufficient as such attempt is not necessarily a crime. State v. Jefferson \[La.\] 44 S 1004. # 4. A verdict for mehexlemient need not state the amount embezzel. Sims v. State \[Fla.\] 44 S 737. A verdict must be responsive to the charge and consistent, and find everything necessary to enable the court to render judgment. Harris v. State \[Fla.\] 43 S 111. Where accused is charged as accompplice in the crime of murder, a verdict finding him "guilty of being an accomplice to the crime of murder in the first degree, as charged in the in-diment," is not defective. Carbrough v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 241, 93 SW 728. Proscution for larecy from the person in the nighttime under Rev. St. 1899, $ 1900. Verdict that jury "find defendant guilty of larecy from the person in the nighttime as charged in the information, and assess the punishment at impris-onment in the pentientary for five years," was in proper form. State v. Smith, 190 Mo. 706, 90 SW 440. On prosecution for "willful murder" under Ky. St. 1903, $ 1149, a verdict "guilty as charged in the indictment of murder" not defective as not conforming to the statute. Brown v. Com., 30 Ky. L. R. 505, 99 SW 236. # 5. Verdict wholly unsupported by evidence cannot be sustained. Lunsford v. State \[Ga. App.\] 58 SE 689; Murray v. State \[Ga. App.\] 58 SE 1060; Bonner v. State \[Ga. App.\] 58 SE 1123. A verdict of voluntary manslaughter will not be sustained where the only evidence in the case was whether the crime was murder. Receives v. State \[Ga. App.\] 58 SE 548. Under a charge of robbery, which is amply sustained by evidence, a verdict of guilty of larecy of which there is no proof cannot be sustained. Kemp v. State, 89 Miss. 445, 42 S 606. Where defendant is modified in two counts and the evidence shows him guilty of the first if any, a verdict acquitting him on the first count and convicting him on the second cannot be sustained. People v. Rivers, 147 Mich. 643, 14 Det. Leg. N. 6, 111 NW 201. Upon the trial of several persons for assault and battery, the jury may find one or all of them guilty or not guilty as the evidence warrants. State v. Handy \[DeL\] 64 A 338. # 6. Under an indictment charging larecy and receiving violent property (punishment same for each), a general verdict of guilty is sufficient, proof being sufficient for either offense, and no objection being made until after separation of jury. Cargill v. State, 76 Ark. 550, 90 SW 618. # 7. State v. Horn fs D.\] 111 NW 552. # 8. State v. Yates, 132 Iowa, 475, 109 NW 1005. # 9. Where an indictment under Rev. St. $ 5902 charges an officer of a national bank with misapplication of funds in' several counts charged in two different counts is not bad for failing to specify the count on which it is based.14 Where an information in separate counts charges two distinct but similar and kindred felonies, there can be a verdict of conviction on both counts.15 In Louisiana, on an indictment charging burglary and lareny in separate counts, a verdict of "guilty" is sufficient and will justify sentence on both counts.16 In Mississippi, a general verdict of guilty as charged is one of guilty of burglary alone where the indictment charges burglary and lareny.17 Where there are several defendants charged with separate and distinct offenses, conviction and punishment, may be separate,18 and, in same states, where there are several defendants, the punishment of each must be.separately fixed.19 Where the prosecuting attorney states, and the court instructs, that only defendant is on trial, though another is jointly indicted with him a verdict of guilty will be referred to defendant.20

When required by statute, the degree of the offense must be found and stated,21 and the punishment fixed.22 An unauthorized statement as to punishment may be treated as surplusage.28 A conviction based on a verdict fixing an excessive punishment, under erroneous instructions, must be reversed.24 Where in Texas, a reformatory sentence is to be imposed, the verdict must find the age of accused,25 and, in Indiana, a verdict that the prisoner be sentenced to the reform school is proper.26

\[Neb.\] 113 Nvw 1048. Indictment charger! offense may be had, Buffer v. Ter. \[Ariz.\] stealing of cattle in one count and receiv- 89 P 415. ing stolen cattle in another. Only the charge of lareny was tried and instructs- 1977. shall fix the punishment in certain tones were on that charge only. A verdict of guilty as charged, and finding the value of the cattle was found, and judgment entered conviction of lareny. Held verdict of sufficent to sustain judgment. Long v. State \[Vyo.\] 88 P 617. 1894. 5434, 5415), the jury has no power to 14. State \[M. App.\] 103 SW 110. 15. O'Neal v. State \[FTh.\] 44 S 940. 16. State v. Warner, 117 La. 938, 42 S 432. 17. Dees v. State, 89 Mlss. 754, 42 S 605. 18. Where defendants were indicated in separate counts, one for combination and the other for monopoly in violation of the Anti Trust Law (Act July 2, 1890, such defenses are legally separate and distinct and) justify separate punishment on conviction. United States v. MacAndrews & Forbes Co., 149 F 836. 18. Verdict under indictment of two, charging lareny in one count and receiving stolen goods in another "We the jury find defendant in first count not guilty, We, the jury find defendant guilty in second count, as charged and assess their punishment," etc., held not bad as too indefinite to fix punishment of each separately. Wood-ard v. State \[Ark.\] 104 SW 1109. A verdict against several persons jointly indicted assessing a fine in a specified sum is void for failing to assess separately against each. Pcrry v. State \[Ala.\] 43 S 18. 20. State v. Williams, 76 S. C, 135, 56 SE 783. 21. In West Virginia a verdict for murder which does not find the degree is fatally defective. Code 1906, 159, 8 4584. State v. May \[W. Va.\] 57 SE 366. A verdict of guilty as charged in an indictment charging lareny from the person, which does not specifically find the degree of the crime is invalid, since lareny from the person is but an aggravated form of lareny, and under such charge a conviction of any lesser
Where a plea of not guilty and a plea in abatement are tried together, a verdict of guilty as charged is bad as not responsive to the plea in abatement.\[27\] A special verdict to sustain a judgment of conviction must include all the essential elements of the offense charged and must be responsive to the allegations of the indictment; a mere statement of the evidence is insufficient.\[28\] The Alabama statute relating to special findings by the judge does not apply in criminal cases.\[29\]

Agreement of all of the jurors is necessary to sustain a verdict.\[30\] A verdict arrived at by lot is invalid.\[31\] A quotient verdict disregarded by the jury, who proceeded to regular verdict, is not error.\[32\] That a verdict is returned with a recommendation of leniency raises no presumption that it is a compromise verdict.\[38\] In Florida written verdicts may be received in capital cases.\[34\] A juror will not be permitted to impeach his own verdict.\[35\]

_Receiving verdict_,\[ See & C. L. 240\]-Absence of the clerk when the verdict is received does not vitiate it,\[36\] but the judge\[37\] and accused\[38\] should be present. The verdict may be received and entered on the minutes on Sunday.\[39\] Neither party has an absolute right to have the jury polled, this being a matter resting in the sound discretion of the trial court.\[40\] It is proper to refuse to ask if any juror gave up his honest convictions.\[41\]

**SS 11.**_New trial, arrest of judgment, and writ of error coram mobis.\[ See & C. L. 240\]_

In Georgia the power to grant new trials is confined by the constitution to the superior courts and such city courts as are therein specified.\[42\] In the Federal courts, the successor of the judge who heard the case may pass upon the motion.\[43\]

New trial is not the appropriate method of raising objections to the pleadings,\[44\] nor to correct an erroneous verdict, judgment,\[45\] or sentence.\[46\] The granting of the remedy rests largely in the discretion of the trial court.47 Where the remedy is granted, the case is for trial de novo.48

Footnote 47: The term _a posteriori_ is not included in the context of the trial court.

which affect the substantial rights of accused. \[85\] Improper argument \[54\] or conduct of counsel \[55\] is not ground unless prejudice results and where steps were promptly taken to counteract the error. \[56\] Error in rulings on evidence \[67\] and in instructions is not ground \[58\] unless prejudicial. Misconduct of or affecting the jury, \[59\] or incompetency of a juror, is not ground \[60\] unless prejudice results \[61\] and it is made to ap- or undue influence on jury. State v. Thomas \[Iowa\] 109 NW 900.

Material abridagement of the right of eyes-examination secured to a party by Civ. Code 1895, $ 5282, is ground for new trial. Holt v. State \[Ga. App.\] 58 SE 511. New trial should be granted where defend-ant failed to enter a pien as required by Code Cr. Proc. art. 553, requiring plea of not guilty to be entered on minutes, and if defend-ant refused to answer plea of not guilty will in like manner be entered. Noble v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 764, 99 SV 986.

Strong language by prosecuting attorney against accused not ground for new trial where verdict of guilty was only one which could be honestly rendered, and there was ground for arguing that defend-ant had reported to forgery and subordination of per-jury in his defense. People v. Peek, 147 Mich. 84, 18 Det. Leg. N. 1004, 110 NW 495.

Defeath is not entitled to a new trial because his counsel is fined for con-tempt for disregarding the admonition of the court to refrain from assuming in argument matters not evidence and pays the fine in open court. Spears v. People, 220 Ill. 72, 77 NE 112.

A new trial will not be granted because of remarks of prosecuting attorney where no exception is taken at the time, either by motion to declare a mistrial or otherwise, and the language complained of is not such as to authorize conclusion that accused was injured by its use. White v. State, 127 Ga. 273, 56 SE 425.

Where a witness for the state on his cross-examination by defend, by mistake or knowingly gives evidence that had previously been ruled out, the verdict will not on that account be set aside, the court having instructed the jury to disregard the objectionable evidence. State v. Rugero, 117 La. 1040, 42 8 495. The admission of testi-money which is entirely immaterial and irrelevant to the issues furnishes no ground for a new trial, unless the testimony is of such nature as to prejudice the cause of accused before the jury. Johnson v. State, 128 Ga. 71, 57 SE 84.

In a case otherwise properly tried where verdict is supported strongly by the evidence, a new trial will not be granted merely for failure to instruct on reasonable doubt in connection with a particular proposition. Tolbert v. State, 127 Ga. 827, 56 SE 1004. Failure to instruct on impeachment of witnesses not ground for new trial in absence of a proper and pertinent request. Caesar v. State, 127 Ga. 710, 57 SE 66. New trial will not be granted for refusal to give inaccurate charge not adjusted to proof and which is fairly covered by other instructions. Moody v. State \[Ga. App.\] 58 SE 262.

## 59 Not ground for new trial: Where 127 Ga. 827, 56 SE

Ineligibility of juror because of serv-jurors on viewing scene of crime placed themselves in positions of parties to crime and one of them remarked, "This is all we ground for new trial in the absence of a

## 178 Indictment and Prosecution SS 11. 10 Cur. Law.

pear that movant was ignorant of such fact until after verdict.\[62\] That the verdict is contrary to the law or evidence is ground,\[63\] but ordinarily if the verdict is supported by any evidence it will not be disturbed.\[64\] Jurors will not be permitted to impeach their verdict.\[65\] Surprise or accident is ground only where it results from circumstances over which the movant had no control.\[66\] Disqualification of the trial judge is ground.\[67\]

\_Newly-discovered evidence.\_See 8 C. L. 241--Newly-discovered evidence which is material and important is ground for new trial.\[68\] It must have been discovered

challenge on that ground. Brown v. State, 1 134, 57 SE 968. Where there is no proof Ga. App. 518, 87 SE 1021. New trial will

not be granted because of the relationship

1 Ga. App. 778, 57 SE 956.

within the prohibited degrees of a juror to accused, though such relationship was un-

error was relied upon and evidence was

known to accused until after verdict. Hum-

swey v. State \[Ga. App.\] 58 SE 1066.

State, 127 Ga. 349, 56 SE 405. Where evidency demands the verdict, and no errors of

jurors on failure of defendant to take the

law are complained of, new trial is properly

stand. Woolley v. State \[Tex. Cr. App.\] 16 denied. Richardson V. State, 1 Ga. App. 122,

Tex. Ct. Rep. 605, 96 SW 27. Misconduct of

57 SE 912. Not error to deny new trial

jurors in discussing defendant's character

during deliberations, Harfrovo v. State

\[Tex. Cr. App.\] 18 Tex. Ct. Rep. 966, 99 SW

1121. When it appears that one of the jurors

0001. A verdict of guilty will be set aside

had previously said that he would hang

evused if he was on the jury, and this charge

and the wrong is so palpable as to denote

against the juror is unrebutted except by a

that mistake was made by the jury in

statement of the judge that he knew the

lying legal principles, or to justify sus-

Juror personally and by reputation and that

he is worthy of belief. Glover v. State, 128

tion, prejudice, or partially. State v. Bux-

Ga. 1, 57 SE 101. Where a juror property

rejected serves without the knowledge or

65. Evidence of jurors tending to impeach

consent of the party and participates in

their verdict for their own misconduct

finding and rendering a verdict. Sherman

properly excluded on motion for new trial.

v. State \[Ga. App.\] 58 SE 393. Where it

spears that a juror was related to the

prosecutor within the prohibited degrees of

consanguinity. Smith v. State \[Ga. App.\] 58

ground for new trial in view of the rule

69 SE 311. Where it appears that a por-

that such afflavits cannot be received to

tion of jurors in a homicide case had stated

impeach verdict. State v. Steidley \[Iowa\]

that they believed defendant guilty and

112 NW 333.

would hang him if they got on the jury

68. Motion for new trial on ground of

and there is nothing to rebut such charges.

Sasser v. State \[Ga.\] 59 SE 225.

69. Application for new trial on ground

of misconduct of jurors is insufficient where

it does not appear that defendant and his

counsel were ignorant of such misconduct

until after trial. State v. Harfstrom, 198

89. Defendant may successfully urge disqualification of the judge by reason of his

Mo. 23, 95 SW 235. Alleged incompetency

of a juror is not a ground for new trial,

unless it appears that defendant and his

counsel did not know of his incompetency

at time of making challenges. State v.

Matherws, 202 Mo. 143, 100 SWV 420. Where

a juror stated on his vor dirte that he had

formed an opinion which would require

evidence to remove, but no challenge was

interposed, held a new trial would not be

granted because of prejudice of the juror.

Clifford v. People, 229 Ill. 633, 82 NE 343.

63. Should be granted where the verdict

is wholly without support in the evidence.

Kennedy v. State \[Ga. App.\] 58 SE 543.

Vhere all the evidence in the case wholly

fails to cancel accused with the commission of the offenses, but on the contrary pre-

sens a reasonable hypothesis of his innocence, a verdict of guilty is without evidence to support it, and hence contrary to

law. Johnson v. State, 1 Ga. App. 129, 57 SE 944. Where brief of evidence shows

no proof of venue. Mill v. State, 1 Ga. App.

1121. When it appears that one of the jurors

0001. A verdict of guilty will be set aside

and previously said that he would hang

evused if he was on the jury, and this charge

and the wrong is so since the trial "\*" and be of such nature that it could not have been produced at the first trial by the exercise of ordinary diligence," and it must appear that due diligence was exercised." It must also appear that the evidence'will be produced at the new trial." The granting of the motion being discretionary," and the ground of

timony of an eye witness. Weaver v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 875, 105 SWV 158. Newly-discovered evidence held not merely impeaching and of such nature as to require granting of new trial. State v. Speitus, 191 Mo. 24, 90 SWV 455. Where one 'was surprised by the fact that testimony of his own eye witness was contradicted and that others testified as eye witnesses, demonstrate evidence consisting of photographs of scene of crime held ground for new trial whether or not it came within grounds of newly-discovered evidence. Lindsey v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 413, 98 SWV 856. Evidence in support of defendant's theory in burigary case. True v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 106, 89 SWV 1068. In rape case, there was evidence tending to show proseurti was to be delivered of a child at the time of trial. Held that where a motion for new trial was made two weeks later on the ground that the child was not yet born, this was in the nature of newly-discovered evidence, weakening testimony as to pregnancy of prosecutri. Austin v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 493, 101 SWV 1162.

So. Evidence known to accused at time of trial held not "newly-discovered." Alexander v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 878, 90 SWV 1112. Not where it appears defendant knew of witnesses and what they would swear to before trial and asked for no continuance on account of their absence. Martinius v. People, 223 LIN. 117, 19 NExp 55. Not for evidence of which the defendant knew at the time, but which was then incompeent. Testimony of person who was the wife of accused at time of trial, but later obtained a divorce. State v. Sargood \[Vt.\] 68 A 51. Evidence that a witness was not on friendly terms with defendant is not newly-discovered, no diligence being shown, except that attorney did not know of the unfriendly feeling. Washington v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 143, 105 SWV 789. Not for cumulative evidence which was known to defendant before the trial. Jones v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 874, 105 SWV 343. A new trial will not be granted on account of absence of witnesses where it is apparent that the witnesses were known at the time of trial, but could not be found, and no continuance is applied for on that ground. State v. Cook \[Idaho\] 88 P 240.

70. A new trial will not be granted on the ground of newly-discovered evidence unless it clearly appears that the testimony is new, material, not cumulative, and that it could not with reasonable diligence have been obtained at the time of the trial. State v. Nimerick, 74 Kan. 658, 87 P 722. Where witness was placed on stand three times, new trial will not be granted for new testi-timony by him. Coffman v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 701, 103 SWV 1128. Not here it appears that the testimony could have been produced at the trial by the exercise of ordinary diligence. Rogers v. State \[Ga.\] 59 SE 288. Not for evidence of chemical analysis which might have been produced at first trial. State v. Sargood \[Vt.\] 68 A 51.

01. Richardson v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 220, 94 SWV 1016.

Hadell Insufficient showing made to warrant granting of new trial for newly-discovered evidence. Anderson v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 750, 100 SWV 158. Not within a showing of diligence and that it was not known before trial. Mayes v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 866, 100 SWV 386. Where witness had been in court on a prior day and a subopen for him had not been returned. Vnaats v. State \[Ark.\] 101 SWV 169. Where accused seeking new trial on ground of newly-discovered evidence cannot locate witness by whom he desires'to prove new matter at the time of the hearing. he should ask a postponent until he'can get the witness. Tyler v. State \[Tex. Cr. App.\] 90 SWV 33. Where testimony of state indicated that such witness knew of such matter and he, though thereafter testifying, was not questioned in regard to it. Harrall v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 360, 97 SWV 1057. Motion on ground of newly-discovered evidence having attached no afflavit that facts were newly-discovered, or that testimony could not have been produced at trial. Jeffreys v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 834, 103 SWV 886. Where evidence is not alleged to be newly-discovered, it is presumed that defendant had knowledge of the witness in time to have procured his testimony at the former trial. State newly-discovered evidence not being favored, movant must make it appear that the evidence fulfills all the requirements.74 It will not be granted for evidence which is immaterial,76 merely cumulative 76 or corroborative 77 hearsay,78 or for contradictory or impeaching testimony 79 which would probably not produce a different result.80

Footnote 79: The author is grateful to the anonymous referee for his comments on the manuscript.

Stewart v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 369, 105 SW 809.

Footnote 70: The author is grateful to the anonymous referee for his comments on the manuscript.

Stewart v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 369, 105 SW 809.

Footnote 71: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 72: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 73: The author is grateful to the anonymous referee for his comments on the manuscript.

Stewart v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 369, 105 SW 809.

_Practice on motion._${}^{\\tt 50c\\ 8\\ C.\\ L.\\ 242}$\_--The motion must be made within the time prescribed, \[81\] but, though filed too late, the accused in a capital case is entitled to a review of the ruling thereon. \[82\] The granting of new trials in Federal courts follows the common law, and the court has no jurisdiction of such motion made after the term at which sentence was pronounced. \[83\] It must specifically state the grounds relied on. \[84\] It must be verified if so required \[88\] and be supported by afflavit as to all matters of fact involved. \[86\] A motion based on erroneous rulings on evidence

v. Barrick, &0 W. Va. 576, 55 SE 652. Evidence that a state's witness, since the trial, has made declaration even under oath that his testimony on the trial was false, is not ground for new trial. In seduction case accused claimed to have received a letter with cluttered or not. The court can not be supported by afflavit as to only matters of fact involved. \[86\] A motion based on erroneous rulings on evidence

v. Barrick, &0 W. Va. 576, 55 SE 652. Evidence that a state's witness, since the trial, has made declaration even under oath that that the verdict is contrary to the law and ground for new trial. In seduction case accused claimed to have received a letter with cluttered or not. The court can not be supported by afflavit as to only matters of fact involved. \[86\] A motion based on erroneous rulings on evidence

v. Barrick, &0 W. Va. 576, 55 SE 652. Evidence that a state's witness, since the trial, has made declaration even under oath that his testimony on the trial was false, is not ground for new trial. In seduction case accused claimed to have received a letter with cluttered or not. The court can not be supported by afflavit as to only matters of fact involved. \[86\] A motion based on erroneous rulings on evidence

v. Barrick, &0 W. Va. 576, 55 SE 652. Evidence that a state's witness, since the trial, has made declaration even under oath that his testimony on the trial was false, is not ground for new trial.

should designate each ruling and make specific reference to the evidence.87 A defective motion for new trial will not be aided by construction,88 but leave to amend may be granted.89 It is the duty of the court to grant a hearing on the motion,90 but the overruling, instanter of motions for new trial and in arrest which raised only questions considered during the trial, is not a denial of any right, nor a refusal to consider such motions.91 In passing on the motion, the court occupies the position of a trior and his finding is conclusive.82 In passing on the motion, only matters properly before the court will be considered.83 Affidavits in support of motion may properly be considered though filed out of time,94 but affidavits as to matters not referred to in the motion will not be considered.85 The court may limit the time for arguing the motion.96 A motion for a new trial based on alleged insufficiency of evidence is an appeal from the jury to the court on a question of law.97 In passing on such a motion, the court does not retry the case on the evidence nor disturb any findings made by the jury on evidence sufficient in law to sustain them.98 It simply determines whether in law the facts found or which could have been found constitute

for a change of venue may be determined by an examination in court as to their knowledge of the matters to which they be reviewed in the absence of clear and have sworn. Kirby's Dig., SS 2317, 2318, manifest error. Crawford v. State, 128 Ga. requires affidavits of two credible persons, but provides no means of determining their credibility. White v. State \[Ark.\] 102 SWV 715.

87 A general complaint to the exclusion or admission of evidence is insufficient. Richa-berger v. State \[Miss.\] 44 S 772. A motion which simply refers to the bill of exceptions or other writing not filed with the motion for the evidence is insufficient. Id.

88 Richberger v. State \[Miss.\] 44 S 772.

89 A motion for new trial, defective for being vague and general in its allegations, may be amended where such amendment can be made in a few minutes. State v. Vickharl, 118 La. 963, 43 8 635. Motion for new trial, filed within two days, did not mention misconduct of juror, and later, amended motion relied on misconduct of a juror and alleged that it was not known when original motion was filed. Held, since statute allows amended motions when merit is shown, court should have investigated amended motion though filed after two days. Covington v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 50, 100 SWV 868.

90 Where the court overruled a motion for a few hours time to prepare a motion for new trial, and thereafter overruled motion for new trial without learning the reasons urged in support of it, held that the overruling of motion for time to prepare motion for new trial was error. Neatherv v. People, 227 Ill. 110, 81 NE 16.

91 Gourdain v. U. S. \[C. C. A.\] 154 F 453.

92 In passing upon a ground of a motion for a new trial based upon alleged bias and expression of opinion of a juror. before trial, the judge acts as a trior, and his decision will be reversed only where a manifest abuse of discretion appears. Moore v. State, 1 Ga. App. 728, 57 SE 956. Ground of new trial being that juror expressed an opinion before trial, the court in passing thereon occupies the position of a trior, and its decision that the juror is competent will not be reviewed in the absence of an abuse of discretion. McLeod v. State, 128 Ga. 17, 57 SE 83. Motion for new trial being based on previously expressed opinion of a the offense charged." In Texas where on motion for new trial an issue is made as to the fairness and legality of the verdict, the issue should be tried and the jurors compelled to testify.1

_A motion in arrest of judgment_ See 8 C. L. 242 lies only for a defect appearing on the record.2 In some states it lies only for statutory reasons.3 It will reach a jurisdictional error apparent from the record.4 It will reach defects in the indictment,5 though the better practice is to raise such questions by motion to quash 6 or demurrer.7 It will not reach questions as to sufficiency of evidence 8 or errors in the admission thereof.9

Footnote 26: http://www.

\_Motion to set aside the judgment.\_See 8 C. L. 241.--On a motion to set aside a verdict as contrary to the evidence, it will be considered as upon a demurrer to the evidence \[10\]

\_A writ of error coram mobis_See 8 C. L. 242 lies to present for review matters not reviewable on appeal or error,\[11\] and does not lie to contradict an adjudicated issue of fact,\[12\] nor where a motion for new trial would present the same question.\[12\]

SS 13. \_Sentence and judgment.\_See 8 C. L. 244.--The pronouncing of sentence is no part of the trial within the rule that defendant shall have the right to a speedy trial.\[14\] Sentences should be imposed in keeping with the spirit of the law, the object of which is to protect society and reform the criminal.\[15\] It is not essential that the court should formally adjudge defendant guilty before pronouncing sentence.\[19\] In cases not capital, it is not essential that the court, prior to sentence, should ask defendant if he has anything to say why sentence should not be passed upon him.\[17\] The sentence must correspond to that provided by law for the offense charged,\[18\] must be supported by indictment, which must appear in the record proper,\[19\] and must conform to the charge therein set out.\[20\] An additional penalty in case accused shall apply for relief from a jail sentence is illegal.\[21\] Palpable errors in a sentence may be disregarded.\[22\] Postpionement of sentence is properly denied where the application is not supported by any showing.\[23\] Postpionement of sentence to await the result of another trial is proper.\[24\] In some states suspension of sentence is allowable.\[25\]

On plea of guilty to two charges punishment should be assessed for each.\[28\] Cumulative sentence must be apportioned; a single sentence for a longer term than is authorized for any one of the offenses is void.\[27\] Where a cumulative sentence is

\*\*10.\*\*Code 1904, $ 3484. Wright v. Com., 106

**Va.** 855, 56 SE 705.

\*\*11.\*\*Only review beyond review of events of trial on witf of error or appeal is an original proceeding in the trial court on witf, or error coram mobis, the offce of which is to present for review matters not reviewable on appeal or error. Beard v. State, 79 Ark. 283,

95 SWV 995, 97 SWV 667.

\*\*12.\*\*Defendant is not entitled to the writ after conviction at a former term on an adjaction that prosecounting witness committed perjury, and had voluntarily made affladavit of that fact since such allegation called for review of issue of fact raised by plea of not guilty. Beard v. State \[Ark.\] $ SWV 837.

That defendant was prevented by fear of violence from obtaining his witnesses does not entitle him to writ of coram mobis after conviction at former term since that his matter which should have been set up by motion for new trial at term at which he was convicted. Id.

\*\*13.\*\*Wilson v. State \[Wash.\] $ 0 P 257.

\*\*14.\*\*Delay of 35 days did not deprive court of jurisdiction to pronouncing judgment. People v. Stokes \[Cal.\]. ApJ $ 997.

\*\*15.\*\*State v. Neil \[Idaho\] $ 0 P 860.

\*\*16.\*\*Nagel v. People, 229 in 11. 598, 52 NE 315.

\*\*17.\*\*State v. Sims, 117 TA. 1036, 42 S 849.

\*\*18.\*\*Bradford v. State \[Ala.\] $ 980.

\*\*19.\*\*That the sentence is supported by an indictment set out in the bill of exceptions does not suffice, it must be supported by the indictment disclosed by the record. Andrews v. State \[Ala.\] $ 196.

\*\*20.\*\*Punishment for felony cannot be imposed for simple assault. Andrews v. State \[Ala.\] $ 196.

\*\*21.\*\*Sentence of a fine and five months' imprisonment, and three months' confinement on the chain gang in case accused applied for relief from the jail sentence, held illegal. Wallace v. State, 126 Ga. 749, $ 58 SE 1042.

\*\*22.\*\*Where alternative sentence of fine or imprisonment is imposed and the penitenary instead of the jail is erroneously cleared the place of imprisonment, held that such portion of the sentence might be rejected as surplusage and did not vititate the sentence. Ex parte Tani \[Nev.\] $ 17 B17.

\*\*23.\*\*Where verdict was returned March 21 and defendant arxigned for sentence the 24th, it was not error to deny postponement in absence of showing in support of motion for new trial for newly-discovered evidence. People v. Buck \[Cal.\] $ 19 PS.

\*\*24.\*\*Postponement of sentence for three months to await result of another trial for similar offense is not error. People v. Roberson \[Cal. App.\] $ 2 P 498.

\*\*25.\*\*Right to suspend sentence discussed. Harris v. Lang., 27 App. D. C. 84; Harris v. Nixon, 27 App. D. C. 94.

\*\*26.\*\*Where an information charges both latency and burglary and the statute afflaxes a different punishment for each, the punishment on plea of guilty should be assessed for each offense. State v. Kelley, 206 Mo. 685, 105 SWV 606.

\*\*27.\*\*Where imposed and the second one is void, the third term begins at expiration of the first.\[28\] Defendants who have been convicted and sentenced on several counts, the sentences to run concurrently, cannot complain that they have been convicted several times for the same offense.\[29\] Where commitment is under several concurrent judgments, they may be executed concurrently.\[30\] A sentence prescribing different terms of imprisonment on the same day is presumed to run concurrently, unless an intention that they shall run consecutively is expressly indicated.\[31\] In Florida the court has power only to fix the nature and extent of punishment; it has no power to fix the time of executing its sentence nor the time when punishment shall commence or end.\[32\] Where the issue of insanity is raised and tried after conviction, sentence should be enforced at once, if defendant is found sane; if found insane, he should be adjuded a lunatic and confined according to law.\[33\] Where the verdict fixes defendant's punishment at a certain term of imprisonment, and the court erroneously sentences defendant to a term of double that time, the error may be corrected by motion to the court rendering the judgment,\[34\] even though defendant has served the full term fixed by the jury.\[33\] The court is without power to revoke a sentence lawfully imposed after conviction and partly executed for the purpose of imposing a more severe one.\[36\] The power of suspending sentence is resident in certain courts and statutes conferring such power are not to be construed as trespassing on the pardoning power.\[37\] A suspension may be revoked after expiration of sentence for other crimes.\[36\] Where a new trial is granted after conviction and sentence to life imprisonment, such 'conviction and sentence is not a bar to a sentence of death on a subsequent conviction.\[36\] The power of inferior courts to impose alternate sentences of fine or imprisonment \[40\] and the form of such sentences \[41\] must be determined by reference to the statute and charter provisions. In Alabama where defendant is sentenced to hard labor, the court must determine the time necessary to work out costs.\[42\] A sentence counts. United States v. Peeke \[C. C. A.\] 158 Y 166. 28. United States v. Carpenter \[C. C. A.\] 151 F 214: 29. Imbeden v. People \[Colo.\] 90 P 608. 39. Burns' Ann. St. 1901, SS 1931, provides that, where one is imprisoned for failure to pay fines or costs, one days imprisonment shall equal one dollar of fine or costs. Held, where commitment was under several judgments amounting to $25 each, and judgments were concurrent and executed contemporaneously, $2 days imprisonment discharged them all. Peed v. Brewster, 168 Ind. 51, 78 NE 1089. 31. Kirkman v. McClaughry, 152 F 255. 32. State v. Horn \[Fla.\] 42 S 383. Holland v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 172, 105 SW 812. 34, 35. Petition of Channels, 30 Ky. L. R. 1248, 100 SW 214. 36. People v. Sullivan, 54 Misc. 489, 106 NYS 143. 37. People v. Flynn, 55 Misc. 639, 106 NYS 925. 38. Where sentence was suspended and within the period the defendant was twice convicted of other crimes, held, on expiration of a sentence imposed for one of such offenses, the court in which he was first convicted could revoke the suspension and inflict punishment. People v. Flynn, 55 Misc. 639, 106 NYS 925. 39. People v. Griffith \[Cal.\] 91 P 515. 40. Mayor of city of Bainbridge held to

## 186 Indictment and prosecution SS 12. 10 Cur. Law.

erroneous because of errors in apportioning the time of imprisonment to satis${}^{\\prime}$y a fine and costs is not void, but is sufficient to prevent the discharge of defendant or the suretics upon his bond.\[43\] A sentence imposed by a justice which is beyond his jurisdiction to impose is void.\[44\]

Status providing for indeterminate sentences for crime are constitutional.\[45\] Such statutes do not affect sentences already pronounced and in process of execution.\[44\] A prisoner is not entitled to be released at the end of a minimum sentence imposed by the court where the maximum is fixed by statute and the sentence is indeterminate.\[47\] A statute fixing only a minimum penalty has been held not void on that account.\[48\] A sentence to a reformatory for a certain term of years is a sufficient compliance with a statutory requirement that the court shall fix the maximum sentence.\[49\] Where defendant pleads guilty in the first degree, he is not injured by failure of the court to fix the degree.\[50\] In Montana the court must determine the degree of guilt only where a plea of guilty is entered.\[41\] Where it rests in the discretion of the court to fix the punishment, it may consider evidence in mitigation or aggravation which was not admissible on the question of guilt or innocence.\[52\]

\_Judgment.\_See S C. L. 248--The judgment must sufficiently designate the offense charged.\[54\] A judgment is final notwithstanding the omission of the word "considered" in its reciats.\[54\] Where judgment was not entered at the time required, the trial court was held authorized to enter it nunc pro tunc.\[55\] A judgment of a justice of the peace need not be signed by him in the absence of statutory requirement.\[54\] A recital that verdict was entered on a date which would be Sunday does not show entry of judgment on that day.\[57\] A judgment not responsive to the verd.\[57\]

do so, Scott v. State \[Ala.\] 43 SS 181. A State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 309, 103 SW 859.

in satisfaction of costs should show an ascertainment of the cost and the determinate 11.489) held sufficient under Pub. Laws tion by the court of the number of days for 1903, p. 168, Act. No. 136, 5 I. In ro Manca, quired to work it out. Judgment held in-sufficient under Code 1936, $ 4532. Moore v. 50. Under Pen. Code, 1112, declaring that state \[Ala.\] 42 S 956.

43. Under Code 1856, $ 4532, imprisonment the court shall determine the degree of of fine may be in addition to 10 months for costs. Weinard v. State \[Ala.\] 42 S 991.

01. Ex parte Narvaez \[Cal. App.\] 89 F 857.

01. People held to have power to amend 1 10 Cur. Law. INDICMENT AND PROSCUITION SS 13.

dict may be corrected on appeal, in Texas,\* and where verdict and judgment are for an offense not charged the judgment may be reformed to adjudge accused guilty of the crime charged.\* No election being required between counts in an indictment for misdemeanors, a judgment need not show upon which count conviction was held.\* A judgment under an ordinance void as to the penalty provided is not invalid where the judgment was in terms authorized by general law.61 Where under erroneous instructions the jury assesses a punishment in excess of that allowed by law, the court has no power to enter judgment for the maximum punishment allowed.62 In such case there is a mistrial, and the judgment must be reversed and the cause remanded.63 Fixing the date of execution is not a judicial act and the governor may be authorized to fix it.64 In Iowa the governor has power to issue a warrant for defendant's execution upon affirmance of conviction by the supreme court.65 A judgment of conviction is conclusive evidence of facts determined when introduced in a subsequent proceeding against the same person.66

SS 13. \_Record or minutes and commitment.\_See * C. L. 245--The record must show every essential step, including a proper charge against defendant,67 arraginment of accused and a plea to the indictment,68 impending and swearing of the jury,69 ruling on motion to quash the panel,70 and all essential elements of a valid judgment.71 Silence of the record concerning facts not customarily shown therein is not a ground for arresting or setting aside the judgment.72 In Idaho the record

into court "and is here now entered on the tin) has before him a judgment of the minutes" a certain verdict does not show sureme court affirming a conviction, he is that judgment was entered on that day. authorised to issue a warrant for defend-Moore V. State \[Tex, Cr. App.\] 96 SW 221. ant's execution. Busse v. Barr, 132 Iowa, 58. A judgment not responsive to verdict \[463, 109 NNV 920.

will be corrected on appeal. Byrd v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 300, 103 SW SW 863. Under stature giving supreme court authority to conform judgment and sentence to show that defendant was charged with to verdict, a judgment and sentence in theft based on a verdict of guilty of enbezzlement will be reformed to conform to verdict, v. State \[Tea. Cr. App.\] 95 SW 503. **68.** Even in misdemeanor cases. State v. \[459. Under Code Cr. Proc.\] 1895, art. 904, authorizing court of criminal appeals to reform judgment as nature of case requires one found guilty of theft under an indictment for enbezzlement and sentenced therefore, judgment may be reformed to adjudicate him guilty of enbezzlement. Burk v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep.\] 582, 95 SW 1064. **60.** Blevens v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep.\] 91, 97 SW 86. **61.** Where one was convicted under an ordinance which was void as providing a penalty in conflict with general law but the judgment was in terms authorized by the general law, it is valid. Ex parte Sweetman \[Cal. App.\] 90 P 1069. **62.** Court instructed for one to ten years, and jury assessed ten, law allowed but five, which court fixed. Thomas v. Com., 30 Ky. L. R. 1371, 101 SW SW 303. **63.** Thomas v. Com., 30 Ky. L. R. 1371, 101 SW 303. **64.** Under Cr. Code Prac. SS 290, 346, relative to judgment of death and mixing date of execution, held not to make fixing of date a judicial act precluding the legislature from authorising the governor to fix another day in case sentence is not enforced on a day specified. Built v. Sturgeon \[KY.\] 105 SW 468. **65.** In Iowa, under Code, SS 4746, when the governor (who issues warrants for execu-) is not allowed.

proper need not show that the defendant was informed of his right to challenge an individual juror before the jury is sworn,\[73\] nor that the jury was admonished before each adjournment not to discuss or form any opinion until the case was finally submitted.\[74\] Omissions may be cured by amendment,\[75\] or by the record on appeal.\[76\] In Iowa a judgment for imprisonment and costs cannot be corrected six years after its entry by a nunc pro tune order to insert a fine therein.\[77\] Within his statutory jurisdiction a justice has complete authority in making up his record.\[78\]

_Commitment_ See s C. L. 246 should be properly signed \[79\] and should show the place of imprisonment.\[80\] The requisites of a commitment to the industrial school, under the Nebraska statute, are discussed in the note.\[81\]

SS 14. _Saving questions for review. Necessity of objection, motion, or exception.\[See s C. L. 240\]_-Aside from objections to the jurisdiction, of which advantage may be taken at any time,\[82\] and to the failure of the indictment to state an offense,\[83\] prompt objection and exception in the trial court is necessary to preserve the right to a review of the ruling complained of,\[84\] as objections not so urged \[85\] and

73. Though this should be done. Rev. St. \[Ncb.\] 113 N NV 125. Where the court makes 1887, $ 7826. State v. Suttles \[Idaho\] 88 P a written finding that "accused is a fit subject for the industrial school" and orders 74. State v. Suttles \[Idaho\] 88 P a38.

01. The circuit court at a subsequent term may amend its record on parql evidence to found all facts necessary to support the absorber that the jury was sworn as required by law. Goddard v. State, 78 Ark. 226, 95 SWC 476. A court has power to correct its record to correspond to the fact. Record properly amended to show discharge of jury. State v. Curry, 74 Kan. 624, 87 P 745. Where minutes of term at which indictment was found failed to set out the original grand jury venire, this was not a ground for quashing the indictment where the court permitted an amendment at an adjourned term to show the organization of the grand jury. Snyder v. State, 145 Ala. 34, 40 S 978.

01. Where a case was transferred from one county to another, the objection that the record as certified by the clerk of the first county court to the other county failed to show the order removing the cause is not ground for reversal where a return to a vwrit of certiorari in the supreme court shows the order of removal. State v. Banks, 61 W. Va. 6, 55 SE 739.

01. Constraining Code, $ 5481, 5443. Smith v. Mahaska County Dist. Ct., 182 Iowa, 693, 109 N NV 1085.

01. Johnson v, State \[Del.\] 67 A 785.

01. Varrant of commitment signed by police Judge of San Bernardino elected in 1905, but signed as "city recorder" held sufficient, construing charter provisions. Ex parte Baxter, $ Cal. App. 116, $ P 998. A certified copy of the sentence is a sufficient commitment under Code Cr. Proc. $ 486, and accordingly failure to sign the commitment is immaterial. People v. Pitts, 118 App. Div. 457, 103 NYS 258.

01. A commitment of a justice to imprisonment in the county jail is sufficient though it does not specify the jail of what county, especially where it appears that he is authorized to commit only to the jail of one county. Ex parte Bargagliotti \[Cal. App.\] 92 P 96.

01. Under Cobbey's Ann. St. 1903, $ 9736, a judge in committing an infant to the industrial school need not make a written finding that defendant is of same mind and under eighteen years of age. Leiby v. State

## 10 Cur. Law. INDICMENT AND PROSECTION SS 14.

insisted and relied upon \*\* will be deemed to have been waived, and this is so notwithstanding an agreement that all errors might be taken advantage of without formal objection or exception.\[87\] This rule has been applied to objections to the formal sufficiency of the indictment,\[88\] organization of the grand jury,\[89\] refusal of request for special venire,\[90\] manner of swearing talesmen,\[91\] overruling challenge to juror for cause,\[92\] failure to admonish the jury,\[93\] want of service of indictment and venire,\[94\] denial of continuane,\[95\] transfer of the cause,\[96\] dismissal of one of sev-

ruling on evidence and the matter was not self, the objection 1s waived. Stamper v. referred to in motion for new trial nor brief on appeal, objection was waived. Seaggs v. to argument of counsel is waived where after State \[Ark.\] 99 SWY 1104. Under Pen. Code, being cautioned the attorney paid no heed $ 686, permitting testimony taken before committing magistrate "by question and an answer" to be read where witness is dead, objection to reading of testimony taken in narrative form is waived where no objection is revived where not first raised by denurrer mode. People v. Clark \[Cal.\] 90 P 549. Objection that confession was not voluntary held waived where the question was not raised until after it was gotten before the jury. People v. Slivers \[Cal. App.\] 92 P 506. Where accused did not ask for discharge of jury at once when counsel commented on his failure to testify, the objection was waived. State v. Buxton, 79 Conn. 477, 65 A 957. Where defendant failed to ask to have the jury admonished to disregard improper argument, he cannot raise the question of appeal. Williams v. State \[Ind.\] 82 NE 790. Where at the time accused made no objection that jurors had heard argument in a similar case against him, the objection would not be considered on appeal. Day v. Comm., 29 Ky. L. R. 814, 96 SWY 608. Objections to jury list will be deemed waived if not seasonally urged. State v. Petit, 119 La. 1013, 44 S 848. Failure to object to remarks of counsel is a waived of the error if any. State v. De Witt, 191 Mo. 51, 90 SWY 77. One convicted is not entitled to reversal on appeal because the prosecution was barred by limitations where such objection was not interposed at the trial. People v. Blake, 121 Apr. Div. 113, 106 NYS 318. Objection to sufficiency of proof - is waived where it is raised only by a request to direct a verdict of not guilty. State v. Kryner \[Cor.\] 91 P 301. Insnfficient review of evidence not ground for reversal where attention of court is not called to it. Comm., 216 Pg. 149, 65 A 31. Bill of exceptions reserved to overruling of motion for change of venue after term time cannot be considered. Dobbs v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 64, 100 SWY 946. Before accused can complain that he was compelled to proceed in absence of jurors who had been summoned, he must ask to have case postponed. Mays v. State \[Tex. Cr. App.\] 96 SWY 329. Where jury were excluded pending argument whether certain evidence admitted should be excluded, and when the jury returned counsel failed to call attention to the fact that the court ruled to exclude it, the objection was waived. Rice v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 363, 103 SWY 1156.

86. An objection to the overruling of motion to direct a verdict on the ground of insuffiency of evidence is waived by defendant introducing evidence on his own behalf. Stearns v. U. S. \[C. C. A.\] 152 F 900. Where objection was made by junior counsel but was afterwards withdrawn by senior couh-

01. Bielch v. People, 227 Ill, 80, 81 NE 36.

01. Sufficiency of indictment will not be reviewed where not first raised by denurrer or motion to quash. Church v. Ter. \[N. M \]

91 P 126. Objection that indictment for engagement charged defendant as cashier instead of as agent, director, clerk, or officer, not ground for reversal when raised for first time on appeal. Richberger v. State \[Miss.\] 44 S 772. An alleged error presenting a question of law to which no exception is taken in the trial court cannot be reviewed by the court of appeals. Contention that conviction of assault in first degree cannot be had under indictment for translabighter cannot be considered where not raised below. People v. Huson \[N. Y.\] 79 NE 835.

88. Where the question of organization of the grand jury was not raised below, it will not be considered. Logan v. State \[A1a.\] 43 S 10.

01. Refusal of request for special venire cannot be reviewed, no exception to ruling being taken. Laws v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 13, 101 SWY 887.

01. Appellant may not complain of the manner in which talesmen were sworn when trailed. People v. Blake, 121 Apr. Div. 113, 106 NYS 318. Objection to sufficiency of proof - is waived where it is raised only by

## 190. Indictment and prosecution SS 14. 10 Cur. Law.

eral defendants in order to use him as a witness against others," acts of bystanders during trial," absence of judge," remarks of the court," failure to enter an order on the minutes," argument," conduct and remarks of counsel," failure to swear a witness," incompetency of witness," violation by witness of rule of exclusion from court room," admission or exclusion of evidence," instructions given," refusal of

9S. Action of court In dismtising as to one \[decedent's widow cannot be reviewed, where of several defendants so as to use him as a witness after jury is impaneled and sworn to try all cannot be reviewed where no ex- \[HS SVW 284. Objectionable remarks of attorception was saved. Steudle v. Ter. \[Okl.\] 91 In exceptn be complained of an appeal where no exception was saved below. Johnson v.

99. Act of bystander, who had testified in \[ATla.\] 44 876. Error in remarks of correcting counsel so that jurors could hear him, as to extent of deceased's wound, not exceeded to, held not reversible error.

By counsel for defendant. Smith v. State, 79 Holt v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 751, 100 SW 156.

I. Where no objection was made to short absence of judge during argument, it could not be raised on appeal. Thomas v. State \[Alia.\] 43 83 71.

Z. Remarks of the court and objections thereto cannot be made part of the record by motion for new trial. State v. O'Kelley, 121 Mo. App. J78, 98 887 804.

3. Objection that order authorizing amendment was not entered on the minutes as required by statute cannot be raised for first time on appeal. Richberger v. State \[Miss.\] 44 8 772.

1. Where no exception was taken to argument of counsel, it will not be reviewed.

Lowrie v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 787, 98 887 838. Argument of district attorney not reviewable, no exception being taken. People v. Melandrez \[Cal. App.\] 88 872. Improper armulant will not be reviewed where no exception was saved. People v. White \[Cal. App.\] 90 P 471. Argument though irrelevant held not reversible error where no objection was made and no ruling invoked. Thomas v. State \[Ga.\] 59 SE 246. Where no exceptions were taken to argument of counsel, improper argument is not ground for reversal. Day v. Com., 29 Ky. L. R. 814, 98 SW 508. Where accused neither objected to argument of counsel nor asked the court to exclude it, error is not re-viewable. Sweat v. Com., 29 Ky. L. R. 1067, 96 SW 843. Objections to argument will not be reviewed where not objected to in the trial court, nor the court asked to reprove the attorney, or admonish the jury to disregard it. McIntosh v. Com., 29 Ky., L. R. 1100, 96 SW 917. Improper argument will not be reviewed where no objection or ex-option was taken at the time. Stevens v. Com., 30 Ky. L. R. 290, 98 SW 284. It is only in the most flagrant cases of use of improper argument even in capital cases that defendant may slit by and remain silent and raise objection after verdict. Clark v. State \[Neb.\] 113 NW 804.

S. Language of prosecuting attorney not being subjected to at the time it was used, objection being first raised in motion for new trial, it will not be considered on appeal. France v. Com., 30 Ky. L. R. 1297, 100 SW 1193. Where no ruling below was made on objections to conduct of counsel and no request for such ruling, the matter will not be reviewed. Gibson v. Com., 29 Ky. L. R. 733, 96 SW 468. Failure of court to immediately put a stop to unesemly conduct of instructions,11 failure to instruct,12 permitting jury to take improper matter to the jury room,13 refusal to receive verdict,14 form of verdict.15 Irregularities or errors

passed on where no objection to its admis- as to consideration of certain evidence in slon was made. State v. Myers, 198 Mo. 255, 94 SVW 241. Rulings on evidence will not be subject. State v. Kennard \[N. H.\] 65 A 376. reviewed when timely exceptions are not taken in the trial court. State v. Hubbard, and preserved or instructions will not be 201 Mo. 639, 100 SVW 586. Alleged error in receiving evidence will not be considered (Or.) 88 P 306. Error if any in failure to when no objection appears in the record. State v. Williams, 76 S. C. 135, 56 SE 783. Objection that witnesses on insainty had not yet (Tex Cr. App.) 20 Tex. Ct. Rep. 371, testified to facts sufficient to warrant ad- 105 SVW 79. Instructions cannot be considered on appeal where no exceptions thereto raised on appeal. Taylor v. State \[Tex Cr. App.\] 97 App.\] 90 SWW 647. Error in dAmfitting con- 8 SWW 477. Where no exception is reserved to will not be reviewed unless presented by the instructions, objection thereto cannot be bill of exceptions. Jones v. State \[Tex Cr. App.\] 17 Tex. Ct. Rep. 82, 96 SVW 930. Where no objection was made to admission of evidence or objection to charge as given is done at trial, objections urged on appeal cannot be considered. Clayton v. State \[Tex. Cr. App.\] 17 Cr. App.\] 19 Tex. Ct. Rep. 264, 103 SVW 848. Where no objection was made to introduce- 8 or request made to exclude it, failure to do so was not error. Or. App.\] 19 Tex. Ct. Rep. 67, 100 SVW 584.

10. Errors in the charge must be called to the attention of the court below if relied on as error on appeal. State v. Wallrop. 78 S. C. 60, 52 SE 783. Long v. State \[VWv.\] 88 P 617. Where accused falls to request special instructions on included offenses, an exception that court failed to instruct on an appeal. State v. Beverly, 201 Mo. 550, 100 all offenses cannot be sustained. Grisham v. State \[Tex. Cr. App.\] 19 Tex. Ct. State, 147 Ala. 1, 41 S 997. Instructions cannot be reviewed where not objection to grant for reversal where record shows no at the time and no exception taken. Mc- 8 Varland v. State \[Ark.\] 103 SWW 169. Where record discloses no request for written instructions nor exception to oral charge, an objecting that the jury were charged partly in writing and partly oral will not be reviewed. Richardson v. State, 80 Ark. 201, 96 SSW 752. Error in instructions cannot be reviewed unless the record shows that ex- 8 switch with a deadly weapon and failed to option was taken at the time. Green v. U. S. S \[C. C. A.\] 154 F 401. Where no objection was made or exception reserved to a charge, it cannot be reviewed. Driggers v. U. S. \[Ind. T.\] 104 SWW 1166. Where no exceptions were taken to instructions given .and none requested were refused, assignments or error directed against instructions cannot be considered. Roper v. U. S. \[Ind. T.\] 104 SWW 151 Mo. 179, 89 SSV 945. Failure to instruct on lower degrees of crime charged will not be reviewed when attention of trial court was not called thereto. State v. Urgurch, 191 Mo. 43, 90 SWW 451. Failure to give a particular change will not be reviewed, no exception or request appearing. State v. Main- 18 Ma.

which are grounds for new trial, and which are not assigned or relied upon on a motion for new trial, will not be considered on appeal.10 In some states no exceptions to ex parte orders are necessary.17

Footnote 10: http://www.sds.org/

_Sufficiency of objection or motion._ See S. C. L. 248.--Objection must be made or exception taken when the matter arises,18 and the objection or exception must be spe

## 10 Cur. Law. INDICMENT AND PROSECTION SS 14.

193

cific and certain,18 as to the matter objected to,20 and the ground of the objection,21 and some ruling of the court obtained thereon,22 as only the particular objection

of his former jeopardy and demanded that |screen to be considered on appeal. Gantt he be discharged, it was not necessary for |v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 371, him to repeat the demand in order to save |105 SW 799. Compainit that paragraph of his rights on appeal. Gillespie v. State, 168 charge is misleading and inapplicable is too |nd. 285, 80 NE 829. Under Mansl. Dg. $157, |Spenal. Dickey v. State \[Tex. Cr. App.\] 98 exceptions to rulings must be reduced to |SW 269. An exception to each and every writing before close of succeeding term, and |close of charge because it is upon the |made too late when not made until |bright of evidence without specifying In bringing of writ of error. Mickle v. U. S. |\[Ind. T.\] 98 SW 343. Where a witness was |on the weight of evidence is insufficient. |first examined in absence of the jury and the court announced that it would admi. |\[Ct. Rep. 281, 103 SW 847.\] the testinony over objection of defend, |20. Objection to charge whlich fails to |v. Com. \[KS.\] 105 SW 333. Afflavit of prejudice of jurors filed with motion for new trial |v. State \[Tex. Cr. App.\] 99 SW 882. was too late to avail accused on appeal from |Coussel objected to instructions given on |viction. Hamilton v. Com., 29 Ey. L. Pt. 1839, |68 SW 833. Rulings on matters presented to trial court for first time on motion for new trial will not be reviewed. |\[Ct. Rep. 281, 103 SW 847.\] |Vievable. State v. West, 202 Mo. 128, 100 SW |Objections to instructions will not be reviewed when made for first time on motion for new trial; must be made at time charge |is given. State v. Detcore, 193 Mo. 228, 87 SVW 894. Where it was understood that proof of a series of facts was to be made, objections then made to all of such evidence |104, |42 $48. |\[Ct. Rep. 281, 104 SW 487.\] |Vievable. State v. West, 202 Mo. 128, 100 SW |Objections to instructions will not be reviewed when made for first time on motion for new trial; must be made at time charge |is given. State v. Detcore, 193 Mo. 228, 87 SVW 894. Where it was understood that proof of a series of facts was to be made, objections then made to all of such evidence |104, |42 $48. |\[Ct. Rep. 281, 104 SW 487.\] |Vievable. State v. West, 202 Mo. 128, 100 SW |Objections to instructions will not be reviewed. |\[Ct. Rep. 281, 104 SW 487.\] |Vievable. State v. West, 202 Mo. 128, 100 SW |Objections to instructions will not be reviewed. |Sterna v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 133, 105 SW 795.\] |Vievable. State v. West, 202 Mo. 128, 100 SW |Objections to testimony must be specific. State v. Winslow, 102 Mo. 399, |6 & 1015. |Exception reserved to failure or refusal of court to instruct orally on law of self-defense held not to present question for review. Williams v. State, 147 Ala. 10, 41 S 982. An objection to evidence must be specific: an objection that it is irrelevant and imminaterial is too indefinite and uncertain. |Vievable. State v. Winslow, 102 Mo. 399, |6 & 1015. |Vievable. State v. Winslow, 102 Mo. 415.

urged and passed upon below will be considered on appeal.23

There exception to remarks of counsel without a motion to exclude,24 or a request to instruct the jury to disregard them,25 presents no question for review. A general objection to evidence part of which is admissible is insufficient.26 To preserve error in excluding evidence, an offer of proof should be made.27 Evidence being immaterial and irrelevant at the time it is offered, and being excluded for that reason, should be reoffered when it becomes relevant and material, otherwise no error can be predicated on its exclusion.28 A motion to exclude or strike testimony is unavailing where no objection is made to the question,29 unless the answer is not responsive, in which case a motion

appeal that there was error in ruling on the |ple v. Mingey \[N. Y.\] 82 NE 728. On ex-evidence. State v. Bricker \[Iowa\] 112 NW 645. 1t should be made to appear that the |ndistment, only points made below in support was directly called upon to pass upon the question. State v. Johnson, 119 La. 180. |Y. Sargood \[Vt.\] 68 A 49. 42 S 981. A mere exception or objection to argument of counsel, without calling for a ruling by the court, presents nothing for review, unless the argument was so flagrantly wrong and prejudltal that no ruling could have removed the prejudice. Taylor v. State \[Ark.\] 102 SW 367. To authorize review of action in changing venue, a bill of exceptions must be reserved in country from which venue was changed. Moore v. State \[Tex. Cr. App.\] 95 SW 321. |Y. Sargood \[Vt.\] 68 A 49. 42. |Y.

10 Cur. Law. INDICMENT AND PROECUTION SS 15. 195

to exclude or to instruct the jury to disregard it is the proper remedy. \[30\] Where matter, the inadmissibility of which is not indicated by the question, is admitted over objection a motion to strike is necessary. \[31\] An objection to a question after the witness has answered is too late. \[32\] On a motion to strike out, the moving party should specify the grounds with as great particularity as when objecting to a question. \[33\] An exception to the charge as a whole cannot be considered on appeal, \[34\] unless the charge contains but one proposition, \[35\] and a general exception to refusal to give instructions is insufficient. \[36\]

SS 15. \_Harmless or prejudicial error.\_See 6 C. L. 149\_\_In respect to some matters of procedure, notably argument and conduct of counsel, \[37\] and custody and conduct of the jury, \[38\] the rulings usually blend the propriety of particular acts and their harmful effect in such manner that separate statement would be misleading and sections of this article dealing therewith should be consulted in connection with the holdings which clearly present a proposition of harmless error. Error is presupuptively prejudicial, \[39\] doubt as to its harmful effect being resolved in favor of accused, \[30\] unless trial is by the court. \[41\]

30. State v. Sykes, 191 Mo. 62, 89 SVW 851. caused under each count. Sherrick v. State, In absence of motion to strike unresponsive answer, it will not be reviewed. People v. beforeston \[Cal. Ap.\] 92 P 498.

01. People v. Smith \[Cal.\] 91 P 571.

01. State v. Sykes, 191 Mo. 62, 89 SVW 851.

01. Errors held prejudicial On an issue of self-defense, it is error to refuse to permit a physician to testify that defendant was weak with disease though defendant had so some of which are incorrect, a general exception to the inadiffient. State v. Gohl \[Cal.\] 91 P 511. Error in permitting \[Vwash.\] 90 P 259. A general exception to an entire charge containing several proposals: from cured by negative answers, People v. from cured by negative answers, People v. from cured by negative answers, People v. from cured by negative answers to cure each and every part separately is too indefinite to present any particular part of the charge. Kirby v. State \[Ala.\] 44 S 38. General exceptions to charge failing to specify the objectionable language are insufficient. Rigby v. State \[Ala.\] 44 S 608.

An exception to refusal to give four charges is bad unless all the charges should have been given. Gains v. State \[Ala.\] 48 S 137.

Exception to oral charge, consisting of several paragraphs, as a whole, cannot be sustained unless all are bad. Grisham v. State, In 147 Ala. 1, 41 S 97.

33. Stokes v. State \[Fla.\] 44 S 759.

01. General exception to refusal to give instructions, one of which is erroneous, will not be reviewed. Mathews v. State \[Ark.\] 96 SVW 928.

01. See supra, $ 10B.

01. See supra, $ 10F.

01. Error is presumed prejudicial until appears to have been rendered harmless.

01. Similar v. Oklahoma Ter. \[C. C. A.\] 149 F 230.

Erroneous admission of evidence is presumed prejudicial unless it is shown to be harmless. Sprinkle v. U. S. \[C. C. A.\] 150 F 56. The exclusion of competent and admis-sible evidence will be presumed to be prejudicial unless it appears from the whole record that it would not have changed the $ 40. Brittum v. Com., 29 KY. L. R. 857, 96

result, if admitted. State v. Cremerans IV.

Ya.) 67 SE 405. An erroneous instruction relating to evidence under each count of an indictment under which accused was concluded with deceased prejudicial to ac-sible evidence.

30. State v. Sykes, 191 Mo. 62, 89 SVW 851.

used under each count. Sherrick v. State, In absence of motion to strike unresponsive answer, it will not be reviewed. People v. beforeston \[Cal.\] 92 P 498.

167 Ind. 345, 79 NE 193. Admission of hear-answer, it will not be reviewed. People v. beforeston \[Cal.\] 92 P 498.

loss contrary affirmatively appears. Topo-s11. People v. Smith \[Cal.\] 91 P 571.

32. State v. Sykes, 191 Mo. 62, 89 SVW 851.

01. Errors held prejudicial: On an issue of self-defense, it is error to refuse to permit a physician to testify that defendant was weak with disease though defendant had so some of which are incorrect, a general exception to the inadiffient. State v. Gohl \[Cal.\] 91 P 511. Error in permitting \[Vwash.\] 90 P 259. A general exception to an effective charge containing several proposals: from cured by negative answers, People v.

#### Trivial or immaterial error

See * C. L. 250 not prejudicial to accused 42 and not in

guilt from the finding of goods in defendants's

sufficient. Bates v. State \[Ala.\] 44 S 695.

possession without reference to character

where a plea in abatement could have been held not cured by other instructions. State

strucken on motion, defendant could not v, Wright, 199 Mo, 161, 97 SVW 874. Conviction will be reversed where it is apparent

v. State \[Ala.\] 44 S 201. Under Code 1896, that accused has not had a fair and im-

4 433, it is not ground for reversal that the partial trial owing to the line of argument

indictment read "Neal Rigby alias Neal

indugled in by attorney for state. State v. Rigby," while the copy served designated him

Zorn, 202 Mo, 12, 100 SVW 591. A substantial

"Neal Rigby alias Neal Rigby." Rigby

right of defendant is invaded where there is

v. State \[Ala.\] 44 S 608. Failure to render unfairness in the selection of the jury. Is

formal judgment on a verdict finding an issue

ground for reversal. Cook v. State \[Miss.\]

as to former jeopardy in favor of the state

43 S 618. In larceny, error in charging that

held harmless. Barber v. State \[Ala.\] 43 S 608.

it was sufficient to show that taking was

808. Error in admitting hearsay evidence

without color of right not cured by a charge

held harmless under Kirby's Dig. 85 2605, that taking must have been with Intent

2209, providing that judgment shall not be

to steal. State v. Peterson \[Mont.\] 92 P 802.

affected by errors which do not prejudice

An l instruction defining iareeny, erroneous

for failure to include the element of criminal

Ark, 453, 96 SWW 150. Where it appears

intent, is not cured by other charges which

that giving oral instruction as to form of

use the term without any broader import.

yv. State v. Sloan, 35 Mont. 367, 89 F 829. An

ground for reversal though request for writ-

instruction erroneously directing the jury

ten instructions had been made. Richardson

not to consider proper evidence is none the

v. State, 80 Ark. 201, 96 SWW 752. Under the

less prejudicial because such evidence was

rule that reversal shall not be had for errors

given by a profistute, the weight of her test

think are not prejudicial to accused, the fact

timony being for the jury. State v. Jackman \[Nev.\] 91 P 143. Remarks of counsel

harmless. People v. Hines \[Cal. App.\] 89

to effect that law of the case and reasonable

P 858. In rape, refusal of an order for ap-

doub sometimes worked an insilicate to

pointment of physician to examine prosecut-

the cause of right, as it had in this case,

which were emphasized by the court by

stating on objection by defendants counsel

defendant with list of jurors as required by

that defendant had an objection and exception, held prejudial error. People v. Dixon,

all's Emb. Div. 593, 103 NYS 186. Error in

refing to failure of accused to testify not

event by withdrawing the remark. State v.

Bennett \[S. D.\] 113 NVR 78. Prejudicial

effect of evidence to show subornalation of

perjury is not removed by charge that it

could be considered only for purpose of im-

peachment. Rice v. State \[Tex. Cr. App.\] 19 TEx. Ct. App.\]

19 TEx. Ct. Rep. 355, 103 SWW 1156. In rape,

error in admission of testimony of mother

of prosecuting witness that when she

learned of the crime she went to house of

acused with a pistol and would have snot

him if she had seen him is not eured by

her testimony that she carried a pistol

wrapped in a piece of paper and was crg

and excited and kept funnbling it. Adams v.

State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 953,

105 SWW 197. Error in admitting certain

evidence held prejudial where the court led

the jury to believe that it conclusively

established the offense. Busby v. State \[Tex. Cr. App.\],19 Tex. Ct. Rep. 185, 103 SWW 628.

The admission of hearsay evidence on a material issue is prejudicial error. Orseal v.

State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 18,

100 SWW 919.

41. While a question asked accused by the court would have been erroneous as intimat-

ing an opinion if the case was tried before a

injury, it was harmless where it was being

tried before the court. Sutton v. State \[Ga.\]

Appl.\] 58 SE 544. In a case tried by the court,

the admission of improper evidence is to be

regarded on appeal as harmless unless it

likely appears that but therefor the finding

would probably have been different. Topo-

lewski v. State, 130 WIs. 244 any manner affecting the result,43 is not ordinarily ground for reversal. This rule has been applied to minor defects of the indictment,44 duplicity of the indictment,48

where prejudice to accused is shown. State trial itself, will not be considered grounds v. Sublett, 191 Mo, 163, 90 SW 374, Where are reversal where the evidence leaves no accused had counsel who fully protected him is rights, it was not ground for reversal fault. Hopkins v. State (F1a\_) 42 S 52. Re- that he was not informed of his right to

fusal to allow attorney for defendant to have counsel. People v. Markovits, 104 NTS

talk to state witnesses not called is harmless
872\. Defendant in a misdemeanor case can-

where they were called in rebuttal. Wil- not complain that one against whom the grand jury made a return of not a true bill

Iliams v. State (F1a\_) 43 S 428. A verdict

was nevertheless put on trial with defendant, could not have induced nor influenced the

State v. Martin, 141 N. C. 823, 53 SE 8:4,

Thonleal errors or defects and exceptions

App. 1 68 SE 69. Where verdict was de-

which do not affect the substantial rights

mended by the evidence, errors of law com-

of accused will be disregarded on appeal to

pained of were harmless. McCain v. State

the supreme court. Provens v. Ter., 17 Okl. \[Ga. App.\] 58 SE 550. Improper question by

512, 87 P 661. Case will not be reversed for

state's attorney harmless where jury could

failure to reduce instructions to writing be-

not have found any other verdict under the

fore giving them, where they were re-

evidence. McCann v. People, 226 Ill. 562,

duced to writing as soon as given, and put

80 NE 1061. Where witness admitted ex-

in the record, and no objection was made or

tree hostility to defendant, on cross-ex-

exception reserved. Williams v. U. S., 17

Amitation, admission of testimony on re-

Okl. 28, 87 P 647. "Where verdict of guilty

was reversed on appeal, accused could not

and's family out of town was not pediroltical,

complain of a ruling foreing him to second

State v. Judd, 182 Iowa, 286, 109 NW 892.

trial on substituted indictment within two

Affidavit of witness who afterwards refused

days after such substitution. Stevens v.

to testify to facts was published in a news-

State (Tex. Cr. App.) 15 Tex. Ct. Rep. 936,

paper, but it was not shown that any juror

95 SWV 505. Where facts show cruel and

saw it, or that the 'prosqueeting attorney had

wanton murder authorizing conviction of

anything to do with its publication. Held

first degree murder, but verdict is for second

not to require reversal of conviction on

degree, refusal to grant continuance for

ground of misconduct of prosecuting attor-

witness who would testify's to uncom-

ney. State v. Walker, 183 Iowa, 489, 110 NW

minicated threat is not reversible error.

95%. Where each juror said he had not

Harris v. State (Tex. Cr. App.) 20 Tex. Ct.

heard a remark of the district attorney com-

Rep. 154, 105 SWV 801. Argument of counsel

bind of, when attention was called to the

not predicated on testimony held harmless

time and circumstances, it was not an abuse

in view of instructions relative to the matter

of discretion to put the remark itself into

to which remarks referred. Ham v. State

the question and ask each juror if he had

\[TTex. Cr. App.) 17 Tex. Ct. Rep. 451, 98 SWV

875. Omission to charge which is not prequ-

diel to substantial right is not ground for

beiley that unanimous verdict was re-

reversal. Bonura v. State (Tex. Cr. App.) 17

yeared in assault where only 8 of their

Tex. Ct. Rep. 367, 98 SWV 267. An accused can-

votes is required is harmless where the verdict

not complain of an error favorable to him.

dict was to 10. 12. State v. Farham, 25 Mont.

Early v. State (Tex. Cr. App.) 17 Tex.

375, 89 P 728. Error in requiring an election

Ct. Rep. 78, 97 SWV 82. Under St. 1898,

held harmless in view of the fact that all

$ 2546a, requiring that the grand jury list

acts alleged were proven. Starling v, State

be filed with and kept securely by the clerk

\[Miss. 43 S 952. Error in reusing to quash

of the superior court, held, where such list

was taken to the municipal court to draw a

grand jury were disqualified is harmless

grand jury for that court, its retention

there for a month, though irregular, was

State v. Lang \[N. J. Law\] 66 A 942. Where

harmless. Niezorawski v. State, 181 Nits,

examination of facts on appeal establishes

16 granting 46 and denial of continuance,47 irregularities in the drawing or selection of the jury,48 misconduct of jurors 49 or officers in charge of the jury,50 allowing communication with jurors,51 order of proof,52 admission 58 and exclusion 54 of evidence,

milted. Gaines v. State, 146 Ala. 16, 41 S(scene of crime, after submission of cause 565. Under Pen. Code, $ 1258, where an in-ditement is sufficient to inform defendant of the charge against him, minor defects not prejudicial to substantial rights are not ground for reversal. People v. Collins \[CaI\]. App.J. 92 P 513.

45. Under Rev. St. 1025, providing that no Indictment shall be deemed insufficient unless defendant was prejudiced, the fact that an In-ditment was double was harmless. Ieef room company with deputy to go to Morgan v. U. S. \[C. C. A.\] 148 F 189.

01. Continuation of case and change from criminal court buildings to room in county court house no ground for reversal. People v. City Prison Warden, 117 App. Div. 154, 102 NYS 374.

01. Error in refusing continuance is harmless where the witness was present in court before argument and counsel was so informed, and asked by the court if he desired to introduce him. Holmes v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 972, 105 SWP 508. Resusal to grant continuance for testimony which would go to show manslaughter instead of murder was not error where defendant was convicted only of manslaughter and given lowest punishment. Reese v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 809, 97 SWP 697. No reversible error in refusing continuance on ground of illness of accused and absence of heading counsel, when it appears accused was not ill during trial, but was in full possession of his faculties and testified, and had three attorcs. Hopkins v. State \[Eq.14 48 S 68. Refusal to continue because of absent witness is not error where the witness did in fact appear and testify. State v. Coleman, 199 Mo., 112, 97 SWP 574. Refusal to continue on ground of absent witness whose testimony was wanted to impleach a witness for the state is not error where such witness for the state did not testify. Id.

01. Irregularity in drawing jury held harmless. Cook v. State \[Ala.\] 43 S 618. Where each member of grand jury panel was called in turn and right of challenge given, failure to comply with Code, $ 5240, providing that names shall be drawn from a box, is harmless. State v. Von Kutzelen \[Iowa\] 113 NW 484. Irregularity in drawing jury held harmless. Johnson v. State \[Fla.\] 44 S 765. A defendant who does not exhaust perentory challenges allowed him cannot predicate error on failure to allow a greater number. Krause v. U. S. \[C. C. A.\] 147 F 442. Harmless to overrule challenge for cause where juror did not sit and it does not appear that a perentory challenge was used. Stokes v. State \[Fla.\] 44 S 759. One cannot complain of error in accepting a juror where it appears that his perentory challenges were not exhausted. State v. Fielding \[Iowa\] 112 NW 593. Recital in bill of exceptions that accused was required to accept objectionable juror held insufficient to show prejudice where it did not show that experimenty challenges had been exhausted or in what manner juror was objectionable.

01. Inspection by jury in homplate case of which would be of no avail to accused.

Douglass v. State \[Fla.\] 43 S 424. In a prosecution for embexizement, the admission of the record of a civil action to recover the property was held harmless even if erroneous. Sims v. State \[Fla.\] 44 S 737.

Repetition of evidence already admitted is harmless. Marshall V. State \[Fla.\] 44 S 742.

Where defendant is convicted on a number of counts and given concurrent sentences, none of which exceed the limit which might be imposed on any one count, error in ad-mission of evidence relative to one or more counts, but not to all, is harmless. Goll v. U. S. \[C. C. A.\] 151 F 412. Admission of irrelevant and immaterial \[estimony held harmless. Carter v. State \[Ga. App.\] 68 SE

532. In seduction, admission of evidence as to character of prosecutrix after first act

101 SW 208. Proof that prosecutrix in rape of intercourse was harmless. Tedford v. U. S. \[Ind. T.\] 104 SW 608. Error in admission of evidence is harmless where if not

limited the jury would have been required to return the same verdict. Sanderson v. State \[Tex. Cr. App.\] 18 Tex. Ct.

Gatch harmless. Clifford v. People, 229

place for the purpose of getting beer but in-ill, 638, 82 NE 343. Admission of evidence of collateral matter and hearsay which would

Tragon v. State \[Tex. Cr. App.\] 17 Tex.

tend to prove higher degree of crime held

101 SW 208. Proof that prosecutrix in rape

harmless where verdict was of lesser degree

evidence of other sales held harmless. Harris

and was not influenced by such estimony. V. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 270,

Stuart V. Com., 31 Ky. L. R. 1343, 165 SW 170.

27 SW 704. On prosecution for violation of lo-eximination of accomples as to whether he

had been promised immunity and court's

certain drinks in back part of his restaurant

admonition to him that he was not required

without a showing that they were intoxict-

to testify, and exclusion of questions asked

him in absence of jury as to his willingness

App.\] 16 Tex. Ct. Rep. 683, 96 SW 25. In

to testify, held harmless. Simpson v. Com.,

assault with intent to kill where wife of

31 Ky. L. R. 749, 103 SW 332. In a homolide

case, testimony that a negro woman and

assume little children lived at home of accused

held harmless where the form of the questions were not such as to make it appear

Rep. 360, 97 SW 1057. Where indicment

that he was living in adulterous relations with such woman. Humber v. Com., 31 Ky.

L. R. 606, 102 SW 1179. In assault to kill,

error in form of question as to how long

defendant had been accustomed to carry a

pistol was rendered harmless by a reply

16 Tex. Ct. Rep. 680, 96 SW 28. Error in

denfiging that it was his custom to carry

one. Rasterline v. State \[Md.\] 66 A 268. Error in

ror in admitting evidence of flight of con-

spirator in trial of co-conspirator held harmless. State v. Sykes, 191 Mo. 62, 89 SW 851.

Nonresponsive and voluntary answers to

inimaterial questions cannot be complained

of by defendant. State v. Barrington, 198

Mo. 23, 95 SW 285. Admission of pair of

trousers for purpose of enabling witness to

identify a coat held harmless. Id. Errors

in admission of evidence are harmless where

other evidence clearly shows guilty. Ofear

v. State \[Neb.\] 118 NW 130. Erroneous admission of evidence on admitted point harmless. People v. Kocner, 117 App. Div. 40,

20 Crim. R. 615, 102 NTS 93. Any error in

asking certain questions of a witness held

hrmless where they were answered in the

negative. People v. Mingey \[N. Y.\] 82 NE

728. Admission of map showing place of

murder held not prejudtional though contain

ing red lines showing path followed by accused which were not identified or referred

to, where presence of accused at the scene

was shown by his own team, People v.

Sexton, 187 N. Y. 495, 80 NE 386. Admission

of letter as standard of comparison not pre-

judicial where there was other evidence in

the case which was chiefly used for the purpose.

pose, this letter not being particularly used

or noticed. State v. Branton \[Or.\] 87 F 535.

Admission of hearsay immaterial where fact

was admitted. State v. Sanders, 75 S. C.

409, 56 SE 35. In prosecution of agent of

company for violating local option law,

proof by express agent that he had on hand

Packages of liquor of the company was

harmless. Weyl V. State \[Tex. Cr. App.\] 90

sharmless. Weyl V. State \[Tex. Cr. App.\] 90

SW 644. Any error cross-examination of witnesses \[58\] or of defendant, \[56\] leading questions, \[67\] refusal to

rying a pistol where there was evidence that

Pittman v. State \[Ala\_\] 42 S 993. No error

the pistol was found in a basket carried by

defendant, testimony that defendant was

rbuttal where it appeared that his test-

carrying a pistol in a basket was not prej-

money tallied with what it was sought to

udicial. Johnson v. State \[Tex. Cr. App.\]

rebut. Davis v. State \[Fla.\] 44 S 767. Ex-

18 Tex. Ct. Rep. 882, 104 SW 902. Admission

clusion of evidence to rebut presumption of

of statements of a witness for defense that

malice in homollele is harmless where the

state was up against a hard proposition be-

verdict is for manslaughter. Carter v. State

causes of those interested in defendants'

\[Ga. App.\] 88 SE 532. Exclusion of merely

half was harmless, Sue v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 128, 105 SW 804.

Com., 31 Ky. L. R. 327, 102 SW 264. No pre-

Where it was proved that defendant unlaw-

fully carried a pistol and the fine imposed

\[Jury has benefit of it. State v. Schaefer, 35

was the minimum, admission of improper

\[Tex. Cr. App.\] 19 Tex. Ct. Rep. 972, 105 SW

\[Yeix. Cr. App.\] 19 Tex. Ct. Rep. 972, 105 SW

affecting credibility, where an accused had

608. In local option case against a physi-

admitted a prior conviction, the exclusion of

can for giving a prescription without

a question as to whether that was the only

mination, a charge that it such person was

not sick defendant would be guilty,

erroneous in omitting element of knowledge

\[Yeix. Cr. App.\] 42 S 829. Refusal to admit evidence

\[Yeix. Cr. App.\] 19 Tex. Ct. Rep. 182, 102 SW

\[Yeix. Cr. App.\] 19 Tex. Ct. Rep. 183, 98 SV 1024. Where in local

strike evidence,54 refusal to limit effect of evidence admitted,55 conduct and argument of counsel,60 conduct and remarks of the trial judge,61 errors in the charge as

ble error where jurors testimed they were held not prejudlcal. State v. Johnson, 119 not influenced by it. Foster v. State \[Tex. La. 130, 43 S 981. Argument of counsel and Cr. App.\] 19 Tex. Ct. Rep. 42, 100 SW 1159. statement of how the crime was committed held not ground for reversal. Gray v. State \[Miss.\] 43 S 289. Under Rev. St. 1899, $ 2638. v. State \[Tex. Cr. App.\] 96 SW 321. Asking witness slightly leading questions held not ground for reversal. Manovitch v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 712, 96 SW 1.
58 Refusal to strike Irresponsive answer is harmless where guilt is clearly shown. People v. Craig \[Cal.\] 91 P 937.
59 Refusal to limit consideration of im-packing testimony to purpose for which it was introduced is harmless where it could not be considered for any other purpose. Watson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 955, 105 SW 509.
60 Where witness had been contradicted and impeached, a reference to him by counsel as the friend and accomplice of accused was not prejudlcal error. Smith v. State \[Tex. Cr. App.\] 19 Ark. 25, 94 SWP 918, Argument of prosec-cutting attorney reviewed and held not prejudlcal errors. Id. Misconduct in stating personal views to jury held not ground for reversal where the court charged the jury to disregard them. People v. Quinn-by \[Cal. App.\] 92 P 493. In prosecection for harmless though there was no evidence to "embeaciment", accused was not prejudlcal who question seeking to bring out evidence of other offenses. People v. Robertson \[Cal. App.\] 92 P 498. Improper vessel that the state's attorney in argument of statement of state's attorney in support of a witness whose testimony was attacked held not prejudlcal where the matter to \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 308, 97 SWP which the testimony related was cleared up otherwise. People v. Wright \[Cal. App.\] 89 P 884. Argument not based on evidence held harmless. People v. Pitts \[Cal. App.\] 91 P grand jury would have him indicted again within six days for stealing another horse was harmless where no charge to disregard it was requested. Harding v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 422, 95 SWP 628.
\[Cal.\] 91 P 997. Allowing a prosececting attorney to state in the jury's presence what he desired to prove by witnesses whose testimony is excluded is not reversible error or the law as charged by the court is Im-proper but not prejudlcal. Fuller v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 413, 95 SWP only the evidence admitted. Misconduct of prosecuting attorney not ground for new trial under $ 1181 of Cal. Pen. Code. People v. Feld, 149 Cal. 484, 86 P 1100. Absent witness was. sent for and arrived during isotherm, interrupting it, whereupon he said, "Rack him in." Field this alone was not enough to require granting of a new trial. McMillan v. State, 128 Ga. 25, 67 SE 309. Misconduct of prosecuting attorney in asking a series of questions of an incompetent witness held harmless where no answer was given, State v. Krug \[Iowa\] 113 NWP 822. Reply by prosecuting attorney to defendants attorney that accused would not be on trial if insane was not prejudlcal since accused admitted present early by pleading not guilty and going to trial. State v. Hogan, 117 La. 863, 42 S 352. Remarks of counsel and calculated to influence the jury are not ground for reversal. Morsion v. State \[Ala.\] 44 S 43. Re

## 203. Experiment and Prosecution SS 15. 10 Cur. Law.

given,${}^{62}$ failure to give particular instructions,${}^{63}$ informality of verdict.${}^{64}$ Defendant

marks of court in refusing proofer to be

made to show relative sizes of the parties,

that it did not suppose anyone wanted to see

ple v. Amer \[CaL\] 90 P 698. In prosecution

person assaulted, not prejudial. McFarland v. State \[Ark.\] 103 SWV 169. Remark of

fendants were not prejudided by charging

judge to attorney in the presence of the

jury "Do you intend to say that when de-

State \[Colo.\] 90 P 608. A charge which

ceased was running from defendant as fast

under the evidence could not have prejud

as he could when defendant shot him, that

the was the aggressor," held harmless. Black

v. State \[Ark.\] 104 SWV 1104. Remark of

contradicted evidence that the offense was

court that principle of malice was stated

incorrectly during examination of jurors

for in charge as to limitations was harmless.

held harmless. State v. Bailley, 79 Conn. 588 E 698, A

65 A 951. Remarks of court on admitting

charge on the law of preponderance of

certain evidence held not prejudial in the

light of the explanation made by the judge.

of illustration only, and is followed by a

Long v. State, 127 Ga. 350, 56 SE 644. He

lull and correct statement of the degree of

marks of court as to evidence of drunkenness

newness harmless when defense of drunkenness

v. State, 128 Ga. 17, 57 SE 83. Erroneous in

was fully covered by instructions. State v.

Yates, 132 Iowa, 475, 109 NW 1005. Re

prejudical when evidence showed such

marks of court as to bloody shirt sought to

ent conclusively. O'Donnell v. People, 224

be introduced held harmless. Gray v. State

11. 218, 79 NE 683, Any error in not charging

\[Miss.\] 43 S 285. Erroneous statement of law

that it must be found that the offense was

made by court in colloquy with counsel dur-

committed within the limitation period was

ing argument held harmless. Barnes v. Tor

\[Okl.\] 91 P 848. Conduct of court in giving

aditment and evidence that it was so com-

another jury, in the presence of defendant's

mitted. State v. McCausland \[Iowa\] 113 NWV

jury, a long lecture on the necessity of

852. In prosecution of city for maintaining

agreeing on a verdict, held not reversible

an avalanche on 1ot owned by city, an insurance-

error, where jurors testified they were not

influenced thereby, and the first ballot was

held harmless. Clsity of Paris v. Com., 29 Ky.

11 to 1 for conviction. Foster v. State \[Tex.\]

L. R. 483, 93 SWV 907. Where evidence did

Cr. App.\] 19 Tex. Ct. Rep. 42, 100 SWV 1159.

not justify charge on self-defense, error in

Where counsel for accused asked the judge

definition of self-defense was harmless.

if he would permit witness to testify it he

ceame, the refusal of the court though given

in a manner indicating anger is not ground

for reversal. Stephens v. State \[Tex. Cr.\]

Appl.\] 17 Tex. Ct. Tiep. 292, 97 SWV 483. Colloquy between court and counsel as

1uquy between court and counsel as to asking

of leading questions and objections

thereto held harmless. Benson v. State

\[Tex. Cr. App.\] 19 Tex. Ct. Rep. 257, 103 SWV

511. Comment of court in ruling on evidence

that he would admit it for a certain purpose

held harmless, Colusion v. State \[Tex. Cr. App.\] 29 Tex. Ct. Rep. 10, 105 SWV

67. Remark of court to counsel illustrative of ruling on evidence

of character held not prejudial. Mitchell v. State \[Tex. Cr. App.\] 19

19 Tex. Ct. Rep. 45, 100 SWV 930.

62. Harmless to submit issue of former

jopardy with the main issue where he evidence was offered under it. Barber v. State

\[AJa.\] 43 S 808. Inadvertent mistake in

struction on credibility of witnesses, not ob

jected to and not prejudial, is not reviexplable error. Taylor v. State \[Ark.\] 102 SWV

\[367. Use of word "compel" in an instruction

held not prejudial though such word was

not warranted by the evidence, Pipkin v.

State \[Ark.\] 97 SWV 61. There being no evidence

in rape case that girl was married to

defendant, an instruction that she could not

marray if under a certain age was harmless.

People v. Beatty \[CaL\]. App.\] 88 P 377. An

instruction that a witness, willfully cannot complain of invited error,\[65\] of error in his favor,\[66\] or of conviction of a lesser or lower degree than the evidence warrants.\[67\]

v: Parsons \[Mass.\] 81 NE 291. Erroneous statement in charge as to self-defense held not prejudicial where the issues were otherwise fully covered. Craig v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 302, 97 SVW 479. Erroneous instruction harmless NV 143. Where there is no conflict in the evidence, a charge that testimony of a witness who swore falsely might be disregarded unless corroborated is harmless. State v. Klinney \[S. D.\] 113 NVT 7. Instruction on circumstantial evidence not prejudicial to defendant, notwithstanding confession of defendant where there was a slight conflict over predicate laid for Introduction of confessions. Watkins v. State \[Tex. Cr. App.\] 113 NVT 419. Where there is no conflict in the evidence, a charge that testimony of a witness who swore falsely might be disregarded unless corroborated is harmless. State v. Klinney \[S. D.\] 113 NVT 7. Instruction on circumstantial evidence not prejudicial to defendant, notwithstanding confession of defendant where there was a slight conflict over predicate laid for Introduction of confessions. Watkins v. State \[Tex. Cr. App.\] 113 NVT 879. Use of "sudden transport of passion" in charge on murder whether or not it is technically correct held harmless. McCorquodale v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 759, 98 SVW 587. Ethror in 879. Submission of an issue not presented by the evidence held harmless. Fields v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 815, 98 SVW 867. Not prejudicial to fall to limit evidence of prior indictment to question of credibility instead of excluding it. Manning v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 388, 98 SVW 251. Charge erroneously limiting right of accused to carry a pistol held harmless where evidence showed that he was unlawfully carrying it at the time and place in question. Banks v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 387, 98 SVW 242. Where in assault to kill a witness testified that father of person assaulted had said that shooting was accidental, but in charging the court substituted name of son for that of father and charged that statements of witness were not original evidence but could be considered only in passing on credibility of son, held harmless. Jackson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 279, 103 SVW 927. Where information charged Judge of election with false imprisonment and alleged not only assault but also actual violence, and evidence showed arrest without warrant, error if any in charging use of other means of imprisonment than false arrest was harmless. Smyth v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 338, 103 SVW 899. Where in prosecution for stealing evidence as to act charged without enough was taken to constitute a felony, a charge as to other offices was harmless. Keener v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 313, 103 SVW 94. In prosecution for theft from the person, accused could not complain of a charge that corpus deliti must be proved not to consider the taking of articles not alleged to have been taken. McCue v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 289, 103 SVW 883. A charge on provoking the ddim-city, not authorized by the evidence, is harmless where there was no issue of self-defense. McDougal v. State \[Tex. Cr. App.\] 90 SVW 646.
19 Tex. Ct. Rep. 281,103 SVW 847. On trial for murder of defendant's son-in-law, it was improper to ask defendants wife if she had not written relative to his property after his death, but was harmless where she answered in negative. Fuller v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 413, 95 SVW 541. In a local option case, error in charging that conviction could be had if sale was made at any time before the information was filled was harmless where the evidence showed the 204 INDITMENT AND PROSECTION $ 15. 10 Cur. Law.

_Cure of error._ See $ C. L. 251.-Error in admitting evidence may be cured by withdrawing or striking it out and instructing the jury to disregard it,98 or by other in-

710, 57 SE 66. Where counsel has accepted a suggestion of the court to modify a requested instruction, he cannot afterwards - state \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 133, quested was correct and as given was incorrect. Morello v. People, 226 ILN, 388, 80 NE 903. Where defendant's attorney had referred to his failure to testify, the fact that state's attorney directed attention to - such fact was harmless. Lipsey v. People, \[Idaho\] 89 P 634. That the jury returns a 227 ILN 364, 81 NE 318. Where accused revealed a motion by the prosecuting attorney to set aside the indictment for indefiniteness and resubmit the matter to the grand jury, - he could not rely on a denial of the motion as ground for reversal. State v. Hanlin, 134 Iowa, 493, 110 NW 162. Where a defendant elicits incompetent testimony, he cannot complain if the state interrogates the witness along the same line. State v. Grubb, 201 Mo. 585, 99 SW 1085. Error brought about by defendant's counsel is not ground for reversal. State v. Spaugh, 200 Mo. 571, 98 SW 55. Where, after a jury had been implemented and sworn but before any evidence had been introduced, it appeared that the court was without jurisdiction because change of venue had been taken in accordance with Code Cr. Proc. $ 358, the defendant could not complain that the jury was discharged where he stated that he was willing to waive the question but did not recede from his position that the court did not have jurisdiction. People v. Neff. 106 NYS 747. Defendant cannot complain of instruction practically identical with one requested by him and refused. Carbugh v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 241, 93 SW 738. An instruction similar to one requested and refused cannot be complained of. State v. Kelley, 191 Mo. 680, 90 SW 834.

66. Allowing Improper question is harmless where answer is favorable to defendant. Green v. State \[Ala.\] 44 S 194. Error in substituting a lesser degree of crime of which there is no evidence is favorable to accused and he cannot complain. Burnett v. State 80 Ark. 225, 96 SW 1007. Defendant cannot complain of error in withdrawing evidence which was prejudicial to himself. State v. Scott \[Iowa\] 113 NW 758. Objecnibable question rendered harmless by negative answer. Nicholson v. State \[Ala.\] 43 S 365. Instructions more favorable to accused than the case warrants cannot be complained of by him. State v. Davis, 203 Mo. 616, 102 SW SW 528; State v. Cavlin, 193 Mo. 514, 97 SW 573.

Satterwhite v. State \[Ark.\] 100 SW 70; State v. Miller, 191 Mo. 587, 90 SW 767. Errors in instructions in favor of defendant cannot be complained of by him. State v. Holden, 203 Mo. 581, 102 SW 490. Defendant cannot complain of instructions more favorable to him than the law warrants. Hull v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 772, 100 SW 403.

Errors In charge favorable to accused cannot be complained of. Tyler v. State \[Tex. Cr. App.\] 90 SW 33; Harris v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 154, 105 SW 801. In charge on manslaughter, stating as a matter of law that certain acts constituted adequate cause was beneficial to accused and he could not complain. Martin v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 63, 95 SW 501.

67. Defendant cannot complain of a ver-a structions under which the evidence must have been disregarded," or by proof of the facts by other proper evidence," or evidence admitted without objection," and particularly by evidence of accused or introduced on his behalf." Exclusion of evidence is cured by its subsequent admission," or the admission of other evidence of

State v. Spaugh, 200 Mo, 571, 98 SWV 55. Error in admitting evidence may be cured by an instruction excluding it from the conseideration of the jury. Sanchez v. state \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 583, 90 SWV 641; Delangy v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 580, 90 SWV 642, Admission of near-say harmless where court and prosecuting attorney told jury to disregard it. Jackson v. State \[Tex. Cr. App.\] 90 SWV 34. Where inadmissible evidence is admitted but subsequently excluded and jury told to disregard it. H. no prejudice results. Hickey v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 142, 102 SWV 417. Where no objection was made to introduction of evidence and the court charged the jury not to consider the same, accused was not injured by its introduction. Speer v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 287. 97 SWV 468. Error in admission of testimony held cured by striking it out. Rice v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 358, 103 SWV 1166. Where as soon as inadmissible test-mony was introduced it was excluded and the jury charged to disregard it, the error was cured. Powell v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 722, 99 SWV 1005. No error is committed in introduction of testimony where counsel falls to object, but afterwards it is excluded and the jury charged to disregard it. Id. Error in admission of evidence out on redirect examination of a witness for Game v. State \[W1s.\] 112 NWV 425. Error in court asking witness improper question health cured by charge to disregard. Johnson v. State \[Tw.\] 113 NWV 674. Error in admission of evidence is harmless where the jury is directed not to consider it. McCummins v. State \[Tw.\] 112 NWV 25. 68. In prosecution for violation of local option law, error in admission of evidence as to other sales is cured by charge that particular sale charged must be proven. State v. O'Brien, 35 Mont. 482, 80 P 514. Erronecous decision of evidence only by charge. Rice v. People \[Colo.\] 90 P 1031. 70. Erronecous question cured by an unresponsive answer which was admissible. Falkner v. State \[Ala.\] 44 S 409. Where a fact is proved by competent evidence, admission of improper evidence to harmless. Rentroe v. State \[Ark.\] 104 SWV 542. Admission of incompetent evidence harmless where jury are otherwise informed of the facts. Smith v. People \[Colo.\] 85 P 1072. Error in admitting incompetent evidence is harmless where the fact is abundantly proved by other competent evidence. People v. Peck, 147 Mich. 84, 13 Det. Leg. N. 1004, 110 NWV 495. Error if any in admitting testimony connecting defendant with the crime before proof or corpus delitci held cured by subsequent proof thereof. State v. Guthrie \[N. C.I 59 SE 652. Error in admitting incompetent evidence is harmless where the point is proved by proper testimony. Elsworth v. State \[Ata.\] 44 S 90. Excluding test-mony, 147 Mich.\] 84, 13 Det. Leg. N. 1004, 110 NWV 495. Error if any in admitting testimony connecting defendant with the crime before proof or corpus delitci held cured by subsequent proof thereof. State v. Guthrie \[N. C.I 59 SE 652. Error in admitting hearsay is harmless where the point is proved by proper testimony. Elsworth v. State \[Ata.\] 44 S 90. Excluding test-mony, 147 Mich.\] 84, 13 Det. Leg. N. 1004, 110 NWV 495. Error if any in admitting testimony connecting defendant with the crime before proof or corpus delitci held cured by subsequent proof thereof. State v. Guthrie \[N. C.I 59 SE 652. Error in admitting hearsay is harmless where the point is proved by proper testimony. Elsworth v. State \[C.I.\] 18 Tex. Ct. Rep. 869, 104 SWV 903. 71. Admission of erroneous testimony harmless where same evidence had been advanced without objection. State v. Way, 76 like effect.74 Error in instructions may be cured by subsequent or other instructions,75 or by the rendition of a verdict which the erroneous instructions could not have affected.76 Improper conduct or argument of counsel is frequently held to

any, is cured. Horton v. State, 128 Ga. 26, \[imposed, and the evidence authorizes the conviction, errors relating to one count only with not be considered. Anderson v. State a fact otherwise proved and not denied is \[Ga. App.\] 58 SE 401. Error in charging not error. Roberts v. People, 226 Ill. 296, 80 relative to a lesser degree of the offonse is NE 776. Refusal to allow matter to be harmless where the jury return a verdict shown by one witness is harmless where it for the higher degree. Joiner v. State \[Ga.\] is afterwards shown by undisputed testi-mony of another. Green v. U. S. \[Ind. T.\] under a charge of assault with intent to 104 SW 1159. Exclusion of evidence is harmless where its substance is afterwards given. McCoy v. State \[Miss.\] 44 S 814. Where proper evidence had been objected to and excluded, such error was harmless, the evidence having been previously admitted and not stricken. People v. Wenzel \[N. Y.\] 82 NSE 180. Exclusion of testimony held harmless where it was covered by other testi-mony. State v. Emerson \[S. C.\] 58 SE 974. Exclusion of testimony held harmless where other evidence covered same point. Harris v State \[Tex. Cr. App.\] 50 Tex. Ct. Rep. 154. 105 SW 801. Exclusion of evidence as to de-ccdent's reputation as a dangerous man held harmless where there was other testimony as to such fact. Gant v. State \[Tex. Cr. App.\] 26 Tex. Ct. Rep. 871, 105 SW 799. 75. Refusal of an instruction which is covered by others given is harmless. Code 1896. 8 4323. Pate v. State \[Ala.\] 43 S 843. Though instructions on "preponderance of evidence" were erroneous, accused was not injured where all the evidence introduced was by the state, and jury were correctly instructed on necessity of proof of evilt be- yod a reasonable doubt. Jackson v. State, 125 Ga. 101, 53 SE 607. Failure to charge on a pertinent proposition held not error where jury returned and asked for additional instructions, whereupon the court instructed them fully on the omitted question. Wallace v. State, 126 Ga. 749, 55 SE 1042. With the drawal from jury of erroneous portions of instructions held not prejudicial to defend-an. Chilson v. People, 224 Ill. 535, 79 NE 574. Where ambiguity or uncertainty in an action of a instruction is removed by a subsequent instruction, there is no reversible error. Morrello v. People, 226 Ill. 388, 80 NE 903. Instruction to determine from all the facts whether the defense was probably true held harmless In view of the instruction as to reasonably doubt. State v. Wolfley \[Kan.\] 89 P 1046. An erroneous instruction may be rendered harmless by other instructions given. State v. Gregory, 74 Kan. 467, 87 P 576. An erroneous instruction may be cured by instructions subsequently given. Ball v. Com., 31 Ky. L. 1, 188, 101 SW 956. Erronecous instruction on weight of witness' testimony cured by subsequent charge. State v. Sykes, 191 Mo. 62, 89 SW 851. **Exception:** An instruction announcing the law directly opposite from what it is not cured by a subsequent correct charge. Murphy v. State, 89 Miss. 827, 42 S 877. **76**. Defendant acquited of murder in first degree cannot complain that instruction re- lating thereto was erroneous. Gregory v. State \[Ala.\] 42 S 829. Where an indictment contains two counts and defendant is found guilty on both and only one sentence have been cured by its withdrawal by counsel,\[17\] or by a rebuke or admonition by the judge,\[78\] accompanied by cautionary instructions to the jury to disregard it.\[79\]

diet for a lower degree is returned. Lou-

\[saying "acused," held harmless. State v. denback v. Ter. \[Ook\]. 91 P 1030. Where accused was found guilty of murder in sec-

\[\] prosecuting attorney, in his closing argon-

\[\] on degree and his punishment assessed at

\[\] the minimum, error in charge on drunken-

\[\] of the defendant is not free from doubt, re-

ness that it would be no excuse, but rather

\[\] refers to a paper he supposed had been put in

\[\] evidence, but on objection and investigation

\[\] less. Atkins v. State \[Ten.\] 105 SW 363. Where jury gave minimum punishment,

\[\] his remarks are such, when taken in con-

\[\] or in charge as to what punishment could

\[\] as would tend to create an impression of the

\[Tex. Cr. App.\] 15 Tex. Ct. Rep. 25, 90 SW

\[\] of the defendant on the minds of the

\[\]. Charge on murder will not be reviewed

\[\] where accused was convicted by manashingly

\[\] mere charge by the court and a request by

\[\]. Monroe v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 118, 101 SW 214. Error in charging

\[\] subsequent conviction of the defendant

\[\] on express malice and murder in first

\[\] should be set aside and a new trial granted.

\[\]. Spafford v. State, 10 Ohio C. C. (N. S.) 185.

\[\]. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 231, 103 SW 401. Refusal to charge on

\[\].
proper remarks of the court are harmless when withdrawn and proper cautionary instructions given.\[80\] Admission of evidence without proper foundation is cured

clared because of argument of counsel bring-

to disregard such argument and it appeared ing extrinsic matters into the case only when

that witness admitted to swearing falsely, such prejudice results as cannot be removed

Jones V. State \[Tex. Cr. App.\] 16 Tex. Ct. by a rebuke and instructions of the court.

Rep. 592, 95 SWV 1044. Where prosecuting Wallace v. State, 126 Ga. 749, 55 SE 1042. Re-

attorney in prosecution for violation of local marks of counsel relative to suicide of a female raped held harmless where the jury was

gunion law was guilty of much improper ar-

was admonished to disregard them and no

charged to disregard his statements, held

testimony as to suicide was admitted. Lake

v. Com., 31 Ky. L. R. 1232, 104 SWV 1003. Im-

Owens v. State \[Tex. Cr. App.\] 16 Tex. Ct. proper remarks of counsel are cured by

Rep. 685, 96 SWV 11. In local option case

proper instructions to disregard them. State

v. Easley, 118. La. 890, 43 S 279. Where

between accepting C. O, D. orders for liquor

torney for defendant commented on his

would not hesitate to sell liquor in the ter-

tom not to put defendants on the stand and

attorney for the state began to make some

jury were directed to exclude it. Taggart

comments on such statement but was im-

v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 74.

mediately stopped by the judge who charged

97 SW 95. Where witness stated he had

the jury to draw no inferences from failure

been present at four former trials but had

of defendant to testify, no prejudice was

shown. State v. Matthews, 118 La. 668, 44 S

said, in presence of jury, that that made no

336. Comments on certain testimony where

there was a question as to whether it had

end then told jury that it was made to

been introduced held harmless in view of

comanel and that they should disregard it,

the instructions that the jury were the sole

judges of the testimony. At argument that

\[Tex. Cr. App.\] 19 Tex. Ct. Rep. 28, 101 SWV

evidence would justify a finding of a more

215. Conduct of counsel in asking a juror

serious crime, but that jury could render

only a vyddict of manslaughter under the

disconnect while accused was dodging round,

indictment, held harmless where court, upon

held not reversible error where court in

objection, told the jury to disregard it, and

that they were concerned only with charge

proved his flight. White v. State \[Tex. Cr.

of manslaughter. State v. Hurt, 118 La. 194.

Appl. 18 Tex. Ct. Rep. 816, 100 SWV 941.

42 S 771. Improper argument rendered harm-

Where counsel said defendants were a set

less by rebuke from judge and charge to dis-

of things driven from northern states where

regard it. Day v. State \[Miss.\] 44 S 812.

laws were better enforced against's such cat-

Where state's attorney stated that accused

"must testify" to certain facts, but on ob-

to stay within the record and told the jury

jection there qualified it by adding "if he

testfiles," and court sustained the objection.

reversible error. Glassow v. State \[Tex. Cr.

and instructed jury to disregard the remark,

Appl. 19 Tex. Ct. Rep. 34, 100 SWV 938.

held no prejudicial error though court did

terruptions by district attorney not reversion-

not rebuke counsel. State v. Kelleber, 201

ble error, when court instructed him to stop,

Mo. 614, 100 SWV 470. Comments by prosecuting

and admonished jury to disregard them. Id.

ing attorney on conduct of accused held

harness where the court charged the jury to

cution of negro that reason for social prejudice

disregard them. McDoujian V. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 281, 103 SWV 847.

damnable heinous crimes of murder and.

Remarks of prosecuting attorney relative to

rape was not reversible error where the jury

defendant, as to who he was and where he

were charged to disregard such remarks.

come from and his record, held harmless

Brown v. State \[Tex. Cr. App.\] 16 Tex. Ct.

where the court required counsel to design

Rep. 548, 95 SWV 126. Improper argument not

and charged the jury not to consider the

remarks. Williams v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 22, 102 SWV 114. Where

'plus' the defendant has shown by his own testi-

19 Tex. Ct. Rep. 218, 102 SWV 1150. Argument

"this defendant has shown by his own testi-

mony that he is a professional gambler and

you should not give him the lowest penalty"

is harm 10 Cur. Law. INDICMENT AND PROSECTION SS 16. 209

by the subsequent proof of a predicate.\[81\] Overruling of motion to compel an election between two counts is harmless where only one is submitted to the jury.\[82\] Denial of motion for change of venue is cured by subsequent granting of the motion.\[83\] Error in permitting a view in the absence of the judge is cured by a view in his presence, and an instruction to disregard impressions on the first view.\[84\] Cautionary instructions have been held to cure the effect of incidents during the trial.\[85, 86\]

SS 16. \_Stay of proceedings after conviction.\_See 8 C. L. 258--Perfection of an appeal suspends proceedings in the court below \[87\] from the time of filing a proper bond.\[88\] Execution of judgment is thereby stayed \[89\] though this is the rule, in some states, only in capital cases.\[90\] Stay of sentence pending an investigation of the sanity of accused is proper.\[81\] Where person indicted was granted a writ of habeas corpus, but upon hearing was remanded to custody and then obtained a writ of error to the supreme court of the United States on the ground that the order re-manding him contravened his rights under the Federal constitution, it was held that the writ of error did not stay proceedings in the court having jurisdiction.\[82\] In Idaho an appeal from a judgment of conviction stays execution of judgment in all capital cases.\[98\] In other cases, a certificate of probable cause for the appeal is necessary to stay execution.\[94\] "Probable cause" means only that appellant must have specified or assigned grounds of appeal which present a debatable question.\[98\] An

\\begin{tabular}{l|c} & **S8. Under Const. $ 227, providing for in-the testimony of the wiltness as though they** \\ had not been made. Long v. State, 127 Ga. & St. 190$ 3748, providing for appeal and vacation of office, held, on conviction for mal- \\
**81. Error in permitting a witness to state** \\ a conclusion or opinion is cured by subse- \\ quent statements which would have constitued as taken and bond given, the operat- \\ tuted sufficient foundation therefor. State v. & tion of the judgment both as to fine and vacation of office was suspended. Hazeltrigs v. \\ Renneker \[Kan.\] 90 P 245. Immineral that \\ evidence is incompetent when offered if it is \\ subsequently made competent. Hanners v. & Douglass, 31. Ky. L. R. 111$, 104 SW7 758. \\ State, 147 IAa. 27, 41 S 973. Where after in- \\ production of copy of letter written at de- \\ fendants's suggestion he identified it, he could \\ judge authorized to grant an appeal may on \\ not object to its introduction. State v. Bar- \\ rington, 198 NG 23, 95 SW 225. Any error \\ in allowing introduction of impeaching evidence before witness testifies is cured by ap- \\ not brought before the court on habeas cor- \\ pearance of witness. McCann v. People, 226 \\ llll, 542, 80 NE 1061. & pus, he having executed a bond to the approval of the trial court, it had not author- \\
**82. Roberson V. State \[Tex. Cr. App.\] 19** \\ Tex. Ct. Rep. 164, 101 SW 800. & \\
\*\*83. Denying motion for second chance of \\ venue held harmless under **81** & **1889**, **8239**, \\ where it was afterwards granted. Murphy \\ v. State, 131 Wis. 420, 11 NW 511. & \\
\**84. People v. White \[Cal. App.\] 90 P 471. & \\
**85. 86. Where a witness in a bastardy pro- \\ deciding admitted that he had had unlawful \\ relations with prosecutrix and had been \\ victed of drunkenness, it was not reversible \\ error for the court to order his arrest and \\ his naturalization papers set aside, the jury \\ being charged to disregard the incident. & pas. In re Vickers, 201 No. 643, 100 SW 658. \\ Johnson v. State \[Wis.\] 113 NW 674. & \\
**87. An amended motion for new trial filed** \\ after an appeal has been perfected cannot be \\ considered, since under Code Cr. Proc. 1885, \\ art. 884, an appeal suspends all proceedings \\ in the court below. Saufley V. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 590, 90 SW 640. \\
**88. Under Cr. Code Frac. $ 348, 439, relative to appeals in misdemeanor cases, a judge.** \\ ment is suspended on execution of the required bond and not only from time of filing \\ transcript in appellate court. Hazeltrigs v. \\ Douglas, 31 Ky. L. R. 1121, 104 SW 755. & \\
10 Cur. L.-- 14. & \\
**89. Under Const. $ 227, providing for in-the testimony of the wiltness as though they** \\ did not been made. Long v. State, 127 Ga. & St. 190$ 3748, providing for appeal and vacation of office, held, on conviction for mal- \\
**81. Error
Indictment and prosecution SS 17a. 10 Cur. Law. application to a judge of the supreme court for such certificate will lie only after application to the judge who tried the cause, or upon an explanation why such application was not made.* Due notice must be given the office of the attorney for state.* A defendant who has appealed in good faith and not as a pretext for delay is entitled to a certificate of probable cause and a stay of proceedings.* But the right to admission to bail does not necessarily follow the right to a certificate of reasonable cause.* SS 17. \_Appeal and review. A. Right of review.\_See S. C. L. 233--The right to appeal is purely statutory,1 but where guaranteed by the constitution 2 it is absolute and is not dependent upon guilt or innocence,* and an appellate court will be slow to infer a waiver of the right.4 Such right cannot be taken away by giving retroactive effect to a statute.5 A defendant who has paid a fine imposed by a police court, with the alternative of imprisonment, cannot after paying such fine prosecute a writ of error to rev.w the judgment, unless the fine was paid under protest and under duress.6 As a general rule the state has no right of appeal.7 In North Carolina appeal lies by the state from judgment for defendant on motion to quash.8 In South Carolina it is held that the state may appeal from a decision of the general sessions setting aside a conviction by a city court on the ground that a city ordinance is unconstitutional,9 and in some states appeal lies by municipalities from municipal courts.19

10 Cur. Law. INDJECTIENT AND PROSECTION SS 17C. 211

a fine where the order is made six years after entry of the judgment.\[12\] The fact that a motion for a new trial was made in a city court which has no power to grant new trials will not cut off the right of review by certiorari, the proper remedy,\[13\] if the motion for new trial is dismissed and application for writ of certiorari seasonally made.\[14\] In Georgia the filing of an afflavit that accused has not had a fair trial, and has been wrongfully and illegally convicted, is a condition precedent to the sanction of a petition for certiorari from a judgment of conviction in a county court.\[15\] A failure to comply with this statutory requirement is not cured by the sanctioning of the petition or the answer of the county judge.\[16\] Appeals must be prosecuted within the time prescribed by statute in order to give the court jurisdiction.\[17\] The time within which a writ of error may be sued out begins to run from date judgment was entered,\[18\] and where delay in suing out the writ is act of accused, it could not be cured by nunc pro tunc order.\[19\] In Wyoming no judicial authority is necessary to institute proceedings in error.\[26\] A writ of error lies to correct error apparent on the record though no motion in arrest was filed in the trial' court.\[21\] A writ of prohibition will not lie in a nonappealable prosecution until sentence is imposed.\[22\] The remedy to test the validity of the complaint or information, under which defendant has been convicted is by appeal and not by habeas corpus.\[23\]

(SS 17) \_C. Adjudications which may be reviewed.\_See * C. L. 24--Appeal or error ordinarily lies only from a final judgment * and does not lie from a verdict before judgment entered thereon,\[28\] nor from a minute entry which is not equivalent to a judgment,\[26\] and is premature if taken before judgment entered or sentence pro-authority is necessary to institute proceedings in error. Richardson v. State \[Wyo.\] 89

18. Certiorari only way to review judgment of city court of Sylvester. Crosson v. State, 124 Ga. 651, 52 SE 880.

01. Application must be within 30 days after judgment. Crosson v. State, 124 Ga. 651, 52 SE 880.

01. Pen. Code 1850, $ 765. Hogan v. State, 127 Ga. 349, 56 SE 409. Where such afflavit is not filed, the case will be dismissed. Id. 16. Hogan v. State, 127 Ga. 449, 56 SE 409.

01. Petition of Channels, 30 Ky. L. R. 1248, 100 SVV 214. Where no diligence has been shown and statutory steps relative to appeal are not taken in time, it will be dismissed. People v. Cimini, 53 Misc. 525, 105 NYS 416. The six months granted by 26 Stat. 829, within which a writ of error may be taken, cannot be extended. Old Nick Williams Co. Y. U. S. (C. C. A.) 152 F 952. An appeal not returned within the time prescribed by law will be dismissed. State v. Austin, 118 La. 124, 43 S 887. Where afflavit on appeal was not delivered to the magistrate within five days as required by Cr. Code & 755, the appeal must be dismissed. People v. Versage, 53 Misc. 528, 105 NYS 299. Under express provisions of Rev. St. 1899, $ 837, writ of error may be brought within one year after final judgment. State v. Kelley, 206 Mo. 685, 105 SWV 606.

\*\*Adigorment of court cannot deprive defendant of the three days allowed him for appealing. State v. Vieknair, 118 La. 683, 43 S 635. 18, 19. Old Nick Williams Co. v. U. S. (C. A.) 162 F 925. 20. Under Laws 1901, p. 65, providing that after final judgment, proceedings to vacate, modify, or annuli, may be begun in the supreme court by petition in error, no judicial authority is necessary to institute proceedings in error. Richardson v. State \[Wyo.\] 89

18. Smith v. Mahaska County Dist. Ct., 132

01. Certiorari only way to review judgment of city court of Sylvester. Crosson v. State, 124 Ga. 651, 52 SE 880.

01. Application must be within 30 days after judgment. Crosson v. State, 124 Ga. 651, 52 SE 880.

01. Pen. Code 1850, $ 765. Hogan v. State, 127 Ga. 349, 56 SE 409. Where such afflavit is not filed, the case will be dismissed. Id. 16. Hogan v. State, 127 Ga. 449, 56 SE 409.

01. Petition of Channels, 30 Ky. L. R. 1248, 100 SVV 214. Where no diligence has been shown and statutory steps relative to appeal are not taken in time, it will be dismissed. People v. Cimini, 53 Misc. 525, 105 NYS 416. The six months granted by 26 Stat. 829, within which a wr

# 212 INDICMENT AND PR PROECUTION $ 17D. 10 Cur. Law.

nounced." No appeal lies from a judgment which has been satisfied.28 In some states the right of appeal is determined by the amount of the fine imposed.29 Appeal from orders made before 80 or after judgment 81 is sometimes authorized, especially if such orders affect a substantial right of the accused.82

(SS 17) _D. Courts of review and their jurisdiction._ See 8 C. L. 265.-Appellate jurisdiction is generally prescribed by statute,83 and cannot be conferred by con-

Footnote 238: http://www.

### 10 Cur. Law. INDICMENT AND PROSECTION SS 17E.

sent. \[44\] On appeal from a court of inferior jurisdiction where the case is tried de novo, the jurisdiction of the appellate court depends on the jurisdiction of the trial court. \[38\] In Louisiana the appellate jurisdiction of the supreme court is prescribed by statute, \[44\] and it cannot review a cause not within the statute upon the theory that it has general supervision over inferior courts. \[81\] The legislature may confer on the district court appellate jurisdiction of a cause in which there would otherwise be no appeal. \[38\] In Georgia writs of error in capital cases are returnable to the supreme court. \[99\] The court of appeals is without jurisdiction to consider grounds of a motion to dismiss a bill of exceptions predicated upon alleged errors of the trial judge antecedent to its final decision upon a motion for new trial. \[40\] The court of appeals is required to certify to the supreme court questions involving construction of the constitution. \[41\]

(SS 17) _E. Procedure to bring up the cause._\[See 6 C. L. 288.\_Procedure to obtain an appeal or review are generally initiated by giving notice and bond for costs. \[41\] The giving of notice is jurisdictional in some states, \[43\] but in others failure to give it

**SS4. A United States district court, though having original jurisdiction as well as ap-pellate jurisdiction, cannot render a valid judgment on appeal where the commissioner \[45\] leg \[46\], hence, in Georgia, in such a case, a suit of error saved out to review a judgment upon and submitted to trial. Rider v. U. S. IC. C. A. 149 F 164.**

SS5. Under Code City. Proc. $ 1761, and Pen. Code $ 2717, a case appealed from justice to district court is tried de novo and its jurisdiction depends on the fact of jurisdiction of the justice. State v. O'Brien, 35 Mont. 482, 90 E 514. It has no jurisdiction of an appeal from a fine of less than $300 (State v. Welch, 119 La. 862, 44 S 127), but has jurisdiction of an appeal from a fine exceeding $300 (State v. Dinefechaux, 118 La. 459, 43 S 50), and has power to set aside a sentence which exceeds the amount allowed by statute (State v. Smith, 118 La. 248, 42 S 791). Supreme court has no jurisdiction of an appeal where the maximum penalty is a fine of $100 and imprisonment not at hard labor for six months. State v. Babington, 119 La. 446, 44 S 259. Where a fine has been imposed under a municipal ordinance, the supreme court has jurisdiction only to examine and determine the alleged illegality and unconstitutionality of the ordinance (Town of Ruston v. Fountain, 118 La. 53, 42 S 644); all other questions are reviewable by appeal to the district court (Id.). In a criminal prosecution for extortion in the office of justice of the peace under Act $7, 59, of 1858, defendant was filed an hour but not at hard labor, or to imprisonment for $25 and sentence id or imprisonment for $203, if finer was not paid. Field supreme court had no jurisdiction of an appeal, though, under the statute, the conviction ipso factor, vacated the office. State v Mayer, 117 La. 945, 42 S 435. Where the supreme court is not given jurisdiction of a criminal cause by express statute, it cannot review it upon appeal upon the theory that it has a general power of control and supervision over inferior courts; this argument would confer jurisdiction in all cases, civil and criminal. State v. Kramer, 117 La. 944, 42 S 435.

SS8. Conviction of libel in city court may be appealed to circuit court. State v. Melles, 117 La. 656, 42 S 199.

SS6. It has no jurisdiction of an appeal from a fine of less than $300 (State v. Welch, 119 La. 862, 44 S 127), but has jurisdiction of an appeal from a fine exceeding $300 (State v. Dinefechaux, 118 La. 459, 43 S 50), and has power to set aside a sentence which exceeds the amount allowed by statute (State v. Smith, 118 La. 248, 42 S 791). Supreme court has no jurisdiction of an appeal where the maximum penalty is a fine of $100 and imprisonment not at hard labor for six months. State v. Babington, 119 La. 446, 44 S 259. Where a fine has been imposed under a municipal ordinance, the supreme court has jurisdiction only to examine and determine Judge refusing a new trial, appellant need of the ordinance (Town of Ruston v. Fountain, 118 La. 53, 42 S 644); all other questions are reviewable by appeal to the district court (Id.). In a criminal prosecution for extortion in the office of justice of the peace under Act $7, 59, of 1858, defendant was filed an hour but not at hard labor, or to imprisonment for $25 and sentence id or imprisonment for $203, if finer was not paid. Field supreme court had no jurisdiction of an appeal, though, under the statute, the conviction ipso factor, vacated the office. State v Mayer, 117 La. 945, 42 S 435. Where the supreme court is not given jurisdiction of a criminal cause by express statute, it cannot review it upon appeal upon the theory that it has a general power of control and supervision over inferior courts is not ground for dismissal.44 In Missouri an afflavit for an appeal is not required as a condition precedent to an appeal by defendant from a conviction.45 Where an affladavit is required, it cannot be made by the attorney for the appellant.46 The transcript must show that appeal was taken,47 and must be filed in the appellate court within the time prescribed.48 If no time is prescribed, a reasonable time will be allowed.49 If an accused cannot pay for a transcript, it must be ordered at the expense of the county,50 but that the defendant has pledged all his property for attorney's fees will not authorize a transcript at the expense of the county where a reasonable fee will leave sufficient to pay for a transcript.51 All facts necessary to a conviction must appear.52 The record must be authenticated by the certificate of the trial judge.53 The papers constituting the record proper must be certified up by the clerk as the record.54 The record cannot be contradicted by the bill of exceptions.55

Criminal cases are reviewable in the Federal circuit court of appeals by writ of error and not by appeal.56 Where a constitutional question is involved, the defendant must elect whether he will take the case to the supreme court on such question or take the entire case to the circuit court of appeals.57

contained no notice of appeal as required by

Code Cr. Proc. 1895, art. 883. Love v. State

\[Tex. Cr. App.\] 90 SW 169. Under Code, $ 254, and Code 1882,

Proc. Art. 883, providing that an appeal is

$ 3777, if accused shows inability to pay for taken by giving notice thereof in open court

and having the same entered of record, an

expense of the county. State v. Goodsell

appeal must be dismissed where no notice

\[Iowah\] 113 NW 826.

was given. Dennis v. State \[Tex. Cr. App.\] 91 SW 1016. Acts 26th Leg. p. 233, dispense

147.

ins with notice in appeals from Justice court,

does not apply to appeals from county courts.

If.

44. Failure to give notice of intention to

appeal as required by Rev. St. 1887, $ 8321, is

not ground for dismissal. State v. Barnard

\[Idaho\] 90 P1.

45. Rev. St., 1899, $ 2696. State v. Critten-

den, 191 Mo. 17, $ 85 NW 952. In Missouri, defendant in a criminal case is entitled to an

appeal without filing an afflavit that the appeal is not taken for delay. Constraining ap-

peak is not taken for delay. Constraining ap-

peak statutes. State v. Smith, 190 Mo. 706, 90

SW 440; State v. Speritus, 191 Mo. 24, 90 SW

45.

01. Under Rev. St. 1899, art. 12, $ 2782, providing for the filing of an afflavit by

scon convicted of a misdemeanor before a

justice that he is aggrived, in order to ap-

peak to the circuit court, an attorney may

not make such afflavit for the person con-

victed. State v. Meed, 124 Mo. App. 413, 101

SW 714.

47. Where the transcript on appeal fails to

show that any appeal was taken, the cause

will be stricken from the docket. State v.

McGovern \[Iowa\] 140 NW 275.

48. Transcript on appeal from conviction

of misdemeanor must be filed within 60 days

49. Since statutes does not fix time of filing

transfert on appeal by a city from a police

to the county court, a reasonable time will

be allowed.57

be allowed. Six days held reasonable time.

Code Cr. Proc. 1895, art. 883. Love v. State

\[Tex. Cr. App.\] 90 SW 169. Under Code, $ 254, and Code 1882,

Proc. Art. 883, providing that an appeal is

$ 3777, if accused shows inability to pay for

taken by giving notice thereof in open court

and having the same entered of record, an

expense of the county. State v. Goodsell

appeal must be dismissed where no notice

\[Iowah\] 113 NW 826.

was given. Dennis v. State \[Tex. Cr. App.\] 91 SW 1016. Acts 26th Leg. p. 233, dispense

147.

001. The fact of arrangment and pleading

does not apply to appeals from county courts.

or refusing to plead must appear from the

record where such facts are necessary to

conviction. State v. Walton \[Or.\] 91 P 490.

53. Otherwise it cannot be considered.

State v. Clark \[N. J. Err. & App.\] 68 A 114.

The formal return of the record upon a writ

45. Rev. St., 1899, $ 2696. State v. Critten-

of error will not authenticate the record or

den, 191 Mo. 17, $ 85 NW 952. In Missouri, defendant in a criminal case is entitled to an

authentication of the evidence in a bill of

appeal without filing an afflavit that the appeal is not taken for delay. Constraining ap-

The certificate
Notice of sanction of the petition for certiorari must be served within the time prescribed.\[58\] A.E. answer to certiorari must verify the fact that there has been a conviction or final judgment.\[59\]

_A recogninance on appeal_ \*0 is not required in some states,\[61\] but in Texas such bond is required and it must state the punishment assessed.\[92\] Where such bond or recogninance is found to be defective, appellant may amend the same and file a new bond on such terms as the appellate court may prescribe.\[63\] The rules governing the practice upon an application to amend such bond have been laid down by the court of criminal appeals.\[64\] Where after dismissal of the appeal, a proper amended bond is filed, the cause will be reinstated.\[65\] Where each of two or more persons jointly indicted appeals, each must give a separate recogninance.\[66\] In Mississippi an afflavit of inability to furnish bond or deposit money to cover costs will not entitle an accused who is a fugitive to an appeal without surrendering or giving bail for appearance.\[67\] An appeal bond must not be more onerous than the statute requires.\[68\]

(SS 17) _F. Perpetuation of proceedings in the "record."_ See 8 C. L. 256...\[The record must show the order granting the appeal,\[69\] and all other statutory requisites.\[70\]

subsequent writ of error to the court of ap-justice or mayor's court for appeal to county peaks will be dismissed. Van Gesner v. U. S. \[Cr. App.\] 14 Tex. Ct. Rep. 408, 90 SWV \[Cr. App.\] 15 74.

SS8. Failure to serve the solicitor general with notice of the sanction of a petition for certiorari within the time prescribed by law, is ground for dismissal, except in case of un-avoidable accident. Where several months elapse between date of death of counsel for plaintiff in certiorari, and the expiration of such time, such death will not be considered as un unavoidable accident. Johnson v. State \[Cr. App.\] 15 75. If the answer to a certiorari does not verify the fact that there has been a conviction or final judgment, neither the superior court nor the court of appeals can pass upon errors assigned in the petition. Rodgers v. State \[Cr. App.\] 58 SE 416.

60. See 9 8 C. L. 256; 5 C. L. 1867. One convicted in a mayor's court cannot appeal to a circuit court until an appeal bond has been executed in accordance with Code 1892, SS 86.

01. It appeared she was then another plate and had not surrendered to sheriff nor VWhere accused claims a bond was executed, but none is sent up, parql proof of the bond will not be received until he has tendered a new bond and disclosed by afflavit the names of his varieties in the old. Id.

01. A municipal corporation in Colorado having the right of appeal in a prosecution for violating a city ordinance under Laws 1885, p. 287, may do so without giving bond, under Mill's Ann. St, $ 444. Hummel v. Ouray, $ Colo, 322, 88 P 582. The act of 1885 relating to bond has reference to defend only. Id.

01. Appeal dismissed where recogninance did not state amount of punishment assessed as required by Code Cr. Prac 1895, art. 887.

Burton v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 408, 90 SWV 498; Canrency v. State \[Tex. Cr. App.\] 15 Tex. Ct. Rep. 26, 90 SWV 632.

64. Acts 29th Leg. p. 224, c, 115. Form of amended bond laid down. Burton v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 406, 90 SWV 498.

01. For rules, see Burton v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 408, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 409, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 410, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 420, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 430, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 441, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 451, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 462, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 470, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 481, 90 SWV 498. Same rules prescribed to govern filing of bond in \[Cr. App.\] 14 Tex. Ct. Rep. 499, 90 SWV 498. Same rules prescribed to
    All that is a part of the record proper must appear thereby,\[11\] but matters not a part thereof must be brought up by bill of exceptions.\[12\] A writ of error sued out by accused does not become effective until deposited with the clerk of the trial court.\[78\] Where sued out and filed in time, the time for complying with it may be enlarged by the proper orders.\[14\]

\_Form, transmission, and filing.\[See $ C. L. 2550.--The transcript should be made up in an orderly and legible manner.\[18\] Exhibits attached to the record and referred to therein are a part of it,\[78\] but pencil interlineations, unauthorized and unexplained, are not.\[77\] The trial judge may not dictate what shall be included in the bill of exceptions.\[78\] Facts certified by the judge are to be taken as true.\[78\] A bill of exceptions will be controlled by an explanation by the trial judge.\[80\]

minutes of plea, minutes of trial, instructions given, modified or refused, and transcript of court's charge. People v. McPherson \[Cal. Ayp.\] 91 pT 1098. Where one convicted devices to obtain a review under Crim. Proc. Act, SS 138, 137, he must procure the return with his writ of error, of the entire record of the check will the proceedings. State v. Clark \[N. J. Err. & App.\] 68 A 114.

71. Motions to quash and rulings thereon are a part of the record proper, and when presented only by bill of exceptions cannot be considered. Tipton v. State \[Fla.\] 48 S 684. The filing of a motion for a new trial must be shown by the record proper; a mere rectil of its filing in the bill of exceptions is not enough. State v. Klimmons, 124 Mo. App.\] 498, 101 SVW 683. As the defect urged against the accusation is apparent from the record proper, the motion suggesting diminution of the record, In order to have the alfalfa event up, will not be granted. Rogers v. State, I Ga. App.\] 57, 58 SE 226.

01. Motion to quash indicent forms no part of record proper and must be incorporated in the bill of exceptions. State v. Coleman, 193 Mo. 112, 97 SWW 674. An exception to the overriding of a motion for continua-anc noted in the order overruling it is insufficient; the bill of exceptions must be prepared and signed by the judge. Griffith v. State \[Cq.\] 59 SE 249. When State \[Cz. Cr. App.\] 89 SWW 832.

73, 74. Old Nick Williams Co. v. U. S. \[C. C. A.\] 159 F 925.

75. Where transcript is Inexcusable confusion, costs of clerk in making it may be disallowed. Sharp v. State, 117 Tenn. 637, 97 SWW 812. Where transcript has no caption and record does not disclose when case was tried and motion for new trial, case will be dismissed. Burns v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep.\] 89, 104 SWW 897.

01. Affaults relative to motion for new trial referred to therein and attacked are a part of the record. Sasser v. State \[Ga.\] 59 BE 255. But affavits not referred to in the motion, nor attached as exhibits, nor filed as part of the motion, cannot be considered, though it appears that they were actually used on the motion. Id. The judge has no authority after the bill of exceptions has been certified to y an order to declare such afflavits a part of the record. Id. Page immediately preceding statement of facts and content of the judge on each afflavit that it and date, signed by clerk, such page was assigned in refusing to give instructions but is contradicted by a statement per curium, show proper filing thereof. Collins v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep.\] 138, 101 SWW 892.

01. Johnson v. State \[Ark.\] 104 SWW 929.

01. The trial judge cannot dictate what shall be included in or omitted from the pleadings of defendant. If defendant embodies in his motion for new trial a synoptic of the evidence, the judge cannot require that such synopsis be omitted from the transcript on appeal. State v. Mehojovich, 118 La. 1013, 43 S 680.

01. Ground alleged in motion for new trial

01. The trial judge cannot dictate what should be included in or omitted from the pleadings of defendant. If defendant embodies in his motion for new trial a synoptic of the evidence, the judge cannot require that such synopsis be omitted from the transcript on appeal. State v. Mehojovich, 118 La. 1013, 43 S 680.

01. Ground alleged in motion for new trial

which are not controverted and which are not controverted and which are certified by the judge are to be taken as true. Styles v. State \[Ga.\] 59 SE 249. When

a bill of exceptions is signed by the judge, its rectilat that objection was made, overruled and exception reserved on the trial, is conclusive in the absence of other competent evidence. State v. Griginsky, 117 La. 1046, 42 S 497. A rectilat in a bill of exceptions in a criminal case that a motion to quash an In-dictment was heard and overruled must yield to a positive contrary statement in the minutes of the court. Hill v. State, SS 23, dismissed. Burns v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep.\] 89, 104 SWW 897.

76. Affaults
    Making, settling, and approval,See S. C. L. 287.--The bill of exceptions must be made up and prepared in the manner prescribed by law or rule, \[61\] and served on the prosecuting attorney. \[82\] It is the duty of an appellant to see that his transcript is properly prepared. \[83\] In Texas the file mark of the clerk must be endorsed on the statement of facts. \[84\] After a statement of facts has been agreed upon and approved, the clerk may not insert anything into it. \[85\]

01. Under Code Cr. Proc., #5 756, 763, re- to serve as a basis for bills of exception, and this notation of objections, rulings, and excep-brought up, an appeal will be dismissed by others, are without official authority. Stats V. Griggsby, 117 La. 1046, 42 S 497. A bill of people V. Solomon, 106 NYS 1110. Bill of exceptions not having been prepared in the manner prescribed by rule of court held in-quired two days' notice was given to the surtions were not revivable. Albrutin v. Glate \[Fla.\] 44 S 745. Assignments of error ball to the court or clerk for settlement. Pern. Code, #1172. State V. Lee, 34 Mont. 584, sented as required by rule of court not considered. Id. Where record is made up in disregard of rules of the supreme court, charges should be copied into the record by questioned rased by appellate will not be considered. Johnson v. State \[Ark.\] 104 SW 929. In making up a bill of exceptions, either the method prescribed by special rule & Province, v. Browne, 118 App. 38, 103 NYS 6 (37 S S x, or special rules 1, 3, 3 (37 S x, must be followed. The modes of procedure cannot be blended. Clinton v. State \[Fla.\] 44 S 8 312; Albrutin v. State \[Fla.\] 44 S 745. Record on writ of error in criminal case including bill of exceptions should be prepared according to rules governing civil cases, as provided in Rev. St. 1899, #3 1089-1091, or Gen. St. 1906 # 5377. Koppala v. State \[Vy.o\] 89 P 576. #1497-1499, but they should not be presented in Rev. St. 9 #27, providing that an assignment of error ball be annexed to and returned with writ of error does not necessitate the settlement of a bill of exceptions prior to filling of the writ and assignment of errors. Alaska, #5 445, 449, to require the district Old Nick Williams Co. v. U. S. (C. C. A.) 152 F 875. Statement of facts should not be signed where it contains, instead of a copy of the minutes of the court, the statement "here copy the record or records." Henderson v. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 114, 101 SVV 268. Hills of exception should be presented at the trial, or the point should be expressively reserved and noted by the Judge and after trial embodied in a bill of exception without unnecessary delay or within the time allowed by the rules of court. The mere date of filling of a bill by the clerk does not per se show that the bill was not seasonally presented. State v. Griggsby, 117 La. 1046, 42 S 497. Assignment of errors should be in writing, but in case of error apparent on the face of the record, an assignment made orally or in brief may be considered. Id. Where original Indiment sent up with the record was not verified by the clerk, it could not be determined whether a variance existed between the allegations thereof and the evidence. Mendiaz v. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 204, 102 SWV 1132. Refusal of change of venue cannot be reviewed where no compursators signed the motion, and it was not in accordance with the statute and no bill of exception was taken. Elsworth v. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 869, 104 SWV 903. Rev. St. 1895, arts. 1379-1382, as to preparing statement of facts, not re-pealed by acts 29th Leg. p. 219, authorizing stenographic reports of the evidence. Baker v. State (Tex. Cr. App.) 17 Tex. Ct. Rep. 70, 97 SVV 81. Duty of clerk under Act. No. 113, p. 162, 1896, is confined to noting the facts

01. The 100.10.

properly allowed,90 and the memorial must show that it was approved within such time.91 As a general rule an approval after the expiration of the period allowed

State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 469, 98 SVV 863.

**Bills of exception filed out of term time**

Without an order allowing it cannot be considered. Baker v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 995, 105 SVV 505: O'Neil v. State \[Tex.
17 Tex. Ct. Rep. 70, 97 SVV 81. Filling of motion in arrest which was continued to the next regular term and the filling of a bill of exceptions at such subsequent term did not preserve the action of the court in over-ruling motion for new trial so that such bill was unavailable to authorize review of errors at the trial. State v. Harroun, 1993

Mo. 258, 97 SVV 866. Where bill of exceptions was filed at term succeeding that at or time 'or any application therefor. State v. Aschenbrennert \[Wash.\] 87 P 1118. Where statement of facts is filed too late to be considered on appeal, the appreme court must request was regularly continued and determined relative to insufficiency of evidence and applicability of instructions. Jones v. State \[Tex. Cr. App.\] 97 SVV 89. Irregularity in failing to file transcript in court of app-peals within sixty days after judgment as required by Cr. Code Prac. 8 336, is waived where motion to dismiss the appeal is not appeal for a year requires dismissal of the appeal. City of Russellville v. Edwards, 80

Ark. 314, 97 SVV 51.

**A bill of exceptions** will not be considered where it appears not to have been prepared and submitted within the time allowed. Strickland v. State \[Ala.\] 43 S 188. Where bill of exceptions was not presented to judge for approval within the twenty days and it appeared that there was ample opportunity to present it, it will not be considered. Stout v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 234, 103 SWV 391. Bills of exception stricken because filed before approved and not filed within 20 days after adjournment of the term. Chancev v. State \[Tex. Cr. App.\] 15 Tex. Ct. Rep. 26, 90 SVV 632.

Supreme court cannot grant relief for failure to file bill of exceptions in time on the ground that counsel for defendant was misled by the prosecuting attorney, it not being asserted that counsel was willfully misled. State v. Moore, 203 Mo. 624, 102 SWV 537. Under rule of practice 30 and Code 189.

**A**: 4812, the time for signing bill of exception cannot be extended by stipulation beyond the first day of the next succeeding term. Holliday V. State \[Ala.\] 44 S 956. Where the judge refused to approve bill of exceptions and statement of facts because presented too late, neither the bill nor statement could be considered. Garrett v. State \[Tex. Cr. App.\] 96 SVV 98. Where entries on the original bill of exceptions disclosed that it was filed in the office of the clerk of the trial court more than 15 days after it was certified by the judge, the writ of error will be dismissed. Jones v. State, 127 Ga. 281, 56 SE 453. Where bill of exceptions is not filed within the time allowed by the circuit court, the court of appeals will confine its examination of errors assigned to those going to the record proper. State v. Ostmann, 123 Mo. App. 114, 100 SVV 696.

\*\*Statement of facts not filed in time will not be considered. Wilson v. State \[Tex. Cr. App.\] 105 SVV 787: Kinchalov V. State \[Tex. Cr. App.\] 105 SVV 394. Where no twenty-day is unavailing.92 It may not be filed after expiration of the period and dated back." An order granting time to file a bill of exceptions, and statement of facts after adjurnment of the term, need only be entered in the judge's docket.94 and if such order is not in fact so entered the bill of exceptions and statement of facts will, nevertheless, be considered if counsel used all possible diligence to have it entered," but it must be entered on the docket.95 If failure to file in time is the fault of the trial judge, a statement may be subsequently filed," and an accused, who has exercised proper diligence, will not be deprived of his bill of exceptions by circumstances over which he had no control,98 but it must appear that he exercised the required degree of diligence.99 Mandamus lies to compel a trial judge to sign a bill of exceptions which presents the truth of the case.1

\[Tex. Cr. App.\] $ $ SW 1065. Certificate to permit filling after adjournment of the bill of exceptions held not to recite facts showing that judge received bill of excep-17 Tex. Ct. Rep. $ $55, 97 SW 1044. Under tos at his home within the time and in the manner provided in Civ. Code 1895, $ 5542, tailoring extension of time to file bill of exceptions shall be entered on record, when Judge is away from home. Porter v. failure to do so cannot be supplied by certificate of judge and ex parte afflavit. State
92 Statement of facts and bill of exceptions approved by county judge after adjurnment of term cannot be considered as filed in trial court, and will not be considd-ered. Harkrider v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. $32, 90 SW 652. In Missouri a judge of another circuit called in to try a case in place of a disqualified judge has no authority to sign a bill of exceptions after the expiration of his term. State v. Grant, 124 Mo. App. 129, 100 SW 113. A bill of exceptions in a criminal case tendered to the judge and certified by him after the expiration of twenty days will be dismissed. Porter v. State, 127 Ga. 288, 66 SE 430.
93 Statement of facts, not filed within the time allowed by law of a judgment. The file mark ehowed that time allowed, but by agreement dated back to bring filing within the tlme, will be stricken on motion. Benson v. State \[Tex. Cr. Cr. App.\] 19 Tex. Ct. Rep. 113, 101 SW 224; Henderson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 114, 101 SW 208. Where transcript showed that court adjourned Sept. 25, but statement was not filed until Sept. 24, but it appeared that it was not presented until long after that date and was filed back, held the filing back was unauthorized and statement could not be considered. Robinson v. State \[Tex. Cr. App.\] 103 SW 890.
94\. Lara v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 5, 89 SW 840. Order entered on docket allowing twenty days after adjurment of term to file statement of facts is sufficient without its being carried forward on minutes of the court. Anderson v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 690, 96 SW 34.
95\. Lara v. State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 5, 89 SW 840. Where counsel requested a twenty-day extension order but did not have it entered on the docket, and while he had the statement prepared he did not have it signed by the judge before adjurnment, held #undement diligence was not shown to justify consideration of such state-ment under Acts 29 Leg. pp. 219, 231, authoring filing of stenographer's notes as a statement. Kilpatrick v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 355, 97 SW 1044.

96. Order granting twenty days after adjurnment of term to file statement of facts not entered on court's docket is ineffective * 10 Cur. Law. INDICMENT AND PR PR PRODUCTION SS 17F. 221

- \_Sufficiency of "record" to present particular questions.See
- C. L. 280--Since every presumption is in favor of the correctness of the ruling below,2 it is necessary that errors not apparent from the record proper
- should be presented by bill of exceptions and statement of facts,4 which must show the ruling complained of and objection and exception thereto below.5 In the absence of a bill of exceptions and statement of facts, the action of the court in denying motion for new trial,\*

reason are not approved, appellant cannot of jury will not be reviewed where on motion for new trial, such question was continue as showing sufficient diligence. Brooks was taken and passed upon by the trial * 98 SW 244. Where attorneys for accused were guilty of inches in presenting statement of facts and bill of exceptions in time * 10. In the absence of a bill of exceptions and statement of facts, the action of the court in denying motion for new trial,\*

reason are not approved, appellant cannot of jury will not be reviewed where on motion for new trial, such question was continue as showing sufficient diligence. Brooks was taken and passed upon by the trial * 98 SW 244. Where attorneys for accused were guilty of inches in presenting statement of facts and bill of exceptions in time * 11. In the absence of a bill of exceptions and statement of facts, the action of the court in denying motion for new trial,\*

reason are not approved, appellant cannot of jury will not be reviewed where on motion for new trial, such question was continue as showing sufficient diligence. Brooks was taken and passed upon by the trial * 98 SW 245. Where attorneys for accused were guilty of inches in presenting statement of facts and bill of exceptions in time * 11. In the absence of a bill of exceptions and statement of facts, the action of the court in denying motion for new trial,\*

reason are not approved, appellant cannot of jury will not be reviewed where on motion for new trial, such question was continue as showing sufficient diligence. Brooks was taken and passed upon by the trial * 98 SW 246. Where attorneys for accused were guilty of inches in presenting statement of facts and bill of exceptions in time * 11. In the absence of a bill of exceptions and statement of facts, the action of the court in denying motion for new trial,\*

reason are not approved, appellant cannot of jury will not be reviewed where on motion for new trial, such question was continue as showing sufficient diligence. Brooks was taken and passed upon by the trial * 98 SW 244. Where attorneys for accused were guilty of inches in presenting statement of facts and bill of exceptions in time * 11.

223 INDICITMENT AND PROSECTION SS 17F. 10 Cur. Law.

or for a continuance,${}^{\\mbox{\\tiny{7}}}$ errors in the admission${}^{\\mbox{\\tiny{8}}}$ or exclusion of evidence,${}^{\\mbox{\\tiny{9}}}$ or the sufficiency thereof,${}^{\\mbox{\\tiny{10}}}$ or in ruling on the competency of witnesses,${}^{\\mbox{\\tiny{11}}}$ or in the

of the motion in any way sustained, the motion cannot be considered. Murphy V. State

\[Tex. Cr. App.\] 105 SW SW 394. Under Code Cr.

\[Jex. Cr. App.\] 102 WC. 89 273, 274, 282, providing that

grounds for new trial must be stated in bill

\[SSV 11. Motions for continuance and new

of exceptions and that exceptions must be

\[Jex. Cr. App.\] 97 SWV 688.

shown where no bill of exceptions is filed,

\[Jex. Cr. App.\] 97 SWV 688.

\[Jex. Cr. App.\] 98 SWV 346. While transcript contains

\[Jex. Cr. App.\] 97 SWV 688.

\[Jex. Cr. App.\] 98 SWV 346. While transcript contains

\[Jex. Cr. App.\] 98 SWV 348. While transcript contains

## 10 Cur. Law. INDICMENT AND PR PROECUTION SS 17F.

giving 12 or refusal to give instructions,13 or other error which cannot properly appear from the record proper,14 will not be reviewed; but the review will be con-

App.J 90 SWW 27; Smith v. State \[Tex. Cr.\] subd. C, instructions could not be reviewed. App.J 103 SW 1197; Thomas v. State \[Tex. Cr.\] State v. Newman, 34 Mont. 434, 87 P 462. Cr. App.J 19 Tex. Ct. Rep. 869, 104 SW 897;

Bender v. State \[Tex. Cr. App.J 102 SW 408.\] Does not show that instructions therein

The sufficiency of evidence and the giving

were the only ones given, or that any ex-

of special instructions cannot be reviewed.

Cochran v. State \[Tex. Cr. App.J 96 SW 924.\] v. Rourke \[Wash.\] 87 P 607. Where error

Where statement of facts is not incorpos

in instructions is asserted but there is no

rated in the record, it is presumed that evidence was sufficient to sustain the verdict.

termine whether the instructions were er-

Graham v. State \[Tex. Cr. App.J 98 SW 846.\]

roneous on any supposable state of facts

Grounds of motion for new trial reading to

which the evidence tended to establish. State

sufficiency of evidence and failure of court

v. Sloan, 55 Mont. 367, 89 P 829. Where

to call names of witnesses. Aliva v. State

there is no statement of facts, an instruc

\[Tex. Cr. App.J 97 SW 1044.\] Sufficiency of

evidence and denial of continuance. Gilbert

v. State \[Tex. Cr. App.J 97 SW 693.\] Where

under the allegations. Mundine v. State

record contains no statement of facts,

whether verdict is contrary to law or evidence or whether charge is erroneous, can-

instructions cannot be considered unless the

not be reviewed. Allen v. State \[Tex. Cr. App.J 103 SW 850.\] Where

instructions be set out, Morris v. State

App.J 103 SW 850. Where an abstract does

\[Ga.\] 59 SE 223. In prosecution for murder,

not fully set forth errors relied on a

failure to charge that under certain facts

quired by rule of court, an objection that

the verdict was not supported by the evidence could not be reviewed. Imbolen v. State \[Tex. Cr. App.J 102 SW 112.\]

of facts. Brown v. State \[Tex. Cr. App.J 115 Tex. Ct. Rep. 874, 105 SW 117.\]. Requested

not preserved by bill of exceptions, It is not

charges and bills of exception cannot be

revivable. Beard v. State \[Tex. Cr. App.J 293, 95 SW 995, 97 SW 667.\] Sufficiency of evidence

will not be reviewed where it is not all in

the record. Mathews v. State \[Ark.\] 104

structions do not appear in the bill of ex-

11. To review improper ruling on compe-

teney of witness, materiality of his proposed

teslimony need not appear. Palmer

v. People, 112 Ill. App. 527.

12. In absence of statement of facts or

bill of exceptions, court cannot review instructions. Jordan v. State \[Tex. Cr. App.J 105 SW 109: Thomas v. State \[Tex. Cr. App.J 105 SW 995, 104 SW 897; Wright v. State \[Tex. Cr. App.J 117 Tex. Ct. Rep. 312, 97 SW 69.\]. Where evidence is not brought

up, the court cannot pass on applicability

of an instruction. Dixon v. State \[Tex. Cr. App.J 117 Tex. Ct. Rep. 308, 97 SW 692.\]

against improper remarks of counsel will

Where evidence is not preserved in the bill

of exceptions, an exception to an instruction

with be overruled if proper under any state

of facts provable under the issues. State

v. Phillips \[Mont.\] 92 P 299; Koppala v. State \[Wy.J 89 P 576.\]. Instructions cannot

be reviewed unless brought into the record

by bill of exceptions, signed by the trial

judges: certificate of clerk insufficient. Mor-

gua v. U. S. IC, C. A.J. 148 P 189. Objection

that charge was not supported by evidence

will not be reviewed where evidence is not

before the court. Resese v. State \[Tex. Cr. App.J 102 SW 114. No bill of exceptions

having been reserved to charge on a particular ground, either by bill or motion for

new trial, error in charge on that ground

cannot be reviewed. Jackson v. State \[Tex. Cr. App.J 103 SW 34.\]. An assignment of error

for enticizing use of a particular word in

a charge without setting out the part of

charge referred to cannot be considered.

Beaudrot v. State, 126 Ga. 579, 55 SE 592.

Where none of the instructions objected to

were set out in appellants' brief as

required by supreme court Rule 10, par. 3, 22+

INDICITMENT AND PROSECTION SS 17F. 10 Cur. Law.

fined to the record proper,18 and if no error appears therein, the judgment must be affirmed.16 A bill of exceptions must be complete in itself,17 it must explicitly state

Tex. Ct. Rep. 781, 98 SSV 1055. Nor can the

**16.** No bill of exceptions being taken and overruiling of motion for continuance. An

no assignment of errors filed, there is no exception to the ruling is insufficient. Id.

ground of appeal. Merritt v. State, 1 Ga. Assignments of error will not be considered.

Appl. 186, 67 SE 946; State v. Stevenson, 117 in absence of statement of facts. Palz v.

Lha. 937, 42 S 432; State v. Coleman, 117 La.

State \[Tex. Cr. App.\] 102 SSV 856. Laws

973, 42 S 471; State v. Chitty, 191 Mo. 652, 90 193. p. 47, expressly provides that a demmer.

SW 728. Where record discloses no bill of re- or to an information can only be presented

exceptions, no motion in arrest, no assign-by b bll of exceptions. State v. Gordon, 35

ment of errors, and an inspection of the record shows no reversible error in the pro- or-

Mont. 458, p. 178.

**22.** Errors of the court to which no bill of exceptions, judgment will be affirmed. State exceptions was preserved cannot be consid-

W. Barieg, 118 La. 143, 42 S 727. Where no

ered. Newly v. State \[Tex. Cr. App.\] 98 SSV 831.

will of exceptions is reserved, instructions

SVW 837. Error in not postponing case. Hor-

not criticized and statement of facts not ton v. State \[Tex. Cr. App.\] 98 SSV 837.

brownit up. Graham v. State \[Tex. Cr. App.\] 99 SSV 846. Judment will be aff-

low, errors depending there cannot be re-

firmed where record contains no statement

viewed. Newly v. State \[Tex. Cr. App.\] 98

of facts, no motion for new trial, and no

SW 837; Robinson v. State \[Tex. Cr. App.\] 98

bll of exceptions. State v. Minuccan \[Mo. 103 SSV 890. It will be presumed that the

App.\] 105 SW 826; Milton v. State \[Tex. Cr.

water of a jury was in writing. Kaharovo-

App.\] 98 SSV 1055; Harris v. State \[Tex. Cr.

ski v. People, 113 Ill. App. 488.

Order of special venzive will not be re-

C. App.\] 102 SW 113. Where no errors are

viewed where not embraced in bill of exceptions. State v. Gordon, 196 Mo. 186, 95 SSV 420. For same reason order overruiling

Chance v. State \[Fiz. 44 S 1013. When no

motion to disqualify sheriff and appoint an

other to summon special venzive will not be

pilant, and the record discloses no bill of

reviewed. Id.

exception, no motion in arrest of judgment,

15. Only the record proper is reviewable

and no errors are patent on the face of the

where no bill of exceptions is filed. State

v. McGinnis, 203 Mo. 590, 102 SW 471; State

Anderson, 118 La. 125, 42 S 721.

v. Lakin, 203 Mo. 548, 102 SW 479; State v.

v. T. A bill of exceptions to the introduction

Keene, 203 Mo. 580, 102 SW 479; State v.

of testimony must be complete in itself and

Granger, 203 Mo. 586, 102 SW 498; State v.

show that there was no contingency upon

Heflin, 191 Mo. 178, 98 SSV 1034; State v.

which the evidence was admissible. Bill

Berry, 206 Mo. 648, 105 SW 598; State v. Ter-

of exceptions in local option case held in-

ro. 199 Mo. 256, 97 SSV 893; State v. Near-

sonficient to present objection to evidence

ney, 199 Mo. 167, 97 SW 894; State v. Phil-

but consignment of beverages were not

199, 193 Mo. 278, 97 SW 874; State v. Ord-

shown to have been alcoholic. Stovall v.

ray, 200 Mo. 29, 98 SW 1; Mundine v. State

State \[Tex. Cr. App.\] 17 Tex. Cr. App.\] 97 SW 490. Where an ap-

SW 92. Also insufficient to show that cer-

peal is taken on the judgment roll alone

tain evidence was not admissible as res ges-

as defined by Pen. Code, 82, in a instruction

tag. Id. Where a bill of exceptions is not

on the point and explain the ruling,18 and must contain sufficient of the evidence and proceedings to affirmatively show the error.19 A bill of exceptions is construed most

of purported testimony and instructions in the transcript by the clerk cannot take the place of a bill of exceptions. Cogburn v. Combs v. Combs v. Com. \[Ky.J. 104 SWY 270. A reital State \[Ark.\] 99 SWY 70. Notation on docket after application for continuance "Third ap-

was overvuled does not present any ques-

plication for continuance overvuled to which

for review. Gains v. State \[Ala\_\] 43 S defendant excepts" is not a bill of exceptions, and cannot be considered. Dickey v. State \[Tex. Cr. App.\] 98 SWY 269.

**Bill of exceptions held sufficiently explicit**

to raise objection that divorced wife of de-

fendant had been allowed to testify to

comparing of refusal to place witnesses

conversation which took place while they

under rule must show exception taken to

were married. Cole v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 28, 101 SWY 218. Bill of exceptions in local option case held to show

testified and that the latter might have

with reasonable certainty that express con-

fasements referred to in another bill of exceptions contained whiskley. Stovall v. State

\[Tex. Cr. App.\] 17 Tex. Ct. Rep. 29,

106. Defendants objection to being put on

State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 29,

97 SWY 92. Bill of exceptions held not to

show motion to quash panel was made

be reviewed where the record does

fore jury was sworn. Delmont v. State \[Wyo.\] 88 P 1102. Record held to show that

original and the copy served on him was.

Code 1896, 81 5004, 5005, relative to drawing

Parham v. State, 147 Ala, 57, 42 S 1. Where

of jury in capital case, had been compiled

the record does not show original affidavit

with. Brown v. State \[Ala\_\] 48 S 194. Re-

cital in transcript as to drawing of jurors is

the action of the lower court in denging

conclusive as to regularity of selection. People v. Collins \[Cal. App.\] 92 P 513.

thearged only manslaughter and the amended

18. Court is not required to read the state-

one charged a higher grade of crime. State

ment of facts to ascertain whether apellent

v. Coleman, 193 Mo. 112, 97 SWY 574.

has a bill. Hardin v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 231, 103 SWY 401. Exceptions

of exceptions to refusal of continuance for

whether in bill or statement must be sufficently full and complete to direct court's

to die should show that when it was filed

attention to alleged error without requiring

witness was still living. Young v. State resort to other parts of the record. McCue

\[Tex. Cr. App.\] 19 Tex. Ct. Rep. 178, 102 SWY

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 178, 103 SWY 888.

19. An exception will not be considered

unless the record shows the ruling chal-

lenged erroneous. Ware v. U. S. \[C. C. A.\]

\[Tenn.\] 104 SWY 225.

154 F 577. Bill of exceptions must state

Examination of witnesses: Bill of exceptions to admission of certain questions on

its admission is objected to solely on that

ground that they were not proper cross-

ground. McKenzie v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 149, 102 SWY 414. After

should state that they were not cross-ex-

conviction of violation of an ordinance in

amination on original questions or should

order to make point on errorint that the

state the testimony so the court could de-

ordinance was not in force when the alleged

termine that fact. Gabler v. State \[Tex. Cr. App.\] 19 Act was committed, accused must show the

App.\] 16 Tex. Ct. Rep. 428, 95 SWY 521. Bills

date of the ordinance and facts fixing the

time of the act. Bell v. Forsyth, 126 Ga.

443, 55 SE 230. Objections to evidence ad-

mitted cannot take the place of a state-

ment of facts. Allegations of bill of exceptions held insufficient to present for re-

s46. A bill of exceptions to cross-examination

view ruling admitting evidence. Holmes v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 155,

cumstances to point out the error is insuffin-

102 SWY 408. If the evidence is not in the

record, matters depending thereon will not

be considered. Commonwealth v. Miller, 31

v. State \[Ala\_\] 43 S 115. Bill of exceptions

Pa. Super. Ct. 317.

**Sufficiency of Record to Present Error,**

\*\*Miscellaneous errors: Assignment of error

hold not to sufficiently set forth the facts to

enable the court to pass upon it. Sasser

### 226.

INDICMENT AND PRODUCTION $ 17F. 10 Cur. Law.

**Willis v. State \[Tex. Cr. App.\] 14 Tex. Ct.**

**Fep. 870, 90 SWV 1100. Sustaining objection to question will not be reviewed where bill**

\*\*Tex. Ct. Rep. 780, 98 SWV 847. Where evil-

\*\*of exceptions does not show what the wit-

**ress would have answered. Tune v. State**

\*\*\[Tex. Cr. App.\] 18 Tex. Ct. Rep. 449, 94 SWV 331. Where the court sustains objection to

**cross-examination, the record must show that counsel stated to the court the object**

\*\*and purpose of the testimony, or it cannot be reviewed. Jackson v. State \[Tex. Cr. App.\] 172, 58 SE 271. Objections to testimony will not be reviewed where bill of exceptions fails to show in what manner the testimony was prejudical. Serna v. State \[Tex. Cr. App.\] 290 Tex. Ct. Rep. 133, 105 SWV 755. Objection to testimony not reviewable

**where no reason for it appears in the bill of**

**exceptions. Porch v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 463, 99 SWV 102.**

**The exclusion of offered testimony will**

**not be reviewed unless the record discloseses the evidence proposed to be introduced.**

**State v. Zorn, 202 Mo. 12, 100 SWV 591. Rejection of declarations of one conspirator against another cannot be reviewed unless**

\*\*if appears when they were made. Common-

\*\*wealth v. Harrigs, 30 Ky. L. R. 510, 99 SWV 41. A bill of ex-

**348. Retusal to admit certain evidence will**

**not be reviewed where bill of exceptions does not show its materiality. Sue v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 128, 105 SWV 804. Assignment of error on rejection of**

\*\*evidence is not well made unless the evil-
**dence rejected be set out. Morris v. State \[Ga.\] 59 SE 223. Exclusion of testimony cannot be reviewed unless it appears that**

**the answer expected was stated at the time.**

**Carter v. State \[Ga. App.\]**

**is SE 532. Exclusion of testimony**

\*\*clusion of a question asked a medical ex-

**per cannot be reviewed where record does**

**not show what was intended to be proved. State v. Penna, 35 Mont. 535, 90 P 187.**

**where defendant objected to testimony of**

\*\*a witness as not germane to portion of his

**testimony offered by defendant, but 'the record does not show that it was different,**

\*\*it cannot be reviewed. Corpus v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 225, 102 SWV 1152. Where record did not show detail

**of transaction which court excluded, ruling**

**could not be reviewed. Bice v. State \[Tex. Cr. App.\] 170**

**App.\] 18 Tex. Ct. Rep. 61, 100 SWV 849. Bill**

\*\*of exceptions on refusal to allow stengram-

**new trial will be granted. Baker v. State**

**pher to be called to state the testimony of a witness where a controversy arose over it,**

\*\*insufficient because not showing what the

**estimony was. Yangu v. State \[Tex. Cr. App.\] 16**

**settimony was. Yangu v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 96, 101 SWV 445. Where**

**bill of exceptions to rejection of testimony of**

\*\*of a child fails to show the evidence regard-

**ing the capacity of the child, the alleged error will not be reviewed. Keith v. State \[Tex. Cr. App.\] 16 Tex. Ct. Rep. 516, 94 SWV 1044. Sustaining of objection to question**

**cannot be reviewed where record does not show what answer was expected. Parham**

**v. State, 147 Ala. 57, 42 S. I. Evidence excluded should be set forth in order that the**

\*\*court can determine whether it was prop-

**early excluded. Davis v. State \[Fla.\] 44 S.**

\*\*757. Assignment that court erred in sustaining objection to question asked a wit-

**ness unless what was proposed to be proved**

\*\*is shown. Coffman v. State \[Tex. Cr. App.\] 17 Tex. Ct. Rep. 701, 103 SWV 1128. Overall-

\*\*then, it cannot be said that remarks were

**ing of objection to introduction of warrant**

**cannot be reviewed, it not being set out in**

**\[Ind. T.\] 104 SWV 604.**

**theo**

**of**
**theo**
strongly against the exceptor.\[20\] Recitals therein prevail over assignments of error.\[21\]

_Judicial notice_ See * C. L. 261 will not be taken of another case forming no part of the record of the case on trial,\[22\] nor of the existence of local option in the county.\[23\]

_Amendment and correction._ See * C. L. 261.--Where a bill of exceptions is so made up as not to state the truth, it may on proper showing be amended.\[24\] But a bill of

- of exceptions to refusal of court to instruct
- are wrong. Sue v. State \[Tex. Cr. App.\] 20

Jury to disregard remarks of counsel, not * thusuring that a written request was pre- * In Idaho all written charges presented and * instead, insufficient. Hill v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 772, 100 SW 403. Though alleged improper remarks of counsel were made a ground for new trial, the error will not be reviewed unless the mat- * for compliance of is contained in the bill of exceptions. Sue v. De Witt, 191 Mo. 51, * so SW 77. Alleged objectionable remarks of counsel sought to be preserved by aff- * of exceptions only and not by bill of exceptions not * state v. O'Brien \[Idaho\] 88 P 245. No in- 100 SW 416. Where there was nothing in the record to show that the district attorney * performed on failure of defend to * testify, error was not shown in refusal of * butings on motion for new trial: On ap- * of exceptions that the district * was not authorized to make such * comments. Searles v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 873, 105 SW 191. Argument of counsel cannot be reviewed where the record does not show what they were or * that they were prejudtical. State v. Biango * \[N. J. Law\] 68 A 125. Record on appeal held too indefinite to warrant reversal on * the ground that state's attorney referred to * failure of defendant to * the state's attorney referred to * state \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 237, 103 SW 394. * \[Misecond of jury: Affdavits made after trial to determine whether a juror had made statements during deliberations in conflict with those made on his woir dire * with not be reviewed where voir dire ex- * a simulation is not in record. Fedderum v. State \[Neb.\] 113 NW 127. More statement in bill of exception that juror was objectionable to * a speculant does not show that he was. Cam- * forceptions that objection was made to * a juror, but what objection was not stated, * the juror was exceptions when settled, signed, and filed, becomes a part of the record and stands on precisely the same footing as any other record," and where parties have submitted a cause for decision on a record as made up, neither of them can, after the decision, cause a new or amended record to be substituted so as to add to or take from the questions presented.26 A bill of exceptions filed and made a part of the record cannot be amended by consent,27 but only by a nunc pro tune order,28 and to justify the making of such an order, the record must in some way show the facts authorizing the entries to be added thereby.29 Such entries cannot be made from the memory of the judge nor on parol proof from other sources.30 The trial judge has power to correct errors in the stenographic report of his charge even after it has been filed as part of the record under his approval.31 An appellate court has no power to supply any lost portion of the record,32 nor to alter or correct the records of the lower court.33 Afflavits not a part of the record when the bill of exceptions is certified cannot be made a part thereof by order of the judge.34 Evidence not discovered until after hearing on appeal cannot be made part of the record on rehearing.35

Footnote 33: The 10 Cur. Law. INDICITMENT AND PROSECTION SS 17G. 229 murder and death sentence has been taken by counsel assigned to accused by the court, and counsel delay for over a year, without explanation to serve the proposed case and exceptions, their assignment will be revoked and new counsel assigned to accused. \[41\]

\_Assignments, briefs, etc.\_Soo & C. L. 201-Assignments of error must be predicated upon matter in the record, \[42\] and must be presented by brief or argument. \[48\] They must be definite and certain, \[44\] and must point out the specific error complained of. \[45\] A general objection is insufficient unless erroneous on any ground. \[46\] Assignment of error embracing more than one point will not be considered. \[47\] The brief must be made up in the manner prescribed. \[48\]

\_Dismissal.\_See & C. L. 202.--The right of appeal being personal, defendant may waive it and have an appeal dismissed, on filing affidavit asking it. \[49\] The appeal will be dismissed where the appellate court is without jurisdiction, \[50\] or where it appears that the appeal was prematurely taken, \[51\] or the bond is defective, \[52\] or where no brief is filed within the required time, \[53\] but not where it has been properly

41. Code Cr. Proc. **SS 336**, 539, require an & F 330. "Points and authorities" portion of appeal from death sentence to be argued which refer to failure to give re-within six months unless time is enlarged witness to whom requested instruction was &0 NE 1029. \[54\]

01. Oliver v. State \[Fla.\] 44 & 712. Matters not shown by the record but only appearing in argument not considered. People v. McC-Pherson \[Cak.\]. 91 P 1988. \[55\]

01. Assignments not presented by brief or argument are considered as abandoned.

perinment, and insident questions, to goem-Hines v. State \[Ga.\]. 91 S 85 E 54. Assignments which are not argued and as to which no reference is made to any particular ruling not revived. State v. John-son \[Vdash.\] 91 P 949. Grounds of motion for new trial not urged in the brief will be treated as abandoned. Horton v. State, 128 Ga. 57 SE 224. Objections not discussed are considered walved. Sanderson v. State \[In.\] 82 NE 525. Points made in the record but not referred to in the brief will be considered to have beenaban-dominated.

44. A general objection that evidence is minimal will not be considered unless it doned. Graves v. State, 127 Ga. 46, 56 SE 172. Errors assigned but not mentioned in printed argument are deemed abandoned.

Wilcox v. U. S. \[Ind. T.\] 103 SW 774. \[77\]

47. Commonwealth v. Campbell. 31 Pa. No brief being filed by appellent, appel-Date court can look only to grounds filed

01. By rule 14 every brief must contain a in lower court in support of new trial statement of the points and authorities re-to ascertain errors assigned for reversal of judgment. Dowdy v., Com., 31 Ky. L. R. 33, 101 SW 338. Where motion for new trial is based on several grounds, only those ar-guided will be revoked. Williams v. State \[Yv.\] 88 P 617. \[Fla.\] 43 S 428. Objection to charge is deemed waived where not pressed but merely is assigned pro forman. Powere v. State, 117 Tenn. 363, 97 SW 815. Overwalling of motion, not assigned as error, will not be reviewed. Church v. Ter. \[N. M.\] 91 P 720. Where there were demurrers to the entire indicment, 485. \[55\]

01. The driver to the last count was relied on in the appellate court, that one only was considered. Fletcher v. Com., 106 Va. 840, 66 SE 149. \[56\]

01. Assignments of error must be definite and certain or they will not be considered. Fargerson v. State, 128 Ga. 27, 57 SE 101. \[57\]

01. An assignment of error in the remarks of the trial judge is defective for failure to point out the alleged prejudicial rulings and remarks Miller v. Ter. of Okl. \[C. C. A.\] 149

01. Appeal dismissed where appellant fails
    230 INDICMENT AND PROSECTION SS 17H. 10 Cur. Law. granted.${}^{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text

## 10 Cur. Law. Indictment and Prosecution SS 17H. 231

which defendant was prosecuted may be reviewed though not presented below,\[80\] but not questions which go only to the irregularity in an indictment.\[70\] In capital cases an appellate court will consider a record which in less important cases it would disregard.\[71\]

Every presumption is in favor of the regularity of the proceedings in the lower court,\[72\] and on a silent record or on one which does not disclose all that transpired in the trial court it is presumed that an accused was tried on an appropriate indictment,\[73\] that the jury was properly instructed,\[74\] that rulings on the admissibility of evidence were correct,\[78\] that officers have properly qualified\[76\] and discharged their

dictment may be raised for the first time

presumed on appeal that the court charged on appeal from conviction of a misdemar.

Grily and correctly. Green v. State (Tex. State v. Mikel, 125 Mo. App. 287, 102 SW 15.

Cr. App.) 13 Tex. Ct. Rep. 1025, 89 SVW 838.

When assault was made with a rock and theorizing a criminal prosecution may be questioned at any stage of the proceedings,

that one of the elements of assault to kill Commonwealth V. Hana \[Mass.\] 81 NE 149.

Two. Defendant cannot object for first time on appeal that forearm of grand jury failed to indorse on indictment that judge ordered

special venture of petit jurors instead of causing list selected by commissioners at pre-

Where evidence is not before the court on

ceding term to be opened and jurors thus selected. Beard v. State, 79 Ark. 293, 95 SVW 895, 97 SVW 67.

The absence of a showing to the contrary, it

its face that it is incomplete, it will not be

unashed not to discuss the case until finally

will carefully examine the record and determine the sufficiency of evidence. Clark P 650.

V. State (Nc.) 113 NV 211. On appeal from

Construction of murder in the first degree, the court will examine matters of exception as

defense and the evidence is not before the irregularities in the transcript. State v. court, State v. O'Brien \[Idah0\] 88 P 238; State v. O'Brien \[Idah0\] 88 P 425. Where the record fails to show what action was taken relative to a particular matter. In re Wright,

74 Kan. 406, 86 P 460, 89 P 678. Though the caption of the indictment shows that it was returned in the court of over and terminer

and the trial was had in the court of quarter sessions, it is presumed that all things necessary to give jurisdiction were done.

State v. Davidson \[N. J. Law\] 86 A 945.

Presumption is that charge was full and correct and that jury found facts necessary to constitute the crime. State v. Martin, 141

N. C. 822, 83 SE 874.

78. Where the court erred in trying a person on two informations for two separate offenses, it cannot be inferred on appeal that

because the first witness for the state was connected with the first offense defendant

was tried on the information as to such offense. People v.

Fense. People v. Spler, 105 NYS 741.

74. Where the record does not contain all instructions, it is presumed that the jury

were properly charged on every branch of the case and that erroneous instructions

shown were correctly modified. Johnston v.

U. S. \[C. C. A.\] 164 F 445. Where instructions are not contained in the bill of exceptions,

it is presumed that full and proper instructions were given. Commonwealth v. Ashdenowski \[Mass.\] 82 NE 13. Where the record

does not contain a written charge, it will be

by

the correct answer to the question of interest.

The correct answer to the question of interest is presented in the following section.

### 233 INDITMENT AND PRODUCTION SS 17H. 10 Cur. Law.

duties,\[71\] that the verdict was authorized by the evidence,\[78\] and that all other proceedings were proper and correct.\[79\] Regularity cannot be presumed when the record

quently becomes relevant, it should be re-ceived. Feddern v. State \[Neb.\] 118 NW 127. Offered, and it will be presumed that it would then have been received. Horton v. State, 128 Ga. 26, 57 SE 224.

76. In absence of showing to contrary, it is presumed that one appointed special prosecuting attorney under Rev. St. 1889, 4 # 4958, qualified in obedience to statutory requirements. State v. Willson, 200 Mo. 23, 98 SW SW 68. It is presumed that a person named as bahill of the grand jury was duly sworn and qualified to act. Ziegler v. State \[Ga. App.\] 58 SE 1066.

01. The presumption is that those adminis-tcring the jaw have properly discharged their duties, and against misconduct, until the contrary is made to appear. Montgomery v. State \[Fla.\] 42 S 894. On a silent record it is presumed that the sheriff served a copy of the indictment and venine on defendant as he was directed. Strickland v. State \[Ala.\] 43 S 188.

01. It will be presumed that evidence authorized conviction, in absence of statement of facts, notwithstanding an erroneous charge. State v. Irish \[Mon.\] 92 S 459: Ingram v. State \[Fla.\] 42 S 894. On a silent reception does not profess to contain all the evidence. Krause v. U. S. \[C. C. A.\] 147 F 442. Presented there was evidence to support the verdict, where no transcript of evidence is furnished and no exception taken to charge under which conviction was held. State v. Burns, 79 Vt. 272, 64 A 1129. On appeal from judgment without bill of exceptions, the suffencey or evidence and correct.\[79\] affirmatively shows an irregularity.\[60\] The fact that the record is conclusive as to verity of its recitals and professes to state all that occurred precludes presumption that something not stated therein in fact did occur.\[81\]

\_Law of the case.\_See S. C. L. 2658-Matters passed on on a prior appeal are the law of the case on a subsequent appeal.\[82\] Instructions given on former trials and approved on former appeals cannot be questioned in subsequent trials and appeals.\[83\] If upon a second appeal the same state of facts is presented as upon the former appeal, the former decision upon the sufficiency of evidence settles the law of the case.\[84\]

_Rulings on matters within the discretion of the trial court_\[85\] such as rulings on motion for a continuance,\[86\] change of venue,\[87\] or for new trial,\[88\] to quash an indictement * as to qualifications of jurors * and conduct of trial in general,\[91\] compe-

80. Order extending time to file blll of ex-ceptons granted after previous extension.\[83\] State v. Turner, 143 N. C. 641, 57 SE 158.\[88\] S. Payne v. State (Ala.) 42 SE 885; Bates SVW 949. In West Virginia it is presumed that prejudice results from the giving of an erroneous instruction, unless it other.\[43\] 43 SE 865; Ferguson v. State (Ala.) 43 SE 86; Threliked V. State (Ga.) 60, 58 SE 158.\[49\] Commonwealth v. Houghton, 31 Pa.\[50\] Super. C. 525; Holmgren v. U. S. 16 C. A.\[51\] 56 F 439. Denial of new trial for inclusion-dout of counsel. State v. Norman \[Iowa\] 113 NWT 340. Motins for new trial and in arrest based on inaccuracies in the order placing local option in effect will not be considered overlooked so important a feature. Id.\[52\] Where no new matter bearing thereon is suggested. Murphy v. State, 131 Wiss. 420, 111 NW 511.\[53\] 533.\[54\] 533.\[55\] 533.\[56\] 533.\[57\] 533.\[58\] 533.\[59\] 533.

tency 92 and examination of witnesses,93 and as to the primary admissibility of evidence,94 will not be disturbed in the absence of abuse of discretion.95 In Kentucky the rule that ruling on motion for new trial will not be disturbed applies to all objections first made on the motion.96

Footnote 95: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 96: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 97: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 98: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 99: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

unless manifestly erroneous.\*8 In like manner the verdict of the jury will be sustained if there is any evidence to support it,\*9 or where the evidence is conflicting,1

State v. Werner \[N. D.\] 112 NWF 60. Denial \*supported by abundant evidence of substantions change of venue on conflicting afflavits \*tial kind. State v. Hogan, 133 Mo. App. 319, as to prejudice. State v.-Hoffman, 134 Iowa, 100 SWV 528, Appellate court will presume 587, 112 NWF 102, Whether confension was that evidence justified verdict of guilty made under influence of threats or fear \*withinc acts 1905, p. 637 was an issue of fact contrary is shown. State v. Allen, 113 La. before the trial court. Thurman v. State \[Ind.\] 82 NE 64. Finding as toempeter \*afterned though evidence was weak, there \*of jurce. People v. Collins \[Cal. App.\] 92 P 513. Finding on misconenduet of jury on conflicting afflavits. People v. White \[Cal. App.\] 86, 57 SE 889. \*90 P 471. Findings on evidence. Mill are concluded by verdict, People v. White ne v. State \[Ala.\] 43 S 194; Irish v. State \[Tex. Cr. App.\] 89 SWV 975. No appeal lies \*from Judgement findings \*named same in trial \*by evidence. Holland v. \*by evidence. State v. Williams, 191 Mo. 205, State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 112, 105 SWV 448. In reviewing a summary conviction \*105 SWV 812. \*98 A finding as to competency of a juror \*with be reversed if manifestly wrong. Dennis v. State \[Miss.\] 44 S 825. \*99 Verdict supported by evidence not disturbed. Lindsey v. State \[Fla.\] 43 S 87; Johnson v. State \[Fla.\] 43 S 430; Kent v. State \[Ga.\] 43 S 773; Allen v. State \[Ga.\] 58 SE 649; Holmes v. State \[Ga.\] 58 SE 255; Rogers v. State, 1 Ga. App. 527, 58 SE 236; Stubbs v. State, 1 Ga. App. 504, 58 SE 236; Malan v. State, 1 Ga. App. 534, 58 SE 265; Hammond v. State \[Ga. App.\] 58 SE 509; Hines v. State \[Ga. App.\] 58 SE 524; Sutton v. State \[Ga. App.\] 58 SE 544; McDuffie v. State \[Ga. App.\] 58 SE 544; McEuffie v. State \[Ga. App.\] 58 SE 549; McEuffie v. State \[Ga. App.\] 58 SE 549; Spapp v. State \[Ga. App.\] 58 SE 667; Lee v. State \[Ga. App.\] 58 SE 107; Lewis v. State \[Ga. App.\] 58 SE 1067; Williams v. State \[Ga. App.\] 58 SE 107; Leduc v. State \[Ga. App.\] 58 SE 1016; Bryan v. State \[Ga. App.\] 58 SE 1016; Bryan v. State \[Ga. App.\] 58 SE 1016; Bryan v. State \[Ga. App.\] 58 SE 1017; Y. State \[Ga. App.\] 58 SE 1017; Y. State \[Ga. App.\] 58 SE 1018; Y. Country \*People, 229 III. 376, 82 NE 391; McNulty v. State \[Ind. App.\] 81 NE 109; Taylor v. Com., 29 Ky. L. R. 563, 98 SWV 1042; Hamilton v. Com., 28 Ky. L. R. 1039, 96 SWV 833; McIntosh v. Com., 29 Ky. L. R. 1100, 96 SWV 917; Stevens v. Com., 30 Ky. L. R. 190, 98 SWV 284; Gibson v. Com., 31 Ky. L. R. 19 945, 104 SWV 351; State v. Smith, 190 Mo. \[76, 90 SWV 440; State v. Urspurch, 191 Mo. \[76, 90 SWV 451; State v. Jones, 191 Mo. 653, 90 SWV 465; State v. Eyermann, 115 Mo. App. 660, 90 SWV 1168; State v. Mathews, 202 Mo. 148, 100 SWV 420; State v. Jeverly, 201 Mo. 550, 100 SWV 463; State v. Yandell, 202 Mo. 646, 100 SWV 466; Bridges v. State \[Ne.\] 113 NWV 1048; Steudule v. Terr. \[Ookl.\] 91 P 1030; Peerc v. State \[ or its determination involves the credibility of witnesses.2 As a general rule appellate courts are without power to review questions of fact.3 If, however, the verdict or finding is clearly contrary to the evidence,4 or indicates passion or prejudice,5 it will not be sustained. That there is no evidence to support a verdict is a question of law and will be reviewed,5 and the findings of the judgment do not preclude the reviewing court from an examination of the record to determine jurisdictional facts."

(SS 17) \_I. Decision and judgment of the reviewing court.\_See & C. L. 264.--The judgment of the trial court will not be reversed for a non-prejudicial error,8 but reversal may be had where the record shows a prejudicial error of law.9 On appeal

Wright \[Ca1. App.\] SS 9P 384. Conviction will

contr is not authorized to reverse a judgment

not be reviewed when justified, though evi-

where there is evidence to sustain it. III-

cence is conflicting and would have war-

nois Cent. R. Co, v. Com., 29 Ky. L. R. 756,

rated another verdict, Myers v. State

96 SWP 467. Where a conviction is affirmed

T(Tex. Cr. App.) 101 SWP 1000. Judgment

by the appellate division, the court of ap-

affirmed where no error of law appeared and

yearlet was well supported by evidence and

of law. People v. Mininge \[X.\] 82 NE 728.

approved by trial court. Davis v. State,

by and the evidence raises a mixed ques-

1 Ga. App. 331, 57 SE 924. Under Crim. Proc.

Act (Act 1894, $ 136), amended by Laws 188,

tion of law and fact not reviewable in the

p. 915, the sufficiency of evidence will not

be reviewed though the certification of the

42 S 494. Where there is evidence to sup-

trial judge brings up the entire record, such

port a verdict but jury decide contrary to

certification not being treated as a writ of

set the verdict aside. State v. Martin, 141

942.

N. C. 832, 63 SE 874. Sufficiency of evidence

will not be reviewed though there is

vill not be disturbed. People v. Gonzalez

ence which if believed would have success-

\[Ca1. App.\] 91 P 1013; Harper v. State \[Ga. App.\]. 58 SE 685; State v. Cook \[Indo\] 88

nor on the ground that state's test-

P 240; McCoy v. U. S., 6 ind. T. 418, 98 SWP

144; Mickle v. U. S. \[Ind. T.\] 98 SWP 349;

State v. Baker \[Kan.\] 90 P 1133; Tompkins

Plummer v. State, 1 Ga. App. 507, 57 SE 968.

v. Com., 28 Ky. L. R. 642, 90 SWP 21; Wells

on appeal, court can only pass on sufficiency

v. Com., 30 Ky. L. R. 504, 99 SWP 218; O'Day

of evidence, not on its credibility. Delk v.

v. Com., 30 Ky. L. R. 848, 99 SWP 391. Select-

State \[Lark\]. 102 SWP 111. There being no

line v. State \[Md.\] 68 A 269: State v. Wili-

liams, 199 Mo. 137, 97 SWP 562; State v. Fogg,

206 Mo. 696, 105 SWP 618; Wheeler v. State

thorize conviction, appellate court has no

\[Neb.\] 113 NWP 253; Haynes v. State \[Tenn.\]

lower to interfere with discretion of trial

105 SWP 251; Bailey v. State \[Tex. Cr. App.\] 19

90 SWP 27; Vick v. State \[Tex. Cr. App.\] 19

Tex. Cr. App.\] 100 SWP 383; Park v. State

100 SWP 384; Calk v. State

T(Tex. Cr. App.) 19 SWP 631; Butts v. State

T(Tex. Cr. App.) 91 SWP 467.

Weak and conflicting. Waller v. State \[Ga. App.\] 58 SE 1106. Verdict is conclusive on

question of insanity. Dischord v. Com., 29

Ky. L. R. 770, 96 SWP 538. Verdict on cir-

cumstantial evidence which is conflicting

will not be disturbed where it is sufficient

to bring the case within the rule as to the

quantum of the circumstantial evidence re-

sulted. State v. Kidwell \[Vov. Val.\] 59 SE

494. Where testimony warranted conviction,

verdict will not be disturbed, though detend-

ant's evidence as to self-defense would have

verdict will not be disturbed, though detend-

der Pen. Code & 1059, though no assignment

warranted a finding in his favor. Loyal v.

State \[Tex. Cr. App.\] 14 Tex. Ct. Rep. 113, 89 P 10 Cur. Law. INDICMENT AND PROSCUITION $ 17J. 237 from a void judgment, the cause will be dismissed.10 Where a judgment of conviction is reversed, judgment discharging the defendant should be rendered only when it is apparent that no other or different evidence can or will reasonably be produced to sustain a conviction.11 An even division of the appellate court constitutes an affirmance.12 Where two or more persons are jointly indicted and tried and a judgment render against all the appellate court may affirm as to one and reverse and grant a new trial as to another,13 but where they join in writ of error and argument, it must be affirmed or reversed as to both.14 In Georgia where the only question brought to the court of appeals is affirmed on certification to the supreme court, the judgment will be affirmed.15 In New York a judgment of the appellate division reversing a judgment of the trial court upon a question of law must itself be reversed where the question of law was not raised by exception in the trial court.16 The court of appeals of Texas has power to correct a judgment which omits statutory requirements,17 and in Tennessee the supreme court will correct an erroneous judgment.18 Where there is doubt as to the meaning of a verdict, it cannot be modified to conform existing statute.18 Except in cases in which capital punishment has been fixed, and the date fixed for same has expired before a final determination of the appeal,20 the supreme court, in Alabama, need not resentence accused upon an affirmance of the judgment or dismissal of the appeal.21 In Missouri where a conviction is affirmed by the supreme court, it is the duty of that court to execute the judgment,22 and thereafter the circuit court has no power to grant a parole.23

(SS 17) J. Proceedings after reversal and remand.See S C. L. 265.--Reversal of judgment and remand of case for new trial generally leaves the court free to proceed as though the case had never been tried, and it may consolidate other indictments with those upon which the first trial was had.24 Where a judgment is reversed be- but there is error in the instructions which, 147 F 442.

cause improperly entered, the cause will not be remanded nor new trial but the judgment will be vacated and the record remanded for entry of judgment in accordance with statute.\[25\] A substantial compliance by the trial court with the mandate of the appellate court on remand of case is sufficient.\[28\] In New York the supreme court, may send a cause back for trial in the county court where the county court transferred it to the supreme court the first,time such court sent it to the county court for trial.\[27\]

**SS 18**.: \_Summary prosecutions and review thereof.\_See * C. L. 265--The city attorney is not bound to obey an order of the common council to dismiss a suit to recover the penalty for violation of an ordinance.\[28\] In case of summary convictions before a magistrate without a jury, the record must show on its face everything necessary to constitute a legal conviction.\[29\] A summary conviction must rest on a specific finding individualizing the criminal act of which conviction is had.\[30\] A defendant who has been convicted before a magistrate of a misdemeanor may file a motion for a new trial upon the ground of any error alleged to have occurred during the trial.\[31\]\_Review.\_See * C. L. 266--The Pennsylvania act of April 23, 1905, relating to appeals from summary convictions, is unconstitutional.\[32\] The time within which a bill of exceptions may be prepared in a misdemeanor case is not less than five or more than ten days from the overruling of the motion for a new trial, if such a motion is filed; and when a proper bill of exceptions embodying the testimony is allowed, signed and filed with the petition in error, it is the duty of the court of common pleas to pass upon the weight of the evidence.\[33\] Where trial is without a jury, the record should state that the court was requested to "rule," not to "instruct itself."\[34\] Where a bill of exceptions in a prosecution before a mayor was duly signed and regularly filed in the common pleas, it is not open to objection in the circuit court on the ground that it was not filed by the mayor or noted on his doeket.\[35\] A mayor loses jurisdiction after rendering final judgment by pronuncing sentence on the defendant, and it is thereafter without authority to fix a time for filing a bill of exceptions.\[36\]

## 18 Instruments

- \[\] **SS 1. Status and Disabilities in General. 23B.** ( 4. Property and Conveyances, 242.
- \[\] **SS 2. Custody, Protection, Support, and Earn-** \*\*SS 5. Contracts, 243.
- \[\] \*\*SS 6. Torts, 244.
- \[\] **SS 3. Stattutes for the Protection of Infants, 241.** ( 241. Crimes Against Children, 241.
- \[\] **SS 8. Actions by and Against, 244.** ( 241. Crimes Against Children, 241.
- \[\] **>trial court, it has jurisdiction though the record is still in the possession of the appeal-** **>trial court subject to be returned within 60 days as provided by statute. Murphy v. State, 131 Wis. 420, 111 NWV 511.** ( 25. Terthune v. Reed \[N. J. Law\] 67 A 180.
- \[\] **>Where a minor is erroneously sentenced to the penitietary instead of to the reformatory, the judgment will be reversed and the case remanded for entry of proper sentence. Neither v. People, 227 Ill. 110, 81 NE 16.** ( 26. Where appellate court reversed a conviction for murder and ordered lower court to sentence for manslaughter, and the lower court sentenced defendant to four years in the penitietary, held it complied with the mandate. Darden v. State, 80 Ark. 295, 97.\*\* ( 449. Supreme court has jurisdiction to send an indictment back to the county court for trial a second time when the county 10 Cur. Law. INFANTS SS 2. 239

Rights and duties as between parent and child,\[37\] powers and proceedings of guardians \[88\] and guardians ad litem,\[30\] are treated elsewhere, also the application to infants of the doctrines of contributory negligence \[40\] and assumption of risk.\[41\]

SS 1. \_Status and disabilities in general.\[88e & C. L. 267\]--In some states the word "minor" is defined by statute.\[42\] The domicile of the infant follows that of the father \[43\] unless the custody of the infant has been judicially given to another.\[44\] The disability statute of Wisconsin exempts minors from the operation of the statute limiting the commencement of actions only.\[45\]

SS 2. \_Custody, protection, support, and earnings.\[46\]--The state as parens patriae may through its proper tribunals and agencies take custody and control of infants \[47\] and incidentally to this control authorize the infants to be bound out to proper service.\[48\] The courts of chancery generally have power to superintend the affairs of infants \[49\] and to provide permanently for their custody,\[50\] and may in the exercise of such power take them from the custody of grossly unfit parents.\[51\] In New Jersey

10. **10**: Cur. Law. INFANTS SS 2. 239

Rights and duties as between parent and child,\[37\] powers and proceedings of guardians \[88\] and guardians ad litem,\[30\] are treated elsewhere, also the application to infants of the doctrines of contributory negligence \[40\] and assumption of risk.\[41\]

SS 1. \_Status and disabilities in general.\[88e & C. L. 267\]--In some states the word "minor" is defined by statute.\[42\] The domicile of the infant follows that of the father \[43\] unless the custody of the infant has been judicially given to another.\[44\] The disability statute of Wisconsin exempts minors from the operation of the statute limiting the commencement of actions only.\[45\]

SS 2. \_Custody, protection, support, and earnings.\[46\]--The state as parens patriae may through its proper tribunals and agencies take custody and control of infants \[47\] and incidentally to this control authorize the infants to be bound out to proper service.\[48\] The courts of chancery generally have power to superintend the affairs of infants \[49\] and to provide permanently for their custody,\[50\] and may in the exercise of such power take them from the custody of grossly unfit parents.\[51\] In New Jersey

10. **11**: **11**: **12**: **13**: **14**: **15**: **16**: **17**: **18**: 240 INFANTS $\\lx@sectionsign$ 2. 10 Cur. Law.

the court cannot remove resident infants from its jurisdiction without their consent, if of suitable age to signify it, except for cause shown.\[52\] The custody of children is primarily in the father if living,\[43\] and such primary right prevails unless relinquished \[44\] or unless the father is unfit,\[88\] and he cannot be deprived of that custody without an opportunity to be heard.\[88\] In determining the right to the custody of a child, the best interest of the child is the controlling consideration.\[57\] Where the child is of mature years, its preference will be given great weight.\[89\] Jurisdiction of custodial proceedings is at the place of the child's domicile.\[89\] Custody decrees are prima facie evidence of the legal right to custody in the person to whom it is awarded thereby \[89\] and are binding on the parties \[90\] until reversed or amended to meet changed conditions.\[42\] In custodial proceedings, the trial court is invested with a broad discretion which is not controllable by the appellate court except when manifestly abused.\[88\]

habens corpus, held repugnant to Const. art.

58. Walker v. Jones, 1 Ga. App. 70. 57 SE 5, 158 8, 16. Ex partete Reves \[Tex.\] 18 Tex. 803: People v. Bishop, 117 App. Div. 445, 102 58. 103 SV7 478. 104. 105. 11. Hamerick v. People, 126 Ill. App. 491. 11. 11.

- 10 Cur. Law. **INFANTS SS 3.** A separation agreement by parents by which the father takes the child but agrees to return it to the mother at her request does not emancipate the child from the control of the father. \[64\] A minor without parents or anyone who stands in loco parents is entitled to contract for and to receive his own earnings as if emancipated. \[65\]
- 11 3. \_Status for the protection of infants.\_See \[65\] C. L. \[271\]--In order to bring himself within the protective clauses of statutes looking to the supervision and control over the contracts, occupation, and conduct of infants and the liberty and right of those who assume to deal with them, a strict compliance with their terms is essential. \[66\]
- 12 3. \_Crimes against children.\_See \[65\] C. L. \[272\]--The abandonment of children in a dependent and destitute condition is criminal in Georgia. \[67\] The word "child" in the Georgia statute for the prevention of cruelty to children is not synonymous with "minor,"\[68\] and whether the infant is a child is a question of fact for the jury. \[69\] A mere ticket taken at a theatre is not in any class named in the New York statute providing for the punishment of any person who admits children under sixteen years of age, not accompanied by parent or guardian, to places named therein. \[70\] The New Jersey statute for the prosecution of cruelty to children does not cover the offense of carnal abuse. \[71\] In Tennessee it is unlawful for one running a pool room to permit a minor to play pool without first obtaining the written consent of the parent. \[72\] Penal statutes of this character should be strictly construed. \[73\]
- 13 3. \_Juccinle courts_See \[65\] C. L. \[272\] for the protection and redemption of delinquent and incorrigible minors are not for the trial of crime, \[74\] the power conferred upon such courts being of the same character as the jurisdiction exercised by courts of chancery over the person of infants, \[75\] and, when properly enacted \[66\] within other constitutional \[67\]
- 14 4. Lanning v. Gregory \[Tex.\] 17 Tex. Ct. **1**: \*\*flict nnnecessary cruel punishment upon any infant or minor child shall be guilty of a misdemeanor with a fine of from $10 to $50 for loss of time and for diminution in his earning power during minority. Manufactures' Fuel Co. v. White, 228 11, 187, $10 **2**: **law1**: \*\*law limitations, statutes creating such courts are held valid." In Utah the child must be found delinquent \[78\] and the parent incompetent or unfit because of his neglect before a child can be made a ward of the state." The ordinary procedure in case of crimes is not a part of "due process of law." \[80\] There is no right to a jury trial \[81\] nor of appeal."

SS 4. \_Property and conveyances.\_See 8 C. L. 212--Chancey has inherent power to protect the property affairs of infants," but no power, save by statute, to dispose of their real estate." A mortgage by an infant is voidable only \[88\] and cannot be disaffirmed before the attainment of majority." Such a mortgage may not be foreclosed until and unless its status shall have been first established as that of a conveyance not subject to avoidance at the will of the mortgage." An infant may ratify a sale of real estate after attaining his majority." In Louisiana notice of a tax delinquency must be served on the minor's tutor." The title to realty by adverse possession cannot be acquired against infants."

amend or modify any other law or section, is not an amending act within the provision of the constitution as to the titles of such acts, although it incidentally affects older laws. Mill v. Brown, 31 Utah, 473, 88 P 609.

432, 80 NE 82. There is no appeal in Utah.

609.

001. Laws Utah 1905, p. 182, c. 117, creating juvenile courts in cities of the first and second class with exclusive jurisdiction over juvenile offenders, is not special legislation (Mill v. Brown, 31 Utah, 473, 88 P 609), nor is that statute unconstitutional as conferring on said juvenile courts jurisdiction and powers previously exercised by district courts (Id.). Section 7 of act relative to the punishing of a parent responsible for the delinquency of a child is unconstitutional in denying the parent the right of a trial as for any other crime (Id.), but as said section in no way affects the other provisions and sections of the act, the rest of the act stands (Id.). Civ. Code, SS 2372-2387, creating special courts for the commitment of infants to institutions, is not violative of the constituational provision contained in Civ. Code 1895, SS 5859, relative to the uniformity of courts.

Kennedy v. Meara, 127 Ga. 68, 56 BE 243.

Act No. 82, p. 134, of 1906, conferring the duties and functions of a juvenile court on the criminal district court of the parish of Orleans, held repugnant to Const. 1898, art.

189, conferring original jurisdiction on said court. In re Parker, 118 La. 471, 48 S 54.

78. Mill v. Brown, 31 Utah, 473, 88 P 609.

01. While Laws Utah 1905, p. 182, e. 117, are creating juvenile courts with jurisdiction to provide for the custody of delinquent children, does not expressly require the court to find as to the competency or neglect of the parent, the act must be construed to require it (Mill v. Brown, 31 Utah, 473, 88 P 609), since Rey, St. 1893, & 82, expressly provides that a parent cannot be deprived of a child unless it appears that he's unit or incompetent to have custody (Id.).

01. Laws Utah 1905, p. 182, e. 117, is not unconstitutional in not providing for arrangement and plea, notice to parent, warrant and arrest of child, or because of the manner of examination and trial, where the child is required to be a witness against himself. Mill v. Brown, 31 Utah, 473, 88 P 609.

01. Dinson v. Drosta. 39 Ind. App. 432, 80 NE 32. Laws Utah 1905, p. 182, e. 117, is not unconstitutional in that the court of 10 Cur. Law.

INFANTS SS 5.

243 SS 5. Contracts.See SS 5. C. L. 271.--The contract of an infant, except for necessaries," is voidable at his option "2" within a reasonable time after majority,"91 and he may re-scind an executory or executed contract at will by restoring or offering to restore what he received thereunder." The duty to make restoration exists only where the minor has received money or property under the contract which he seeks to avoid.95 The law will not allow an infant to perpetrate a fraud by reason of his repudiation of a contract relating to the settlement of a tort." If the person with whom the voidable contract is made cannot make restitution, transactions with innocent third persons will not be opened to reimburse the infant." Continued payments pursuant to the terms of a contract after the infant attains majority do not necessarily amount to a ratification of the contract.98 By statute in South Carolina, the contracts of a minor, except for necessaries, are unenforceable unless ratified in writing after attaining majority.99 In Georgia an infant may make a binding contract in connection with the business in which he is engaged by permission of his parent or guardian.1

set forth in the petition the grounds of de-, kins \[Neb.\] 111 NWV 363), but restoration fense to the action as required by Code Civ. should be made on trial as a condition of Proc. $ 520 held no objection. Id., the judgment (Id.). Where infant repudi-, $1. Civ. Code 1895, $ 3648. White v. Sikes stated contract and returned consideration \[Ga.\] 59 SE 228. An infant is not liable for \[Vib.\] 113 NWV 438.

an executory contract even for necessaries. Textbook Co. v. McKone \[Vib.\] 113 NWV 438.

Where an infant disposes of the considera-, \[Vib.\] 113 NWV 438.

W2. Mortgage note held void and subject to disaffirmance after minor attained ma-, proceeds, there is no ratification of the conjority. Watson v. Ruderman, 79 Conn. 687, tract within the meaning of Civ. Code 1895.

66 A 515. Promissory note for a maze held $ 844, and he may repudiate the contract. vidable by infant during minority. Starr White v. Sikes \[Ga.\] 59 SE 228. Bill for spec-, V. Watkins \[Neb.\] 111 NWV 363. A marriage \[cifle performance setting out these facts is settlement made by an infant femme on the bad on general demurrer. Id. An infant eve of her marriage is voidable. Smith v. who had released a liability for tort held Smith's Exr't \[Va.\] 57 SE 577. An infant's contract relating to the settlement of torts \[fore majority without tendering back the consideration for the release. Worthy v. other business affairs. Worthy v. Jones-, Ville Oil Mill \[S. C.\] 57 SE 634. Acceptance \[v.\] 57 SE 634. Acceptance \[v.\] 58. No restoration required where minor by minor of pass containing release of liability does not bar his action for injuries \[h liability on the pass on which he was travel-, while traveling thereon. Pennsylvania Co., ing. Pennsylvania Co. v. Purvis, 128 Ill. v. Purvis, 128 Ill. App. 367. Upon re-, App. 367.

pudiating his contract of life Insurance and \[v.\] 96. The jury should, where he has exe-, surrendering to the company its policy \[cuted a release for value, inquire to what therefor, an infant may recover the whole \[cited he has really been benefited by the amount of premiums paid by him thereon. consideration paid, and take that into account in finding a verdict in his favor for \[N. S.\] 441.

93. Right to elect either during minority \[C.\] 57 SE 634.

or within a reasonable time after majority. In re Huntenberg, 153 F 768. Payments \[preference by virtue of a bill of sale for ad-, pursuant to the terms of a contract made by an infant after coming of age, but out of her bounty and not in pursuance of any general creditor. In re Huntenberg, 153 F legal obligation, held not to be a ratifica-, 768.

98. Payments held not to be pursuant to \[NE 930. Where an infant did nothing to any legal obligation, but out of the infant's affirm a marriage settlement, but disaffirmed \[bounty.\] Parsons v. Teller, 188 N. Y. 318, 80 soon after her disability was removed and as soon as rights adverse to hers were claimed, she was entitled to have it an.

pudied. Smith v. Smith's Exr't \[Va.\] 57 SE 577.

94. In order to disaffirm, an infant must return so much of the consideration received by him as remains in his possession at the time of such election. In re Huntenberg, 153 F 768; Starr v. Watkins \[Neb.\] 111 NWV 363. A formal and actual tender of the property is not required as a condition precedent when it is known in advance that such tender will be refused (Starr v. Wat * 6. \_Torts.\_See

- C. L. 275

- 7. _Crimes._\* 8. _Actions by and against._\*--In an action against infants, they must be made parties defendant,4 otherwise they are not before the court or bound by its decrees.5 The filing of an answer by a guardian ad litem of infants not made parties defendant is improper and without effect.6 Ordinarily infants must be regularly served with process to validate proceedings in which they are interested.7 In Louisiana a minor cannot be cited or notified except through his tutor.8 Service of process on nonresident minors is required to be made in the same manner as that used in serving nonresident adults under the Oregon statutes.9 Complete jurisdiction over minors is acquired upon service of the summons upon them,10 hence a premature appointment of a guardian ad litem is not a jurisdictional defect.11 The appointment of a guardian ad litem for minor defendants will be presumed to have been based on a showing that the minors had been duly served with process.12 The irregular appointment of a guardian ad litem is not void,13 and the defect may be cured by the ratification of the infant upon attaining majority.14 The misconduct of a guardian ad litem in failing to protect his ward's interests is unavailable in an action

- 8. Any person who has a claim against a Sikes {GA.} 59 SE 228. \**Z*

- C. L. 276. The capacity of infants to commit crime and the place of imprisonment of juvenile convicts are else- where treated. See Criminal Law,

- C. L. 851. \**Z*

- C. L. 276. See, also, Guardians ad Licent and Next Friends,

- C. L. 1549. \**Z*

- They are not so made by a bill for partition which does not name them except as wards of their guardian who is used as such, or show how they are interested (Oneal V. Stimson,

- V. Va. 551,

- S89). \**Z*

- C. L. 276. \**Z*

- C. L. 277. \**Z*

- C. L. 278. \**Z*

- C. L. 279. \**Z*

- C. L. 271. \**Z*

- C. L. 272. \**Z*

- C. L. 273. \**Z*

- C. L. 274. \**Z*

- C. L. 275. \**Z*

- C. L. 276. \**Z*

- C. L. 277. \**Z*

- C. L. 278. \**Z*

- C. L. 279. \**Z*

- C. L. 270. \**Z*

- C. L. 271. \**Z*

- C. L. 272. \**Z*

- C. L. 273. \**Z*

- C. L. 274. \**Z*

- C. L. 275. \**Z*

- C. L. 276. \**Z*

- C. L. 277. \**Z*

- C. L. 278. \**Z*

- C. L. 279. \**Z*

- C. L. 271. \**Z*

- C. L. 272. \**Z*

- C. L. 273. \**Z*

- C. L. 274. \**Z*

- C. L. 275. \**Z*

- C. L. 276. \**Z*

- C. L. 277. \**Z*

- C. L. 278. \**Z*

- C. L. 279. \**Z*

- C. L. 271. \**Z*

- C. L. 272. \**Z*

- C. L. 273. \**Z*

- C. L. 274. \**Z*
  10 Cur. Law. INFANTS SS 8. 245 to set aside a judgment against them.15 Where the guardian ad litem appears and answers for the infants, the court has jurisdiction of them.16 In Texas by statute the court has power to approve of and enter decrees upon agreements or compromises made by the guardian ad litem or attorney of record of a minor if it deems it for the best interests of the minor.17 A judicial sale will not be set aside where minors have been duly served with summons and properly defended by a guardian ad litem regularly appointed.18 A minor has no further time than an adult in which to take the necessary steps to correct errors in a proceeding or judgment in California.19 In New York special guardians may be appointed for infants over the age of fourteen years upon application therefor by surrogates in proceedings for the taxation of legacies.20 A petition for partition of land where some of the joint owners are infants should allege their ages and the persons who have the custody or care of them.21 An action of an infant must be brought by his guardian or next friend.22 Although it is too late after verdict to make the objection that the action should have been brought by the next friend of an infant,23 yet, when judgment for the infant is reversed on appeal, costs will not be entered against it.24 An infant who comes of age pending an action for personal injuries brought by his next friend can have the record amended so as to appear as party plaintiff in his own right,25 but cannot file an amended statement introducing a new cause of action barred by limitations.26 In an action brought 15W Welsh v. Koch \[Cal. App.\] 88 P 604. 21. McQueen v. Grigsby \[Ala.\] 44 S 961. In the absence of fraud, actual or constructive, the discovery that the guardian ad litem did not put evidence certain facts then patent at a former hearing, is not a ground for setting aside a decree against minors on the ground of the "discovery of new evidence." Harris v. Bigley \[Iowa\] 111 Just, and the amended complaint that C. "NW 432. The fact that the guardian ad litem was appointed at the instance of the plaintiff does not show fraud (Id.), nor does the fact that he did not make an active defense if the substantial facts on which the infant's claim is based were fairly before the court (Id.).

16. And they are bound by the decrees entered in the case, Hanford v. Tate, 61 W Va. 207, 56 SE 372. 77. Rev. St. 1895, art. 3488. Court held to have no power under it to withhold a decree in a partition suit where there was no agreement or compromise merely because it was against the minor's interest. Morris v. Morris \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 639, 99 SW 572. 18. Title obtained at a judicial sale held valid. Veakley v. Middleton, 80 KY. L. R. 571, 99 SW 288. A judgment for an infant brought by his guardian will not be reversed because a guardian for the case was appointed under Rev. St. 1893, e. g, 872 (Ann. St. 1906, p. 686), providing that no judgment for a party under twenty-one years of age having appeared by attorney shall be reversed for defects, etc. Padgett v. Smith, 206 Mo. 383, 103 SW 943. 19. Welsh v. Koch \[Cal. App.\] 88 P 604. 20. Laws 1899, e. 672, p. 1481, and Laws 1905, c. 368, p. 821, p. 839, relative to the appointment of special guardians for infants over or under fourteen years of age, confused. In re Jones' Estate, 54 Misc. 202, 105 NYS 932. The failure to appoint special guardians on an appeal held not to out the jurisdiction of the surrogate to tax legacies where the infants were over fourteen and 1 by a parent for personal injuries to a minor child, under the Minnesota statute, the amount recovered belongs to the child, and the parent is trustee.\[27\] In Arkansas a next friend has no authority to receive the money of an infant recovered in an action brought by him for the infant.\[28\] Generally, allegations in a petition against persons under a disability must be proved though not traversed.\[29\] Infancy is a matter of affirmative defense and in no wise reflects upon the sufficiency of a complaint.\[30\] It is held in Kentucky that although the defendant is an infant and a judgment is rendered against him without the appointment of or a defense by a guardian it is not void but erroneous,\[91\] and if the error is apparent on the face of the proceedings the remedy is by appeal,\[32\] otherwise by a petition to vacate or modify the judgment.\[38\]

Informations; Informers, see latest topical index.

Injunction.

Trade and Firm Name, 263, Copy- rights, Trade Secrets, Literary Property, and the Like, 264, Waste, 264. Incorporeal Property, 264. Easements and Rights of Way, 264. Nulsances, 265. Tresspass, 266. Congipracies by Labor Unions, 267. J. Crimes, 268. S. Suits or Actions for Injunction, 270.

- Preliminary Injunction, 274. A. Issuance and Grounds, 274. B. Bonds, 277. C. Dissolution, Modification or Continuance; Reinstatement, 278. D. Damages on Dissolution and Liability on Bond, 280. E. Appeal and Review, 281.
- Derece, Judgment, or Order for Injunction, 282.
- Violation and Punishment, 283. L Interference with Property, Business, or Comfort of Private Persons, 262.

The scope of this topic is noted below.\[84\]

SS 1. Nature of remedy and grounds therefor.\[See $ C. L. 279--A mandatory injunction\[85\] when allowed\[86\] is rarely issued,\[37\] and should not issue except after

27. Rev, Laws 1905, $ 4603. Court does not \[was not void but erroneous. Berryhill v. lose jurisdiction of the trust by a formal entry of judgment of dismissal under agreement\[87\] by 99 SW92. Byradhill v. Holland, 30 Ky. L. R. 831, 99 SW92. Byradhill v. Stanley's Adm?, 30 Ky. L. R. 831, 99 SW92. Byradhill v. Stanley's Adm?, 30 Ky. L. R. 832, 99 SW95.

- Under Code Civ. Prac. $ 618. Berryhill v. Holland, 30 Ky. L. R. 831, 99 SW92. Spradlin v. Stanley's Adm?, 30 Ky. L. R. 832, 99 SW96. Failure to verify the petition by affidavit as required by Code Civ. Prac. $ 520 is not a ground for demurrer. Id.
- It excludes the general rules of equity jurisdiction and practice (see Equity, 9 C. L. 110). Punishment for violation of injunction is also treated in a separate topic (see Contentent, 9 C. L. 640). Topics dealing with the particular rights sought to be protected should also be consulted.
- A mandatory injunction compels the affirmative performance of an act. Carver v. San Pedro, etc., R. Co., 151 F34.
- Under the code in some states, the court cannot issue a purely mandatory injunction. Hart v. Atlanta Term. Co., 128 Ga.
- The infant being served with process and properly before the court, the judgment hearing on the merits or in aid of the enforcement of a prohibitory injunction already allowed.\[38\] A party seeking an injunction must state facts bringing his case under some acknowledged head of equity jurisdiction.\[39\] The granting of an injunction is within the discretion of the court,\[40\] and no injunction will be issued where the court is not indubitably satisfied of the facts claimed for its issuance.\[41\] Courts will balance considerations of relative convenience and inconvenience,\[42\] and ordinarily an injunction which bears heavily upon the defendant\[43\] or would cause serious injury to an individual or the community at large without materially benefiting the plaintiff will be denied and the parties left to their remedy at law.\[44\] Plaintiff must show that

a street where act partly performed. Hart \[danger appears and it also appears that if v. Seattle \[Vash.\] $8 P 205. Motion to have tenant seal up a hole cut in a wall on the theory that it is a continuing wrong denied \[danger that safety of build.\] and ordinarily an injunction which bears heavily upon the defendant\[43\] or would cause serious injury to an individual or the community at large without materially benefiting the plaintiff will be denied and the parties left to their remedy at law.\[44\] Plaintiff must show that

a street where act partly performed. Hart \[danger appears and it also appears that if v. Seattle \[Vash.\] $8 P 205. Motion to have tenant seal up a hole cut in a wall on the theory that it is a continuing wrong denied \[danger if v. Seattle \[danger appears and it also appears that if v. Seattle \[Vash.\] $8 P 205. Motion to have tenant seal up a hole cut in a wall on the theory that it is a continuing wrong denied \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger if v. Seattle \[danger v. Seattle \[danger if v. Seattle \[danger v. Seattle \[danger if v. Seattle \[danger v. Seattle \[danger if v.

he will be injured by the acts sought to be restrained.45 While the court cannot grant an injunction to allay fears and apprehensions of individuals because of threatened acts,46 yet, where there is a threat to wrongfully enter upon one's real estate and take permanent possession thereof and effect a permanent judgment there, the threatened injury is irreparable in itself and will be enjoined;47 so, too, in the event of a threatened permanent interference with water rights.48 And so a ground is presented for injunctive relief whenever there is combination of actual and threatened injury to property, coupled with allegations of facts bringing the case within a recognized ground of equitable jurisdiction, and showing that there is no adequate remedy at law.49 One of the well known grounds of equitable jurisdiction is the want of an adequate remedy at law, and so equity will enjoin wrongful interference with rights or property which cannot be prevented or adequately compensated for at law.50 More

American Tel. & T. Co., 324 III. 266, 79 NE act cannot be maintained unless it allages the insocynency of the defendant or some other showing of cause for equitable jurisdiction. Bill to restrain railroad from bar.49 One of the well known grounds of equitable jurisdiction is the want of an adequate remedy at law, and so equity will enjoin wrongful interference with rights or property which cannot be prevented or adequately compensated for at law.50 More

American Tel. & T. Co., 324 III. 266, 79 NE sees the insocynency of the defendant or some other showing of cause for equitable jurisdiction. Bill to restrain railroad from bar.49 The only thing that the defendant is the legal private right in that part of the way which would be vacated by the construction of the elevated road. Roberts v. West Jersey & S. R. Co. (N. J. Eq.) 65 A 46b. Trade Dollar Consol. Min. Co. v. Fraser \[C. C. A.\] 148 F 585. Threatened breach of contract. Selma Water Co. v. Selma, 154 F 138. Trade Dollar Consol. Min. Co. v. Fraser \[C. C. A.\] 148 F 585. Threatened acts of defendants in taking water from a stream just above complainant's dam would lessen the efficiency, be continuing in Its nature, and possibly destroy the complainant's plant. Trade Dollar Consol. Min. Co. v. Fraser \[C. C. A.\] 148 F 585. Threatened breach of contract. Selma Water Co. v. Selma, 154 F 138. Trade Dollar Consol. Min. Co. v. Fraser \[C. C. A.\] 148 F 585. Threatened acts of defendants in taking water from a stream just above complainant's dam would lessen the efficiency, be continuing in Its nature, and possibly destroy the complainant's plant. Trade Dollar Consol. Min. Co. v. Fraser \[C. C. A.\] 148 F 585. \[C. C.

## 10 Cur. Law. Injunction SS 1.

949

injustice due to a defect in the law does not give ground for equitable relief by injunction \[51\]. The adequate remedy at law to preclude equitable process must be equally complete, practical, and efficient with that remedy \[52\]. Equity has jurisdiction to grant injunction to avoid multiplicity of suits, dependent, however, upon the circumstances of each particular case \[58\]. Some courts hold that one seeking an injunction must show that he will suffer irreparable injury unless relief is granted \[54\]. To show that damages which are alleged to be irreparable are merely speculative is not sufficient to give jurisdiction \[55\]. Insolvency of the person against whom relief is sought is rarely sufficient to grant jurisdiction though some courts have granted injunctions on this ground where the insolvency of the defendant would have rendered any action against him fruitless where the remedy at law was for money damages \[56\]. The remedy may be extended by statute \[57\]. The invasion of a constitutional right remedy, Beekman v. Marsters \[Mass.\] SS 10 been committed by the same parties, and that NE 817. The right granted to a railroad to connect with that of another and to run over damages for such trepassages, and that its trains thereover may be enforced by an injection, for there is no adequate remedy at law was brought, do not state an air law for the denial of the right. Union R. Co. v. Canton R. Co. \[Md 1 6 5 4 09\]. Where a palpable fraud has been practised in the election of corporation officers, and insurges are about to take possession of the property in violation of all justice, equity will sometimes interfere to prevent them on the grounds of no adequate remedy at law. No beer but a certain brevet to be sold on the premises. Jos. Schilt Prek. Co. v. Enjoin enforcement of execution. Security Mt. Life Ins. Co. v. Ress \[Neb.\] 106 NW 1087. But contra, see, 1037. Lack of an adequate remedy at law \[NYS 454\].

justifies equity in a suit by a successful defendant in a patent infringement suit in enjoin the defendant in the sought to enjoin use of streets by another prior suit from interfering with the former \[51\]. Tacoma R. & Power Co. v. Pacific business by suing his customers for an altered. Taca. Co., 155 F 259. Equity may protect a leged infringement of the patent because of their deadline in the patented object of the dis disturbance upon the ground of irreparable prior suit. Kessler v. Eldred, 206 U. S. 285, 51 Law Ed. 1065. Where plainfim in trees not to exceed the maximum fixed therein for a pass to try title sequestered the land \[52\]. Of the reason why the defendant repelved it. plainfim may will be enjoined. City of Bessemer v. Besse-enjoin defendant from interfering with mer Waterworks \[Ala.\] 44 863. May en-bis use of wells thereon to water cattle.

join enforcement of statute which would de-for defendant's repelvin bond covered only \[53\].

graves complainment of property without due damages to the land. Buchanan v. Wilburn process of law, but this alone does not enclose to a temporary order of injunction un-sSW 841.

51. Determining title to property by law \[54\]. W. Winnert, 155 F 834.

entilled some hardship in the matter of ex-pense, and the statute did not provide that held to show no definite damage though de-in the proceedings a bond should be given to \[6\].

fedant was insolvent, since it might be protect certain claims. Cicero v. Scaife \[Ga.\] 58 SE 850.

52. Mendenhall v. Jewell County School Dist. No. 83 \[Kan.\] 90 P 713. Unless a legal

stock pending an action of specific perform-remedy is so clear, practical, and enfilent

ance for its transfer where the defendant is that the ends of justice may be reached as insolvent. Ran v. Seidenberberg, 53 Misc. 386, readily as in equity, the granting of an injunction is proper. Not adequate in case of client to give equity jurisdiction of a suit to threatened cloud on title. Hatfield v. Ma-honey, 39 Ind. App. 499, 78 NE 408, 1086.

53. Whittaker v. Stangvick, 100 Minn. 386, 111 NW 295. Flowing of lands with water

continuity or at frequently recurring inter-vals. Cobla v. Ellis \[Ala.\] 42 S 751. Enjoin

protection of an action for slander pending

decision of similar action by supreme court. State v. Riley \[Mo. App.\] 105 SW 698. Allega- tions in a bill to restrain trespasses upon timber lands that several messages have does not give an absolute right to an injunction." The mere fact that an act is in violation of law, or even that it is criminal or immoral will not warrant an injunction."99 It is not sufficient ground for an injunction that obedience to it would not hurt the defendants, for the mere fact of the issuance of the injunction stigmatizes them as having done or threatened to do some illegal act." Equity is without jurisdiction to enjoin the exercise of a political power,"91 but if there is not a constitutional right to exercise the political right and property rights might be affected and irreparable injury done, the power to issue an injunction might be exercised, but only with the greatest caution." Right to an injunction may be lost by laches or acquiescence."92 Delay, however, short of period of statute of limitations, does not prevent an injunction of a serious invasion of a valuable right,"94 nor does delay in protesting against the invasion of legal rights where no equities arise in favor of the trespasser prevent granting injunction against its continuance."94 Parties in pari delicto cannot obtain equitable relief by injunction."94

## 2 Particular occasions for injunction; who and what may be enjoined.

### In general.

See 8 C. L. 284.-Equity will prevent by injunction the threatened invasion of property rights and protect a party from exposure to the risk of litigation,"94 and will preserve the status of property in dispute pending litigation."95 Every injunction is grounded on general rules growing out of the nature of the remedy "96 and

95. Defendant entered upon land without first condemning under the mistaken belief (SW7 11. Where a city has the right to regu- that complainant would accept compensation late telephone rates and passed an ordinance to be agreed upon. Menge v. Morris & E. R. Co. 11. Y. Eq. 67 A 1028.

01. Bill to enjoin husband from cohabiting with another woman. Ellis v. Ellis, 55 Misc. 34, 106 NYS 217.

01. International Register Co. v. Recording Fare Register Co. \[C. C. A.\] 151 F 199.

01. Cannot enjoin the certification by the clerk of ballots cast at an election illegally (Loos Angeles, 155 F 564.

held. Vickery v. Wilson \[Colo.\] 90 P 1034.

Right to vote. Parler v. Fogle \[S. C.\] 59 SE 707. A court of equity has no power or jurisdiction to restrain or enjoin the constitutional convention, its officers, or delegates from exercising any of the rights, powers, and obligations confended to it by congress or the people (Walck v. Murray, 18 Oklah, 712, 91 P 238; Frantz A. Autry, 18 Oklah, 661, 91 P 193), nor can the powers of the court be invoked to restrain the submission of the constitution to the people in advance of its adoption and ratification by the people and its approval by the president of the United States on the ground that the constitution or any of its provisions is unconditionally or that the convention acted in excess of its lawful powers (Id.).

97. Parler v. Fogle \[S. C.\] 59 SE 707.

01. Restriction that no manufacturing be carried on on land. Complainant had not objected for five years and was held to have lost her right to prevent the carrying on of the business. Leaver v. Gorman \[N. J. Eq.\] 67 A 111.

01. Dam which caused overflow of complainant's land had been built for three or four years. Cobia v. Ellis \[Ala.\] 42 S 751.

01. Burzil V. American Tel. & T. Co., 224 Ill 266, 78 NE 705.

01. Complainant allowed defendant to obtain judgment against him in order to obtain jurisdiction over B., it being agreed that execution should not be enforced against him. This was a fraud on B. and the court, and enforcement of execution will the main principles of equity.76 Statutory injunctions are allowable in particular situations or for the protection of particular rights.71 The question who may be enjoined is usually reducible to one of parties,72 or one of the nature of the remedy,73 or one of the nature of the particular wrong.74

(SS 2) \_B. Actions or proceedings.\_See 8 C. L. 285.--Whether one court has jurisdiction to enjoin proceedings in another court of co-ordinate jurisdiction is unsetiled.75 The possession of property by one court cannot be interfered with by another.76 Equity may enjoin proceedings pending or threatened in another court to prevent oppressive and vexatious litigation especially when not brought in good faith,77 and to that end will act upon parties within its jurisdiction with respect to an action in a foreign 78 state. The prosecution of an action at law will not be enjoined for matters which might be asserted in defense thereto,79 but only where there is a defense which can be asserted only in equity,80 or a party is entitled to some relief which can be afforded only by a court of equity.81 Actions jeopardizing the status quo may be restrained pending the determining of rights therein.82 Equity will en

70. See Equity, 9 C. L. 1110.

01. See topics treating of such rights, e. g.,

Judigment where complainant had a set-off Corporations, 9 C. L. 733; Intoxicating Liquors, 8 C. L. 486.

72. See post, $ 3.

01. See ante, $ 1.

01. See post, $ 2B-L.

01. Gray v. South & N. R. Co. \[Ala.\] 43 S

01. Hunt v. New York Cotton Exch., 206

01. Still nojoin proceedings in a broken court to remove an administrator where such a step is taken in an attempt to assist in a prosecution of claims against the estate which the administrator has successfully attacked. Alternman v. Tillmozok County \[Va.\] 58 SE 657. Equity will enjoin electroselvent under guise of an alleged law which was not in force had impounded plaintiff's animals and threatened to continue and to harass him with unfounded suits for damages. Johnson v. Tanner, 126

01. Will restrain, upon petition of a resident, another resident from proceeding in another state to garnish earnings of the complainant with a view to evade the exemption laws of the first state. Lightfoot rutory. Keller v. Bowen, 127 Ga. 584, 56 SE 661, 104 SWV 511.

01. Connell v. Yost \[V. Va.\] 57 SE 299;

01. Worman v. Poppenberg, 53 Misc. 373, 103

01. NYS 245; White v. Savage, 48 Or. 604, 87 P common form and the sole heir has called 1040; Rels v. Graham, 106 NYS 645; Lott v. on the executive to probate it in sclemic Lott, 146 Mich. 580, 13 Det. Leg. N. 888, 109

01. New IV 1126; Peaceock v. Irvine \[Fla.\] 42 S 894;

01. Continental Compressed Air Co. V., Franklyin

01. J. Eq. 86 A 897; Macrum v. U. S. I. C. C.

Joined until the issue of devissavit vel non A.\] 154 F 653. In a proceeding for a ditch has been determined in the discretion of the improvement, an injunction will not lie court. Foster v. Case, 126 Ga. 714, 55 SE 921.

because of errors apparent on the face of Under certain circumstances where a rule the record, such as a defect in the statutory bond filed with the petition for im- the sale of agricultural products and in the procurement, nor where there is no evidence of collusion or fraud on the part of the commistance of the owner of a common law f. Thisisomers, nor because of injury to the fans, the landlor is not entitled to an in-lands through which the ditch passes, nor applied toward the satisfaction of such ex-an unsatisfactory character, or that there is no necessity for it, or that no benefit will the landlor without recourse for result to the lands through which it passes. Anderson v. Hicksville, 4 Ohio N. P. (N. S.)

such funds. Cochran v. Waits, Johnson & 545.

84. Restrain enforcement of a repelvin

01. Restrain enforcement of a repelvin

01. See topics treating of such rights, e. g.,

Judigment where complainant had a set-off Corporations, 9 C. L. 733; Intoxicating Liquors, 8 C. L. 486.

83. See post, $ 3.

01. See ante, $ 1.

01. See ante, $ 1.

01. See post, $ 2B-L.

01. Gray v. South & N. R. Co. \[Ala.\] 43 S

01.

01. Front v. New York Cotton Exch., 206

01. Holder of note not bona fide. Butler

01. Mitchell, 128 Ga. 431, 87 SE 764. Senties

01. Will enjoin proceedings in a broken court to remove an administrator where such a step is taken in an attempt to assist in a prosecution of claims against the estate which the administrator has successfully attacked. Alternman v. Tillmozok County \[Va.\] 58 SE 657. Equity will
    join the prosecution of a number of simultaneous actions at law brought against a single party where all the proceedings depend upon the same law and facts so that the matter may be decided in one proceeding;" but the mere fact that several law actions may be tried in one action is no ground for enjoining the law actions." Where the subject-matter of an action at law has been under consideration in the equity court and determined, such action at law will be enjoined." Federal statutes expressly prohibit the Federal courts from enjoining actions in the state courts," but this does not prevent Federal courts from enjoining a party to an action before it from prosecuting a suit in a state court when necessary to protect its own prior jurisdiction, or to make effectual its own prior judgment determining the rights of parties before it," or restraining a defendant from enforcing a state court judgment where necessary to preserve the rights of parties properly before the Federal court until a final hearing," or restraining parties from prosecuting other suits subsequently brought relating to the same subject-matter although such suits may be in a foreign jurisdiction." Equity has no jurisdiction to enjoin the prosecution of a criminal proceeding even though it is based on a void or unconstitutional ordinance or state," unless some property right will be injured thereby." A court of equity does not interfere with judgments at law unless the complaint has an equitable defense of which he could not avail himself at law or had a good defense at law which he was prevented from availing himself of by fraud or accident unmixed with negligence of himself or his agents." To restrain the execution of a void judgment, it is not restrain an ordinary from proceeding to 1051; Pratt Food Co. v. Bird, 148 Mich. 631, final judgment on an application for a commission of lunacy toawait the decision on the application for certioriar assigning error upon a pendente life ruling. Hinton v. Brewer, 128 Ga. 346, 57 SE 748. It is a proper exercise of discretion by the circuit court to enjoin a receiver of a national bank from transmitting funds in his hands to the United States treasurer pending the determination by the court of a preferential claim thereto. American Can Co. v. Williams \[C. C. A.\] 149 F 200.

01. Suits by two of insured's creditors will be restrained at the instance of the insurer where garnishment has issued to the insured and an action by the insured to recover on the policy. Cleveland v. Insurance Co. \[Als.\] 44 S 37.

01. Two suits against complainants who had set-offs in excess of amounts sued which would necessitate four suits altogether. Toole v. Lanier, 128 Ga. 279, 57 SE 516.

01. Logan v. Flattua \[N. J. Eq. 67 A 1007.

01. Rev. St. $ 720. St. Louis Min. & Mill.

01. St. Louis Min. & Mill.

01. Suiten Jr. Co. v. Simon, 155 F 234.

01. Bill to enjoin infringment of patent. Equity will enjoin complainant from insisting a multiplicity of suits throughout country against defendant's customers. Commercial Acetylene Co. v. Avery Portable Lighting Co., 152 F 642. Will restrain maintenance of a suit in a foreign country involving the same subject-matter between the same parties where it has first obtained jurisdiction. United Cigarette Mach. Co. v. Wright, 155 F 244.

01. City of Bessemer v. Bessemer Waterworks \[Als.\] 44 S 663; White v. Tilton \[Ga.\] 59 SE 299; Hasbrouck v. Bondurant, 127 Ga.

220, 56 SE 241; Pauliding v. Lane, 104 NYS

1051; Pratt Food Co. v. Bird, 148 Mich. 631, final judgment on an application for a commission of lunacy toawait the decision on the application for certioriar assigning error upon a pendente life ruling. Hinton v. Brewer, 128 Ga. 346, 57 SE 748. It is a proper exercise of discretion by the circuit court to enjoin a receiver of a national bank from transmitting funds in his hands to the United States treasurer pending the determination by the court of a preferential claim thereto. American Can Co. v. Williams \[C. C. A.\] 149 F 200.

83. Suits by two of insured's creditors will be restrained at the instance of the insurer where garnishment has issued to the insured and an action by the insured to recover on the policy. Cleveland v. Insurance Co. \[Als.\] 44 S 37.

01. Two suits against complainants who had set-offs in excess of amounts sued which would necessitate four suits altogether. Toole v. Lanier, 128 Ga. 279, 57 SE 516.

01. Logan v. Flattua \[N. J. Eq. 67 A 1007.

01. Rev. St. $ 720. St. Louis Min. & Mill.

01. St. Louis Min. & Mill.

01. Suiten Jr. Co. v. Simon, 155 F 234.

01. Bill to enjoin infringment of patent. Equity will enjoin complainant from insisting a multiplicity of suits throughout country against defendant's customers. Commercial Acetylene Co. v. Avery Portable Lighting Co., 152 F 642. Will restrain maintenance of a suit in a foreign country involving the same subject-matter between the same parties where it has first obtained jurisdiction. United Cigarette Mach. Co. v. Wright, 155 F 244.

01. City of Bessemer v. Bessemer Waterworks \[Als.\] 44 S 664; White v. Tilton \[Ga.\] 59 SE 299; Hasbrouck v. Bondurant, necessary that the judgment should disclose its invalidity on its face if it appears from the record." A party not made a party to foreclosure proceedings and in possession under a claim of title may enjoin the execution of a writ of assistance." Equity will not restrain the enforcement of a judgment even though irregularly obtained unless a meritorious defense is shown." Injunction does not lie to set aside a judgment where it appears that no final judgment has been rendered." Equity cannot decree an entry of satisfaction of judgment in a law action." Injunction will not lie for the purpose of effecting a change of venue in another action, a motion for change being the proper remedy." The provision of the statute that writs of injunction granted to stay proceedings or enforcement of an execution be tried in the court where suit is pending or execution was issued does not apply to a stranger or to proceedings to protect property, but does apply where the validity of the judgment is attached."

(SS 2) \_C. Public, official, and municipal acts.\_See * C. L. 288--A tax payer or property holder may restrain municipal corporations and their officers from transcending their lawful duties in any unauthorized mode that will increase the burden of taxation or otherwise injuriously affect taxpayers or their property." The discretionary powers of officers will not, however, be controlled," nor will the acts of municipal to be heard simply on the ground that it was leges that no bond has been given to insure unjust, irregular, or erroneous, or because the equity court would in deciding the case for an injunction for the time to urge such come to a different decision. Peacock v. cohesion is when the money is to be paid. Feaster \[Fla.\] 42 S 889. Where judgment has been obtained on a note, it will not be a judgment because the note was unsurious. A judgment that might have been set up as a Logan v. Ballard, 61 W. Va, 526, 57 SE 143. Equity will not enjoin the enforcement of Eq. 42, 57 SE 691. * A selection because of defenses which could have been put in issue at the trial. * A.

- \[11\] "The " 10 Cur. Law. INJUNCTION SS 8C. 255

Where an unauthorized act has been ratified pending a hearing on a bill to enjoin such act, the court cannot ignore such ratification.19 In the absence of some special circumstance bringing the cases within some recognized head of equity jurisprudence collection of taxes will not be restrained.14 A taxpayer's bill to restrain illegal acts of city officials may be brought by a corporation which is a resident and taxpayer.16 Where an officer is lawfully in possession of public office, an injunction is the proper remedy to protect his possession against the interference of others,18 but equity will not determine the title to an office and will not interfere by injunction before trial at law in favor of an officer de jure against an illegal claimant already in possession of the office.17 Unlawful disposition of public money,18 the incurring of an unauthorized indebtedness to be paid out of public funds and prejudicial to the complainant,19 and the transfer of a sum voted by a municipality for a specific purpose to the payment of other liabilities, will be enjoined.20 Equity will enjoin an unlawful assessment of taxes where the taxpayer has no appeal,21 but it must be made clearly to appear that the party has been wrongfully assessed.22 Equity will not restrain collection of a tax levied by persons having authority for mere irregularity or informality in levying the tax,23 or where the property sought to be taxed is exempt,24 or where the taxing tribunal has exceeded its power;25 but there are exceptions to this rule -where there is no law authorizing the levy sought to be made.20 A city council will

formed will constitute a breach of a con- not be restrained from levying special taxes, equalized by it in the absence of proof of fraud, gross injustice, or mistake in such equalization.27 In an action to enjoin a municipality from interfering with property rights, the presumption is that the defendant officials are acting within the scope of their authority,28 and that they intend to act lawfully.29 It is improper to litigate before election by injunction or otherwise the question of whether or not there is any constitutional provision for an office.30

(SS 2) \_D. Enforcement of statutes and ordinances.\_See * C. L. 290--The execution of a void statute or ordinance may be enjoined,31 but this alone does not entitle to a temporary order of injunction unless threatened irreparable injury is shown.32 and temporary injunction may be granted pending the determination of the constitutionality of a statute;33 but courts will not enjoin the enforcement of municipal ordinances quasi-criminal in their nature except in very exceptional cases as where there is a fraudulent use or abuse of process where the applicant's rights for injunction are clear and the proceedings obviously nothing but a circuitous method of depriving him of property, or where municipalities under the pretense of seeking the good of the portion of society intrusted to their supervision are in fact attaching vested interests.34 Other courts hold that equity will enjoin the enforcement of an invalid law or ordinance of a criminal or quasi criminal nature where property rights will be destroyed or their lawful enjoyment taken away.35 The court will restrain an arbitrary or plainly unreasonable exercise of the police power, where there has been an attempt thereby to lay a burden upon a citizen in the use or enjoyment of his property.36 The general ground of multiplicity of suits does not give jurisdiction to 10 Cur. Law. INJUNCTION SS 2E.

restrain the enforcement of quasi criminal.ordinances. \[47\] Although the decisions are not uniform, the best rule seems to be that equity will not enjoin the enforcement of penal ordinances merely because they are alleged to be void, \[38\] unless prosecution under the ordinance may result in irreparable injury to property rights, and this is especially true if the ordinance has been declared void by a court of law. \[38\] Where there is no showing of threatened, impending, or imminent prosecutions under an ordinance, there is no ground for an injunction even if such ordinance is void. \[49\] Where the validity of a statute may be tested in an action of law, no injunction against its enforcement will be granted. \[41\] Neither will a city ordinance be enforced by injunction for there is an adequate remedy at law for enforcing it by imposing penalties, \[42\] but if the violation of ordinances constitute a public nuisance, equity has jurisdiction. \[43\] Equity will not enjoin threatened or pending legislation, or ordinances. \[44\] The repeal of an ordinance granting rights may be enjoined where parties have acted under it and incurred expense. \[45\] A Federal court of equity has jurisdiction to enjoin the enforcement of unconstitutional state statutes. \[46\] (SS 2) E. Exercise of right of eminent domain. See s C. L. \[91\]--An injunction will issue to enforce the constitutional right of a property owner against dangerous aggression. \[47\] A writ of injunction will issue to restrain the appropriation of lands in violation of constitutional and statutory rules and it is not necessary to show that there is no adequate remedy at law, \[48\] but where the party intending to comply with the law finds itself by some accident or mistake in the position of a trespasser, the

**37. Georgia R. & Elec. Co., v. Oakland City \[Ga.\] 59 SE 296.**

**38. Block v. Crockett, 61 W. Va, 421, 56 SE 826.**

**39. Block v. Crockett, 61 W. Va, 421, 56 SE 826.**

**40.**

**41.**

**42.**

**43.**

**44.**

**45.**

**46.**

**47.**

**48.**

**49.**

**41.**

**42.**

**43.**

**44.**

**45.**

**46.**

**47.**

**48.**

**49.**

**47.**

**48.**
reason for the general rule seems to fail and the question is governed by those considerations controlling an ordinary case of trespass.\[49\] An injunction may be granted to restrain a railroad from taking possession of and permanently appropriating the street in front of the abutting owner owning the fee therein until compensation is made to the owner,\[58\] but a preliminary injunction will not issue on a bill by a township to enjoin a railroad from appropriating a longitudinal portion of the township road to straighten and widen the railroad.\[51\] Where there is a fraudulent pretense that land is to be condemned for a lawful purpose when it is not, an injunction will lie to restrain the proceedings.\[52\] Generally speaking a petition will not lie to enjoin the proceedings for condemnation for the reason that the mere taking of such proceedings does no injury to property, and further the grounds relied upon for an injunction may be urged in defense to the proceedings.\[53\]

(SS 2) _F. Acts affecting rights in highways and public or quasi public places._ See s C. L.\[25\]--Municipalities may restrain encroachment upon and obstruction of highways by land or water under its care and charge.\[54\] An officer of a town who is liable for the obstruction of highways has an interest entitling him to enjoin such obstruction,\[56\] but an individual cannot enjoin an obstruction without showing special damage aside from that sustained by the general public.\[58\]

(SS 2) \_G. Acts of quasi public and private corporations or associations.\[59\] See s C. L.\[20\]--Injunctions will issue to restrain corporations from high handed aggression without a show of destructive trespass or irreparable injury,\[67\] and this may be done /

49: Where the owner of a valuable lease-is not as to abutting owners a nuisance per hold sought to be condemned by a railroad \[se and it is necessary In a complaint to envis not made a party, but the railroad had \] join its operation to allege the special facts constituting it a nuisance. Id. Eneroch-rights, he is not entitled to enjoin the rail-ment by adjoining owner upon highway. road's use of the land until his claim has \] Ackerman v. True, 105 NYS 12. Unlawful been satisfied where the railroad paid into \] closing of a highway. An elector living court a sum sufficient to satisfy such claim and proceeded with reasonable diligence to \] independent special interest. Letherman v. condemn his rights. Nelson, V. New Jersey Short Line R. Co. (N. J. Eq.) 67 A. 1032.

50: Seaboard Air Line R. Co. v. Southern Inv. Co. \[Pr.1\] 44 S 351.

51: Creescale T.p., Pittsburgh, etc., R. Co., 216 Pa. 481, 65 A. 942.

52, 53, La Plant v. Marshalttown, 124 Iowa, 261, 111 NW 816.

54: Construction of a building upon pliles \] over a stream alongside of a dock. City of MIivaukee v. Gimped Bros, 130 WVis, 131, 110 \] Peroh, etc., R. Co., 151 F 234. Abutting owner \] NW7. Where there is an obstruction or enercachment of a permanent nature upon a public way and particularly where it is of long standing and a right to maintain it is \] asserted, a court of equity will entertain \] jurisdiction to enjoin its continuance. Ex-cavation under a sidewalk and opening made \] Williams v. Los Angeles R. Co., 150 Cal. 592, contrary to ordinance. City of New York \] s9 P 230. Where a street railway franchise v. De Peyster, 105 NYS 612. A log boom \] across a stream which prevents use of \] stream by other owners of logs. Powell \] springston Lumber Co., 12 Idaho, 72, 88 F 97.

55: Overseer of highway made liable to \] fine by statute could enjoin direction of a fence. Williams v. Riley \[Neb.\] 113 NW 126.

56: Tise v. Whitaker-Harvey Co., 144 N. C.\[57\], 587, 582 120; Robbins v. White \[Fla.\] 42 S 841. Obstructing a highway is a public nuisance but each abutting landowner has a right to go to and from the highway on \] the easement, which if obstructed at the time that the highway is obstructed, gives him a right of action. Brown v. Rea, 150 Cal. 171, 88 P 713. The operation of a street railway on information filed by the attorney general.\[58\] Equity may enjoin change of location by a railroad company without legislative authority.\[59\] A bill by a stockholder to enjoin the voting of stock by another corporation for the alleged purpose of changing the management in its own interest and creating an illegal monopoly to the detriment of the minority stockholders shows such threatened irreparable injury as to justify the granting of a preliminary injunction.\[60\] Equity will enjoin the enrollment of all voters of a certain political party for the purpose of allowing only such as are enrolled to vote at primaries, for such a proceeding may prove illegal and the nominees refused a place on the ballot thus causing great confusion, and on the other hand no harm will come to the defendants or any other voters for there seems to be no pressing necessity for an enrollment.\[61\]

(SS 2) \_H. Breach or enforcement of contract or trust.\[58\]\_S. C. L. 203...\_The restraining of a breach of contract is a negative specific performance and depends on the same principles.\[62\] The court will not exercise its extraordinary power to restrain an apprehended breach of contract unless the petitioner is without an adequate remedy at law and the contract itself free from doubt.\[63\] Ordinarily it will not lie to prevent a breach of a contract which cannot be specifically enforced,\[64\] but many unilateral contracts are an exception to this rule, as the right to exercise options.\[65\] An injunction will issue to restrain the violation of express, negative provisions of a contract,\[66\] and where a contract contains both affirmative and negative covenants, breach of the latter may be enjoined although specific performance of the former cannot be decrered.\[67\] If the compainant has fully performed a breach by the defendant of negative covenants may be enjoined.\[68\] If the negative covenant is only implied from established rates. Enjoin cutting off of the power of sale, Sellers v. Page, 127 Ga. plaintiff's water. Fellows v. Los Angeles \[S32, 56 SE 1011. A complaInt stating that \[Cal.\] 90 P 137.\] plaintiff was engaged as attorney to the chief of an Indian Nation pursuant to an act at a receiver's sale in a manner different from the operation provided by law. McCarter v. Vineland Light & Power Co. \[N. J. Esq.\] 65 A 1041.

(59) Enjoin tearing up tracks and relocatting at a different place. Atlantic & B. R. Co. v. Kirkindand \[Ga.\] 59 SE 220.

(60), Bigelow v. Calumet & Hcola Min. Co., 155 F 869.

(61), Brown v. Cole, 54 Misc. 278; 104 NYTS 105.

(62). A contract between a turnpike company and a street railway company will be enforced by enjoining the maintenance of tracks differently from the manner provided for in the contract. Chester & Darby Telford as long as compliant desired. Id. Con-Road Co. v. Chester, D. & P. R. Co., 217 Pa. 272. 66 A 358.

(63). Fowler Utilities Co. v. Gray, 168 Ind. 1, 73 NB 897; General Elec. Co. v. Westinghouse \[H.Elec. Co., 151 F 664. The jurisdiction of equity to enjoin a breach of contract depends upon the inadequacy of the remedy at law. Id. Evidence held insufficient to warrant enjoining the removal of a telephone for failure to pay charge. Elmore v. McMillan \[Neb.\] 113 NW 165. Contract between a street railway company and a turnpike regarding the height and location of the tracks of the former-specifically enforced by manda-tory injunction.\[65\] Center & Darby Telford Road Co. v. Chester, D. & P. R. Co., 217 Pa. 272, 66 A 358. May enjoin foreclosure of mortgage upon tender of amount of mortgage debt. Tlawell v. Wittmeier \[Ala.\] 1-48 782. Will enjoin foreclosure of mortgage not made in accordance with the terms of Robinson, 30 Ky. L. R. 1032, 100 SW 255.

positive stipulations, courts are not so ready to lend their jurisdiction.44 Equity will enjoin breach of a contract not to re-engage in business in a certain locality, if reasonable and based on sufficient consideration,45 and plaintiff need not wait until operations have actually commenced where defendant is making preparations to engage in business.46 An agreement not to solicit business from plaintiff's customers after leaving his employ will also be enforced.47 There is a conflict of opinion as to whether the breach of a contract to sell only certain articles for a certain period of time may be enjoined.48 A tenant or licensee will be restrained and confined within the scope of the tenancy or license.49 Whether equity will enjoin the violation of a restrictive covenant as to personal services depends largely on whether a sufficient substitute for the employ can be easily obtained.49 The mere fact that parties to a contract describe the services of the defendant as special and unique will not give equity jurisdiction to grant injunction where there is no other evidence of the special character of defendant's services.49 A threatened breach of covenant where defendant insists on its right to do an act amounting to a breach may be enjoined.41 The breach of restrictive covenants in a deed will be enjoined,49 unless it would be inequitable to

No negative covenant shown. Carlson v. |treparable Injury to prevent a multiplicity Koperner, 226 III. 15, 80 NE SE 62. |tsp". Noc beer but a certain brew to be sold on the premises. Jos. Schilt grew. Co. want. Carlson v. Koerner, 226 III. 15, 80 NE |tsp". N Nielsen (Neb.) 110 NW 746. But see |tsp". Nagle of a lumber business, vendors |tsp". NYS 454. Equity will enjoin the earpielous agreed not to re-engage in that locality. One of vendors acted as a broker but sold out-side the locality entirely. No breach and could be no injunction. Jayne & Keve Bros. |tsp". NWP 307. |tsp". NWP 307. |tsp". NWP 454. Agreement not to engage in the drug busiasm in a certain city but defendant acted as manager for concern operating drug stores in that city. Court did not abuse its discretion in granting a temporary injunction. |tsp". NIES 97, 111 NVE 233. May enjoin breach of contract not to re-engage in business even where liquiddated damages are provided for, if it appears that they were not considered as the only damages. Contract of sale by an attorney of his practice. Heinz v. Roberts |tsp". Novers 110 NW 1034. |tsp". Contract not to engage in turpentine distilling in a certain district. Harris v. |tsp". Nerves (Ala.) 43 S 131. |tsp". NWP 233. |tsp". NWP enjoin breach of covenant not to re-engage in business even where liquiddated damages are provided for, if it appears that they were not considered as the only damages. Contract of sale by an attorney of his practice. Heinz v. Roberts |tsp". Novers 110 NW 1034. |tsp". Contract not to engage in turpentine distilling in a certain district. Harris v. |tsp". Nerves (Ala.) 43 S 131. |tsp". NWP 509. |tsp". NWP enjoin breach of covenant not to solicit milk business from plaintiff's customers for three years after leaving his employ. Mutual Milk & Cream Co. v. Heldt, |tsp". NYS 661. |tsp". NYS 661. |tsp". NWP not enjoin the breach of a contract to sell only certain articles for a certain period for there is an adequate remedy at law. Hardy v. Allegan Circuit Judge, 147 Mich. |tsp". NYS 166. |tsp". NYS 167. |tsp". NORMAL England England England from breaking contract to sell complainant's beer exclusivity for certain period, complainant having no adequate remedy at law. Christian Feigenspan v. Nizolek (N. J. Eq.) 65 A 703. |tsp". Operation of a railroad built on a mining right of way as a common carrier. Jackson v. Big Sandy, etc., R. Co. |tsp". NVA.159 SE 749. Equity may enjoin the removal by a tenant of fixtures which it has been agreed with which the property of the landford at the expiration of the lease. Isman v. Hanscom, 217 Pa. 133, 66 A 329. Equity will restrain a breach of restrictions in a lease by a lease, without any proof of damage or to use the portion given up to streets other.

- 10 Cur. Law. INJUNCTION SS 2H.
- do so." The breach of a contract void under the statute of frauds will not be enjoined," nor will the breach of a contract which is against public policy." Where liquidated damages are provided for breach of contract, this does not oust equity of its jurisdiction to enjoin a breach." To obtain injunction of a breach of contract, plaintiff must show compliance with the terms of contract on his part," but a slight variance from contract where it has been acquieseed in will not prevent the complainant from obtaining an injunction." Equity will enjoin attempts of third persons to induce parties to break their lawful contracts." Where the bankrupty of a complainant intervenes between his original title under a contract and his title at the
- Wise than in the manner indicated. Herold Junction. South Shore Trac. Co. v. Brook-v. Columbia Inv. & Real Estate Co. \[N. J. Enr. & App.\] 67 A 607. Equity will enforce
- 84 Chester & Darby Teleford Road Co. v. a restriction where land is laid out under a general building scheme. No building
- 85 Defendant sought to induce plaintiff's within ten feet of the street, creation of customers to break contracts not to sell certain patent medicines except to parties un-Earton v. Slifer \[N. J. Eq.\] 66 A 893. If the owner of land enters into a covenant
- 149 YS85. Equity will is-concerning the use of land and the land is later sold to one who has notice of the
- 150 Weis 1717.
- 151 The contract to supply water from
- 152 Defendant sought to induce plaintiff's within ten feet of the street, creation of
- 153 Defendant's ought to have plaintiff's
- 154 Unknown 263 INJUNCTION SS 2I. 10 Cur. Law.

time the bill is brought, his right to enjoin the breach of covenants is not affected.86 Where a bill does not allege that defendant intends to violate his contract and the answer alleges that he does not intend to violate, no injunction will issue against the breach of covenant.87 A breach of trust will be enjoined.88 Where contracts have been obtained by fraud, their enforcement will be enjoined,89 and in the case of bills and notes, payment or transfer may be enjoined to protect equities.90 (SS 2) \_I. Interference with property, business, or comfort of private persons. See & C. L. 296--Injunction will issue at the suit of the attorney general to prohibit combinations in restraint of trade, though no injury to civil or property rights be alleged, injury to the public being presumed from the violation of the law.91 Equity will enjoin the unlawful interference with one's business.92 The great

86. Sale of good will in dental business to a member knew of a person being in the plaintiff with agreement to refrain from vicinity to sell ranges or vehicles it was, doing business, Plaintiff goes through bank- his duty to go and offer competition by rupcy and purchases the good will from taking similar goods and accompanying the the truste. His title is a sufficient on enjoin beddier around. Compliant was a dealer breach of covenant. Foss V. Koby \[Mass.\] in buggies made in Idaho and sent to wash-s 81 NE 199.

01. Selma Water Co. v. Selma, 154 F 138.

s8. Director of a company manufacturing ears. Defendant in pursuance of its scheme under a secret process for detinning tin

employed two men to follow each of comscrap will be enjoined from umgh has knowl-plainants's agents who dogged his footsteps, edge in establishing a competing business.

interrupt conversations with prospective Vuleen Detinning Co. v. American Can Co.

customers, some carrying guns. Heid that

\[N. J. Err. & App.\] 67 A 339.

s89. Where a county committee awarded a "susp", but to suppress competition by deductor for furniture to the highest bidder, facts add not warrant restraining carrying it in pursuance of an unlawful conspiracy be-into effect because of fraud. Raymond v.

vetween persons some of whom were not even McKenna, 147 Mich. 35, 13 Det. Log. N. 935, competitors, and such acts would be enjoined. Spaulding v. Evenson, 149 F 913.

110 NUV 121. Contract of a county board for

Where a board of commissioners' decision price. No actual fraud and a discretion be-ing lodged in the boards. Wood v. Hall

not final, the railway company may without \[Iowa\] 110 NUV 270. Equity will enjoin the waiting for a hearing before the commis-use of an instrument fraudulently obtained.

soniers enjoin the removal of the tracks Birth certificate falsely alleging patrurity in complaint. Vanderbilt v. Mitchell \[N.

either in a court of equity or of law. North J. Err. & App.\] 67 A 97. Equity will en-join the Issue of bonds which have been pro-vared to be issued by fraud. Pere Marquette

Walter Com's \[N. J. Eq.\] 67 A 691. Equity

vured to be issued by fraud. Pere Marquette

the names of the customers of a competitor.

\[0.0\] Equity will enjoin transfer of ne-goitable note where there are defenses be-tween maker and payee. Notes given in payment for land of which defendant did not have title. Atkinson v. Calin, 61 W. Va.

\[0.1\] 356, 56 SE 815, Enjoin enforcement of ne-goitable note obtained by fraud. Manmouth

his business by unlawful trespassing. Making Inv. Co. v. Means \[C. C. A.\] 151 F 159.

91. People v. Aachen & Munich Fire Ins.

going through bedrooms after midnight,

Co., 126 Ill. App. 68.

92. Placing in the hands of every dealer in the state by a state officer a bulletin

v 804, 101 NITS 1106. Will not enjoin sending threatening prosecution if they should use

compliant's product sold in lawful form.

\[0.1\] 34, 112 NUV 701. Sending out circu- lars to compliant's customers alleging his goods to be infringments and threatening customers with suit. Schwanbeck Bros. v.

\[0.1\] 350. Blackus, 148 Mich. 508, 14 Dot. Leg. N. 200,

111 NUV 1046. Following compliant's agents about the country and interfering with attempted sales. Evenson v. Spaulding

\[C. C. A.\] 150 F 517. Defendant which was a voluntary association composed of numer- "susp", "s 10 Cur. Law. INJUNCTION SS 2I. 263 weight of authority in the United States is in favor of the proposition that it is not unfair competition, intimidation, or coercion to interfere with a right to carry on business by persuasion or any peaceable means, \[98\] but it is impossible to reconcile all the decisions bearing on the power and authority of a court of equity to re-strain by injunction combinations of persons having for their object an interference with the business of another. \[94\] Equity will enjoin the unlawful invasion of the private property rights granted by franchise. \[95\] The right to privacy, although an unsettled one, is becoming more and more definitely recognized in courts of equity. \[96\] Equity will enjoin the unauthorized exhibition of a plaintiff's photograph, \[97\] and will enjoin the taking of the photograph of a person arrested for a crime until after conviction if the picture is not necessary to establish guilt or for identification purposes. \[98\] The use of a marriage certificate fraudulently obtained will be enjoined so as to prevent a party from acquiring any advantage thereunder. \[99\] So, also, equity will prevent by injunction the use of a false birth certificate by means of which a child might claim an interest in the alleged parent's estate. \[1\]\_Trade and firm name.\_See 8 C. L. 298--Where one acquires by use the right to use a name, whether an individual, partnership, or corporation, equity will protect its use by injunctions. \[2\] If an article has acquired a reputation as meritorious and is distinguished to the public by a certain trade name or by the form of package the vending of another article of like kind under an imitation of the label or package intended to deceive the public will be restrained, \[3\] but where a manufacturer had no name for his product and did not advertise it as his make, but put it up under the trade names and trade marks of different customers in cartons upon which was printed a representation that the powder was manufactured exclusively by the customers, he could not enjoined. Id. A court of equity will grant \[\] let use of a man's name and picture and relief at the instance of a manufacturer on his showing that the conduct of his business is injured by members of a union illegally with one manufactured by the complainant. The manufacturers of a patent medine called it threatening and injuring them and others who were at work. Piano & Organ Work-Gdison on the label with an affavit that the arcs v. Piano & Organ Supply Co., 124 Ill. App. 353; Hey v. Wilson, 128 Ill. App. 227. \[93\] Publication of statements in a newspaper even through libelous. Montgomery Ward & Co. v. South Dakota Retail Merchants, etc., Ass'n, 150 F 413. An association of retail dealers will not be enjoined from agreeing among themselves that they will not purchase from wholesalers who sell to mail order houses, and informing each other as to what wholesalers did sell to such houses. Id. \[94\] Montgomery Ward & Co. v. South Dakota Retail Merchants, etc., Ass'n, 150 F 413. \[95\] Right to lay gas pipes in street will be protected as against all not having a similar right. Millville Gaslight Co. V. Vineland Light & Power Co. \[N. J. Eq. 165 A 504\]. \[96\] For a case discussing the right to privacy in name and picture, see Edison v. Eddison Polytorm Mfg. Co. \[N. J. Eq. 67 A 392\], where the unauthorized use of both was enjoined. \[97\] Rhodes v. Sperry & Hutchinson Co., 104 NYS 102. \[98\] Pawnbroker arrested for receiving stolen goods. Schulman v. Whitaker, 117 La. \[94\], 42 S 227. Equity will enjoin the fraudu- \[95\], 100 F 413. \[96\], 100 F 414. \[97\], 100 F 415. \[98\], 100 F 416. \[99\], 100 F 417. \[99\], 100 F 418. \[99\], 100 F 419. \[99\], 100 F 419.

1264 INJUNCTION SS 21. 10 Cur. Law. enjoin the use of similar cartons by a competitor.4 Mere incorporation does not give the exclusive right to the use of a name.5

\_Copy rights, trade secrets, literary property, and the like.\_See * c. L. 296--Where an employee of one manufacturing under a secret process is enticed into another's employ for the purpose of learning-the master's trade secret, equity will enjoin him from divulging to any one the secret processes which were learned in the complainant's employ 6 and restrain the second party employing him from disclosing or making use of such secrets as may have been communicated by the employee ' and from employing such employe during the unexpired term of his contract with the complainant.8 Equity will protect the name and reputation of an author by enjoining unauthorized changes in his work.9 Equity will enjoin the infringement of a patent, irrespective of the invalidity of license contracts, and despite anti-trust laws.10

\_Waste.\_See * c. L. 296--Courts will protect one claiming to be the owner of real property who is out of possession from irreparable injury to the estate until such time as the title can be determined.11 A tenant may be enjoined from committing waste.12 Where waste by cutting a hole in a wall by a tenant has been completed, equity will not enjoin the use of such opening in passing to and from an adjoining building by defendants, his agents, and customers.13 The cutting down of trees and brush growing on lands is waste which will be enjoined.14

\_Incorporal property.\_See * c. L. 296--Equity will enjoin the obstruction of a right of way15 or the obstruction of an easement of light and air.16 A riparian

Footnote 164: The author is grateful to the anonymous referee for the anonymous referee owner may enjoin his exclusion from the use of the shore.17 Equity may enjoin the placing of an additional burden upon an existing easement.18

\_Nuisances.\_See 8 C. L. 207--A court of equity has jurisdiction to enjoin a continuing nuisance and compel its abatement.19 A public nuisance does not furnish a ground for action by a private person unless he suffers as an individual some peculiar injury.20 The intent to injure is not the test in nuisance cases.21 An injunction restraining the conduct of a legitimate business should go no further than is absolutely necessary to protect the rights of him seeking the injunction.22 In such case the establishment of plaintiff's right in an action at law will ordinarily be required.23 The balance of convenience and injury will be considered in enjoining the continuation of a business,24 particularly where the public interest is involved.25

Footnote 23: The use of a private person is not a private person, but it is not a private person, but it is not a private person.

''' parole and exercised this easement for over twenty years. Gyra v. Windler \[CoLo.\] %1 F 36. 16. An injunction will lie against the construction of a "house" by an adjoining property owner when the enjoyment of his neighbor's property is substantially affected thereby as to view, light, and air, although his neighbor may have submitted to envachments upon portions of the street remote from him and not affecting his enjoyment in violation of a general restriction. Bader v. Walther, 5 Ohio N. P. (N. S.) 497. 17. Mobile Transp. Co. v. Mobile \[Ala.\] 44 S 976. 18. May enjoin an additional burden upon an easement in a public way. Construction of a telephone line in a highway. Burrall v. American Tel. & T. Co., 224 Ill. 266, 79 and NB 705. Where a railroad without authority laid five sets of tracks across a projected street under a license from the owner, and thereafter without further authority laid ten additional tracks across such street, the owner was entitled to a mandatory injunction to compel the removal of such additional tracks. Northern Cent. R. Co., Cannon Co. of Baltimore, 104 Md. 682, 65 A 337. Where a defendant has granted a right of way to the complaminant and thereafter, claiming that the burden of the easement has been increased beyond the scope of the original grant, seeks to prevent the use of the right of way, the complaminant is not required to prove its right in order to be entitled to an injunction. Right to string wires on poles. Defondant cut down certain of the wires. Northeastern Tel. & T. Co., v. Hepburn \[N. J. Eq.\] 65 A 747. Where plaintiff applied for an injunction to re-strain defendant from crossing its right of way and there was no immediate prospect that defendant would do so and plaintiff had not yet begun the construction of its road, there is no such threatened irreparable injury as to justify the issuance of an injunction. Washington & Y. R. Co., V. Rajleigh & P. S. R. Co., 144 N. C. 767, 56 SE 480. 19. City dump where decaying animal and vegetable matter. Shreck v. Coeur Alene, 12 Idaho. 708, 87 P 1001. Crematory and fertilizer plant. Laird v. Atlantic Coast Sanftary Co. \[N. J. Eq.\] 67 A 387. Facts did not show a barnyard to be a nuisance which equity would restrain. Hale v. Jenkins, 55 Misc. 119, 106 NYS 282. Defondant's land contained a depression which collected surface water. Had a right to cause the same 266 .

Injunction SS 2I. 10 Car. Law.

Because certain property may constitute a nuisance, it does not follow that a party may, as the easiest way to abate the nuisance, destroy valuable private property susceptible for use for a lawful purpose.26

_Trespass._,See * C. L. 298--Injunction will not ordinarily issue to restrain a single act of trespass,27 though such injunction has been sometimes allowed,28 the right thereto being determined on the equities of the particular case,29 but will lie, where it appears that frequent acts of trespass or a continuing trespass is threatened, to avoid a multiplicity of suits,30 and injunction will lie also where the injury threatened is irreparable21 or where the complainant has not an adequate remedy at law.31

Elliott v. Ferguson \[Tex. Civ. App.\] 18

owner from using the wall upon the lot of Tex. Ct. Rep. 8.103 SW 453.

another as a party wall or from cutting into 26. Where tracks rightfully laid in a

It or using it in any way. Trinlock v. Pearse street do not constitute an unreasonable \[Ark.\] 103 SW 166. May grant an injunc-use thereof, a mandatory injunction will

tion to compel removal of personality from not be granted at the instance of the city \[reality of another after term for which it to compel the removal of the entire system \] was placed there has expired. Owner of tracks therefrom. City of Colorado

Penalty stored the same one reality of another \[Springs v. Colorado & S. R. Co., 38 Colo 107,

and refused to remove it at demand of 85 F 820.

owner. Bishop v. Hughes, 117 App. Div. 425,

122 NYS 595.

Jewel County \[Kan.\] 90 P 773.

28. Evidence sufficient to enjoin assert- \[Stan.\] 90 P 773. Whittaker v.

ing title to and trespassing on land. Crosby

Stangwick, 100 Minn. 386, 111 NW 295. In-v. Pit Pitman \[Ga.\] 159 SE 275; Colimsworth

junction against trespassing hens. Keil v.

P. Enterprise Land, Mineral & Lumber Co.,

(Townt Iowa) 112 NW 683. The cutting 30 Ky. Le. R47, 99 SW 284.

39. Equity will enjoin trespass upon

and is solvent and the quantifier has not the church property where nonmembers of the \[perfect title\] required in some cases by organization forothly enter and change the locks and threaten to interfere with the possession of the trustees. Christian

Turing and likely to involve a multiplicity of 43 S 8. Will enjoin interference with the plaintiffs oil pipe line. Brookshire Oil Co.,

son, 127 GA, 785, 65 SE 985. Maintenance

v. Casamilla Ekanen Oil & Development Co.

(Cal.) 91 P 833. Where one claims a game and the addition of new crossarma, wires, preserve under a color of right, he is en- and insulators. Burrell v. American Tel.

titled to enjoin trespass thereon and need & T. Co., 242 Hill. 266, 79 N7E 705. Allegations not prove title in fee. Dunker v. Pield &

of trespass must be that it is willfort that \[Tule Club \[Cal.\].\] 92 P 802. Where one has exclusive hunting privileges over lands,

that v. Spokane & I. R. Co., 43 Wash. 677,

he may enjoin the members of a club who &

86 F 956. Repeated trespassing upon land were committing a continuing trespass by

with threats of violence against the tenant.

hunting on the land to prevent a multi- \[Hackney v. McInnich \[Neb.\] 112 NW 296.

plicity of suits. Id. Will enjoin hunting

Will enjoin frequent and constantly reur- \[Hing overflow of lands. Cobia v. Ellis \[Ala.\]

gren number have often overrun the same, 42 is 751. Cutting timber upon plaintiffs' destroying fences and discharging fremers.

Bolsa Land Co. v. Burdick \[Cal.\] 90 P 632.

threat to continue the trespass to warrant \[Equity will enjoin a trespassing to shoot- \[a conjunction. Ducus v. Kelley, 106 NYS

ing guns over another's land so as to cause \[1058. A court of equity will enjoin the considerable damage. Whittaker v. Strang- \[c commission of a trespass which by reason vick, 100 Minn. 386, 111 NW 385. It is the practice of courts In mining cases to be llb- \[comes or threatens to become of a perma- eral fin granting injunctive relief. Restrain

ment nature. Bill alleged that defendant, by interference with complainant's work on \[cplan. Safford v. Fleming \[Idaho\] 89 P 827.

of a bridge and, road bed on plaintiff's land,

Navigation of a private canal from a lake

and that the trespass would be permanent. to a point on complainants' land enjoined.

Injunction properly granted. McComany v. King v. Muller \[N. J., Eq. 167 # A 380. Where

Western Allegheny R. Co., 31 Pa. Super.

10 Cur. Law. INJUNCTION SS 2I. 267

The solvency or insolvency of a trespasser is only an important matter when the nature of the injury may be adequately compensated for in money and is not important where the injury is irreparable.\[33\] Interference with possession will not be restrained where no entry has been made or threatened by defendants.\[34\] The complainant must show that he has title \[35\] or possession and the entire right to possession as against the defendant,\[36\] and in some jurisdictions, where the question of title is put in issue, it is for a jury.\[37\] A plaintiff not in possession may enjoin trespass by a defendant in possession.\[38\] Joint trespasser may be enjoined in an action, begun in the county where one of the defendants lives.\[39\] In some states certain trespasses not cognizable in a court of equity may be enjoined by statute.\[40\] A suit to enjoin trespass cannot be used as a substitute for a proceeding to try the legal title to real property or to establish the boundary thereof.\[41\]

_Conspiracies by labor unions._\[See 8 C. L. 800--Equity will enjoin unlawful acts by labor unions, such as interfering with employees or those desiring to become such

join trespass that there was a threatened destruction of the timber and trees on plaintiffs land which were not denied end-to-complainant to an injunction. Crawford v. Atlantic Coast Lumber Corp. \[S. C.\] ST SE 670.

ford v. Atlantic Coast Lumber Corp. \[S. C.\] ST SE 670.

57 SE 670. An allegation in a suit to enjoin trespass that defendants are continually en-

art in common is a sufficient title as against tering upon complainant's buildings and are

engaged in hanging and suspending ladders and falls with ropes attached thereto from an adjoining building and \_over the roof of complainants' buildings' principles no light

may be enjoined by an owner in severity or

as to how compliantants' property will be

in common of the timber where the trespass permanently injured. Bishop v. Owens \[Cal.\] is continuous. Camp v. Garbutt Lumber App.\] 89 F 844. In an action to restrain

trespas by injuring trees, it must be shown

that the injury is irreparable in that the trespase may enjoin value and cannot

tend in question. Wilson v. Wilson, 128 Ga.

be compensated for by money damages. Cowan v. Skinner \[Fla.\] 42 S 730. May

legal title. Compton v. Newton \[Ga.\] 59 SE

enjoin the cutting of forest trees where there

may be some sentiment connected therewith, but not where there is a dispute between

two sawmills, each claiming the right to cut. Union Sawmilli Co. v. Summit Lumber Co.,

property. Lesser of elevated structures in a

119 La. 313, 44 S 28. In Oregon the rule is

that in the absence of a showing to the effect that the acts complained of amount

an irreparable injury to the estate, a court of equity will not enjoin a trespass thereon

v. Hurst \[Or.\] 91 P 366. Damages

suffered by flooding of land is a sufficient

alteration of irreparable injury to give

equity jurisdiction to grant injunction. Rule

requiring prima facie case of irreparable injury as a condition of granting an injunction

tion is sometimes relaxed and modified. Bisk-

borrow v. Pierce \[Minn.\] 113 NV 274.

32, Insolvency preventing adequate remedy of law. Kelly v. Wright \[Towa\] 112 NV

633. Where the trespasser is insolvent or

for any other reason an action at law would

not furnish an adequate remedy, an injunction will lie to restrain trespass. Menden-

hall v. Jewell County School Dist. \[Kan.\] 9 P 773. Will enjoin a threatened trespase,

especially where no adequate remedy at law. Whittaker v. Stangvick, 100 Minn. 386, 111 NW 295. Where telephone poles are placed

so near adjoining premises that cross bars, wires, and guys project over the premises,

injunction will issue, since they constitute a continuing trespass of such a character that adequate recompense might not be obtained

in an action at law. Cumberland Tel. & T. destruction of the timber and trees on plaintiffs land which were not denied

Co: v. Barnes, 30 Ky. L. R. 1290, 101 SW 301.

plaintiffs land which were not denied end-to-complainant to an injunction. Crawford v. Atlantic Coast Lumber Corp. \[S. C.\] ST SE 670.

634. Enk v. McCaffrey, 128 Ill. App. 343.

57 SE 670. An allegation in a suit to enjoin

stresspas that defendants are continually en-

ant in common is a sufficient title as against

tering upon complainants' buildings and are

a stranger to entitle relief by injunction

engaged in hanging and suspending ladders and falls with ropes attached thereto from an adjoining building and \_over the roof of complainants's buildings' principles no light

may be enjoined by an owner in severity or

as to how compliantants' property will be

in common of the timber where the trespass permanently injured. Bishop v. Owens \[Cal.\] is continuous. Camp v. Garbutt Lumber App.\] 89 F 844. In an action to restrain

trespas by injuring trees, it must be shown

that the injury is irreparable in that the trespase may enjoin value and cannot

tend in question. Wilson v. Wilson, 268 INJUNCTION SS 2I. 10 Cur. Law. by means of threats, intimidation, or personal violence on the one hand,\[42\] or by boycotting on the other,\[48\] and this may be done even though such acts may be criminally prosecuted.\[44\] Peaceable persuasion, however, used by workmen either singly or in combination to induce others to quit or refuse employment is lawful and may lawfully be conducted by striking workmen by means of pickets, provided their numbers are so limited that their presence does not of itself amount to intimidation, and provided they so conduct themselves as to leave the persons solicited feeling that they are not being subjected to compulsion.\[45\] It is essential that a strike or boycott be founded on a conspiracy to injure the complainant's business.\[46\] A mere conspiraey to strike is lawful and will not be enjoined.\[47\] Where there is a general combination to inspire a complainant's business, it is not necessary to show that each defendant was guilty of a specific unlawful act in order that each may be enjoined,\[48\] but where it is sought to enjoin a large number of striking employees in their individual capacity from interfering with plaintiff's business, only those will be enjoined who are shown to have participated in wrongful acts.\[48\] Equity will not re-strain the payment of money to striking workmen.\[50\] So, too, where a contract has 42. National Tel. Co. of West Virginia v. they compelled contractors to agree not to Kent. 156 F 173. Striking employes and buccal labor unions will be enjoined from vres to drive plaintiff out of business. Shine congregating about their former employer's place of business or other places for the purpose of interpreting with employees or those by workmen. Aberthav Const. Co. v. Cameron, means of threats, intimidation, and personal violence to induce employees to quit the server. 191 An organized attempt to deprive an- or prevent others from entering it, and from picketing for that purpose, all of which being done with an intent to injure the plaintiff's business and compel it to accede to the demands of striking employees. New York Cent. Iron Works Co. v. Brennan, 105 NYS 865. Interference by Violence, by threats, or by intimidation with others who are pursuing their natural and constitutional right to labor when and where they please. 191 NYS 865. Villed not enjoin well be enjoined. Pope Motor Car Co. v. Keegan, 150 F 148. Picketing for the purpose of preventing the free flow of labor to an employer, and thus affecting his business so as to force him to comply with certain demands, will be enjoined. George Jonas Glass Co. v. Glass Bottle Blowers' Ass' In \[N. J. Eq.\] \[N. J. Eq.\] \[N. J. Eq.\] \[G4 8 43 95\]. Picketing in a threatening and intimidating manner will be enjoined. Alils-Chalmers Co. v. Iron Molders' Union No. 125, 150 F 155. Picketing whares, boarding compliantants' vessels, assaulting crews, threatening officers, and terrorizing passengers. Saliders' Union of the Pac. V. Zimmmond Lambert Co. 16 C. C. A.156 F 450. Where the action of pickets, even where no bodily harm is threatened, is such as to make the situation of a workman so diagnostic and intolerable that he is constrained to quit work, It is unlawful and may be enjoined. Allils-Chalmers Co. v. Iron Molders' Union No. 125, 150 F 155. Picketing whares, boarding compliantants' vessels, assaulting crews, threatening officers, and terrorizing passengers.

10 Cur. Law. INJUNCTION SS 2J. 269

been made between employers and the union, equity will enjoin the officers of the union from inducing, influencing, inciting, or coercing the men to strike in violation thereof.\[51\] Whether a strike injunction will be made permanent after it appears that the strike has ended is in the discretion of the court.\[52\] The extreme limit to which courts have gone in granting injunctions in matrimonial actions has been to restrain the husband from disposing of his property where such disposal would result in deriving the wife of her support, or in restraining a divorced husband from interfering with the property rights of his wife.\[53\]

\_Libel.--\_Courts will not restrain a mere libel.\[54\]

\_Miscellaneous rights.--\_Parties will be restrained from dealing in non-transferable tickets issued by railroads or to be issued in the future,\[55\] but in Texas it has been decided that although equity will enjoin the dealing in nontransferable tickets which have been issued and are on sale, yet a general injunction against dealing in tickets which may be issued in the future will not be granted.\[56\] An act resulting in the casting of a cloud upon title will be enjoined.\[57\]

(SS 2) _J. Crimes.\[58\]_--\_Equity is without power to enjoin the commission of threatened crimes on the one hand \[59\] or to enjoin the threatened prosecution for alleged crimes on the other,\[59\] but this rule does not deprive a court of equity of its power to protect private property, nor defeat its right to enjoin a continuing injury to property.\[51\] Equity will enjoin the publication by a newspaper of an encouragement to the violation of law.\[52\] Equity will, however, in some cases, restrain the repetition of a criminal act.\[53\]

51. See supra, SS 2H. Breach of Contract. |terminal ordinances and statutes, see supra, Printers contracted with their employers as to terms of employment, one of which was for an eight hour day after Jan. 1, 1909. |59. Federal courts will not enjoin commis-

Printers' union elected new officers who demand of crime. Order of R. R. Telegraphers manded an eight hour day and closed shop at once, and upon refusal of the employers to grant there, strikes were declared. Barnes & Co., Sherry, 156 F 72. |59. Plano & Organ Workers v. Piano & Orgun Supply Co., 124 III. App. 353. |53. Will not enjoin husband from cohubiting with another woman. Ellis v. Emilia, 55 Misc. 34, 106 NYES 217. |54. Christian Hospital v. People, 223 III. |244, 79 NB 72. |Allegations by an office holder that he will be irreparably injured in his reputation through the publication of a false and obscene pamphplied by one against whom a judgment in damages would be un-

collectible does not give jurisdiction to a court of equity to grant an injunction where there is no allegation that people will be intimidated or prevented from dealing with him in his official capacity, or that his tenure of office is threatened or likely to be inter-

ferred with by the publication. Judson v. Zurhorst, 10 Ohio C. C. (N. S.) 289. Equity cannot enjoin a libel. Montgomery Ward & Co. v. South Dakota Retail Merchantar's & Hardware Dealers' Ass', 160 F 413; Pratt Food Co. v. Bird, 148 Mich. 631, 14 Det. Leg. N. 364, 112 NW 701. |55. Pennsylvania Co. v. Bay, 150 F 770. |56. Lytle v. Galveston, etc., R. Co. \[Tex.\] 17 Tex. Ct. Rep. 482, 99 SW 396; Id. \[Tex. Civ. Appl.\] 100 SW 199. |57. Sale of lands upon an execution obtained against the grant of the legal title to land. Austin v. Union Pav. & Cont. Co. \[Cal. App.\] 88 P 731. |58. See SS 4C. 200. For decisions as to the injunction against the enforcement of quasi

51. See supra, SS 2H. Breach of Contract. |terminal ordinances and statutes, see supra, Printers contracted with their employers as to terms of employment, one of which names. |59. Federal courts will not enjoin commis-

Primary' union elected new officers who demand of crime. Order of R. R. Telegraphers manded an eight hour day and closed shop at once, and upon refusal of the employers works \[Ala.\] 44 S 683; White v. Tifton \[Ga.\] & Co., Sherry, 156 F 72. |59. The general rule is that equity

52. Pinano & Organ Workers v. Piano & Orgun Supply Co., 124 III. App. 353. |53. Will not enjoin husband from cohubiting with another woman. Ellis v. Emilia, 55 Misc. 34, 106 NYES 217. |54. Christian Hospital v. People, 223 III. |244, 79 NB 72. |Allegations by an office holder that he will be irreparably injured in his reputation through the publication of a false and obscene pamphplied by one against whom a judgment in damages would be un-

collectible does not give jurisdiction to a court of equity to grant an injunction where there is no allegation that people will be intimidated or prevented from dealing with him in his official capacity, or that his tenure of office is threatened or likely to be inter-

ferred with by the publication. Judson v. Zurhorst, 10 Ohio C. C. (N

**INJUNCTION SS 3.**

**SS 3.** \_Suits or actions for injunction.\_See * C. L. 801.--A complainant is not required to perform vain and useless acts before commencing proceedings.\[64\] If application for an injunction is prematurely made, a court cannot grant an injunction to take effect in futuro, but should dismiss the bill.\[65\]

\_Necessity of suit or action.\_See * C. L. 801.--No order allowing an injunction should be made until suit for an injunction has been commenced.\[66\]

\_Jurisdiction.\_See * C. L. 801.--Jurisdiction may be dependent on the amount in controversy, as is the case in Federal courts.\[67\] Federal courts have jurisdiction to enjoin the enforcement of state statutes fixing maximum railroad rates.\[68\] A private party having suffered injury under the anti-trust law may sue in a Federal court for an injunction under the general equity jurisdiction of the court where by reason of diversity of citizenship of parties the court has jurisdiction of the suit.\[69\] Federal courts will not enjoin an action of tort in a state court based on the negligent operation of a vessel on the ground that the Federal courts have excessive jurisdiction because of the special defense of liability limited to the value of the vessel.\[70\] The pendency of a suit in a state court does not deprive a Federal court of jurisdiction.\[71\] Where a town and a contractor were enjoined from constructing a sewer, the contractor's absence from the state so that the preliminary injunction could not be served upon him did not deprive the court of jurisdiction to grant the injunction or compel its dissolution.\[72\] Having acquired jurisdiction to enjoin an act, equity will retain it to award damages.\[73\] A judge of the court of appeals of Kentucky has not the power to grant an injunction in any case.\[74\] Where a defendant in an equity suit answers to the merits, he cannot thereafter question the jurisdiction on the ground of the adequacy of the remedy at law.\[75\]

\_Parties.\_See * C. L. 802.--Injunction cannot be granted where an indispensable party is not joined,\[76\] but proper parties may be brought in by amendment.\[77\] Parties not named may intervene and become parties any time before proceedings are definitely closed.\[78\] Where parties are very numerous and cannot without manifest in-

ant from the sale of oleomargarine pending -- cuit Judge, 147 Mich. 204, 13 Det. Leg. N. a prosecution for a like Offense under acts 1011, 101 NW 521.

May 29, 1901, P. L. 827. Commonwealth v. 73. Cobia v. 211s \[Ala.\] #2 S 751.

Henderson, $1 Pa. Super. Ct. 383.

**64.** Where statute provides for application to county commissions to fix water rates, and after once fixing such rates the commissioners refuse to consider a petition to change them, the enforcement of such rates may be enjoined and new rates fixed without first presenting a petition. Board of Com's Monezuma County v. Montezuma Water & Land Co. \[Colo.\] #9 P 74.

65.\*\* Porter v. Speno \[Idaho\] #2 P 867.

**66.** Barnett v., Schad \[Kam.\] #1 P 539.

**67.** Amount to exceed $2,000. Evenson v. Spauldins \[C. C. A.\] 150 F 517. Rules for determining amount discussed. Hunt v. New York Cotton Exch., 205 U. S. 322, 51 Law. Ed. 821.

**68.** Perkins v. Northern Pac. R. Co., 155 F 445.

**69.** Bigelow v. Calumet & Hecia Min. Co., 155 F 869.

**70.** The Lotta, 150 F 219.

**71.** Federal court may enjoin the receipt and use by a party of stock quotations, despite the fact that a state court has enjoined a telegraph company from refusing to furnish such party with quotations. Hunt v. New York Cotton Exch., 205 U. S. 322, 51 Law. Ed. 821.

**72.** Village of River Rouge v. Wayne Clr. 821.

**73.** The Lotta, 150 F 219.

**74.** The Lotta, 150 F 219.

**75.** The Lotta, 150 F 219.

**71.** Federal court may enjoin the receipt and use by a party of stock quotations, despite the fact that a state court has enjoined a telegraph company from refusing to furnish such party with quotations. Hunt v. New York Cotton Exch., 205 U. S. 322, 51 Law. Ed. 821.

**72.** Village of River Rouge v., Wayne Clr. 821.

**73.** The Lotta, 150 F 219.

**74.** The Lotta, 150 F 219.

**75.** The Lotta, 150 F 219.

**76.** The Lotta, 150 F 219.

**77.** The Lotta, 150 F 219.

**71.** Federal court may enjoin the receipt and use by a party of stock quotations, despite the fact that a state court has enjoined a telegraph company from refusing to furnish such party with quotations. Hunt v. New York Cotton Exch.

10 Cur. Law. **INJUNCTION SS 3**. 371

convenience and oppressive delays be all brought before the court, it may in its discretion dispense with making them all parties and proceed. But in such cases the decree is without prejudice to the rights of all absent parties." A tax paper may file a bill to enjoin the construction of a sewer and to issue bonds therefor, and it need not be on the relation of the attorney general." A tax-paying corporation may be a party." Where municipal authorities act in behalf of the municipality and not in their individual capacities, the municipality is a proper party in an action to restrain such acts." An officer of a town who is liable for the obstruction of highways has an interest entitling him to enjoin such obstruction." Where a nuisance sought to be enjoined is of a public nature, the action should be instituted by the appropriate public law officer, but if private persons suffer some special injury therefrom aside from the injury to the general public they may maintain such a suit." A consul may bring a bill to restrain acts in defraud of his contrrymen." Where boundaries of property transferred to plaintiff are disputed by an adjoining owner and the plaintiff having made a partial payment transfers the title back to his grantor, he is properly a party in a suit by the grantor to enjoin interference with her possession." The officers of a labor union who organize, counsel, advise, and support a strike, are proper parties defendant to an injunction." The court (obiter) says that it is not erroneous to include in injunctions of this kind some particular defendant against whom there might not be sufficient evidence to convict of conspiracy, if there is a reasonable fear, justified by his attitude and temper, that he will participate in the unlawful action."

\_Pleading and evidence.\_See * C. L. 504.--In a suit for injunction, the pleadings must allege clearly and definitely the facts on which complainant relies for the relief prayed." A mere averment of opinion or conclusion is too general and indefinite

79. Bill against members of a voluntary

definite in their statement of facts essential association. Spaulding v. Evenson, 149 F

to the granting of an injunction. Weeks v. 913. A voluntary association may be brought

Turner Lumber Co. (FIa.) 44 S 173. The

into court in injunction proceedings under Rule 48 by service on its officers and

such particularity as to enable the court

such members as are known and can be

from an inspection of the bill alone to grant

conveniently reached, sufficient being served

to represent all diverse interests. Evenson

enjoin enforcement of a judgement, to merely

v. Spaulding (C. C. A.) 159 F 517.

allee a good defense without stating it.

80. Village of River Rouge v. Wayne Cir-

Cited V. New York Nat. Exch. BK, 230 IL.

cut Judge, 147 Mich. 204, 13 Det. Leg. N.

50, 82 NCE 341. Bill to restrain defendants

1615, 110 NWP 622.

from inducing complainants customers to

81. A taxpaper's bill to restrain illegal

acts of city officials may be brought by a

ciently clear statement of all material facts.

corporation which is a resident and a tax-

paper. Woller Chem. Co. v. Philadelphia, 217

149 F 838. Allege every fact clearly and

Pa. 215, 66 A 34. The fact that one of the

parties to a conspiracy to compel a con-

partle of a conspiracy to compel a con-

tractor to employ only union men was a corporation gave it no immunity from the con-

sequences of such unlawful combination.

Aberthaw Const. Co. v. Cameron, 194 Mass.

208, 80 NE 478.

82. Town of Roswell v. Eszard, 128 Ga.

43, 57 SE 114.

83. Overseer of highway made liable to

fine by statute. Williams v. Riley (Neb.) 113

NYW 136.

84. See supra, $ 2F, Acts Affecting Rights

in Highways, etc.

85. Use of name of Emperor Franz Josef

Von Thodorovich v. Franz Josef Beneficial

Ass"n, 154 F 911.

86. Amber v. Cain (Iowa1 110 NWP 1053.

87, 88. Plano & Organ Workers' Internacional Union v. Piano & Organ Supply Co., 124 Ill. App. 353.

89. Allegations of bill must be clear and

01.

to afford a basis for relief by injunction,"90 thus a mere allegation of irreparable injury is not sufficient.91 So, too, an allegation that the complainant will be driven to a multiplicity of suits unless injunction is granted which is not supported by facts stated in the complaint is a mere conclusion.92 The plaintiff need not set forth in his bill the evidence upon which he expects to rely.93 Where there is no allegation showing any right, title or interest of complainant in the subject-matter of the bill, an injunction is properly denied,94 and so where the bill itself alleges that the defend-ant is committing acts of trespass under a claim of ownership of an interest and fails to negative or explain this claim, an injunction should be denied.95 It is not essential to the grant of an injunction upon the ground of irreparable injury that there should be in terms an allegation that damages would be irreparable if the averments of the petition taken as a whole are such as to demonstrate that such would be the result of the conduct complained of in the petition.96 So, too, where it was sought to enjoin enforcement of a city ordinance as unconstitutional, the bill need not allege that the ordinance was passed under authority granted by statute, for the court takes judicial notice of state statutes and presumes compliance therewith.97 Amendments may be allowed which do not change the character or substance of the bill.98 Where a certain amount must be involved in order to give equity jurisdiction, it is sufficient if damages claimed in the bill exceed that amount and no denial or showing to the contrary is made.99 A bill for injunction that seeks to join and deal with interests as a whole which are not joint and which have no such relation to each other as would justify a court of equity in adjudicating upon them in one action is demurrable.1 A defense not pleaded in the answer cannot be set up.2 A plea to a bill for an injunction which merely states as a defense that a certain statute was in effect, but does not allege that the defendant acted pursuant thereto, states no justification under the act.3 In a suit by a manufacturer under a secret process to restrain a former employee from disclosing the secret, he is not required to disclose on the trial the secret process, for it would be destructive of his rights.4 An equitable petition praying for an injunction should be verified.5 On the hearing for an injunction, an affidavit which does not contain either a caption of the case under consideration or other facts which show that it was intended by the witness to be used as evidence in the case is not admissible as evidence.6 If affidavit is made on information and belief, it should show why the person having personal knowledge did not make it." If the affidavit for an injunction is made by the attorney, it should set forth good and sufficient reasons why he makes it or it must be shown that he has personal knowledge of the facts set forth.8 The bill for injunction should distinguish between matters stated as upon petitioner's own knowledge and those stated on information and belief.9 Where a bill is sworn to by the attorney for the complainant and the affidavit is positive and direct, such affidavit is sufficient.10 It is not commendable practice to have affidavits of a client sworn to by one of the attorneys of record.11 Where the act complained of has been consummated in part, but the bill further alleges a continuing injury, an injunction will lie.12 Where defendants had combined for several years to carry out a design made unlawful later by statute, the presumption is, in proceedings to enjoin the carrying out of such design, that the combination and purpose still exist, and it devolves upon them to affirmatively show that their combination has terminated.13

\_Trial.\_See * C. L. \*\*55--\*\*Complainant should be allowed to show everything relevant under his pleadings reasonably tending to entitle him to an injunction.14 The fact that a preliminary injunction has been issued during the pendency of an action in no way affects the decision upon the merits at the trial, and the burden is on the plaintiff to maintain the issues joined.15 A judge who is a citizen and a taxpayer of a city and interested in the city's water supply as such is not disqualified from hearing a motion to dissolve an injunction to restrain the city from proceeding to condemn land to protect its water supply.16

\_Appeals.17--\_Where a petition to reopen a case is made by the appellant after appeal from a decree on the ground of newly-discovered evidence, and the evidence

1. Williams v. Harper, 127 Ill. App. 619.

1. Hatton v. Gregg \[Cal. App.\]. 85 P 594.

1. Barnes v. Roy, 27 R. L. 534, 65 A 277.

1. Taylor Iron & Steel Co. v. Nichols \[N. J. Eq.\] 65 A 655.

1. Civ. Code 1895, **4965**-4967. Petition

verified after amendment was not demurrable for want of verification. McLauchlin v. McLauchlin, 128 Ga. 655, 85 E 156.

6. Johnson v, Tanner, 126 Ga. 718, 56 SE 80.

An affidavit must be entitled in the cause in which it is intended to be used or otherwise show upon its face that it is connected therewith. Attachment to another paper not sufficient always. Hicks v. Portwood \[Ga.\] 58 SE 837.

7, & Wiles v. Northern Star Min. Co. \[Idaho\] 85 P 1068.

9. Christian Hospital v. People, 223 Ill. 244, 79 NE 72.

1. Seabaoard Air Line R. Co, v. Southern Inv. Co. \[Fla.\] 44 S 351.

10 Cur. L.-- 18.

11. Savage v. Parker \[Fla.\] 43 S 507.

01. Allegation that a track had been laid in a street and cars operated thereon. Sea-board Air Line R. Co. v. Southern Inv. Co. \[Fla.\] 44 S 351.

01. Combination in restraint of trade. State v. Omaha Elevator Co. \[Neb.\] 110 NWV 874.

01. Whittaker v. Stangvick, 100 Minn. 386.

11 NWV 295.

15. Hale v. Jenkins, 55 Misc. 119, 106 NYS 282.

01. La Plant v. Marshalltown, 134 Iowa, 261, 111 NWV 816.

01. See 8 C. L. 305. See, also, Appeal and Review, 9 C. L. 115, as to appeal ability of injunction orders, and Id., 9 C. L. 206, as to extent of review thereof.

01. Sterling Varnish Co. v. Macon, 217 Pa. 7, 66 A 78.

is very material and could not have been obtained by the appellant at an earlier date by any reasonable diligence, the decree should be reversed and the case reopened for further evidence \[18\]. Where an injunction is granted provided no appeal is taken within thirty days, the taking of such appeal prevents any injunction from being granted, and hence no appeal can be maintained \[19\]. If under the law and evidence there was no error in denying an injunction, no reversal can be had on the ground that the judge refused on hearing to strike certain parts of the answer upon motion made therefor \[20\]. An order of a judge, indorsed on a petition for an appeal from, and supersedeas to, an order refusing to dissolve an injunction, the prayer of which is "that an appeal and supersedeas may be allowed" the petitioner "staying said injunction," reading as follows \[19\]. "Appeal and supersedeas allowed as prayed for," does not purport to be an order staying the injunction. Its legal purport is merely to grant the appeal and supersedeas \[21\]. A bill praying for injunction and for reformation of a lease should not be dismissed on the court's own motion, on dissolution of the injunction \[22\]. New questions will not be considered on appeal \[23\].

SS 4 _Preliminary injunction. A. Issuance and grounds_. See 8 C. L. 306--A preliminary injunction is not a matter of right but rests in legal discretion \[24\], and the exercise of such discretion will not be disturbed on appeal unless clearly erroneous \[25\]. It will not issue except where the complainant's bill and moving papers present a case clearly entitling him to the remedy \[24\], but on the other hand it is not necessary

19. Porter v. Speno \[Idaho\] 92 P 367.

01. Foster v. Case, 126 Ga. 714, 55 SE 921.

01. Powhattan Coal & Coke Co. v. Rits, 60

W. Va. 395, 56 SE 257.

22. Enk v. McCaffrey, 128 Ill. App. 343.

01. Question of whether or not ordinances were told not raised at trial. Ironside v. Vinita, 6 Ind. T. 485, 98 SW 167.

01. Seymour v. La Purgev \[Vwash\] 92 P 267. Within exercise of sound discretion of a judge to issue a preliminary injunction to preserve the status quo until final determination of the cause. Restrain enforcement of judgment of state court pending a hearing in the Federal courts. Southern R. Co. v. Slimon, 153 F 284. Not granted where a rate was fixed to 290 into effect at the end of three months but bill not brought until two days before the time for it go into effect. Central of Georgia R. Co. v. McCLendon, 155 F 974. Facts insufficient to warrant preliminar restraint of breach of contract. Stationary Engineer Pub. Co. v. Comerford, 155 F 667. Where the only object of a bill is a permanent injunction, a temporary injunction will not issue if the court is of opinion that there is no probability that the complaint will succeed on the merits. Montgomery Ward & Co. v. South Dakota Retail

Mechants, etc., Ass'n, 150 # 413.

25. Shaw v. Palmer \[Fla\] 44 S 953; Seliers v. Page, 127 Ga. 633, 56 SE 101. No prayer for temporary injunction and no good reason for granting same without notice. Savage v. Parker \[Fla\] 43 S 507. Where evidence conflicting, no abuse of discretion in refusing an injunction. Hebert v. Enns, 127 Ga. 378, 56 SE 406; Sheppard v. Mitchell

(Ga. 251 S 95 SE 221; Hart v. Altana Terminal Co., 128 Ga. 754, 58 SE 462. Where plaintiffs used for land and obtained a temporary order restraining defendants from removing a crop therefrom, on afflawit that defendants were tregpassers, had prevented plaintiffs from cultivating, threatened to remove the crop, and were insolvent, it was no error to * 10 Cur. Law. INJUNCTION SS 4A. 275 that he should make a showing which would entitle him to an injunction on final hearing.27 A probable right and a probable danger that such right would be defeated in case an injunction was not issued is sufficient.28 The relative hardships attendant upon granting or refusing the injunction will be considered,29 and the court in de

v. Huntington R. Co., 105 NYS 1021. The re-

edy without a trial, the court must be entraning power of courts of equity is exer-

tirely satisfied that the case is one In which

cised for the protection of clearly established

by settled adjudication the plaintiff upon

rights and so far only as is necessary for

the facts stated is not entitled to final relief.

the protection of those rights. Millville

An injunction pendente lite will be granted

Gas Light Co. v. Vineland Light & Power Co.

where it appears that otherwise the plaintiff's

\[N. J. Eq.\] 65 A 504. In the protection of

per property in question will be rendered value-

certain intangible property rights such as

less. Robinson V. New York, etc., R. Co.,

ar arise in actions to enjoin private nuancesances,

105 NYS 897. If there is any reasonable

invasion of franchise, waste, infringement of

probability because of fair doubt as to law

patents, copyrights, or trade marks, or lit-

or fact that plaintiff may ultimately re-

erary property in manuscripts, the law af-

fords so inadequate a remedy that equity

maintain the existing conditions by a prop-

will extend its preventive writ for protec-

erly guarded restraning order. Restrain

tion even where complainants' title is put in

the building of a structure which would ob-

issue. Id. Rights of complainant in fran-

struct navigation of a stream pending a final

chise held too uncertain to justify a pre-

determination of the issues. City of Mill

liminary injunction. Id. Line of a highway

waukee v. Gimbel Bros., 31, 110 NYW

in dispute, but had been used as at present

T. Where equity has jurisdiction and a com-

located for fifteen years. Obstruction will

plainant's damages would be irreparable, re-

be enjoined by landowner claiming it is not

liter will not be postponed until final hearing.

located along the proper line. Williams v. Ostruction of a navigible waterway. Car

Riley \[Neb.\] 113 NYW 136. By statute in

Carlifornia, it is sufficient if, whilst in the

29. Preliminary injunctions to restrain

possession of the property, a party out of

the puffing info effect of a state statute fx-

possession claim an estate or adverse inter-

est. Smith Oyster Co. v. Darchee & Immen

stration of effect of such rates by actual

Oyster & Land Co., 149 F 555. Doubt as to

whether any infringement of patent, and no

evidence of irreparable injury or that de-

Where the damage or injury threatened is

fendant not financially responsible. Hall

of a character which may be easily remedied

Signal Co. v. General R. Signal Co. \[C. C. C.\]

If the injunction is refused, as where it is

153 F 907. In a suit to enjoin unfair com-

chefly monetary damage and the defendant

petition, the showing made on the applica-

is solvent, the court in its discretion may

tion, for a preliminary injunction was not

so free from doubt as to entitle complainant

post obstructing the highway. Williams v.

to an injunction before final hearing. Oliver

Typewriter Co. v. American Writing Mach.

When upon application for a preliminary

Co., 156 F 177.

27. Where such facts appear as show that

facts which taken with the opposing evil

the complainant may at the hearing make

once shows a reasonable probability that

out a case, he is entitled to such preliminary

complainant would be entitled to relief on

restrain as will render a degree, if finally

final hearing, the court acting for the best

made, effective. Dissenting stockholder swing

interest of all concerned in view of the

corporation to restrain it from carrying out

particular facts will balance the relative

a contract for the sale of its property.

harm which may befall the adverse inter-

Mitchell v. United Box Board & Paper Co.

ets from the issue of the writ and grant

\[N, J. Eq.\] 66 A 938. On application for a

or withhold the writ accordingly, Railroad

preliminary injunction, it is not necessary

rate state. Seaboard Air Line R. Co. v.

to present all the evidence, but it is only

Alabama R. Commission, 165 F 782. While

essential to present sufficient evidence of

preliminary injunction is to be cautiously

wrongful acts so that the court may be sat-

issed, it should not be withheld if in the

isfled of the truth of the allegations of the

excess of a sound judgment it is deemed

complaint. Complaint to enjoin strikers

recasary to prevent an injuste. Infringe-

from interfering with business. New York

ment of patent. Continuous Glass Press

Cen. Iron Works Co. v. Brennan, 105 NYS

C. v. Schmerts Wire Glass Co. \[C. C. A.\]

865. Upon the question of the allowance of

disallowance of an injunction pendente lite,

it is not essential that there should appear

property in question will be rendered value- termining the propriety of granting an injunction will exercise its discretion in such a manner as to safeguard the interests of both parties.30 The only purpose of a preliminary injunction is to preserve the status quo pending a final hearing and determination of the cause,31 and if the action is for the sole purpose of an injunction and a temporary injunction is essential to the assertion and preservation of a legal right, if established as alleged it is error of law to refuse or set aside a temporary injunction;32 and on the other hand, unless the court can see from the papers presented that some injury may result to the plaintiff unless the injunction be granted, the application for it will always be denied.33 Where a bill is multifarious, an injunction will not be granted to preserve the status upon which to decree. relief upon the various unrelated matters which render the petition multifarious.34 An ancillary injunction may also be granted in an action at law.35 It is not sufficient cause for granting a temporary injunction merely that it will do no harm.36 Motion for a temporary injunction can be based only on a complaint, and cannot be granted upon affidavits.37 Under Massachusetts statutes a temporary injunction by a creditor creates an equitable lien on the interest of a defendant in a partnership which is valid against the trustee in bankruptcy appointed more than four months subsequent to the injunction.38 The terms of a restraining order or temporary injunction are to be construed in the light of the allegations and the prayer of the bill on which it was granted.39 There must be a proper order before the injunction can issue.40 A preliminary injunction becomes merged in a final judgment granting an injunc-

Ranch Oil & Development Co. \[CaL.\] 91 P 838, For other cases, see ante, $1, Nature of Rem-

edby and Grounds Therefor.

So. Injunction against charging below a certain price for gas Eranded by Federal

151 F 477. Where a deed has been delivered

court and above such a price by the state court. Held security should be given by the gas company to refund if final finding

against them, or a lower rate to be charged

another to issue a temporary injunction on the understanding that it was not in full

if final finding in favor of gas company.

Schneider Y. New Amsterdam Gas Co., 116

App. Div. 345, 101 NYS 855. Where the com-

plinants show an irreparable injury if an injunction be not issued and the rights of

the defendant can be protected by a bond.

a preliminary injunction will issue upon

terms. Enjoin enforcement of railroad rate

law if a bond to protect the interest of the public and refund excess rates is given.

Seaboard Air Line R. Co. v. Alabama R. Com-

mision, 155 F 782. A right to a temporary injunction does not follow automatically if the complaint states a cause of action, for

the court should consider the showing made

in opposition thereto and must determine

whether under all the circumstances an injunction is reasonable. Crawford v. Atlan

tie Coast Lumber Corp. \[S. C.\] 57 SE 670.

31. Knight v. Cohen \[Cal. App.\] 90 P 145.

Will preserve the status of property in dispute pending litigation. Enjoin the

option of a building on land, the title to

which is in dispute. Phenix v. Frampton

\[New.\] 90 P 2. Where claims of two parties

are conflicting, the status quo may be preserved by granting each an injunction until

final hearing. Right to use timber for tur-

pentine purposes. Thomas V. Herrington

\[Ga.\] 58 SE 834. A preliminary injunction to continue existing conditions and prevent

a resort to force by either party pending

final hearing, in a suit to determine rights

in certain land and right of way adjacent

to a railway station, was properly granted

with the court's discretion. Southern R.

Co. v. Carolina Coal & Ice Co. \[C. C. A.\]

certain price for gas Eranded by Federal

151 F 477. Where a deed has been delivered

court and above such a price by the state court. Held security should be given by

specific performance where it appears that
the gas company to refund if final finding

the defendant has attempted to convey to

against them, or a lower rate to be charged

another to issue a temporary injunction on the understanding that it was not in full

holding the title to property in situ quo.

if final finding in favor of gas company.

Schneider Y. New Amsterdam Gas Co., 116

Festrain pendente lite the transfer of stock

App. Div. 345, 101 NYS 855. Where the com-

plinants show an irreparable injury if an injunction be not issued and the rights of

right upon trial. Enright v. Boyd, 106 NYS

the defendant can be protected by a bond.

a preliminary injunction will issue upon

terms. Enjoin enforcement of railroad rate

law if a bond to protect the interest of the public and refund excess rates is given.

the output and refund excess rates is given.

Seaboard Air Line R. Co. v. Alabama R. Com-

mision, 155 F 782. A right to a temporary injunction does not follow automatically if

the complaint states a cause of action, for

the court should consider the showing made

in opposition thereto and must determine

whether under all the circumstances an injunction is reasonable. Crawford v. Atlan

tie Coast Lumber Corp. \[S. C.\] 57 SE 670.

31. Knight v. Cohen \[Cal. App.\] 90 P 145.

Will preserve the status of property in dispute pending litigation. Enjoin the

option of a building on land, the title to

which is in dispute. Phenix v. Frampton

\[New.\] 90 P 2. Where claims of two parties 10 Cur. Law. **INJUNCTION SS 4B**.

tion,\[41\] as do all orders made on a hearing for a temporary injunction or on a motion to dissolve.\[42\] It is improper to grant a temporary injunction unless the same is specifically prayed for.\[43\] Where an answer denies that the complainant's apprehensions of injury are well founded, the court will as a general rule give the defendant the full benefit of the doubt and refuse an injunction against a threatened injury.\[44\]

\_Notice of application.\_See * c. L. 807--An injunction will not ordinarily issue without notice\[45\] though it is within the discretion of the court to do so,\[46\] but before granting an injunction without notice a clear case should be made by the bill, and it should also clearly appear that it is a case of urgent necessity and one in which irreparable mischief will be produced if the aid of the court is denied.\[47\] A preliminary injunction cannot be granted without notice which operates to deprive defendant of his property without due process of law.\[48\] By statutes in some states it is provided that no injunction shall be granted in the absence of reasonable notice, except that in cases of emergency, to be shown by the complaint, the court may grant a restraining order until notice can be given and hearing had.\[49\] And where notice is required, failure to give it renders the order of injunction void.\[50\] An affidavit asserting simply the conclusion that there is an urgent necessity for an injunction and irreparable injury will otherwise result does not warrant a dispensing with notice, for the facts must appear.\[51\] Where an affidavit not only states that notice will accelerate the injury, but further states facts showing that before the application could be heard the injury would be completed, a sufficient reason for granting the order without notice appears.\[52\] Where statutes provide that no injunction shall be issued without notice except in emergency cases when a restraining order may be issued until notice can be given, such order is only in force long enough to enable the required notice to be given and expires when the parties are before the court.\[53\]

(SS 4) \_B. Bonds.\_See * c. L. 808--Bonds may be required to protect the defendant where an injunction pendente life is granted,\[54\] and are required by statute in some states before an injunction can become operative,\[58\] unless it appears that the complaint is unable to give one.\[54\] Such a provision is mandatory, and a writ issued without a proper bond is without force or effect.\[57\] Where the injunction order retains defendant from issuing execution on judgment, the bond should be conditioned for the payment of all moneys and costs due defendant in the judgment.\[58\] The validity of a bond is not affected by the fact that it ante-dates the order where the sureties justified and the bond was filed after order made.\[59\] Courts before granting injunctions may, under their general equity powers, require applicants to give bonds so conditioned, in addition to statute requirements, that actions at law to recover upon them may be maintained.\[60\] The question as to propriety of a bond which has been given as ordered is not open on appeal.\[61\]

(SS 4) \_C. Dissolution, modification or continuance; reinstatement.\_See * C. L. 308 --A preliminary injunction is not res judicata and may be dissolved by the court granting it, and it is not necessary to appeal.\[62\] It is a matter resting largely within the discretion of the court and will not be disturbed on appeal except in cases of palpable abuse of process.\[63\] In Kentucky the right to grant a dissolution, modification, or reinstatement of a decree for an injunction by a judge of the court of appeals, is purely statutory, * and, although a temporary injunction may be dissolved on motion by a single judge of the court of appeals, there is no reason why the movant may not ask all the judges to hear his motion.\[65\] A party to the cause, though not enjoined with the other defendants, if his interests be affected, may move to dissolve the injunction.\[66\] The effect of dissolution will be considered, and if great harm would be caused by a continuance and there is nothing to show that complainant may not obtain other redress the injunction should be dissolved.\[67\] If the allegations of a bill do not warrant interference by injunction, the injunctions may be dissolved though the bill may be retained for other relief,\[68\] but if the bill states no cause for equitable relief, the injunction should be dissolved at the earliest possible moment and the bill dismissed,\[69\] and where an injunction is granted upon improper pleadings, it will be vacated on motion.\[70\] A motion to dissolve should be sustained where there is an adequate remedy at law.\[11\] It is the general rule that where the answer fully, fairly, distinctly, and positively denies the material allegations of the bill upon which the injunction is based the injunction should be dissolved in the absence of proof of such allegations,\[12\] but the rule is not of universal

55. Littleton v. Burgess \[Whyo.\] 91 P 832.

01. Savage v. Parker \[Fla.\] 43 S 507.

01. Wilse v. Northern Star Min. Co. \[Idaho\]

58 P 1053.

58. Williams v. Harper, 127 Ill. App. 619.

01. Saint's Union of the Pac. v. Hammond

Lumber Co., T. C. A.\] 156 P 450.

60. Burgeln v. Cameron \[Ariz.\] 90 P 824.

01. Reed v. New York Nat. Ekch. Bik. 250 III. 50, 82 NZ 841.

01. German Sav. & Loan Soc. v. Aldridge

\[Cal. App.\] 89 P 1063.

63. Where evidence is conflicting will not reverse decision on appeal. Collins v. Stanley

ley VWy.\] 88 P 820. Within the discretion of trial judge to dissolve injunction on bond. By Code. Union Sawmill Co. v. Summit

Lumber Co., 119 La. 813, 44 S 28.

64. Kelley v. Pulaski Stave Co., 81 Ky. L. R. 942, 105 SW 153.

01. Thomas v. Thompson, 81 Ky. L. R. 524, 102 SW 849.

01. Hunt v. Frapper, 126 Ill. App. 403.

01. Mobile & W. R. Co, v. Fowl River Lumber Co. \[Ala.\] 44 S 471.

01. Gray v. South & N. R. Co, \[Ala.\] 43 S 859.

01. Hall v. Horne \[Fla.\] 42 S 383.

01. Injunction granted on complaint and afflavit which was largely on information and belief and signed by the attorney and not the party himself for which no excuse was offered will be vacated on motion.

Terry v. Green, 82 Misce., 103 NYS 1014.

71. Lafayette v. Mood \[Ind. T.\] 104 SWW 853.

01. Meyer v. Meyer, 80 W. Va. 473, 66 SE

01. Mobile & W. R. Co. v. Fowl River Lumber Co. \[Ala.\] 44 S 471.

01. When the sworn answer fully and positively in unequal unequal terms defines all the material allegations of the bill on which the complainants asserted equity rests, a preliminary injunction will be denied or if previously granted will be dissolved. City of Sacramento v. Southern Pac. Co., 15 F 1022. Where allegations of bill and proof are squarely met by answer and proof, it is proper to dissolve temporary injunction. Shaw v. Palmer \[Fla.\] 44 S 953; Robbins v. White \[Fla.\] 42 S 841. Where al application," it being a matter which rests largely in the discretion of the trial court." There are several specific exceptions to this general rule, as where, upon the pleadings and affidavits or proofs, if any, together with the circumstances of the case, there is a strong presumption or probability in favor of the plaintiff's equity, it is error to dissolve ancillary injunction granted to preserve the status quo, " or the plaintiff would lose all the benefit which would otherwise accrue to him should he finally succeed in the cause," or where a dissolution would in effect amount to a complete denial of the relief sought by the bill." An injunction will not be dissolved upon an answer admitting the material equities of the bill and setting up new matter in avoidance." Where a petition is sworn to positively, the denials of the answer must be equally positive to warrant a dissolution of an injunction upon the petition and answer alone." It is the general rule that where the main purpose of a proceeding is to obtain a permanent injunction, if the evidence raises serious question as to the existence of facts which make for the plaintiff's right and sufficient to establish it that a preliminary restraining order will be continued to the hearing." Where there are no affidavits with complaint and defendant proves that he has not done and does not intend doing the acts complained of, a temporary injunction will not be continued." It is proper to consider affidavits in opposition to the injunction whether defendants have filed an answer or not." A motion to dissolve predicated upon matters appearing on the face of the papers is in the nature of demurrer and admits the truth of the allegations." A motion to dissolve a preliminary injunction on the ground that the signature of the surety on the bond was affixed by an unauthorized person is in the nature of a peremptory exception relating to forms and should be filed before joinder of issue." Upon a motion to dissolve, it is improper to proceed to an investigation of the merits of the case any further than they are put in issue by the answer." An injunction once issued should not be dissolved ex parte," and may be reinstated by writs of certiorari and prohibition if so dissolved."

legations praying for an injunction against obstructing a highway are sufficient to warrant its issuance but are denied by the ans-

with gas, but another party had contracted

with them and that there was no threat

against plaintiff to cut off the gas. Paff v.

wer, a motion to dissolve heard by consent

Standard Gaslight Co., 118 App. Div. 904, 103

on the pleadings alone should be allowed.

173. Pere Marquette R. Co. v. Bradford,

ing one railroad from crossing another at

149 F 492.

grade will not be continued where it ap-

44. La Plant v. Marshalltown, 134 Iowa,

pears that the defendant road, used only for

261, 111 NW 816. Court may retain injunc-

cars from a coal mine, will be abandoned

tion with its discretion despite denials of

by the time the complainant road is ready

complaint's allegations. Mobile & W. R.

for use and that further the complainant

82. Co. v. Row River Lumber Co. (Ala.) 44 5 471.

01. Meyer v. Meyer, 60 W. Va. 473, 56 SE

01. Meyer v. Meyer, 60 W. Va. 473, 56 SE

01. Meyer v. Meyer, 60 W. Va. 473, 56 SE

01. Where bonds have been issued by fraud,

equity will be slow to dissolve or deny an injunction, for as soon as the bonds pass to

in the place timber and making no denials

Pere Marquette R. Co. v. Bradford, 149 F 492.

77. Meyer v. Meyer, 60 W. Va. 473, 56 SE

01. Collins v. Weigselbaum, 126 III. App.

01. Pere Marquette R. Co. v. Bradford, 149 F 492.

01. Pettition sworn to positively by plain-

01. Answers on belief. Collins v. Stanley

01. Dispute whether or not an alley was a

public way. Tise v. Whitaker-Harvey Co.,

144 N. C. 507, 67 SE 210.

81. Complaint that defendant agreed to

supply plaintiff with gas but refused payment tendered and threatened to turn off the

answer to the original bill. Wingert v.

supply. On motion to continue it appeared

that defendant had never supplied plain

### 280.1 Injunction $ 4D. 10 Cur. Law.

**A** district judge may in chambers, after notice, dissolve a temporary injunction, although granted upon a hearing at which both parties were present.\*\*88 **A** judge may dissolve an injunction in vacation, but cannot dismiss the bill.\*\*89 \*\*So, too, it is not error to dissolve an injunction on a holiday.\*\*90 \*\*Where on final hearing the complain-ant would not be entitled to an injunction, he cannot complain on appeal that he was not notified as required by statute of a motion to modify a temporary injunction.\*\*91 \*\*Where after preliminary injunction granted an amendment is made to support such injunction, it is not error to refuse to dissolve it on the ground that the original bill may have been defective.\*\*32 \*\*The dissolution of a temporary injunction in no way withdraws the property from the operation of final judgment,\*\*93 \*\*nor does the modification of a temporary injunction affect plaintiff's right to relief.\*\*94 **On** dissolving an injunction, affirmative relief will not be granted in the absence of a cross bill, though where the injunction has taken property from the defendant the order should grant restitution thereof.\*\*95 **By** statute in some states, preliminary injunctions are inoperative after a certain period of time unless continued by consent or the case is on the list for trial on its merits.\*\*96 \*\*Where an injunction has been used to shield wrongdoers from police interference, it will be dissolved upon motion though no leave was reserved in the original order.\*\*97 \*\*An injunctional order may be modified upon a motion to vacate.\*\*98 \*\*The scope of an injunction order may be extended upon motion during pendency of action.\*\*99 \*\*Under a general leave reserved for further instructions, a decree cannot be altered.\*\*1 \*\*Where the wrong, to prevent which temporary injunction was issued, no longer exists or is no longer threatened, the bill will be dismissed,\*\*2 \*\*but circumstances may alter this rule. Where a temporary injunction issued to restrain the sale of liquor, defendant, having rendered a final trial necessary, could not procure a dismissal by showing an abandonment of the business after granting of the preliminary injunction and before trial.\*\*3 \*\*(SS 4) \_D. Damages on dissolution and liability on bond.\_See $ c. L. $10...Detion be effected by rule to dissolve or by a pool room. Devlin v. McAdoo, 116 \*\*App.\*\*counter injunction. Pettie Anne Draniage Div. 24, 101 NYS 546. Dist. Com'rs v. Iberia & V. R. Co., 117 La. 98. Caviker V. Milwaukee \[Wis.\] 113 NIV 940, 42 S 483. 419. 418. 420. 421. 422. 423. 424. 425. 426. 427. 428. 429. 430. 431. 432. 433. 434. 435. 436. 437. 438. 439. 44. 44.

- 10 Cur. Law. INJUNCTION SS 4E.
- 16
- 17
- 18
- 19
- 20
- 21
- 22
- 23
- 24
- 25
- 26
- 27
- 28
- 29
- 30
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 30
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 30
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 38
- 39
- 30
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 38
- 39
- 30
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 38
- 39
- 30
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 38
- 39
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 38
- 39
  tions are ordinarily appealable.17 A party affected by an injunction has the right to appeal though not specifically mentioned in the restraining order.18 The question of granting or refusing an application for a temporary injunction is addressed to the sound discretion of the court and its action will not be reversed on appeal unless there appears to be an abuse of discretion.19 Mandamus will not lie to compel a judge to grant a suspensive appeal from his order granting a dissolution of a preliminary injunction on bond where no irreparable injury will result from dissolution of the injunction.20 Where the Code provides for an appeal from temporary injunction proceedings and where it also provides for a temporary restraining order without notice to prevent irreparable injury, such restraining order cannot be appealed from as the provisions for appeal do not apply to such an order.21 The perfecting of an appeal from an order refusing to dissolve an injunction together with a supersedeas does not stay the operation of the injunction nor deprive the court below of power to punish a party for his contempt in refusing to obey it.22 Error by a judge in directing the clerk of the wrong district court to issue a temporary injunction which was in fact issued by the clerk of the right court is not cause for dissolution on appeal.23 The question as to the propriety of a bond given as ordered is not open on appeal.24

SS 5. _Decree, judgment, or order for injunction_.See 8 C. L. 318 Relief by injunction must not be broader than is reasonably necessary for the complainant's protection,25 or is warranted by the evidence,26 or the pleadings and proceed-

17. See Appeal and Review, SS 4C. NOTE. Suspension of operative force pending appeal: An order granting an injunction concluded with the following words: "The injunction will not be in effect until the expiration of 30 days from the filling of this order, and will then be in effect if no appeal is then perfected to the supreme court." An appeal from this order was perfected within the thirty days and a motion was then made to dismiss the appeal on the ground that there was no injunction nor final order from which an ap-equal would lie: Held, that the order "never had any force or effect as a live order granting an injunction. because the right to an injunction never accord under it," and the motion was sustained. Porter v. Speno \[Idaho\] 92 P 367. A dissenting opinion maintained that the decree should be construed as a whole, that its whole force and effect was to retain the parties in status quo until a final decision on appeal, and that such an order as this lay within the discretion of the trial court. There seems to be no conflict among the English and American authorities on this point, the cases all holding in accord with the dissenting opinion that, whenever it appears that suspending the operation of a decree pending an appeal, will work justice to the parties, an order to that effect may be made. Mayor, etc., v. Wood, & Hare, 131, 152; Scholey V. Central R. of Venezuela, 14 Week. Rep. 786; Walford v. Walford, 19 Law. T. (N. S.) 283; Forbush V. Bradford, Fed. Cas. No. 4,930; Ewing V. Pillley, & PA. (7 Wright) 384; Disbro v. Disbro, 27 How. Pr. (N. Y.) 147; Genet v. President & D. & H. C. Co., 113 N. X. 472; Pach v. Geoffroy, 19 NYS 683; Gammons v. Gloverslitsv, 70 NYS 284, 22 Cyc. 970.--See 6 Mich. L. R. 423.

01. Prayer for injunction against certain cooperation officers, the corporation not be-

01. Obstruction of a liability. Willslams v. Los Angeles R. Co., 150 Cal. 592, 89 P 330.

VIII not interfere with discretion of trial court. Sellers v. Page, 127 Ga. 633, 56 SE 1011; Savage v. Parker \[Fla.\] 43 S 507; Shaw v. Palmer \[Fla.\] 44 S 953. The court of ap-

19. Obstruction of a liability. Willslams v. Los Angeles R. Co., 150 Cal. 592, 89 P 330.

VIII not interfere with discretion of trial court. Sellers v. Page, 127 Ga. 633, 56 SE 1011; Savage v. Parker \[Fla.\] 43 S 507; Shaw v. Palmer \[Fla.\] 44 S 953. The court of ap-

19. Obstruction of a liability. Willslams v. Los Angeles R. Co., 150 Cal. 592, 89 P 330.

VIII not interfere with discretion of trial court. Sellers v. Page, 127 Ga. 633, 56 SE 1011; Savage v. Parker \[Fla.\] 43 S 507; Shaw v. Palmer \[Fla.\] 44 S 953. The court of ap-

19. Obstruction of a liability. Willslams v. Los Angeles R. Co., 150 Cal. 592, 89 P 330.

VIII not interfere with discretion of trial court.

10 Cur. Law.

Injunction SS 6. 283

ings.**17**A\*\* decree is to be reasonably construed,\*\*28 \*\*and an ambiguous decree will be so construed as to uphold it,\*\*29 \*\*Money damages for injuries may be awarded together with an injunction.\*\*30 **A** court of equity may grant damages as an alternative to an injunction despite the fact that statutes require a special proceeding for damages.\*\*31 **A** final decree granting injunction will not be modified by striking out words deliberately put in for reasons stated and which has been affirmed on appeal, for such an application is substantially an application to the trial court for a rehearing after affirmance on appeal.\*\*32 **Provisions of** \*\*chancery act of 1902, providing for the issuance of injunction ten days after decree construed.\*\*38 **SS 6.**\_Violation and punishment.\_35 **C. L. 315--A** \*\*contempt is a willful disregard or disobediene.\*\*34 \*\*Disobediene of an injunction, void for want of jurisdiction in the court or judge awarding it, is not a contempt.\*\*35 \*\*The fact of a misnomer of a defendant in the pleadings does not relieve him of liability for contempt for violation of such order, where he was in fact served with process or appeared and could not have been misled as to the person intended.\*\*38 \*\*That complainant's agent induces defendant to violate an injunction does not excuse a contempt.\*\*37 \*\*Cases construing facts and determining the question of violation are collected in the notes.\*\*38 \*\*Punishment for violation.\*\*35 **C. L. 315--The trial court is authorized to deter-successor is not justified where there is no evidence that at the date of** **sult they had** **(N. J. Eq.) 67 A 849.** \*\*34 **Contempt should not be adjudged** **sentation. International Register Co. v.** **Reordering** **Fare Register Co. \[C. C. A.\] 151 F nearly all the defects which constituted their plant a nuisance and minimized the rest. Saal v. South Brooklyn R. Co., 106 NYS 896.** \*\*35 **Powhata Coal & Coke Co. v. Ritz, 60 N. Va. 359, 65 8E 257.** \*\*36 **Aaron V. U. S. \[C. C. A.\] 155 F 833.** \*\*37 **Injunction against dealing in non-brought to nlpon a conspiracy to compel brainleft to his only union men upon cer-tain contract work, a permanent injunction against interference with any future contracts cannot be made where, disregarding the pleadings, no such question was referred to the master or passed on by him. Aberthaw Connat. Co. v. Cameron, 194 Mass. 208, 80 NNE 478.** \*\*28 **Decree provided that certain machin-ery connected with a water plant or other machinery of equal effectiveness be continued in use during the remainder of the life of a contract which had 35 years to run. This was not objectionable as requiring the use of machinery beyond its life.** \*\*Bounds v. Hubbard City \[Tex. Civ. App.\] 19 **Tex. Ct. Rep. 158, 105 SW 56.** \*\*20 **Decree so ambiguous that it might be construed as mandatory in decreeing construction of work destroyed or merely retashing further destruction. Altain & B. R. Co. v. Brown \[Go.\] 59 SE 278.** \*\*30 **Bill to nlpon practice of dentistry by one of two partners who had sold all his interest to the other and had then gone into business again. Foss v. Roby \[Mass.\] 81 NE 199.** \*\*31 **Lowering of the grade of a street was partly completed. Court enjoined such an act with an option of leaving it and paying damages. City ordinance required claims for damages against the city to be presented to the council. Hart v. Seattle \[Vdash.\] 88 P 205.** \*\*32 **Eureka Fire Hose Co. v. Eureka Rubber Mfg. Co. \[N. J. Eq.\] 65 A 870.** \*\*33 **Laird v. Atlantic Coast Sanitary Co.** \*\*34 **Contempt should not be adjudged** **sentation. International Register Co. v.** **Reordering** **Fare Register Co. \[C. C. A.\] 151 F nearly all the defects which constituted their plant a nuisance and minimized the rest. Saal v. South Brooklyn R. Co., 106 NYS 896.** \*\*35 **Powhata Coal & Coke Co. v. Ritz, 60 N. Va. 359, 65 8E 257.** \*\*36 **Aaron V. U. S. \[C. C. A.\] 155 F 833.** \*\*37 **Injunction against dealing in non-brought to nlpon a conspiracy to compel brainleft to its only union men upon cer-tain contract work, a permanent injunction against interference with any future contracts cannot be made where, disregarding the pleadings, no such question was referred to the master or passed on by him. Aberthaw Connat. Co. v. Cameron, 194 Mass. 208, 80 NNE 478.** \*\*28 **Decree provided that certain machin-ery connected with a water plant or other machinery of equal effectiveness be continued in use during the remainder of the life of a contract which had 35 years to run. This was not objectionable as requiring the use of machinery beyond its life.** \*\*38 **A** \*\*Laird organization, or its officers who select members to act as pickets, may become liable for the un mine whether or not a defendant has been guilty of the violation of an injunction issued by it.49 Contempt proceedings are in all cases summary before a judge, without the intervention of a jury; 40 and technical pleadings are not required, it being sufficient if, by petition, affidavit or other showing, it is made to appear that there has been a willful violation of the court's order,41 but the affidavit must state facts sufficient to constitute a prima facie case,42 and clearly apprise the defendant of the nature of the charge against him.48 If the affidavit is not sufficiently specific in its charges, it may be amended by a reverification with the court's consent.44 Contempt proceedings may be entitled in the name of the state as complainant or in the name of the complainant in the original action, the practice varying in different states.48 The failure of a party to comply with the order of a court requiring him to perform some act for the benefit or to the advantage of the adverse party to a proceeding is a quasi or civil contempt for a violation of which a punishment is executive only, and the contemnor, if found guilty, is adjudged to stand committed until he obeys the command,40 while disobedience or resistence of the process of a court constitutes a criminal contempt, a conviction for which incurs a penalty of fine, or imprisonment or both, and is punitive.41 Willful disobedience of an injunction is punishable as for a criminal contempt in some states by statute.48 In proceedings for contempt, the rules of evidence applicable to civil cases will apply.49 In a proceeding for contempt the respondent may question the order which he is charged with refusing to obey only in so far as he can show it to be absolutely void.50 A party is rendered amenable to an injunction if he has actual notice thereof despite the fact that he was not a party and was not served with process.51 A judgment for contempt is defective if it does

Div. 619, 101 NYS 721. An order will not be knowledge of the terms of the restraining construed to restrain acts beneficial or not injurious to the rights of the party in whose behalf it was obtained unless its words clear:
43\. Aaron v. U. S. \[C. A.\] 155 F 833. The testimony offered in contempt proceedings straining stockholder from disposing of his stock or exercising any right incident to own:

affidavit. Where affidavit charged building rashy was not violated by the stockholder

bringing suit to recover property belonging to the corporation, the purpose of the order being to keep the stock so that it might be recovered in the same condition. Maine Products Co. v. Alexander, 115 App. Div. 475, 101 NYS 44. Where during the precedency of a contest an order of injunction is issued against one of the parties from interfering with- or entering upon the land embraced in the entry of the other, such injunction will not prevent the successful contestant from maintaining an action of forceble detainer after the contest has been closed. Howe v. Parker, 18 Okl. 282, 90 P 15. Evidence insurf-

defend to show defendant guilty of contempt

of an order against entering abutut's land.

Porter v. State \[Vyo.\] 92 P 885. Where the allegations of a petition rendered it multi-farious and it is demurred to it is error to

brisanness. McBride v. People, 225 III. 315, 80 NSE 306.

In contempt. White v. North Georgia Elec. Co., 128 Ga. 538, 68 SE 33.

39. Enterprise Foundry Co. v. Iron Moulders' Union, 149 Mich. 31, 14 Det. Leg. N. 313, 112 NW 685.

01. State v. Sieber \[Or.\] 88 P 513.

01. Hammond Lumber Co. v. Sailors' Union of the Pac., 149 F 877. Contempt proceedings may be commenced either by petition or affidavits. Flannery v. People, 225 III. 62, 80 NE 60. Affidavit is sufficient if it sets out the acts done in violation of the writ and avers that the party accused thereof had

01. Thirjunction against violence by strike-

01. Flannery v. People, 225 III. 62, 80 NE 60.

01. Thirjunction against violence by strike-

01. Barton v. U. S. \[C. A.\] 155 F 833. The testimony offered in contempt proceedings

01. Flannery v. People, 225 IV. 62, 80 NE 60.

01. Objection made that part of decree was erroneously made, but this might be stricken out and not affect the remainder. Flannery v. People, 225 III. 62, 80 NE 60.

01. Thirjunction against interference with strike-

01. Thirjunction against violence by strike-

01. Thirjunction against violence by strike-

01. Thirjunction against violence by strike-

01. Thirjunction against violence by strike-

58 not state the reason therefor, but such defect may be remedied by looking to the moving papers for the character of the violation.\[52\] A trade union which is merely a voluntary association without right to sue or be used in its own name cannot be fined for contempt for violation of an injunction although a party to the suit and having entered a general appearance.\[53\] Where defendants violated an injunction against interfering with plaintiff's employees, they could not complain that they were punished beyond the merits of their offense where that was the second proceeding for violation in substantially the same manner.\[54\] Where defendants participated in a plan to induce employees to leave their employment, etc., in violation of an injunction, an injury to the employer will be presumed.\[55\] In case of violation of an injunction where no money damages are shown and no overt act done, a nominal fine will be imposed under terms of the statute.\[56\] Contempt proceedings are regulated by statute in some states.\[57\]

_Liability for wrongful injunction_.\[See 8 C. L. 817_Malicious prosecution of an injunction or abuse of the writ is elsewhere treated. Where in a suit for specific performance of a contract for the sale of personally, complainant obtained an injunction restraining the foreclosure of a chattel mortgage, which was dissolved, on hearing, and bill dismissed, the defendants are entitled to a reservation in the decree of a right to file suggestions of damages for the issuance of the injunction.\[58\] Where grant of injunction without bond is not authorized by law under the circumstances and amounts to an abuse of process, the litigant obtaining the same is liable for damages thereby occasioned.\[59\] The liability on the bond has already been discussed. Where the statutes provide that upon the dissolution of an injunction to stay a judgment damages should be assessed, and in the case where money was enjoined, that should not exceed 10 per cent of the amount released, it was error to award $195 damages where the jurisdiction of the court rendering the original judgment was limited to $300.\[60\]

## 8. _Inns, Restaurants and Lodging houses._

Discrimination on account of race is excluded.\[61\]

\_Definitions.\[See 8 C. L. 817\]\_Public regulation.\[See 8 C. L. 818\]\_The legislature has power to regulate liens of innkeepers \[62\] and may impose an occupation license.\[63\]

\_Duty to receive guests.\[See 8 C. L. 818\]_Under the common law and in some cases by statute, a landlord having necessary conveniences must afford reasonable accommodation.\[64\]_

title to property after foreclosure. Certain bondholders not parties to the foreclosure proceedings brought suit after decree to establish their title to property. Held not in contention. Lewis v. Peck \[C. C. A.\] 154 F 273.

52. Ex parte Cash \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 783, 99 SW 1118.

01. Alls-Chaimmers Co. v. Iron Moulders' Union, 150 F 155.

54, 55. Flannery v. People, 225 Ill. 62, 80 NE 60.

56. St. 1898, $ 3490. Vilter Mfg. Co. v. Humphrey \[TWis.\] 112 NW 1095.

01. Statute construed. State v. Sieber \[Or.\] 88 F 8132.

01. Johnson v. McNellis, 228 Ill. 351, 81 NE 1085.

01. Milling v. Solphur Timber & Lumber Co., 119 La. 585, 44 S 307.

Liability for safety of guess.See e C. L. \[118\].-An innkeeper is bound to exercise reasonable care for the safety of his guests,\[68\] and the innkeeper's servants may act for him in such protection.\[69\] The innkeeper can be held in damages for wrongful acts of servants only when wrongful acts were within authorized scope of servant's employment.\[67\] Although the common-law rule that obligation of innkeeper toward guests extends only to movables and not to the person still exists in some states,\[68\] the liability of an innkeeper under the common law \[69\] has been changed by statute in some states.\[70\] Contributory negligence will defeat the right of a guest to recover for personal injuries.\[71\]

Liability of guests.-Guests are responsible in damages to the innkeeper for overt acts of guests or his servants,\[72\] as by the creation of a nuisance in the apartments occupied by him.\[73\]

Liens.See e C. L. \[118\].-By statute in some states a landlord has a lien on goods owned by a third person in rightful possession of guests.\[74\]

G. Regular boarder entitled to same protection as ordinary guest. Adams v. Cumberland Inn Co., 117 Tenn. 470, 101 SWV 428. Use necessary force to eject annoying party. Chase v. Knabel \[Wash.\] 90 P 642. The legislature has power to regulate liens. Id. Chase v. Knabel \[Wash.\] 90 P 642. Racashably necessary force only to be used. Holden v. Carraher \[Mass.\] 81 NTE 261. \[70\]. \[71\]. \[72\]. \[73\]. \[74\]. \[75\]. \[76\]. \[77\]. \[78\]. \[79\]. \[80\]. \[81\]. \[82\]. \[83\]. \[84\]. \[85\]. \[86\]. \[87\]. \[88\]. \[89\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[90\]. \[91\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\].

10 Cur. Law. INSANE PERSONS $ 1. 287

\_Liability for effects.\_See $ C. L. $18.--An innkeeper is liable for loss of the effects of his guests,\[78\] but at common law this liability extends only to movables.\[76\] One who by advertisement, etc., holds himself out as propriator is liable as bailee of baggage of guests though he is not the actual owner of the establishment.\[77\]

Inquest of Damages; INQUEST OF DEATH, see latest topical index.

## 1. Existence and Effect of Insanity in

$ 1. _Existence and Effect of Insanity in_

$ 7. _Torts, 202._

$ 2. _Inquisition, 298._

$ 8. _Crime, 292._

$ 3. _Custody, Guardlanship, and Support, 288._

$ 9. _Actions by or Against, 293._

$ 4. _Commitment to Asylums, 290._

$ 10. _Removal to Residence in Another State, 294._

$ 5. _Property and Debts, 291._

_The scope of this topic is noted below.\[78\]_

$ 1. \_Existence and effect of insanity in general.\_See $ C. L. $19.--Sanity is, prima facie, presumed, \[79\] but where insanity is shown to have existed, its continuance is presumed until the contrary is shown,\[80\] provided it was continuing and permanent in its nature, or that the cause of the disorder was continuing and permanent.\[81\] Upon the question of one's sanity at the time he executed a note, evidence of his mental condition before or after that time is material only in aiding the jury to determine his condition at that time.\[82\] Where it is sought to prove that an alleged lunatic was sane by showing that he wrote certain letters, the letters must be produced or accounted for.\[83\] The opinions of nonexerts on the question of sanity are not admissible if a proper predicate has not been laid.\[84\]

- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]
- \[rightmargin=\*\]
- \[leftmargin=\*\]

## 2. Inquiitions

See 1. L. 320.--The persons whose sanity may be inquired into \[85\], and what may be determined \[86\] in an inquisition of lunacy, are questions generally to be determined from the terms of the statute governing the proceeding. Proceedings had without notice to the person alleged to be insane are voidable by the party himself \[87\], but not void as to other parties \[88\], and advantage cannot be taken of such want of notice in collateral proceedings \[89\]. The finding upon an inquisition of lunacy is not conclusive evidence against third persons \[90\]. Where one has been adjudged insane, all necessary prior steps are presumed \[91\]. Where sufficient ground is shown therefor, the alleged lunatic's default will be opened and a new hearing granted \[92\]. One who after suing out a commission of lunacy voluntarily dismisses the proceeding is not compelled to pay the costs which have accrued as a condition precedent to instituting a second proceeding of the same character relative to the same person \[93\].

SS 3. _Custody, guardianship, and support_\[85\]. See 1. L. 321.--Jurisdiction of the appointment of guardians for insane persons is generally vested in the probate courts \[94\], it sometimes being expressly extended to cover the appointment of guardians for nonresident incompetents having property in the county where the court is established \[95\]. An insane ward cannot change his domicile \[96\], and his removal to another county in which he has no property does not authorize the transfer of guardianship proceedings to the district court of such county \[97\], especially where his nearest relative and his guardian object to such transfer \[98\]. In Rhode Island the probate court before appointing a guardian for a person confined in an asylum is required to appoint a guardian ad litem to represent him in the proceeding \[99\]. There must be a clear showing of mental incapacity to warrant the appointment of a guardian on that ground \[1\]. The legality of the appointment of a guardian, if prima facie regular, cannot be attacked collaterally \[2\]. Where the record of the appointment is silent upon the subject, it will be presumed that all steps essential to the acquisition of jurisdiction of the person of the ward were complied with \[3\]. It is the guardian's duty to 10 Cur. Law.

INAME persons SS 3.

keep his ward's money and property separate from his own,\* keep an account thereof,\* make investments, not in his own name, but as guardian,\* and keep such investments separate from his own.\* In Iowa the guardian has no authority without an order of court to loan the ward's money.\* The guardian must render his account in the proper court,\* and such account must be properly audited and settled.\* Ordinarily the removal of a guardian rests in the sound discretion of the court appointing him,\* but where such discretion is abused, it may be corrected on appeal.\* In Iowa failure of the guardian to make a yearly report, as required by statute, is ground for his removal.\* Where a husband has been appointed committee of the person of his insane wife, only extraordinary facts will warrant his removal and the appointment of another in his stead.\* Where disagreements between members of the committee of the estate of an incompetent have resulted in unnecessary litigation, and their continuance in office would be detrimental to the estate, the committee should be removed and a new one appointed.\* In most states the committee has power to contract respecting the lands of the lunatic.\* Upon the removal of a guardian he should be compelled to immediately file his final report and make settlement with his successor with the approval of the court.\* The committee of a lunatic is entitled to reimbursement for money borrowed by him and expended for the support of the lunatic after the personal property was exhausted.\* The statute of limitations is a bar to a claim by the committee for money expended for the lunatic's support.\*

- 4, 5, 6, 7. McIntire v. Bailey, 133 Iowa, 418, 110 NVP 588.
- 8. Code, $ 3200. McIntire v. Bailey, 133 Sourdized within the limits of his trust to Iowa, 418, 110 NVP 588.
- 9. A guardian appointed under P. L. 1899.
- 10. A guardian upon filing his account with clerk of counter changers to a master to audit and state the account, and upon coming in of such report, application may be made to court for rule prescribing the notice to be given to all parties in interest, of a motion to confirm report, and for settlement of account. In re Compton, 70 N. J. Eq. 556, 67 A 1077.
- 11. McIntire v. Bailey, 133 Iowa, 418, 110 NVP 588.
- 12. McIntire v. Bailey, 133 Iowa, 418, 110 NVP 588. Evidence considered and decree denying petition for removal of guardian reversed. Id. Upon reversing decree denying petition for removal of guardian, su-preme court will not appoint a guardian, but will leave such appointment to district court upon remand. Id.
- 13. Code, $ 3203, 824. McIntire v. Bailey, 133 Iowa, 418, 110 NVP 588.
- 14. Facts held not to warrant such removal and substitution. In re Andrews, 56 Misc., 106 NYS 13.
- 15. In re Andrews, 56 Misc., 6, 106 NYS 13, 1096. And this though the committement have come to an understanding, if such understanding is a mere temporary arrangement which may at any moment be abrogated, the main consideration for which is not the welfare of the incompetent. Id.
- 16. NOTE. Powers of committee: S. and T. were the committee of a lunatic. S. gave his consent to an adjoining landowner to underpin a party wall. In an action to complement the removal of a portion of this under- 10 Cur. L.-- 19.
- 17. McIntire v. Bailey, 133 Sourdized within the limits of his trust to bind the lunatic by acts clearly for his bene- 1899.
- 18. Subarpless v. Boldt \[Pa.\] 67 A 652.
- 19. A guardian appointed under P. L. 1899.
- 20. A guardian upon filing his account with clerk of counter changers may take an order of reference to a master to audit and state the account, and upon coming in of such report, application may be made to court for rule prescribing the notice to be given to all parties in interest, of a motion to confirm report, and for settlement of account. In re Compton, 70 N. J. Eq. 556, 67 A 1077.
- 21. McIntire v. Bailey, 133 Iowa, 418, 110 NVP 588.
- 22. McIntire v. Bailey, 133 Iowa, 418, 110 NVP 588. Evidence considered and decree denying petition for removal of guardian reversed. Id. Upon reversing decree denying petition for removal of guardian, su-preme court will not appoint a guardian, but will leave such appointment to district court upon remand. Id.
- 23. Code, $ 3203, 824. McIntire v. Bailey, 133 Iowa, 418, 110 NVP 588.
- 24. Facts held not to warrant such removal and substitution. In re Andrews, 56 Misc., 106 NYS 13.
- 25. In re Andrews, 56 Misc., 6, 106 NYS 13, 1096. And this though the committement have come to an understanding, if such understanding is a mere temporary arrangement which may at any moment be abrogated, the main consideration for which is not the welfare of the incompetent. Id.
- 26. NOTE. Powers of committee: S. and T. were the committee of a lunatic. S. gave his consent to an adjoining landowner to underpin a party wall. In an action to complement the The question whether the cost of caring for indigent or criminal incompetents committed to a state institution shall be borne by the state or by the county or municipality is one of which the statutes, construed in the light of the particular circumstances of the case, are generally determinative.\[20\] Generally speaking an insane person is bound to pay for his support as long as he can,\[21\] and provision is frequently made by statute for the recovery by the state or county of money spent in the support of an insane person, either from such person \[22\] or from the person legally bound for his support.\[23\] But this liability may be modified by agreement made, under statutory sanction, with the proper authorities.\[24\] The incarceration of an insane minor in an asylum, without his father's consent, does not emancipate him, and thus relieve the father from liability for his support.\[25\] In Michigan an order of the prolate court requiring a father to contribute to the support of an indigent insane daughter is not invalid because it does not fix the specific amount to be paid.\[26\] In Kentucky the filing of a suit by the state against an insane person, to recover for his maintenance, creates a lion upon so much of his estate as is described in the petition.\[27\] An allowance for taking care of an incompetent person, obtained by fraud will be set aside.\[28\] In an action to set aside an allowance on this ground, an admission by claimant that she had been fully paid and that the incompetent did not owe her anything is admissible.\[29\]

SS 4. \_Commitment to asylums.\_See * C. L. \[23\] A statute providing for the commitment of an insane person to an asylum or curative hospital must conform to constitutional requirements.\[30\] Service of notice on the alleged lunatic is generally

20. One committed to Massachusetts School\[ to the county for the care and maintenance for the feeble-minded is not an "insane person," within definition given by Rev. Laws **24.** Under Code 1897, $ 2297, and under the c. $, $ 5, cl. 6, and commonwealth, therefore, is not liable for his support under Rev. Laws, c. $7, $8, $ 79. Chapin v. Lowell, 194 has authority to enter into agreement with Mass. 486, $0 NE 618. Under Pen. Code, $1386, 1373, where one charged with crime is adjudged insane and committed to state hospital prior to his arragment, the county in which the information was filed is not liable for cost of caring for him in hospital. Napa State Hospital v. Solano County \[Cal. App.\] 88 P 501.

01. Chapin v. McCurdy \[Mass.\] 81 NE 652.

01. Commonwealth may recover claims amounting to $876 for support of insane person, where his guardian has $890 in bank, under Rev. Laws, c. $7, $ 78, authorizing recovery where insane person is "of sufficient ability." Chapin v. Kelly \[Mass.\] 81 NE 653.

01. Commonwealth may recover under this statute $800 from Insane person having $1,200 in banks, though evidence shows that she may recover, live a few years longer, and need money for her support. Chapin v. McCurdy \[Mass.\] 81 NE 652. It will not preclude recovery under this statute that insane person had a settlement in commonwealth, if fact was not known to state authorities. Id.

01. Code, $ 2297 does not impose a tax, and is not therefore violative of any constitutional provision relating to taxation (Guthrie County v. Conrad, 133 Iowa, 171, 110 NWF 454), nor does it authorize the taxing of private property for a public use without just compensation there, in violation of Const. art. 1, $ 18 (Id.), nor does it take property or create a liability without due process of law, in violation of Const. art. 1, $ 9 (Id.). Under it a father is liable essential to give the court jurisdiction to convict him.\[81\] Who may be committed,\[82\] and the requirements essential to warrant commitment,\[83\] are questions to be determined from the terms of the statute governing the matter. Where an order denying a petition for commitment affects neither the liberty nor property rights of the petitioner, he is not entitled to appeal therefrom,\[34\] nor will an appeal lie where only abstract questions are thereby presented for determination.\[35\] The question upon whom costs shall be imposed in proceedings for commitment is generally governed by statute.\[88\]

SS 5. \_Property and debts._Soo & C. L. 824_--A widow does not by reason of insanity lose her dover interest.\[87\] Property of an insane person in custody of the court will not be applied to the payment of his general indebtedness as distinguished from claims for his present maintenance, until a sufficient fund is set aside for his support and that of his family.\[88\] An involuntary petition in bankruptcy will not abate because of the subsequent insanity of the bankrupt.\[89\] The fact that land is owned by an insane person will not preclude its being subjected to a street improvement lien.\[90\] The fact that a party to a suit for an accounting was for a time insane does not relieve him from liability for the amount due by him at the time he became insane.\[41\] Where after execution of a note the maker became insane, overpayments made by him on an open account with the payee during the period of his insanity should be credited on the note,\[42\] and where the maker after becoming insane executed a deed of trust to secure the note, payments applied to such deed should be credited on the note.\[43\]

SS 6. \_Contracts and conveyances._See & C. L. 825_--An insane person is liable for the reasonable value of things furnished him necessary for his support or that of his family,\[44\] but except for such necessaries he is incapable of contracting any binding obligation.\[45\] It has been generally held, however, unless otherwise provided by

- \[noitemsep\]
  statute," that the contract of such a person is not void in the sense that no rights or obligations can arise therefrom, but voidable merely.47 The test of one's capacity to contract is whether he possesses sufficient mental ability to understand in a reasonable manner the nature and effect of his act or the business he is transacting." Some statutes make a distinction as to capacity to contract between a person of unsound mind and one entirely without understanding.49 Insanity, at the time it was contracted, is ground for the annulment of a marriage,50 but mere weakness of mind is not sufficient to avoid the contract, there must be mental incapacity to understand the marriage relation and its reciprocal duties and obligations.61 A deed " or mortgage " made by one mentally incompetent is invalid and will be cancelled. Mental incapacity to contract must be established by a preponderance of evidence.54 Whether it is established in a particular case must be determined by the peculiar facts thereof.55 In New York the record in lunacy proceedings, as long as it remains in force, is conclusive evidence of incapacity.58 The finding of a commission in lunacy that one is insane is only prima facie evidence of his insanity at the time of the assignment of a lease a few months prior thereto.57 Where a sale of lands made by an insane person is set aside, if the vendee has sold the lands to another for more than he paid for them he will be required to account for the difference.58 The committee of a lunatic may, within the limits of their trust, bind the lunastic by acts clearly for his benefit.59

\_7. Torts.\_58 e S. C. L. 827

\_8. Crimes.\_58 e S. C. L. 827_An insane person cannot be put on trial for a criminal offense.50 Unless otherwise provided by statute, the exclusive right to de termine the mental fitness of the defendant is in the court having jurisdiction of the offense,${}^{#1}$ and if the suggestion of insanity is made pending the trial, it is entirely within the discretion of the court to determine how it shall be disposed of.${}^{#2}$ The burden is upon the defendant to prove insanity disabling him from fairly presenting his defense,${}^{#3}$ and where such issue is submitted to the jury, defendant's counsel has the opening and closing argument.${}^{#4}$ In determining whether a prisoner is mentally incapacitated to make defense, every fact and circumstance showing his mental condition must be considered,${}^{#6}$ each particular case to be determined by its own peculiar circumstances.${}^{#6}$ A verdict of insanity, in a proceeding under the Kansas statute ${}^{#7}$ to determine whether one should be committed to the state hospital for the insane, does not conclusively show that such person is incapacitated to make defense to a criminal charge.${}^{#8}$ Where mental incapacity is alleged, and the court upon inquiry finds that it exists, it must stop further proceedings until the disability is removed.${}^{#6}$ If it fails to do so, the subsequent proceedings are void.${}^{#0}$ In Washington if one is acquitted of a criminal offense on the ground of insanity, the court may, in its discretion, order his commitment to prison.${}^{#1}$

SS 9. _Actions by or against_,${}^{#8}$ C. L. ${}^{#27}$--In an action against an insane person, the statutory requirements as to issuance and service of summons must be complied with.${}^{#2}$ Unless it is otherwise provided by statute, a lunatic may sue by his next friend.${}^{#2}$ In Arkansas the statute requires, where one has been adjudged insane, that suit be brought by his guardian.${}^{#4}$ In a suit against an insane person, his committee may represent him in all matters, except where their interests are in conflict.${}^{#8}$

ability to fairly and rationally make a defense there is just ground for reasonable Federal Constitution. Id. Nor is it in conflict doubt. United States V. Chisolm, 149 F 284. One cannot be compelled to answer to a crime who,at the time is incapable of doing not in a rational manner, on account of men- orons" within meaning of statute, unless it mission of offense. In re Wright, 74 Kan. 406, 86 P 460, 89 P 678.

61. In re Wright, 74 Kan. 406, 86 P 460, 89 P 678. Upon anflavit filed alleging that one charged with a capital offense is insane if there are indications of probable insanity, the court has inherent power to conduct an inquiry to determine the question. State V. hospital for the insane. Id.

King County Super. Ct. Iwash.\] 88 P 207. The fact that In such case court proceeds in substantial compliance with Ballinger's Ann. Comptes & St. 5 2660, and that afflavit does not allege that alleged insane person Is at large, or unsafe to be at large, does not declare, or insate the lunatic, lower court of its inherent power to proceed under rules of common law. Id.

62, 63, 64. United States V. Chisolm, 149 F 284.

65. The question cannot be determined merely from the commission of the act for which he is so arranged. United States V. Chisolm, 149 F 284.

01. United States V. Chisolm, 149 F 284.

01. Gen. St. 1901, 5. 99.

68, 69, 70. In re Wright, 74 Kan. 406, 86 P 460, 89 P 678.

71. Provided it considers his discharge manifestly dangerous to safety of communulty. Ballinger's Ann. Codes & St. 8 6959 (Pierce's Code, $ 2083). State v. Snell \[Vwash.\] 88 P 921. Ballinger's Ann. Codes & St. 8 2660 (Pierce's Code, $ 5546), providing for judicial inquiry as to sanity has no application in such case. Id. Section 6959 is not in conflict with state constitution, or with
    But in Alabama it is not allowable to proceed to judgment affecting the person or estate of a non compos mentis, unless he is represented by a guardian ad litem." In Kentucky it is an essential prerequisite to the enforcement of a claim against the estate of a lunatic, that it be verified or proven as required by statute." Where it has been so proven, it is not essential to suit thereon that a demand be made on the lunatic or on one for him." In this state if the committee of a lunatic cannot make a good defense he must file a report stating that he is unable to do so." Where a guardian ad litem in defending a suit against his ward has fully complied with statutory requirements, no exception can be taken because he did not proceed in a given way." In an action by the state to recover for the maintenance of a lunatic, it will be presumed, unless the contrary is alleged, that the defendant was present in person or by notice when he was adjudged insane." A judgment affecting property rights will not be set aside on the ground that a party to the suit was insane and not properly represented, where such party dies before the motion to set aside is acted upon, and the interests of his heirs are in no way prejuded." A guardian ad litem cannot, by petition in the suit in which he represents the ward, press a claim for compensation for his services," and in the absence of statutory authority, such compensation is not an element to taxable costs in such suit."

SS 10. _Removal to residence in another state._--A statute providing for the removal of an insane person to his home in another state is nugatory, for the reason that it cannot be enforced."

INSOLVENCY,

8 1. Effect of Federal Bankruptcy Act on 8 4. Administration of Insolvent Enstate, 295. State Insolvency Laws, 295.

8 2. Procedure and Parties to Adjudicate Insolvency and Discharge of Insolvent, 295.

8 3. Property Passing to Assignee, 295.

Ilen may represent his ward as to all matters involved, except question whether whole tax shall be paid out of his property. Barron v. Lexington \[Ky.\] 105 SWV 395.

76. Huddeston v. Perryman & Co. \[Ala.\]

8 4. $ 80.

77. Ky. St. 1903, $ 2154. Eversele v. Eastern Kentucky Asylum, 30 Ky. L. R. $ 898, 100 SWV 300. In action by SWV 300. Where after suit brought to enforce a street improvement lien, owner of the property is adjudged insane, court should require verification of claim before proceeds of sale of property are withdrawn from court. Barron v. Lexington \[Ky.\] 105 SWV 395. But failure to verify claim does not affect the rule of purchase at sale. Id. In action by committee of lunatic, if defendants' counterexample is not verified or proven as statute requires, objection should be by rule to show cause why it should not be dismissed, and not by demurrer. Sebre v.

01. Judgment in action by heirs for set- \[command of metastate's estate will not be set\], and not by demurrer. Sebre v.

01. Johnson's Committee, 30 Ky. L. R. $ 81, 99 saw 340. Defendant in such case need not make demand of his claim before defending, was acted upon, and all his heirs had been but he cannot prosecute it to judgment before making required afflawit. Id.

01. Eversele v. Eastern Kentucky Asylum for the Insane, 80 Ky. L. R. $ 898, 100 SWV 79. Civ. Code Prac. $ 36. No judgment can be rendered against lunatic in action to subject her land to lien for street improvement, until committee makes defense or lies such report. Barron v. Lexington \[Ky.\]

105 SWV 395. But a sale to satisfy such lien will not be set aside because committee's 10 Cur. Law. INSPECTION LAWS. 295

This article treats only of the general law of insolvency and insolvency procedure and settlement under state law. Matters pertinent to the national bankruptcy law,\[86\] assignments for the benefit of creditors,\[87\] composition agreements,\[88\] fraudulent conveyances and preferential transfers by an insolvent,\[89\] the appointment, rights and duties of receivers,\[90\] the discharge of insolvents from imprisonment for debt,\[91\] and release on bail,\[92\] and the marshalling of assets\[93\] are elsewhere treated.

SS 1. _Effect of Federal bankruptcy act on state insolvency laws._\[See 8 C. L. 830\] The suspension of state statutes by the national bankruptcy act is treated in an appropriate topic.\[94\]

SS 2. _Procedure and parties to adjudicate insolvency._\[See 8 C. L. 835\] The petitioning creditor must show that the insolvent debtor is within the class against whom proceedings may be had.\[95\]

SS 3. _Property passing to assignee._\[See 8 C. L. 830\]

SS 4. _Administration of insolvent estate._\[See 8 C. L. 830\] By statutes in most states certain claims are entitled to priority,\[96\] and in the absence of statute the court may in the proper case declare claims subordinate to others of the same class.\[97\] Where the insolvency of a corporation is due to the gross negligence of its directors, who are also creditors, payment of their claims may be postponed until other creditors are paid in full.\[98\] The proceeds of the sale of trust property will not be distributed ratably among general creditors\[99\] except where the trust fund cannot be followed.\[1\] A sale by a receiver under the decree of the court is in effect under execution process.\[2\] Hence wage claimants lose their right to a preference by failing to give proper notice prior to the sale.\[8\]

SS 5. _Rights and liabilities affected by insolvency and discharge of insolvent._ See 8 C. L. 832

INSPECTION, see latest topical index.

INSPECTION LAWS.

The power to pass inspection laws rests in the legislature and when delegated to municipalities may be withdrawn.\[4\]

86. See Bankruptcy 8 C. L. 843. 111. App. 869, overruling Hickman v. Tammen, 184 Ill. 144, 56 NE 361. 97. Where claims do not fall within statutory classification, court may decide questions of priority between claims of same class in accordance with equity and justice. Waters-Pierce Oil Co. v. D. S. & Mexican Trust Co. \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 102, 99 SW 212. 102, 99 SW 213. 98. Elliott v. Farmers' Bk. of Philippl, 61 Va. 641, 57 SE 243. 98. See Marshalling Assets and Securities, 8 C. L. 838. 94. See Bankruptcy, 9 C. L. 343. 95. To entitle creditors to relief under Act may surplus remaining was held to con- that debtor was engaging in business as a trader at time of filing of petition. Illinois Spewinger Mach. Co. v. Whilden, 128 Ga. 169, 57 SE 235. And relief will be denied where he had ceased to be a trader at that time. Id. 96. Starr & C. Ann. St. on 82, par. 56. making labor claims preferred, does not create a statutory lien, and hence such claims do not take precedence over a prior mortgage given by insolvent. Seymour v. Berg, 227 Ill. 411, 81 NE 339, rvg. Blockl v. People, 123

## 1. Object and Purpose, 296.

- 2. Province of Court and Jury, 296.
- 3. Duty of Instructions, 297. Requests for Instructions, 298. Limiting Numundisputed \[16\] and only one inference can be drawn from them, a question of law is presented.\[17\] It is the province of the court to determine questions of law and it is error to submit them to the jury.\[18\] The construction of written instruments,\[19\] of pleadings,\[20\] the interpreting of statutes,\[21\] and the determination whether a municipal ordinance is in force,\[22\] are questions of law.

**SS 3.**\_Duty of instructing.\_See **S C. L. 355.**\_Each party is entitled to instructions presenting his theory of the case \[23\] when such theory is presented and supported,\[24\]

ed men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, held that the question should go to the jury. Dedevise received in alighting from a train, if the theory of plaintiff was true, the sudden movement of the train was the cause of the injuries, and constituting negligence as a matter of law, and the court having sub-United States Leather Co. v. Howell (C. C. A.) 151 F 444.

**15.** Where there was doubt as to whether a representation was a warranty, held proper to submit to jury. Larson v. Calder \[N. D.\] 113 NW 108. In an action for negligence in the evidence fairly tends to prove any wrong or neglect of duty on the part of defendant. Calveston, of defendant causing the injury, a requested 19 Tex. Ct. Rep. 544, 103 SW 69. It was perentory instruction for defendant should be refused, otherwise not. Village of Montgomery v. Robertson, 229 Ill. 466, 82 NB 396.

**16.** Undisputed evidence showing that a fire policy was issued by insurer on application authority taxen, court in instruction should recognize existence of agen-cy and determine powers and limitations of agent. Smith v. Mutual Cash Guaranty Fire Ins. Co. \[S. D.\] 113 NW 94.

**17.** Good v. Johnson, 38 Colo. 440, 88 P 439; Smith v. Mutual Cash Guaranty Fire Ins. Co. \[S. D.\] 113 NW 94.

**18.** Miller v. Wabash R. Co., 123 Ill. App. 60; American Bonding & Trust Co. v. New Amsterdam Casaulty Co., 125 Ill. App. 33; Sasse v. Rogers \[Ind. App.\] 81 NE 590; Universal Metal Co. v. Durham & C. R. Co. \[N. C.\] 59 SE 50; Desautle v. Naasoville V. Woolen Co. \[R. L.\] 66 A 579; Antone v. Miles \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 743, 108 SW 39. To submit to the jury whether a contract has been substantially performed, without informing them what constitutes a substantial performance, is error. Daxer v. Staifrwalt, 123 Ill. App. 489, Objectionable as submitting questions of law. McC-Entry v. Hairston \[Ala.\] 44 S 417. Erroneus as submitting both a question of law and of fact to the jury, Harrison v. Franklin \[Mo.\] 103 SW 858. Objectionable as allowing jury to say what facts were material in securing the opinion of an expert witness. Vannet v. Murphy \[Iowa\] 112 NW 236. An Instruction leaving it to the conjecture of the jury if a certain change in the order of work excused delay in completing a contract was erroneous. First Nat. Bank of Portland v. Carroll, 35 Mont. 802, 88 P 1012. Authorizing jury to pass on materiality of facts or circumstances that admitted in evidence and embodied in a hypothetical question to an expert, and to give any weight to the opinion if any of the facts assumed there be found not true, was erroneous. Ball v. Skinner, 134 Iowa, 298, 111 NVP 1022. Referring to the jury questions of law and the construction of and he is entitled to have such instructions made correct,28 and if the court's attention is called to a material omitted issue, it should instruct thereon.28 In some jurisdictions the court is required to instruct of its own motion as to the general features of the law applicable to the case,27 but in other jurisdictions the court is not required to instruct except upon request.28

Footnote 28: The court in instructing is not required to see that instructions cover every feature of the case; an error of omission is not ground for reversal in the absence of a request supplying it.29 If an instruction is

Footnote 29: The court in instructing is not required to see that instructions cover every feature of the case; an error of omission is not ground for reversal in the absence of a request supplying it.29 If an instruction is

Allen v. Durham Trac. Co., 144 N. C. 288, telle v. Nasonymille Woolen Co. \[R. L\] 66 A. 56 SE 942. A party ls entitled to a clear and distinct statement of the law in answer to severement in the pleadings and evi-every point properly drawn that ls material and applicable to the case, and warranted by the facts and the evidence, if not fully covered in the general charge. Schoemaker Mfg. Co. v. Yankee Club, 30 Pa. Super. Ct. 162.

24 Georgia R. & Elec. Co. v. Baker, 1 Ga. App. 832, 58 SE 852 Sampell V. Rybershcl, 129 Ill. 75, 82 NE 244; Kecokuk & Hamilton Bridge Co. v. Wetzel, 130 Ill. App. 81; Wren v. Metropolitan St. Co., 125 Mo. App. 804, 102 SW 1071; Chesapeake & N. R. v. Crews \[Tenn.\] 99 SW 268; Smith V. International & G. N. L. Co. \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 83, 99 SW 564; Jones v. Houston \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 514, 99 SW 150; Northern Texas Trac. Co. v. Caldwell \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 88, 99 SW 869; Antone v. Miles \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 748, 105 SW 89; Yellow Pine Oil Co. v. Noble \[Tex.\] 19 Tex. Ct. Rep. 841, 105 SW 318. If a party would be entitled to recover on proof of facts sustaining his theory, the court should instruct with reference thereto, and it is error to submit the case on a different theory than that outlined in the court's preliminary statement. Kempe v. Bennett, 134 Iowa, 247, 111 NW 926. Evidence that a road officer of a street railroad company threatened a passenger with the controller handle of the car, and the passenger was forcibly removed from a seat near the front of the car to the back platform, was sufficient to justify an instruction as to the company's liability If its servants threatened and put the plaintiff in peril of his life, and of great bodily harm, and com-pelted him to leave the car. Carmody v. St. Louis Transit Co., 122 Mo. App. 338, 99 SW 495. Plas of accord and satisfaction supported by evidence entities party to instruction presenting such defense and embodying a hypothetical statement of the facts upon which it was founded. Singer Sewing Mach. Co. v. Lee \[Md.\] 66 A 628.

25 Should state the law of the case correctly. Jackson v. Citizen' Bk. & Trust Co. \[Fla.\] 44 S 616; Vrighysville & T. R. Co. v. Gornot \[Ga.\] 58 SE 769; Southern R. Co. v. Thompson \[Ga.\] 68 SE 1044.

26 Where the main charge fails to submit a defense, as to which there is evidence tending to prove it, it is the duty of the court to give special instructions embodying a correct enunciation of the law applicable to such defense. G. A. Duerler Mfg. Co. v. Eichhorn \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 416, 99 SW 715.

27 By statute imperative that court instruct jury in law applicable to case. Desau- 10 Cur. Law. **INSTRUCTIONS $\\lx@sectionsign$ 3**.

not as full as desired \[60\] or omits reference to particular issues,\[31\] or subjects,\[32\] or is deemed ambiguous \[33\] or misleading,\[34\] or not sufficiently explicit,\[35\] specific,\[36\] or defl-

Brideport Coal Co. v. Wise County Coal \[144 N. C. 418, 57 SE 127; Smith v. Western Co. \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 678, 99 SW 409; St. Louis, etc., R. Co. v. Knowles \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 675, 108 NW 200; Thompson v. Hicks 867. Heeld no error for court to fall to instruct ato the province of the jury to pass on evidence and determine what was there-

17 Tex. Ct. Rep. 18, 103 SW 110.

19 Conn. 659, 66 A 509. In an action for death by wrongful act, where the facts

10 nite,47 or if amplification of a charge is desired,48 a suitable instruction should be requested. So, also, a party may not complain of failure to define technical terms,49 nor of an unsatisfactory definition,40 in the absence of a request. If he desires evidence admitted for a special purpose limited to such purpose, he must make a request.41 If an instruction is deemed too restrictive,42 of if he desires comment where evidence erroneously admitted is stricken,43 or an instruction limited,44 or form of stating defense different,45 a suitable instruction should be requested; but where an instruction given is incorrect, the fact that no request was made does not preclude the injured party from asserting error on appeal.46 In some jurisdictions the right of a party to move for instructions is a personal privilege and may be waived.47

\_Limiting the number of instructions,\_See a C. L. 44.--While the practice of requesting a great number of instructions leads to confusion and is often mentioned with disapproval,48 several instructions may be given on the same subject.49

If objection is that instruction submitted matter too generally, should ask for more specific instruction. Galveston, etc., R. Co. v. Parish \[Tex. Civ. App.\] 100 SWV 1175.

40. If party wishes terms used in an instruction to be more clearly defined, he must present request to that effect. St. An-en were general principles of law where no specific instructions requested. Rochester v. Bull \[S. C.\] 68 SE 766. If correct so far as it goes, failure to give a more specific instruction was not erroneous, in the absence of a request there. New York, etc., R. Co. v. Flynn \[Ind. App.\] 81 NE 741; Capital City Brick & Plipe Co. v. Des Moines \[Iowa\] 113 NWV 838. Party cannot complain of failure to give more specific instruction on damages where he did not request one. Stewart & Hoskins V. Walker \[Lark.\] 102 SWV 856. Where an instruction fully, clear-ly, and correctly charged as to measure of damages, there was no material error in failing to charge specifically as to set-offs against damages proved, especially in the absence of a request to do so. City of Macon v. Daley \[Ga, App.\] 85 SE 540. If party desires more specific instructions as to whether acts were in scope of motorman's employment, request should be made. Wahl v. St. Louis Transit Co., 203 Mo. 261, 101 SWV 1.

01. Party cannot object that an instruction correctly stating the law was too general where he presented no requests for an instruction making it more definite and certain. Henderson v. Los Angeles Trac. Co., 150 Cal., 683, 89 PS 978. Where the law of the case was covered in an instruction in general and comprehensive terms, and there was no request to make more definite, held no error. Dempsey v. Western Union Tel. Co. \[S. C.\] 58 SE 5.

01. Tabor v. Macon R. & L. Co. \[Ga.\] 59 SE 225. Where the court properly instructed as to general rule, if plaintiff contended that facts of case took it out of general rule, attention of court should have been called to contention. Merriane v. Miller, 148 Mich. 412, 14 Det. Leg. N. 242, 111 NWV 1050.

01. Omission to define the meaning of "ordinary and reasonable care and difference" was not error in the absence of a written request. Atlantic & B. R. Co. v. Smith \[Ga.\] 58 SE 542. The word "negligence" having been properly used by the court in its instructions, failure to define it was not error, in the absence of a re- 10 Cur. Law. INSTRUCTIONS SS 3.301

Form and sufficiency of request.See 5 C. L. 350.--Requested instructions need not be given in any set form \[50\] but are usually required to be made in writing.\[51\] They should be strictly correct \[52\] and should not be involved or misleading.\[58\] Under some circumstances the request should relate to particular issues.\[64\]

Time of making request.See 5 C. L. 340.--Where instructions are handed up in apt time, it is error for the court to refuse to consider them.\[58\] In some jurisdictions the time within which instructions should be presented rests in the discretion of the court.\[58\] It is not error for a court to refuse to send instructions to the jury which were not requested until after argument.\[57\]

Disposition of requests.See 5 C. L. 340.--Ordinarily, the court is not bound to give an instruction in the exact language of the request.\[58\] Requests may be modified,\[59\] if

50. See post, SS 14. Sufficient to give substance, if proper. Payne v. Whatcom 888. A request that is confused and incon-Country R. & L. Co. \[Vdash.\] 91 P 1084.

SL. It is not error to refuse an oral request, 27 App. D. C. 535.

quest for an instruction which is not formulated in writing. Hardt v. Chicago, etc., R. Co., 130 Wis. 512, 110 NW 427.

52. San Antonio Light Pub. Co. v. Moore \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 412, 101 SWV 867. If request is not sound in its en-Utreyt, refusal is not error. Smith v. Highstrov. \[Ga. App.\] 59 SE 593. Not error to retuse instruction which purporting to quote from declaration does not accurately do so. Hirsch Iron & Rail Co. v. Coleman, 227 Ill. 149, 81 NE 21. It is proper to refuse a request for instruction that does not correctly state the law of the case. Ammerican Bonding & Trust Co. v. New Amsterdam \[Cavity Co., 125 Ill. App. 33: Citizens Savings, Loan & Building Assn v. Weaver, 127 Ill. App. 252. A party is not entitled to an instruction which is calculated to restrict or limit liability imposed by statute. Hall v. Ditto, 128 Ill. App. 187. The jury being limited to a verdict for Injuries to feelings, refusal of instruction directing them to specify in verdict amount of award for Injury to feelings was not error. McCArthur v. Sault News Printing Co., 148 Mich. 556, 14 Det. Leg. N. 265, 112 NW 126.

Requests, the predicates of which are false. may be refused. Mutual Reserve Life Ins. Co. v. Jay \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 932, 101 SWV 545. Request not being a complete statement of the law is properly re-Tused. Nichols v. Shaw (R. I.) 67 A 429.

Proper to refuse request that plaintiff must prove collision was caused directly and "sole-ly" by defendant's negligence, though instruction would have been proper had "proximately" been used instead of "solely." Wallack v. St. Louis Transit Co., 123 Mo. App. 160, 100 SWV 498. It is not error for the court to refuse a requested instruction which is faulty, and neither is it erroneous to refuse to instruct orally where no proper specific instruction on the point is requested. Williams v. State, 147 Ala. 10, 41 S 592. Request properly refused as requiring statement that there was no evidence of fact. Southern R. Co. v. Taylor \[Ala.\] 42 S 625.

Requested instructions need not contain independent matters going to excreate employer from charge of negligence, in action by employee for injuries caused by defective machinery. Harrod v. Hammond Packing Co., 125 Mo. App. 357, 102 SWV 637.

53. North American Restaurant & Oyster

### 302 instructions SS 3.

10 Cur. Law.

done correctly. \[60\] A requested instruction which is correct and applicable and not adequately covered by other instructions should be given. \[61\] Refusal to give it is reversible error unless it affirmatively appears that no prejudice resulted. \[62\] If an in-

Jing v. Barzak, 227 Ill. 71, 81 NE 1. Erro-

Murphy v. Citizens' Bk. of Junction City

neous request held properly modified by add-

\[Ark.\] 100 SW 894. Error in modifying re-

\[stiq. L. M. & S. R. Co.

\[Ark.\] 100 SW 884. Requested In-

\[Ark.\] 100 SW 884. A modification which refers to a paper not brought

\[St. Louis Transit Co., 802 Mo. 345, 100 SW

\[1072. Adding words to a request granted

\[Altizens' Sav., Loan & Bldg. Ass'n

that were simply explanatory, and not af-

\[Altizens' 11, App.\] 85. A modification the proposition of law given, was

\[Altizens' 11, App.\] 85. A modification the proposition of

- 10 Cur. Law. **INSTRUCTIONS SS 3.**

struction is erroneous the court is not ordinarily required to correct and give it, \[63\] and if one of several joint requests is incorrect, all may be refused, \[64\] or those that are correct may be given and erroneous ones eliminated, \[65\] or if a portion of an instruction is erroneous, the court may give only the part which is correct. \[66\] A requested instruction which is incorrect, if sufficient to call the court's attention to the issue, may require the giving of a correct instruction. \[67\] A request which adds nothing more than elaboration or emphasis may be refused. \[68\]

_Repetition._, \[69\] & C. L. 441.--A requested instruction substantially covered by the charge already given may be refused, \[69\] though correct and applicable to the case, \[70\]

- **Error not prejudicial:** Refusal to submit **N. R. Co. \[KY.\] 105 SWV 142. If a defective an issue of vel non was not prejudicial**

- \*\*repeat for an instruction actually brings where the court directed that a certain is- use be answered "No." if there was an case-

- **principle of law which ought to be stated ment, and it was answered "yes." Clark v.**

- **Patapsco Guano Co., 144 N. C. 64, 86 SE 858.**

- **Error not prejudicial in refusing requests error to disregard it; and, if an attempt where under the pleadings and instructions**

- **be made by an instruction given to submit**

- **given verdict found could not have been to the jury the matter defectively covered rendered without a consideration of the**

- \*\*by the request, it should be sufficiently ex-

- **question submitted in the refused requests.**

- **Picard v. Beers \[Mass.\] 81 NE 246. Refusal**

- **of request held harmless error. Cleveland**

- **Co. v. Loosley \[Kan.\] 90 P 990. Plaintiffs etc., R. Co. v. Schneider \[Ind. App.\] 80 being entitled to recover only a certain enclosure, a request on such issue, though**

- **63. Hayes v. Moulton, 194 Mass. 157, 80 NE**

- **215. Court not required to reform requested not within the enclosure, was sufficient to instruction and to 'cast out such parts as render it improper as a whole. Exchange**

- **Bk. v. Moss \[C. C. A.\] 149 F. 340. It is not**

- **638, 104 SWV 432.**

- **and frame requested instruction so as to**

- **63. Western Cottage Piano & Organ Co.**

- **c. v. Smith \[Tex. Civ. App.\] 17 Tex. Ct. v. Anderson \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 477, 100 SWV 182. Not incumbent on**

- **64. 101 SWV 1681.**

- **65. Request may be refused where the court to separate propositions where one court has anfucently stated the issues and consists of an improper repetition. Goodoe \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 860, 105 SWV 533. Instruction partly bad as**

- **66.2**

- **67.3**

- **a statement of law was properly refused.**

- **68.10**

- **69.11**

- **60.12**

- **61.13**

- **62.14**

- **63.15**

- **64.16**

- **65.17**

- **66.21**

- **67.31**

- **68.10**

- **69.11**

- **69.12**

- **69.13**

- **60.14**

- **61.15**

- **62.16**

- **63.16**

- **64.17**

- **65.18**

- **66.21**

- **67.31**

- **68.10**

- **69.14**

- **69.15**

- **69.16**

- **60.16**

- **61.17**

- **61.18**

- **62.19**

- **63.19**

- **64.18**

- **65.19**

- **66.20**

- **67.31**

- **68.11**

- **69.12**

- **69.13**

- **69.14**

- **69.15**

- **69.16**

- **69.17**

- **69.18**

- **69.19**
  304 INSTRUCTIONS $ 3. 10 Cur. Law.

NYW 488; Cheaapeake & O. R. Co. v. Nipp's 82 NE 492; Cleveland, etc., R. Co. v. Schneider Adm'x, 30 Ky. L. R. 1131, 100 SWP 46; South \[Ind. App.\], 82 NE 538; Brussseau v. Lower Covington & C. R. R. Co. v. Cleveland, 30 Ky. Bruck Co., 133 Iowa, 245, 110 NW 571; Ox-L. R. 1072, 100 SWP 283; Cairnes v. Pelton, 103

ford Junction Sav. Bk. v. Cook, 134 Iowa, Md. 40, 63 A 105; Garrett County Corn'e v. 185, 111 NW 805; Dean v. Carpenter, 134 Blackburn \[Md.\] 66 A 31; Baltimore Priar Iowa, 275, 111 NW 815; Doggett v. Chicago, Pipe Co. v. Eisenhauer \[Md.\] 66 A 623; B. & Q. R. Co., 134 Iowa, 690, 112 NW 171; Hayes v. Moulton, 194 Mass, 157, 80-82 NE 216; Louisville & R. R. Co. v. Ponder, 31 Ky. L. Morrison v. Richardson, 194 Mass, 370, 80 NE 878; McIntine v. Stacy, 31 Ky. 468; Lord v. Rowse \[Mass.\] 80 NE 822; Olson L. R. 1219, 104 SWP 369; Barschow v. Lake v. Minneapolis & St. L. R. Co., 132 Minn. 398; Shore & M. S. R. Co., 147 Mich. 236, 13 Det. 113 NW 1010; Carry O. Queen Inns. Co., 203 Leg., 1060, 110 NWP 1057; Denting v. Mo. 295, 101 SWP 78; Baskett v. Metropolitan Rohde, 99 Minn. 335, 109 NWP 587; Detroit v. St. R. Co., 123 Mo. App. 725, 101 SWP 138; Metropolitan St. R. Co., 125 Mo. App. 608, 102 Coffey v. Omaha, etc. R. Co. \[Nob.\], 112 SWP 1044; O'Orama v. St. Louis Transit Co., 137 WV 583; Lord v. Manchester St. R. \[204 Mo. 724, 103 SWP 54; Cytron v. St. Louis H.J. 67 A 639; Horton V. Seaboard Air Line Transit Co., 203 Mo. 69, 104 SWP 109; Hudson R. \[N. C\] 58 SE 993; Baines v. Coos Bay, V. Trumm (Neb.) 112 NW 325; Ellis v. etc, Co. \[Dr.\] 89 P 371; Person & Riegel Co. Brooks \[Tex.\] 18 Ct. Rep. 448, 102 SWP 94; V. Lipps \[Pa.\] 67 A 1081; Simme v. Rhode Gulf, etc., R. Co. v. Cook \[Tex.\]. Ky. Appl. Island Co. \[R.\] 16 A 202; Mitchell V. Sayles 102 SWP 121; Texas, etc., R. Co. v. Buch \[Tex.\] \[R. I.\] 66 A 574; Taber v. New York, etc., Civ. Appl. 19 Tex, Ckt. Rep. 406, 102 SWP 124; R. Co. \[R. I.\] 67 A 9; Thompson v. Seaboard Houston Lighting Power Co. v. Hooper ITex. Air Line I \[S. C\] 58 SE 1094; National Bk. Civ. App.\] 19 Tx. Ct. Rep. 410, 102 SWP 133; of Commerce v. Chatfield, Woods & Co. St. Louis & S. F. R. Co. v. Harrison \[Tex.\] \[Tenn.\] 101 SWP 785; International & O. N. H. Cliv. App.\] 19 SWP 146; Galveston, H. & N. Co. v. Price \[Tex. Civ. App.\] 15 Tex. Ct. Rep. 16 C. v. Morrison \[Tex. Civ. App.\] 19 Tex. 408, 95 SWP 66; Roche V. Dale \[Tex. Civ. Ct. Rep. 44, 102 SWP 143; Missouri, etc., R. ApJ. 15 Tex. Ct. Rep. 832, 95 SWP 110; San Co. v. Merritt \[Tex.\], App.\] 18 Tex. Ct. Rep. 832, 101-82 SWP 151; St. Louis S. W. R. Co. ApJ. 18 Tex. Ct. Rep. 8 and contain a repetition of the law of the case.71 Requests merely stating in different language a proposition already stated;72 or which state a proposition in negative form,73 may be refused, and where instructions given are very general, it is error to refuse requests which are specific.74

## 4. Introduction

The first 10 but uncontroverted facts," admitted facts," facts established by uncontroverted evidence," may be assumed.

SS 5. \_Charging with respect to matters of fact or commenting on the weight of evidence," See * C. L. 841--The determination of questions of fact being the exclusive province of the jury," the court may not by instruction invade that province.81 Thus, as a general rule trial courts" are prohibited from charging with respect to matters of fact or commenting on the evidence,82 or expressing or intimating an opinion as to

husband as her agent were incurred by him \[ham, 125 Ga. 649, 54 SE 650. Singling out a on his own account. Town of Elba v. Bullerdian state of facts and telling the jury and \[Ala.\] 44 412. Error in instruction that ownership of stock injured was proved where evidence not conclusive. Louisville & N. R. Co. v. Christlan Moerfeln Brew. Co. \[Ala.\] 48 S 723. In eminent domain proceedings for compensation for damages by a railroad, instruction assuming that abutting owners had right to put in spur track held erroneous. Taber v. New York, etc., R. Co. \[R, 1.\] 67 A 9. Not objectionable as assuming facts not in evidence. Brady v. Kansas City, etc., R. Co., 206 Mo. 509, 102 SW 978.

77. Shults v. Shults, 229 III. 420, 82 NE 312; Western Cotitage Piano & Organ Co. v. Anderson \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 524, 101 SW 1061. An instruction assuming the existence of facts proved by both parties was not a charge on the facts. Murdouch v. Tuten, 76 S. C. 502, 57 SE 547.

01. Shults v. Shults, 229 III. 410, 82 NE 312. Instruction not erroneous in assuming that services were rendered where defendant and admitted such fact. Christianson V. McDermott Estate, 123 Mo. App. 448, 100 SW 63. Civ. Code 1895, $ 4324, applies to cases of conflicting evidence, hence, where the undisputed facts clearly and necessarily establish a certain legal conclusion, It is not error to so instruct. Georgia R. & Elce Co. v. Cole, 1 Ga. App. 33, 57 SE 1026. Instructions assuming loss of wages by plaintiff as a result of injuries was not error under the evidence. Stoebler v. St. Louis Transit Co., 203 Mo. 702, 102 SW 651.

01. Reed v. Manierre, 124 Ill. App. 127. Where it was not controverted that plaintiff was entitled to recover a balance alleged to be due on the purchase price of a machine, except in so far as affected by off-sets set up in cross action, no error in so instructing. Heisig Rice Co. v. Fair-banks, Morse & Co. \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 1002, 100 SW 959.

01. See ante, $ 2.

01. Erreneos in invading province of inter. Loverman v. Birmingham R., L. & P. Co. \[Ala.\] 43 S 411; Duncan v. St. Louis & S. F. R. Co. \[Ala.\] 44 S 413; Louisville & N. R. Co. v. Shercell \[Ala.\] 44 S 831; Davis v. Miller Brent Lumber Co. \[Ala.\] 44 S 839; Matteson v. Southern Pac. Co. \[Cal. App.\] 92 P 101; Madden v. Baylor Coal Co., 133 Iowa, 699, 111 NW 57; Ferguson v. Truax \[VWs.\] 110 NW 395. Erroneos as unsurping functions of jury. Oren Frutit & Froduce Co. v. Northern Cent. R. Co. \[Md.\] 66 A 426. Invasion of province of the jury in deciding questions of fact. City of Covington v. Whitley, 30 Ky. L. R. 659, 99 SW 337. It is an invasion of the province of the jury for the court to instruct that from one fact proved they have a right to presume another material fact. Standard Cotton Mills v. Cheatt its weight,83 but this rule is not universally followed,84 and it does not prevent the

of evidence necessary improper as invading jury's provlnce. State v. James \[Utah\] 89 P 460. Proper to refuse instructions intimateing to jury the inference to be drawn from the facts therein set out. Weaver v. Southern R. Co., 76 S. C. 49, 56 SE 657. Refusal of a requested instruction containing a statement that certain acts would not constitute negligence was properly refused. Southern R. Co. v. Sheffield, 127 Ga. 569, 56 SE 838. Not error to refuse requests for instructions assuming that certain facts, if established by the evidence, would constitute contributory negligence. International & G. N. R. Co. v. Tasby \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 922, 100 SW 1030. Constructing that exposure to the weather was the result of plaintiff's own act after knowledge of nondelivery of a telegram was a charge on the facts. Toale v. Western Union Tel. Co., 76 S. C. 248, 57 SE.

117. Where under all of the evidence it was for the jury to determine if certain land was defeated and when, refusal to instruct that jury must find that land was a dedicated park during the time of certain grievances complained of was proper. Louisville & N. R. Co. v. Higginbotham \[Ala.\] 44 S 872. Instroting that jury must either find that car was not or was moving at the rate of three or four miles an hour was erroneous as invading province of jury, where evidence as to motion of car was conflicting. Devlin V. New York City R. Co., 116 App. Dlv, 894, 102 NYS 430. Instruction that decedent, a man 30 years of age, had no expectancy of life beyond the day of his death, and that his parents had no expectancy beyond the time of trial, and on find-ing for plaintiff only nominal damages could be recovered, was properly refused. National Mut. Life Ins. Co. v. Sprague \[Co.\] 92 P 227. Instruction that jury might properly infer the consent of a railroad company to the placing of property on its platform from the fact that an agent has notice of its being placed there and makes no objection was error as on facts. Yarbrough Instruction that if plaintiff had established v. Southern R. \[S. C.\] 58 SE 936. Error to instruct that certain things, not directly made so by law, are or are not negligent. Alianta, etc. R. v. McManus, 1 Ga. App. 302, 58 SE 258. Error to instruct that supremes court had passed upon fact that things set out in declaration made a case in court, especially where particular case had not been to supreme court. Georgia R. & Elec. Co. v. Baker, 1 Ga. App. 832, 58 SE 88. Under Mass. Rev. Laws, c. 173, 80, providing that courts shall not charge jurors with respect to matters of fact, the court is not authorized to instruct that the evidence of a witness is open to the gravest doubt. Hayes v. Moulton, 194 Mass. 157, 80 NE 215. Refusal to instruct that there was no legally suff-cient evidence to entire recovery held proper. Baltimore Briar Pipe Co. v. Eisenhauer \[Mc.\] 66 A 628.

Rule not violated: Not objectionable as a comment on facts of case. Stangair v. Roods \[VWs.\] 93 P 1. As commenting on the evidence of a witness, a comment on weight of evidence properly re-evidence. Radeck v. St. Louis Car Co., 125 Mo. App. 24, 102 SW 675. As stating facts constituting negligence. Indianapolis St. R. Co. v. Fearnaught \[Ind. App.\] 82 NE 102.

Statement of court was not instruction on the evidence of a witness, a 104 SV 418; Raley v. State \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 924, 105 SW 342. Erroneous as usurling province of jury in weighing the evidence. Zander v. St. Louis Transit Co., 206 Mo. 445, 103 SW 1006.

Rule violated: Remarks of court on materiality and weight were prejudicial. Schneider v. Great Northern R. Co. \[Wash.\] 91 P 5 655. Where evidence conflicting, it was error to express opinion on material question 18 of fact. Holtzendorff v. De Renne \[Ga.\]

58 SE 710. Opinion of court in charge to jury as to sufficiency of evidence is improper, Dobbins v. Dobbins, 141 N. C. 210, 53 SE 870.

Erroneous as on weight of evidence in as-

suming a fact. Adams v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 507, 105 SW 526. Request intimating opinion as to

quantum of proof necessary to overcome

relutable presumption was properly re-

cases of obvious prejudice, is not reversible

fused. Vickers V. Hawkins, 128 Ga. 794, 58

when the final ruling on the evidence or

SE 44. Where evidence was conflicting as

instructions is correct. McGowan v. Wa-

to whether plaintiff was a passenger at time

tertown, 130 Wis. 555, 110 NW 402. Instrucu-

of accident, instruction that testimony con-

tion that a passenger on a railway train is

ceded, and evidence made clear, that plain-

entitled to protection from insulting or

tiff was a passenger was erroneous as on

abusive conduct or language by the serv-

weight of evidence. Louisville R. Co. v.

ants of the railway company towards such

O'Connor, 80 Ky. L. R. 1229, 101 SW 805.

passengers, and such company is liable for

An instruction as to what amounted to a

the actual damages caused by insulting

circumstance, and that jury should take

or abusive conduct or language used by its

such circumstance into consideration, held

conductor in charge of the train towards one

erroneous as on weight of evidence. Munk

v. Stanford \[Tex. Civ. App.\] 18 Tex. Ct. Rep.

being on weight of evidence. St. Louis S.

582, 100 SW 213. An intimation of opinion

W. R. Co. v. Granger \[Tex. Civ. App.\] by the court that an insulable fact has been

18 Tex. Ct. Rep. 169, 100 SW 987. Not ob-

proved was error. Central of Georgia R.

jectionable as instructing what acts or

Co. v. Augusta Brockerage Co. \[Ga. App.\] 58

ommissins constituted negligence. Paris &

SE 904. In an action for multiquadd dam-

G. N. R. Co. v. Calvin \[Tex. Civ. App.\] 18

ages, it is error for court to intimate that

Tex. Ct. Rep. 890, 103 SW 428. Held not on

question of amount of damages is not

weight of evidence, as telling the jury as a

jury, or to indicate amount of damages the

matter of law that any delay of cattle en

court considers plaintiff entitled to. Douglas

route was an act of negligence. Texas &

v. Metropolitan St. R. Co. \[147 NYS 452. An

P. R. Co. v. Coggin \[Tex. Civ. App.\] 17 Tex.

instruction reciting that plaintiff's testimony

Ct. Rep. 728, 99 SW 41. Because of the

was contradicted, and placing it in an un-

use of the phrase "of course" in presenting

favorable light before the jury, while that

instructions relative to plaintiff theory, and

of defendant v was treated with greater con-

defendant carrier's liability, held instruction

ideration, was erroneous as intimating the

not objectionable as indicating court's

be court's opinion as to weight of evidence.

lifet that carriers' position was not of equal

Withers v. Lane, 144 N. C. 184, 56 SE 855.

height with that of plaintiff's. St. Louis,

In an action for injuries to a passenger on

etc., R. Co. v. Gunter \[Tex. Civ. App.\] 17 Tex.

a street car, a request assuming that plain-

Ct. Rep. 571, 99 SW 152. Instructing that

tiff alighted, which might have been taken

"it is the duty of employees operating a

by jury as an intimation that plaintiff was

railroad to exercise ordinary care in ap-

not thrown from car, as alleged, was properly

proaching such places as they may reason-

refused. Birmingham R. Light & Power Co.

ably expect people to be on, or dangerously

v. Moore \[Ala.\] 43 8 841. An instruction that

the jury "should" find exemplary damages, if

out, and give such warning of the approach

they found an ejection willful, held erroneous,

of the train as an ordinality product person

as question of exemplary damages was

would do under like circumstances, if any,

ly for jury. Carmody v. St. Louis Transit

in order to avoid injuring such
judge from referring to parts of the evidence and making concrete applications of the law to them,\[85\] nor to instructing the jury to find certain facts from the undisputed evidence,\[86\] or to directing them to answer certain questions submitted as special issues.\[87\] An instruction containing an intimation of the court's opinion, on facts conclusively shown by uncontradicted evidence, is not prejudicial.\[88\]

## 6 Form and general substance of instructions

See \[8\] C. L. \[89\]. It is not essential that the entire law of the case be stated in a single instruction.\[80\] All instructions given are to be considered as a series \[80\] and must constitute a consistent whole;\[91\] but an instruction intended to cover the entire case,\[92\] or a particular phase of it,\[93\] and upon which a finding is predicated, should embrace all the necessary elements involved.\[94\] The instructions should be stated in as simple, orderly, clear, and precise

cretion, error cannot be predicated on ap-

sonable fullness was prejudicial error. Capital City Brick & Pipe Co. v. Des Moines 67 A 374. In the submission of facts to the \[Iowa\] 113 NV 835. Instruction erroneous jury, a mere expression of opinion by the court, without any direction as to how the jury should find, is not error where court's

R. Co. v. Warriner, 229 Ill. 91, 82 NE 246. discretion not abused. Crotty v. Danbury,

Instruction on contributory negligence pre-

79 Conn. 379, 65 A 147. Where the appellate

court, in reversing a case, enjoins the trial

tonness on part of defendant in action for

our to give careful instructions as to the

relative value of the testimony, it is not

North Alabama Trac. Co. \[Ala.\] 42 S 627. error, on the second trial, for the court to

say that he would "rely on those book en-

forties in preference to the recollection of

nen, no matter how honest, as to an event

which happened seven years ago." Lee v. Williams, 80 Pa. Super. Ct. 349.

85. Not beyond province of court to call

attention of jury to a portion of the evidence. Desaulted V. Nasonville Woolen Co.

\[R. I\] 68 A 579. Instruction correctly defining duty of motorman without applying

law to facts held erroneous. Campbell v. St. Louis Transit Co., 121 Mo. App. 406, 99 SW 58.

86, 87. Moore v. Woodson \[Tex, Civ. App.\]

17 Tex. Ct. Rep. 844, 99 SW 116.

88a, Galveston, etc., R. Co. v. Roberts \[Tex.

Civ. App.\] 14 Tex. Ct. Rep. 671, 91 SW 375.

86, Atlantic Coast Line, R. Co. v. Crosby

\[Fla.\] 43 S. 318. It is not necessary that

any one or more instructions standing alone

should embrace all of the issues, if all given

when read together are consistent and

brace all material issues involved. Bell v.

Central Elec. R. Co., 125 Mo. App. 660, 103 SW 144. Not necessary to state issues in

single paragraph of instruction, it being

sufficient if taken together they explain

issues, or that they so inform jury that they

may intelligently decide questions of fact. Wallace v. Skinner \[Wyo.\] 88 P 221.

90, Paintor v. Kilgore \[Tex. Civ. App.\]

19 Tex. Ct. Rep. 380, 101 SW 899.

91. Styles v. Chesapeake & O. R. Co. \[W. Va.\] 59 SE 609. And see post, this section.

92, Schofield v. Little \[Ga. App.\] 58 SE 666; Morehead's Trustee v. Anderson, 30 Ky.

L. R. 1137, 100 SW 340. Instruction under-

taking to state material facts necessary to

recovery, but omitting therefrom material

facts, was fatally defective. Dudley v. State

\[Ind. App.\] 81 NE 89. Instructions on as-

sumed hypothesis directing a verdict for

plaintiff, to be unobjectionable, should

tain all ingredients essential to a right of

recovery under the pleadings and evidence. Percell v. Metropolitan St. R. Co. \[Mo. App.\]

103 SW 115. Failure to instruct with rea-

86, 87. Moore v. Woodson \[Tex, Civ. App.\]

88, 87. Moore v. Woodson \[Tex. Civ. App.\]

17 Tex. Ct. Rep. 844, 99 SW 116.

88a, Galveston, etc., R. Co. v. Roberts \[Tex.

Civ. App.\] 14 Tex. Ct. Rep. 671, 91 SW 375.

88b, Atlantic Coast Line, R. Co. v. Crosby

\[Fla.\] 43 S. 318. It is not necessary that

any one or more instructions standing alone

should embrace all of the issues, if all given

when read together are consistent and

pracc all material issues involved. Bell v. Central Elec. R. Co., 125 Mo. App. 660, 103 SW 144. Not necessary to state issues in

single paragraph of instruction, it being manner as possible under the circumstances,\[95\] and should contain only a single proposition.\[96\] It is not improper to state a rule in the language of statute, if applicable to the case.\[97\] The language should be intelligible," clear,\[99\] free from ambiguity,\[1\] and not misleading.\[2\] The meaning of instructions is to be determined by

95. Indefiniteness of instructions. Dobbins v. Little Rock R. & Elec. Co., 79 Ark. 85, 95 SW 794. Criticised as being briefly and badly stated. Ball v. Skinner, 298, 111 NWP 1022. Should be stated concretely. Newport News & O. P. R. & Elec. Co. v. McCormick, 106 Va. 517, 56 SE 281.

01. The entire law on any one proposition should, so far as practeible, be embodied in one proposition. Denver Consol. Elec. Co. v. Walters \[Colo.\] 89 P 815. A single instruction containing correct statement of law is sufficient in form, where the verdict, either directly or by implication, is not made to depend wholly on proposition stated, nor other questions in issues submitted excluded. St. Louis, etc., R. Co. v. Smith \[Ark.\] 100 SW 884. Beginning an instruction with a phrase calling attention to defendants theory of the case is not erroneous. In actions for personal injuries, the sentence complained of was, "the court instructs the jury that the law will not and does not permit one to bring upon himself an injury and then recover damages from some other person because of such injury." Scanlan v. Chicago Union Trac. Co., 127 Ill. App. 406.

01. If in words of statute not erroneous, Reisch v. People, 229 Ill. 574, 82 NE 321. Instruction held practically a statement of the general rule expressed in Civ. Code 1895, $ 221, and being applicable to facts of case was not erroneous. Southern R. Co. v. Sheffield, 127 Ga. 569, 56 SE 838.

01. Unintelligible and erroneous. Louisville & N. R. Co. v. Christian Moerlein Brew. Co. \[Ala.\] 43 S 723. Refusal of an instruction so incomplete and unintelligible as not to enlighten jury on any phase of the case was not error. Barnes v. Grafton, 61 W. Va. 408, 56 SE 608. Held not error to refuse to give unintelligible instruction as to whether one who knows of building material in a street must exercise more than ordinary care. Mulvey v. New York, 114 App. Dlv. 526, 99 NYS 1114. Requestopy refused as being unintelligible. Gambill v. Fuqua \[Ala.\] 42 S 735. A requested charge which is both incomplete and unintelligible should be refused. Southern Coal & Coke Co. v. Swinney \[Ala.\] 42 S 808. The instruction should be given in terms that the jury will understand. The term "at his peril," while clear to a lawyer, may not be understood by an ordinary jury. Rabinowitz v. Hall, 123 Ill. App. 65.

01. Too vague to be understood by jury. Adams v. International Supply Co., 61 W. Va. 401, 56 SE 607. Should be distinct. Id. Erroneous as confusing. Chesapeake & N. R. v. Crews \[Tenn.\] 98 SW 368. Calculated to confuse jury. Overstreet v. Nashville Lumber Co., 127 Ga. 458, 56 SE 650. Confusing. misleading, and argumentative. Floridda East Coast R. Co. v. Welch \[Fla.\] 44 S 250. Instructions were inaccurate and confusing, tending to lead to erroneous results. Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805, 56 SE 1006.

01. Cut. Law. INSTRUCTIONS 6.

01. Not confused and misleading. Smith v. Lafda \[Tex. Civ. App.\] 18 Tex, Ct. Rep. 130, 101 SW 470. Held not confusing as containing conflicting statements. Chesapeake & N. R. v. Crews \[Tenn.\] 99 SW 368.

01. Refusal of request for instruction that was ambiguous was not error. Seaboard Air Line R. v. Smith \[Fla.\] 43 S 225. Should be so as to be understood by the plain men of a jury. Neal v. Taylor, 106 Va. 651, 56 SE 590.

01. Not objectionable as ambiguous and misleading. Wholesale Mercantile Co. v. Jackson \[Ga. App.\] 59 SE 106; Gilman v. Cochran \[Or.\] 99 P 1001. The use of a word not so ambiguous as to mislead the jury is not error. Houston & T. C. R. Co. v. Anglin \[Tex. Civ. App\] 17 Tex. Ct. Rep. 1714, 93 SW 897.

01. Southerhern R. Co. v. McGowan \[Ala.\] 43 S 738; Gordon v. Park, 202 Mo. 236, 100 SWV

01. If calculated to confuse, mislead, or prejudice, reversible error. Atlantic Coast Line R. Co. v. Crosby \[Fla.\] 43 S 318. Objectionable as confusing and misleading. Gambill v. Fuqua \[Ala.\] 43 S 735: Loveman V. Birmingham R., & Z. P. Co.

## 8. Conclusions

In this paper we have presented a new method for the determination of the $\\alpha$-ray flux from plicable to the issues as determined from the pleadings or the evidence adduced." The contentions of both parties should be fairly and impartially stated." The jury should be cautioned that evidence admitted for a certain purpose can be considered for no other,7 and that they should disregard irrelevant remarks of counsel,8 but the instruction should not be too restrictive.8 Instructions should not impose too high a duty 10 or degree of proof upon a party.11 The measure of damages should not be

5. See post, SS 7.

only one in regard to which there was a conflict in the evidence, was not error. Ling with theory for ether side, each theory being supported by evidence, and the prime. Not objectionable as limiting the care required of law applicable to each theory was different, it was error to instruct as to ab- a child was at or near a track, where the time mentioned in the instruction was the theory without reference to evidence. Del-mar Oil Co. v. Bartlett \[W. Va.\] 59 SE 634. Defendant cannot object that abstract prin- able as confining jury to certain evidence en where the instruction given made clear as a basis of recovery to the exclusion of other facts, the latter being unimportant. enumerating all defenses and stating to jury that they should find for defendant on any dep.\] 82 NE 113. Restricting instruction on defense proven to their satisfaction. Crank-shaw v. Schweizer Mfg. Co., 1 Ga. App. 363, SS 85 NE 222. Where defendant admitted having received certain money saved for, and claimed that, by agreement with plaintiff, defendant paid out the money in settlement of a debt of plaintiff to a corporation, an instruction to find for plaintiff unless defendant, by agreement of plaintiff, paid out the money so retained on an account, held against plaintiff, in which event to find for defendant as to the sum so paid sufficiently presented the issue raised by defendant's answer. Bailey v. Porter, 30 Ky. L. R. 915, 99 SW 932.

7. If evidence is admitted for a particular purpose, it is proper to llmlt consideration to purpose for which admitted. Galveston, etc., R. Co. v. Kronecker \[Tex., App.\] 18 Tex. Ct. Rep. 951, 100 SV 990. At the time evidence is introduced the court may limit the consideration thereof to the legitimate purpose for which it was introduced. Broadstreet v. Hall, 168 Ind. 192, 80 NE 145. An instruction properly limiting the purposes for which testinony is to be considered cannot be objected to on appeal. St. Louis, etc., R. Co. v. Knowles \[Tex. Clv. App.\] 18 Tex. Ct. Rep. 83, 99 SW 867.

1. The jury may be instructed not to consider improper side-bar remarks. St. Louis, etc., R. Co. v. Knowles \[Tex. Clv. App.\] 18 Tex. Ct. Rep. 83, 99 SV 867. Where counsel erroneously insists in argument that certain issues are before the jury, court may in-struct specifically that such issues should not be considered. Tingley v. Times Mirror Co. \[Cali.\] 89 P 1097.

1. Request properly refused as restricting jury too narrowly in its determination of the issues of fact. J. W. Bishop Co. v. Dodson \[C. C. A.\] 152 F 128. In eminent domain proceedings, the jury being permitted to view the premises, an instruction that they should fix the value of the land taken and the damage to the land not taken from the evidence, without requiring them to consider the knowledge gained from their view, held erroneous. Chicago & A. R. Co. v. Scott, 225 Ill. 352, 80 NE 404. An instruction confining the Investigation of the jury to a single issue, such issue being the left to the unlimited discretion of the jury.12 General instructions should not be given when a case is submitted for a special verdict.13 Where the evidence is close and conflicting, the jury should be perspicuously and accurately instructed.14

Footnote 13: The author is grateful to the anonymous referee for the support of the manuscript.

Eman v. Loveland \[Iowa\] 118 NW 1082;

Gehlert v. Quinn, 35 Mont. 451, 90 P 168. An instruction should be so framed as to indii- state the burden of proof without specially

proof is on plaintiff to prove facts on which referring to it. Musselam v. Cincinnati, etc.,

R. Co., 31 Ky. L. R. 908, 104 SW SW 337.

Rule violated: Proper to instruct that 580, 103 SW 822, Not misleading to use party on whom burden legally rests must

proof is upon plaintiff to satisfy you by a evidence. Illinois Cent. R. Co. v. Warriner,

229 Ill, 812 NE 246. Requiring proof by

252, 110 NW 409. Constructing jury to deterpendorance of evidence not error. Nelson

v. Spence \[Ga.\] 58 SE 697. Instruction that

mine issues from preponderance of evidence

burden on defendant in recoupment was

is not objectionable as placing the burden

correct. Sayles v. Quinn \[Mass.\] 82 NE 713.

Instruction requiring conscience, instead of

App.\] 20 Tex, Ct. Rep. 71, 105 SW 548. In-mind, of jury to be reasonably satisfied is

structing as to facts which would authorize

defective. Birmingham R. L. & P. Co. v. Hugghes, 127 Ga. 593. 56

Martin \[Ala.\] 42 S 618. Instruction in ac-

plaintiff on finding such facts true, other-

tion for killing by railroad erroneous as

vise to find for defendant, was not objectionable as placing the burden on defendant to

killing was negligent in violation of Ky. St.

1903, 8 809. Troutwine v. Louisville & N. R.

R. Co. v. Calvin \[Tex. Civ. App.\] 18 Tex. Ct.

Co. \[Ky.\] 105 SW 142. Requiring jury to be

Sep. 890, 103 SW 428.

satisfied by a preponderance of the evidence

12. Failure to instruct as to measure of

imposed too high a degree of proof. South-

demages was reversible error. Central of

ern R. Co. v. Hugghes \[Ala.\] 43 S 544. An

Gcorgia R. Co. v. Hughes, 127 Ga. 593. 56

instruction that the jury must be "satisfs"

SE 770. Instruction held erroneous as sub-

Red" from the evidence that defendants

mitting the whole question of damages to

exercised lawful control over certain cot-

ton was erroneous, where defendants were

termination of the damages allowable.

only required to "reasonably satisfy" the

Western Union Tel. Co. v. Lehman \[Md.\] 67

jury on such issue. Hackney v. Perry \[Ala.\]

A 241. The jury should be properly in-

44 S 1029. The word "satisfaction" in a

structed as to the measure of damages

phrase "to the satisfaction of your minds"

in an instruction held objectionable. Panhandle & Q. R. Co. v. Kirby \[Tex. Civ. App.\]

handle & Q. R. Co. v. Kirby \[Tex. Civ. App.\]

15 Tex, Ct. Rep. 827, 94 SW 173. Instruction giving jury

tion requiring plaintiff to prove facts, the

existence of which is presumed by law from

the existence of the facts shown, was

erroneous as imposing burden not required

by law. Dawson v. Wumbles, 123 Mo. App.

840, 100 SW 547. Request requiring jury to

be "satisfied" of a certain fact was properly

refused where plaintiff only had to establish

comprising the different elements for which

lish such fact by a preponderance of evi-

compensation may be awarded. Southwestern

dence. Western Cottage Piano & Organ Co.

Cotton Seed Oil Co. v. Stribbling, 18 Okl. 417,

v. Anderson \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 89 P 1129. Where the value of a horse, in

524, 101 SW 1061. In a personal injury suit,

it is error to charge that plaintiff cannot

recover 1f, after a fair consideration of all

plaintiff it must be for a fixed sum. Camp-

the evidence, any individual jury is reason-

bull v. Ladin, 104 NYS 372. Refusal to

ably satisfied by any material part of the

evidence that he ought not to recover. Bir-

mingham R. L. & P. Co. v. Moore \[Ala.\]

42 S 1024. Violaitve of Iowa Code, $ 3639,

as imposing on defendant the burden of

proving all of the defenses set up in answer,

instead of any one of them essential to a

recovery. Williamson v. Robinson, 134

Yowa, 345, 111 NWV 10 Instructions should be certain \[15\] and definite.\[16\]

Instructions need not be numbered, in the absence of a request.\[17\].

Verbal inaccuracies and inelegancies See & C. L. 855 should be avoided,\[18\] but they are generally not considered ground for reversal unless prejudice results,\[19\]

Argumentative instructions See & C. L. 856 should not be given.\[20\] In the absence of prejudice the giving of an argumentative instruction is not reversible error.\[21\]

Instructions should be consistent. See & C. L. 856--Instructions should not be inconsistent upon material matters.\[22\] The giving of instructions contradictory in essential parts is reversible error,\[23\] unless such error is harmless.\[24\]

in connection with which such rules are

79 NE 172. Where the law is correctly ap-given. Banderob v. Wksconsin Cent. R. Co. \[Wis.\] 113 NW 738.

14. Forney v. Melvin, 130 Ill. App. 203. Where the issue is closely controverted, the instruction should be clear so as not to confuse the jury. Register-Gazette Co. v. Larson, 123 Ill. App. 453; Darcy v. Stairwalt, 125 Ill. App. 489; Ashley v. Fitzwilliams, 127 Ill. App. 291; Cleveland, etc., R. Co. v. Dukeman, 130 Ill. App. 105.

01. See & C. L. 855. Miner v. Rickey \[Cal.\] 127 Ill. App. 262; Beividere City R. Co. v. App. 290 P 718.

01. Erroneous as indefinite and involved. Harrison v. Franklin \[No. App.\] 103 SWV

01.

01. Failure to number instructions, there being no request, was not error. McIver v. Williamson-Halsell-Frasier Co. \[Ok!:\] 92 P

01.

Failure to number instructions not reverse-skip error where they were reduced to writing. stating clearly and concisely the law. Long v. Davis \[Howal 114 NW 197: Atchison, etc., R. Co. v. Calhoun, 18 Ok!, 75, 89 P 207.

18. Mere verbal inaccuracies, the ordinary and common sense meaning of which is plain, do not render it improper. Webb v. Ritter, 60 W. Va. 193, 54 SE 484. Use of the word "infectious" instead of "contains" in an instruction in describing the characteristic of a disease of hogs was not erroneous as assuming that cholera is an infectious disease. Council v. St. Louis & S. F. R. Co., 123 Mo. App. 432, 100 SWV 67.

Use of the word "not" being a mere inadvertence was not error. London v. Crow \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 451, 102 SWV 117. Verbal slip placing on defendant the burden of proving contributory negligence by preponderance of evidence held not misleading. Horn v. Southern R. \[S. C\] 85 SE 88. If there is a difference in Verblage in submission of request to construct for respective parties, the courts' attention should be called to it before retirement of jury. Davis v. Michigan. Cent R. Co., 147 Mich. 479, 111 NW 76. Use of word "care" in sense of "nursing" not misleading. Johnson v. St. Paul & W. Coal Co., 131 Vis. 627, 111 NW 722.

19. A mere inadvertent use of terms will not make the instruction erroneous. It is not reversible error to use the words "clvil service commission" instead of "board of county commissioners." People v. Cook County, 127 Ill. App. 401. Verbal inaccuracy insulfient to invalidate verdict if jury could not have been misled thereby. Snyder v. Shribling, 18 Ok!. 168, 89 P 222. That an instruction is inartificially drawn will not affect it, if, as applied to the facts, it is not misleading. Lloyd v. Matthews, 223 Ill. 447,

## 816 instructions SS 7.10 Cur. Law.

### Relation of instructions to pleading and evidence

See 8 C. L. 387.\_Instruction should be predicated upon and be applicable to the issues raised by the pleadings \[25\] which remain controverted, \[26\] and upon the competent \[27\] evidence introduced, \[28\]

of the antagonistic principles is correct and \[67, 103 SW 821; Robinson, Norton & Co. v. applicable, and which should be disregarded. Mayers \[CKy.\] 105 SW 428; Harrison v. Frank-Savannah Elec. Co/v. McClelland, 128 Ga. \[In \[Mo. App.\] 103 SW 585; State v. Allen, 87, 57 SE 91. \[124 Mo. App.\] 465, 105 SW 1090; Streater v. Net Inconsistent or conflicting. Breiner Street \[N. C.\] 59 SE 112; Bolton v. Western v. Nugent \[Iowa\] 111 NW 446; Clark v. Union Tel. Co., 76 E. C. 529, 57 SE 543; Chesa-Van Vicek \[Iowa\] 112 NW 648; Provident pexke & N. R. V. Crews \[Tenn.\] 99 SW 368; Sav. Life Assur. Soo., Johnson 30 Ky. L. R. Bell v. Koars \[Tex. Civ. App.\] 18 Tex. Ct. 1038, 99 SW 1169; Williamson, St. Louis Transit Co., 202 Mo. 345, 100 SW 1072; Gubler V. Terminal R. Assur of St. Louis, 203 Mo. \[Ct. Rep.\] 687, 104 SW 916; J. W. Bishop Co. 208, 101 SW 37; Cahill v. Chicago & A. R. V. Dodson \[C. C. A.\] 152 F 128. Instructions Co., 205 Mo. 393, 103 SW 532; Garard v. must be confined to issues and predicated on Manufacturers' Coal de Cooke Co. \[M.\] 106 facts in proof. Griffin Bros. Co. v. Winfield SW 167; Missouri, & K. T. R. Co, v. Arey \[Fla.\] 43 B 687. Instructions inapplicable to \[Tex. Civ. App.\] 18 Tex. Ct. Rep., 38, 100 SW 963; International & G. N. R. Co. v. Hugen \[Tex. Civ. App.\] 17 Tex. Ct. Rep., 152, 18 Tex. Ct. Rep., 65, 100 SW 1000; Womack v. Inter-national & G. N. R. Co. \[Tex.\] 18 Tex. Ct. Rep., 748, Rep. 628, 100 SW 1151; Planter v. X. Kilgore \[Tex. Civ. App.\] 19 Tex. Ct. Rep.\] 880, 101 SW 809; Southern R. Co. v. Stockodson 106 Va. 693, 66 SE 713, Not objectionable as self-contradictory, dilogical, or misleading. California Brew. Co., 35 Mont. 264, 88 P 1007. Logoman Bros. Co. v. R. J. Preuss Co., 131 Wis., 122, 111 NW 64. Instructions were not conflicting but to be read together. Hunt in a very short time, being an issue not v. St. Louis, etc., R. Co. Mo. App.\] 105 SW 133. Instructions given held not erroneous as substantially conflicting. Mathieson Al-\[Ark.\] 105 SW 573. Requests asserting a \[Ark.\] 105 SW 573. Requests asserting a \[Ark.\] Works v. Mathleson \[C. C. A.\] 150 F, going beyond the issues, were properly refused. Woodstock Iron Works v. Kline 24, 110 NW 677. The giving of contradicting and one erfonent or adjusted to issues no error. roneous, is prejudical error. McCurry v. Hegwkins \[Ark.\] 103 SW 600. \[Ark.\] 103 SW 600. \[Ark.\] 103 SW 600. \[Ark.\] 104 SW 105 SW 1060. \[Ark.\] 105 SW 1072. Instructions giving a \[Ark.\] 105 SW 573. Requests asserting a \[Ark.\] 106 SW 108 SW 1151; Planter v. Xligore \[Ark.\] 106 SW 108 SW 101; Santur R. Co. v. Stockodson 106 SW 1090; Southern R. Co. v. Stockodson 106 Va. 693, 66 SE 713, Not objectionable as self-contradictory, dilogical, or misleading. California Brew. Co., 35 Mont. 264, 88 P 1007. \[Ark.\] 107 SW 122, 111 NW 64. Instructions were not conflicting but to be read together. Hunt in a very short time, beingCIV. App.1 17 Tex. Ct. Rep. I24, 98 SVW 1074.

on signals given by one employee to another. Arequested instruction so general as to embarance more acts of negligence on plainITS 42 S 1034. Instructions on contributory negpart than were pleaded by defendant was properly refused. Galveston, etc., R. Co. v.

neglence ought not to be given. Louisville Alberti \[Tex. City. App.1 19 Tex. Ct. Rep. 544, & N. R. Co. v. Mulder \[Ala.\] 42 S 742. Where 103 SVW 698. Instructions foreign to issues and misleading. Humphreys v. Smith, 128

up adverse possession, refusal to charge Ga, 549, 58 SE 26. Issue of negligence not only on question of adverse possession was being raised by pleadings, it was improper to Instruct on failure to exercise ordinary eare in removing a wall. Howle v. California

1997. Flagness not tending.issue of non sui

Brew. Co., 85 Mont. 264, 88 P 1007. In action on a policy of insurance, the breach of a condition, representation, or warranty, contained in a fire policy, though established by the evlaced that a fire was set by an engine, dence, should not be submitted, where breach

not pleaded. Smith v. MMutual Cash Guarantancy

over whether the fire was "set by some Fire Ins. Co. \[S. D.\] 113 NWV 94. Authorizing punitive damages in the absence of anything in pleadings or proof indicating more than a claim for actual damages was error. Reed v. Coughran \[S. D.\] 111 NWV 553. An instruction, in an action for injuries caused by being thrown from a street car, was errorous. Dick v. Biddle Bros. \[Md.\] 66 A erroneous as enlarging on the particular negligence alleged. Smith v. Metropolitan St. R.

Co. \[Mo, App.\] 103 SVW 593. Refusal to submit whether the inspection of heading by vendee was fair and honest was not error, where fraud or unfairness was not alleged.

Dunham v. H. D, Williams Cooperative Co.

\[Ark.\] 103 SVW 386. Request for instruction on account stated, where such defense was not embraced in pleadings, was properly refused. Bagnell Tie & Timber Co. v. Goodrich

1997.

to leave car. Green v. Metropolitan St. R. \[Gambill v. Fuqua \[Ala.\] 42 S 735; Johnson, Co., 122 Mo. App. 647, 99 SW SW 28. Held within scope of allegations of negligence. Evers Central of Georgia R. Co v. Hughes, 127 Ga. v. Wirgins Ferry Co. (Mo. App.)105 SW 206. 593, 56 SE 770; Bauchens v. Davis, 229 Ill. Instructing on contributory negligence, 557, 82 NE 365; Chicago, etc., R. Co v. Rathwhere it was pleaded by defendant and not withdrawn, was not error, though there was no evidence tending to show plaintiff's negligence. Murphy v. Metropolitan St. R. Co., 125 Mo. App. 269, 102 SW 64. Instruction held erroneous which submitted issue barely raised by the pleadings and not raised by the evidence. Graham v. Edwards \[Tex. Civ. App.\] 99 SW 436. The instruction must be based on evidence, and not procured upon a theory conflicting with the pleadings. Hendricks v. Allen, 128 Ga, 181, 57 SE 224. 26. Instructing submitting whether plaintiff suffered any exposure or discomfort whatever, in the absence of allegations or proof that he did, were erroneous. Baltimore, etc., R. Co. v. Sheridan, 31 Ky. L. R. \[Tex. Civ. App.\] 109, 101 SW 928. 101 SW 928. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 111.

Mere giving of an instruction laapplicable to ease does not constitute harmful error. Pellet 6m v. Spider Lake Sawmull and Lumber Co. \[WIs.\] 112 NW 29. Failure to instruction on Civil Code 1895, 8 1518, not erroneous, when not appHealthe to ease. Shields v. Georgia R. & Elee. Co., 1 Ga. App. 172, 67 SE 980.

Not based on evidence: Instruction was objectionable as misleading, where there was no evidence on which to base it. Southern Hotel Co. v. Zimmerman \[Ark.\] 105 SW 878. Instruction erroneous in submitting issue not covered by evidence or pleading. Nash v. Noble \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 543, 102 SEW 736. Although a correct expression of the law. City of Bloomington v. Woodworth \[Ind. App.\] 81 NE 611. In an action on a note request for instruction that if the note was written without interest, and subsequently to its delivery the letters "out" in "without" were erased, interlined, or crossed out, so that the note was made to read "with interest," a fraudulent alteration by plaintiff or with his knowledge should be presumed, was properly refused, where the evidence was abundant to warrant a finding that the note, when signed, was so written as to carry interest. Wood v. Skelley \[Mass.\] 81 NE 872. Where verdict sustained, refusal of instruction which would have lead to a different result, not error. Long v. Johnson County Tel. Co., 134 Iowa, 386, 111 NW 884. Request upon a correct was not error. Id. In per-properly refused as presenting issue not based on facts. Brown v. San Antonio Trac. Co. \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 936, 101 SW 526. Instructions predicated upon a statement of facts contrary to the uncontra-dicted and undisputed proof in the case are erroneous. Multikiev n. Harrison \[Flan.\] 44 48 426. Reversible error to submit material issue not raised by the evidence. Texas & N. O. R. Co. v. Scarborough \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 828, 104 SW 408. In the absence of evidence indicating that, by reason of age or experience, a trespasser ejected from a train was less capable than an ordinary person walking on the track towards the nary person of looking out for his safety, held error to refer in instruction to the age and experience of the trespasser in determin-ling his contributory negligence. Doggett v. Duncan V. St. Louis & S. F. R. Co. \[Ala.\] 44 Chicago, etc., R. Co., 134 Iowa, 690, 112 NW 171. Error to read statute in instructing jury, in the absence of evidence showing its violation. Robinson v. Crimmins, 104 NYS 1076. No evidence being offered as to medical expenses, it was error to instruct jury to consider them. Worth v. Jonesville Oil Mill \[S. C.\] 67 SE 634. Where there was no evidence of negligence in respect to the place where earth was thrown, an instruction authorizing jury to consider if the excavator was negligent in throwing earth to the east of a street and across street car track was erroneous. Citizens' Gas & Elee. Co. v. Nicholson \[C. C. A\] 152 F 389. There being no evidence of agreement to compensate for secretes, a request that if there was an agreement by which defendants were to compensate plaintiff for his services in concern with a sale, then verdict should be "leaved" and without making for plaintiff, held properly refused. Walker v. Baldwin \[Md.\] 68 A 25. There being no evidence of employment to sell property, re-quest that if defendants employed plaintiff to procure purchaser, and plaintiff did pro-pearns by invitation, was erroneous, where reply rejected. Id. \[Request on point as to which no evidence introduced, held properly\] \[R. Co. v. Denny's Adm'r, 106 Va. 383, 56 SE which is sufficient to authorize an instruction.20 It is proper to limit the instructions to the evidence adduced.20 Where evidence is admitted without objection on a matter covered by the pleadings, the court may assume in instructing that the pleadings are as broad as the evidence.21 Whether there is any evidence in the record tending

321. Instructing jury to take into consider- ation and give the proper effect to any evidence before them, if there be such, tending to show that there was a reasonable prospect of increased earnings on the part of plaintiff in case he had not been injured, was improper, where there was no evidence to warrant it. Southern R. Co. v. Scott, 128 Ga. 244, 67 SE 604. Where there was no evidence to support a claim made by defendant, failure to shape instruction with reference to it was not error. Howard Supply Co. v. Bunn, 127 Ga. 663, 56 SE 757. Instruction not supported by evidence was properly refused. Judith Inland Transp, Co. v. Williams \[Mont.\] 91 P 1061. Held error to submit question as to permanency of injuries, where there was no evidence justifying such submission. Perelli v. New York City R. Co., 104 NYS 1047.

001. Coulberson v. Alabama Const. Co., 127 Ga. 599, 56 SE 765; Bulger v. Gleason, 123 Ill. App. 41; Dazey v. Stafivarik, 123 Ill. App. 489; Rabinewitz v. Hall, 123 Ill. App. 56; Field v. Winhelm, 123 Ill. App. 227. Only the substance of an issue need be proved to authorize its submission. Texas & N. O. Co. v. Scarborough \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 828, 104 SW 408. Where actual pecumary damages are sought for loss of time, some evidence must be given showing such loss and its value to support an instruction to dump.18 Tex. Ct. Rep. 865, 102 SW 464; the jury to consider loss of time in fixing damages. Barron v. Northern Pac. R. Co. \[N. D.\] 113 NW 102. Instructing presenting losses not authorized by the evidence are erroneous, although, as abstract propositions of law, they may contain nothing objection-able. Bird v. Benton, 127 Ga. 371, 56 SE 406. Hypothetical Instruction was proper, where there was evidence to sustain. Hamlin v. Pacific Elec. R. Co., 160 C., 160 C., 89 P 1109.

Sufficient to authorize an instruction: Instruction to find predicated upon knowledge, not shown by positive evidence, but reason- ably to be inferred from facts, was proper. Muncy v, Bevier, 124 Mo. App. 10, 101 SWV 157. Refusal to give requested instruction not authorized by the evidence was not error. To consider "amome other things," certain Whitehead v. Pitts, 127 Ga. 774, 56 SE 1004.

In trespass, where the title to land was in- volved, failure to instruct as to the seven-year statute, giving title, where it was not justified by the evidence, was not error. To allow the evidence, was not error. To allow the evidence, we have to believe that they can base their verdict on a finding of fact of which there is no evidence is error. Rumsey v. Babv v. Goodrich \[Tex. Civ. App.\], 18 Tex. Ct. Rep. 662, 102 SW 910. Not objectionable as not based on evidence. Ghio v. Metropolitan St. R. Co., 125 Mo. App. 710, 103 SWV 142. Instruction not objectionable as based on factors not evidence and resting on conjecture. Powers v. St. Louis Transit Co., 202 Mo. 267, 100 SW 656. An issue submitted in strict accord with the testimony is not objectionable. Ft. Worth & D. C. R. Co. v. Wooldridge \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 79, 105 SW 845. Instruction not erroneous and misleading is imputing to defend- an a theory of defense not entertained, and unsustained. Grasty v. Lindsay \[Va.\] 69 SE
VOL. X. NO. 3. CURRENT LAW, JULY, 1908. 821

(Copyright, 1908, by The Keefe-Davidson Co.)

**INSTRUCTIONS--Cont'd**

to prove a cause of action is a question of law, and the court may instruct the jury to disregard a count or counts in the declaration if there is no evidence to support a recovery thereunder.\[82\] Propositions, though correct, which are merely abstract, should not be given \[83\] as they tend to mislead and confuse the jury.\[34\] Requests, abstractly correct, but which can only be understood by the jury as referring to the situation presented by the evidence, as to which it is not applicable, held properly refused,\[85\] but the giving of an inapplicable instruction is not reversible error \[36\] unless prejudice results.\[87\]

**SS 8.**\_Stating issues to the jury.\_See * C. L. 804. The court is not required to give a

erronous, although question not raised by

**separated, where testatrix is of advanced pleadings, where responsive to testimony.**

**arge and suffering from a disease affecting Harbert v. Atlantic, etc., R. Co. \[S. C\] 59**

\*\*her brain and vital powers, properly refused SE 644. An instruction, in an action against a railroad for killing stock, on negligence

**is 167, 80 NE 215.**

**in: exceeding speed limit imposed by city**

**volt** **of** **disc** **as abstract, Eureka Stone**

**con, v. Knight \[Ark.\] 100 SW SW78. The instructive was not set up in the pleading.**

**conliville & N. R. Co. v. Christian Moerlein**

**Drew, Co. \[Ala.\] 43 S 723.**

**Instructions should be confined to the issues although evidence be admitted that is not within such issues. Jacksonville Elec. Co. v. Batching**

**\[Fla.\] 44 S 933.**

**32. Quincy Horse R. & Carrying Co. v.**

**Rankin, I23 III. App 472.**

**33. Woodstock Iron Works v. Kline \[Ala.\]**

**43 S 862: Central of Georgia R. Co. v. Hyatt \[Ala.\] 43 S 867: Factor v. Robins \[Ark.\] 102**

**SW 209; Martin v. Hertz, 224 Ill. 84, 79 NE 558;**

**Martin v. Trafner 125 Ill. App. 474; Swift v. Remnard, 128 Ill. App. 181; Haas v. Tegtemler, 128 Ill. App. 280; Utre v. Curry, 120, Ill. App. 217; First Nat. Ek. v. Carroll, 35 Mont. 302, 85 N 1012.**

**37. Central of Georgia R. Co. v. Hyatt \[Ala.\]**

**V. Midlason \[Utah\] 90 P 393; Newport News & O. P. R. & Elec. Co. v. McCormick, 106 Va. 517.**

**56 SE 281; Delmar Oll Co. v. Bartlett \[Vov.\]**

**Va.\] 59 SE 643.**

\*\*Invention, though correct, really stating abstract propositions of law

**properly refused, because inapplicable to the issues. Sullivan v. Fugazzi, 193 Mass.**

\*\*518, 79 NE 775; State v. Caron, 118 La. 349, 42 S 960. Propositions of law should be concretely stated. Denver Consol. Elec. Co. v. Walters \[Col.\] 89 P 815. Refusal of instruction defining the abstract meaning of a word, apart from the connection in which the jury might find the word to be used, was not error. Way v. Greer \[Mass.\] 81 NE

**1092. Refusal of abstract proposition of**

**law not supported by the evidence was not error. Empire Bldg. Co. v. Hopkins, 204 Mo. 643, 103 SWV 66. No error in refusing abstract principle of law without informing the jury.\[34\]**

**the jury of its application to the issues.**

**Hayward Lumber Co. v. Cox \[Tex., Civ.\].**

**19 Tex. Ct. Rep. 820, 104 SWV 403. Though**

\*\*abstractly correct, if request not fairly ad-

**justed to evidence, court may refuse to give**

**Murphy v. Meacham, 1 Ga. App. 155, 67 SE**

**1046. Failure to charge a principle of law**

\*\*not applicable to the evidence was not error

\*\*in the absence of a request. Mitchem v. Allen, 128 Ga. 407, 57 SE 721. Abstract prop-

**Langston v. Cohtran \[S. C\] 58 SE 956. An ostitions of law though correct are improperly given where inapplicable to issues. Hutchison v. Maysville, 30 Ky. L. R. 1173, 100 SWV**

**331. In will contest, instruction that undue**

**influence and mental capacity cannot be**

**10 Curr. L-- 31.**

**11.**

**12.**

\*\*13.

porate the pleadings into the instructions.47 It is within the discretion of the court to deny a request to submit a cause on special issues and to submit it in a general charge embracing all the issues and declaring the law governing them.48 A special instruction may group the issues and submit them, although such issues were presented by the main instruction, and are presented in such manner as not to be conflicting.49 Where issues have once been stated, a repetition is unnecessary, but not necessarily erroneous.60

evidence to determine if the motorman saw plaintiff was about to cross the track, and if the motorman's failure to stop the car thereafter was wilfight and wanton. Garth v. North Alabama Trac. Co. \[Ala.\] 42 S 627.

Erronecons as withdrawing issue. Loftus v. Green \[Tex. Civ. App.\] 104 SV 396. Held error to withdraw question of negligence where depending on evidence, except where * there is no material conflict, and there is no room for different minds to form different conclusions. Texas Mexican Rd. Co. v. glins \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 685, 95 SW 200.

Issues not withdraw or ignored. Moss v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 18 Tex. St. Rep. 708, 103 SW 221. Not erroneous as ignoring issue of a fraudulent combination. Crenshaw v. A. F. Shnolight Hardware Co. \[Ark.\] 100 SW 852. Instruction relating to credibility of witness not objectionable as withdrawing documentary evidence from consideration of jury. Western & A. R. Co. v. Tate \[Ga.\] 59 SE 266.

Request property refused as ignoring effect of adoption or ratification of declarations by principal of agent to establish the latter's authority. Gambill v. Fuqua \[Ala.\] 42 S 735. Instruction omitting an issue as to whether a purchase was in the apparent scope of an agency was properly refused. Hayward Lumber Co. v. Cox \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 820, 104 SW 403. Instruction properly refused in action for negligent death as ignoring question of defendants' negligence and elements leading up to the death, Cytron v. Sc. Louis Transit Co., 205 Mo. 682, 104 SW 109. An instruction as the barring of a cause of action on a note by the residence of defendant without the state, which ignored the fact of residence without the state, was properly refused. State v. Allen, 124 Mo. App. 465, 103 SW 109.

Where the evidence showed that plaintiff, in action for personal injuries, alighted at a place, which was not a station in accordance with an agreement with the conductor, a request was properly refused which eliminated the agreement and authorized a verbot.

dict against plaintiff on the ground of contributory negligence from the fact that she left the train at a place not a station. Galvest, H. & H. R. Co. v. Albert \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 544, 103 SW 699. In an action by an employee for injuries caused by using a defective pinch bar, a request omitting requirement that the danger in using the bar must have been known to plaintiff was properly refused. St. Louis S. W. R. Co. v. Schuler \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 478, 102 SW 783. Requesting ignor- ing issues properly refused. Rector v. Robles in \[Ark.\] 102 SW 209. Ignoring issue of negligence properly refused. Houston & T. C. R. Co. v. Rutland \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 134, 101 SW 529. Requesting in liability from ratification of agent's acts, in action for false imprisonment, in which arrest was made by an alleged agent of defendant, was properly refused. Gamill v. Fuqua \[Ala.\] 42 S 735. Ignoring material issues, Davis v. Miller Brent Lumber Co. \[Ala.\] 44 S 639. Where plaintiff soed for balance principle of an engine and defendant pleaded that the engine was not as warranted, held proper to refuse request authorizing verdict for defendant without reference to whether the engine was properly operated by defendant. Telix Rice Co. v. Fairbanks, Morse & Co. \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 1002, 100 SW 958. Request properly refused as preterminiting "any v.

fective, that it was repaired, and that the re-parting was negligently done. Zeils v. St. Louis Brew. AsE's, 205 Mo. 633, 104 SW 99. Where testimony of alleged partners was relied on, and an account book kept by them, failure to mention book in submitting issue, in which attention was called to testimony of alleged partners, was error. Flint v. Atulas Mut. Ins. Co., 134 Iowa, 531, 112 NW 1. Error to authorize jury to disregared expence of nursing and medical attendance in fixing amount of damages on account of such loss and expense, where there was direct evidence of the value of the time lost by plaintiff by reason of personal injuries. Platt v. Ottunwa \[Iowa\] 113 NW 831. Where there was circumstantial evidence of positive acts of negligence in-structing that there was no evidence of positive acts of negligence. Sherrell v. Louis- ville & N. R. Co. \[Ala.\] 48 153. Where there was evidence of mental incapacity on the part of an executrix when she signed a release, an instruction that the law presumes that she was of sound mind and capable of executing the release was erroneous. Loveman v. Birmingham R., L. & P. Co. \[Ala.\] 43 S 411. Instruction that jury were not confined to the evidence in determining the value of legal services, but might rely on their own judgment, properly refused, as it had effect to discredit expert and opinion offered, and suggested that it might properly be disregarded. Morehead's Trustee v. Anderson, 20 K. K. R. 1137, 100 SW 340. Instruction erroneous as leading jury to ignore testimony. Savage v. Rhode Island Co. \[R. L.\] 67 A 633. An instruction, in action for injuries caused by defective bridge, held erroneous as ignoring evidence of road supervisor's knowledge of the dangerous condition of the bridge. Adams v. Somerset County Com'rs \[Md.\] 66 A 695. Properly refused: Request ignoring rationale by principal of act of agent, of which there was evidence, was properly refused. Robinson v. Green \[Ala.\] 43 S 197. Request ignoring evidence of prior authority of agent to make arrest was properly refused. Gammbell v. Fuqua \[Ala.\] 42 S 735. Request ignoring evidence tending to show authority and ratification was properly refused. Id. Request leading jury to believe that they were not to consider a written showring as to what an absent witness would testify, if present, properly refused. Garth v. North Alabama Trac. Co. \[Ala.\] 42 S 627. Instruction leading jury to believe that material evidence is immaterial was properly refused. North American Restaurant & Oys- tuer House v. McElligott, 227 Ill. 317, 81 NE 388. Where expert witness testifying as to testator's capacity stated that his opinion was in part based on the will which he read, held that refusal to instruct that witness' opinion should be disregarded, because not based entirely on hypothetical question, was proper. Anderson v. Husted, 79 Conn. 535, 66 A 7. Held no error in refusal to give requested instruction that there was no evidence to show plaintiff's pleurisy and mis-carriage were due to an accident, where physicians attendant upon plaintiff aware that such troubles were the direct and proximate consequences of the injury. Jorden v. St. Louis, etc., R. Co., 122 Mo. App. 30, 99 SW 492. Refusal of instruction that there was no evidence to sustain action was proper. Conoklin v. Consol. R. Co. \[Mass.\] 82 NE 23. Request properly refused where it tended to divert the attention of the jury from material testinony. Minot v. Boston & M. R. Co. \[N. H.\] 66 A 825. Evidence not ignored: Not objectionable as ignoring evidence of manner of coupling cars. Hayes v. Chicago, etc., R. Co., 131 Wis. 399, 111 NW 471. 55. An instruction which ignores a defense is erroneous. Citizens' Sav., Loan & Bldg. AsE's v. Weaver, 127 Ill. App. 252; Evidence City R. Co. v. Bute, 128 ill. App. 820; Harley v. Aurora, E. & C. R. Co., 128 Ill. App. 643; Chicago, B. & Q. R. Co. v. Bautech, 129 Ill. App. 23; Forney v. Melvin, 130 Ill. App. 203; Key v. Ushet, 30 Ky. L. R. 667, 99 SW 324; Kirchener v. Concorl Inv. Co. \[Md. App.\] 104 SW 1127. Instruction which limited the defense of contributory negligence to a motorman's failure to keep a proper lookout was improper. Birmingham R., L. & P. Co. v. Hayes \[Ala.\] 44 S 1082. Rule not violated: Not objectionable as ignoring defense of contributory negligence. Evers v. Viggins Perry Co. \[Md. App.\] 103 SW 306. Instruction was not objectionable as ignoring right of defendant railroad to notice of defective condition of road bed a sufficient length of time to enable it to repair such defect before it could be held liable for an injury resulting therefrom. Illinois Cont. R. Co. v. Heath, 228 Ill. 312, 81 NE 1022. Not objectionable as excluding defense of contributory negligence, where the court had fully instructed on this point. Galveston, H. & N. R. Co. v. Morrison \[Tex.\] 19 Tex. Ct. App.\] 19 Tex. Ct. Rep. 449, 102 SW 143. Instruction not

## 10. _Giving undue prominence to evidence, issues, and theories._ See * C. L. sef.

Instructions should not single out and give undue prominence to particular facts in evidence," issues," or contentions of either party," or rule of law," or invite undue

owner, was erroneous. Mulliken v. Harri-son \[Fla.\] 44 S 426. Instruction ignoring defense of contributory negligence was erroneous. Alabama City, etc., R. Co. V. Bates \[Ala.\] 43 S 98. Heid error to instruct jury that evidence not properly in the case was to return verdict for defendant if it had made certain representations, where in fact defendant had not made such representation, as it tended to destroy defense that no representation was made. Julius Kess- \[Tex. Civ. App.\] 99 SV 173. 56. Instruction omitting mention of element of inherent vice or natural propensity of cattle, in action against carrier or live stock, was not erroneous, there being no evidence on this point and it being a matter of defense. St. Louis S. W. R. Co. v. Kill-berry \[Ark.\] 102 SV 894. Where exception was taken to evidence admitted, and counsel stated they would not insist on it, instruction to jury not to consider evidence was not erroneous. Galveston, etc., R. Co. V. Still \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 182. 100 SW 176. An instruction cannot be said to ignore a doctrine when there is no question in the case to which it can apply. Lloyd V. Matthews, 233 Ill. 477, 19 SX 172. 173. Though a fact not put in issue by the pleading, if not disputed, but conceded at the trial, its omission is not error calling for reversal. Bradford v. National Ben. Ass'n, 26 App. D. C. 268. 57. 26eks v. Muttschall, 23 Ill. 462, 82 NE 872; Turner v. Lord, 134 Ill. App. 117; Purcell v. McKeeel, 129 Ill. App. 428; Pennsylvania Co. v. Barton, 130 Ill. App. 573; Bradford v. National Ben. Ass'n, 26 App. D. C. 268. 58. 68. 68. 68. 68. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 71. 70. 72. 74. 78. 79. 72. 75. 76. 78. 79. 70. 73. 71. 74. 78. 79. 70. 74. 79. 71. 75. 76. 77. 78. 79. 71. 72. 78. 79. 70. 74. 79. 72. 78. 79. 71. 70. 75. 77. 78. 79. 71. 72. 79. 72. 79. 73. 74. 79. 74. 78. 79. 70. 75. 79. 71. 76. 79. 72. 78. 79. 70. 77. 78. 79. 71. 70. 79. 72. 79. 73. 74. 79. 75. 76. 77. 78. 79. 71. 70. 79. 72. 79. 74. 79. 75. 77. 79. 71. 70. 79. 72. 79. 73. 74. 79. 75. 76. 77. 78. 79. 71. 70. 79. 71. 70. 79. 72. 79. 74. 79. 75. 77. 79. 71. 70. 79. 72. 79. 73. 74. 79. 75. 77. 79. 76. 79. 77. 78. 79. 71. 70. 79. 71. 70. 79. 72. 79. 73. 74. 79. 75. 77. 79. 71. 70. 79. 71. 70. 79. 72. 79. 73. 74. 79. 75. 77. 79. 76. 79. 77. 78. 79. 79. 70. 79. 79. 70. 79. 70. 79. 70. 79. 71. 70. 79. 71. 70. 79.

attention thereto;" but it is often necessary and proper to speak of important features in the evidence and make concrete applications of the law to them."

**SS 11.**\_Definition of terms used.\_See 8 C. L. 800.-Technical terms employed in the instructions should be defined." The definition given should be correct." Failure to give such definitions is generally held not reversible error, or unless prejudice results." Technical words need not be defined if the same used in the instructions as a whole are made definite and intelligible." Terms in common use need not be defined."

**SS 12.**\_Rules of evidence; credibility and conflicts.\_See 8 C. C. 376

_The credibility of witnesses_ " and the weight to be given their testimony," the

a principle of law contained in general in-struction stating generally that plaintiff instructions was not erroneous as giving could not recover if deceased, a boy 12 years undue prominence to the rule of law expid, failed to exercise reasonable care, held pressed. Ramble v. San Antonio & G. R.

Co, \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 903, 100 8V 1025.

**61.** Instruction should not be unnecessarily repeated, thereby placing one stress upon them before the jury. Chicago, etc.,

Grembler, 121 Mo. App. 359, 99 SW 46.

R. Co. v. Alexander \[Wash.\] 91 P 626. Objectionable as giving undue prominence to single feature of evidence. Duncan v. St.

Louis, etc., R. Co. \[Ala.\] 44 S 418, Instrucut.

tion on contributory negligence was mis-leading and erroneous as giving undue

v. Queen Ins. Co., 203 Prominence to undesive point. Biee v.

Wheeling Elee. Co. \[W. Va.\] 59 SE 626.

Where there was testimony that at the time of

an accident to a passenger alighting

from a street car the conductor said to the

Cor. Aubert \[Tex. Civ. App.\] 19 Tex. Ct.

devll don't you give people a chance to get

off?" an instruction that the jury should not

consider the testimony held not objectionable as

## 331. Instructions $\\lx@sectionsign$ 12.

10 Cur. Law.

truth of evidence,70 are questions for the jury, but it is proper to instruct that the interest of a witness,71 his intelligence and capacity,72 or his susceptibility of being influenced,73 may be considered; and the court may characterize and compare expert with other evidence,74 or call attention to the means of knowledge of the witness,75 and the relative weight to be given positive and negative testimony;76 that if witness

- consider and right to determine the weight of his evidence. Hanchett V. Haas, 125 Ill, App. 111, ed. 219 Ill, 544, 76 N 845. Instructions in substantial compliance with Code seetions was not erroneous as taking from jury then the right to believe a witness, although impeached by contradictory statements. Atlanta & W. P. R. Co. v. Hudson (Ga.Ap.) 58 SE 500. The evidence being conflicting as to the occurrence of a thing, and the jury being instructed that the existence of a fact test- v. Starks, 144 Miche, 448, 13 Det. Leg. N 377, tified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses having same opportunity of observation swear that they did not see or know of its having transplored, the court should also instruct to the effect that in weighing the testimony of the witnesses the jury should pass upon their credit- bility. Atlantic Conact La R. Co. v. ONeill, 127 Ga. 685, 56 Si 986. Requested instruction properly refused as calculated to dids- erredit subscribing witnesses. Huvk v. Rennie \[CaL\] 90 P 59. Disruption intimant- ing to jury that testimony of witness which was uncontradiated was inherently improb- acble, and discredited by cross-examination, such inferences being unwarranted, held erroneous. Beaumont v. Beaumont \[C. C. A.\] 152 F 55.

69 Anderson v. Husted \[Conn.\] 68 A 7; Bolton v. Central Pennsylvania Trac. Co. \[Pa.\] 67 A 950.

**Request properly refused** as on weight of evidence. International & G. N. N. Co. v. Hoveill \[Tex. Civ. Appl.\] 19 Tex. Ct. Rep. 123, 105 SW 560. Instruction objectionable that directs jury that special agents "must not in any sense be treated as detectives".

that as a matter of law the testimony of special agents is entitled to the same weight as that of other disinterested witnesses.

Culliman v. Furthman \[N. Y.\] 79 NE 889.

Improper to instruct that in determining weight to be given testimony of witness in interest in litigation may be considered. St. Louis, etc., R. Co. v. Byroble \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 209, 101 SW 268. Instructent- ing that plaintiff was entitled to verdict if jury believed his evidence was error. John- v. New York City R. Co., 104 NYS 1039.

Instruction that if jury believed that plaintiff was 16 years old and in good health at the time of the injury then his expectancy of life was 44 years was erroneous. Central of Georgia R. Co. v. McNab \[Ala.\] 43 S 222. In eninent domain proceedings to recover compensation for damages, held proper to refuse instruction that in computing the damages all doubts should be resolved in favor of claimant. Taber v. New York, & B. R. Co. \[R. L.\] 67 A 9.

70 Instruction held erroneous in assuming the truth of evidence. Oren Fruit & Trotduce Co. v. Northern Cent. R. Co. \[M.\] 66 A 438. Improper to instruct that all state- ments made by plaintiff, testifying in her whether to modify the argument.

76 But it is proper not only to tell jury for what purpose evidence which has been submitted may be considered, but also to explain rules of law governing relative value- to different classes of evidence. In re Kah's Estate \[Iowa\] 113 NV 563. Where there was no substantial contradictory statement as to an insured's drinking prior to his application, but the real question being whether, conceding this, he was then in- temperate, testimony based on knowledge and observation as to whether he was in has been successfully impeached or has willfully sworn falsely, his testimony may be disregarded except as corroborated,\[17\] or the means by which a witness may be contradicted.\[8\] The jury may be instructed to scan admissions.\[10\] The jury should not be led to disregard any testimony.\[8\] It is proper to instruct as to what constitutes' the preponderance of evidence,\[81\] the manner of ascertaining the facts,\[82\] or that a fact must be established by a preponderance of the evidence.\[83\] It is improper to charge that the number of witnesses has nothing to do with it,\[54\] or to minimize the effect of the numerical inequality of the witnesses.\[85\] It is error to instruct the jury to reconcile conflicting evidence if possible.\[86\] The court in its instruction is not bound to

temperate did not call for an Instruction on **ous us permitting** jury to reject evidence of disinterested and unimpached witnesses.

Univre v. Hatton \[Towaj\] 113 NPV 830.

Co. \[N, C.\] 69 SB 139. Generally it is not proper to instruct as to relative weight of

prover of jury concerning the determina-different items of evidence. In re Kah's Ekata \[Iowa\] 113 NPV 663. Without proper

qualification as to credibility of witnesses

it was error to instruct that positive testiti-

more is to be believed in preference to nega-

Pro and con, was erroneous. Chicago Union

tive. Central of Georgia R: Co. v. Sowell

\[Ga, App.\] 59 SB 323.

It is proper to instruct that the preponderance of evidence does not depend on the

**77.** Where witnesses were not so contradicted as to lead jury to believe they had

been "successfully impeached," it is not prejudicial to instruct that if witness had

been successfully impeached or had willfully sworn falsely as to any material matter, etc., they might disregard his testimony

except as corroborated, etc. Chicago City

R. Co. v. Ryan, 225 Ill. 287, 80 NE 116.

**78.** Instruction that witness might be contradicted, not simply by a witness swearing

to the opposite but by the impossibility of his story, and by anything in the testimony

as given or in the circumstances of the case

presented, tending in judgment of jury to

discredit witness' statements, the jury being required to ascertain the truth by the

exercise of common sense, held proper.

Toledo, etc., R. Co. v. Connolly \[C. C. A.\]

149 F 398. Instruction that greater weight

should be given to the positive statement

of a witness than to negative statement of

another witness properly refused. Cleveland, etc. R. Co. v. Schneider \[Ind. App.\]

82 NE 638.

**79.** Where admissions of a defendant who

filed a plea of no partnership were offered

in evidence against him, it was error to

refuse a timely request to instruct that

assigns should be scanned with care. Mims

v. Brook & Co. \[Ga, App.\] 69 SB 711.

**80.** Improper to single out one of several

issues and instruct that such issue is to be

determined by a consideration of the evidence of the witnesses

of the witnesses testifying and by

interrogatories, where material document

tary evidence was introduced on question.

Stiles v. Shelden \[Ga, App.\] 58 SE 515.

Where the testimony of experts was conflicting

, an instruction that jury were

not bound to accept witnesses' statements

or conclusions, but should determine the

case upon the whole evidence, held not objectionable as leaving the jury to determine

the matter on their own judgment in disregard of such evidence as they saw fit, Sheldon v. Wright \[Vt.\] 67 A 807. Telling jury

to give each witness such credit as he had

shown himself entitled to was not errone-

10 Cur. Law.

INSTRUCTIONS $ 12.

has been successfully impeached or has willfully sworn falsely, his testimony may be

disregarded except as corroborated,\[17\] or the means by which a witness may be contradicted.\[8\] The jury may be instructed to scan admissions.\[10\] The jury should not be led to disregard any testimony.\[80\] It is proper to instruct as to what constitutes' the preponderance of evidence,\[81\] the manner of ascertaining the facts,\[82\] or that a fact

must be established by a preponderance of the evidence.\[83\] It is improper to charge

that the number of witnesses has nothing to do with it,\[54\] or to minimize the effect of

the numerical inequality of the witnesses.\[85\] It is error to instruct the jury to reconcile conflicting evidence if possible.\[86\] The court in its instruction is not bound to

temperature did not call for an Instruction on **ous us permitting** jury to reject evidence

of disinterested and unimpached witnesses.\[87\] Why it

Whiite v. Hatton \[Towaj\] 113 NPV 830.

Co. \[N, C.\] 69 SB 139. Generally it is not

**81.** Instruction not erroneous as invading

proper to instruct as to relative weight of

proving of jury concerning the determina-

different items of evidence. In re Kah's Ekata \[Iowa\] 113 NPV 663. Without proper

tating v. Barak, 227 Ill, 71, 81 NE 1.

Instrucu

on preponderance of evidence, omitting

it was error to instruct that positive testi-

more is to be believed in preference to nega-

pro and con, was erroneous. Chicago Union

tive. Central of Georgia R: Co. v. Sowell direct attention to the fact that a witness' testimony has been contradicted." The court may, in proper cases," instruct as to the effect of not producing testimony or witnesses."

_Falsus in uno, falsus in omnibus_ See * c. L. 371 should be given when justified by law," but not unless a witness is shown to have sworn falsely." In charging the doctrine the word "willfully" must be used."

SS 13. \_Admonitory and cautionary instructions.\_See * c. L. 372--The giving of cautionary instructions rests in the discretion of the court." Courts have a reasonable discretion in urging an agreement," but such discretion should not be abused."

SS 14. \_Necessity of instructing in writing.\_See * c. L. 372--In some states it is required by statute that the instructions be in writing." The rule does not apply was not prejudical, Olafather v. Erricsson v. Interurban St. R. Co. 102 NYS 509. 87. Joyce v. Joyce \[Conn.\] 67 A 374. 88. A party not having called witnesses, and the record not indicating that any witness was in jurisdiction of court or under parroeus. Gracy v. Atlantic Coast Line R. party's control at the time of trial, whom \[Conn.\] 67 A 885; Selvert error to instruct that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable, and the other difficulty and further instruction if \[Conn.\] 67 A 885; Selvert error to instruct that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable, and the other difficulty and further instruction if \[Conn.\] 67 A 885; Selvert error to instruct that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable, and the other difficulty and further instruction if \[Conn.\] 67 A 885; Selvert error to instruct that, where a party has evidence which he can produce and fails to do so, the presumption is that it is unfavorable, and the other difficulty and further instruction if \[Conn.\] 67 A 885; Selvert error to instruct that, where a party has evidence which he can produce and fails to do so. The presumption is that it is unfavorable, and the other difficulty and further instruction if \[Conn.\] 67 A 885; Selvert error to instruct that, where a party has evidence which he can produce and fails to do so. The presumption is that it is unfavorable, and the other difficulty and further instruction if \[Conn.\] 67 A 885; Selvert error to instruct that, where a party has evidence which he can produce and fails to do so. The presumption is that it is unfavorable, and the other difficulty and the other difficulty and the other difficulty are that it is unfavorable, and the other difficulty and the other difficulty are that it is unfavorable, and the other difficulty and the other to a direction as to authority of jury to make a verdict,97 nor to an admonition to the jury not to consider testimony stricken out.98

Footnote 97: The author is grateful to the anonymous referee for the support of the Instructions must be considered as a whole,12 and, if when so considered they fairly and correctly present the law applicable to the case,13 it is not ground for reversal that the instructions were subject to criticism,14 or that a single instruction standing alone was erroneous15 or omitted essential elements,16 was misleading.17

Footnote 13: The code of the code is available at http://www.math.mit.edu/$\\sim$m/

Footnote 14: The code of the code is available at http://www.math.mit.edu/$\\sim$m/

Footnote 15: The code of the code is available at http://www.math.mit.edu/$\\sim$m/

Footnote 16: The code of the code is available at http://www.math.mit.edu/$\\sim$m/

Footnote 17: The code of the code is available at http://www.math.mit.edu/$\\sim$m/

Footnote 18: The code of the code is available at http://www.math.mit.edu/$\\sim$m/
Curing bad instructionsSee S C. L. 316--An erroneous instruction is presumed to be prejudicial.18 As a general rule a bad instruction cannot be cured by the giving of

and a partial view supplemented provided

\\begin{tabular}{}
334 INSTRUCTIONIS SS 17. 10 Cur. Law.

a correct one,\[19\] the two being in conflict,\[20\] nor by one that is incorrect; \[21\] it cannot be said that the jury accepted the correct and rejected the erroneous instructions,\[22\] but an error of omission in one instruction may be cured by other instructions,\[23\] and an

knowledge by city authorities of unguarded

If it is sought to cure a bad instruction by a condition of excavation, although other instructions were given properly submitting

law correctly. Buiger v. Gleason, 123 Ill.

Question of knowledge. Muney v. Weierz, 124

Mo. App. 10, 101 SWV 157. In an action for personal injuries against a steam railroad, an in-

sonal injuries against a steam railroad, an in-

struction erroneous as on the weight of

looved the correct ones and disregarded the

evidence on the issue whether the servic

arccosues. Platt v. Ottumwa \[Iowa\] 113

sults in charge of the engine had the right

to assume that the servants in charge of the

car would give the engine the right of way

was not cured by the other part of the

function. Horton v. Hoostan d. T. C. R. Co.

Crack. Civ. App.\] 18 Tex. Ct. Rep. 870, 103 SWV

467. An error of an instruction in putting

on defendant the burden of proof before

plaintiff had made out a prima factic ease

of negligence is not cured by an instruction

that, if certain facts were found, defendant

was not liable. Trotter v. St. Louis & Subur-

ban R. Co., 122 Mo. App. 405, 99 SVV 508.

Instruction erroneous in imposing or travel-

cured by a subsection that, if the plaintiff

use of her senses to ascertain the approach

of a train was not cured by another instruction

that the duty of the traveler was only

to use ordinary care. Johnson v. Texas & G. R. Co. \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 113, 99 SVV 828, 100 SWV 206. Insertion that it was

conceded that plaintiff was a passenger not

used by another instruction that if plaintiff

ended by another instruction that if plaintiff

alighted in safety, and afterwards fell on

the street through mishcance and was in-

jured, verdict should be for defendant.

Louksville R. Co. v. O'Connor, 30 Ky. L. R.

125, 101 SWV 305. If the court assumes to

fix the amount of the verdict when such

matter is controverted, the error is not cured

by saying the court might thereafter change

it. Lennart v. Cambria County, 39 Pa. Super.

Ct. 850. Instruction invading province of

jury in assuming facts proper for their deter

mination was not cured by another instruction

on submitting these issues, but not referring

to or correct

The reason that, for the correct

the correct one,\[20\] the two being in conflict,\[20\] nor by one that is incorrect; \[21\] it cannot be

said that the jury accepted the correct and rejected the erroneous instructions,\[22\] but

an error of omission in one instruction may be cured by other instructions,\[23\] and an

knowledge by city authorities of unguarded

If it is sought to cure a bad instruction by a

condition of excavation, although other in-

subsequent one, the latter must state the

structions were given properly submitting

law correctly. Buiger v. Gleason, 123 Ill.

question of knowledge. Muney v. Weierz, 124

Mo. App. 42.

Zm. Where instructions are conflicting, it

cannot be assumed on appeal that jury fol

struction erroneous as on the weight of

lowed the correct ones and disregarded the

extrocous ones. Platt v. Ottumwa \[Iowa\] 113

sults in charge of the

NVV 831.

car would give the engine the right of way

was not cured by the other part of the

tion of law given in an instruction may be

struction. Horton v. Hoostan d. T. C. R. Co.

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 870, 103 SWV

467. An error of an instruction in putting

on defendant the burden of proof before

in plaintiff's instructions may be cured by

plaintiff had made out a prima factic ease

those given at defendant's instance, if

of negligence is not cured by an instruction

ing the case. Gubler v. Terminal R. Ass'n of

that, if certain facts were found, defendant

St. Louis, 203 Mo. 208, 101 SWV 87. An instruction that if the plaintiff

when it is the plaintiff

the time" the engine started took his seat

on the brake wheel he was negligent is

or by an instruction that, if the plaintiff

arewards or "at or immediately before"

of a train was not cured by another instruction

the injury took his seat on the brake he was

neglent. Atchison, etc., R. Co. v. Somers

(Tex. Civ. App.) 17 Tex. Ct. Rep. 613, 99 SVV

190. In an action for negligent death, an

oral instruction allowing punitive damages

if defendant was negligent, and plaintiff not,

was cured when at once withdrawn, and an

other instruction given that such 10 Cur. Law. Insurance. 333

erroneous statement may be cured by specially calling attention to it,\[24\] and it is held that positively erroneous instructions may be cured by others without specific mention of the inconsistency of the two.\[25\] Where an instruction is partly bad, it may be cured by another part of the same instruction.\[26\] Error in an oral instruction may be cured by such instruction being requested in writing.\[27\] Any error in giving \[28\] or refusing an instruction may be cured by the verdict.\[29\]

## 7.1. Insurance Laws, Regulations and Supersition in General, 336

Right to Share in Surplus Before Loss, 36S

Long, 36S

336 Insurance $ 1. 10 Cur. Law.

_The scope of this topic_ is noted below.1

SS 1. _Insurance laws, regulations, and supervision in general._ See $ C. L. 378\_

Statures in some states limit the amount that may be expended by life insurance companies in obtaining new business.2 The insurance commissioner has no authority other than that conferred upon him by statute.8

SS 2. _Corporations and associations doing an insurance business. A. Corporate existence, character, management, rights and liabilities._--The right to change the corporate name,5 and to classify risks,6 the character of insurance which a company or association may write,7 who may become members of mutual companies,4 and the necessity for a guarantee capital,9 depend upon the statutes of the various states. The New York statutes provide for the reorganization of domestic companies under the general insurance law.10 By-laws must be adopted,11 elections held,12 and divi-

jury to determine if certain statements pro-

cannot be made to include form of benevo-

curing the execution of deceds to the land

lence not authorized by statute under

involved were deceitful and fraudulent held

who refer, where the jury found that no

8 Ohio C. C. (N. S.) 238.

misleading or deceptive statements were in

fact made. Bridgerout Coal C. V. Wise

neutral burial association organized under

Rep. 678, 99 SV 409.

X. Matters relating to corporations (see

Corporations, $ C. L. 783), and foreign corporations (see Foreign Corporations, $ C. L. 1385) generally, marine insurance (see Ship-

company organized under par. 4 of $ 8 of

ping and Water Traffic, $ C. L. 1903), inden-

nity,bonds (see Indemity, 10. C. 43), and

all cases dealing with the insurance

cracts of fraternal benefit associations (see

Fraternal Mutual Benefit Associations, $ C. (County Coal Co. (Tex, City, App.) 17 Tex. Ct. 1449), have been excluded.

Z. Laws 1906, $ 794, $ 326, $ 97, limiting

amount domestic life insurance company

may expend or become liable for, or per-

mit any person to expend on its behalf or

under any agreement with it, for compensa-

faternal organization, reincorporated as

tion for services in obtaining new business

mutual company, and again reincorporated

and expenses, held to limit amount to be

a stock company, and not to violate any

paid each agent to certain proportion of

provisions of plaintiff contract. Elder v.

first premiums received by him, and not to

Bankers' Life Ins. Co., 117 App. Div. 722,

be merely a limitation on total expenditure

102 NYS 702. Reorganization without con-

of company, and hence to apply to plaintiff

sent of members of co-operative assessment

contract and to reduce his compensation

consump, with change of name and in-

Boswell V. Security Mut. Life Ins. Co., 104

created powers, held not to have impaired

NYS 120. Statute held valid as exercise of

construct obligations of members, it not being

police power, which may not be limited or

restricted by provisions of contracts between

iaced company being bound to perform all

individuals or corporations. Id. Statute

existing obligations. Polk v. Mutual

held applicable to existing contracts. Id.

service Fund Life Ass'n, 28 S. Ct. 65. Pro-

Statute held not invalid as impairing con-

vision of $ 84 of act that outstanding poli-

tract obligations when applied to contracts

ces shall be appraised as liabilifies as if

with agents made before its passage in

view of Const. art. $, $ 1, authorizing legis-

ages attained held not to in fact convert

lature to alter or repeal charters of corporations, and fact that change was one

authorizes company' to so treat them in

which parties must have contemplated when

contract was made. Id.

that exc excites to

theories, in view of general power of amend-

L. R. 1319, 105 SV 462.

4. See $ C. L. 878. See, also, Corporations,

$ C. L. 738.

5. Personal notice of meeting called for

purpose of changing name of mutual com-

many is not required by Act May 1st, 1876.

$\\lx@sectionsign$ 30, 31. International Sav. & Trust Co. v.

steps, hed immaterial. Id. Neither statute

stenger, 31 Pa. Super. Ct. 294.

6. In absence of express authority, held

that executive committee of defendants'

board had no power to adopt classification

of risks, and such classification was invalid

Kenny v. Bankers' Acc. Ins. Co. (Iowa) 113

NW 568.

7. Purposes of mutual burial association

newly, so that old officers remained man * 10 Cur. Law. Insurance $ 2A.

dends declared,11 in the manner prescribed by the charter or the general law. In New York the supreme court has power to review corporate elections.14 The amount of reserve required to be carried is governed by the contracts of insurance and the statutory provisions on the subject.15 The courts will interfere with directors only when there has been a manifest abuse of discretion.16 A showing of misconduct is necessary to enable a policy holder to enjoin alleged unlawful methods of carrying on a campaign for the election of directors and the expenditure of corporate funds for that purpose.17

\_Insolvency.\_See 8 C. L. 881.-A member of a mutual company must pay his proportion of all liabilities accruing during the continuance of his policy and up to the time of his withdrawal.18 On insolvency of such a company equity may ordinarily enforce assessments against its members to the extent of their contingent liability under their contracts.\[10\] Assessments must, of course, be levied and enforced within the time fixed by the statute of limitations.\[20\] An order of court in insolvency proceedings, to which the company is a party, levying or directing the levying of an assessment on the members is conclusive on them both as to the necessity for an assessment and the amount thereof,\[21\] even though they are individually not made parties,\[22\] but not as to matters not passed upon.\[23\] A receiver authorized to collect assessments may sue therefor in his own name as receiver.\[24\] Neither the existence of the company nor the validity of its incorporation,\[25\] nor the validity of the appointment of the receiver,\[26\] can be collaterally attacked in such a suit. A member cannot set off a debt due him for a loss under a policy against assessments due from him to the company to pay losses, even though the company is a foreign corporation, and the suit to recover the assessments is brought by a foreign receiver.\[27\]

_Taxation_ See _s C. L._\[83\] of the property of domestic and foreign companies is governed by the provisions of the general and special revenue laws and is fully treated elsewhere.\[28\]

(SS 2) \_B. Conditions necessary to engage in insurance business, and certification and withdrawal of right.\[See _s C. L._\[83\]--Provision.is sometimes made for the licensing of certain classes of companies and the issuance to them of certificates of authority to do business within the state.\[29\]

SS 3. _Foreign insurers and companies.\[30\]--Foreign insurance companies_\[31\] are

1. Ohio Rev. St. 1892, SS 3634, 3650, con-

sessment for it. Swing v. Karges Furnitstued, and held that though governing

ture Co., 123 Mo. App. 367, 100 SWF 662.

body of mutual fire insurance company

2.2. Decree ordering assessment of policy

failed to fix contingent liability of members

holders held not to preclude them from as-

by uniform rule, or to require agreement in

serring limitations as defense in actions

writing by policy holders assuming such

liability, court of equity on insolvency of

said company had authority to enforce as-

Swing v. Ohio Cultivator Co., 9 Ohio C. C.

sessments against members not to exceed

five annual premiums, failure not affecting

validity of insurance contracts. Swing v. Karges Furnitstured, and held that the amount

2.2. Decree ordering assessment of policy

served to fix contingent liability of members

holders held not to preclude them from as-

by uniform rule, or to require agreement in

serring limitations as defense in actions

writing by policy holders assuming such

liability, court of equity on insolvency of

ing undertaken to pass upon that question.

said company had authority to enforce as-

Swing v. Ohio Cultivator Co., 9 Ohio C. C.

sessments against members not to exceed

five annual premiums, failure not affecting

validity of insurance contracts. Swing v. Karges Furnitstured, and held that the amount

2.2. Decree that additional trade on

served to fix contingent liability of members of 10 Cur. Law. INSURANCE SS 4A. 339 generally prohibited from doing business in the various states until they have complied with the state insurance statutes.\[32\] It is sometimes held that such statutes do not apply to contracts made outside the state by companies having no agents therein, though covering property situated in such state.\[33\] The insurance commissioner is often given authority to revoke the license of a foreign company if he is of the opinion that it has failed to comply with the law, or is in an unsound condition financially.\[34\] He is sometimes required to revoke it in case the company applies for the removal to a Federal court of any action against it growing out of, or in any way connected with, any policy of insurance.\[35\] The insurance commissioner cannot be controlled by injunction in the exercise of discretionary powers conferred upon him by law,\[36\] but the contrary is true when he undertakes to act in a state of case in which the statute gives him no authority to act.\[37\] He acts judicially in granting a license to a foreign company, and mandamus will not issue to compel him to reconsider his action on the same evidence originally before him.\[38\]

## 4 Agents and solicitors for insurance. A. Distinctions and kinds of agency.\[39\]

31. Contract whereby corporation in con-

should not make contracts of insurance on

sideration of stipulated amount agrees to

preperty therein save through regularly

defend physician against all suits for damages

sages for malpractice at its own expense,

not exceeding fixed amount, but not to pay

preperty in Virginia. Globe & Rutgers Fire

any judgment recovered, is contract of insurance

surance within meaning of Rev, Laws 1906,

F 18.

$ 159$, and corporation making such

tract is engaged in insurance business.

Phylesian's Defense Co. v, O'Brien, 100 Minn.

450, 111 NW9 398. Essential purpose of such

contract is not to render personal services

but to indemindy against loss or damage

sulting from defense of actions for malpractice. Id. Company agriting for specibl-

have no right to revoke license of company

fed annual payment to defend at its own

cost actions for damages against physicians

for incomplete candidate for trustee of com-

pay any judgment recovered, held not en

saged in insurance business. Yredenburg

v. Physicians' Defense Co., 126 111, Apr. 509.

32. Acts 1897, p. 332, c. 195, $ 25, 27, held

not to have relieved foreign accident associations from compliance with general law

of state, except as to matters specified

in said act. Phoenix Acc. & Sick Ben. Ass'n

v. Lathrop \[Ind. App.\] $1 NE 227.

83. Delaware Laws, vol. 22, c. 9, relating

to foreign companies and prohibiting them

from doing business in state without having

complied with its provisions, held not to

apply to fire insurance contracts made in

good faith outside that state by foreign

company which had not compiled with statutes

, but which had no agent and solicited

no business in state, though insured prop-

erty was in Delaware, laws of state where

contracts were made governing their validity. Atlas Mut. Ins. Co. v. Fisheries Co.

\[Del.\] $8 A 4. Even if held to apply, held

that statute would be unconsutational in

so far as it deprived citizen of right in

good faith to make contract of insurance

out of state upon his property within state.

Id. Where application was made and

accepted and policy was issued in New York,

and company was not licensed to do business in Virginia and had no agent there,

held that Virginia Laws 1901-02, p. 738, c. 63

$ 1269a, providing that fire insurance com-

somes not incorporated in that state but

legally authorized to do business there

sog $ 16C, post.

(SS 4) B. The right to negotiate insurance and regulations thereabout.58e 8 c. L. 885.

(SS 4) C. Rights and liabilities of agents.See * C. L. 386.--The general rules of contract and agency apply as between the company and its agents.40 One cannot as agent for his principal do or transact any business for his own benefit without the principal's knowledge and consent.41 The insurer cannot avoid the policy on the ground that its agent also acted as agent for the insured, where it has knowledge of the facts and acts on its own judgment in issuing the policy.42 The duration of the agency,43 and the amount of commissions to which the agent is entitled,44 depend on the terms of the contract. An agent is not entitled to continue to act as such and to write policies after the revocation of his agency, and may be enjoined from so doing though such revocation is wrongful.45 Contracts made by the agent are binding on the company if within the actual or apparent scope of his authority.46

40. See, also, Agency, 9 C. L, 65; Contracts, 9 C. L. 654. Amendment to contract held to operate to reduce commissions. Id. Constructed public contract to certain agents' commissions by general agents. Id. man \[Tenn.\] 100 SW 122.

01. Where recording agent of insurer, who has such agent issued fire policy, was at the time a stockholder in insured corporation, and one of its directors and officers, and stockholder and cashier of bank which held stock in plaintiff company, of which facts insurer was not advised and had no notice, held that policy was void, even though agent acted in good faith and contract was fair and equitable. Arlspe Mercantile Co. v. Capital Ins. Co., 133 Iowa 272, 110 NW 593.

01. If company, knowing, or from surrounding circumstances being reasonably aware, that its local agent is acting or assuming to act for customers of his agency. In any, in applying for policies in their names on their property, and without depending on skill, advice, loyalty of agent in transaction, but acting on its own judgment as to de-sirability of particular risks, authorizes agent to write policies, it cannot complain that said agent was also agent of opposite parties to contract, but will be held bound on policy so written. Todd v. German-American Ins. Co. \[Ga. App.\] 59 SE 94.

01. Where duration of contract was not fixed, held that employment was at will and could be terminated at any time by either party. Wightman v. New York Life Ins. Co., 104 NYS 214; Aldrich v. New York Ins. Co., 105 NYS 493.

01. Agent held entitled to commission of 10 per cent. on premiums on business written by it at time of termination of contract, "less expense, reinsurance, return premiums, and losses," company not being entitled to make deductions for unearned premiums. M 10 Cur. Law. INSUANCE SS 5.

The power of agents to make contracts of insurance, \[47\] and to waive forfeiturers, \[48\] is treated in subsequent sections. The liability of sureties on a bond given by agents to secure the faithful performance of their duties depends on the terms and conditions of the bond. \[49\]

One agreeing to procure insurance for another in consideration of the latter's promise to pay a specified premium is bound thereby, whether he, at the time, has authority to represent an unnamed insurance company or agent or not. \[50\] The usual rules of construction apply to such contracts. \[61\]

Brokers are liable for damages resulting from their negligence in procuring policies containing warranties not in conformity to the facts, \[52\] or for a negligent failure to procure vacancy permits as instructed. \[58\] The usual rules as to the right to rescind, \[64\] and as to the effect of a breach or repudiation, \[58\] apply to contracts made with brokers for the procuring of insurance.

SS 5. _Insurable risks and interests. Fire insurance, \[50\]_ & C. L. \[58\]\_--The insured must have an insurable interest-in the property covered by the policy. \[58\]

Canada Life Assur. Co., 149 Mich. 562, 14

D. C. 589. It appearing that broker could have obtained permits before fire had he communicated with agent, that he failed to react apparently designed for contract be-ween defendant company and agents who actually attach them to policy, held that it was immaterial whether, if he had obtained such a holding out. Id. Evidence held not fore fire in ordinary course of the mail. Id.

Presumed that agent had authority to issue missioner of insurance under Comp. Laws Id.

$ 7246, held not evidence of ratification. Id.

$ 54. Defendant held not entitled to rescind

Requiring bonds from solicitors who recolured money held not an admission that company had other contract relations with them involving promise to pay for their services. Id.

$ 47. See SS 7, post.

$ 48. See SS $ 16C and 19, post.

$ 49. Sureties on a agent's bond held chargeable with 35 per cent. of return premiums

to amount to repudiation of contract, or to on pollecles written during agency and re-

$ 100.

paid by company after termination of agency, where agents were liable therefor under their contract. Milwaukee Mechanics' Ins. Co. v. Warren, 150 Cal. 846, 89 P. 93.

Sureties held on chargeable with premiums on business written by agents where they were not collected by latter, but came into hands of their successors. Id.

$ 50. Rainer v. Schulte \[Ws.\] 113 NWV 396.

$ 51. One agreeing to procure insurance for instancre

$ 100.

\_Life insurance.\_See * C. L. \*\*\*.Life policies issued to one having no insurable interest in the life of the insured are in the nature of wagering contracts, and hence are void as contrary to public policy. * One may, however, insure his own life in favor of one having no insurable interest, provided he acts in good faith and himself pays the premiums. * No one but the insurer can raise the question of lack of insurable interest in the beneficiary. * The right to assign policies to persons having no insurable interest is treated in a subsequent section. * 6. \_Application.\_See * C. L. \*\*\*.The application may be oral. * 6. * 7. \_The contract of insurance in general, and general rules for its interpretation. Definitions and distinctions.\_See * C. L. \*\*\*.Except in the case of life insurance, * 6. * The contract of insurance is a contract of indemnity. * The Minnesota statute defines insurance as any agreement whereby any party; for a consideration, undertakes to indemnify another to a specific amount against loss or damage from a insurable interest in all articles comprised in furniture of their household, or which are necessary or convenient and actually in * Les. Reed V. Provident Sav. Life Assur. use in maintenance of their domestic rela- * Soc. \[N. Y.\] 82 NE 734, affg. 98 NYS 1111. * There being insurable interest in plaintiff them, or by what means or from what * when policy was issued, held that liability sources they were obtained. * Length v. * Commental Union Assur. Co. \[Neb.\] 110 * Immaterial that plaintiff's interest as cred- * NW 740. * **Held** not to have Insurable interest: * Pandee under parel agreement to purchase * of proceeds under agreement pursuant to * Dye VWRs. Federal Ins. Co., 38 Pa. Super. * Yet. 228. Simple contract creditor. Van- * specified cause, or to do some act of value to the assured in case of such loss or damage.44

\_Essentials and validity; acceptance.\_See 8 c. L. 800--Status in many states prescribe a standard form of fire policy and prohibit the incorporation into such contracts of any other provisions than those therein expressed.65 In the absence of a statutory provision to the contrary, an oral contract of insurance is valid.66

In order to constitute a valid contract of insurance, the minds of the parties must meet as to all its essential terms.67 The application is a mere offer which must

64. Contract whereby corporation in con-

ered to him, delivery being unnecessary

sideration of stipulated amount agrees to

under statute. Id. If one not duly author-

defend physician against all suits for dam-

ized assumes to act as agent for another

ages for malpractice at its own expense,

and in name of latter procures fire policy on

not exceeding fixed amount, but not to pay

alter's property, which is subsequently

any judgment recovered, held contract of

burned, person in whose name policy is pro-

insurance within meaning of Rev. Laws

1905, & 1596. Physicians' Defense Co. v.

owned'Brien, 100 Mlnn. 490, 111 NWV 396. Essen-

that purpose is not to render personal servant

led he originally authorized agent to act

ces, but to indemnify against lose or dam-

for him. Id. \_E_widence held insufficient to

age resulting from defense of such actions.

show oral contract. Barlow v. Farmers'

Id.

#5. Bven if Rev. Laws 1905, & 1640, author-

gage obligated mortgagor to keep buildings

izing insurance against damage by lightning, employees company to limit risk to

mortgagor might take out insurance at his

effects of lightning, excluding cyclones,

windstroms, etc., company cannot introduce

in lightning clause, or otherwise, restrictive

with mlnln conflict with mlnln purpose of stand-

and policy to insure against loss from dam-

aging by fire. Russell V. German Fire Ins. Co.,

100 Mlnn. 528, 111 NWV 400.

#6. Oral fire policy insuring property for

more than a year held not void under state-

ute of frauds since loss might occur within

year. American Cent. Ins. Co. v. Leake, 31

Ky. L. R. 1016, 140 SW 373.

#7. Fire Insurance: Completed contract

ists when minds of parties meet upon essen-

tial elements, to wit, subject-matter, risk

in-
sured against, amount of indemnity, duration of risk, and premium to be paid, sub-

jet to statutory limitation that policy must

be written, though not necessarily delivered.

Todd v. German American Ins. Co. \[Ga.

App.\] 59 SE 94. All these essentials need

not be expressly negotiated upon, but may

be understood from custom, course of dealing, or other circumstances from which ass-

senti to them may fairly be implied. Id.

From a general instruction by a customer

to an agency to keep specified property

insured in designated amount, this assent

may be implied so as to give mutually to

contract of insurance, in usual form, and

upon usual premium, written by said agency

to replace policy which has become canceled by bankruptcy of company

is in.

Lo. Nonsulting plaintiff on ground that

there was no completed contract held error,

where it appeared that plaintiff directed

in insurance agency representing defendant

and other companies to carry certain

amount of insurance for him on property

subsequently destroyed, that policies to

amount specified were written in companies

chosen by agency, and that, upon one of

said companies becoming bankrupt, agent

replaced insurance carried by it by writing

policy for similar amount in defendant

company, though it further appeared that

plaintiff did not know of substitution until

after fire, and that policy was never deliv-

(B. C.) 67 SE 853. Instruction that be accepted," unconditionally,"99 in order to constitute a valid contract. Where it is agreed that the policy is not to become effective until the performance of certain specified conditions, compliance therewith must be shown."

receipt of policy by mail was presumptive evidence of acceptance, if erroneous, held harmless where there was other evidence sufficient to sustain finding of acceptance. If, other arguments to have policy for certain sum in consideration of payment of fifteen annual payments, and agent, either through ignorance or through fraudulent representations, induced him to believe that application signed by him was for contract expressive of contact contemplated when it was not, held that there was no meeting of minds as to kind of policy to be issued, and hence no contract, and parol evidence was admissible to show that such was the fact. Mutual Lifte Ins. v. Hargus (Tex. Avp.). 18 Tex. Ct. Rep. 358, 99 SW 580. Evidence held to show that policy found among decedent's papers was never delivered to nor accepted by him as a contract, but that it was merely left with him for examination, revenue stamps which it was duty of agent to attach and cancel before delivery, not having been attached or canceled by him, but being in separate envelope, and it appearing that preventum had not been paid. Almost previous proof to take Kichia v. Northwestern Mut. Lifte Ins. Co. 152 F 192.

68. Acedent Insurance: Application provided that it should.not be considered binding until received and accepted at home of-hcc. Name of insurer's agent was inserted in blank space following words "send policy to" contained in application. Application was accepted, and policy mailed to agent to be delivered to insured, with no conditions attached, was no provision that policy should not take effect until delivery and payment of premium. Field that there was completed contract though insured died before policy was delivered to him and before he had paid all of first premium, but after its receipt by agent, agent being insured's agent to receive It. Bowman v. Northern Acc. Co., 124 No. App. 477, 101 SW 691.

Life Insurance: Where has been formal application made for specified kind of insurance, all required preliminaries having been compiled with, and each application has been unconditionally accepted, and acceptance signed by some definite act of the company, contract of insurance is complete, and will bind parties according to its terms. V'Waters v. Security Lifte & Annuity Co., 144 N. C. 663, 67 SE 437. Evidence held to sustain finding that application was accepted by company as it was written at time it was received and not as subsequently changed, and hence that policy was to be in force from Jan. 2, and not Jan. 12. Costello v. Grant County Mut, Fire & Lightning Ins. Co. \[Vis.\]. 113 NW 629.

69. Fire Insurance: Plaintiff applied to agent representing several companies for insurance for one year. Application was accepted by one of them for period of three years. There was no evidence that plaintiff received policy, or was informed of change, or knew name of company accepting application, until after loss. Held no contract Costello v. Grant County Mut. Fire & Lightning Ins. Co. \[Vis.\]. 113 NW 639.

10 Cur. Law.

69. Fire Insurance: Plaintiff applied to agent representing several companies for insurance for one year. Application was accepted by one of them for period of three years. There was no evidence that plaintiff received policy, or was informed of change, or knew name of company accepting application, until after loss. Held no contract Costello v. Grant County Mut. Fire & Lightning Ins. Co. \[Vis.\]. 113 NW 639.

01.

01.

01.

01.

10 Cur. Law. INSURANCE SS 7.

Manual delivery of the policy to the insured is not essential to acceptance." The unconditional delivery of a policy complying with the application is, in the absence of fraud, conclusive proof of the completion of the contract," and the fact that a policy has been turned over to the insured in a particular case is prima facie evidence that there is a completed contract of insurance as contained in the policy." Delivery is largely a question of intention." To constitute it there must be an intention to part with control over the policy and to place it under the control of the insured, or of some one for his use." A mere error in the name of the insured will not invalidate the contract." An agent may bind the company by any contract within the actual or apparent scope of his authority."

that company inenrred no liability upon Evidence held to show delivery. Id. Evl-policy. Metropolitan Life Ins. Co. v. Betz defence held to sustain finding that policy was delivered. National Mut. Fire Ins. Co. v. 1140. Evidence held to conclusively show Sprague \[Coi0.\] 92 P 227.

that when policy was delivered insured was suffering from Bright's disease, which sub-name was not properly stated in policy held sequently caused his death. Id. Testimony in behalf of plaintiff that he appeared to be in good health held not to raise an issue as to whether he was in fact suffering from said disease, in view of fact that earlier steps thereof in no way affected appear- and who pays premium is in fact owner of victim. Id.

71. Life Insurance: Is not physical possession of policy, hut legal right thereto, which is determinative of question. Waters nated in policy. Lengh V. Commercial Union v. Security & Annuity Co., 144 N. C. 668, 57 SE 487. Binding acceptance may be indi-cated by mailing letter, in due course, containing unconditional acceptance, or by sending policy to agent with instructions for unconditional delivery, where is no contravening provision in contract itself. Id.

Ife insurance: Under Civ. Code 1895, $ 2089, delivery is not essential if contract is consummated in other respects. Todd v. 150.

German-American Ins. Co. \[Ga. App.\] 59 SE 1509.

72. Life Insurance: Delivery must be unconficial, and policy must comply with application. Waters v. Security Life & Annuity Co., 144 N. C. 668, 57 SE 487. If agent changes application without knowledge or consent of applicent, policy sent him in accordance with application so wrongfully changed is not contract until applicent has been given reasonable time to consider and has signified his assent to proposition as amended. Id. If policy is delivered on approval, and insured returns it, is no contract. Id.

01. Life Insurance, Waters v. Security Life & Annuity Co., 144 N. C. 663, 57 SE 487. It is not, however, conclusive on question of delivery, and physical act of turning over policy is open to explanation by parol. Id.

Fire Insurance: Proof that policy was destroyed by fire which destroyed property inserts, thereby held to leave insured in same position as though it had been found in his possession after fire, and hence to raise pre-sumption that it had been delivered. Na-tional Mut. Fire Ins. Co. v. Sprague \[Coi0.\] 92 P 227.

74. Waters v. Security Life & Annuity Co., 144 N. C. 668, 57 SE 487.

01. Fire Insurance: Is question of fact. New v. Germania Fire Ins. Co. \[Ind. App.\] 82 NE 1005, v.g. former opinion, Frecking v. 1 One may recover his actual damages for breach of a contract to insure.\[78\]

\_Construction.\_See 8 C. L. 894.--Several documents executed contemporaneously between the same parties and in regard to the same subject-matter will be construed together in ascertaining the terms of the contract.\[79\] Provisions printed on the back of the policy are ordinarily not deemed a part thereof unless referred to therein.\[80\] The by-laws of mutual companies ordinarily form a part of their contracts.\[81\] The application is generally made a part of the contract.\[82\] By statute in some states it cannot be considered a part of the contract or be received in evidence in an action thereon, unless a copy thereof is attached to the policy.\[83\]

As in the case of other contracts, the expressed intention of the parties controls in the interpretation of contracts of insurance.\[84\] The whole contract should be construed together,\[85\] effect, if possible, being given to every word and expression.\[84\] Words should be given their ordinary meaning.\[87\] The meaning of a particular word or clause may be ascertained by reference to the meaning of others associated with it.\[88\] The provisions of the policy control over conflicting provisions in the applica

### 10 Cur. Law. Insurance $ 7.

**9**: Specific provisions control general ones.****90**: Insurers are bound to know the customs of a place where they transact business, and are assumed to have made their contracts with reference to such customs.****91**: In case of ambiguity, the policy will be construed liberally in favor of the insured and strictly against the insurer,****92**: but this rule cannot operate to create a new contract for the parties, or to overrule their clearly expressed intention.****98**: In case of doubt, a construction which will support the indemnity****94**: and prevent a forfeiture**\*\*95\*\*: will be preferred. The praca-

**98**: Life Insurance: Designation of beneficiaries in policy prevails over that in application. Burt v. Burt \[Pa.\] $ 7. A 210. Insured having had policy in his possession for twelve years, held that presumumption was that he knew its contents and accepted it as written. Id.

**99**: **Five Insurance:** As to what property is covered. Furlong v. North British & Mercantile Ins. Co. \[Iowa\] 113 NWV 1084.

**91**: **Five Insurance:** Custom of agents to rewrite expliced policies without explicit request from customers. Todd v. German-American Ins. Co. \[Ga. App.\] $ 95 SE 94.

**92**: **Acedent Insurance.** Bader v. New Amsterdam Casualty Co., 102 Minn. 186, 112 NUV 1065; Moest v. Continental Casualty Co., 104 NYS 553.

**Burtary insurance.** Bankers' Mut. Casualty Co. v. State Bank of Goffs \[C. C. A.\] 150 F 78.

**Credit Insurance.** Peden Iron & Steel Co. v. Ocean Acc. & Guarantee Corp. \[C. C. A.\] 151 F 992.

**Employer's liability insurance.** Edgefield Mfg. Co. v. Maryland Casualty Co. \[S. C.\] 58 SE 969. Contract limitation on time for bringing action. Lynchburg Cotton Mill Co. v. Traveler's Ins. Co. \[C. C. A.\] 145 F 954,

**FYE.** 140 F 718.

**Fire Insurance.** Mackintosh v. Agricultural Firre Ins. Co., 150 Cal. 440, 89 P 102;

\*\*Goorberg v. Western Assur. Co., 150 Cal. 510 Cal. 510, 89 P 103; Athens Mut. Fire Ins. Co. v. Toney, 1 GA. App. 492, 87 SE 1013; Fire Ass'n of Philadelphia v. Taylor \[Kan.\] $ 170; Preston v. Aten Ins. Co., 118 App. Div. 784, 103 NYS 638; Life v. Firemen's Ins.

tical construction adopted by the parties themselves while engaged in the execution of the contract may be looked to," the acts and conduct of the company's agent, in this regard, if within the actual or apparent scope of his authority, being deemed those of the company." The interpretation placed upon the policy by one party cannot, however, be considered."

\_Conflict of laws._See $s$ C. L. _s97__.\_This subject is fully treated in a separate article."

SS 8. \_Premiums and premium notes, dues and assessments, and payment of the same._See $s$ C. L. _s97__.\_Policies generally provide that they shall be void unless the premiums are paid when due.1 By statute in some states the giving of notice of the accrual of premiums is made a condition precedent to forfeiture for their nonpayment.2 The entry of payments in premium receipt books provided for that purpose is sometimes required.3 It is sometimes provided that any amount due from the insured at the time of his death may be deducted from the amount due on the policy.4 Payment is usually a question of fact.5 An agreement to receive the premium within a reasonable time after it becomes due may be inferred from the dealings of the parties.6 The receipt of the company is prima facie evidence of payment.7 In the absence of fraud, an acknowledgment of payment in the policy is

10 Cur. Law. INSUANCE SS 8. 349

conclusive evidence thereof." The giving of note for the amount of a premium does not ordinarily amount to a payment but merely as an extension of the time of payment, and if default is made in the payment of the note the original debt with all its incidents is revived." The tender by the company of a policy substantially different from that ordered, unless accepted, will not furnish a consideration for a note, executed in advance for the premium on the policy so ordered."

Payment to an agent acting within the actual or apparent scope of his authority is payment to the company." It is often provided that payment may only be made in exchange for an official receipt signed by certain specified officers." Where the company permits agents, at their own risk, to advance the first premium and take notes of applicants therefor, the giving of such a note and the subsequent payment of the amount of the premium to the company by the agent is a payment as between the applicant and the company." There seems to be a conflict of authority as to the effect in this regard of the acceptance of notes by the agent for the part of the premium to which he is entitled as his commission."

Statutes in some states prohibit the allowance of rebates on life insurance

Acc. Ass'n v. Harrington, 10 Ohio C. C. agreed to its provisions, and to be bound thereby, though he could not read English, there being no evidence of fraud or mis-deny its receipt after death of insured. If, before, he held to be company's agent, what-dissouri State Life Ins. Co. v. Lovelace

liciting agent's authority held not to have extended beyond acts of soliciting and ne-golting contract, delivering it, and receive-payment within meaning of nonforfeiture

ing first premium. Id. Pub. St. 1901, c. 171, clause, particularly where some of them pro-

$ 4, providing that life insurance agent vided that they should not be so regarded

unless paid when due. Hoar v. Union Mut. Life Ins. Co., 118 App. Div. 416, 103 NYS 1059.

for purpose of receiving the premium therefor, be held to be company's agent, what-dissouri State Life Ins. Co. v. Lovelace

ever conditions or stipulations may be con-afterwards, without son's knowledge, signed

tained in the policy or contract, held to written application for substantially different to initial premium. Id.

ent policy. Had that tender of policy of

12. In absence of evidence showing waiver

latter kind was not compliance with son's

of provisions as to payment or estoppel to contract and he might refuse to accept it,

rely on them, held that evidence showing

and such tender did not authorize recovery

that second premium was paid to agent

on his note. Empire Mut. Annuity Life Ins. Co., 118 App. Div. 416, 103 NYS 1059.

when policy was delivered without produc-Co. v. Avery \[Ga. App.\] 59 SE 324. Fathers

inspiration held not to setup son from pro-

inspiration by parol that policy was not one he ordered. Id.

11. Fire Insurance: Payment of premium

to broker who delivered policy held payment

remlum to agent, who discounted same and

to company. Goach v. Firemen's Ins. Co., 33 Pa. Super. Ct. 496.

Lite Insurance: Collecting agent and assistant superintendent over him held to have

policy insurer credited agent with amount

authority to correct errors in premium

cept books. McNicholas v. Prudential Ins. Co. \[Mass.\] 82 NE 692. Where policy ac-

knowledgeed receipt of first premium and pro-

vided that premiums must be paid at home

office, unless otherwise provided, and in any

case in exchange for official receipt signed

by one of certain specified officers and coun-

terisigned by person to whom payment was

made, heid that insured was not justified in

assuming that soliciting agent had authority

to receive second premium three months before it was due where he did not produce

not subject to forfeiture provided for in

official receipt, and payment thereof to him

without production and delivery of said re-

cept was not payment to company and did

not continue policy in force. Lause v. New

York Life Ins. Co. \[N. H.\] 68 A 31. Where

policy was left at insured's house for exam-

lination before delivery, held that he would

be held to have had notice of and to have

rangement. Id.

premiums and provide a penalty for so doing.\[15\] The violation of such a statute has been held not to invalidate the policy.\[16\]

_Mutual companies.\[17\]--The manner of levying assessments,\[18\] the purpose for which they may be levied,\[19\] the amount and number thereof,\[20\] and the necessity of giving notice that they are due,\[21\] depend upon the terms of the contract and the statutes of the various states. The liability of members to pay their portion of losses and liabilities under the organic law of the company cannot be varied by agreement between the company and a member.\[21\]_

**SS 9**. _Warranties, conditions, and representations. In general.\[22\]_

A warranty is a statement by the insured which is susceptible of no construction other than that the parties mutually intended that the policy should not be binding unless such statement be literally true.\[23\] Whether statements are to be regarded as warranties or representations is to be determined from a construction of the contract according to the expressed intention of the parties,\[24\] the fact that they are

**1S**, St. 1903, SS 686, should be given a re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re- re re- re- re re- re- re re- re re- re re- re re- re re- re re re- re re re- 10 Cur. Law. INSUANCE SS 9. SS 351

called warranties not necessarily making them so. \[25\] If the language used is ambiguous, or reasonably susceptible of two constructions, they will be construed as representations rather than warranties. \[26\] Where answers to questions in the application are made warranties, only such as are responsive to the questions asked can be so regarded. \[27\] Warranties will be strictly construed and not extended so as to include anything not necessarily implied in their terms. \[28\] Where the truthfulness of a warranty depends on the construction of a question capable of two different interpretations, the material inquiry is whether the insured truthfully answered the question as he understood it. \[29\] In the absence of a statutory provision to the contrary, \[30\] the falsity of a statement which the parties have expressly warranted to be true, or the breach of a promissory warranty, avoids the policy whether material to the risk or not, \[31\] and regardless of insured's good faith. \[32\] False representa 353

INSUANCE SS 9. 10 Cur. Law.

tions, on the other hand, avoid the policy only if material to the risk or fraudulent.\[83\]

\_Burglary insurance.\_See * C. L. 400--Policies insuring banks against burglary often contain warranties as to the thickness of the doors of the safe.\[34\]

_Employer's liability insurance._--The actual payment by the insured of a judgment against him is generally made a condition precedent to liability on the part of the insurer.\[85\]

\_Fire insurance.\_See * C. L. 404--Policies ordinarily provide that they shall be void in case the insured has been guilty of any fraud in procuring the policy,\[36\] if his interest is other than unconditional or sole ownership,\[37\] or if he is not the owner

Fidelity & Casualty Co., 188 N. Y. 411, 81

intended to use it as tobacco barn, and NE 169, afg. 111 App. Div. 386, 97 NYS 886.

falsely represented that it was to be used

**Fire insurance.** Capital Fire Ins. Co. v. as stock barn, thereby procuring insurance

King \[Ark\]. 102 SV 194.

**Life Insurance.** Minnesota Mut. Life Ins. been charged. Although Moss

Co. v., Link, 230 Ill. 278, 82 NE 637.

v. Home Ins. Co., 30 Ky., L. R. 690, 99 SW SW 308.

**32.** Falsity of warranty us to amount of

Evidence held to show that insured did not insured's income held to avoid policy though

make the alleged false or fraudulent repre-

'nadverfenty made.\*\* Heintz v. Continental

sentation with respect to his title. Gardner

Casualty Co., 105 NYS 519.

v. Continental Ins. Co., 81 Ky., L. R. 89, 101

**33.** Acedident Insurance: Does not avoid

spiley unless fraudulent or intentional.

resentation and fraud in overvaluing propo-

North American Acae. Ins. Co., v., Rehacek, 123

try, there being no evidence of intentional

Ill. App. 219. Misrepresentation material to

decision on his part, he having no knowl-

risk gives insurer same right of disInfran-

edge of value of machinery, estimate having

tion as false warranty. Central Acc. Ins.

Co. v. Spence, 126 Ill. App. 32. Misstate-

chenary, and agents of Insurer having ex-

ment as to age held material. Id.

amined it before writing policies. Rochester

**Life Insurance:** Will not avoid policy

unless material and known to insured to be

false when made. Minnesota Mut. Life Ins.

Co. v. Link, 230 Ill. 273, 82 NE 637. Under

on. Later A. executed hand contract where-

Rev. Laws, c. 118, 8 21, render policy vodable if made with actual intention to

deetive, or if matter represented increased

risk. Langdeau v. John Hancock Mut. Life

Ins. Co., 194 Mass. 56, 80 NE 452.

**34.** Evidence held to sustain finding that

warranty that door of safe was five inches

thick was true. Bankers' Mut. Casualty Co.

v. State Bank of Goffs \[C. C. A.\] 150 P 78.

**35.** Policy held contract of indeminity so

that no recovery could be had meten

sagain insurer until insured had sustained

loss by payment of liability, Carter v.

Aetna Life Ins. Co., \[Kan\]. 91 P 178,

**36.** Contention that insured perpetrated

fraud in application by representing that

building was dwelling house when In fact it

was hotel held untenable, where application

made part of policy described it as com-

blended rooning and frame devilling house

Mut. Ins. Co., 139 Astiz, 402, 110 NWP 261. If

having two stories and containing 24 rooms.

Arkansas Mut. Fire Ins. Co. v. Claborne,

(Ark.) 100 SWY 751. Where application stated

that insured's entire wealth was less than

$15.000, and company, on being informed

that insured had added another story to

building, made an amendment to policy so

ss to describe it as three story building,

held that company was charged with no-

tice of number of rooms in building, and

contention that when it made amendment it

believed that building was dwelling house

only was untenable. Id. Evidence held to

support finding that insured did not will-

fully and fraudulently misrepresent value

of property. Miller y. Firemen's Fund Ins.

Co. \[Cal. App.\] 92 P 332. Policy held

avoided where insured fraudulently

contained from defendant, when he applied for

and procured insurance on barn, that he applied

and procured insurance on barn, that he of the premises in fee," or if, without the consent of the insurer, there is any change in the title, interest, or possession of the property," if the property is or becomes incumbent by a mortgage or otherwise,"40 in case of any increase in the hazard,"41

if explosives are kept or used,42 or certain inflammable substances stored,43 on the premises, if the premises remain vacant for more than a specified period,44 or if insured has 45 or obtains 46 additional insurance. Insured is sometimes required to state in his application whether he has any reason to fear incentiafism, or whether any threats of ineendiarism have been made against him.47 It is frequently pro-

as location and construction of buildings, of any of the substances specifically named etc., and other things having reasonable tendency to show relative exposure to fire & Marine Ins. Co. v. Penman \[C. C. A.\] 151 and chances of loss therefrom. Id. Temporary increase of hazard does not avoid policy where it is discontinued before loss and loss is not caused thereby. Summet Tobacco Warehouse Co. v. Phoenix Assur. Co., 76 S. C. 76, 56 SE 654. Fact that owner leased building to tenant to be used in conducting more hazardous business held not to avoid policy where tenant moved out before fire and loss was not caused by increased hazard. Id.

NOTE. Effect of temporary increase in hazard: There is a conflict of authority as to the effect of a temporary increase in the hazard which is discontinued before the fire some courts hold that the policy is thereby finally avoided. Mead v. Ins. Co., 7 N. Y. 530; Wheeler v. Ins. Co., 62 N. H. 326; Insurance Co. v. Kyle, 124 Ind. 132, 24 NE 727, 19 Am. St. Rep. 77, 9 L. R. A. 31; Ins. Co. v. Russell, 65 Kan. 378, 69 P 345, 58 L. R. A. 234. The precise point has not been decided by the Supreme Court of the United States, but the case of Kyle v. Ins. Co., 149 Mass. 116, 21 NE 361, 3 L. R. A. 508, is cited with approval in Imperial, etc., Ins. Co., v. Coos County, 151 U. S. 452, 38 Law. Ed. 231. The greater weight of authority is, however, to the contrary. Ins. Co. v. Wetermore, 321, 221: National Fire Ins. Co. v. Catlin, 163 Ill. 256, 45 NE 255, 35 L. R. A. 595; Born v. Ins. Co., 110 Iowa, 379, 51 NW 676, 50 Am. St. Rep. 300, and note: Ins. Co. v. Lawrence, 4 K.y., 81 Am. Dec. 521; Ins. Co. v. Kimberly, 34 Md. 224, 6 Am. Rep. 326; Anker v. Ins. Co., 10 S. D. 82, 71 NW 761, 66 Am. St. Rep. 685, and note: Doud v. Ins. Co., 141 Pa, 47, 21 A 506, 23 Am. St. Rep. 263; Adair v. Ins. Co., 107 Ga. 297, 33 SE 78, 73 Am. St. Rep. 129, 45 L. R. A. 204; Wade v. Ins. Co., 95 Tex. 598, 68 SW 97, 93 Am. St. Rep. 870, 58 L. R. A. 714; Ins. Co. v. Union Stockyards Co., 27 Ky. L. R. 852, 87 SW 285; Ins. Co. v. McIlmans, 28 Neb. 846, 45 NW 171; Gates v. Ins. Co., 5 N. Y. 469, 55 Am. Dec. 360,--From Summet Tobacco Warehouse Co. v. Phoenix Assur. Co., 76 S. C. 76, 56 SE 654.

42. Storage of powder and other explosives on premises held to preclude recovery, though it did not actually contribute to loss. Kenefick v. Norwich Union Fire Ins. Soc., 205 X. Mo. 294, 103 SW 957. Provision that policy should be void if fireworks were kept, used, or allowed on premises held violated by carrying fireworks on premises and there set-

tion or loose lint cotton is stored," held that of loss. Westchester Fire Ins. Co. v. Ocean View Pleasure Pier Co., 106 Va. 633, 56 SE 584. Violation by tenant held to avoid policy though it was done by tenant of in-

, and loss was not caused by increased hazard. Id. Where policy provided that it should be

, and (or other explosives" should be kept on premises, held that words "other explosives" included blasting powder, in absence of evidence showing that its explosive power was less than that that

, and (or other explosives" should be kept on premises, but they are not not)
vided that he must use his best endeavors to protect the property from loss or damage by fire.48 As a condition to the granting of permission for manufacturing plants to remain idle, the insured is often required to warrant that at all times when the works are idle or inoperative a competent watchman will be constantly on duty at night.49 The right to repair the insured premises includes the right to make repairs in a reasonable, proper, and usual way, even though the risk is thereby increased.50 Policies covering stocks of merchandise generally require the insured to take certain inventories,51 and keep certain books,52 and to keep them in a fire

Falls Ina Co., II7 App. Div. 346 101 NYS 1059. Fact that insured answered question in negative held not to avoid policy, though proof showed that he had suspected incentivators. Coggins v. Aetna Ins. Co., 144 diarism in previous destruction of other property, where it appeared that persons whom he suspected were dead when application was made. Arkansas Mut. Fire Ins. Co., V. Wojcukorn \[Arl. 102 85W 226.

48. See 6 C. L. 132, n. 38. Instruction that if jury believed from evidence that insured was guilty of gross negligence in setting up stove in barn, and in using it under circumstances and conditions existing at time of fire, he could not recover, and defining gross negligence, approved. Moss v. Home Ins. Co., 30 Ky. L. R. 630, 99 SW 308.

01. Obligation not compiled with by having watchman on premises who was asleep. Mackintosh v. Agricultural Fire Ins. Co., 150 103 SW 386. Evidence that it was such as is Cal. 440, 89 F. 102. Clause contemplates ordinary operation of works during usual and customary hours, and does not require watchman to be on duty at night when works are in operation during day, in absence of showing that it was usual or customary to operate such works at night. Id. Operation of small furnace, which was not covered by policy, by one who had permission of owner to erect and operate it for experimental purposes, has Co. v. Stuckey \[Arl.\] 106 SW 203. Where held substantial operation of smelling works though large smelters were not in operation. Id. Watachman clause held not to require watchman at night where works were operated during day. Machintosh v. Amerl. can Fire Ins. Co., 150 Cal. 453, 89 F. 107.

01. Where policy prohibited keeping or use of gasoline on premises, and provided that it should be avoided if risk was increased, or if mechanics were employed in building, altering or repairing premises for more than 15 days, held that policy was not avoided by use of gasoline torch by painter for purpose of burning off paint from insured building where work continued for less than 15 days. Garrebrant v. Continental Ins. Co. \[N. J. Err. & App.\] 67 A. 90.

01. Taking and preserving of inventory until after fire held substantial compliance, though few sheets, which did not materially affect amount of inventory, were missing when it was exhibited to adjuster. Arkansas Mut. Fire Ins. Co. v. Wojcukorn \[Arl.\] 102 SW 226. Provision that insured should take inventory at least once a year, and that unless one had been taken within year prior to future of policy, one should be taken within 30 days thereafter or policy should be void, held valid, and failure to comply therewith avoided policy. Reynolds v. German American Ins. Co. \[Md.\] 68 A 262. Where inventory was not taken until 14 days after expiration of 30 days allowed by policy for that purpose, held that there was not sub- proof safe, or some other place free from exposure to any fire which would destroy the building in which the insured property is kept, and to produce them after the fire.\[53\] He is also sometimes required to produce invoices of the goods or certified copies thereof as often as required.\[54\] A substantial compliance with this provision is generally held to be sufficient,\[55\] and this rule is by statute in some states made applicable to all the terms, conditions, and warranties of policies covering personality.\[56\] By statute in some states a breach of condition is no defense to an action on the policy unless the loss occurs while it continues, or unless the breach is the primary or contributing cause of the loss.\[57\]

\_Life, accident, and health insurance.\[See **c. L. 407**--\*\*Policies frequently provide that they shall be void if the applicant makes untrue answers to questions in regard to his age,\[58\] his health,\[69\] his use of intoxicants,\[69\] his occupation,\[61\] the amount of

posit in bank daily cash sales, less items for

expenses paid out during day, held that

produce it was accidental and not result of

question of substantial compliance was properly

design or fault on part of insured, and there

erly submitted to jury. Id. Fact that some

gmail remained means to ascertain accurately

paroal evidence was necessary to make show-

and fully value of stock, so that insurer

by book entries complete held not fatal

would suffer no disadvantage by reason of

objection. Id. Keeping of strips taken from

loss, there would be substantial compliance,

call register showing sales held not

policary, Id.

pliance with provision requiring keeping of

books showing cash sales, etc. Monger v.

Queen Ins. Co. \[Tex. Civ. App.\] 19 SW SW SW;

Herny V. Green Ins. Co. \[Tex. Civ. App.\] 17

open as required. Invices were not kept

Tex. Ct. Rep. 442, 103 SW SW 836. Evidence that

merchants generally, in some particular, fail

to keep books but keep such strips instead

held inadmissible. Id. Books held substan-

tial compliance though cash sales were entered daily in bulk at end of day's business

retusal to produce them. Arkansas Mut. Fire

and did not show each item of merchants

sold for cash, evidence showing that such

was customary manner of bookkeeping in

locality. Arkansas Mut. Fire Ins. Co. v. Buckley \[Ark.\] 106 SW SW

Woolverton \[Ark.\] 102 SW SW 226.

America, \[S C.\] 58 SE 1020.

53. Where inventory was lost after fire and

after it had been exhibited to adjuster, held

that witness could use summary thereof

tereed upon ledger to refresh his memory in

testifying as to amount of stock shown by

inventory, preservation of inventory until

time of trial not being required by policy

Arkansas Mut. Fire Ins. Co. v. Woolverton

\[Ark.\] 102 SW SW 126. Failure to keep book

showing sales in safe and its consequent

destruction in fire held to preclude recovery

Yates v. Thomson \[Ark.\] 102 SW 1112. Pol

Jczy held not to require preservation of books

showing purchases made prior to last annual

is inventory taken within time prescribed. Carp

v. National Assur. Co. \[Mo. App.\] 99 SW SW 523.

Failure to keep books in safe or in place free

fore exposure to fire so that they were

burned and could not be produced held to

preclude recovery unless waived. Cobb &

Seal Shoe Store v. Aetna Ins. Co. \[S. C.\] 58

SB 1099. Whether cash book was delivered

to adjuster after fire or was destroyed by

fire held for jury under evidence. McMillan

v. Insurance Co. of North America \[S. C\]

58 SE 1020. Where policy permits books to

be kept out of safe in some place not exposed

to a fire which would destroy building in

which business is being conducted is sub-

stantial compliance if books and inventory

kept in safe, together with books kept else

where would furnish to person of average

intelligence data for fair estimate of loss,

event though some particular book of set

kept in safe is missing. Id. Instruction

to his father for the information, and know ing what information had been imparted by latter and that it had been inserted in application previously signed by him accepted policy warranting such statement to be true, held that he was as much bound by father's statement as though he had made it himself. Instruction held prejudicially erroneous. Id. 59. Evidence held to require submission of question whether statements were true to jury. Fidelity Mut. Life Ins. Co. v. Beck \[Ark.\] 104 SVW 533; Illinois Life Ins. Co. v. De Lang, 20 Ky. L. R. 753, 99 SWC 616; Security Mut. Life Ins. Co. V. Calvert \[Tex. Cir.\]. Open disclosed which were reasonably and ordinarily calculated to shorten insured's life or increase probability of his death, and whether, if facts had been disclosed, comenary, acting reasonably and naturally, would have issued plics from cause totally disconnected any of answers, setting them out, were tion of health. Fidelity Mut. Life Ins. Co. v. Beck \[Ark.\] 104 SVW 533. Policy avoided where insured falsely stated that she had never had a "chronic or persistent cough," had been stated in application. Id. State-she having expressly warranted truth of answers and it being provided that policy should be void if any answer was untrue. Bertrand v. Franklin Life Ins. Co., 119 La. 423, 44 S 18. Whether failure to mention in application fact that applicant had received medical attention for throat trouble constituted breach of warranty material to risk held for jury. Dulany v. Fidelity & Casuality Co. \[Jnd.\] 66 A 614. Special finding that certain physician was treating insured at time she stated that she was in good health held not conclusive in favor of defendant on that question, where general verdict implied and jury must have found, that she did not have heart disease for which said physician claimed he was treating her, evidence as to whether she did or not being conflicting. Perry v. John Hancock Mut. Life Ins. Co., 147 Mich. 645, 14 Det. Leg. N. 19, 111 NWV 195. Even if instruction authorized recovery in case insured at time of making warranty of sound health did not know of unsoundness of health, and answered question honestly, held that error, if any, was harmless, where it clearly appeared that she was in good health unless she had heart disease, and jury found, on sufficient evidence, that she did not. Id. Policy warranted that insured had never had heart disease, was in sound health, and had not within two years been under care of physician, and provided that it should be void unless she was in sound health when it was delivered. She knew that she had heart disease when application was made but stated, in answer to questions put to her in her own language by interpreter, that she was in sound health, had never been seriously ill except as stated, etc Heid that verdict was properly directed for defendant, though there was evidence that she was not asked whether she had heart disease, or had been attended by physician within 2 years, examination being sufficient to appraise her of knowledge sought. Haapa v. Metropolitan Life Ins. Co. \[Mich.\] 14 Det. Leg. N 776, 114 NWV 830. Instruction wholly ignoring defense based on provision that policy should be void if before date of policy insured had any pulmonary disease held error which was not cured by another conflicting instruction. Sullivan v. Metropolitan Life Ins. Co., 35 Mont. 1, 88 P 401. A local affection is not local disease within meaning of warranty unless it has sufficiently developed to have some bearing on the general health. Accident insurance. Cady v. Fidelity & Casuality Co. \[Vis.\] 113 NWV 967. Question is not whether insured died of disease which he had at time he made application but whether risk which it was about to assume was fairly represented to company.

358 INSURANCE SS 10. 10 Cur. Law.

his income,62 cs to whether he has ever suffered any bodily injury,63 or ever been rejected by any other company,64 as to who is his family physician,65 as to when he last consulted 66 or was attended by a physician,67 his relation to the beneficiary,68 or in case the policy is procured by fraud.69

_Tornado insurance._--Policies covering loss due to windstorms frequently provide that they shall be void in case the insured buildings become vacant.70

- SS 10. \_The risk or object of indemnity. Accident and health insurance.\_See 8 c. L. 408--Accident policies generally provide for an indemnity for death or injuries resulting solely and proximately 71 from external, violent, and accidental means 72

62. Statement held warranty so that its

intended as mere approximation, and factlity avoided policy though inadvertently that attendance was less than two years made. Heintz v. Continental Casuality Co.,

before did not avoid policy where appli-105 NYS 519.

63. Warranty that insured had never "had

tan Life Ins. Co. IN. J. Err. & App.1 67 A

any bodily injury or wounds," and that he

25. Same held true of statement and appli-1 had never suffered certain specified injuries

cant had not been under treatment In hos- or been "otherwise injured," held to refer

trial "except two years ago." Id.

only to such serious wounds or injuries as

68. Falsity of warranty that beneficiary might affect risk, particularly where medical

was insured's wife held to preclude recovery.

examiner so construed it. Accident policy.

Gaines v. Flidify & Casuality Co., 188 N. Y.

North American Acc. Ins. Co. v. Trenton

411, 81 NE 169, afg. 111 App. Div. 386, 97 NYS

\[7ex. Civ. App.\] 18 Tex. Ct. Rep. 389, 98 SW

836.

001. Evidence held to sustain finding that

another person was not substituted for in-contuning insurance, was informed that if

sured for purpose of medical examination.

he desired to do so it would be necessary for

Commonwealth Life Ins. Co. v. Dixon, 31 Ky.

him to make new application upon new rate,

L. T. 848, 104 SW 355.

and that if he did not do so his certificate

76. Stplintion is material to risk and will

would be discontinued, held not cancelation

be enforced. Farmers' & Merchanty' Ins. Co.

-of certificate or declination to renew same.

V. Bodge \[Neb\] 110 NYS 1018, rys. former

Kenny v. Bankers' Acc. Ins. Co. \[Iowa\] 118

opinion, 106 N NVV 1004. Special provisions in

NWV 568. Statement that insured had never

policy written on combination form made

been - rejected or postponed by any other

applicable to windstorm insurance held in-company, held to avoid policy if untrue and

tended as additional conditions to those gen-made with actual intent to deceive. Rev.

carl in their terms, so that provision ap-Laws, \< 118, & 21. Langdeau, v. John Han-

piled. Id.

cock Mu. Life Ins. Co., 194 Mass., 56, 80 NE

71. Policy Inuring against death from

01. Instruction that defense could not pre-

sepidemia "independently of all other

val unless they found constructive notice

auses" held to mean independently of any

by which insured was chargeable with

disease or wound other than the one produ-knowledge of his previous rejection, ap-

disp the septicaemia, unless that latter was

proved, where it appeared that previous ap-

of such a serious character that death might

plication to another company had been re-

have resulted had not septicaemia set in.

jected, but there was no direct proof that

United States Health & Acc. Ins. Co. v. Ben-

he had been - informed of rejection. Id.

nett's Admr' \[Ky.\] 105 SWV 433. Evidence

Statement held not to avoid policy where

held to show that death was result of sep-fact of his rejection had not been communi-

tacemia independently of all other causes.

cated to him when he made application for

Id. Frentrentory instruction for defendant

policy in suit, notice to him in some form

help properly refused, there being some

being necessary to constitute rejection.

dence that blow produced insanity which

struction approved. Metropolitan Ins. Co.

causal Insured's death. Travelers' Ins. Co.

v. Ford, 31 Ky. L. R. 513, 102 SWV 876. In

v. Bingham \[Ky.\] 105 SWV 894. If either

absence of proof that insured knew of his

traumatic pneumonia or cerebral hemorrhage

rejection, held that it would be presumed

sensed as result of fall, and insured died In

that his answer that he had not been was

consequence of said disease, held that his

true. Id. Evidence held to sustain finding

death was caused solely and proximately by

that insured had not been notified of rejected

accidental violence, Johnson v. Continental

then statement was made. Id.

Causality Co., 122 Mo. App. 369, 98 SWV 473.

65. Truth of warrant such as shall immediately and continuously disable the insured.78 Death or disability resulting from blood poisoning 74 and accidental death while riding on public conveyances 75 are often specifically insured against. Increased indemnity in case of injuries or death received while riding on such a conveyance is also sometimes provided for.78 Such policies frequently exempt the insurer from liability or provide for a reduction of the amount of the indemnity for death or injuries resulting from voluntary or unnecessary exposure to danger,79 or for injuries intentionally

show that death did not result from injuries \[Tex.\] 19 Tex. Ct. Rep. 767, 105 SVW 35, "independently of all other causes," but that ryg. 18 Tex. Ct. Rep. 410, 99 SWW 877.

accident would have been trifling injury if he had been otherwise healthy. Id. Where it was conceded that appendicitis caused death, and providing that it did not death, held that, if insured had recovered over death or disability resulting from pol-

from former attacks of that disease so that is no longer existed in his body and there that, subject to its conditions, it covered was only a susceptibility to have it in case

death due to septaemia, etc, held not to proper exciting cause should arise, and fail

over death resulting from septaemia not proved to be such exciting cause, insurer

caused by "accidental means" but ensuing was liable; but if because of former attacks

upon a surgical operation. Herdic v. Mary-

actual disease itself existed, liable to be rem-

land Casuality Co. C. C. A.149 F 198, arg.

dered active and virulent by injury such as that suffered by insured, active disease re-

sustained by physicians or surgeons result-

sulting in death would not be regarded as re-

sult of fall alone, but as joint result of fall

system through wounds suffered in profes-

and latent disease, and hence could be no

sional operations." While insured, a dentist,

recovery. Instructions approved. New Am-

sterdam Casuality Co. v. Shields \[C. C. A.\]

and particles of septic matter were thereby

155 F. 54. Question whether disease was

conveyed from his mouth to insured's eye,

caused solely by fall held for jury on con-

resulting in disability. Heid that wound

licting evidence. Id.

manabrisan, breach, or rupture of natural

72. Where insured was struck by post

while endeavoring to board moving train,

gain admittance into system, and, as there

held that his death was due to accidental

was no such wound, insured could not re-

means, though he was guilty of contributory

ecver. Fidelity & Casuality Co. v. Thompson

neglience. Fidelity & Casuality Co. v. Morrison,

\[C. C. A.\] 154 F 484. Refusal of requested

rison, 129 IU. App. 360, Evidence held to

support finding that death was due to accident

given held error. Id.

dent. Bowman v. Northern Acc., 124 Mo.

75. Under policy insuring against accident-

App. 477, 101 SVW 691. Evidence that plain-

tail death "while actually riding as a passen-

tiff, a railway mail clerk, suffered rupture of

gger in or on any regular passenger convey-

blood vessel in his lung while lifting mail

ance provided by a common carrier," held

sack in performance of his duties, held to

make prima facie case, so that question was

sured was killed as result of wreck while

for jury. Young v. Railway MailNat \[Mo.

riding in postal car in performance of his

Appl.) 108 SWW 657. Death from blue of dog

dugies as railway postal clerk, words quoted

held death from accident, and to be

mendez accident provisions of policy rather

case of passenger in ordinary, common, every

than health provisions, regardless of way in

which it operated to produce death. Farner

while in or on regular passenger conveyance,

v. Massachusetts Mut. Acc. Ass'n \[Pa.\] 67 A

Wood v. General Acc. Ins. Co., 156 F 982.

927.

Policy held to impose liability on company

for death of beneficiary named therein only

neously. Farner v. Massachusetts Mut. Acc.

in case her death or disability resulted from

Ass'n \[Pa.\] 67 A 827. Where insured was

bitrin in thumb by dog, and use of hand was

unjoyneal or an elevator.

interfered with at once, and continued to be

Wheeler v. Fidelity & Casualty Co. \[Ga.\] 58

more and more so until his death, held that

be was immediately disabled, there being no

break in continuity of consequences of in-

jury and no intervening cause in resulting

disability. Id. Where policy provided for

payment of indemnity in case of accidental

injuries "at once resulting in continuous

that liability to engage in any business,

occupation, or service," held that there could

be no recovery where insured stopped work

so longer called the "in-hand"

for fifteen minutes after injury and then re-

sumed his labors and continued to work as

usual for about fifty-two days, when he died,

requirement of continuous disability being

applicable in case of fatal as well as non-

finding that death did not result from un-

fatal injuries. Continental Casuality Co. v. v.

because of the inflicted by insured " or by another," or to which his own negligence contributed, or which he might have averted by the exercise of ordinary care, prudence, and foresight," or received while engaged in a more hazardous occupation than that specified in the policy," or while riding on a locomotive," or while on the roadbed of any steam railway," or resulting from disease " or infection of poison," or shooting,"

of Injury. Continental Casualty Co. v. Todd \[Ark.\] 101 SWV 168. Recovery barred where insured was thrown from train as result of sudden jerk while attempting to 'board moving freight train by climbing up iron ladder on side of car, though he had previously committed similar negligent acts and other commercial travelers habitually took similar risks. Garcelon v. Commercial Travelers' \[Asatern Acc. Assu \[Masas.\] 81 NE 201. Evidence held to sustain finding that accident \[Atoll not result from unnecessary exposure to danger or voluntary exposure to obvious risk of injury. Norwood v. Preferred Acc. Ins. Co., 107 NYS 104. Means intentional and unnecessary exposure to danger so obvious that \[Atoll not result from unnecessary exposure to obtvons risk of injury. Wrled v. Continental Casualty Co., 107 NYS 104. Means intentional and unnecessary exposure to danger so obvious that \[Atoll not result from excessive exposure to danger so obvious that \[Atoll not result from excessive exposure to danger so obvious that \[Atoll not result from excessive exposure to danger so obvious \[Atoll not result from excessive exposure to danger so obvious \[Atoll not result from excessive exposure to danger so obvious \[Atoll not result from unnecessary exposure to obtvons risk of injury, Wrled v. Continental Casualty Co., 107 NYS 104. Means intentional and unnecessary exposure to danger so obvious that \[Atoll not result from excessive exposure to danger so obvious \[Atoll not result from excessive exposure to danger so \[Atoll not result from excessive exposure to danger so \[Atoll not result from excessive exposure to danger so \[Atoll not result from excessive exposure to danger so \[Atoll not result from unnecessary exposure to obtvons risk of injury, Wrled v. Continental Casualty Co., 107 NYS 104. Means intentional and unnecessary exposure to danger so obvious that \[Atoll not result from excessive exposure to danger * 10 Cur. Law. Insurance $ 10.

or in case the insured commits suicide." It is sometimes provided that insured must use all due diligence for his personal safety and protection."

The payment of weekly indemnity under accident and health policies is frequently made to depend on the insured being wholly disabled from carrying on his business or occupation." Confinement to the house is also sometimes required."

Policies of health insurance often exempt the insurer from liability unless the illness commences after the policy has been in force for a specified length of time."

The amount recoverable is sometimes reduced in case of illness resulting from certain specified causes." The number of payments depends on the terms of the policy."

\_Burglary insurance._See $ C. L. 410._ The amount of indemnity is frequently made to depend on the place from which the insured goods are stolen."

_Employer's liability insurance_,See $ C. L. 411.\_ A policy indemnifying an employer for loss from common-law or statutory liability for injuries suffered by his employees is not contrary to public policy."

The insurer is often exempted from liability for losses due to injuries occasioned by the failure of the insured to observe any statute affecting the safety of persons,"

- 85. Blood poisoning resulting from accident manufacturing of hand by wire held disease caused by accidental wound, alone entilting insured to recover full indemnity for loss of time, though policy provided for reduced indemnity for failure of the insured to obsolete. In addition, the insured was not allowed indemnity for injuries resulting from infection or poison. United States Health & Acc., Ins. Co. v. Harvey, 129 Ill. App. 104.

Where blood poisoning or infection is excepted risk, if resulting disability is effect of accident, so as to be mere link in chain of causation between accident and disability, disability must be attributed to accident alone, and is not excepted from risk. Id.

Seg. Policy construed, and held that where policy had been in continuous force for insured was shot by burglar beneficiary withetice to recover half of amount of ordinary indemnity for accidental death.

Bader v. New Amsterdam Casausity Co., 102 Minn. 186, 112 NWV 1065.

- 87. See Life Insurance, post, this section.
- 88. Insured held not entitled to recover for injuries received while attempting to board moving train. Rebman v. General Acc. Ins. 117 Ten. 578, 103 SWV 78.
- 89. Accident policy construed and held not entitled to recover for alleged permanent disability resulting from injury producing injury Co., 102 Mfe., 65 A 385.
- 90. Payment of sick benefits held limited prevent him "from engaging in any productive occupation" or from "performance of one or more important daily duties pertaining to any productive occupation," it appearing that he could attend to regular duties of his occupation and had done so ever since he was hurt, and that he had lost no time from his business, Aeta Life Ins.
- 91. A.

servant of an injured employee where such fellow servant's wages are not included in the schedule of estimated wages furnished to the insurer.97

\_Fire insurance.\_See 8 C. L. 411. The risk ordinarily attaches from the date of the policy.98 Its duration depends on the terms of the contract.99 What property is covered by the policy is a question of intention to be arrived at by a construction of the contract in accordance with the general rules of interpretation previously stated.1 The insurer is often exempted from liability for losses due to explosions,3 or caused directly or indirectly by order of any civil authority,3 or by any ordinance or law regulating the construction of any buildings,4 or by cyclones, torna-does, or windstorms,5 or resulting from any open fire built within a specified distance of the insured premises.5 Policies covering automobiles sometimes exclude

97. Policy held to exempt insurer from liability in such case though wages of injured employee were included in schedule. East Carolina R. Co. v. Maryland Casality Co. \[N. C.\] 58 SE 906.

01. Risk held to have attached from date of policy and not from date when premium was paid, though error as to amount of insurance in typewritten slip attached to policy and describing property covered thereby was not changed to conform to policy until latter date. Reynolds v. German American Ins. Co. \[M.D.\] 68 A 282.

01. Instruction that by "non" was meant noon by solar time, in absence of any provision showing contrary intention, held erroneous in view as to evidence of custom and conditions prevailing at place where insured property was situated. Globe Rures Fire Ins. Co. v. David Moffatt Co. \[C. C. A.\] 154 F 13 Contract made in New York covering property in Virginia held not governed by New York statute as to standard time. Id. Evidence as to custom of place where insured property was situated as to whether solar or standard time governed held admissible, though custom was not pleaded. Id.

01. See 17, ante. Defendants' policies held to have covered typesetting machines. Frieman's Fund Ins. Co. v. Palatine Ins. Co., 150 Cd. 252, 88 P 907. Policy covering stock of merchandise consisting of dry goods, etc., "and all such other goods as are insured kept in a dry goods store," held to cover patterns and pictures, forming part of stock, though patterns and pictures in general were excluded. Furlong v. North British & Mercantile Ins. Co. \[Towal 113 NW 1084. Policy held to cover horses though they had been removed from insured barn to another barn on plaintiff's premises not covered by policy. Fire Ass'n of Philadelphia v. Taylor \[Kan.\] 91 P 1070. Same held true of policy covering "two-story buildings and additions thereto occupied by assured as a dwelling only." Id. Valuation of property and premium collected may in some cases be submitted to jury in ascertaining intention as to property to be covered, in addition to intention to be drawn from words used. North British & Mercantile Ins. Co. v. Tye, 1 Ga. App. 380, 58 SE 110. Vhat bark in piles was covered determined. Globe & Rutgers Fire Ins. Co. v. David Moffatt Co. \[C. C. A.\] 154 F 13 Policy covering "two-story frame building and its addious adjoining and communicating" held not to cover servant's house 150 feet distant losses from fires originating within the vehicle itself.7 Fire * must be the proximate cause of the damage.9 There can be no recovery where the insured property is burned by the insured or with his connivance or procurement.10

\_Life insurance.\_See * C. L. 413--The insurer is frequently exempted from liability in case the insured commits suicide 11 while sane or insane.12 By statute in some states, suicide is no defense unless it is shown to the satisfaction of the court or jury trying the case that the insured contemplated suicide when he applied for the policy, and any provision in the policy to the contrary is declared to be void.13

\_Title insurance.\_See * C. L. 414--Policies generally indemify the insured against loss due to existing defects in his title to specified reality.14

\_Information of policy for mistake.\_15 If, by reason of a mutual mistake, the

7. Where accident to automobile resulted in leakage of gasoline from tank, and fire was communicated to escaped gasoline from lamps attached to outside of vehicle, held that resulting free loss on vehicle was not one "originating within the vehicle." Presiton v. Aetna Ins. Co., 118 App. Div. 784, 103 NYS 638. Nor was it one "caused by fire originating within the automobile itself." Proston v. Union Assur. Soc., 118 App. Div. 788, 103 NYS 640.

1. Evidence held to support finding that wood was damaged by fire and not by decomposition. Liverpool & London & Gloe Ding. Ins. Co, v. Western Woolen Mill. Co. \[Kan.\] 90 P1 1182.

1. Proximate cause is not necessarily last link in chain of events, but that which is procuring, efficient, and predominant cause; that from which effect might be expected to follow without the concurrence of any un foreseen circumstances. Russell v. German Fire Ins. Co., 100 Minn. 528, 118 NW 400. To render fire proximate cause, is not essential that damage should be occasioned by direct contact with fire. Id. Where insured building was injured by fall of wall of adjacent building left unsupported by destruction of latter building by fire, held that, if under all the circumstances, parties to contract could have reasonably foreseen that fire might leave adjacent wall unsupported, exposed to winds likely to occur, and that it might be blown over by a wind liable to occur at any time and fall upon insured building, such contingency was an element in the risk. Id. Evidence held to justify finding that wind which caused wall to fall was one liable to occur during any month, in any season of year. Id. Cause of damage held, under evidence, question of fact, and evidence held to sustain finding that fire, and not wind, was proximate cause. Id.

1. Evidence held to justify finding that building was destroyed by fire without insured's fault, convnivance, or procurement, and that goods alleged to have been removed few days before fire were of inconsiderable value, and taken without fraudulent intent. Smith v. Mutual Cash Guaranty Fire Ins. Co. \[S. D.\] 113 NW 94. Evidence held insulin- client to show that building had been burned by assignee of policies or by her procurement. Rochester German Ins. Co. v. Schmidt, 163 F 681.

1. More fact that revolver was found in hand of deceased held not conclusive that he committed suicide. Kornis v. Western Life Indemity Co., 103 Minn. 31, 112 NW 1039. Evidence held not to have shown suicide so policy fails to express the contract as actually agreed upon, it may be reformed in a court of equity, and recovery had thereon as reformed.10 Where the same court has both legal and equitable jurisdiction, reformation and recovery may be had in the same action.17 In order to reform a policy by reason of the alleged mutual mistake of the applicant and the agent, it must be shown that the contract claimed to have been intended was one which the agent had authority to make.18 The proof of the mistake must be full, clear, and decisive.19

**SS 11.**\_The beneficiary and the insured.\_85 C. L. 415--The general rules of construction apply in determining who are the beneficiaries under the policy and their respective interests in the proceeds thereof.20 The designation of beneficiaries in the policy prevails over that in the application in case the two are inconsistent.21 Statutes in some states authorize a married woman to insure her husband's life for the exclusive benefit of herself or of her children in case her death occurs before that of her husband.22 The insurer is sometimes given the option to pay the pro ceeds of the policy to any person appearing to be equidably entitled thereto by reason of having incurred expense on behalf of the insured.23

Where an ordinary life policy is payable to the insured's legal representatives, he may, with the consent of the company, change the beneficiaries at pleasure 24 provided such change is not in fraud of his wife's marital rights.25 In the absence of a provision therein to the contrary,26 however, a policy payable to a third person gives the beneficiary a vested interest27 of which he cannot be deprived without his

or issue of deceased children, dispose of policy by will, held to apply only to insurance contract made by woman covering life to contest change made in exercise of that of her husband, and not to policy obtained by him on his own life, and hence, where he obtained such a policy payable to wife "If living, in conformity with the statute, and if not living to their children," and she predecessor him, and there were no children, she had no interest which could pass under her will, her interest being contingent on her surviving him. Bradshaw v. Mutual change beneficiary is reserved, Act April 15, Life Ins. Co., 187 N. Y. 447; 80 NE 203, rvs. 186, P. L. 103, does not preclude insured 109 App. Div. 375, 95 NNFS 780.

23. Provision authorizing company to make payment to any relative of insured or to any other person appearing to be equidably entitled to same held valid and bind- ing, and settlement with such person made in good faith for less than full amount of policy relieves company from further liability. Sheridan v. Prudential Ins. Co., 128 made without consent of original beneficiary. Ill. App. 513. Policy payable to insured's Administators, etc., provided that company might make payment to any relative or con- netion by marriage of insured, or to any wife, her executors, administrators and astother person appearing to it to be equidably entitled to same by reason of having in- surred expense in any way on behalf of in- assert for his burial or any other purpose, and persons who would be entitled Insurer, in good faith and before appointment of administrator, paid proceeds to one not relative of insured, but with whom he had lived for several years under agreement that he should board and clot him in re- (G4, 402, 57 SE 782. Fact that policy might turn for his services until he became of age, and who had paid premiums on policy and insured's funeral expenses. It did not appear that insured had notice that insured had many participate in proceeds if he is, under relatives who might claim proceeds. Field that such payment was defense to action by administrative subsequently appointed. Thompson v. Prudential Ins. Co., 104 NYS 257. Expense referred to held not confined to burial expenses and expense of last illness, but word was broad enough to include expense of educating and maintaining deceased, for which person to whom payment had been made had not been reimbursed, insured having run away from him when eighteen years old. Id. Payment held proper regardless of whether all or only one or more of grounds upon which equitable claim in his behalf could be predicated were known to Insurer at time. Id.

01. Gaines v. Gaines, 30 Ky. L. R. 710, 99 SSV 600.

01. Substitution of insured's children for his representatives held valid as to half amount of policy, but invalid as to other half as in fraud of third wife's marital rights in that it gave children more than he could justify settle on them without disregarding her just claims. Gaines v. Gaines, 30 Ky. L. R. 710, 99 SSV 600.

01. Where policy authorizes change of belief that he could not be able to use the consent." In any event his interest becomes vested on the death of the insured."28 A reserved right to change the beneficiary has been held not to include a right to surrender the policy for cancellation."30 The provision for a particular manner of evidencing a change is for the benefit of the insurer, who alone can invoke it."81 No action on the part of the insured.can, however, be construed as working a change unless it evidences a clear intent on his part that it shall so operate."32 On the termination of a contract whereby the policy is appropriated to a particular purpose, the right to the proceeds reverts to the beneficiary named therein."35

\_Rights of employee under employer's liability policy.\_See * C. L. 417--Where the policy is a contract of indemnity for the benefit of the insured, an employee cannot recover thereon against the insurer on the insured becoming insolvent before a judgment recovered against him by said employee is paid."34 Policies sometimes insure an employer as indemnity for the benefit of employees."35

\_Rights of mortgages, creditors, trustees, etc., under loss payable clauses.\_See a C. L. 417--A provision making the loss payable unconditionally to a creditor of the insured amounts to an appointment of him as the person who is to receive payment in case of loss, and makes him a trustee, so that he may recover on the policy in his own name whether he has an insurable interest or not."36 An open mortgage clause making the loss payable to a mortgage as his interest may appear makes the latter the agent of the insurer to receive payment of the insurance to the extent of his interest in the property destroyed."37 The mortgage cannot, in such case, apply proceeds go to beneficiary's estate on death (shlp had been dissolved and all matters be- of insured. Smith v. Grand Lodge A. O. U. W., 124 Mo. App. 181, 101 SWF 662.

_28_. Perry v. Tweedy, 128 Ga. 402, 57 SE 782; McNeill V. Chinn (Tex. Civ. App.) 18 Tex. Ct. Rep. 147, 101 SWF 465.

_29_. Interest passes to his assignee where right to change beneficiaries has not been previously exercised. Langdeau v. John Hancock Mut. Life Ins. Co., 194 Mass. 56, 80 NE 452.

_30_. Consent of beneficiary is necessary. Holder v. Prudential Ins. Co. \[S. C.\] 57 SE 853.

_31_. Instrument assigning all insured's interest in policy to third person held in effect (and a substitution of new beneficiary which was effective as against original beneficiary, though substitution was not made in manner prescribed, company making no objection (or that ground. Fuos v. Dietrich \[Tex. Civ. App.) 18 Tex. Ct. Rep. 922, 101 SWF 291. May

_32_. Instrument assigning all insured's interest in policy to third person held in effect (and a substitution of new beneficiary which was effective as against original beneficiary, though substitution was not made in manner prescribed, company making no objection (or that ground. Fuos v. Dietrich \[Tex. Civ. App.) 18 Tex. Ct. Rep. 922, 101 SWF 291. May

_33_. Neither paper executed by insured nor his action with respect thereto held to show clear Intent on his part to exercise reserved right to have credited substituted so thatintent for his children as beneficiary, or to do more than to transfer such right as he could by a bare assignment. Barner V. Lyter, 31 Pa. Super. Ct. 435. In absence of such intent, assignment of policy in payment of or as security for debt cannot be given effect of change of beneficiary, though insurer does not object that change has not been made in prescribed manner. Id.

_33_. In controversy over right to proceeds of life policy payable to insured's estate, but which it had been agreed between insured and his partner was to be paid to partnership, evidence held to show that partner- and his partner was to be paid to part- and his 10 Cur, Law. INSURANCE SS 11. 367

the proceeds of the policy to the payment of the mortgage debt until the same becomes due unless the mortgagor consents to such a course.\[38\] An offer to pay the mortgage the amount of his mortgage is not available as a defense unless made within a reasonable time.\[39\] One cannot recover on a policy payable to himself as his interest may appear where he has procured the policy in the name of another without the latter's knowledge or consent.\[40\] In the absence of a provision in the policy to the contrary,\[41\] any act of the insured which would avoid the policy as to him will ordinarily prevent a recovery by a mortgage or other person to whom the loss is made payable as his interest' may appear.\[42\] Where the policy has been forfeited as to the interest of the mortgagor, he has no interest in the proceeds thereof though it is still valid as to the mortgage.\[43\] The mortgage is sometimes required to notify the insurer of any change of ownership or occupancy.\[44\] The insurer's right to be subrogated to the rights of the mortgage is treated in a subsequent section.\[45\]\_Insurance by bailee or agent.\[See 4 C. L. 192\]\_Where an agent in possession of

had not been Informed at time of fire of is-

sansigned to purchaser with consent of com-

sansance of policy held not to affect his right

pany. Mortgage clause provided that inter-

to recover on it. Id.

est of mortgage should not be invalidated

$S. Mortgage held bound to hold, proceeds

by any change in ownership of property.

and apply it to mortgage debt as fast as it

Held, that, since transfer did not invalidate

became due, and where he failed to make

policy, it was immaterial so far as mortg

such application law would do so. Thorp v.

sage was concerned whether assignee was

Croto, 79 Vt, 390, 65 A 652.

so and unconditional owner at time of

$9. Insurer's offer to pay mortgage, to

fire. Id. Where policy provided that if,

whom policy was payable as his interest

with consent of company, an interest

might appear, amount of mortgage if the

under should exist in favor of mortgage or

would assign same to it, made after mortg

any person or corporation having an interest

gage had commenced suit on policy, and

in subject of insurance other than interest

without any other to pay interest or costs of

of insured as described therein, " the condi-

suit, held not made within reasonable time,

tions hereinbefore contained shall apply in

and hence not available as defense. Union

the manner expressed in such provisions and

Institution for Savings V. Phoenix Ins. Co.

contations of insurance relating to such

{Mass.} $1 NE 994.

40. Holder of notes secured by deded of

or appended here," held that preceding

trust who procured insurance, payable to

himself as his interest might appear, on

was made payable to third person, but as

building in name of persu who had con-

tracted to purchase building without said

slip attached to policy, and that it was not

purchaser's knowledge or consent, held not

necessary to again set them out, particularly

entitled to recover thereon. Cole v. Nilgarra

where policy was made payable uncondi-

Fire Ins. Co. \[Mo. App.\] 103 SW 568.

41. Where policy provided that no act or

default of any person other than mortgage

or his agents or those claiming under him

v. Law, Union & Crown Ins. Co., 153 F 440.

should affect his right to recover in case of

42. Mortgage in such case stands in shoes

loss, held that subsequent conveyance of

equity of redemption by mortgagor did not

alter is good against former. Gardner v.

affect mortgages' right to recover under

policy. Union Institution for Savings v.

Phoenix Ins. Co. \[Mass.\] 81 NE 994. Provi-

sion held not limited to acts or defaults

before fire, but to include all acts or defaults

of mortgagor which otherwise might affect

mortgage's right to recover, such as failure

to furnish sworn statement settling forth

particulars of loss, or to comply with provisions as to

sions as to arbitration. Id. Areach of con-

ditions as to use and occupation of premises

held not available against mortgages.

More v. Sun Ins. Offec, 10 Min. 374, 111

NVW 260. In action by mortgage on policy,

containing similar provision, pleas seeking

to avoid policy for various acts and defaults

of mortgagor and owner, as misrepresentations, failure to furnish proofs of loss, etc.

held bad on demurre. Reed v. Newark Fire

Ins. Co. \[N. J. Law\] 65 A 1053. Policy

vided that it should be void if Interest of

Insured was other than sole or unconditional

ownership. Property was sold and policy

10 Cur, Law. INSURANCE SS 11. 367

the proceeds of the policy to the payment of the mortgage debt until the same

becomes due unless the mortgagor consents to such a course.\[38\] An offer to pay the mortgage the amount of his mortgage is not available as a defense unless made

within a reasonable time.\[39\] One cannot recover on a policy payable to himself as

his interest may appear where he has procured the policy in the name of another

without the latter's knowledge or consent.\[40\] In the absence of a provision in goods belonging to his principal is absolutely and unconditionally liable to the latter for their value in case of their destruction by fire, the proceeds of insurance procured thereon by him in his own name is not a trust fund for the benefit of the principal, but belong to the agent individually.46

SS 12. _Policy value in cash or loans, and right to share in surplus before loss._ See $ C. L. 418--The right of the insured to surrender his policy and obtain the cash value thereof 47 and the amount to which he is entitled on such surrender 48 depends on the terms of the policy. The right is ordinarily personal to the insured, so that it cannot be delegated to the prejudice of a beneficiary having a vested interest,49 and a mere delegation, even if authorized, will not affect the rights of such a beneficiary until the delegated power is actually exercised.50

In lending money to its policy holders, an insurance company occupies exactly the same position as any other money lender and is entitled to collect the amount of the debt with legal interest and no more,51 and provisions of the policy giving it the right to settle on a different basis with a borrowing policy holder, in determining the amount of extended insurance to which he is entitled on default in the payment of premiums, from that adopted under similar circumstances in the case of a policy holder who is not a borrower, thereby enabling it to collect more than its debt and legal interest, are contrary to public policy and void.52

Dividends should be paid out of surplus and profits, and cannot lawfully be paid out of capital.53 A resolution by a mutual company directing the distribution of a portion of its surplus among its members operates to at once separate said sum from the corporate assets, and to make it the property of those who are then members.54

Footnote 53: The author is grateful to the anonymous referee for the support of the National Science Foundation.

46. Insurance held not to have affected or fraud in payment of premiums entire net re-added to agent's obligation to principal upon his contract, but liability on policy was indebted to agent subject to this dispo-, take paid-up policy. Wass further provided siltion and liable for his debts lille any other money or property belonging to his estate. Inebtedness should be paid out of cash and/or tender, and reminder paid is 47. Heldt that, as against named beneficia-, can, or that a value would be allowed in terms, having vested interest, right of in-, amount to be modified for that purpose being thereof could only be exercised at times and in manner therein specified. Townsend's Assignee v. Townsend (Ky. 105 SW 37.), that latter provision was void, and that, on default of borrowing member, Insurer was as cash surrender value sum specified in table printed on back of policy and called "illustration of values," and that said table was not mere estimate. Sweetland v. Bankers LLife Ins. Co., 105 NYS 627.

01. Wronsend's Assignee v. Townsend (Ky. 105 SW 37.)

01. Field not to give right to proceeds to assignee for creditors. Townsend's Assignee v. Townsend (Ky. 105 SW 37.)

01. Provisions requiring payment of larger sum that amount borrowed with six per cent of interest will not be enforced, no matter how wordcd. Emig's Adm'r v. Mutual Benefit LLife Ins. Co. (Ky. 106 SW 230. Note given by insured to insurer for money borrowed on security of policy, and providing that if it was not paid at maturity insurer might cancel policy, pay note out of cash surrender value, and apply balance to purchase of paid up insurance, held usurious in so far as it authorized insurer to deduct twenty-, five per cent of reserve as surrender charge, Penn Mut. Life Ins. Co., v. Barnett's Adm'r, 30 Ky. L. R. 434, 98 SW 228, for former opinion see 29 Ky. L. R. 1234, 98 SW 1120.

01. Policy provided that in case of de-, 10 Cur. Law. INSURANCE SS 13.

The right of the insurer to apply any part of the surplus in diminution of premiums \[58\] and whether accumulated surplus belongs to the insured or the beneficiary \[56\] depends on the terms of the policy. Tontine policies sometimes give the insured the right to have the tontine dividend applied in any one of several ways at his election. \[67\] The relation between a policy holder in a stock corporation having a contract right to share in the surplus profits and the corporation is that of debtor and creditor, and not that of a member of a mutual company and the company itself. \[58\] Hence the courts will take jurisdiction of a suit by a resident policy holder against a foreign stock company to enforce such right. \[59\]

SS 13. _Options and privileges under policy._\[58\] \< C. L. "20...Life policies frequently provide that on default in the payment of premiums after a certain number of premiums have been paid, the insured's share of the reserve fund shall be applied to the purchase of a paid up policy, \[60\] or extended insurance, \[61\] or that he shall be entitled to a paid up policy for a sum in proportion to the number of premiums paid. \[62\] Statutes in some states provide that under such circumstances the insured's proportionate share of the surplus, including dividend additions, shall be used in the purchase of extended insurance. \[63\] In others all policies are required to contain certain prescribed nonforfeiture provisions under penalty. \[64\] There is a conflict of

- 65. Policy held not to give society such right without consent of other parties to contract. Provident Sav. Life Assur. Soc. V. Marahall, 125 Ill. App. 101. Quarterly re- 434, 99 SWV 228, for former opinion see eights held not to show that it was being so applied, so as to esto p beneficiary by acqualescence. Id.
- 66. Beneficiary or her representative held proper party to recover surplus. Provident Sav. Life Assur. Soc. v. Mashall, 125 Ill. App. 101.
- 67. Election required to be made within specified time, held that his election was completed when insured mailed letter to company signifying it in proper form and there was complete and irrevocable contract in that respect, though insured died before letter was received by company. Northwestern Munt. Life Ins. Co. v. Joseph, 31 Ky. L. R. 714, 103 SWV 317.
- 68. Where directors or trustees are elected by stockholders and not by policyholders, however inconsiderable amount of stock may be in comparison with other assets. Peters v. Equitable Life Assur. Soc. \[Mass.\] \< 81 NE 64.
- 69. However inconsiderable amount of corporate stock of corporation may be in comparison with its other assets, fact that it is cuproporation having capital stock and that its directors or trustees are elected by its stockholders and not by policyholders is decisive of relation between parties, which is that of debtor and creditor, and not that of member of mutual company and company itself. Peters v. Equitable Life Assur. Soc. \[Mass.\] \< 81 NE 864. Inconsuriences to which corporation would be subjected by reason of multiplicity of books and complexity of accounts involved held not matters which can be taken into account by court when plaintiff is resident, and as such has standing in court as matter of right, and suit is brought to enforce contract made between him and foreign company over which court is given jurisdiction by statute. Id.
- 10 Cur. L.
- 61. _Policy held not to give society such_ try but was bound to apply full reserve to purchase of paid up policy. Penn. Munt. Life Ins. Co. v. Barnett's Adm'r, 30 Ky. L. 7. 434, 99 SWV 228, for former opinion see eights held not to show that it was being so applied, so as to esto p beneficiary by acqualescence. Id.
- 62. Beneficiary or her representative held proper party to recover surplus. Provident Sav. Life Assur. Soc. v. Mashall, 125 Ill. App. 101.
- 63. Where 'Insured borrowed money from company to pay 1902 premium, and defauded in payment of premiums due March 20, 1903, and March 20, 1904, held that he was entitled to dividend for year 1903 in computing amount available for extended insurance. Emig's Adm'r v. Mutual Benefit Life Ins. Co. \[Ky.\] 106 SWV 230. Table showing extension of insurance construed and extension determined. Dakan v. Union Mut. Life Ins. Co., 125 Mo. App. 451, 102 SWV 634.
- 64. Default in payment of renewal note representing unpaid part of each annual premium on policy held to have deprived beneficiary of any right to benefit under nonforfeiture clause. Hoar v. Union Mut. Life Ins. Co., 118 App. Div. 416, 103 NYS 1059. Provi- 63 for application of advance dividends to payment of premiums, for cash loans, and for automatic nonforfeiture construed, and held that insured, having obtained 30 per cent advance on payment of two premiums, which was lien on policy, and never having paid same in cash, and being in default for third premium at time of his death, was not entitled to cash loan or automatic nonforfeiture. Shumaker v. Security Life & Annuity Co., 153 F 332.
- 65. Term "dividend additions" as used in N. Y. Laws 1892, p. 1969, c. 690, $ 88, held to mean surplus. United States Life Ins. Co. v authority as to whether time is of the essence of a provision requiring the surrender of the policy within a specified time in order to entitle insured to the benefit of nonforfeiture provisions.\[65\] The insured is sometimes given certain optional rights in lieu of the other benefits under the policy in case he becomes permanently disabled.\[66\]

**SS 14**.: _Assignments and transfers of benefits or insurance.\[See s c. L. 421 Accident insurance.--An assignment after maturity of the policy is valid if based on a sufficient consideration.\[67\]_

_Life insurance.\[See s c. L. 421.--Where the policy is payable to insured's estate, he may, with the consent of the company, assign it at his pleasure, provided such assignment is not in fraud of his creditors.\[68\] He may also assign a policy payable to a third person as beneficiary without the latter's consent, where the right to do so is reserved in the policy,\[69\] but not where the beneficiary has a vested interest.\[70\]_

There is a conflict of authority as to the validity of an assignment to one having no insurable interest in the life of the insured.\[71\] No particular form of words is es-

them. Equitable Life Assur. Soc. v. Babbitt, manently incapacflated." he should be entitled to one of two options in lieu of other benefits, one of which was that premiums 6 months after lapse to surrender policy and or be remitted during continuance of in-ing paid up policy, held that there was nothing due under policy. Equitable Life Assur. account at age of 80. Held that fact Soc. v. Babbitt \[Ariz.\] SS SS31.

**Iowa:** Provision making surrender of few weeks did not excuse him from pay-policy only recelpted within six months after said sickness. Hipp v. Fidelity Mut. Life Ins. paid up policy, and that premiums paid should Otherwise be fortified, held valid. Colliman, v. Equitable Life Assur. Soc., 133 Iowa, 177, factory proof was not made, held that bene-110 NW 44. Held that under Code, SS 3447, flits provided for by either of said options did insured's right of action to compel issance not become effective. Id. of paid up policy was barred by limitations where suit was not commenced until more than ten years and six months after default.

**67**. Where, prior to commencement of suit, h husband assigned all sums of money accrued\*\*

**68**. Delay in making demand and returning no reformation of policy was necessary if policy held not to have tolled limitations. Id.,\*\*

**Keatucky:** Time is not essence of such a to him under terms of policy. **Weckery v. provision, and Insured is entitled to paid up policy though he fails to demand one within time fixed by contract of insurance, provided**

**69**. Transfer by insolvent to his wife and\*\*

**68**.\*\* **Wireless value of the liability to be in the state of the art.**

**69**.\*\* \*\*Wireless value of the liability to be in the state of the art.

sential to effect an assignment.\[15\] The assignor must, however, part with the power of control over the policy, and the evidence of assignment must be so delivered as to be irrvocable by the assignor.\[13\] A form of assignment prescribed by the policy is for the benefit of the insurer and may be waived by it, and when so waived the original beneficiary cannot attack the assignment on the ground that it was not followed.\[14\] Since the policy is a chose in action, it may be transferred by delivery without writing,\[15\] but where by its terms it appears that mere delivery will not give any right as against the beneficiary named therein, the presumptions arising from bare possession are rebutted.\[16\] An assignment absolute in form may be shown to have been made as security, in which event it will be valid only to the extent of the indebtedness secured.\[17\] One to whom the policy has been assigned or pledged as security is entitled to retain possession thereof until his debt is paid, even though it is barred by limitations.\[18\] The rights and liabilities of the assignor and assignor depend on the terms of the contract of assignment.\[19\] A subsequent he may assign the policy. Reed v. Provident to defendant as might be necessary to pay Sav. Life Assur. Soc. \[N. Y.\] 82 NE 134, afg. insured's indebtedness to him, and that any balance should go to insured's wife instead Federal courts: One cannot assign policy on his own life to one having no insurable interest. Mutual Life Ins. Co. v. Lane, 151 F 276. Ga. Civ. Code, 1895, 85 2114, 2116, providing that life insured may be that of the assured or of another in whose continuance the assured has an interest, and that assured may direct payment of policy to be made to his assignee, held not to authorize one to transfer policy on his own life to one having no insurable interest, notwithstanding holding of courts of that state to contrary. Id. Statute held merely declaratory of general principle of commercial jurisprudence so that Federal court was not bound by construction adopted by highest state court writing into it fundamental change in such general law. Id. Good faith of transaction held doubtful. Id.

- 72. Assignment is substantially a transfer, actual or constructive, with clear intent at the time to part with all interest in things transferred, and with full knowledge of rights so transferred. Ormond v. Connecticut Mut. LLife Ins. Co. \[N. C.\] 85 SE 997. Evidence held sufficient to show assignment of all testator's interest in policy payable to wife and children, to children, including any interest derived by him through his wife who predecessor him. Id. Decedent took out tontine policy giving him option at end of tontine period and without consent of beneficiary to withdraw accumulated surplus in cash. Orlginal beneficiary died and policy thereby injured to decedents benefit. He thereafter assigned policy to his wife, assignment providing that it should be void if he survived tontine period. At end of said period he exercised option mentioned and received certain sum in cash, and continued policy at re-duced premiums, policy and assignment remaining in his custody. Evidence tended to show that wife joined in execution of papers necessary to effect option exercised, that agent stated that policy would remain in force and that she would remain beneficiary, and that it was insured's understanding that such was case. Held that wife was entitled to proceeds of policy without new assignment. In re Sanosu's Estate, 217 Pa. 203, 66 A 334. Instrument held to show intention that so much of proceeds of policy should go to * 372 **INSURANEC SS 14**.
- 372 \*\*bona fide assignee of the legal title for value is entitled to priority over a prior assignee having a mere equity.\*\*30 \*\*One procuring the issuance of a duplicate policy and a change of beneficiaries through fraud and forgery cannot recover on the policy upon its subsequent assignment to him by the new beneficiary.\*\*31 \*\*The insurer may interpose the same defense to a suit on the policy by the assignee of the beneficiary as it could have interposed against the beneficiary.\*\*32 \*\*Life policies having an actual surrender value pass to the insured's trustee in bankruptcy.\*\*33 \*\*Fire insurance.**34 **S C. L. 424**.** Policies frequently provide that they shall be void if assigned before loss without the consent of the insurer.\*\*34 **An unconditional assignment otherwise valid gives to the assignee an absolute right to the proceeds of** \*\*ments. Id. Measure of damages for breach by assignee held cash value of policy at time of his default. Id. Insured applied to the knew of forgeries. Id. Company held plan whereby face of policy was paid to insured at once, he giving security for premiums and interest, and at end of en-them, no liability having then matured against it. Id. Plaintiff held in no better, he or his representative was to return certificate. Ap-comoened, than insured would have been, and hence defendant could not be held liable risk, but company afterwards agreed to insue policy on condition that he obtained and assigned to it another policy on his life, which he did, assignment being uncon-dition. Ife also gave bond and assigned life estate in reality to secure payment of premiums and interest. Held that assigned policy was reinsurance of insured's life for defendants' benefit, and its assignment was not pledged to secure fulfillment of bond, and hence on insured's death proceeds belonged to defendant. New York Finance Co. v. United Security Life Ins. & Trust Co. \[Pa.\] \*\*64 **A 984**.
- 80 \*\*Assignment of so much of policy as would pay insured's indebtedness to defendant was never delivered, and assignee had no knowledge thereof until after insured's death, and did not even know that insured was indebted to her. Formalities required by company were not compiled with. Held that subsequent assignee for value and without notice, whose assignment was made in manner prescribed by policy, was entitled to priority. Coffman V. Liggett's Adm? \[Vs.\] **59 SE 392**.
- 81 \*\*Insured falsely represented that policies had been stolen from him, when they were in fact in possession of beneficiary, and procured issuance of duplicates by forging beneficiary's name to indemitly bond. Subsequently at instance of plaintiff, he procured change of beneficiaries so as to make policies payable to his executor administers, and assigns, forging beneficiary's name to request for change. Thereafter plaintiff on behalf of one M. Ideno money to plaintiff, taking assignment of policies to M. as collateral security, and guarantying payment for a consideration. After plaintiff learned of forgeries he was instrumental in having loan renewed, and subsequently polices were assigned to him by M. Held that plaintiff, not being an innocent purchaser, could not recover on policies Black v. Mutual Life Ins. Co., 117 App. Div. 449, 102 NKYS 722. Plaintiff, having himself induced company to make change of bene-dition, and the remaining the policy. \[85\] An assignment absolute in form may be shown to have been intended as security only. \[88\] One to whom the policy has been assigned as collateral security may sue thereon in his own name. \[87\] He has, however, no power to compromise, settle, or discharge, the obligation arising under the policy beyond the extent of his own interest therein, and such an attempted settlement made with knowledge on the part of the insurer of the extent of the assignee's interest, and of the rights of the assignor, does not prejudice the assignor. \[88\]

SS 15. _Change or substitution of contract, or risk, or of conditions thereupon._ See s c. L. \[42\] The parties may at any time by mutual consent modify the terms of their contract or substitute another therefor. \[89\] The acts of the company's agent in this regard are binding on it if within the actual or apparent scope of his authority. \[90\]

The right of mutual companies to increase their assessment rates depends on the terms of their contracts. \[91\] A general agreement to be bound by future by-laws does not bind a member to comply with by-laws subsequently adopted which in any manner impair his contract of insurance, or impose upon him an additional burden. \[92\] Changes in the laws will not be given a restrospective effect unless some imperative reason demands such construction. \[88\]

\*\*85.\*\*Vendee of land paid part of purchase price and went into possession under contract of sale. Vendor assigned to vendee policy, or to have made him counter proposition, but that there was merely delay in ne-procured by vendor. There was no agreement requiring premises to be insured for benefit of vendor. Held that, on destruction of buildings before balance of purchase price became due, vendee was entitled to reduced amount there was completed con-proceeds of policy, though he was then incorrect, though insured died before he re-solvent. Zenor v. Hayes, 228 Ill. 626, 81 NNE 1144. affe. 130 Ill. App. 113.

\*\*86.\*\*Parol evidence held admissible for that that then Declarity at first refused to receive purpose. Munson v. German Fire Ins. Co., 33 Pa. Super. Ct. 551. Evidence held sufficient to establish that fact, even if insurer could raise question. Id. Where neither policy nor assignment, made with company's consent, contained any restriction on purposes for which assignment was made, held that assignment absolute in form would be treated as security only without necessity of reformation, when such was intention of parties. Lengah v. Commercial Union Assur. striking out 80 per cent. clause was binding on company, and policy as so modified was valid contract, and properly admitted in evidence. Continental Ins. Co. v. Reynolds \[IMd.\] 68 A 277.

price. At time of fire purchase price had been paid in full, but legal title had not been transferred to vendee. Held that company could not, in action on policy by vendor, objected that vendor had no insurable interest, but that latter held policy as trustee for vendee, and could recover thereon in his own name, vendee making no objection. Munson v. German Fire Ins. Co., 33 Pa. Super. Ct. 551.

SSs, Policy covering building and persona-alty was assigned with insurers consent to one having mortgage on building. Assignment was absolute in form, but intended as security merely, and insurer had knowledge of that fact. Held that settlement of loss with assignee and release by latter of insurer from all further liability did not preclude insured from recovering loss on persona-sonalty. Lengah v. Commercial Union Assur. Co. \[Neb.\] 110 NW740.

## 16. Rescission, forfeiture, cancellation, and avoidance. A. By agreement

See 8 C. L. 426 _Burgalary insurance._--Where no manner of giving notice of cancellation is prescribed, its actual receipt by the other party must be shown.44

_Fire insurance_ 58 C. L. 426 policies generally provide that they may be canceled at any time by the insurer on giving a specified number of days' notice 85 to the insured.96 There may be an immediate cancellation by agreement before the expiration of the specified time.97 Whether payment or tender of the unearned premium is a condition precedent to cancellation depends on the terms of the policy.98 A cancellation made under mistake of fact will be set aside.99

_Life insurance_ 58 C. L. 427 contracts may be canceled at any time by mutual consent,1 and when so canceled a concurrence of both parties is necessary to the revival of liability thereunder.2

nonliability in case of suicide was reduced \[rpg. 112 App. Div. 451, 98 NYS 622. Payment to one year, and premium rate was in- or tender held essential part of cancellation, creased. Held that resolution making and without it mere notice by company of change did not operate retrospectively, and intention to cancel was ineffective to destinored's suicide during second year avoided policy obligation. Gosch V. Firemen's policy. Sexton v. National Life Ins. Co., Ins. Co., 33 Pa. Super. Ct. 496. Payment of \[Colo.\] 90 P5 E8. Rule that mutual company premium to broker who delivered policy must accord to all its members same privl- held payment to company so that latter leages and advantages upon same terms, sub- could not allege nonpayment to it as excuse jc to same obligations, held not to require for failure to tender unearned portion, even different construction, since to entitle exist: if rule is based on doctrine of estoppel or waiver. Id.

cies they would have to pay increased \[99 Plaintiff company reinsured part of premium, which insured was not, and could risk with defendant company receiving not be, required to do. Id.

from it a "covering note." Thereafter defendant requested plaintiff to place the re-require its cancellation at any time. Bank- ors' Mut. Causually Co. v. People's Bk., 127 days, receiving covering note from another company and surrendering the one received from defendant. Insured building had been not require it to be in writing. Davidson V. 4. damaged by fire the day before, but both German Ins. Co. \[N. J. Err. & App.\] 65 A 986.

Plaintiff and defendant were ignorant of Where no particular form of notice is pre- that fact. Held that cancellation of covering seribled it is only necessary that company notify, distinctly, and unequivocally in- fact, would be set aside and plaintiff was dieate that it is its intention that policy entitled to recover amount of reinsurance. shall cease to be binding as such upon ex-

'Trade's Ins. Co. v. Aachen & Munich Pirepiration of five days from time when such Ins. Co., 150 Cal. 370, 89 P 109.

In addition is made known to insured. Id.

'L Consent must be mutual. Waters v. Se-Field immmartual whether notice was to ef-

'Curity Life & Annuity Co., 144 N. C. 663, 57 feet that policy was already canceled or that

SB 437. If there was originally a valid and it would be canceled in 5 days. Id.

binding contract of insurance, and insured.

'Bk. Notice of cancellation given to brokers acting under erroneous impression sent pol-

who had acted as insured's agents' in pro-

'Curity policy held not notice to insured to was not policy be ordered and that it did

'Curity.'

'Curity.

10 Cur. Law. 1NSURANCE SS 16B.

(SS 16) \_B. For breach of contract, condition, or warranty, or misrepresentation.\_See 5 C. L. 447--Upon repudiating his contract of life insurance and surrendering to the company its policy therefor, an infant may recover the whole amount of premiums paid by him thereon.' The adjudication that a fire insurance company is insolvent ipso facto cancels all existing policies upon which no loss has previously occurred.4 Policies generally provide that they shall be void if the premiums * or any instalments thereof,5 or any premium notes,7 shall not be paid when due, or in case of the breach of any warranty or condition contained in the contract or of any misrepresentation.8 Nonpayment of premium notes sometimes operates merely to suspend the insurance while they remain due and unpaid.\* Payment of illegal or void

company in such ways as to justify con-

7. **Accident insurance:** Application, policy,clusion that he possessed authority to re-

and premium notes construed, and held that quest cancellation, whether he in fact had

failure to pay any of said notes at maturity

it or not. Id. Nonforfeiture provision

ipso facto put an end to contract without

viding for application of net value of policy

notice to insured or formal cancellation of

to purchase of extended insurance held, even

policy. North American Acc. Ins. Co., v.

if applicable, not to prevent immediate cancellation

comlation in note by mutual agreement. Id.

102 SWP 168.

2. **Insured company held not entitled to**

Liffe Insurance:\*\* Failure to pay notes when

revive contract of reinsurance without con-

due held to avoid policy. Hipp v. Flidelity

sent of reinsurer. National Life Ins. Co., v.

Mut. Life Ins. Co., 128 G. 491, 57 SE 892.

Metropolitan Life Ins. Co., 226 IL 102, 80

Held that fact that nonpayment was due to

Insured's sickness did not prevent forfeiture.

3. **Prudential Ins.** Co. v. Fuller, 9 Ohio C.

Id. Where agent accepted notes for part

C. (N. S.) 441.

of first premium to which he was entitled

4. \*\*Todd v. German-American Ins. Co. \[Ga.

as commission, and company's share was

Appl 59 SE 94.

id. See, also, $ 8, ante.

Liffe Insurance:\*\* Policy dated Aug. 30 provided that annual premium should be paid

future for nonpayment of premium notes,

Aug. 30 each year, and that it should not

become effective until payment of first

from agent. Repend v. National Life Ins.

premium and delivery of policy. Policy was

Co. \[Tex.\] 18 Tex. Ct. Rep. 242, 101 SWP 786,

delivered and first premium paid on Nov.

vrg. 16 Tex. Ct. Rep. 829, 96 SWP 778.

19. \*\*Held that time for payment of second

S. See $ 9, ante.

premium was not extended to Nov. 19 of

Acedient Insurance: Even if policy was

next year, but failure to pay it on Aug. 30

not one with self-operating clause for its

precluded recovery where insured died Oct.

own cancellation and forfeiture of premiums

29. \*\*Mutual Life Ins. Co. v. Stegall, 1 Ga.

paid in case warranted statement was un-

App. 611, 68 SE 79. Fact that policy insur-

true, held that it could be disaffirmed for

ing insured for specified period commencing

such a breach of warranty even after in-

Aug. 1, and providing that premiums after

sured's death, provided company exercised

first one should be payable in quarterly in-

right to do so within reasonable time after

stalments on or before first day of certain

obtaining knowledge of such breach by ten-

named months, was not issued or put in

dering to beneficiary premiums paid. Central

force until Aug. 18, held not to have changed

4. **Free Insurance:** Plaintiff held stopped

times of payment provided in policy, or to

have postponed them for 18 days from dates

in action on policy to claim that company

so specified. Jewett v. Northwestern Nat.

Life Ins. Co., 149 Mich. 79, 14 Det. Leg. N.

notes, and that he could not recover where

$40, 112 NWP 734. On payment of initial

preminu on life policy, there is a contract

when suit was brought. Hale v. Michigan

for insurance for the whole of the insured's

Life, and company's right to terminate con-

14 Det. Leg. N. 214, 111 NWP 1068, Provision

tract for nonpayment of premiums is a

reduct by hand for loss occurring while in-

future. Murray v. State Life Ins. Co., 151

F 539.

\*\*6. **Fire Insurance:** Contract held one for

insurance for term of five years in consideration of specified sum, part of which was

if any premium should be settled by note,

to be paid in cash, and balance in four equal

annual instalments on first day of each succeeding January according to terms of note

given therefor, and not one for insurance for

five consecutive terms of one year each, each

payment to cover instalment for particular

year, and hence failure to pay any instalment on Jan. I suspended insurance dur-

ing delinquency as provided assessments is not necessary in order to keep the policy in force.10 Where the insurer refuses to accept a premium on the ground that it is tendered too late, the insured is not bound to make further tenders on recurring premium dates.11 Though the policy provides that it shall become ipso facto void unless a premium note is paid when due, the insurer may, on default, at its election, continue the policy in force, and recover on the note.12 Such an election, when once made, is final.13 A life policy matures on the death of the insured and the subsequent refusal of one with whom the premium has been deposited to pay it to the insurer does not affect the rights of the beneficiary.14 A forfeiture for failure to pay premiums cannot be claimed where the insurer has sufficient funds to pay them in its hands when they become due.15 In the Federal courts a suit in equity to cancel a life policy because of the fraud of the insured cannot be maintained where the bill is not filed until after the insured's death.16

One who is induced to enter into a contract of insurance through the fraud of the insurer may rescind the same and recover back the consideration paid by him,17

referred to was that of defendant, there | held to have done so. North American Acc. being no showing to contrary, and hence defendant was not in default so as to excuse them for which insured's failure to pay because note was not sent to office where insured was employed. Id.

10 Payment of increased assessments for number of years with full knowledge of facts held not payment under duress, plain-iff being not bound to pay them to keep certificate in force if they were void. Barrows v. Mutual Reserve Life Ins, Co. \[C, C, A\].151 F 461.

11 Lifte Insurance. Reed v. Provident Sav. Life Assur. Soc. \[N. Y.\] 82 NE 734, aff. 112 App. Div. 922, 98 NYS 1111.

12 Lifte Insurance. Parker v. Simpson, 107 NYS 199.

13 Where company with knowledge of facts elected to cancel life policy for non-payment of note and demanded payment of proportionate amount thereof for time during which policy was in force, held that it could not thereafter recover full amount of note, but insured could interpose defense of partial failure of consideration. Parker v. Murphy, 107 NYS 202.

14 It was agreed between parties that money to pay premiums was to be placed in hands of railroad company by which insured was employed and to which insurer was to resort for payment. Money was so placed before insured's death, which occurred on Nov. 10, but railroad company had until Nov. 24 in which to pay it. On Nov. 24 railroad refused to pay on ground that deceased was no longer in its employ. Held that company's refusal could not affect rights of beneficiary, but insurer was only entitled to claim deduction of amount of current premium from amount due on policy. Patton v. Continental Casualty Co. \[Tenn.\] \[C\]. \[C\].

provided he acts promptly,\[18\] and has not been guilty of negligence.\[19\] The company is responsible for the fraud of an agent acting within the actual or apparent scope of his authority.\[20\] But in order to render it liable in exemplary or punitive damages for the agent's wrongful acts there must be shown some misconduct on its part in connection with the agent's wrong.\[21\] It cannot claim the fruits of the agent's acts and at the same time repudiate his authority to perform them.\[22\]

If the company before the time for performance arrives, repudiates the contract, the insured may at once sue for damages as for a breach,\[23\] or he may keep the value of protection in assessment company, after they were issued when he again as- and fact that insured's acceptability as risk sure them that they were according to his had diminished because of increased age.

If the company before the time for performance arrives, repudiates the contract, the insured may at once sue for damages as for a breach,\[23\] or he may keep the value of protection in assessment company, after they were issued when he again as- and fact that insured's acceptability as risk sure them that they were according to his led. One induced through fraud and mis-re contract in force for the benefit of his beneficiary.\[24\] The election once made is final.\[25\] Acquiescence by the insured in the wrongful cancellation of his policy precludes him from recovering damages therefor.\[26\]

There is a conflict of authority as to whether a fire policy insuring distinct items for different amounts in consideration of a gross premium is to be regarded as entire or severable.\[27\]

be substituted therefor, and received re-lattion, at his then age. Ebert v. Mutual Recoigt reciting that old one should remain serve Fund Life Assn's, 81 Minn. 116, 83 NW in force until new one was issued unless 506, 834, 84 NW 457; Speer v. Phoenix Mu-previously terminated by failure to pay premiums. Plaintiff refused to accept new lyn Life Ins. Co. v. Week, 91. 358; policy on ground that it was not kind agreed.

Day v. Conn. General Life Ins. Co., 45 Conn. upon. Defendant refused to return old pol pol-icy on demand or to accept premium. Heli Co. v. Blindor, 76 Va. 103: Continental an anticipatory breach of contract for which plaintiff was entitled to recover dam-ages. Id. Where company wrongfully re-quates policy, if insured is in such a state of health that he can procure other insur-ance of like nature and kind, his measure of damage is difference between cost of car-rying Insurance which he has, for term stip- violated for, and cost of new insurance at rate he would then be required to pay for like term, with all profits and accumulations differed as to construction of contract and to which he is entitled under his policy.

Krebs v. Security Trust & Life Ins. Co., 156

Second, we have presented a new version of the paper. The author was invited to publish the paper.

Life policies frequently provide that after they have been in force for a specified time they shall be incontestable except for certain specified causes.\[28\] Provisions for the application of the reserve to the purchase of a paid up policy or extended insurance on default in the payment of premiums have been treated in a previous section.\[29\]

policy only to extent that it covered stock of goods, and not as to that part covering furniture and fixtures of store. Actna Ins. Co. v. Mount \[Miss.\] 44 S 162.

NOTE. Entire or divisible contract: The courts of a number of states have laid down the rule that, where the property insured consists of different items which are separately valued or insured for separate amounts, the contract is divisible, and a breach of warrantary or condition as to one item will not affect the insurance on the remainder of the property, even though the premium be entire. Merrill v. Agricultural Ins. Co., 73 N. X. 452, 29 Am. Rep. 184; Scholar v. Dutchess County Mut. Ins. Co., 102 N. X. 260, 6 June12, No. v. Lavrence, 4 Met. \[K.Y.\] 9, 81 Am. Dec. 521; Continental Ins. Co. v. Ward, 50 Kan. 346, 81 P 1079: State Ins. Co. v. Schreck, 27 Neb. 527, 43 N 54; N 54; 20 Am. St. Rep. 596, 6 L. R. A. 524; Commercial Ins. Co. v. Spanknelle, 52 Ill. 53, 4 Am. Rep. 582; Loehner v. Home Mut. Ins. Co., 17 Mo. 247; Sullivan v. Hartford Fire Ins. Co., 87 Tex. 665, 84 S 8V 73, 59 Am. St. Rep. 84; Manchester Fire Assur. Co. v. Fbeliman, 118 Ala. 308, 23 S 159: Tirraman's Fund Ins. Co. v. Barker, 6 Colo. App. 535, 41 P 513: Clark v. New England Mut Fire Ins. Co., 6 Cush. \[Mass.\] 342, 53 Am. Dec. 44; Bullmann v. North Brit. & Merc. Ins. Co., 159 Mass. 118, 34 NE 163: Wright v. Fire Ins. Co., 12 Mont. 474, 31 P 87, 19 L 8, 211: Coleman v. New Orleans Ins. Co., 49 Ohio St. 310, 31 NE 279, 34 Am. St. Rep. 565, 16 L. R. A. 174; Light v. Greenwich Ins. Co., 105 Rem. 480, 58 SW 51; Conn. Fire Ins. Co. v. Tilley, 88 Va. 1024, 14 SE 851, 29 Am. St. Rep. 770; Quarter v. Peaboy Ins. Co., 10 W. Va. 507, 27 Am. Rep. 582.

On the other hand, there are many cases holding that such contracts are entire, and that a breach of any condition or warranty vitiates the whole insurance, most of these decisions basing their conclusion on the ground that the premium was a single or gross sum. Gottmann v. Pennsylvania Ins. Co., 56 Pa. 210, 94 Am. Dec. 55; Day v. Charter Oak F. & M. Ins. Co., 51 Me. 91; Plath v. Minn. Farmers' Mut. Fire Ins. Asr., 23 Minn. 479, 23 Am. Rep. 697; Garver v. Hawkeye Ins. Co., 69 Iowa, 202, 28 NW 565; Cuth. bertson v. North Car. Home Ins. Co., 96 St. N. C. 480, 2 SE 258; Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 SE 281, 78 Am. St. Rep. 216, 55 L. R. A. 70; Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 A 429, 51 Am. St. Rep. 457, 30 L. R. A. 638; McGowan v. People's Mut. Fire Ins., 54 Vt. 211, 41 Am. Rep. 943.

There is still another line of cases which take a middle ground between the extreme doctrines above stated and hold that the question of the severability of the contract in such cases depends upon the nature of the risk, i. e., that, where the property is so situated that the risk on one item cannot be affected without affecting the risk on the other items, the policy must be regarded as entire; but where the property is so situ (SS 16) \_C. Estoppel or waiver of right to cancel or avoid.30--\_Provisions and conditions in the policy which are for the benefit of the company may be waived by it,31 or it may est01 itself from enforcing them.32 So too the insured may waive provisions or conditions inserted for his benefit,33 or false representations inducing him to take out a policy.34 A waiver is the voluntary abandonment or relinquishment by a party of some right or advantage.35 The doctrine of equitable estoppel, or estoppel in pais, is that a party may be precluded by his acts and conduct from asserting a right to the detriment or prejudice of another party who, entitled to rely on such conduct, has acted upon it.36 The doctrine of waiver is invoked to relieve against forfeitures, no consideration and no prejudice or injury to the other party being necessary to its application.37 It has no application to a case where the loss is due to a cause excepted from the risk, but in such case in order to recover plaintiff must show either that the contract obligation was extended to include the loss, or that the company has estopped itself to deny that the loss falls within the terms of the policy by some acts or conduct which has misled plaintiff to his injury.38 Any acts, declarations, course of dealing, or conduct on the part of the insurer leading the insured to believe that a strict performance of the terms and conditions of the policy will not be insisted upon will preclude it from thereafter claiming a forfeiture for failure to strictly perform, provided it acts with full knowledge of the facts.39 Defects in the application are waived by issuing a policy thereon with 30. See 8 C. L. 430. Waiver of provisions in regard to notice and proofs of loss (see 8 19), provisions for arbitration (see 8 20), Div. 807, 101 NY8 168. and contract limitations (see 8 24a), is treated in subsequent sections.31 Where policy was not in fact for-failed forfeiture to pay assessments, but forfeiture, was waived, held that fact that must be inserted applied for reinstatement would not be operate to produce or establish forfeiture. Sterling Lafe Ins. Co. v. Tappes, 101 Li. App. 321. Provision for particular manner of evir- dancing change of beneficiaries, and form of precrectroph for assignment of policy. McNeill v. Chinn (Tex. Civ. App.) 18 Tex. Ct. Rep. 147, 101 SVV 465. 32. May by its course of conduct estop would itself from setting up an otherwise good ground for forfeiture. Murray v. State Life Ins. Co., 151 F 539. 33. Evidence held to show that policy was voluntarily and unconditionally surrendered by insured pursuant to notice of cancelin- tion, thereby waiving insured's right to have it remain in force until insured premium may actually returned. Gorge Ho- tel Co. v. Liverpool & London & * 10 Cur. Law. Insurance SS 16C. 381

knowledge of the facts," or if the defects are apparent on the face of the application.41 Some courts hold that if there is no written application for fire insurance and the insured has an insurable interest, acts in good faith, and is guilty of no misrepresentation or concealment as to his interest, and the company issues the policy and accepts and retains the premium without making any inquiry concerning it, it will be presumed to have knowledge concerning the condition of his title and to insure the property with such knowledge.42

Others hold that, unless the in-particulars or return of premium, and vice-

company with knowledge of such untruth-

president promised that amendments would

fulness. Security Mut. Life Ins. Co. v. Cal-

be made, and policy was returned to insured

vert \[Tex.\] 19 Tex. Ct. Rep. 839, 105 SWV

with other changes but without that in

320, rvs. \[Tex. Civ. App.\] 18 Tex. Ct. Rep.

regard to concurrent insurance, and wth-

179, 100 SWV 1038.

out any explanation, or objection, or return

Tornado Insurance: Cancellation of policy

of unearned premium. Arkansas Matt. Fire

after loss and notice of facts, occurring he-

Ins, Co. v. Calaborne \[Ark.\] 100 SWV 761.

Instruction as to effect of knowledge of

return of unearned premium from date of

company though too broad, held harmless

forfeiture, held not to constitute waiver of

where only question was whether notice was

forfeiture. Farmers & Merchants' Ins. Co.

given as claimed, and there was no question

v. Bodge \[Neb.\] 110 NWV 1018, rvc. former

that waiver resulted if it was. Id. Where

opinion, 106 NWV 1004.

company was informed that another story

40. Objection that application was signed

had been added to building and that it had

by beneficiary instead of insured. Corrigan

been changed from rooming house to hotel,

v. Cambridge Mut, Ben. Ass'n, 33 Pa. Super.

and thereafter amended policy so as to de-

Ct. 17.

scribe insured property as three-story build-

41. That answers to questions are incom-

ing, held that it could not claim forfeiture

plete. Fidelity Mut. Life Ins. Co. v. Beck

because building was not used as dwelling

\[Ark.\] 104 SWV 838; Sterling Lifo Ins. Co. v.

house as stated in policy. Id. Amendment

Raups, 180 IL. App. 121; Owen v. Metropolis-

of policy after addition of another story to

tan Life Ins. Co. \[N. J. Err. & App.\] 67 A

building so as to cover it in altered form

25.

held to preclude forfeiture because mechan-

les had been employed for more than 15

plication, and insurer made no inquiry of

days in making alterations. Id. Where

insured as to condition of his title, and

evidence showed that defendant had several

insured made no representations or state-

times insured buildings by description "brick

ments with respect to it, held that by is-

and frame," and that original application

sunate of policy with knowledge thus im

was made after inspection by defendants

puted to it that insured had only life estate.

agent, held that defense that description of

insured waived provision that policy should

buildings in policy in suit as "brick and

be void if insured's interest was other than

ston" was warranty of such construction,

unconditional and so ownership in free sim

and that buildings of brick and wood were

ple. Glens Falls Ins. Co. v. Michael, 167

not within contract, was untenable. Adolph

Ind. 659, 79 NE 905, former opinion, 74 NE

G. Huppell Sons v. Boston Fire Ins. Co., 104

864. Insurer held not prejudated by fact

NYS 659.

that insured had only life estate, since he

Had insurable interest, which was only in

hat of insured was given to under-

terset which insurer could be said to have

stand and induced to believe that collector

insured, and value of property destroyed

would call to collect assessments as they

when tested by said interest would be

became due, and that if they were not then

measure of its liability. Glens Falls Ins.

pal insured might pay them at insurer's

Co. v. Michael, 167 Ind. 659, 79 NE 905.

office and insured relied on such statements

Where there was no fraud or concealment

and conduct, held that insured by failing to

in procuring policy, and no questions were

send collector to collect certain assessment

was estopped to declare forfeiture for fall-

ing life estate with remainder in fee to chil-

ure to pay it when due. Sterling Life Ins.

dren held entitled to recover, though policy

Co. v. Rapps, 180 IL. App. 121. Allisations

provided that it should be void if insured

of complaint held to show course of dealing

did not own property in fee. American

whereby premiums were made payable to

Cent. Ins. Co. v. Leake, 21 Ky. L. R. 1016, 104

defendants' manager at Chicago by deposit-

SWV 373. Policy covering building on

per ing same in post office addressed to him on

in Chesspake Bay sured has been misled by some act of the insurer, he is in such case bound by the conditions found in the policy, \[48\] and that the company will not be deemed to have waived the same unless it has actual or constructive notice of the facts. \[44\] It is generally held that if the policy is issued with knowledge on the part of the company of facts rendering it void at its inception, it cannot avail itself of them as a defense to an action theron, \[48\] but in order to have that effect the knowledge must be inconsistent with an intention to enforce its provisions as written. \[46\] The unconditional acceptance of premiums with knowledge of breach of a condition avoiding the policy precludes the company from defending on that ground. \[47\] The receipt and retention in property, and no written application, and was guilty of no intentional misrepresentation or concealment and there was no ground to believe that company would have refused to insure had they known true state of title, or that premium or risk was enhanded, 'held that policy was not avoided because the owned only undivided third in interest, though it provided that it should be void if interest of insured should be other than unconditional and sole ownership, or if subject of insurance be building on property not owned by insured in fee, it also appearing that insured believed that he was sole owner and hence would have been entitled to allotment of improved part of property on partition. Rochester German Ins., \[48\] C., v. Schmidt, 15 F 81.
42\. Insured by accepting policy providing that it should be void in case property should be or become incumbered held charged with notice of and bound by such condition. Virginia Fire & Marine Ins. Co. \[Va.\] 59 SE 89.
44\. Company by issuing policy on incumbent property without written application and without any representations by insured held not to have waived provision that it should be void if property should be or become incumbered, where facts were not known to company nor agent and they were not chargeable with knowledge. Virginia Fire & Marine Ins. Co. \[Va.\] 59 SE 89.
45\. Fire Insurance If at time application was made and policy issued company, through its agent, knew that insured build-in was on leased ground, held that company would be precluded from relying on provision in policy that it should be void if subject of insurance was buildings on ground not owned by insured in fee simple. Aetna Ins. Co. v. Johnson, 127 G 491, 65 SE 84.
46\. Fire Insurance If at time application was made and policy issued company, through its agent, knew that insured build-in was on leased ground, held that company would be precluded from relying on provision in policy that it should be void if subject of insurance was buildings on ground not owned by insured in fee simple. Aetna Ins. Co. v. Johnson, 127 G 491, 65 SE 84.

Evidence held sufficient to authorize submission of question to jury. Id. Where insured truthfully and correctly states na-iure and condition of his title in making his application, he will not be precluded from recovering in case of loss on account of contrary statement as to title inserted in policy by insurer. Allen v. Phoenixx Assur, Co., 12 Idaho, 653, 88 P 246. Complamulant and her family were in possession of premises under land contract requiring her to keep premises insured for benefit of vendor. Vendor convolved premises to third person subject to such contract and assigned his interest in contract to grantee. Policy was taken out in name of compliance. Meteorail V. Mutual Fire Ins. Complamulant's husband, loss if any payable to vendor's grantee as his contract Interest Imight appear. Held that company having accepted premiums paid by complinant, and Ith its title because of difference in cor of a past due premium remitted after a subsequent premium becomes due is not, however, a waiver of the failure to pay the latter when due.48 Delivery of the policy without requiring prepayment of the first premium is a waiver of payment in advance,48 and the extension of credit to the insured precludes a subsequent objection that the first premium was not paid in cash.50 An extension of time for the payment of premium notes is a waiver of the right to forfeit the policy for failure to pay them when due,51 and a subsequent attempt to collect the full amount of such a note waives a default in its payment.52 Some courts hold that a breach of condition is waived by the failure of the insurer to return the premium and claim a forfeiture within a reasonable time after knowledge of the facts,53 while others require an affirmative act in addition thereto.54 A denial of liability on particular grounds

porate name as appearing in deed and in \[Co., 149 Mich, 79, 14 Det. Leg. N. 340, 112 charter subsequently issued. Sumnet Tobac- 13 WW 734.

co Warchouse Co., v. Phoenix Ins. Co., 76 S. C. 76, 56 SE 654. Constitution of mutual tion precedent to attaching of insurer's liability. National Mut. Fire Ins. Co. v. Sprague lecting to pay assessment for 60 days after notice should cease to have any claim against company. Policy provided for cash premium and giving insured receipt for premium, which insured paid, and that insured would pay his proportion of losses.

clause "The above premium settled by note." At time of fire insured had failed to pay asessment for more than 60 days. Com- 49. Though policy makes payment condition precedent to attaching of insurer's liability provided that any member neg- \[Co., 128 Ga. 491, 57 SE\].

comparably provided that ins is generally a waiver of all other grounds known to the insurer.\[33\] An insurer who assumes a particular position with reference to a loss being within the terms of the policy cannot thereafter assume an inconsistent one to the prejudice of the insured.\[56\] In the absence of an agreement to the contrary,\[57\] the taking of steps looking to the adjustment of the loss is a waiver of any grounds of forfeiture known to the insurer.\[38\]$\\lambda$ nonwaiver agreement should be strictly construed against the insurer, and will not be extended by implication.\[59\] It will not be held to cover past transac tions unless clearly so intended. \[64\] Such an agreement may itself be waived by express agreement or by acts and conduct. \[61\] Payment of the loss to a mortgage with knowledge of the facts is a waiver of fraud and misrepresentation on the part of the mortgagor. \[62\]

The knowledge of the company's agent \[48\] acquired while acting within the scope of his authority \[64\] and while transacting the business of his principal \[45\] is imputed to it, \[66\] and his acts, if within the general scope of his authority, are deemed those of

60. Insured's consent to revocation of past

Wairer will not be implied from agreement

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 932, 101 SWV

which does not distinctive refer to past trans-

\[54\].

actions but appears on its face to contemplate future action only, Cobb & Seal Shoe

\[5\].
the company; 67 but this rule has been held to have no application to cases involving

mission, agents having knowledge and having been notified by insured of that fact,

plaintiff were old acquaintances, and that

and having taken no action. Roccister Gerfort, held that statements in application

man Ins. Co. v. Schmidt, 151 F 681.

Lite insuremee: Where agent who took

fact that some were untrue would not avoid

Insured's application knew that she was

policy. Coleman v. Caldwell County Mut.

prostitute but gave her occupation as house-

Fire Ins. Co., 125 Mo. App. 643, 103 SW 150.

wife, held that company was liable. Perry

Persons dealing with soliciting agents have

v. John Hancock Mut. Life Ins. Co., 147 Michel.

right to rely on their suggestions as to

645, 14 Det. Leg. N. 19, 111 NWV 195. Notice

to agent having authority to deliver policy

factory answer to any question contained

and collect premium when he delivered pol

ly that insured was not in sound health

ground and in possession of abundant means

held notice to company. Security Mut. Life

of knowing all facts material to risk, his

Ins. Co. v. Calvert \[Tex. Civ. App.\] 18 Tex.

statements contained in application which

Ct. Rep. 179, 100 SWV 1033, rvd. on other

grounds \[Tex.\] 19 Tex. Ct. Rep. 839, 105 SWV

are binding on company after premium has

320.

False Representations Due to Fault of

Company or Agent. Accident Insurance.

If actual facts are explained to agent

through whom policy was issued and

themis collected, and agent undertakes

to determine whether facts are material to

risk, and writes or instructs insured to write

answer appearing on application, company

is stepped to set up such facts to defeat

sects on policy. Duianey v. Fidelity & Cas-

sasu v. Cotter \[Ark.\] 99 SWV 67.

uity Co. \[Md.\] 66 A 614. Where agent

thorized to solicit insurance either fraudu-

lently or negligently inserts in application

for premiums, and collect same, etc., held

false answers to questions correctly answered by applicant, his wrong will be

puted to company and it will be stepped to

of company. North American Acc. Ins. Co. v.

defend on ground of falsity of such answers. North American Acc. Ins. Co. v.

505. 102 SWV 163.

Trenton \[Tex. Civ. App.\] 18 Tex. Ct. Rep.

839, 99 SWV 740. Agent who filled out application

solicit applications, deliver policies, and

cation knew that insured had other insur-

acc. Insured could not read or write

pany in all its dealings with plaintiffs, held

lish and testified that he did not know that

any statement as to other insurance was in

application. Heid that company could not

conspan. National Mut. Fire Ins. Co. v.

claim that policy was forfeited because of

stament in application that insured had no

other accident insurance. North American

acc. Ins. Co. v. Rehacek, 123 Ill. App. 219.

Fire insuremee: Undisputed evidence that

Insured, who was illiterate, informed agent

who wrote application that property was

incumbered by mortgage held to show

wavter of warranty against incumbrenes.

Capital Pire Ins. Co. v. Montgomery \[Ark.\]

99 SWV 687. Such testimony held admissible.

Id. Where application is made out by agent,

who writes therein untrue answers which

sre made from his own knowledge, or are

not made by insured, and insured signs

spiley. Coleman v. Caldwell County Mut.

pileation without knowing that answers

therein are untrue, insurer will be stepped

to contend that such answers constitute

missrepresentations which invalidate policy.

Gardner v. Continental Ins. Co., 81 Ky. L. R.

Insured that unless he paid overdue

89, 101 SWV 908. Fact that amount of mart-

game was erroneously stated in application

hold not to avoid policy where insured

or, they stated amount to agent who filled in

data, insured could not be held to be in

application, and, being unable to read Eng-

fault, particularly where facts stated in

lish, signed application without reading it

ter justified finding that extension was with

and without its being read to him. Baumler

v. Farmers' Northern Mut. Fire Ins. Co., 148

Penn Mut. Life Ins. Co. v. Sennenn \[Ind.

Mich. 430, 14 Det. Leg. N. 209, 111 NWV 1069.

App.\] 81 NE 87. Policy procured by plaintiff

Where it appeared that defendants' agent

on life of her husband provided that pay-

himself wrote out application, that he told

plaintiff that it was all right, that he and

company, must be entered in premium re the validity of contracts in which the agent has undertaken to act for his principal in dealing with himself."" Limitations on the authority of an agent are ineffectual unless brought to the knowledge of the insured." There is a conflict of authority as to the effect of limitations in the policy as to who may waive its conditions " and "

ecipt book when made. On discovering that

should be void If there was any change in premium which she claimed to have made

title, or if policy was assigned without con-
was not so entered she complained to collect agent, who refused to make correcte-

agent, having authority to sollect insurance,

tion, and thereupon refused to make further

receive applications and premiums, and payments. Thereafter assistant supern-

countersign and deliver policies, but not to

tendent encoded that she was right in her

indorse acceptance of transfer of policy, ad-

contention and agreed that mistake should

by entered that she might sell and assign

be corrected provided she resumed payment,

policy to vendee of insured property, and

which she did, relying on his statements.

affect with vendees that policy should con-

Held that company could not thereafter

time in force from time of purchase. Held

pudinate liability because payment was not

that company was estopped to claim for-

entered, since such defense involved fraud

feiture, neither insured nor vendees having

of its own agent. McNicholas v. Prudential

notle of agents want of authority. Contin-

Ins. Co. \[Mass.\] 82 NE #92. Letter written

by local agent to applicant notifying him of

L. R. 176, 100 SW 388.

receipt of policy and that he hoped to

Ilver it to him on following Sunday held

"Fire Insurance:" Where under terms of policy

not to have estopped company from denying

agent had no power to waive its provisions

ceived policy with special instructions not

to deliver it until applicant had signed

that insured notified agent of existence of

premium, applicant knowing that agent had

other insurance did not preclude company

no authority to make contract without ap-

from relying on provision that policy should

proval of company, letter not justifying

be void if there was other insurance on

liance upon it as acceptance of applicantant's

properly unless otherwise provided by agree-

original proposition, and there being no evl-

dence that he did so rely on it to his projula-

where agent did not communicate his

dice. McNied v. New York Life Ins. Co.

\[C. C. A.\] 149 F 141. Scliiting agent, having authority to collect first premium only,

Lite Insurance:" Provision that no forfel-

also collected second and remitted it to com-

tures could be waived or premiums in ar-

pany, which accepted it without objection.

He also collected third premium, which he

ing signed by certain specified officers of

failed to remitt to company. Held that jury

company held valid, so that extension, by

having found that payment was made to

agent authorized to collect premiums, of

agent as company's agent, and that it was

time for their payment did not waive for-

made in good faith, company was estopped

future for failure to pay
when due,

to claim forfelture because of its failure to

no knowledge of such extension having been

receive premium. Murray v. State Life Ins.

brought home to company. Cayford v. Met-

Co., 151 F 539.

- Rule that notice to agent is notice to

Possession of premium receipt, contending

principal, and that agent may under certain

no limitation of its validity if delivered after

circumstances wavle effect of forfelture

luses in policy. Aripe Mercantile Co. v.

have given him implied power to deliver

Capital Ins. Co., 133 Iowa, 272, 110 NXW 598.

- Agent hasnware: Held that if

isisn was given having no knowledge that

agent selling policy knew when it was

sued that insured was over 65 years old,

contents. Id. Insured held charged with

surer was bound though policy provided

knowledge of limitation on power of agent

that it should be void as to persons over

to accept overdue premiums which was con-

that age, unless insured know that agent

tained in policy. Id. Authority to collect

was exceeding his authority. Crawford's

remum does not imply authority to ex-

Adm'r V. Travelers' Ins. Co., 30 Ky. L. R. 943,

99 SSV 963. Held proper, under evidence, to

fortelture resulting from nonpayment. Id.

submit question whether insured knew that

where application provided that answers

agent had no authority to jury. Id.

structions to effect that if agent knew when

of them were untrue policy should be void,

he sold policy that insured was over 65, jury

that only officers at home office had

should find for plaintiff, unless they further

thority to determine whether policy should

found that insured knew that agent had no

issue, and that no statements, promises, or

authority to issue policy, in which event

information given to person soliliting appli-

should find for defendant, held proper. Trave-

cation should be binding on company or in

olers' Ins. Co. v. Crawford's Adm'r \[Ky.\] 106

any manner affect its rights unless reduced

SW 290. Limitations are not binding on

to writing and presented to its officers at

sured unless actual knowledge thereof is

home office, held that fact that soliciting

brought home to him. North American Acc.

asent know when policy was issued that

Ins. Co. v. Bowen \[Tex. Civ of provisions that all waivers and modifications must be in writing and attached to the policy.71

(SS 16) \_D. Reinstatement.\_See s C. L. 445.-An unreasonable delay in passing upon a petition for reinstatement may warrant a presumption of its acceptance.71 So, tco,

covery. Iverson v. Metropolitan Life Ins. Co. \[Cal.\] 91 P 609.

keep blasting powder in their houses, and changed higher premium on that account, and intended that blasting powder should be excluded from list of explosives in which scope of his authority are binding on them with not specifically mentioned. St. Paul Fire & Marine Ins. Co. v, Penman \[C, C. A.\] clause that agents shall have no authority to change contract or waive forfeiture. North American Acc. Ins. Co. v. Bowen \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 505, 102 SW 163.

Proposition that no agent should have power to change policy or waive any of its terms

that its terms could not be changed or its held to relate to provisions of contract

conditions varied except by written agree-itself after it went into effect, and not to

ment signed by company's president or sec-conditions relating to the inception of

etary, held that insurer was entitled to the contract where it appears that agent has

distivered policy and received premiums with

tml knowledge of the actual situation.

Dulany v. Fidelity & Casality Co. \[Md.\]

**Fire Insurance:** Company cannot by stipulation

in application or policy escape re-

thereon. It should be void if risk was in-sponsibility for act of its agent in waving

creased, and that no agent should have falsity to answers to questions in applicer

power to waive any of its provisions except

tion. Capital Fire Ins. Co. v. Montgomery

by writing endorsed thereon or attached
\[Ark.\] 99 SWV 687. Stipulations and limitations regarding powers of agents and man-

prenum general agent authorized to issue

ner of waving its conditions do not pre-

clude waiver by conduct of authorized

sagents in regard to future operations upon

change of possession. Hed that company premises. Macchiot's V. Agricultural Fire

wavired forfeiture and was stopped from

Ins. Co., 150 Cal. 440, 89 P 102.

**Life Insurance:** Superintendent of agencies

having power to adjust and settle claims

was insufficient. Macchiot's V. Agricultural

hold to have authority to waive forfeiture

for nonpayment of premiums when due by

accepting overdue premiums, though policy

had notice that insured had applied for

provided that waiver could only be effected

in writing signed by certain other specified

allowed by policy, and that such additional

offects. Industrial Mut. Indemnity Co. v.

in insurance had been or was about to be

Thompson \[Ark.\] 104 SWV 200.

**71. Limitation Held to Prevent Forfeiture.**

provision that no waivers, and no privilege

**Fire Insurance:** Provision that policy should

be void if insured had any other insurance,

binding unless in writing attached to or

unless otherwise provided by agreement

indexed on policy. Continental Ins. Co. v.

dorsed thereon or added thereto, held not

Reynolds \[Md.\] 68 A 277. Demurrer to

subject to oral waiver. Romanov v. Concor-

dia Fire Ins. Co., 121 App. Div. 489, 106 NYS

provided that it should be void in case there

63. Provision that, unless otherwise

vided by agreement thorosed ther

or added thereto, policy should be void if

therno or added thereto, that agent should

sured procured additional insurance, held not

have no power to waive its provisions, and

wavled, nor was company

estroped to en-

to en-

force it because insured, having procured

additional insurance after policy was issued,

informed agent of fact in casual conversation

on street, he having made no effort to secure

indisvement either from company or such

agent, who had authority to make it. Smith

v. West Branch Mutual Fire Ins. Co., 31 Pa.

Super. Ct. 29. Where policy precluded that it

should be void if certain named substances

"or other explosives" were kept on premises, and that no agent of insurer should

have power to waive any of its provisions

conditions varied except by written agree-

thereto, held that parol evidence was inad-

misible to show that agent who placed in-

in-

therno and before it had been passed on. Held the retention of a premium paid after a purported cancellation may operate as an election to treat the policy as still in force.\[78\]

SS 17. _Contracts of reinsurance and concurrent insurance._ \_Reinsurance.\_See 8 C. L.

"Whether payment by the original insurer is a condition precedent to the liability of the reinsurer to it depends on the terms of the contract.\[74\] A statute authorizing reinsurance is a part of contracts of reinsurance, and stipulations in conflict with it are void." Statutes in some states provide that the liability of the reinsurer shall be the same as though the original policy had been issued by it.\[76\] In the absence of an agreement to the contrary, the rights and duties of a policy holder in a company which reinsures its risks with another company, the latter assuming all its contracts, are measured by his original contract.\[77\] The Illinois statute authorizing the transfer and reinsurance of risks by assessment companies requires a transfer of all members actually in good standing when the reinsurance is effected.\[78\]

_Concurrent insurance_. See 8 C. L. 445.--Double insurance takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest.\[78\] There is no right of contribution between several insurers whose policies provide that the insurer shall not be liable for a greater proportion of the loss than the amount covered by its policy bears to the whole insurance on the property.\[80\] A

that the delay was not so unreasonable as to warrant presumption of acceptance of \[16\].

\*\*7.\*\*PlaintIf's policy made compliance with position and premiums accompanying it.

\*\*7.\*\*PlaintIf's policy made compliance with position and by-laws of association is-suing it condition precedent to recovery.

\*\*7.\*\*Retention for 13 days held election by \[16\] Hob that he was not bound to comply with company to treat accident policy, previously canceled on payment of loss, as still in \[16\].

\*\*7.\*\*Reliacek, 113 Ill. App. 219.

\*\*7.\*\*Policy of reinsurance providing that loss should be payable pro rata with, and \[16\] by reimbursed company, and that in no event should reinsurer \[16\].

\*\*7.\*\*Since under Laws 1893, p.

joint adjustment of the loss and an apportionment thereof among the several insurers may, however, give one of them a right to recover from the others excess payments made under a mistake as to the property covered by its policy.\[81\]

SS 18. \_The loss or benefits, its extent, and extent of liability therefor.\_See s c. L. "_Accident and health insurance_ policies frequently provide that the amount of indemnity shall be increased or diminished in case illness, injuries, or death result from certain specified causes.\[82\]

\_Credit insurance.--\_The amount for which the insurer is liable in case of loss depends on the terms of the policy.\[83\]

\_Employer's liability insurance.\_See s c. L. "Whether the insured is entitled to recover interest and costs recovered in an action against him by an injured employee in addition to the amount of indemnity named in the policy depends on the terms of the contract." Where the insurer denies liability, refuses to defend an action against the insured, and directs the latter not to incur any expense on its behalf, it cannot thereafter attack a judgment recovered against the insured in such action,\[85\] nor contend that its liability is limited to an amount for which the plaintiff in said action offered to settle with the insured.\[86\]

affects liability of others, and gives party, so paying no right to recover excess from the others. Firemen's Fund Ins. Co., Palatine

Held that items of interest and costs were Ins. Co., 150 Cal. 252, 88 P 907.

$L. Several companies insured same property under policies containing pro rata

Insurer was not liable therefor in addition clause. After loss all authorized an adjuster to adjust loss and to apportion same among

Worsted Mills W. Frankfort Marine Acc. &

them which he did, fixing total amount of

Plate Glass Ins, Co. \[R. I. 16 8 A 58. Insurer

loss by agreement with insured. Under

halt liable, in addition to indemnity pro-mistaken belief that policies of defendant

vided for by policy, for sum paid physicians

companies did not cover certain machines,

he so apportioned loss that plaintiff companies

in defense of action against insured. Id.

nies were compelled to bear larger proportion

In view of provisions insuring against extention thereof than they were legally bound

penses of defending suits for damages, and to do. Held that adjustment and apportionment

ment constituted new agreement as to in-

such suits, etc., held that limitation as to

sured on which plaintiffs were liable to him

amount of liability for any injury did not

for amounts apportioned against them, and

include costs and expenses of defending

hence they could recover their excess payments from defendants, Firemen's Fund Ins.

sonal injuries defended by insurer, but

Co. v. Palatine Ins. Co., 150 Cal. 252, 88 P

sured was liable therefor in addition to

907.

s2. See $ 10, ante.

amount of damages recovered. New Amster-

s3. Policy provided that gross aggregate

dam Casualty Co. v. Cumberland Tel. & T.

of insolvent accounts coming within its pro-

Co., \[C. C. A.\] 152 F 961.

visions to be taken into calculation of losses

s5. Plaintiff news company obtained em-

was limited to $5,000, but that no account

ployers' liability policy from defendant, and

against any one debtor should be covered

also agreed to hold railroad company over

for more than $3,000, "and only 75 per cent.

whose lines it operated harmless for in-

of the amount so covered on said accounts"

juries to its employers. Insurer directed

should be included in calculation of losses.

plaintiff not to incur any expense on its behalf

Held that maximum liability was $5,000, and

half in resisting claim against railroad com-

that 75 per cent. provision applied only to

any for death of one of plaintiff employees,

accounts of individual debtors. Peden Iron

and refused to take any steps in defense of

& Steel Co. v. Ocean Acc. & Guarantee Corp.

action thereon against railroad on ground

(C. C. A.) 151 F 929. Policy held to limit

that neither plaintiff nor insurer was liable.

liability of insurer to $10,000 on both rated

held that insurer, in subsequent action

and unrated accounts, liability on latter not

against it by plaintiff, could not attack

to exceed $5,000, and to provide for deduc-

judgment recovered against railroad com-

tion of initial loss of one-third of one per cent. on whole business of insured from net

only in that action on ground that it was

cost. on insolvent accounts coming within

terms of contract, remainder, if any, not

exceeding limit of guarantee, being amount

payable to insured. Id.

s4. Policy limited indemnity to $5,000, and

provided that insurer should at its own cost

defend claims against insured, and should

have entire control of such defense. Insurer defended claim, and judgment was

reforent them for half sum paid. Insurer, * 10 Cur. Law. Insurance $ 18. \_Fire insurance,\_See

- C. L. 446--The insured in case of loss is ordinarily entitled to recover the amount of his actual damages,_87_ not exceeding the amount named in the policy._88_ The insurer is entitled to credit for a sum paid the insured for a release subsequently held to have been obtained through fraud.89 Statutes in some states make it unlawful for the insurer to limit its liability by reason of the failure of the insured to insure his property for any certain amount or proportion of its actual cash value,\_90 _or to limit the amount to be paid in case of loss to a sum less than the actual cash value of the property, if within the amount of the insurance for which a premium is paid, or to require the use of any coinsurance clause except at the option of the insured._91__

Footnote 88: The insured in case of loss is ordinarily entitled to recover the amount of his actual damages,_87_ not exceeding the amount named in the policy._88_ The insurer is entitled to credit for a sum paid the insured for a release subsequently held to have been obtained through fraud.89 Statutes in some states make it unlawful for the insurer to limit its liability by reason of the failure of the insured to insure his property for any certain amount or proportion of its actual cash value,\_90 _or to limit the amount to be paid in case of loss to a sum less than the actual cash value of the property, if within the amount of the insurance for which a premium is paid, or to require the use of any coinsurance clause except at the option of the insured._91__

Footnote 88: The insured in case of loss is ordinarily entitled to recover the amount of his actual damages,_87_ not exceeding the amount named in the policy.

valued as to a total one.92 In the absence of express language manifesting a contrary intent, the policy will be construed as an open rather than a valued one, and recovery will be restricted to the amount of loss actually sustained.93 Statutes in many states make the insurer liable for the full amount of insurance specified in the policy in case of a total loss or for the actual amount of a partial loss.94 It has been held that, notwithstanding such a provision, the insured may sue as for a total loss and allege in addition thereto the actual amount of his damage, and, if he fails ta establish a total loss, may recover the actual damages proven.95

Footnote within the time prescribed.1 Immediate notice means notice within a reasonable time, what is a reasonable time depending upon the facts and circumstances of each case.2 Statutes in some states prohibit the insurer in certain cases from limiting

matters as he might reasonably be expected | rendered within sixty days after fire, and to know, and failure precluded recovery. Id.

Footnote 1: The \_L.

the time within which notice must be given to less than a specified number of days.\* It has been held that, where the insurance is upon a single building and the loss is total, no other proof of loss than the preliminary notice of loss is necessary.4 Misstamentments in the notice do not necessarily avoid the policy.\*

Footnote 4: The 10 Cur. Law. INSUANCE SS 19. 395 state of facts existing at the time he brings his action, the acts relied upon to show waiver must have occurred before that time.9 A failure to furnish proofs is waived by a distinct denial of liability on other grounds,10 or, in the absence of a provision in the policy11 or an agreement 12 to the contrary, by proceedings looking to an adjustment of the loss.13 The acts of the insurer's agent in this regard, if within the general,scope of his authority, are deemed those of the company.14 There is a conflict of authority as to the effect of general limitations on his authority in the policy.15 Where the insured in good faith attempts to comply with the terms of the policy, the retention by the company of the proofs furnished without objection may amount to a waiver of any defects therein.16

and demanded appraisal as to balance. Prov. -> V. Thomason \[Ark.\] 102 SVV 111. Signing Idence Washington Ins. Co. v. Wolf, 168 Ind. 690, 80 NE 26, afg. \[Ind. App.\] 13 NE 1093.

of agreement held not to have precluded in-> Alegations held sufficient to require sub-> Arkansas Mut. Fire Ins. Co. v. Witham mission of question of waiver to jury. Id. \[Ark.\] 101 SVV 71.

B. Proofs and arbitration. Culien V. In. 13. By appearance of adjuster and negotiures Co. of North America (Mo. App.) 141 SVV 117.

Herbolsheimer v. Citizens' Ins. Co. \[Neb.\] 113 NYV 152.

Health & Acc. Ins. Co. v. Harvey, 129 III.

14. Fire Insurance: Failure to furnish App. 104. Failure to give notice of death or proofs held not waived by verbal promise inguered and to claim indemibly held no defense, where defendant did not rely thereon, was necessary, and that insured need do by counsel stated in open court that defense nothing. Hotter v. Aachen & Munich Fire was that insured died from disease and not as result of accident. Johnson v. Continen. 1883 (P. L. 165), authorizing service of tal Casualty Co., 122 Mo. App., 369, 95 SVV 473.

profs on local agent countersigning policy Fire Insurance. Yates V. Thomason \[Ark.\] within twenty days after fire, held not to 102 SVV 111. Because of alleged invidality \[or confirm on local agent to waive of policy as to tornado insurance. Arkansas \] proofs. Id.; Knes v. Anchor Fire Ins. Co. v. Witham \[Ark.\] 101 SVV 71. Because of alleged overestimate of show waived by local agent, even conceding amount of loss. Hartford Fire Ins. Co. v. his authority. Knes v. Anchor Fire Ins. Hammond \[Colo.\] 92 P 688. By refusal of Co., 31 Pa. Super. Ct., 621.

commany, on application for blank proofs, 15. Fire Insurance: Waiver may be proved to pay loss on ground that there was no delivery of policy, and no payment of duty authorized agent, though policy pro-> premium or execution of assessable note \]ides that no agent shall have power to in lieu thereof. National Mut. Fire Ins. Co. \[v. Byrne \[Colo.\] 92 P 227. Evidence held \] by its terms might be subject of agreement, sufficent to make prima facte case of waiver and that in such case should be indorsored on and to take case to jury. Allen v. Phoenix \[or added to policy. Reed v. Continental Ins. Assur. Co., 12 Idaho, 653, 88 P 245. Where Co. \[Del.\] 85 A 589. Provision of by-laws adjuster told insured that unless he would first agree to accept certain sum for goods for losses representative or adjuster should totally destroyed, no adjustment would be \]ides that no to visitate place of made, and that he could sue on policy, etc. \[loss and investigating and, reporting facts, Cuilen V. Insurance Co. of North America \[Mo. App.\] 104 SVV 117. Failure of assignee \] of policy to furnish supplemental proofs \]advisory to pay was based \]his setup ground that he had no insurable interest. Munson v. German Fire Ins. Co., 31 Pa. Super. Ct. 551. Where, before expiration \]of time fixed by written contracts for turbine proofs, oral contract was repudiated inso ground that there was no contract and no liability. Thompson v. Germania Fire Ins. Co. \[Vasah.\] 85 P 941.

11. Examination of insured under cath \]hold not waiver of proofs, where policy provided that it should not have that effect. Lancashire Ins. Co. v. Lyon, 124 III.

01. Purpose of nonwaiver agreement held to preserve rights of parties pending inves->,

of local agent that he would do whatever of loss, so that it was terminated when that purpose was served, and did not prevent \]burn proofs, used it for purpose \]denial of liability after investigation from operating as waiver of proofs of loss. Yates \]its contents, held to require submission of 396 INSUANCE $ 20. 10 Cur. Law.

**SS 20.**_Adjustment and arbitration._ See **e** C. L. 451.\*\*Fire policies generally provide that, in case of a disagreement as to the amount of loss and damage,\[17\] it shall be determined by an appraisal or arbitration by disinterested appraisers,\[18\] who shall submit their differences to an umpire to be chosen by them.\[19\] Whether compliance with the provisions as to arbitration is a condition precedent to recovery is to be determined from the terms the policy.\[20\] It has been held that where it conclusively appears that the amount of loss exceeds the total amount of insurance, no appraisal is necessary.\[21\] A demand by two or more insurers for submission of their several liabilities in one appraisement or arbitration is unwarranted.\[22\] It is the duty of both the insured and the insurer to act in good faith and make a fair effort to carry out the appraisal, and a failure to do so by either ordinarily excuses the other from any further obligation in the matter.\[23\] As a general rule, on the failure of an attempted appraisal without the fault of the insured, he may immediately save on the policy without a resubmission.\[24\] If both parties endeavor to prevent an appraisal, or to render abortive an

question of waiver of strict compliance with |tainment and proof of loss, etc., "including terms of policy to jury, and to justify find- ing or waiver. Glazer V. Home Ins. Co., been required," held not to impose any obligation \[N. Y.\] $2 NE T27, rvg. 113 App. Div. 235, "gation on insurer to demand appraisal, but $8 NYS 97. Defects in proofs held immaterial, where they were received without loss, appraisal was required by terms of objection, though attorneys for insured, who confnured, an insured in one of the insured, requested that they be no-inflated of any insurers for the insured, or offered to perform condition further was required, and where insurers denied liability in subsequent actions on polis.\[11\] NoV 260.

151 F $81. 22. Hartford Fire Ins. Co. v. Asher, 20 Ky.

17. Plea setting up that award of apraisers was condition precedent to action by mortgage held bad on demurror for failure to allege existence of all conditions making award essential, such as that apraisers had been required and that there are disagreement as to amount of loss, Reed v. Newark Fire Ins. Co. \[N. J. Law\] 65 A 1053.

01. Appraisers should be disinterested. Hartford Fire Ins. Co. v. Asher, 30 Ky. L. R.

01. Award made by umpire and one apraiser held valid though not signed in presence of other appraiser. German Ins. \[N. J.

10 Cur. Law. INSURANCE SS 20. 397

agreement for one, the appraisement clause will cease to be a condition precedent to a right of action.25 It has been held that where an arbitration is a condition precedent to recovery, it is the duty of a mortgagee, to whom the policy is payable as his interest may appear, to take steps to procure one and that he cannot recover unless he does so.26 In some states provisions for arbitration will not be enforced.27 The appraisers must ordinarily exercise their own judgment in making the award, though, an award is not necessarily vitiated because of their consultation with experts.28 Insured should be given an opportunity to be present with books and other evidence to show extent of loss.29 The award must be definite and certain,29 uncertainty as to certain items avoiding the whole award where it is not severable.21 The award cannot be impeached at law for misconduct of the appraisers or umpire.23 It may be set aside in equity if based on the fraud or false testimony of the insured, and mistakes in estimating the amount of loss may be corrected.24 The insured cannot assail an award which he has set up and relied upon in his pleadings.25

The right to an appraisal may be waived by acts and conduct inconsistent with an intention to demand it,28 such as an absolute denial of liability.27 When once waived, the insurer cannot again require a submission to arbitration.28

fault of insurer, held that insured was not held vold for uncertainty where no sum of bound to enter into new appragement, there money was allowed, date from which rent being no provision to that effect in policy. Was to run was not fixed, and rate of month-. Fire Ass'n of Philadelphia v. Appel, 76 Ohio

If vent was not specified. Palatine Ins. Co. St., 1, 80 NE 952. Where owing to fact that V. OpBrien \[C, C. A.\] 152 F 922. apralisers were partisans of parties select.

21, Whole award covering loss on build-ing them, and unreasonable requirement of insurer that umpire should be person not vents was void for uncertainty. Palatine-up, and it became evident that no agreement

152 F 922. could be reached, held that it was incumum- 32 Garrerebaunt v. Continental Ins. Co. IN. J. Err. & Appel. 67 A 90.

33. Will be set aside in a suit instituted: partisan, and to request insured to do same, for that purpose, and he will be enjoined and when this was not done, after lapse of reasonable time, proposition for appraisement

As'n of Philadelphia v. Allesina \[Or.\] 89 would be deemed abandoned and subsequent

156. Evidence held to show that swornr demand thefor could not be made. Hartfort Fire Ins. Co. v. Asher, 30 Ky. L. R. 1053,

amount of loss. Id.

100 SW 233. Where first appraisers without fault of either party failed to determine amount of loss, held that it was not duty of insured to propose selection of new appraisers. Lancashire Ins. Co. v. Lyon, 124

157. App. 451.

001. Carp v. National Assur. Co. \[Mo. App.\]

001. Though policy required insured to act in obtaining arbitration, did not expressly authorize mortgagee, to whom policy was

001. Analyzed to whom policy was
     Each party is ordinarily required to pay the appraiser selected by him,\[89\] and half the compensation of the umpire.\[40\]

SS 21. _Option to pay loss or restore property, or to take damaged property at appraised value.\[88\]_ 4 C. L. 219

_Burglarary insurance_ policies frequently provide that the insurer may repair any damage to property and may replace any damaged article with one of like quality and value instead of paying for the same in money.\[41\]

\_Fire insurance.--\_The insurer must notify the insured of its intention to repair within the time specified in the policy.\[42\] In case it does not do so, the insured may then proceed to make the repairs himself.\[43\] The notice must be clear and unambiguous.\[44\] The election to repair may not be accompanied with some other proposition to be accepted by insured in lieu of the exercise of the right given.\[45\]

The insurer is sometimes given the option to take the property at its agreed or appraised value.\[46\] Waiver of such a provision cannot be predicated on a demand for an appraisal where the provision for an appraisal is unenforcible.\[47\]

SS 22. _Payment of loss or benefits and adjustment of interests in proceeds.\[88\]_ 5 C. L. 458--\_Matters relating to compromise and settlement,\[48\] and to releases,\[49\] are treated elsewhere. Payment in good faith and without notice to the beneficiary named in the policy generally relieves the insurer from further liability, though said beneficiary has in fact no insurable interest.\[89\] The proceeds of life policies are free:

''' //waitorconditionrequiringaprisement. //thelatter'smindofitsintention.GermanFireAsFnofPhiladelphiav.Appe1,%OhioSt.1,%NEE952. //thelatter'smindofitsintention.Germanins.Co.v.HazardBk.,%1Ky.L.R.1126,104SW725. //Mocorev.SunIns.Office,%00Minn,%45.Noticethatcompanywouldexerciseitsrightunlessinsuredaccedcertainusammeredbywayofcompromromiseheldintelv.Firemen'sFundIns.Co.\[Cal.App.\]%92P332.Instructiontothateffectheldharmlessinanyeventwherecompanyrefusedtoarbitrate.Id. //thelatter'smindofitsintention.Germanins.

quently exempted from liability for insured's debts.\[51\] The holder of a materialman's lien on a building is not entitled to the proceeds of a fire policy procured and collected by the owner, in the absence of an agreement to that effect.\[52\] By statute in Massachusetts a mortgagee may acquire a lien on the proceeds of a fire policy by filing a notice with the insurer and commencing suit within a specified time.\[53\] A tenant cannot recover from the insurer damages resulting to him from the failure of the insurer to promptly repair the leased premises in accordance with an agreement made by the insurer with the insured landlord.\[54\]

SS 23. \_Subrogation and other secondary rights of the insurer.\[See SS 5. L. 457--On paying the loss the insurer is ordinarily subrogated to the rights of the insured against third persons responsible therefor.\[55\] Fire \[56\] and burglary \[57\] policies often

uncle. Renick v. Mutual Life Ins. Co. \[Ky.\] to another, or from one form of indebtedness to another. Id. Subsequent creditors held also entitled to maintain action, provided by insured on his own life in favor of another person having insurable intent of $50 allowed by laws of Indian Terrest go to beneficiary as against creditors and personal representatives of insured. Hail v. Ayeref Guardian \[Ky.\] 105 SW $11. Indeed insufficient to show that any part of proceeds of policy payable to named beneficiaries not liable for insured's debts. Townsend's Assigne v. Townsend \[Ky.\] 105 SW $27. Manaf. Dig. Ark. $462, put in force in Indian Territory by act of congress, authorizing insurance on husband's life for benefit of wife which shall be free from claims of husband's creditors, provided that such exemption shall not apply where account of premiums paid annually out of funds or property of husband shall exceed $300, construed, and held that if insured was at all times before his death solvent and not financially embarrassed, statute does not limit his right of investment, and if insurance behaved was reasonable provision Insurance shall be paid to mortgagee, lien is for his wife and children, his creditors were entitled to no part of proceeds regardless of loss enforces lien by suit against mortgage amount. Red River Nat. Ek. V. De Berry and against Insurance company as its Truste. Tev. Civ. App. 20 Tex. Ct. Rep. 385, 105 $30. In case he was at all times insolvent or embarrassed, held that he could invest but $300 annually on premiums, and amount which that sum would buy would be extent of exemption in favor of widow and children. Id. If insolvent at time of payment of some only of premiums, held that sum recoverable by creditors, if any, should recover in tort as for negligence, particuable have purchased at date of its investment, provided there was nothing in policy to vary rule. Id. To warrant creditors in renewing, insured's financial condition when payments were made must have been state of indebtedness which produced embarrassment and approached insolveny. Id. Widow's right to dower held not to be taken into consideration in determining husband's financial condition at any particular date, in absence of showing of ill health, or imminment death or other special circumstances. Id. Burden held on wife to show, as against creditors, that husband's financial condition warranted investment of more than $300 annually. Id. Right of creditors to recover held not to depend on whether present claims were made by them when premiums were paid, if at all times insured was so largely in debt that he would have proved insolvent had he been forced to meet his liabilities, and such continuing indebtedness was merely shifted from one creditor contain express provisions to that effect, and require the assignment of such rights to the company as a condition precedent to payment.

Mortgage clauses frequently provide that the insurer shall be subrogated to any rights of the mortgage on the payment to him of any sum.\[58\]

SS 24. _Remedies and procedure. A. Rights of action and defenses, parties, and limitations._\[59\] & C. L. 458--Matters relating to venue 59 and process 50 are fully treated elsewhere.

_Rights of action and defenses._--Assumpit lies to recover assessments made by decree of court in proceedings to wind up a mutual company.\[91\] If an assessment fire insurance company denies liability and refuses to make an assessment, the insured may at once sue at law for his damages, though the policy provides that no action may be maintained thereon until an assessment has been made.\[62\] Equity has jurisdiction of a suit to compel the company to account for surplus in which the insured is entitled to share under the terms of his contract,\[62\] unless there is an adequate remedy at law by way of an action on the contract.\[64\] It also has exclusive jurisdiction of a suit to cancel a contract of insurance on the ground of fraud.\[65\]

caused fire. Svea Ins. Co. v. Vicksburg, etc., statutes under contract of insurance. Swing R. Co., 153 F 774. Action in such case held v. American Glucose Co., 123 Ill, App. 156. subject to same defenses as could have been \[G. Thompson v. Piedmont Mut. Ins. Co. \[G. C\] 58 SE 341. Is not required to sue in road, including insured's contributory negligence. Id.

$6, Where policy stipulated that on paying loss caused by another insurer should be subrogated to rights of insured, who should assign such rights to it, held that company under such an agreement and an assignment could recover against wrong-door, though it was member of insurance trust in violation of anti-trust law (Laws 1900, p. 125, c. 128), since agreement and assignment did not relate to business of trust. Freed v. American Fire Ins. Co. \[Miss.\] 43 S 947.

$7. Evidence held to show that insured had never made any settlement with manufacturer of safe of any claim it had on guaranty of soundness of safe, and that it offered to assign to insurer all its rights against sald manufacturer, even if offer of assignment was condition precedent to suit on policy. Bankers' Mut. Casuality Co. v. State Bk. of Goffs \[C. C. A.\] 150 F 78,

$8. Policy procured by mortgage at its own expense and payable to it as its interest might appear provided that insurance should not be invalidated as to mortgage by any act or neglect of mortgage, nor by any change in title or ownership of property, and that in case insurer paid loss to mortgage it should be subrogated to latter's rights. Policy was foreficted as mortgage by sale of his interest in insured property, and by failure to furnish proofs of loss, etc. Insurer paid mortgage amount of its debt and took assignment thereof.

Beld that mortgage had no interest in proceeds of policy, but that insurer was subrogated to rights of mortgage and might enforce debt against mortgage. Gillespie v. Scottish Union & Nat. Ins. Co., 61 W. Va. 169, 65 SE 213.

$9. See Venue and Place of Trial, 8 C. L. 2236. See, also, 8 C. L. 458, n 64.

$6. See Proces, 8 C. L. 1449, See, also, 8 C. L. 461, n. 3.

$6. Liability is one arising by virtue of \_Parties.\_See * C. L. 450--All persons having any interest in the subject-matter of the suit are ordinarily proper parties.66 Both the insured and the beneficiaries are necessary parties to an action for the recovery of premiums paid on a life policy which has been repudiated by the insurer.67

\_Time of commencing action.\_68--A provision that no action may be maintained on the policy until a specified time after filing proofs of loss may be waived by the insurer.69

\_Limitations.\_See * C. L. 460--There is a conflict of authority as to the validity of contract limitations. Some courts hold them to be contrary to public policy if for a less period than that fixed by the general statute of limitations,70 and others hold them to be valid if reasonable.71 The matter is regulated by statute in some states.72 If valid the action must be commenced within the time so fixed,73 unless the limitation of tontine period, to apportion equity among such of its policies of same class as plaintiffs as should complete their tontine dividend periods all surplus profits derived from such of its policies on semitcontinue plan as should not be in force at date of completion of their respective tontine periods, ject to limitations relating to disability arising from that clause held waiver of proconditions of policy, and, on information and vision that action could not be brought un-til three months after filing of final proofs.

lawfully neglected to determine just and equitable proportion of assets to be allotted to him, and arbitrarily and unjustly fixed his share at less sum than that to which he was equitably entitled, and had wrongfully and disceuent waiver of provision that diverted surplus profits to wrongful purpose, and praying for an accounting, held not to state cause of action in equity, no trust relation being involved and plaintiff having adequate remedy at law by action for breach of contract. Watts V. Equitable LIFe Assur. Soc., 105 NYS 863. Held participants have in view of fact that no facts were collected showing that apportionant was not equitable or was based an erroneous princi-ples, or showing fraud or misconduct on part of defendant. Id.

65. Where bill to recover premiums paid on policies and to cancel contract in relation helt to preclude recovery, no extrinsic facts thereto alleged that contract as written was not one agreed upon, but that substitution was made without their knowledge or consent, and through fraud and imposition prac-ticed by defendant's agents. Robertson v.

Burns' Ann. St. 1901, $ 4923. Phoenix Acc. Covenant Mut. Life Ins. Co., 123 Mo. App. 238, 100 SWF 866. Where policy procured by wife on life of her husband, and payable to herself or assigns, or to husband's children in case she died before him, was assigned to third person as collateral security for premiums that action brought within that time was paid, and wife died before husband. held that husband's children were proper and necessary parties to suit by representatives of assignee to ascertain interests of parties in policy, to establish equitable lien in favor of plaintiffs to extent of premiums advanced, and to collect policy. Morgan v. Mutual benefit Life Ins. Co. \[N. Y.\] 82 NE 438, aff. 104 NYS 185. In action by executor of in-sured against insurer to recover share of proceeds alleged to have been acquired by insured as heir of his wife, who was named as one of several beneficiaries in policy, and who predecessor insured, held that other beneficiaries to whom insurer had paid policy were proper parties. Armond v. Connecticut Mut. Life Ins. Co. \[N. Y.\] 85 NE 997.

10 Curr. L.-- 26.

- 402 INSUANCE SS 24B. 10 Cur. Law.

tion is waived.74 Negotiations looking to a settlement have been held to prevent the running of such limitations.75

(SS 24) _B. Pleading and practice_.See * c. L. 452.--The usual rules of pleading apply,76 including those as to exhibits.77 If an ordinance is relied on, so much of its language must be stated as will enable the court to judge whether its provisions offer a ground for the action or defense in support of which the authority of the ordinance is invoked.78

Plaintiff must allege facts showing the making of the contract sued on,79 and, if in writing, must set it out in full or according to its legal effect.80 He must also

nental Casualty Co., 104 NYES 553. Limitations held to have commenced to run from done without plaintiff's claim was examined by insurer, were furnished, and not found from date when additional proofs were furnished, it not appearing of whose request this was done. Norwood v, Preferred Acc. Ins. Co., 107 NYES 104.

Employer's liability Insurance: Provi-

given that no action should lie against commer-

some of negligence on plaintiff's part, since

pany unless "brought by assured himself to

reimburs him for loss actually sustained

plied by intendment. Mutual Life Ins. Co. v, and paid by him in satisfaction of a judgment

Hargus (Tex, Civ. App.) 18 Tex, Ct. Rep. 235, within 60 days from the date of such judge.

ment" held to require payment of judgment

withn 60 days of its date, and not the

bringing of suit against insurer within that

time. Edgedfield Mrs. Co. v, Maryland Casualty Co. \[S. C\] 58 SB 896.

Herve Insurance: Provision that action must

be brought within 12 months after free held

condition precedent. Williams v, Fire Ass'm,

of Philadelphia, 104 NYES 100. Limitations

held to have commenced to run from date of

fire as expressly provided, though loss was

not payable until 60 days after receipt of

Hutual Reserve Life Ins. Co. \[C. C. A.\] 161

proofs of loss. Appel v. Cooper Ins. Co., 76

Ohio St. 52, 80 NE 955.

74 Employer's liability Insurance: Par-

ticipation in negotiations for settlement

continuing until after expiration of 30 day

Imitation held absolute waiver of limitation, and not to have operated merely to

isupend running of said limitation until

negotiations were completed. Lyapunov Cut-

tion Mill-Co. v, Travelers' Ins. Co. \[C. C. A.\]

149 P564, rve. 147 P18.

Herve Insurance: Limitation held not

have been waived by negotiations for settle-

ment of loss. Appel v. Cooper Ins. Co., 76

Ohio St. 52, 80 NE 955.

75. Accident Insurance. Norwood v. Pre-

ferred Acc. Ins. Co., 107 NYES 104.

76. See Pleading, 8 C. L. 1855. Insurer

held not entitled to rely on breach of repre-

sentation in application, where there was

nothing in notice attached to plea, as required by circuit court rule 7, subd, to

other policy holders for reserve fund, etc., of

indicate its intention to do so. Masas v. Anchor Fire Ins. Co., 148 Mich. 432, 14 Det. Leg.

was alleged to have assumed, held not to

N. 232, 111 NY 1044. Fraud on insurer

held not open to consideration because not

set forth in notice. Baumler v, Farmers'

such a contract being basis of the action.

Mut. Pire Ins. Co., 148 Mich. 430, 14 Det.

Leg. N. 209, 111 NW 1069. Where petition al al

leged that before date of accident defendant

tally defective in failing to allege whether

had assumed all liabilities of association

originally issuing certificate sued on, and

pursant to contract or under Laws 1893, a.

answer alleged that it assumed all liabilities

to part thereof, and provided that same

its on said certificate but subject to proviations of destondant's constitution and by-

contract or its substance. Id.

laws in force when such liabilities should

score, held that plaintiff was relieved from

self that terms or conditions of contract 10 Cur. Law. INSURANCE SS 24B. 403

plead facts showing a loss falling within the terms of the policy, \[81\] and allege the performance of all conditions precedent, \[88\] or a waiver thereof, \[82\] a general allegation of performance being sufficient in most states. \[84\] There is a conflict of authority as to whether waiver may be shown under an allegation of performance. \[88\] Plaintiff need not plead a waiver of breaches not alleged by defendant as a defense. \[88\] The petition in an action against a policy holder in a mutual company to recover an assessment due must allege facts showing a compliance with the statute in making the assessment. \[87\]

The breach of conditions, representations, or warranties, \[88\] that the loss was within the excepted causes, \[89\] incentialism, \[90\] default in the payment of premium, \[91\] and failure to furnish proofs for loss \[92\] or to procure an appraisal, \[93\] must be specially pleaded in the answer if relied on as a defense. A general denial puts in issue all the allegations to which it is directed, and renders admissible all evidence which directly tends to disprove any or all of them. \[88\]

which may be material have been omitted, as where it is alleged that plaintiff has com- \[88\], \[12\], \[13\], \[14\], \[15\], \[16\], \[17\], \[18\], \[19\], \[20\], \[21\], \[22\], \[23\], \[24\], \[25\], \[26\], \[27\], \[28\], \[29\], \[30\], \[31\], \[32\], \[33\], \[34\], \[35\], \[36\], \[37\], \[38\], \[39\], \[40\], \[41\], \[42\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[50\], \[51\], \[52\], \[53\], \[54\], \[55\], \[56\], \[57\], \[58\], \[59\], \[60\], \[61\], \[62\], \[63\], \[64\], \[65\], \[66\], \[67\], \[68\], \[69\], \[70\], \[71\], \[72\], \[73\], \[74\], \[75\], \[76\], \[77\], \[78\], \[79\], \[80\], \[81\], \[82\], \[83\], \[84\], \[85\], \[86\], \[87\], \[88\], \[89\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[93\], \[94\], \[95\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\] 10 Cur. Law.

Variance.See 8 C. L. 465--As in other cases, the pleadings and proof must correspond. 95

Practice.See 8 C. L. 465--Equity may direct a discovery to aid an action immediately contemplated. 96 An order directing the company to allow the plaintiff to inspect its books and records bearing on the subject is properly allowed in an action by the insured to recover the amount claimed to be due him under a semifontein policy after the expiration of the dividend paying period. 97 In Maryland an action on a fire policy may be brought under the speedy judgment act. 98

(SS 24) C. Evidence; questions of law and fact. Presumptions and burden of proof.See 8 C. L. 466--The presumption is against suicide, 99 and the burden is on the party seeking to establish it. 1 Plaintiff ordinarily has the burden of proving a loss within the terms of the policy. 2 The burden of proving a mistake in the policy is on the party alleging it. 3 The burden of proving breaches of conditions and promissory warranties, 4 false representations, 5 or that the loss was due to excepted causes, 6 is ordinarily on the defendant.

Footnote 1: The number of people in the public is 1 to the admission of expert evidence,8 self-serving declarations,9 and the declarations of agents, parties, and others.10 Parol evidence is inadmissible to contradict or vary the terms of the contract,11 but is admissible to explain ambiguities.12 Proofs of loss or death are admissible against the party making them as evidence of the facts therein stated only in so far as they may be construed as admissions against interest.13 At most they are only prima facie evidence of such facts.14 Cases dealing with the admissibility of particular evidence to show whether there was a valid and binding contract,15 false representations and breaches of warranty,16 suicide,17 the

\[Vt.\] 67 A 821. Exclusion held harmless in any event. Id.

8. Evidence of gas expert as to reason for presence of gas in room held incompetent as wholly speculative, and its admission on issue of suicide to have been highly prejunctional. While v. Prudential Ins. Co., 105 NYS 87.

1. Letter written by agent to insured stating that pollcy was kind applied for held inadmissible in action by insured to recover premium on ground of fraud. Glassner v. Johnston (VWs.) 113 NWP 977.

1. Declarations of insured held admisible as against his executor on issue as to whether he had assigned interest in pollcy acquired by him as their of his deceased wife. Ormond v. Connecticut Mut. Life. Ins. Co., 105 C. \[N. C.\] 58 SE 987. Declarations of insured's deceased father as to date of insured's birth held admissible as to whether date of his birth was correctly stated in application. Mutual Reserve Life Ins. Co. v. Jay \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 932, 101 SW 545.

1. For full discussion of this question, see Evidence, 9 C. L. 1228. In absence of claim of fraud or mistake, or any foundation for reformation. Rief v. Continental Cassualy Co., 131 WIs. 468, 111 NW 502. Application held part of contract and binding on instured, so that parol evidence of prior negotiations and agreements between him and agent was inadmissible. Prince v. State Mut. Life Ins. Co. \[S. C.\] 57 SE 766.

1. When meaning of words used is doubtful, circumstances in which parties' contract may be shown, their common knowledge and understanding being such a circumstance in certain cases. Trow v. Preferred Ac. Ins. Co. \[Vt.\] 67 A 821. Company's knowledge that insured was railroad contract held one of circumstances material to construction of words "contractor, office and traveling" used in accident policy in describing insured's occupation, and hence evidence as to knowledge of insured's general agent as to insured's occupation at time insurance was effected was admissible. Id. Knowledge of company's general agent in this regard is knowledge of company. Id.

1. Fire insurance: Proofs of loss are admissible only as evidence that-requirements of policy have been compiled with, and not as evidence of amount of loss. Lancashire Ins. Co. v. Lyon, 124 Ill. App. 491.

Life Insurance: Proofs of death held admissible as admission. Haapa v. Metro-joint Life Ins. Co. \[Uch.\] 14 Det. Leg. Exp. N. 775, 114 NW 380. Statements of physician in certificate made part of proofs that insured had been listed at cerfatia dates and had been treated at cerfatia dates and had been treated at cerfatia dates.

amount of the loss,18 the cause of insured's injuries,19 and waiver,20 will be found in the notes. Plaintiff need only prove such of the allegations of his complaint as are necessary to show a right of recovery.21

\_Question of law and fact.\_See 8 C. L. 470.-Whether there was a binding contract of insurance between the parties,22 whether the policy was delivered,28 the truth or falsity of representations 24 and their materiality,25 the cause of disability,28 whether

period prior to his death held admissible as
such third person was acquitted heid inadmiss-bearing on question whether it was suicidal

sible. Myers v. Maryland Casausity Co., 122

intent on his part when he committed act

consisting his death. Cady v. Fidelity & Casausity Co. \[Wis.\], 113 NIV 967.

consisted of rupture of blood vessel in plain-valley Co. \[Wis.\], 113 NIV 967.

Life Insurance: Evidence that insured car-pred on his person considerable sum of

illness held irrelevant. Young v. Railway money shortly before his death, which was

not found on his body afterwards, held ad-

20. Accident Insurance: On issue as to

mislable. Kornis v. Western Life Indemity

waiver by agent of provision that policy

Co., 102 Minn. 31, 112 NIV 1038. Photograph

of reamels where insured's body

was found, showing stalrawy from floor of

by evidence that general agent received

building on which shooting occurred to

ground, held admissible. Id.

agent who sold policy, and that he at the

18. Where it was contended that certain

time, examined book evidently containing

goods covered by an inventory might have

invest's name, case having gone to jury on

been included among remnants introduced

what transpired between selling agent and

at trial as representing goods not included

in said inventory, held that it was

compleuously

manager
from

the

1
sender

to company's manager from plaintiff's at-

of all goods covered by said inventory to

torney requesting conference in regard to

salvage company, he being entitled to bene-

fit of presumption that he honestly lived up

of conferences between parties resulted in

to said agreement, and hence certain

delegation. Dulany v. Fidelity & Casausity

grams relating to said sale were admissible.

C. \[Mod.\] 64 A. 614. Admission of offer of

Purlong v. North British & Mercantile Ins.

Complorable made after institution of action

Co. \[Iowa\] 113 NIV 1084.

on policy held prejudicial error, amount of

Fire insurance: Certain inventories taken

long being issue in case. Culen v. Insurance

after fire held admissible as statements of

temes to which witnesses referred in their

testimony. Furlong v. North British & Mercantile Ins. Co. \[Iowa\] 113 NIV 1084.

Investron held not misleading as to effect to

garding adjustment of plaintiff's claim, to-be given inventories, Furlong v. American

Central Fire Ins. Co. \[Iowa\] 113 NIV 1087;

Further v. National Fire Ins. Co. \[Iowa\] 113 NIV 1088;

well admissible on issue of waiver of con-

NIV 1088. Testimony of expert accountant

as to amount of loss, based on insured's

books and annual inventories for fifteen

55. r.v. \[Lato P 718\].

years, held not conclusive on jury so as to

require their acceptance to exclusion of

inventories made after fire, particularly in

view of time and manner in which annual

inventories were taken. Furlong v. North

with conditions subsequent in reference to

Brittish & Mercantile Ins. Co. \[Iowa\] 113

softwarely went to defeat liability of

NIV 1084. Books and inventories held not

such sojem admissions as to be conclusive

on insured, or to preclude admission of

other evidence as to amount of loss until

plaintiff negatively deductions drawn

therefrom by accountant, and explained wherein

they were incorrect. Furlong v. American

Central Fire Ins. Co. \[Iowa\] 113 NIV 1087.

Held not prejudicial error to permit

ness, in rebuttal of defendant's evidence that

goods carried by plaintiff in stock were

cheap and inferior, to bring with her and

exhbit, in connection with her testimony to

effect that articles purchased by her out of

plaintiff's stock were of good quality, the

articles themselves. Bloch v. American Ins.

Co. \[Wis.\] 112 NIV 45.

**10.** Acedient Insurance: Where injuries

were alleged to have resulted from an assaulted by third person, record of criminal

action against letter by plaintiff in which 10 Cur. Law. Insurance $ 24D. injuries were the result of voluntary exposure to unnecessary danger,\[27\] the cause of death,\[28\] suicide,\[29\] whether there was a violation of the provisions against vacancy,\[30\] the keeping of gasoline on the premises,\[31\] or increase in the hazard,\[32\] compliance with the iron-safe clause,\[33\] incentidiarism,\[84\] whether the destruction of the insured premises was due to insured's negligence,\[85\] what is a reasonable time,\[86\] waiver,\[87\] agency,\[88\] whether false statements in the proofs were willfully and intentionally made with knowledge of their falsity,\[89\] and the cause of the failure of an attempted arbitration,\[40\] have been held to,be questions for the jury under conflicting evidence. The construction of the policy is for the court.\[41\] (SS 24) _D. Verdict, findings, judgment, costs, and fees.\[42\]_--Interest ordinarily runs from the date when the loss becomes payable.\[48\] Statutes in some states provide for the allowance of a specified penalty and a reasonable attorney's fee in actions on insurance contracts in case the loss is not paid within a specified time,\[44\] or if the insurer veraciously refuses to pay,\[45\] or if its refusal to pay is not in good faith.\[46\]

cants. Metropolitan Life Ins. Co. v. Ford, 31

Ky. L. R. 518, 102 SVW 876. Whether insured $8 SE 1020.

truthfully answered question as he understood it. Smith v. Bankers' Life Ass'n, 123

Good. \[Mo. App.\] 98 SW 825.

111. App. 392.

001. Health Insurance. Dulany v. Pidelity & Casuality Co. \[M.\] 66 A 614. Whether previous injuries were such as might affect risk. Accident insurance. North American Acc. Ins. Co. v. Trenton \[T.C., Civ. App.\] 18

Ky. L. R. 518, 99 SW 740.

26. Whether traumatic neutrius was disfucible with complete arbitration. Fire insurance within provisions of policy providing for less indemnity. Kenny v. Bankers' Acc. Ins. Volf, 168 Ind. 630, 80 NE 26, arg. \[Ind. Co. \[Iowa\] 113 NV 866.

01. Continental Casuality Co. v. Jennings \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 696, 99 SW SW

01. Acedent Insurance: Whether injuries resulting from fall were proximate cause of death. Johnson v. Continental Casuality Co. v. \[Wolf, 168 Ind. 690, 80 NE 26, arg. \[Ind. App.\] 122 Mo. App. 369, 99 SW 473. Whether insured was killed by falling off of observa-proofs signed and sworn to by insured. tion car as alleged in declaration or by one of expected causes. Trow v. Preferred Acc. Ins. Co. \[V.\] 67 A 821. Whether disease resulting in death was caused solely by fall. New Amsterdam Casuality Co. v. Shields \[C. C. A.\] 155 F. \[K. L. R.\] 155 F. \[K. L. R.\] 155 F. \[K. L. R.\] 155 W. Western Life Indemnity Co., 103 Min. 31, 112 NV 1039.

01. Whether there was vacancy or mere temporary cessation of occupancy. Hunt v. State Ins. Co. \[Iowa\] 113 NV 807. Whether building was vacant and unoccupied at time of fire and had been for more than ten days. Manas v. Anchor Fire Ins. Co. 148 Mich. 432, 14 Det. Leg. N. 222, 111 NV 1044.

01. Whether gasoline was kept on premises and whether fire was caused by its explosion. Brunswick-Balkec Colender Co. v. Northern Assust. Co. \[Mich.\] 14 Det. Leg. N. 651, 113 NV 1113.

01. Whether removal of insured property \[H.\] 173 NE 1093.

01. Therforens haveard within meaning of Code, $ 1743. Adams v. Atlas Mut. Ins. Co. \[Iowa\] 113 NV 651.

01. Therforens do not have been disfucible.\[45\] 112 NV 83. Yates v. Thomason \[Ark.\] 102 SVW 876.

01. Whether gamma was destroyed by re-americ \[S. C.\] 58 SE 1020. Whether mention of bookkeeping was sufficient. Arkansas

01. Instruction held not objectionable as authorizing jury to construre policy. Providence Washington Ins. Co. v. Wolf, 168 Ind. 690, 80 NE 26, arg. \[Ind. App.\] 173 NE 1093.

01. See & C. L. 471. See, also, Verdicts and Findings, $ C. L. 652.

01. Therforens do not have been disfucible.\[45\] 112 NV 83. Yates v. Thomason \[Ark.\] 102 SVW 876.

01. Interest is recoverable in suit on fire policy. Gray v. Merchants' Ins. Co., 125 Th.

01. Therforens do not have been disfuc
    Interest $ 1. 10 Cur. Law.

The subject of costs is fully treated elsewhere.47

($ 21) \_E. Enforcement of judgment.\_See 6 C. L. 136.

## INTEREST

- 1. Right to Interest and Demands Renr- tersent Coases With the Cessation or ing Interest, 40%. It May Rest in Contact Express, 40%. Interest as Dama- ges Ex Contracts in Recoverable, 40%. Interest From the Date of the Injury $ 3. Revenues and Procedure to Receiver Inday be Allowed in Torts, 41%. Interest on Statutory Recoveries, 41%. In- Interest on judgments,48 taxes,49 and local assessments, is discussed in separate articles,50 and the exaction of illegal interest is likewise excluded.51
- 1. Right to interest and demands bearing interest. See $ C. L. 47%.-The right to interest may arise from statute.52 A statutory right thereto may be waived.53

\_It may rest in contract express_See 8 C. L. 47% or implied.54.

\_Interest as damages cx contractu is recoverable_See 8 C. L. 47% for the improper withholding 53 of liquidated claims,56 or claims the amounts of which may be ascer- p 508), providing for recovery of 12 per Key. L. R. 819, 104 SW 267. But the rule is cent penalty and reasonable attorneys' fee otherwise where the taxpayer has by his in case loss in not paid within time specified voluntary action obstructed the collection of in policy, after demand, held not to apply taxes and by this means retained the money to policies in force before its enactment, which he ought to have paid over. Taxr-Arkansas Mut, Fire Ins. Co. v. Woolverton

year obtained injunction restraining \[Ark.\] 103 SW 256; Arkansas Mut. Fire Ins. Co. v. 203. Arkansas

Footnote 53: The value of the taxpayer is not necessarily correct.

Cv. 1. 106 SW 267. A transaction is received by the taxpayer.

Cv. 1. 106 SW 268. A transaction is received by the taxpayer.

Cv. 1. 106 SW 269. A transaction is received by the taxpayer.

## 10 Cur. Law.

Interest SS 1.

tained by computation.\[57\] Interest should be allowed also, though the demand is unliquidated, where fairness and justice require it.\[58\] Statutes in some states provide for interest on liquidated claims in cases of unreasonable and veratious delay in payment.\[59\] Where the amount due on a written contract is reduced by recoupment, interest is allowable on the balance from the time it came due.\[60\] An account stated bears interest,\[61\] and so does one for goods sold on a definite term of credit after it becomes due.\[62\] In the case of bonds where no funds have been placed in the bank to meet them, interest is allowable without demand.\[63\] Interest is allowable on invested capital rendered unproductive by reason of a breach of contract.\[64\] Interest upon the purchase price is allowed where specific performance of an agreement to convey land is decreed.\[65\] Interest is properly chargeable against a surety from the time its liability is determined.\[66\]

from the date of demand. Foley v. Houston

So. Hurd's Rev. St. 1905, c. 74, p. 1218. Case Co-Op. & Mfg. Co. \[Tex. Civ. App.\] 20 Tex.

Let not to be within the statute. Whittle-Ct. Rep. 224, 106 SW 160. Attorneys who wrongfully but in good faith paid over

fusil to pay until creditor should do someone to an infant's next friend, who mis-

thing which he was not bound to do. Ameri-

appropriated it, only held liable for interest

from the time the infant demanded the

lll. App. 548. The case of a receiver who is

money after he came of age. Wood v. Claire

allowed part of his compensation and fails

borne \[Ark.\] 102 SW 219. Interest from the date of the institution of a suit for breach of

as provided by statute is not within the

contract allowed. Grimling Bros. Co. v. Win-

field \[Fla.\] 43 S 687. The court intimated

that the true rule was to allow interest

from the date when the right of action accrued. Id. Annual rental bears interest

from the time it is due. Parker v. Gorta-

towsky \[Ga.\] 59 SE 286.

56. Interest not allowed on an unliquidated claim not capable of accurate ascertained

tainment for breach of contract for failure

to furnish machinery. Munson v. James Smith Wooem Mach. Co., 118 App. Div. 398,

103 NYES 502. Interest not allowed on damages

for breach of a building subcontract held

to be unliquidated. Stannard v. Robert H. Reid & Co., 118 App. Div. 304, 103 NYES 521.

Interest not allowed against sureties on a

sheiriffs bond who disputed their liability,

until the demand was liquidated by judge

ment. Baker County v. Huntington \[Or.\].

$9 P 144. Interest on a balance due a physician allowed under Civ. Code, 4.280,

viding that every person who is entitled to

recover damages certain or capable of being

made certain by calculation and the right

to which is vested in him upon a particular

day, is entitled also to recover interest

thereon from that day. Leggat v. Gerrick,

35 Mont. 91, 88 P 788. Interest allowed on

sum found due on an accounting although

the transaction was not entirely closed. Rust

v. Pittsburgh \[Wiis.\] 112 NW 508. Claim for

damages under an agreement to share expenses of drilling and operating oil wells

on land owned in common held not unliquidated and interest allowed. Kervin v. Utter,

104 NYES 1061.

$7. Allowance of interest held proper in a

trade mark and name infringement case

where the recovery was for profits only and

no damages were awarded. Cutter v. Gude-

brod Bros. Co. IN. X.\] 88 NE 16. Where a

mere computation determines the amount

due on a contract, such amount is liquidated. Bennett v. Palmer, 128 Ill. App. 626.

58. Interest allowed on quantum merit

for work and materials although the claim

was unliquidated. Fleming v. Jacob, 103

NYS 209.

Interest from the date of the injury may be allowed in torts.See 5 C. L. 475.--Where money is converted or wrongfully detained,47 its value is unlawfully diminished.48

Interest on statutory recoveries See 8 C. L. 475. is sometimes allowed.49

Verdicts.See 8 C. L. 475.

Interest ceases with the cessation or tender of the debt or obligation.See 8 C. L. 475. There must be a tender actual or constructive.40 A continuing tender is necessary to stop interest running on instalments of rent as they fall due.41 An offer made dependent upon performance by the creditor of a binding condition precedent to, or concurrent with, performance by the debtor will stop the running of interest.42

(Compound interest See 8 C. L. 475 is not allowable unless contracted for.48 By statute in Kentucky partial payments on a debt bearing interest shall first be applied to the extinguishment of the interest then due,44 and then to the reduction of the principal.44 A statute will not be construed to authorize the payment of interest on interest.46

47. Interest allowed from the date of a |Neely v. Williams \[C. C. A.\] 149 F 60. fraudulent settlement. Whitticomb v. Collier, 133 Iowa, 308, 110 New 836. In an action of deceit arising out of fraudulent representations, the damages were held liquididated and interest was allowed on the value of the property sold from the date of sale. Ruth-erford v. Irby, 1 Ga. App. 499, 57 SE 927. Where in an action for the modelrelivery of a telegram the jury award damages in a jump sum, interest thereon is not allowable from the date of the injury but only from the date of judgment in the lower court. Arkansas & L. Mc. Ce. v. Stroude \[Ark.\] 100 SW 768. Where a plaintiff in repelve effects to take judgment for the value of the property, he is entitled to interest at lease from the date of the issuance of the writ (Sheffield v. Hanna \[Iowa\] 114 NW 24), although no specific demand therefor is made in the plea-ings (Id.). Where money is fraudulently misappropriated no demand is necessary and interest due from the time of the misappropriation. Earle v. Whiting \[Mass.\] 82 NE 32.

01. Interest is allowable from the date of the accrual of the cause of action to the date of the time of trial. Ft. Worth & R. G. R. Co. v. Brown \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 849, 101 SW 268. Interest allowed on damages sustained to live stock. Gulf. etc., 1 R. Co. v. Graves \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 848, 101 SW 488. In an action for the loss of freight, interest should be allowed on the value of the property fixed as the measure of the damages. Walker v. South-errn I. Co. \[S. C.\] 68 SE 952.

01. In Alabama interest is allowed on money recovered in an action under the state authorizing the recovery of money lost and paid on a wager. Code 1896, & 2163, Molto v. Johnness \[Ala.\] 44 84.

01. No tender of any kind. Gorgas v. Saxman, 216 Pa. 237, 65 A 619.

01. Vlaver of a tender by refusal to receive rent during the pendency of a suit to recover possession does not prevent interest from running from dates when instalments of rent fell due. Parker v. Gortatowsky \[Ga.\] 50 SE 286. A continuing tender is required to accomplish that result. Id.

01. A note for the conveyance of a clear title is due only if incumbrances are removed and a tender subject to this condition will prevent interest from running.

10 Cur. Law. INTEREST SS 2. 411

SS 2. \_Rate and computation.\_See s c. L. 47e.--The statutes of many states contain regulations as to the rate and computation of interest 7 in addition to the ordinary usury laws.78 The Massachusetts or United States rule of computing interest is commonly used.79 Where the assumption of a mortgage by a grantee specifies the rate of interest, he is liable only for the rate stated in the assumption though the mortgage bore a higher rate.80 A trustee who neglects to place funds where they will draw interest is personally liable for interest thereon at the customary rate allowed by responsible banks.81 The agreement of the parties will control as to the time from which interest is to be computed,82 unless the time of payment is definitely fixed.83 It is often held that interest will not run until after demand of payment,84

payments are less than the accrued interest,

79. An instruction to compute interest by they will be retained until they are sufficient to satisfy interest up to the date of note to the time of the first payment in-the last payment and the surplus used as of such payment from the sum of the principal-above (Id.).

01. Under Laws 1899, p. 177, c. 108, providing a decree rendered in a suit for the set-time of the second payment, etc., held to give other shall bear interest at 5 per cent. For the correct rule of computation. Russell v. date and until paid and giving the court

01. An instruction to compute interest by power to enforce collection by such an an-byermat always remains in excess of the payments made, the proper method of de-deeres and interest thereon, only the decree

01. The interest adds to the principal sum, interest. State v. Desha County \[Ark.\] 98 and then deduct from this gross amount the total of the payments made. Holcombe v.

01. Interest allowed from date of demand

01. Hicks v. Elwell, 129 11. App. 561.

01. Trustees of a bank in liquidation who withdraw money from interest paying banks allowed where no other rate is agreed upon

and place it in one not paying interest are on accounts after they become due and decree

personally liable for interest thereon at the mand of payment is made. Freyang v. Vera

but under a statue allowing interest after demand, any intimation to the debtor that payment is desired is sufficient." By statute in Texas in the absence of any agreement as to interest, interest is allowed on all open accounts from the first day of January after they are made." Interest on a demand for work performed or materials furnished runs from the time the contract price becomes due." Interest is allowable on wages from the end of each period they are earned from the date of the verdict." Where a judgment of the appellate court annuls that of the lower court, interest accrues only from the date of the judgment of the appellate court." An agreement to reduce the rate of interest on a note and credit the difference on accrued interest on the principal is valid as to future interest but invalid as to accrued interest."

## 3. _Benedies and procedure to recover interest_

In New York a verdict for the full amount of the plaintiff's claim on a quantum merit for work and material should be construed by the court, and entered by the clerk as including interest," but a court has no power to amend a verdict by adding interest thereto, where neither the date from which it is to be computed " nor the amount thereof is given," nor at a special term after the trial term had ended." Interest can only be recovered as part of the damages claimed in the pleadings." Instruco tions as to the correct rule for the computation of interest does not take away from the jury the right to compute interest. \[96\]

INTERNAL REVENUE LAWS.

**8 1.**: _Provisions Common to All Acts, 413._

**8 2.**: _The Tax on Liquors and Tobacco, 413._

**8 0.**: _Tax on Playing Cards, 414._

**8 3.**: _Oleomarrazine Act, August 1, 1886, 413._

**8 4.**: _War Revenue Acts, June 13, 1898, and_

**8 5.**: _Forelga Revenue Acts, 415._

\*\*March 2, 1991, 414.\_ The Stamp Act,\_

**4 14.**: _The Legacy Tax, 414._

**8 1.**: _Provisions common to all acts, \[See 8 C. L. 478._--The mere existence of an omission in a revenue law, does not authorize the court to extend its scope, \[97\] but they will be so construed as to harmonize with the tariff laws. \[98\] Resort cannot be had to foreign trade names as an aid to interpretation. \[90\]

Taxes illegally imposed and collected may be recovered in a proper proceeding for that purpose, \[1\] except when paid without protest. \[2\] Such an action is in contract and not in tort. \[3\] Hence the death of the collector illegally imposing the tax does not abate the action. \[4\] Interest on the amount paid may-be allowed in the proper case. \[5\]

A sale of property under a distraint warrant for unpaid taxes is distinguishable from a forfeiture and condemnation of property seized for violation of the revenue laws, the latter proceeding being in rem, \[6\] while the former is in the nature of an execution and passes only such title as the debtor possessed. \[7\]

**8 2.**: _The tax on liquors and tobacco, \[See 8 C. L. 470._--To justify the imposition of a tax, the liquors must be within the class of spirituous or fermented liquors described in the act. \[8\] Shipment of liquor under a name other than its trade name is prohibited, \[9\] and the existence of a fraudulent intent is not essential to conviction. \[10\]

An information for forfeiture on the ground of a violation of the revenue law must show the precise nature of the act charged. \[11\]

**8 3.**: \_Oleomargarine act, August 3, 1886._See 8 C. L. 481._--Except as made directly applicable, the provisions of the general revenue law do not apply, \[12\] and accordingly

**96.**: _Russell v. Cassidy, 122 Mo. App. 555,_

**99 SW7 781.**: _Bay rum not being subject to revenue tax, the fact that importations from Porto Rico are not subject to Import duty and that bay rum is not subject to tax at home does not render it subject to tax as distilled spirits merely because it would otherwise escape taxation entirely. Newhall v. Jordan, 149 F 586._

**98.**: _Classification of "vermuth" for imposition of customs duty considered In determine whether it was wine within the revenue act. Taylor v. Treat, 153 F 656._

**99.**: _Taylor v. Treat, 163 F 656._

**1.**: _Rev. St. Mo. 1899, 8 452 (Ann. St. 1906, pp. 581, 583, 745), held to authorize a single action by trustees, paying tax under protest, and cesuits que trust, against whom it was unlawfully assessed to recover same. Armour v. Roberts, 151 F 846._

**2.**: _Notwithstanding payment was a prerequisite to obtaining possession. Newhall v. Jordan, 149 F 586._

**3.**: _The obligation to repay is implied from the fifth amendment of the Federal constitution. Armour v. Roberts, 151 F 846._

**4.**: _May be continued against his successor. Armour v. Roberts, 151 F 846._

**5.**: \_Where stamps were purchased in large the penalties and interest provided for therein cannot be imposed for a failure to comply with the oleomargarine act.\[13\] The tax provided cannot be imposed upon one who is not shown to be a dealer in oleomargarine within the meaning of the act.\[14\] When the original stamped package becomes empty, the stamps thereon must be canceled.\[15\]

**SS 4.**_War Revenue Acts June 13_, 1898, _and March 2_, 1901.--_The stamp act._ See * C. L. \[481\]--The penalties provided are the exclusive means for the enforcement of the act.\[16\] Whether a person is an agent within the meaning of the act depends upon the circumstances of each particular case.\[17\]

\_The legacy tax.\_See * C. L. \[481\]--The act of 1898, imposing a tax on property transferred by "deed, grant, bargain sale or gift," to take effect after the death of the transferror, applies only to conveyances without consideration,\[18\] and where the ultimate disposition of property is fixed by an instrument based on a valuable consideration, the fact that a similar disposition is also made by will does not render it subject to the tax on testamentary bequests.\[19\] The rate of the tax is determinable by blood relationship to the deceased.\[20\] Hence children by adoption though entitled to full rights of heirship under the state statute are not lineal descendants within the act.\[21\] The act limiting the time for the presentation of claims for refundment of taxes illegally collected \[22\] has no application to a proceeding under the act of 1902 for refundment of a legacy tax paid on a contingent interest which did not become vested prior to July 1, 1902, whether legally or illegally imposed or voluntarily paid.\[23\]

**SS 5.**_Filled Cheese Act, June 6_, 1896. See * C. L. \[482\].

**SS 6.**_Tax on playing cards._--A pack of cards must show a stamp denoting payment of the tax although the cards therein are reassembled from packs upon which the tax has been paid,\[24\] and the duty to see that the law is complied with is incumbent upon a vendor as well as upon the manufacturer.\[25\]

**SS 7.**_Civil War Revenue Laws._--The remedies provided for the enforcement of internal revenue taxes by the acts of 1868 \[26\] and 1868 \[27\] were concurrent.\[28\] The bur-required by $ 2226, Rev. St. \[U. S.\] Comp. St. \[U. S.\] Comp. St. \[1901, p. 2088\], is unnecessary as a condition to bringing of an action to recover taxes illegally imposed. Grier v. Tucker, 150 F 655. The Oleomargarine Acts are complete in themselves and independent of the general revenue laws except as specifically made applicable. Craft v. Schafer \[C. C. A.\] 158 F 175. See 154 F 1002 on rehearing.

\*\*13.\*\*The fifty per cent. penalty authorized by $ 3176, Rev. St. \[U. S. Comp. St. 1901, p. 2068\], and the five per cent penalty and interest under $ 3186, 3187 (U. S. Comp. St. \[1901, p. 2073\], were not embraced within the Oleomargarine Act. Grier v. Tucker, 150 F 655. Penalty authorized by Rev. St. $ 3176 (U. S. Comp. St. \[1901\], cannot be imposed for violation of the act. Craft v. Schafer \[C. C. A.\] 153 F 175.

**14.**\_Mere fact that retailer received oleo in original package, consigned to a customer for convenience of latter, same being paid for by latter through retailer and without profit to him, held not to render retailer a wholesaler. Grier v. Tucker, 150 F 658.

\*\*15.\*\*An original stamped package held not "empty" within the meaning of the act requiring destruction of the stamp so long as it contained a pound package put up out of original contents for retail consumption. United States v. Knott, 151 F 925.

**16.**\_Hence government cannot maintain den of establishing irregularities in the proceeding is upon the person asserting its invalidity.\[20\] The remedies provided for the protection of holders of other liens on the property proceeded against are exclusive.\[30\]

SS 8. \_Foreign Revenue Acts.--\_Failure of the vendor to affix a stamp to a bill of sale as required by the laws of Mexico does not render the instrument invalid as the vendee may affix it and require the vendor to reimburse him.\[31\]

## 11 International Law.\[a\]

Matters concluded by decisive action of the executive department will not be judicially reviewed.\[38\] Rules of international law will not be applied to reopen matters which by agreement or long acquiescence have been otherwise settled.\[34\]

## 12 Interpleader.

### 12 Nature of Remedy and Right to It, 415. | 8 2. Procedure and Rel:ef, 417.

SS 1. \_Nature of the remedy and right to it.\[See 8 C. L. 488--\_The concurrence of four elements is essential to the right to maintain a bill of interpleader:\[38\] (1) The same thing, debt, or duty must be claimed by all the parties against whom the relief is demanded;\[38\] (2) their adverse claims must be derived from the same source;\[37\] (3) the complainant must claim no interest in the subject-matter;\[38\] and (4) complainant must stand indifferent between the claimants.\[38\] The right to the remedy rests upon the doubt of the complainant as to which claimant is entitled to the property.\[40\] Accordingly, the suit must be brought before judgment at law.\[41\] The appli cant for interpleader must show that he cannot pay the debt or render the duty or other thing to either of the claimants without being substantially bound for the same thing to the other.\[42\] Like other equitable relief it must be promptly sought.\[43\]

$Slatutory\\ proceedings$,See 8 c. L. 484--A case at law is not converted into an equity case by an order of substitution of parties defendant,\[44\] and a justice of the peace does not lose jurisdiction of a case by making such an order.\[45\] If a cause is one which presents only legal issues, it is not changed in character merely by the substitution, but proceeds according to law.\[46\]

is impossible to decide safely between ad- --and, assumed the mortgage, took an asverse claimants. Vogle v. Union Cent. Life ins. Co., 147 Mich. 333, 13 Det. Leg. N. 1040, 110 NIV 1067. When defendant is used for commissioning for the sale of real estate by one of two brokers, each of whom claim to 13 Det. Ex. N. 1040, 110 NIV 1067. In its announcement of defendant owes both of them and he concedes his liability to one but is unable to determine which, he is entitled to have 147 he rejected and substitute as defendant upon paying the sum claimed into court. Termely v. Marshall, 118 Apr. Div. S39, 103 NIV 688. Where several persons claim from a common source equitable conflicting interests in a fund held by a stakeholder, which is insufficient to pay all, and there is doubt arising either in 147 he rejected and the person's to whom the money should be paid, the stakeholder will not be required to pay at his peril, but may 147 he rejected or 1

## 2 Procedure and relief

See 1. C. L. 444.--A bill of interpleader is a proceeding in personam.47 Granting of leave to interplead in a garnishment proceeding rests in discretion.48 The payment of the fund into court and the interpleading are to be ordered simultaneously.49 Since the real contest on a bill of interpleader is between the defendants, an admission by one of the averments of the bill does not dispense with proof as to the other.50

Footnote 49: The author is grateful to the anonymous referee for the support of this paper.

\_Discharge.\_See 1. C. L. 485.--In cases of interpleader the court will not permit a general accounting between the claimants and decree payment of the balance found due out of the fund brought into court.51 The only thing in issue is the right to the particular fund.52 If defendants answer severally claiming the fund, no proof need be made by the complainant.53

Footnote 53: The author is grateful to the anonymous referee for the support of this paper.

\_Statutory interpleaders.\_See 1. C. L. 485.--One who successfully maintains a bill of interpleader is entitled to reasonable costs.54 Defendants who establish their right to hold a fund until complainant's right thereto is established are not chargeable with the costs of a suit by complainant to recover it.55 Such costs are payable out of the fund.56 One whose motion to have another interpleaded is denied is entitled, upon reversal, to costs on the motion and costs and disbursements in the appellate court.57

property rights in and contracts relating to intoxicating liquors, and of drunkenness as an offense.

**SS 1.**_Control of liquor traffic and validity of statutes in general._**58** **c. L. 496 --** Sale of intoxicating liquors is not per se unlawful in the absence of state or municipal regulation or prohibition,64 but the right to engage in traffic in such liquors is subject to the power of the state, in the exercise of its police power to regulate or entirely prohibit such traffic 64 where the state constitution is silent on the subject, the power to control the sale of intoxicating liquors rests entirely in the legislature,63 and such legislature may delegate such power of control to subdivisions of the state.64 Delegation of power of complete control to a city does not necessarily divert the state of its power of control, and the latter may be exercised concurrently with the former,64 unless the power of the state is restricted or excluded by the terms of the delegation 64 where there is a conflict the state regulation must control.67 Power to prohibit is not included in the power to regulate 64 or to license,69 nor is power to regulate included in power to suppress.70 Regularity statutes must conform to the general rules relative to the validity of statutes,71 and must not be in violation of the Federal constitution 72 and the same is true of course, as to regulatory ordin:

\*\*61.\*\*Sopher v. State \[Ind.\] 81 NE 913.

\*\*62.\*\*Reed v. Collins \[Cal. App.\] 9 P 973.

\*\*63.\*\*Reed v. People, 12 41 HI, App. 519; Schmidt

\*\*64.\*\*Genael laws not repealed as to city v. Indianapolis, 168 Ind. 631, 80 NE 632;

\*\*65.\*\*State v. Robinson \[Min.\] 112 NWV 269; In re

\*\*66.\*\*Clause in Portland charter that no Brady, 106 NYS 821; De Gragler v. Stephens

nances." If possible a regulatory ordinance will be construed so as to give it a uniform position and thus to uphold it."

SS 2. _Local option laws._\[86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 99, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 211, 222, 223, 234, 235, 246, 247, 258, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 311, 320, 321, 332, 343, 344, 355, 356, 357, 358, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 422, 413, 424, 425, 436, 447, 448, 450, 409, 426, 449, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480, 491, 492, 493, 494, 495, 496, 497, 498, 499, 400, 401, 402, 403, 404, 405, 406, 407, 409, 411, 422, 413, 424, 425, 436, 447, 449, 450, 451, 452, 453, 454, 456, 457, 459, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480, 481,

### 420 Intoxicating Liquors & 2.

10 Cur. Law.

universal method, is by an election in which the question is voted on directly.18 Provisions for such elections are made by the various statutes in more or less detail." The fundamental basis of local option by way of local elections is the division of the state into local option districts,19 and the integrity of such a district is not effected by changes in regard to such district for other purposes.20 Where, however, such districts are themselves divided into subdivisions authorized to exercise local option, serious questions often arise relative to rights and powers of a district and its subdivisions.21 The order for the election 21 is made upon petition 21 filed 21 with the country boards cannot grant license for more than a calendar year, their office being con- Rep. 220, 103 SW 878. Differentiating classical-inuous and the principal of local option toention of counties, made by Ky. St. 1903, not being involved, but municipal authorities 1856, as amended by Laws 1906, by 86, a 2", may grant license for "municipal year" and "a time of holding local option elections, which may be longer or shorter than calendar year. 10."

85. Post. $ 61, providing that legislature for local option elections or to repeal any must provide means whereby counties, etc., general act, etc. Board of Trustes of New may determine whether thierneys shall be Castle (Cavity, Scot, 36 Xy, L, R, 894, 101 SW 944, not therein, but that nothing in such sec- Validity of election in commissioners' pre-repal existing laws, left it to legislature to determine whether or not existing laws shall be repealed, and hence legislature could pro- the result in such case being that local vide for repeal or modification of existing option being voted into effect in the origin-laws and allow this to be done by vote of such locality as legislature saw proper. Security covered by such precinct regard-Board of Trustes of New Castle (Cavity, Scot, 30 Xy, L, R 854, 101 SW 944. Local option law hold not in violation of Const. art. 3, 101), providing local or appeal laws. Ex-parte Dupree \[Tex.\] 19 Tex. Ct. Rep. 851, 105 SW 493. Acts 1906, by 114, providing forty in which it was originally utilized. Ex local option elections in counties in which party Standard \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 320, 103 SW 578. Where local option had mination of status of such counties in re-spect to sale of intoxicating liquors after such operation of the law was not affected by elections, and providing for mode of change- ing same and for other purposes, held not unconsutriutional as embracing more than or was not detached from the latter and at-one subject or as containing matter not cov-,ached to another Justice's pre-reluct. Id.reed by its title. City of Barnesville (Cavity, Scot, 30 X, L, R 854, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 211, 222, 231, 242, 243, 244, 255, 266, 277, 288, 290, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 223, 244, 257, 268, 291, 209, 211, 232, 245, 269, 270, 208, 209, 224, 267, 289, 292, 200, 221, 233, 246, 268, 293, 294, 295, 296, 297, 298, 299, 300, 311, 323, 334, 341, 342, 343the sense of any county, city, town, district, or precinct may be taken as to whether certain liquures shall be sold therein or shall be regulated, authorizes the several units specified.

If the county is not a priori of the county, it is possible to use a proper court or tribunal, \[86\] by the required number of duly qualified petitioners, \[87\] and where the statutory requirements have been complied with the petitioners are entitled as a matter of right to an order for such election. \[88\] Other matters of importance in connection with local option elections are the notice \[89\] and date of election, \[90\] method of voting, \[91\] form, \[92\] authentication, \[93\] and count \[94\] of ballots, quali-

its record is sufficient or not is immaterial. State v. McClure, 5 Ohio N. P. (N. S) 541. Petition held in substantial compliance with Rev. St. 1899, $ 3027 \[Ann. St. 1906, p. 1738\], and sufficient, though not couched in language of statute. State v. McCord \[Mo.\] 106 SW 27.

Provisions of Real Local Option Law, requiring that "petition shall be filed as a public document with the clerk of municipality, and preserved for reference and inspection," is directory only as distinguished from mandatory. Webber v. East Liverpool, 5 Ohio N. P. (N. S) 488. Where it appears that through inadvertence of clerk of council, in failing to give the necessary legal notice, a local option election cannot be held under first filing of petition, it may be withdrawn and refiled with a change of date by consent of the petitioners, notwithstanding action had been taken upon it by council, and proceedings may be had de novo with reference to it, and such subsequent proceedings will not be rendered irregular nor the election invalid by such withdrawn. When such action has been taken, it will be conclusively _presumed_, in the absence of any _evidence_ to the contrary, that such withdrawal and refining as a new petition was with the consent and approval of the petitioners. Id.

Under Const. art, 7, $11 12, and B. & C. Comp. $ 253, an election may be ordered either by the county judge sitting alone or by him and the two commissioners provided for by the constitution and statute sitting with him. State v. MacElrath \[Or.\] $9 P 803.

Under Ky. St. 1903, $ 2654, a petition for election in a magisterial district must be signed by a number of voters in each precinct thereof equal to 25 per cent. of votes cast in each of such precidents at last preceding general election, and a petition signed by 25 per cent. of the voters of the entire district is insufClient. Davis v. Henderson, 31 Ky. L. R. 1252, 104 SW 1009. The "next preceding general election" as used in the statue means the last election at which state and county officers, including those for district in question, were elected. Id. Mere fact that words "and taxpayers" follow the words "one-tenth of the qualified voters" in the order of submission did not deprive court of jurisdiction which had attached upon finding that petition was signed by "one-tenth of the qualified voters" as alleged. State v. McCord \[Mo.\] 106 SW 27, rvg. 124 Mo. App. $3, 100 SW 112. Under local option law separate petitions presented to court at same time constitute a single petition, and the aggregate signatures of all such petitions may be counted in ascertaining whether there is the requisite number of signatures. State v. Hitchcock, 124 Mo. App. 101, 101 SW 117; Neal v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 206, 102 SW 1139. Where judged stated that he knew petitioners and that they constituted the required per cent of voters, and contestant did not deny such statements or make any allegations to contrary, failure to hear evl-

Provision of Real Local Option Law, requiring that "petition shall be filed as a public document with the clerk of municipality, and preserved for reference and inspection," is directory only as distinguished from mandatory. Webber v. East Liverpool, 5 Ohio N. P. (N. S) 488. Where it appears that through inadvertence of clerk of council, in failing to give the necessary legal notice, a local option election cannot be held under first filing of petition, it may be withdrawn and refiled with a change of date by consent of the petitioners, notwithstanding action had been taken upon it by council, and proceedings may be had de novo with reference to it, and such subsequent proceedings will not be rendered irregular nor the election invalid by such withdrawn. When such action has been taken, it will be conclusively _presumed_, in the absence of any _evidence_ to the contrary, that such withdrawal and refining as a new petition was with the consent and approval of the petitioners. Id.

Under Const. art, 7, $11 12, and B. & C. Comp. $ 253, an election may be ordered either by the county judge sitting alone or by him and the two commissioners provided for by the constitution and statute sitting with him. State v. MacElrath \[Or.\] $9 P 803.

Under Ky. St. 1903, $ 2654, a petition for election in a magisterial district must be signed by a number of voters in each precinct thereof equal to 25 per cent. of votes cast in each of such precidents at last preceding general election, and a petition signed by 25 per cent. of the voters of the entire district. Davis v. Henderson, 31 Ky. L. R. 1252, 104 SW 1009. The "next preceding general election" as used in the statue means the last election at which state and county officers, including those for district in question, were elected. Id. Mere fact that words "and taxpayers" follow the words "one-tenth of the qualified voters" in the order of fications of election judges,98 the order declaring the result of the election,98 and the publication thereof.97 An election is proved by the records relating thereto.98 Liability for costs is regulated by statute.99

Local option, when put into effect, suspends the general license law,1 whether the result is in favor of license * or against it,\* but provision is usually made for the resubmission of the question after the expiration of a certain period.4 Provision is also made for the contest of local option elections,5 and the remedies thus provided are exclusive.6

Footnote 15: https://www.cds.org/

58. 101 SWV 1003. Publication of result may be proved otherwise than by copy of Judge's entry as provided by Sayles' Ann. Civ. St. 1897, $ 3591. German V. State (Tex, Cr. 1897, $ 3591. German V. State (Tex, Cr. 1897, $ 384. App.) 20 Yez. Ct. Rep. 406, 186 SWV 834.

Certificate of county judge that order declaring result of election was published in favor of license, the police jury had no a certain paper for four successive weeks, "as required by law," held sufficient compliance with City, Code 1895, art. 3331, July 1997. My Webster Parish (L.4) 45 84.

though particular issues of the paper were not specified. Magill v. State (Tex, Cr. 1897, $ 259. 108 SWV 397. Un.)

then token away from town by result of par-App.) 19 Tex. Ct. Rep. 293, 108 SWV 397. Un.)

der Sayles' Ann. Civ. St. 1897, art. 3331, July 1997.

Judge's certificate should not rectite that 156. Provision of 1905, $ 2073, for election was held and that it resulted in extension of license for six months beyond local option going into effect. Walker v. State (Tex, Cr. App.) 20 Tex. Ct. Rep. 399, 106 SWV 376. Fact that judge certified to authorised "unnecessary matters in addition to those required did not invalidate election. Neal v. State (Tex, Cr. App.) 19 Tex. Ct. Rep. 206, 102 SWV 1129. Surplus rectilals in judge's "filled certificate of publication of result held not prejudatical to defendar, Walker v. State (Tex, Cr. App.) 20 Tex. Ct. Rep. 399, 106 NE 1085, following Cain v. Allen, 168 Ind. SWV 376.

Mandamus refused to compel district 4. Under Gen. Laws 29th Leg.. p. 578, judge to vacate order made by him at (c. 158, an election held in less than two chambers awarding per memory mandamus to compel county Judge to publish result of election, where county judges' refusal years after the holding of the prior elections based on invalid agreement as to post- tion. Key St. State (Tex, Cr. App.) 19 Tex.

ponent between commissioners' court and Ct. Rep. 183, 102 SWV 1127. Ky. St. 1903, contestants. Thorne v. Moore \[Tex.\] 19 $ 3560, as amended by Laws 1060, p. 86, 21, Tex. Ct. Rep. 985, 105 SWV 985.

Admission of election is involved in an insistence in a bill of exceptions that no- ite of the result was not duly published.

Powell v. State (Tex, Cr. App.) 18 Tex. Ct. Rep. 719, $ 85WV 1002.

98. Where record of county court showed that after election the county clerk and two of the associate judges selected by the clerk opened and cast up the votes polled, and reported the result to the court, which, after reciting such report, ordered it to be spread upon the record, and then ordered the result as thus found to be published, etc., which was accordingly done, it was held that the election was sufficiently proved. State v. Hitchcock, 124 Mo. App. 101, 101 SWV 117.

01. Only petitioners are liable. Therefore, 90/Neal v. Minary, 83 Ky. L. R. 888, 101 SWV 951. Under Ky. St. 1903, $ 2559, petitioners for local option election must make de- postful sufficient to cover costs of both the hand bills and the publication required by $ 2555, but where the deposit required and $ 103 Ky. L. R. 894, 102 SWV 92.

01. The election election was not allowed to be broken by the election.

01. The election was not allowed to be broken by the election.

01. The election was not allowed to be broken by the election.

01. The election was not allowed to be broken by the election.

01. The election was allowed to be broken by the election.

01. The election was allowed to be broken by the election.

01. The election was allowed to be broken by the election.

- 10 Cur. Law. INTOXICATING LIQUORS SS 3. 425

## 3 Licenses and license taxes. Authority to license or tax, and application of license laws

See \[8\]. C. L. 491.--The validity of license statutes is determined by the same rules that are applicable to statutes in general,' except that the former are held not subject to certain constitutional limitations applicable to the latter.8 The source of all licenses to sell intoxicating liquors is the state.9 From this source cities and other subdivisions of the state derive their licensing power,10 and the power of one subdivision may be subordinated to that of another in which the former is located.11

Footnote 10: http://www.liv.org/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liviv/liviv/liviv/liviv/liviviv/l Power to license does not include power to prohibit,\[12\] and a license fee may be invalid.because prohibitive where there is no power to prohibit.\[13\] The amount of the license fee is sometimes left to the determination of the people of the particular locality,\[14\] but where the fee is prescribed by statute, a valid license cannot be issued without its payment.\[16\] As in the case of statutes, certain constitutional limitations are held not applicable to licensing ordinances.\[16\]

Whether a particular business comes within the terms of the statute or ordinances is a matter of construction\[17\] and evidence.\[18\]

_Procedure.See * C. L. 492_--No one has vested right to have a liquor license,\[19\] and licensing authorities are usually vested with more or less discretion in the exercise

12. State v. Police Jury of Webster Par- etc., requires fee not only of resident brewers ish \[Ls.\] 45 S 47.

01. State v. Police Jury of Webster Par- ish \[La.\] 45 S 47. Tax below maximum prescribed is presumed valid in absence of travelable occupations. Commonwealth v. Nu-Fayette \[Ala.\] 42 S 621; Cofer v. Elizabethtown, 30 Ky. L. R. 706, 95 SW 608. Under Ky. St. 1903, 8 430, subsec. 27, city of fourth class is authorized to fix retail license at from $250 to $1.00, and hence license tax of $600 was valid. City of Mt. Sterling v. King, 81 Ky. L. R. 919, 104 SW 22. Test of reasonableness is not whether the applicants business yields a sufficient profit to justify the payment of the fee. Cofer v. Elizabethtown, 80 Ky. L. R. 706, 95 SW 608. Fee of $250 on wholesale license held not confiscatory. Id. Tax of $750 in town of 700 population held not prohibitory where in previous year three out of four dealers made profit of from $400 to $800, though fourth went out of business. Johnson V. Fayette \[Ala.\] 42 S 621.

**Mandamus** lies to compel fixing of the license fee at a figure that is not prohibitive. State v. Police Jury of Webster Parish \[La.\] 45 S 47. City license of $1,00 on brewers held not excessive. Schmidt v. Indianapolis, 168 Ind. 651, 80 NE 632.

\*\*14. Laws 1885, p. 268, c. 296 \[St.\] 1898, $ 1548\], providing for determination of amount of license in cities by election, held applicable to Milwaukee. State v. Hinkel, 131 Wits. 108, 111 NWV 217.

**15. Under St. 1898, $ 1548, city has no power to Issue license even for part of year until payment of full license fee prescribed by the statute has been paid, though by the terms of the statute all licenses expire on a certain date thereafter, regardless of whether they have run a year or not. State v. Hammel \[Wis.\] 114 NWV 87.**

**16. Ordinance** Imposing license tax need not specify purpose of tax. City of Mt. Sterling v. King, 31 Ky. L. R. 919, 104 SW 322, following Brown-Forman Co. v. Com., 30 Ky. L. R. 793, 101 SWV 821.

\*\*17. Under Acts 1905, p. 20, $ 2, par. 28, when brewing company engaged in manufacture of beer paid special tax in country where its principal office was located, it was not liable to pay an additional tax in another country in which it stored beer and filled orders taken at its agency in such county. Whittsey v. Acme Brew. Co., 127 GA. 208, 56 SE 29. Acts 1906, p. 193, c. 22, subd. 4 imposing license fee on "each agency" * * established by resident brewers or resident wholesale dealers in domestic beer," 10 Cur. Law. $\\bullet$

Introxcating LiquORS $ 3. $\\bullet$

427

of their licensing power,\[20\] but such discretion cannot be exercised arbitrarily,\[21\] nor will a city itself be allowed to exercise its power in a discriminating or arbitrary manner.\[22\] An applicant for license must be duly qualified,\[23\] and the application must be made to a duly authorized tribunal\[24\] at the proper term\[25\] or time,\[26\] and must conform to requirements as to notice,\[27\] consent of property owners,\[28\],\[29\] pay-

20. Council may limit the number of 11-

Acts 1907, p. 260, c. 138, $ 10, that applicant

cases to be granted. Meyer v. Decatur, shall be etizen of state and resident of 125 Ill. App. 556. Authority under Bessemer

country for which the license is asked, held city charter, Dec, 13, 1900 \[Acts 1900-01,

within police power and hence not invalid

p. 44\], to license and restrain and revoke

under U. S. Const, art. 4, $ 2, relating to

where In opinion of council the public safety, p peace, etc., requires it, vests council with

several states, or art. 14, $ 1, relating to

discretion in granting. Cooke v. Loper

equal protection of laws. De Gravier v.

\[Ala\]. 4$ 87, $ 10, Ordinance may reserve

power to refuse license if place is not

892. Same degree of proof as in eigentent

deemed suitable. Id. Flight to pass on

not required, but sufficient if applicant has,

suitability of place may be delegated by

by record or documentary evidence or both,

counul to committee where right of appeal

and in good faith believes that he has a

is given. Id. Mayor who is authorized to

Frebold estate in his district. Starkey v.

grant licenses to applicants complying with

Palm \[Neb\]. 114 NWV 287. Unlawful sales

certain requirements has a discretionary

of articles not pertaining to business of

power, and may refuse an applicant who

bharmcist, such as cigars, ice cream, etc.

has complied with the ordinance where

ther are reasonable grounds for such re-

ing license to sell intoxants under Code,

rusal, such as that the saloon will be to-

cated near a religions institution. City of

cants shall be issued only upon proof that

Chicago v. Kreitemann, 130 Ill. App. 469.

applicant has for six months last past law-

Held within mayor's discretion to refuse

finally been conducting a pharmacy. In re

license for saloon within 125 feet of prem-

Mausby \[How\] 118 NWV 548.

ises of reform school for girls, and 500 feet

**Coperation:** May hold dram shop license

from main building and 250 feet from other

under statute making word "person" appli-

buildings in course of erection on such

cable to corporations. Heidelberg Garden

remples. Kreitemann v. Dunne, 228 Ill. 31,

Co. v. People, 124 Ill. App. 331. Mayor and

$1 NE 790. Ordinance directing mayor to

scuncil of city of first class have no authority

issue license when satisfied of good charac-

to pass on qualifications of holder of country

ter of applicant, and specifying conditions,

i.e., held not to require mayor to issue 11-

144. Laws 1899, pp. 133, 144, c. 4747, $ 2, 4,

cense for neighborhood where the deemed

giving country commissioner power to hear

it would be detrimental to public to have

evidence and to pass upon qualifications of

a saloon. Harrison v. People, 222 Ill. 150,

pp18. That dram

and is not unconstitutional as conferring

shop was to be located near public school

held ground for refusal in exercise of dis-

179.

cretionary power. Id. Mayor in issuing

license exercises discretionary power as

of county commissioners of county wherein

agent of council where his authority is

conferred by ordinance. Harrison v. People

P 828. Village board had no authority to

commit "may" issue licenses, the exercise

giving it power to do so. In re Ryan \[Neb\]

of such authority in one case renders the

112 NWV 599.

or ordinance mandatory as to all applications

within the terms of the ordinance. Meyer

St. 1906, p. 1720\], that petition for license

v. Decatur, 125 Ill. App. 556.

**22.** City must exercise license power

through general ordinances operating upon

all applicants in the same class. Meyer v.

Decatur, 125 Ill. App. 556. Channel by ordinance reserve to itself an arbitrary disce-

tion to license one person and refuse to

license another having the same qualifications. Id. Proviso that any place in city

used for distribution, etc., of beer brevet

outside of city shall be held to be a depot

of a brevery within provision of ordinance

imposing license upon such degots

erally, held merely explanatory of such provision and not to discriminate between resel-

dents and nonrefuents. Schmidt v. Indianapolis, ment of fees," and designation of the place where the business is to be conducted."

place of sale is incident to the power to license, regulate, and restrain. City of Baton Rouge v. Butler, 118 La. 78, 42 S 650. "That legislature has power to authorize such an ordinance was affirmed in City of New Orleans v. Machea, 112 La. 559, 86 S 590, and in City of New Orleans v. Smyth, 116 La. 685, 41 S 33. "Id.

Form of consentis: Under Laws 1896, p. 60, c. 112, 8 17, requiring filing of consent "executed" by property owners, signatures to a rider to a former consent filed with another application, not being "subscriptions" to such consent, cannot be considered. In re Griffin, 56 Misc. 21, 108 XYS 24.

TUNE of filling consensus: Laws 1896, p. 60, c. 112, 8 17, subd. 6, as amended by Laws 1897, p. 220, c. 312, requires consent of property owners to be filed "simultaneously" with the application, and hence a consent previously filed by another applicant is not sufficient. In re Griffin, 66 Misc. 21, 106 NYS 24. Prior consent filed cannot be rendered applicable by endorsements by way of amendment. Id.

Qualifications of signers of consentis: Under Cobbey's Ann. St. 1903, c. 32, application must be signed by bona fide fredenders. In re Dye \[Neb.\] 112 NWV 332. One made a freeholder for sole purpose of qualifying him to sign application is not a bona fide frecholder. Id. Lapse of time alone will not qualify one who is not a bona fide frecholder to sign application. Id. Lessee who was general real estate agent of owner not qualified to give consent by reason of his interest in profits realized from possible sale of premises. In re Rupp, 54 Misc. 1, 105 NYS 467. Under Laws 1897, p. 220, c. 312, 8 17, subd. 8, relating to necessity of consent of property owners of residence buildings within certain distance of proposed place to be licensed, an ordinary double building in country village built to license was granted by proving continuous b one building, though the two parts were owned by different persons. In re Clement, 118 App. Div. 575, 105 NYS 157. That signers were resident freeholders residing within certain distance of proposed saloon need not be alleged. Hayes v. Oceansfates \[Cal. App.\] 92 P 452. Finding that signers of petition were resident freeholders are held sustained by evidence. Tatterstal v. Nevels \[Neb.\] 110 NWV 708. Code, $ 244, requires signers of statement of consent to be legal voters at last preceding general election as shown by poll books, and rapid evidence is inadmissible to prove such qualification. Wilson v. Bohstedt \[Iowa\] 110 NWV 898. On appeal from supervisor approval of statement of consentis filed as required by Code, $ 2449, and approved after canvass required by 2450, such statement and the poll books required to be kept by auditor by $ 2453, when certified to district court by auditor, as required by $ 2450, were admissible in behalf of appellants, though the latter had removed them from the auditor's custody and kept them for nearly thirty-six hours, where there was no evidence that they had been altered or spollated. Id. Under Code, $ 2449, requiring signers to be voters at last general election as shown by poll books, persons 10 Cur. Law. **INTOXICATING LIQUORS SS 3.** 429

The applicant is sometimes entitled to a hearing.\[22\] When so required the applicant must give bond,\[31\] with such security and upon such conditions as is required by law.\[35\] Actions in such bonds are treated in other sections.\[36\] The validity of the license is not affected by an erroneous taxation of costs,\[37\] nor by the intention of the applicant as to the use of the license when granted.\[38\] Proceedings to list persons and places for taxes must conform to the statute authorizing such proceedings.\[39\]

The necessity of a new application for a renewal of a license is sometimes dispensed with.\[40\]

Icofusal to renew a license and threatened interference with the business of the former licensee is not ground for an injunction,\[41\] mandamus is available in a proper case where a license is refused.\[42\] Provision is usually made for review by appeal or like proceedings,\[43\] but such is not always the case.\[44\] Where such review is provided for, prohibition will not lie.\[45\]

No. 192, held not subject to objection that **gety owners or householders**, etc., on both **hotel mentioned** was actually located in \*\*sides of street In block on which the saloon white school district known as "Public Schools of Milford," and in united school **if** signed by one-fourth of property owners, **etc.**, on both sides of street on which **maln** entrance is located, and need not be signed ford. In **cofinale** (Dcf. Gen. Sess.) 64 A by one-fourth of owners, etc., on all the **361**. The place for which the license, issues **cago v. O'Hare, 124 Ill. App. 290.**

**40. Refusal of license deprives no one of **30**. App. 673, 100 SW 1107.**

**32. Under an ordinance requiring "que consideration" of an application, the applicant is entitled to a hearing. Reed v. Collins \[Cal. App.\] 90 P 972.**

**33. Bingham County V. Fidelity & Deposit Co. \[Idah\] 88 P 829. Under Ky. St. 1903.**

**5 2058, giving city right to regulate and control liquor traffic, city had right to re-quite bond of license conditioned upon his **observance of laws and ordinances** re-ready and able to do so, and they refused **lating** to such traffic. City of Padovani v. Jones, 31 Ky. L, R. 1203, 14 SW 971.**

**34. Must be in penal sum of $1,000 with at least two good surgeries possessing certain **qualifications**. Bingham County v. Fidelity & Deposit Co. \[Idah\] 88 P 829.**

**theo**, leaving acceptance of surety bonds to **to** intervene and defend. Id. Where the discretion of city council, held constitutional.\*\*

**40. Quay v. Shepherd \[Mich.\] 14 Dot.**

**41. Leg. N. 100, 114 NW 228.**

**35. See post, $ 5. Action For Penalties; post, $ 9, Civil Liabilities For Injuries Resulting From Sale.**

**36. License not invalidated because coun-ty erroneously taxed certain costs. State v. Mitchell \[Mob. App.\] 105 SW 65.**

**57. Intention to allow license to be used by one not qualified to receive a license. State v. English \[N. H.\] 68 A 129.**

**38. Under Code, $ 245, as amended by **Code Supp.** 1902, $ 2435, providing for return by citizens of lists of persons engaged in and places used for liquor business, where municipal assessor fails to make **32**.**

**such return as required by Code, $ 243, notice of intention of citizens to make such return must be served and verified by one of such citizens as required by the act, and service and return thereof by a constable is insufficient. National Loan & Inv. Co. v. Limn County Suprs, 134 Iowa, $27, 111 NW 1009.**

**39. Under ordinance dispensing with necessity of new application on renewal nn-less protest is filed by one-fourth of prop-**

**theo**, leaving acceptance of surety bonds to \*\*
_Nature, effect, and scope of licenses._${}^{\\text{Seo}}$ & C. L. 495--A liquor license, while sometimes made property for certain purposes, such as assignment or transfer,${}^{\\text{43}}$ as a general rule is a mere regulatory,${}^{\\text{46}}$ personal permit granted in the exercise of police power ${}^{\\text{47}}$ and is not assignable,${}^{\\text{48}}$ and may be modified or annulled by the state at any time.${}^{\\text{49}}$ A void license is ineffective for any purpose.${}^{\\text{50}}$ The operation of a license is confined to the place specified therein ${}^{\\text{51}}$ and to the business covered thereby.${}^{\\text{52}}$

only whether lower court has proceeded according to law. Free's License, 33 Pa. 66 A 508. Where there has been a hearing, it will be presumed, where it does not affirmatively appear to the contrary, that the licensing tribunal's decision was based upon legal grounds. Free's License, 33 Pa.

from the evidence produced that commisioners acted illegally in issuing the license to sell at place mentioned, is not reviewable. Appeal of Cole, 79 Conn. 679, 66 A 508. On appeal by taxpayer under Gen. St. 1902, 3 2660, the superior court may set aside action of commisioners in granting license which it deems to have been improperly issued because of disquantification of licenses, though it is not satisfied that commissioners acted improperly in other ways. Id. On appeal by taxpayer under Gen. St. 1902, 3 2660, the superior court may vacate license granted by commissioners though the evidence on which license was granted is not before court. Id. Where the jurisdiction of the licensing tribunal depends upon questions of fact which are left to its determination, such determination is conclusive. Whether application was signed by requisite number of persons possessing certain qualifications, as well as qualifications of applicant and fitness of place, held questions of fact to be determined by the city trustees. Hayes v. Coceanside Trustees \[Cal. App.\] & 2 P 492. Quarter session's refusal of wholesale license will not be reversed by superior court in absence of abuse of discretion, if proceedings are regular. De Haven's License, 31 Pa. Super. Ct. 385. Where more licenses are applied for than are necessary under the circumstances, the quarter sessions must necessarily determine between them. McCrory's License, 31 Pa. Super. Ct. 192. Where the proceedings are regular and no abuse of discretion is shown, the appellate court will not reverse an order of the quarter sessions refusing a license. Id. On appeal from refusal to grant license on account of a remonstrance under Burns' Ann. St. 1901, $ 7276, the court cannot consider a **supplemental blanket** remaindered under Acts 1905, p. 7, c. 6, enacted pending the appeal. Sanasack v. Ader, 168 Ind. 559, 80 N 181.

**Amendment:** On trial in district court on proceedings under Code, 8 2450, by way of filling of bond and denial of statement of consent on which license was granted, an amendment of the plaintiff's denial by inserting allegation that he was a citizen of the county did not change cause of action. Dye v. Augur \[Iowa\] 110 N NW 328.

**Presumeptions:** In overruling claim that court could not, on appeal under Gen. St. 1902, $ 2660, upon the evidence produced, find that the commissioners acted illegally or in abuse of their power, the court implied that he found illegal conduct upon evidence deemed sufficient to support such finding, but it would have been better practice to have made an express finding to be a **missing** of the issues of interest.

**The author is grateful to the author.**

- 10 Cur. Law. **INTAXUATING LIQUORS SS 3.** 431

\_Revocation, cancellation, and surrender.\_See * C. L. 407.--The right to revoke has already been considered.63 Grounds of revocation may consist of either matters antedating the issue of the license,54 or violation after the issue of the license,55 of the laws applicable to licenses.56 Quo warranto is held to be the proper remedy to challenge the validity of a license,57 but revocation proceedings are entirely statuired.

20 Tex. Ct. Rep. 497, 105 SW 1119. Act 30th

_Leg. p. 258, c. 138, held to repeal Sayles'_

_Ann. Civ. St. 1897, arts, 5060a-50601 inclusive, and all licenses issued thereunder._

_sub. 8, was not lost by destruction of a such repeal to take effect from expiration of_

_subling by fire, or by abandonment, a reasonable time in which holders of such_

_Iscenses might comply with the new law._

_Ex_ _parte Vaccarzeza (Tex. Cr. App.) 20 Tex. Ct. Rep. 497, 105 SW 1119. License under_

_former law held not to validate selling_

_without compliance with Gen. Laws, 30th_

\_Leg. p. 258, c. 138, Act Apr. 18, 1907. Barck-

_ell v. State \[Tex. Civ. App.\] 106 SV 130,_

_following Ex_ _parte Vaccarzeza \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 497, 105 SW 1119;_

_Ex_ _parte Vaccarzeza \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 425, 106 SW 392. As to_

_proounds, and effect, see post, this section,_

_subdivision Revocation._

_50. Where dispensary was established in_

_city under Loc. Acts 1903, pp. 559, 562, city_

_had no authority to grant license. Collins_

_v. State \[Ala.\] 44 S 511. Where_

_judge issued license pending determination_

_of validity of dispensary act, which was_

_afterwards held valid. Id. No defense to_

_prosecution for sale without license. State_

\_v. MoIInvena \[S. D.\] 113 NW 878. A void 11-

_cense is no defense, as where the license_

_was issued by a body having no authority to issue it. State v. Labrode, 119 La. 410, 44 S 156._

_St. Acts 1903, p. 222, amendatory of_

_Code 1896, $ 4125. Johnson v. State \[Ala.\]_

_44 S 555. License to conduct barroom half_

_milie from residence did not authorize sale_

_at residence. Id._

\_52. **Bottler license under Act May 24.**

_1887, P. L. 134, held not to confer right to_

_sell inluckating liquors other than those_

_authorised to be sold under such a license_

_under Act 1858, to-vit, cider, Jerry, ale,_

\_porter, and beer. McTaggart's Bottler's Ll-

_cense, 32 Pa. Super. Ct. 560. Act July_

_30, 1897, P. L. 464, places wholesalesare and_

_Dottlers in different classes and exacts_

_different fees from each, and hence a_

_wholesale licenses under such act who has no bottle?s license has no right to buy_

_liquor in barrels, and then bottle and sell it._

_Stambaugh's License, 21 Pa. Super. Ct. 243._

_Wholesalesare' license authorizes sales in_

_amounts specified to any person, regardless_

_of whether such person is a jobber,_

_retaller, or consumer. Terre Haute Brew. Co. v. State \[Ind.\]_

\_$2 NE 81, Sess. Laws 1907, pp. 297, 298, c. 82, $$ 1, 2, 3, 5, was to prevent manufacturers, wholesalers, and jobbers from selling at retail, and not to prevent retailers from making occasional

_wholesale sales, Ex_ _parte Reusch \[Neb.\]_

_53. See ante this section, subdivlation Nature, Effect, and Scope of Licenses._

_54. Absence of consent of property owners required as condition to issue of license._

_In re Deuel, 55 Misc. 618, 106 NYS 1030._

_Since exemption in favor of premises already used for liquor traffic from necessity_

\_from receipt to the public tory," and the various statutes must be looked to in the determination of matters of practice and procedure," including questions relating to parties," pleadings," costs," and right to a hearing." Such proceedings are usually subject to review." A revocation absolutely cancels a license." When a board acts judicially in cancelling a license in proceedings of which it has jurisdiction of both the parties and the subject-matter, its decision is conclusive until set aside in appropriate proceedings." The right to a statutory rebate depends entirely upon the existence of all the conditions prescribed by the statute."

that proceedings are instituted upon soliciation of citizens of neighborhood in which

\[under Act May 13, 1887, P. L. 108, $ 7, with-saidon is situated is immaterial. Id. On demurrer to plea in quo warranto to vacate

\[under Act May 13, 1887, P. L. 108, $ 7, with-saidon is situated cannot be considered un-

\[only\] on giving respondent a hearing when re-

\[only\] on pisa in quo warranto to vacate

10 Cur. Law. **INTOXICATING LIQUORS SS 4.** 433

\_Payment and collection of fee or tax.\_See 8 C. L. 455--Acceptance of a license fee is not conclusive of the rights of the licensee. 46 The Ohio liquor tax is enforced by levy. 47 Under the various statutes there is conflict as to the right to recover a license fee from one doing business without a license. 48 Liability for a license fee paid in advance on an application which is refused can be discharged only in a manner authorized by law. 49 Fees collected by county officers belong to the county. 50

Footnote 53: The National Security Commission (N.S.

or in local option territory;" prohibition against giving or furnishing liquors in

Sweetman \[Ca1. App.\] 90 P 1069. One carrying on liquor traffic without a license is Haible both city for the amount of the license and criminally for violation of the law. Bingham County v. Fidelity & Dep posit Co. \[Idah0\] 88 P 829.

What em constitutes a sale? No sale where C. O. D. consignee agrees with another that if he will pay part of price he may have proportionate part of whiskey and the consignee pays the C. O. D, charges with the money thus obtained and his own and receives the whiskey, whereupon both parties take and use separate bottles in each other's presence in express office. State v. Johnson \[W. Va.\] 57 SE 371. Whether agent for foreign flour dealer through whom orders were sent to principal who shipped direct to purchaser was guilty of selling in state, held question of fact for jury, and hence conviction would not be disturbed. Commonwealth v. Tymanuer, 33 Pa Super. Ct. 604. Held for jury whether restaurant keeper who purchased liquors for her customers, making no profit thereon, was guilty of selling within meaning of license' law. People v. Journeau, 147 Mich.

520, 111 NW 95.

Proceedings liquor for another who furnishes money with which to buy it, the buyer receiving no compensation, is not a sale, though buyer at same time buys some for himself, mixes in same bucket with that bought for the other person, and afterwards divides it. Meadows v. State, 127 Ga. 283, 56 SE 404.

Express agent delivering liquor, shipped from without the state, to C. O. D, consignee and collecting therefor, is not guilty of selling such liquor, though he knows at the time that the consignee did not order such liquor. State v. Kenney \[W. Va.\] 57 SE 823. Sales by social and athletic club to members, without profit, is a sale within statute requiring license to make keeping of dramshops or selling of liquors legal. South Shore Country Club v. People, 228 III. 75, 81 NE 805. On prosecection for unlawful sale, the ownership of liquor by defendant is not essential to the offense but is proper to be considered by the jury. Whitteld v. State \[Ga. App.\] 58 SE 385.

Loan of whiskey to be repaid with whiskey ordered with money furnished to lender by borrower soon after the loan held a sale, though nothing was said at time of loan as to time or manner of repayment. State v. Brown \[Ark.\] 102 SW 394.

Knowledge and listen: Defendant's ignorance of intoxicating qualities of liquors sold is no defense, even though the liquors are sold to him under guaranty that they are not intoxicating. Haynes v. State \[Tenn.\] 105 SW 251. Belief that purchaser is member of a club does not justify sale to him though club has right to sell to members. State v. Warcchlik \[Conn.\] 68 A 379.

77. Pen. Code 1895, SS 428, as amended by Acts 1897, p. 39, is by its terms confined to counties wherein sale of intoxicating lliquors is prohibited by law, high license, or otherwise. Rose v. State, 1 Ga. App. 596, 58 SE 20. Such statute does not therefore apply to Bartow county. Id.

What constitutes sale: Purchasing liquor

## 10 Cur. Law.

INTOXICATING LIQUORS SS 4.

dence held such as to require instruction as

w wealth v. "Price & Lucas Clider & Vinegar to defendants' intent, there being evidence

Co. 31 Ky., L. R. 1350, 105 SW 102.

that if liquor sold was whiskkey, he did not

Evidence held sufficient to show sale and know it. Covington v. State \[Tex. Cr. App.\]

18 Tex. Ct. Rep. 187, 100 SW 370.

What constitutes sale: Receipt of price of

hold sufficient to support conviction for vio-

liquor and agreement to ship same in local

tation of local option statute. Baughman v.

option district, followed by shipment from

S state \[Tex. Cr. App.\]

9 SWV 116. Eviv. outside, held sale. McDermott v. Com., 30

Ky., L. R. 1227, 100 SW SW 830. Held sale where

C. O. D., consieme received money from an-

option territory. Dowdy v. Com., 31 Ky. L.

other, procured liquor, and gives part to

R. 33, 101 SW 338. Evidence held not to

such person. Walker v. State \[Tex. Cr. App.\]

20 Tex. Ct. Rep. 399, 106 SW 376. Bona

by a loan of money to the person who fur-

dde collection of money on account in order

then aying debtor some of the whiskey,

Evidence held sufficient to go to jury on

beld not a sale by borrowing money and

repaying it with whiskey. Britton v. State \[Tex. Cr. App.\]

Ball v. Com., 30 Ky. L. R. 600, 99 SWV 326.

\[Tex. Cr. App.\]

18 Tex. Ct. Rep. 780, 100 SW

Evidence held to sustain finding of sale of

148. Finding of guilty held authorized

where defendant who had paid third party

S1 for a share of whiskey in express office

C. O. D. agreed with prosecuting witness to

let latter have such share for $1, received

was sale and not merely procuring for an-

the $1, got the whiskey from express office

and delivered it to prosecutor. Hawkins v.

v. State \[Tex. Cr. App.\]

19 Tex. Ct. Rep. 106,

State \[Tex. Cr. App.\]

19 Tex. Ct. Rep. 259,

Gaton v. State \[Tex. Cr. App.\]

100 SW 956. Where one orders whiskey

through another which is kept for former

of furnishing of whiskey by hotel porter

by latter at a clabn house, the former has

to guest and payment by latter to former of

right to drink it and give it to his friends

minor for services held not to sustain con-

without being liable for selling. Alexander

v. State \[Tex. Cr. App.\]

19 Tex. Ct. Rep. 203,

102 SWV 1122. An express company is not

necessarily guilty of a violation of the local

option law because it carries whiskey into

a local option district and collects therefor

in the usual course of its business as a

common carrier. Adams Exp. Co. Y. Com.

S1 Ky. L. R. 812, 103 SW 721. In such case

the instructions should be limited to the

question of a sale by the express company.

Id.

Lonn by club member of whiskey to

stranger to be used as beverage held a sale

under local option law. Tombebayn v. State

\[Tex. Cr. App.\]

17 Tex. Ct. Rep. 472, 98 SW 1054; Henderson v. State \[Tex. Cr. App.\]

17 Tex. Ct. Rep. 809, 98 SW 1055. Loan or exchange of whiskey is a sale within local option state as is also exchange of any other

commodity for whiskey. Sparks v. State

\[Tex. Cr. App.\]

99 SWV 546. Where it appeared that defendant took prosecutors'

or for whiskey and then prosecutor borrowed whiskey from a third person who had

previously ordered it through defendant,

the loan to be repaid when prosecutor's

whiskey came, whereupon the defendant

livered to prosecutor the whiskey so borrowed, it was error to refuse to construct

that defendant was not guilty unless he

participated in the exchange otherwise than

as a mere matter of accommodation. Holland v. State \[Tex. Cr. App.\]

19 Tex. Ct. Rep. 235, 103 SW 631. Held error to refuse instrucu-

tion embodying special defense that defendant

and did not sell the whiskey to prosecutor

but merely took his order for same, deliv-

tered the order to third party, and afterwards delivered whiskey to prosecutor

which defendant thought was the whiskey

so ordered. Byrd v. State \[Tex. Cr. App.\]

19 Tex. Ct. Rep. 300, 103 SW 863. Where

goods are ordered from a distance, the sale

is made where the order is accepted and the goods are shipped to purchaser. Common-

wendily v. "Price & Lucas Clider & Vinegar

to defendant's intent, there being evidence

Co. 31 Ky., L

### 436 Intoxicating Liquors $ 4.

10 Cur. Law.

certain territories; 70 prohibition of the possession of liquors in certain territory, 80 or the bringing or shipping of liquors into such territory; 81 regulation of carriers; 82 designation of persons who may sell and regulation of such sales; 83 prohibiting

client where it showed that person got it prohibition district for liquors to be sent who was charged with getting it and gave it to another, and the one who got it sworse $ 6087. Id. Instruction on prosecution that it was his before he got it from defendant. Frazier v. State \[Tex. Cr. App.\], lation or receipt of orders within prohibition district for liquor to be sent into each held insufficient to authorize charge based district, held erroneous as leaving jury to on theory of defendant's being agent for person from whom he procured whiskey an order. Id.

for another, or that he was interested in the sale. Gaston v. State \[Tex. Cr. App.\], to violation of Rev. Laws, e. 100, $ 50, re-19 Tex. Ct. Rep. 130, 102 SWV 116. Heid a quiring carriers to keep record of liquors sale in prohibition town where defendant's delephoned it -- monwealth v. Kiley \[Mass.\], 81 NE 881. Vioting principal, and liquor was sent to the lation of Rev. Laws, c. 100, $ 50, requiring town for delivery. George H. Goodman Co., v. Com., w. Ky. L. 61, 59 SWV 252.

19, Ky. St. 1903, 8 255tr. subd., 2 does not prohibition the giving, procuring, or furnish- --persons in possession of premises from allowing liquors to be sold thereon; \[84\] pro-

seller to sell to several persons in order to

sales for illegal purposes, a ple that the titles than five gallons held subject to criticism that it did not sufficiently connect partnerships with such scheme. Id. Proper instructions suggested for case where defendant was charged with selling to several persons in quantities less than five gallons. Id. Whether sale by distillier was of three gallons and hence authorized by Rev. St. 1899, $ 3014 \[Ann. St, 1906, p. 1727\], or was of one-half gallon, held under evidence for jury. State, V. Turner, 125 Mo. App. 21, 102 SWV 599. Sale from warehouse operated near

disttillery and on same tract held sale at

place of manufacture. Commonwealth V. Oldham, 30 Ky. L. R. 1273, 100 SWV 1184.

Under Kirby's Dig. $ 5093, 5100, 5110, 5119,

growers of grapes or berries in the state

may sell vine made therefrom anywhere,

except where expressly prohibited in three

mile districts by order of the county court,

provided the sale is in such quantities and

in such manner as is prescribed by the statute. Bates v. State \[Ark.\] 99 SWV 388. Only

method of preventing sales of such wines

in quantities not less than one-fifth of a

gallon is by order of court upon petition

of majority of adult inhabitants praying

specially for prohibition against native

wines. Id. Whether sale was within Kir-

by's Dig. $ 5100, authorizing grape growers

to sell wine made on own premises in orig-

inal packages of not less than five gallons,

held for jury. Sluder v. State \[Ark.\] 106 SWV 486. Exemption of sales by hotel keeps

ers in connection with meals served from

the operation of prohibitive provisions is

not a violation of constitutional provision

with reference to uniformity of operation of

laws. In re Kidd \[Cal. App.\] 89 P 987.

Regulation of sales by drugsists in local

option territory is within police power.

Hutson v. Com. \[Ky.\] 105 SWV 955. Authorizing druggists to sell for medicinal purposes In local option territory is not un-

constitutional. Edgar v. State \[Tex. Civ. App.\]. 18 Tex. Ct. Rep. 309, 102 SWV 439.

102 SWV 385. Delivery by express company

Legislation may prescribe form of prescription.

Hutson v. Com. \[Ky.\] 105 SWV 955.

Druggit not protected where prescription

failed to give name of patient and was not

dated, as required by Ky. St. 1903, $ 2558,

and eight ounces were sold while prescription.

Exp. Co. v. Com., 31 Ky. L. R. 811, 103 SWV

tion called for only two, though it appeared

that the prescription was given in good

fath and was administered to the sick pa-

tent for whom it was intended. 1d. Con-

viction of sale without prescription in local

option territory sustained where evidence

was conflicting. Norris v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 527, 106 SWV 137. Sale

by drugsist on valid prescription after de-

mand upon him, under Code 1895, as

anended, art. 5060j, to file new bond, and

before compliance with such demand, is not

washington v. Smith \[Ky.\] 105 SWV 397. Term

a criminal defense. Holland v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 58, 101 SWV 1003.

Eror to emphasize good faith required of

of any freehold or greater estate. Id. Where

that good faith is not enough, but there

possession of the store, and that the liquor

must have been perfect good faith. People

was obtained by a boy in charge of the

v. Thompson, 147 Mich. 444, 111 NWV

Where sale by druggist is bona doe, the use

to which the purchaser thereafter puts the

105 SWV 413.

438
**INTOXICATING LIQUORS SS 4.** 10 Cur. Law.\*\*

visions against evasion of liquor laws; \*\* regulations as to place of consumption; \*\* prohibition of adulteration; \*\* denunciation of places where liquors are sold as nuisances; \*\* regulations of manner in which licensees \*\* must conduct their places of business; \*\* limitation of number of licenses to be issued; \*\* prohibition against\*\*

**SS5. Under Ky. St. 1903, # 2570, providing**

\*\*that no trick, device, subterfuge, or pre-

\*\*to sales of liquor. Rieger v. Tapper, 138 tense shall be allowed to evade the opera-

\*\*from a628, 110 NV 1028. Good faith of per-

**that holder in selling liquors of one in habit**

\*\*local option law, held violated where a boat of

**of using them as beverage and in keeping**

**took on a passenger in Kentucky, carried**

\*\*him to Missouri side of river, where he was

**to file reports required by Code, # 2387, will**

\*\*sold whiskkey, and brought him back to

\*\*to not prevent injunction against him as man-

**Kentucky, no fare being charged. Lemore**

\*\*running a liquor nuisance. Peak v. Bid-

**v. Com (Lx.); 105 NV 830.**

**sk. Allowing two or more persons to**

**with evidence held to sustain conviction for**

**drink out of same bottle constitutes so**

**being keeper of nuisance. State v. Corn**

\*\*many separate offenses under Laws 1905,

\*\*c. 64, prohibiting persons engaged in stor-

**if** **? 79; State v. Jepsson (Kam.) 92 P 600.**

**age of liquors in local option territory from**

**89. Sales under a license by one other**

**allowing liquors to be drunk in their place**

\*\*of business. Teague v. State (Tex. Cr. App.) 19 T. Tex. Ct. Rep. 214, 102 SW 1142. Room in

**which defendant allowed liquors to be**

**drunk held to be his place of business. Id.**

\*\*while the purpose of purchase may be an

**element of the offense of selling liquor**

**an unlawful purpose, it cannot be made**

**the basis of a conviction, such basis being**

**the purpose of the seller.**
\*\*Rout v. People,

\*\*the rooms to aname floor. Id. Room used

**123 Ill. App. 445. Instruction held to make**

\*\*purpose of purchaser to drink the liquor on

**adjacent premises instead of being based**

**on purpose of seller. Id.**

**an order of**
**for**
opening places of sale and against selling or furnishing liquors on certain days or at certain times; \[92\] designation of saloon limits; \[93\] and prohibition of sale in certain impose such limitation. Tracy v. Ginzberg, \[107, 111 NW 772. Licensee liable for acts of 205 U. S. 170, 51 Law. Ed. 755. **92. Laws 1897, p. 234, c. 312, $ 31, subd. g,** relating to admission of persons to saloons on certain days and times, does not cover rooms adjoining and opening into saloons but not constituting a part thereof. People v. Lupton, 52 Misc. 386, 20 Crim. R. 476, 103 NYS 172. **90. Sunday: Title of Act Feb. 23, 1903, entitled "An act to prohibit the sale of liquor on Sunday," held to cover prohibition against keeping places open for sale of liquor on Sunday. Beanvoir Club v. State \[Ala.\] 43 S 1040. Sale of liquor at a private club is included in a prohibitory act, Gen. Acts 1903, p. 64. Id. Under Const. art, 4, $ 23, prohibiting suspension of general laws for benefit of corporations, Acts 1890-97, p. 1160, authorizing social club to furnish In-toxicating liquors to members on Sunday, is invalid, though the act provides that such furnishing shall not constitute a sale, it being the general law that such acts do constitute a sale. Id. Club incorporated under Acts 1892, p. 19, c. 22, held brought by Acts 1893, p. 178, c. 246, and Acts 1904, p. 474, c. 278, within provisions of subtitle of Baltimore city charter relating to intoxicating liquors which in their nature are applicable thereto, and that such a club to which license has been granted by board of license commissioners is a licensee within subdivision of charter relating to sales by licensees on Sunday. State v. Maryland Club \[Md.\] 66 A 667. Bar room is a "tippling homes" within Sunday closing law. Kolman v State \[Ga. App.\] 58 SE 1070. Ordinance prohibiting liquor dealer from keeping open on Sunday any part of his house means any part of house connected with the liquor business, and thus construed is valid. Orme v. Tascumbia \[Ala.\] 43 S 584. Fact that between lunch counter on one side of room and bar on other there was on day alleged a heavy duck curtain, which obstructed the view of the bar but permitted passage thereto and therefrom, did not prevent opening of front door from being violative of statute. Id. A stock room in the rear of and opening into the bar room of a saloon, used as the stock room in this case was used, is a "place" within the meaning of the statute, and the opening of such a room on Sunday (by an alley entrance in this case) is in violation of the statute. State v. Strump, 6 Ohio N. P. (N. S.) 137. The requirement of $ 4364-20, that all places where intoxicating liquors are on other days sold or exposed for sale, excepted regular drug stores, shall be closed on Sunday, applies not only to the room in which the liquor is actually sold but to all other rooms actually used in connection with the traffic in intoxicants on other days of the week. Id. Saioon is "open" within Mills" Ann. St \[Rev. Supp.\] 8 is 1346, if access may be had to it by persons other than employees. Birmingham V. People \[Colo.\] 90 P 1121. **90. Finance of saloon by employees to clean it held violation of law prohibiting absolutely the opening of saloons on Sunday. People v. Tolman, 148 Mich., 305, 14 Det. Leg. N. **91.** 91.** 92.** 93.\*\* 94.\*\* 95.\*\* 96.\*\* 97.\*\* 98.\*\* 99.

vicinities; 94 prohibition of sale or furnishing to certain persons; 95 prohibiting certain persons from frequenting saloons.96

hence wthin the statute. Id. Ky. St. within meaning of prohibition. In re Rupp. 1903, $ 1575, enacted pursuant to Const. $ 43isc. 1, 105 NYS 467. Subsequent dedi- $ 154, prohibiting sale on general or primary election days, applies to general prohibited distance will not invalidate a seabed elections. Ford v. Mass, 30 Ky. L. R. license previously granted. In re Rupp, 55 425, 98 SVV 1015. A special election for a Justice of the peace in a militistic district is a state election within Pen. Code 1895, $ 446, prohibiting the selling and furnishing of liquons on days of election, state, country, or municipal, within two miles of an election precinct. Long v. State, 127 Ga. 285, 56 SE 424.

98. County license held not to authorize saloon outside of city saloon limits. Paul v. State \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 320, 106 SWV 448. Judgment of county court granting license in city held not res adjudici- $ 1061. On prosecution for sale within four designated. Id. Where the place where the order for liquor is given and the place of delivery are different, the former is the place of sale. McClure v. State \[Ala.\] 42 8 $ 131. Applicent for county license must take noticeable of city ordinance prescribing portions of city in which liquor may and may not be sold, where such ordinance has been properly enacted and published. Territory v. Robertson \[OkL.\] 92 P 144. Dallas city charter, $ 108, held not to exempt both sides of certain streets named as boundary of district in which city might prohibit sales of liquor. Garonzik v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 22, 100 SWV 974. Such regulation is not local option within Const. art. 16, $ 20, relating to local option. Cohen v. Rice (Tex. Civ. App.) 18 Tex. Ct. Rep. 460, 101 SWV 1052.

**Power to fix saloon limits** may be deleted gated to a city. Cohen v. Rice \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 460, 101 SWV 1052. Limitations as to place may lawfully be made under power to regulate, restrain. etc. Cooke v. Loper \[Ala.\] 44 S 78. Implied from authority to regulate. Timm v. Common Council of Village of Caledonia Station, 149 Mich. 323, 14 Det. Leg. N. 442, 112 NWV 942. Not implied from power to suppress. Id. Dallas city charter, c. 108, authorizing city to prohibit sales in certain places, held to authorize mere regulation, and hence was not violation of Const. art. 1, $ 28, as being a suspension of Sayle's Rey, City, St. art. 5060a, providing for occupation tax on sales of liquor. Garonzik v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 22, 100 SWV 274. Charter provision not void because it inhibits city from prohibiting sale'on city property and authorizes such prohibition as to certain other places. Id. No authority in general municipal incorporation act to fix saloon limits, and hence city incorporated under such act has no such authority. Ex parte Smith \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 165, 102 SWV 115; Id. \[Tex. Cr. App.\] 102 SWV 1124.

94. Under Laws 1896, p. 66, 113, 2 $ 24, as amended by Laws 1905, p. 1728, c. 677, $ 3, the exemption of places already used for liquor traffic from prohibition as to such traffic within 200 feet of a church does not apply to an application for renewal of license at such place. In re Clement, 107 NYS 205. Unfinished church held not a church to be
    Dispensary system,See s C. L. 500.--Dispensary acts are usually upheld.97 License laws are usually superseded by the dispensary system.98 A dispensary authorized to put liquors into packages before sold may bottle such liquors.99 Sales by dispensary system.98 A dispensary authorized to put liquors into packages before sold may bottle such liquors.

pensary commissioners after the abolition of the dispensary, are not even colorably legal.1 Intent is not an element of the offense of violation of the dispensary laws.2 The exercise by the governor of a discretionary power of removal of dispensary commissioners is not reviewable.8

Footnote 1: The author is grateful to the anonymous referee for his constructive comments.

Footnote 2: The author is grateful to the anonymous referee for his constructive comments.

Footnote 3: The author is grateful to the anonymous referee for his constructive comments.

Footnote 4: The author is grateful to the anonymous referee for his constructive comments.

Footnote 5: The author is grateful to the anonymous referee for his constructive comments.

Footnote 6: The author is grateful to the anonymous referee for his constructive comments.

Footnote 7: The author is grateful to the anonymous referee for his constructive comments.

Footnote 8: The author is grateful to the anonymous referee for his constructive comments.

Footnote 9: See post, SS 9, Civil Libabilities, etc.

Footnote 10: Bond given under liquor tax law, Laws 1856, p. 61, c. 112, SS 18.8 amended by Laws 1903, p. 1120, c. 486, is for benefit of state and not of private individuals. People v. United Surety Co. of Baltimore \[Add.\]

Footnote 11: Where breach charged was Sunday opening by clerk, It was error to exclude it.

ings to forfeit the license.14 The conditions of the bond need not be set out in each count of the declaration in such an action.15 A suit on a bond necessarily involves sufficiency and validity of the bond,16 and also its interpretation and scope.17 A defense 18 must deny all acts any one of which would constitute a breach of the bond.19 Sureties are not estopped by their principal's confession of guilt or his conviction for an offense constituting a breach of the bond.20 Sureties are relieved from further liability by a bona fide sale of his business by their principal.21 As in other

Footnote 23: The actions the credibility of witnesses is affected more or less by their interest in the action.\[22\]

SS 6. _Criminal prosecutions. A. General rules of criminal responsibility._ See SS 5. L. 500.--One sought to be charged with responsibility for violation of the liquor laws must be connected with such violation,\[23\] but for this purpose the 'doctrine of principal and agent may be invoked.\[24\] Both a corporation \[28\] and its

- bought the saloon from former propriator.
- Evidence held to support finding that sale recycling a power of attorney from, and conducted the business in his name, it was hours in violation of Burns' Ann. St. 1901, for the jury to determine whether there was a bona fide sale, relieving the sureties consent. McNulty v. State \[Ind. App.\] SS 1 of the former propriator from liability for acts of purchaser, or whether the transaction was a defined sale which would not relieve the sureties. Hilliker v. Part, 149
- Action, 44, 14 Def. Neg. N 497, 112 N 1116. Terminology of alleged purchaser as to whether he was the real agent of the for-, scope of his employment. In Massachusetts under propriter, and as to disposition of pro-,
- Let is not responsible unless in some way leged purchaser was not required to incrim-, the particulates in, countenances, or approves the number of attorney. Id. Sureties had
- The government of attorney was a mere sham to evade license law. Id.
- Change calling attention to fact that
- The witnesses were excise officers and cause-,
- In the case of the sale of liquors prohibited
- If they had the right to believe by their at the shop or establishment of the,
- If they had the right to believe by,
- If the agent or servant usually sonable, etc., held not error. Culliman v.
- Employed in conducting his business, is one Furthman \[N. J.\] 78 NE 898. Instruction of that class of cases in which the master forbidding jury to consider that plaintiff's
- Any properly be charged criminally for the witnesses were special agents of state com-,
- The suggestion of excise appointed pursuant to the foregoing cases that, if the sale is made
- The argument, in opposition to the will
- If the answer, and is in no way approved
- If the answer, are in no way approved
- If the answer is not inable. Instruction that jury might consider
- If the answer is not inable. Instruction that by might consider
- If the answer is not in conflict, it is not possible to use

## 10 Cur. Law. INTOXICATING LIQUOINS SS 6B.

officers \[10\] may be held criminally liable under the liquor laws. Several sales on different days without complying with the license and regulation laws constitute separate offenses.\[27\] Ignorance of the character of the liquor sold is ordinarily no defense.\[28\] Aiders and abettors are liable as principals.\[29\] Liability for violation of particular regulations is treated in a prior section.\[30\]

(SS 6) $B$. _Indictment and prosecution_. _Jurisdiction_. See * C. L. 608\_--The jurisdiction of the various courts depends upon statute.\[31\] An indictment sometimes may lie in any one of several counties \[32\] or even several states.\[33\]

_Indictment, information, or complaint_.\[86\] See * C. L. 500\_--While in some states a general allegation of a sale contrary to law is sufficient,\[34\] and while an indictment or information under the liquor laws may often be sufficient if in the language of the statute,\[35\] as a general rule the facts constituting the offense must be alleged,\[36\] and

improperly what was within it. Most certainly a principal cannot escape civil liability 245.

for his agent's negligence by instructing him not to be guilty of negligence.' The Iowa statute under which this prosecution C. Comp. # 2153, providing that one who was had provided that it should be unlawful as and abets a crime is a principal. State for any person 'by agent or otherwise' to * V. Carmody \[Or.\] 91 P 446.

sell intoxicating liquors to persons in the * 30. See, same, # 4.

habit of becoming intoxicated; but the court * S. St. 1903, # 1141, circuit did not rest its decision on the wording of * 30.

court has jurisdiction of prosecution for this statute, but upon the general principle * S. L. R. 428, # SW 1015.

liable for the acts of his servant within the scope of his employment. In the Michigan Case the Keeper of a hotel was prosecuted * S. L. R. 428, # SW 1015.

for the act of his clerk in selling liquor on * S. L. R. 428, # SW 1015.

sunday. The point was made that, as there was no evidence to show that the propritor * S. L. R. 428, # SW 1015.

consented to the sale or to the opening of the bar, he was not liable for the acts of his clerk. But Judge Cooley, writing for * S. L. R. 428, # SW 1015.

can be no crime without a criminal intent; but this is not by any means a universal country to another is indictable under Pen. rule. Many statutes which are in the nature of police regulations, as this is, impose crimin- * S. L. R. 428, # SW 1015.

inal penalties irrespective of any intent to * S. L. R. 428, # SW 1015.

violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation * S. L. R. 428, # SW 101.

a.d. This court in Locke v. Comm. 113, # 101 Am. St. Rep. 374,

118 X. R. 428, # SW 763, # SW 765, approved an instruction which told the jury that, if the sale was made by an authorized agent or clerk in the regular course of business, the defendant was guilty."-From City of Paducah v. Jones, * S. L. R. 858, # 917.

25. L. L. R. 858, # 101 SW 917.

01. Liable where agent, in course of business, delivers or knowingly allows to be delivered, intoxicating liquors to a minor. Southern Exp. Co. v. State, 1 Ga. App. 700,

58 SE 67.

26. Responsible, regardless of purpose for which corporation was organized. State v. Collins \[R. J.\] 67 A 796. One cannot evade responsibility for violation of the liquor statutes by organising a corporation and acting as its agent or officer, and in such case he will be liable for violations by other corporate agents. Id.

01. Hence, plea of former conviction of sale on another day than the one charged question on its face merely question of law upon which defendant was not entitled to jury trial. State v. Potter, 125 Mo. App. 465, # 102 SW 668.

01. State v. Rennaker, 75 Kan. 685, # 90 F.

24.5.

29. One aiding and abetting in an unlawful sale is liable as a principal, under B. & Iowa statute under which this prosecution C. Comp. # 2153, providing that one who aids and abets a crime is a principal. State for any person 'by agent or otherwise' to * S. L. R. 428, # SW 1015.

01. One aiding and abetting in an unlawful sale is liable as a principal, under B. & Iowa statute under which this prosecution C. Comp. # 2153, providing that one who aids and abets a crime is a the facts must be proved as alleged.37 Whether or not it is necessary to allege any particular fact depends upon whether such fact is an element of the offense.38 Exclination of such liquars, an allegation of keep- ing being sufficient, since it implies possession, and being found in possession be- for maintaining nuisance the time of the ing merely evidence of the keeping. Ford sales is, subject to the statute of limitations, v. State \[Neb.\] 112 NW 606, Allegation that place where liquor was sold was anstame, held insufficient in absence of weapons as to the "when" and "where" of allegations as to legality and manner of the commission of the offense as charged in such sales keeping of such place. Sopher v. State \[Ind.\] 81 NE 913.

01. Indictment under Acts 1900, p. 141, c. 104, $, so for occupying house in which unlawful sales of liquor were made, not sustained by proof of occupancy of a house owned by a person other than alleged owner of house described in indictment. Levy v. State, 89 Miss. 394, $2 $76. No variance, where indictment charges defendant as print- and evidence shows that he did and abetted the offense. Kittrell V. State \[Aia\] 44 S 609. Distribution by direct and indirect sale within statute forbidding both is as to manner and not as to whether made by a person or his agent, and hence there was no variance where direct sale, v. State v. Orderin, 55 Mont, 482, $9 $14. Where the indictment charges the furnish- ing of three or more kinds of liquor, evidence showing that any one kind was- pribed is sufficient. Southern EXP. Co., Jobsters State, 1 Ga. App. 700, 58 SE 67,

01. Character of liquars: Where the statute expressly prohibits the sale or keeping for sale of a particular class of liquars. Indictment therender need not allege that such liquars are intoxicating. State v. York \[N. H\] 65 A 685. Alllegation that defendant kept for sale "when- whiskers" and "older", held sufficient under Pub, St. 1901. , c. 113, $15, as amended by Laws 1905, p. 528, c. 116, relating to sale of "spiritons or distilled liquars." Id.

Knowledge or intent: Allegation of know- edgo in indictment under Laws 1901, p. 18, c. $, so $, so $, for allowing minors to gamble in saloon, is surplusplace. Church v. Territory \[N. H\] 91 T20. Under Rev. St. 1899, p. 3050 \[Lan. St. 1901, p. 1750\], denouuncing issue of prescription for intoxicating liquars to be used otherwise than for medicinal purposes, an information which failed to allege that the prescription was issued for the purpose denouunced was fatally defective. State v. Davis \[Mo. App.\] 102 SW 102 SW 102 SW 102 SW 103.

Time: Code, $, $77, diagnoses with necessity of alleging particular time of sale with- outlicense. Coleman v. State \[Ala\] 43 S 115. Conflict to allege is only in which case of allegation particular time of sale with- outlicense. Coleman v. State \[Ala\] 43 S 115. Gen. Laws 1895, p. 102. $7, expressly provides that time of sale or keeping need not be alleged, and, where the offense is made not a continuation, proof may be made of any violation of statute within times mentioned. State v. Collins \[R. J\] 67 A 768. Under Acts 1901-02, p. 765, c. 658, prohibiting liquor traffic in Matthews county, where office was charged as having been commit- and "when" the state was not bound to elect to prosecate for sale on any particular day within such two years.

Cense need not be alleged. Lawson v. State \[N. H\] 65 A 768. Under Acts 1901-02, p. 765, c. 658, prohibiting liquor traffic in Matthews county, where office was charged as having been commit- and "when" the state was not bound to elect to prosecate for sale on any particular day within such two years.

Cense and not be alleged. Lawson v. State \[N. H\] 65 A 768. Under Acts 1901-02, p. 765, c. 658, prohibiting liquor traffic in Matthews county, where office was charged as having been commit- and "when" the state was not bound to elect to prosecate for sale on any particular day within such two years.

Cense and not be alleged. Lawson v. State \[N. H\] 65 A 768. Under Acts 1901-02, p. 765, c. 658, prohibiting liquor traffic in Matthews county, the place of sale without license, v. State \[Ala\] 43 S 115. Conflict to allege is only in which case of allegation particular time of sale with- outlicense. Coleman v. State \[Aia\] 43 S 115. Conflict to allege is only in which case of allegation particular time of sale with- outlicense in parallel.

Cense and not be alleged. Lawson v. State \[N. H\] 65 A 768. Under Acts 1901-02, p. 765, c. 658, prohibiting liquor traffic in Matthews county, where office was charged as having been commit- and "when" the state was not bound to elect to prosecate for sale on ceptions not contained in the enacting clause of the statute need not be negative." Whether it is duplicity to charge more than one violation of the law in a single count depends upon whether the several violations constitute separate offenses.40 An indictment may be broad enough to cover the violation of several laws by a single dct.

Prosecution may, in some states, be upon information or complaint.42 Indictments under the liquor laws may be amended as in other cases.43 The same technical accuracy is not required as in cases of final prosecution.44

Indictments for violation of the local option laws are subject to the same general rules that control other indictments under the liquor laws,45 but the de-

chaser need not be alleged though the de-
it would rely on. Kittrell v. State, 89 Miss.

fendant was a druggist, the prosecution,

66, 42 S 609. Act 1906 did not affect previous trials. Id.

such. State v. Potter, 125 Mo. App. 465, 102

5W 688. Indictment must charge sale to

not construction under either Code Pub. Gen.

nfined person or to person expressly stated

to be unknown. State v. Tisdale \[N. C.\] 68

liquor on Sunday by any person, or under

SE 998. Revusal 1905, 5 2060, making possess-

Baltimore City Charter, 6 822, prohibiting

sion of United States license prima facic

evidence of guilt of act authorized by such

State v. Maryland Club \[Md.\] 66 A 667.

license, does not dispense with necessity of

42, Under Code Cr. Proc, 308, and Ky. St.

stating name of purchaser or that he is un

known. Id. Allegation of sale to persons

cuted by information in city police court, in

unknown is suffcient. State v. Dowdy \[N. C.\] 58 SB 102.

Goodman Co. V. Com, 30 Ky. L. R. 519, 99

39. Neguiving exceptions, by allegation

that sale was not made through a dispens

sary, held not to affect validity of indictment, such exception not being contained in

the enacting clause. Scott v. State \[Ala.\] 43 S 181. Allegation in indictment, charging

unlawful sale in Wilcox county in which

sales of liquors are prohibited by Acts 1882.

83, p. 234, that sale was outside of Canden

precited, held not to affect validity of indictment, but only to circumscribe venue,

whether the allegation was to negative the

does that the sale was through a dispens

s authorized in such precinct by Acts 1800-01.

p. 1082, or was intended for some other purpose. Id.

40. Allegation that defendant sold P., R.,

and C., each one drink of whisksky, held bad

sales alleging three distinct sales to three

distinct parties. Alexander v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 203, 102 SW 1122.

Sale by druggist without making record

euired by Comp. Laws 1897, $ 6381, and fail-

ure to report sale to prosecuting attorney

as required by Acts 1889, No. 183, p. 280,

$ 25, are separate offenses and cannot be

joined in a single count. Chase v. Van

Buren Circuit Judge, 148 Mich. 14, 14 Det

Leg. N. 73, 111 NW 750. Offense defined

by Pen. Code 1895, $ 444, may be alleged by

alleging sale to more than one minor.

Southern Exp. Co. v. State, 1 Ga. App. 700,

$ 58 EE 67. On prosecution for nuisance, allegation of several sales on different dates

does not render the information duplictous.

State v. Giroux, 75 Kan. 95, 90 P 249. Evt-

dence held not to require detection between

sales testified to as being made by defendant's wife at his store and sales testified to

sales being made by defendant in person, since

frequency of sales by wife might authorize

inference that she was acting as his agent.

Guarreno v. State \[Ala.\] 42 S 833. Where

inidictment charged unlawful sale without

license, defendant could, under law obtain

ing prior to enactment of Code 1906, $ 1762,

compel state to elect the particular sale that

that is, 1 cision of the various states are in conflict as to the necessity of alleging compliance with the conditions and requirements necessary to put the local option law into effect in a particular community.\[46\]

such conviction is harmless where defendant

in convicted of offense charged. Gorman v.

for hire. McGuire v. Com., 30 Ky. L. R. 720, State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 876, 99 SWP 612.

105 SWP 200. Under Cr. Code 1886, 9 5077, 46. State v. O'Brien, 35 Mont. 482, 90 P-violation of local law may be shown under 514. Complaint held to state sufficient com-indictment in code form. Tonsey v. State \[Ala.\] 44 88 188. Indictment under local option state applicable. Id. Smith law, 15 \[Laws 1950, p. 48\], in language

of statute held sufficient, the offense charged

election and to put law in force. State v.

being only a misdemeanor. State v. Car-

Hicheock, 124 Mo. App. 101, 101 SWP 117.

mody \[Or.\] 91 P 1081. Indictment for sale

When prosecent unnecessary alleged election in 1903, and defendant proved that at

without license. Dowdy v. Com., 31 Ky. L.

time of offense charged the law of 1306, F-R. 33, 101 SWP 338. Affidavit that defendant

plain law of 1903, was in effect, the prose-did sell, in certain county, "spirtitious, viinous,

cution under law of 1903 could not be main- or malt liquons, without a license and contrary

tamed. Byrd v. State \[Tex. Cr. App.\] 19 Txv.

to law," held sufficient to charge offense un-

Ct. Rep. 300, 103 SWP 863. Under Laws 1905,

der local option law. Dillard v. State \[Ala.\]

p. 47, c. 2, $ 10, the order of county court

44 S 537. Code 1896, $ 5077, provides that

declaring result of election is prima facie

charge of sale contrary to law is sufficient

to charge violation of general law and also

and it is only necessary to allege and pro-

of special law applicable to particular

places. Gurnero v. State \[Ala.\] 42 S 833.

P 446. Allegatation that order of county court.

In indictment under Local Option Law \[Laws 1905, p. 48\], $ 15, exceptions and provisions

according to direction of such court renders

need not be alleged. State v. Carnody \[Or.\]

of 1 P 1081. Allocation of selling, giving or

being the only authority authorized to cause.

otherwise disposing of intoxicating liquors

"without a license and contrary to law and

App.\] 103 SWP 394; Graf v. State \[Tex. Cr.

being manifestly framed with respect to

App.\] 102 SWP 1133; Doyal v. State \[Tex. Cr.

local prohibition law applicable to Jefferson

App.\] 102 SWP 1133; Green v. State \[Tex. Cr.

county, Acts 1888-89, p. 417, sufficiently nega-

App.\] 102 SWP 415; Killman v. State \[Tex.

tived the exception in such statute of cer-

C. App.\] 101 SWP 404; Rucker V. State \[Tex.

tain town an and cities in such county from

C. App.\] 101 SWP 803; Rucker V. State \[Tex.

operation of the law. Gurnero v. State

\[Ala.\] 42 S 833. Only exception to provisions

App.\] 101 SWP 803; Cliff v. State \[Tex. Cr.

of xy. St. 1903, $ 2657, 2557a, forbidding sale

App.\] 101 SWP 803; Wharton v. State \[Tex.

of viinous, etc., liquons in local option territory being under 2553 authorizing sale

C. App.\] 101 SWP 803; Edamus V. State \[Tex.

by manufacturers at place of manufacture

in quantities not less than five gallons, an

nictment for sale in local option territory

need not specify that sale was at retail.

Dowdy v. Com., 31 Ky. L. R. 33, 101 SWP 338.

General allegation of sale without specify-

ting place held not bad because there were

incorporated towns and cities in the county

\[Tex. Cr. App.\] 18 Tex. Ct. Rep. 719, 99 SWP 1002; Peeples v. State

not subject to the county prohibition act,

and that it did not appear whether the

charge was for violation of city or county

laws. McGuire v. State \[Ala.\] 42 S 813. Indictment for selling spirtitious, viinous and

mail liquons, and a "mixture thereof" held

not defective as falling to give sufficient

description of liquor in that it did not * 10Cur. Law. 1179. 1102. 1103. 1104. 1105. 1106. 1107. 1108. 1109. 1110. 1111.

license.\[86\] The burden is on the defendant to show that a local option election was invalid.\[56\]

As in other cases, the evidence must be relevant \[87\] and competent.\[58\] Evidence of receipt of liquors about the time of the offense charged is admissible on a prosecution for a sale,\[59\] and evidence that defendant took orders for liquors is admissible to show a storage of such liquors,\[60\] but evidence that he was a whiskey drummer and it is incumbent upon the defendant to prove that such room was a restaurant. Ellis v. EExp. Co. v. State, 1 Ga. Apr. 700, 58 SEE 67. Witness that he went into "This place of business," etc., held to refer to defendant's place of business. Lamble v. State \[Ala.\] 44 S S1. 58. Testimony that witness heard people say that whiskey could be obtained from defendant and that latter was selling it. Gorman v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 876, 105 SW 200. Hearsay inadmissible to prove running of "blind tiger." Gorman v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 46. 106 SW 384. On prosecution for running a "blind tiger," original express or freight books may be introduced to show that defendant received liquors considered him, but such fact cannot be shown, freight receipts license. Lamble v. State \[Ala.\] 44 S1. 56. Where judge's certificate certifies the facts required by law to be certified, the burden is on one attacking the validity of the election to show that preliminary matters were not performed as required by state. Neal v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 406, 102 SW 119. Where orders of commissioners' court showed legal election and the result in favor of prohibition, and were sufficient to put local option into effect. It was not necessary for state to introduce parol evidence of publication or posing of notices of election. Id. Burden is on defendant and to show that notice of the election was not properly given, and hence, though state introduced evidence on the subject, the court was not required to submit the question to the jury, where defendant introduced no evidence on such question. Id. Where state showed valid election resulting against sale, the burden was on defendant to show prior election within two years and that it was in favor of sale. Holland v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 60, 101 SW 1002; Id. \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 58, 101 SW 1003. Where defendant proves that there was a prior election within two years, but did not produce complete record showing that it was valid, the court would presume in favor of the subsequent election that something happened to render the prior election nugatory. Holland v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 60, 101 SW 1002; Id. \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 58, 101 SW 1003. 57. Since anyone who sells to minor without consent of parent or guardian is criminally liable under Ann. St. 1906, p. 1397, on a prosecution against a clerk for such a sale, evidence that his employer was a licensed grandsmob Reeper was irrelevant, regardless of whether clerk would be liable under Gen. St. 1905, $ 2009, as amended by Ann. St. 1906, p. 174, which is held applicable only to licensed dramshop Keegers. State v. Gallagher \[Mo. App.\] 106 SW 111. Exclusion of evidence as to character of room charged to be wine room within Sess. Laws 1801, p. 315, received free samples is not admissible on prosecution under the local option law.\[41\] Evidence of things found upon a search and seizure is admissible on a prosecution for an unlawful keeping for sale,\[82\] or for conducting a liquor nuisance,\[83, 64\] or for a sale without a license,\[85\] but a search warrant and the return thereon is not admissible to show what was found on the defendant's premises.\[60\] The character of liquor may be proved by either direct\[67\] or circumstantial evidence.\[68\] It may be proved by expert testimony as to chemical composition,\[90\] or by nonexpert testimony as to its effect.\[70\] On such an issue testimony as to the look and taste of the liquor is admissible,\[71\] as is also testimony as to the conduct of persons near the place of sale.\[72\] Analysis of other liquors is not admissible upon an issue of the intoxicating character of a particular liquor,\[73\] but evidence of sales by others of the same liquor and that it was intoxicating is admissible.\[74\] Refusal to violate the law at other times is inadmissible in defendant's behalf.\[75\] Evidence of complaints of other sales by

Civ. App.J 19 Tex. Ct. Rep. 215, 102 SWV 1141.

On prosecution under Laws 1905, c. 64, against one engaged in storage of liquors in local option territory, for allowing liquor to be drunk in his place of business, evidence that defendant took orders for whis-key and stored it for the purchasers was admissible to show that defendant stored whis-key at his place of business where the act charged was committed. Teague v. State \[Tex. Cr. App.J 18 Tex. Ct. Rep. 214, 102 SWV 1142.

**Gl.** Held error to require defendant to testify as to fact that he had for some time previous to alleged sale been whiskey drum-mer to whom free samples were furnished in proportion to sales by him. McKinley v. State \[Tex. Cr. App.J 20 Tex. Ct. Rep. 350, 106 SWV 342.

**Gl.** Where there was evidence tending to show that defendant was in control of the premises, evidence that bills found there at time of his arrest for liquor and other goods apparently relating to the business were made out in his name held admissible as tending to show that he was the propritor. State v. Ford \[Xam.\] 91 P 1068.

**Gl.** Fidd.\*\* Exhibition to jury of articles taken from place charged to be a nuisance held not error, though it was not shown that some of the bottles exhibited contained intoxants. State v. Giroux, 78 Kan. 695, 90 P 249. Bills and accounts found in place alleged to be public nuisance are admissible against defendant charged with keeping such nuisance, without further evidence connecting him therewith, to show the kind of business conducted. State v. Corn \[Xam.\] 91 P 1067. Evidence that empty bottles were found in and about defendant's premises held admissible for what it was worth. State v. Collins \[R. L\] 67 A 798. Held proper to ad-mll evidence of acts and conditions between June 1 and Oct. 17, where date laid was Oct. 17. No error to allow the jury to taste liquors sleared at the place where the unlawful keeping for sale is charged. Weinandt v. State \[Neb.\] 113 NVV 1040.

**Gl.** Bottle of whiskey forcibly taken from defendants person is not admissible if he was illegally arrested, but if he legally arrested, it's residence or defendant is inadmissible.74 A sale to one person cannot be predicated upon a sale to another,77 and where a single sale is in issue, evidence of other sales is not admissible,78 but such evidence is admissible to show an unlawful selling and keeping for sale 78 or to prove system,80 or defendant's identity.80a So, also, evidence of other transactions is usually admissible on an issue of intent on prosecution for other offenses,81 and evidence of keeping for sale at prior dates is admissible as a basis for inference of keeping on the day charged.82 On such a prosecution evidence of the keeping of other kinds of liquors than those charged is admissible.83 Questions as to the admissibility of other transactions also arise on prosecution for other offenses.84 Defendant must be connected with any acts proved.85 Where the par

76. Town of Brighton v. Miles \[Ala.\] 44 S \[tem. Holland v. State \[Tex. Cr. App.\] 19 394. 77. Sale of whiskkey to one person cannot other sales held admissible to show system be predicated solely upon sale of whiskkey to his companion at same time. Walls v. State \[Tex. Cr. App.\] 100 SW 570. 78. On prosecution for selling without a license and contrary to law, evidence must be cothned to a sale. Code 1896, & 5077. 80m. Dillard v. State \[Ala.\] 44 S 537. Where **Fried to election** to prosecute for a single offense the range of testimony as to other sales need not be limited. Dillard v. State \[Ala.\] 44 S 537. On prosecution for misdemander under local option law, there was no error in admitting evidence of other sales where prosecution was not required to elect upon which sale a conviction would be asked. **Smith v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 20, 100 SW 553.**

After such election such testimony must be limited to the exceptional cases in which and purposes for which it is admissible. Dillard v. State \[Ala.\] 44 S 537. Evidence of other sales is not admissible where the state elects to prosecute for a specific sale. McClure v. State \[Ala.\] 42 S 813. Where several sales constitute a single transaction, evidence of all of them is admissible though only one is specifically charged. Sales made to prosecutor and a witness who went to defendant's place to secure evidence against him. State v. O'Brien, 35 Month. 482, 90 P 514. Error in ruling that evidence of other sales would be admitted held harmless where the evidence produced related only to sale charged. Rice v. People \[Colo.\] 90 P 1031. Evidence of prior sales of same or similar kind of liquor held not prejudical error in trial by court without jury, it appearing that purpose of such evidence was to show kind of liquor sold. Peoples v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 719, 99 SW 1002. 79. Evidence of previous sales of same goods held admissible on prosecution for selling and offering for sale. State v. Gillis-ple \[V. Va.\] 59 SE 597. Offense is continuing and hence evidence of similar conditions before and after date named is admissible to show intent, and while such evidence must be confined to reasonable limits, such limits are usually left to the discretion of the trial judge. State v. Collins \[R.\] 67 A 796. Evidence of other sales admissible on prosecution for running "blind tiger." Gorman v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 406, 106 SW 384. On prosecution of druggist for sale by boy in his employ without prescription, evidence of other sales by defendant without prescription held not admissible to show sys-defendant.85 Where the par * 10 Cur. Law. **IntoxicATING LIQUORS SS 6B**.
*ticipation or countenance of the principal is essential to his liability, evidence of instructions given to the agent is admissible.* In some instances the possession of a United States internal revenue license is a proper subject of inquiry,\* and in some state such license is rendered admissible by statute.\* Certified copies of records are admissible to prove that the local option statute was in effect in a certain county.\* Evidence of the statements of the purchaser as to the purpose for which he wanted the liquor is admissible as bearing on the punishment,\* but the exclusion of such evidence is harmless to the defendant where he receives the minimum punishment.\* A question asked the prosecuting witness whether he was out looking for evidence is too indefinite to require an answer.\*

- The same degree of proof is required as in other criminal cases.\* Sufficiency of the evidence to show violation of particular prohibitory or regulatory laws is treated in a prior section.\* When the evidence makes a prima facie case of an illegal sale, the question of guilt is for the jury.\* The court is not required to make the result of the case depend upon whether other sales proved by the state were of intoxicating liquor.\* Presence of liquor in a place charged to be a nuisance where defendant was not connected with such transactions. Gorman v. State \[Tex. Cr. App.\] v. Dowdy \[N. C.J 68 SE 1002. Such list, being an official paper or record by virtue of Rev. St. U. S. $ 240 \[U. S. Comp. St. 1901, p. 2093\], $ 50, requiring carriers to keep certain records of liquors delivered in certain class of **1616**, 1617. Id. Since officers of internal towns. Corn v. Riley \[Mass.\] $1 NE 881.
- 87 Where, on prosecution for violation of such department from testifying as to local option law, defendant testified that he proves only running a pool room and selling private of constitutional right to be condiersars and tobacco, it was permissible to conduct with witnesses against him by introduction him to be asked on cross-examination of such records. Id. There being no if he did not have an Internal revenue license. Senso v. State \[Tex. Cr. App.\] 19 \[Tex. Ct. Rep. 113, 101 SWV 224. Where defendant and another were doing business to prove that defendant gether, it was competent to prove that latter had Federal liquor license. Suggs v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 123, 101 SWV 999. Since weight of evidence that defendants had taken out a Federal license depends **89**, Copy of order of commissioners develop the intent with which such license was claring result of election and of publisher's taken out, defendant should be allowed to withdraw as to publication. State v. O'Brien, testify as to his intent in such regard. State **35**Mott. 482, 00 P 514.
- 90 Objection that record of county court of v. Morin, 102 Mo. 290, 66 A 650. Where offense was charged as having been committed with: **fered to prove granting of license was "in-in past two years, but United States license** competent, irrelevant, and immaterial." held covered only last part of such two years, it too general to save question for review. was error to give instruction that possession \*\*State v. Meagher, 124 Mo. App. 333, 101 SWV of such license within such two years was **634**.
- 91 We introduce of selling, since instruction might be true and yet there be no evidence of sales by: **10**Huff v. State \[Tex. Cr. App.\] 19 Tex. Ct. between the beginning of the two-year period and the date of the United States II- cense. White v. COM. \[Va.\] $9 SE 101.
- 92 Question asked prosecuting witness **88**. We introduce **89**. We introduce **89**. Question asked prosecuting witness **89**.

liquors are kept for sale makes a prima facie case that such liquor was kept for unlawful use or sale.97 The possession of a United States internal revenue license is given more or less probative force by the statutes of some states.98 The testimony of special agents of the excise commissioner who have operated gambling devices in saloons in order to obtain evidence of violations of the law is not to be treated as the testimony of gamblers.99 An order granting license is conclusive evidence of issue of license but not of its delivery to licensee.1 Even where the court does not judicially notice that a local option statute has become effective in a particular locality, the state need not prove that the election was in all respects regular,2 and the court, and not the jury must inquire as to whether the statute had become effective in the locality of the offense charged.3 Review of evidence by an appellate court is confined to same limits as in other cases.4

Footnote 16: http://www.

state.\[10\] Where a local option election resulting in prohibition is duly proved, the court should instruct that local option was in effect.\[11\] Failure to give a pertinent definition is not necessarily reversible error.\[12\]

_Punishment._See * C. L. #16__. The punishment imposed for the violation of liquor laws must be such as is authorized by the statute \[18\] applicable to the particular violation proved,\[14\] and must not be excessive.\[15\] Several penalties are sometimes provided for the same offense.\[16\] Municipal charter provisions as to punishment may be invalid because in conflict with general laws.\[17\]

**SS 7**. _Summary proceedings._See * C. L. #16__. Provision is sometimes made for the seizure of liquors used in violating the liquor laws.\[18\]

Com., 31 Ky. L. R. 816, 104 SVW 263. Instruction that question to be determined was whether defendant permitted a certain woman, "who was, in fact, under the age of 21 years," to remain in saloon held not to assume that the woman was under 21. State v. Baker \[Or.\] 92 P 1076.

16. Hold error to refuse charge that defendant was not guilty of violating local option law if he gave the whisker and did not sell it. Harrison v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 141, 105 SVW 804. It was error to ignore in an instruction a specific contention that a particular patent medicine was not capable of being used as a beverage, where evidence was produced to sustain such contention. Mason v. State, 1 Ga. App. 534,

58 SE 139. No error to refuse to charge as to necessity of defendant's intention to make the sale charged, where evidence showed delivery of liquor following payment of money for which defendant did not thereafter regard himself as bound to return or repay.

Harrison v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 718, 99 SVW 1166. Where on prosecution under Laws 1905, c. 64, p. 91, against one engaged in storage of liquor in local option territory, for allowing liquor to be drunk on premises, it appeared that the act charged was done by defendant's employee, and evi-

455

dence of defendant's knowledge or permission of such act was entirely circumstantial,

it was not sufficient to give affirmative charge that defendant was guilty if he permitted the act, but the court should have

16. Under Rev. Pol. Code. $2848-2860,

charged also that he was not guilty, unless he knew or had reason to know of such act at the time of its commission. Tease v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 215,

102 SWV 1141; Id. \[Tex. Cr. App.\] 102 SWV 1144.

**11.** An instruction that local option was in effect is proper where the order putting the result of the election into force was regular and was duly published. Teague v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 215, 102 SWV 1141. Not error to instruct that sale of liquor is prohibited by law in certain country instead of reading the prohibitive statute to the jury. Yancey v. State \[Ga. App.\] 58 SE 546. Where the county judge had made

16.0
8\. _Abatement of traffic as a nuisance; injunction_,See S C. L. 316.--Where traffic in liquors is declared to be a nuisance,\[19\] it may be enjoined \[20\] at the instance of any proper party.\[21\] No notice of an application for a temporary injunction is necessary.\[22\] The same formality as to notice, however, is required by statute as in other cases.\[23\] Defensive matter need not be alleged by the petitioner,\[24\] nor is it necessary for the complainant in contempt proceedings for the violation of such an injunction to prove such matter.\[25\] Abandonment of the business sought to be enjoined after a preliminary injunction has been rightfully granted will not necessarily prevent a final injunction from issuing.\[26\] Costs, including attorney's fees, are taxable on the grant of an injunction,\[27\] and also in contempt proceedings for the violation of the injunction,\[28\] and in proceedings to enjoin the enforcement of such injunction.\[28\] The injunction, when granted, is in the nature of an incumbrance upon the use of the place enjoined.\[30\]

_Civil liabilities for injuries resulting from sale_,See S C. L. 317.--Under the various statutes a sale or furnishing of liquors\[31\] to certain persons or persons who

fect the validity of the rest of the act.

Question of validity of former. Ex parte Meyers v. State \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 800, 105 SWF 48. No petition is necessary because it authorizes injunction on inverlatoindering a seizure under the act, Juris-

fled petitions of state officials. Id.

diction being acquired upon filing of com-

**21.** No jurisdiction where notice shows

**plant** as provided in S 1. Id. Complain must

that suit was not instituted by county at-

allege that local option is in effect in the

terriory where liquors are stored. Id.

Laws 1907, D. 156, c. 77, authorizing searches

that plaintiff attorney was not employed

and seizures with relation to liquors stored

in local option territory, does not deprive any

were interested in prosecution of suit, held

one of property without due precess of law,

no defense, where petitioner was duly qualitil-

Ex parte Dupree \[Tex.\] 19 Tex. Ct. Rep. 851, 105 SWF 483. Though circuit clerk is not

informed under Kirby's Dig. $137, to

issue warrant for seizure of liquor kept in

inomer is immaterial. Id.

prohibited district, yet, where such liquor

was seized under such a warrant and thus

temporary injunction in a suit for a permanent injunction is necessary. State v. Pepson

**remedy** of owner was by way of the hearing

**22.** Yes. Code, S. 2405. Beck v. Vaughn, 134

result of such a hearing was against him

Laws, 331, 111 NWF 994. Notice held insuffment. Id.

client. Id.

v. Parker \[Ark.\] 103 SWF 165. Owner may

\*4. That place alleged to be nuisance was

replexy as soon as liquor is seised. Id.:

not a drug store, Town of Kirkland v. Meyers v. State \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 800, 105 SWF 48.

**25.** That defendant was not 'a drugist.

**19.** See anote, I. 4, Regulation of Traffic.

State v. P. Phamondon, 75 Kan. 269, 89 P 23.

**20.** Lee County Dispensary Com'rs v.

**26, 27.** Drummond v. Richland City Drug Hooper, 128 G. 95, 65 SE 997: Town of Kirk-

Co., 133 Iowa, 266, 110 NWF 471.

land v. Ferry \[Vwash.\] 88 P 1123. See Laws

**28.** In contempt proceedings costs, includ-

1903, p. 524, c. 338. State v. Plamondon, 75

**29.** Asn. 269, 89 P 23. Under Act. Rep. 1907

**20.** Laws 30th Leg. p. 166, c. 81, 82, 1)

**21.** They's fee of $100 held not unreasonable. Id.

\*\* temporary injunction may be awarded

**29.** On injunction against enforcement of

against selling without license. Barcell v.

decree enjoining liquor nuisance, costs are

State \[Tex. Civ. App.\] 106 SWF 190. Decrere

properly taxed against one who was the

for injunction presumed proper on review in

active party securing the decree enjoined,

absence of evidence in record. Id.; State v.

Code, S. 2412, relating to costs in suits to

Jepson \[Kan.\] 92 P 600.

**Status authorizing injunctions against**

Beck v. Vaughn, 134 Iowa, 331, 111 NWF 994.

intoxicating liquor nu nuasses will be liberally

constructed with a view of upholding and pro-

occupants of such place must take notice of

moting their * 10 Cur. Law. **INTOXICATING LIQUORS SS 9.**

became intoxicated as a result of such sale " gives rise to a cause of action either in favor of specified persons " or any person injured by such sale," or by the person who became intoxicated by reason of such sale." Under some of the statutes the usual rules as to casual connection seem to obtain," while under others such rules are more or less relaxed," but in all cases some casual connection is essential." Where the

tion or a promise of compensation or ex-

v wrongfully" before the word "assaulted."

pected compensation for the liquor. Hill-

Reisch v. People, 229 Ill, 574, 82 NE 321. Need

liker v. Farr, 149 Mich. 444, 14 Det. Leg. N.

not be sole cause, but sufficient if it ma-

497. 112 NVV 1116.

terially assists or contributes to habitual in-

32. S21 Sonolkeeper not liable under Cobbey's

taxication of son, under Dram Shop Act, 8.

Ann. St $ 7165, where he furnished liquor to

Danley v. Hibbard, 123 Ill. App. 666. In in-

third person who furnished it to person

struction that it was sufficient if the liquor

who became intoxicated and caused the in-

"materially contributed or assisted" in pro-

jury complained of, where saloonkeeper did

ducing habitual intoxication, etc., the word

not know and had no reason to believe that

"materially" qualified both the word "con-

the liquor was to be furnished to such person. Sullivan v. Conrad \[Neb.\] 112 NVV 660.

under express provisions of dram shop act

33. Under Cliv. Code 1895, $ 3871, a father,

liability accres if the furnishing of liquor

or, if he be dead, a mother, has right of ac-

shshail have "caused the intoxication in whole

tion against anyone who sells or furnishes

or in part," an instruction that it must have

splrituous liquors to his or her son under

been the "proximate cause" of such intox

age, for his own use, without his or her

realism. Wright v. Smith, 128 Ga, 432, 57 SE

Hall v. Ditto, 128 III. App. 187.

654.

Note "While cases may be found in which

the ordinary rule of proximate cause is

of support and not personal injuries to husband. Nelson v. Nevels \[Neb.\] 113 NVV 119.

ary for injury done.by an intoxicated per-

Any legal obligation to which one is sub-

son, there is scarcely one in which a recov-

jected by reason of the sale of intoxicating

ry has been sustained that such rules is not

liquors gives rise to a cause of action under

the civil liability statutes as being a consequence of such sale, as where son became

building let his property for saloon pur-

paper and a legal charge upon his mother

poses, and the tenant sold liquor to a third

for support. Danley v. Hibbard, 123 Ill. App. 123

1. App. 666. Though son had no right of support

in such a condition abused and caused the

enforfeible in his own name. Id. Evidence

held to show that son was habitual drunkard

the latter was permitted to recover damages

and a charge upon his mother for support.

N. Y. 509, 30 Am. Rep. 323. See, also, Dunlap

35. Where injury was an assault by hus-

v. Wagner, 85 Ind. 529, 44 Am. Rep. 42. Again,

band, evidence held to sustain verdict with

where the intoxicated person undertook to

out considering evidence of husband which

drive home, and fell in such manner as to

was contended to be unworthy of belief.

beaten to death by the wheel of his own

Relsch v. Foster, 125 Ill. App. 509. Whether

wagon, the wife was held entitled to recover.

intoxication was proximate cause of death

Mead v. Stratton, 87 N. Y. 493, 41 Am. Rep.

of plaintiff's intestine by being run over

386. The seller has been held liable for dam-

by train. Lahey v. Crist, 130 Ill. App. 152.

ages suffered by reason of an assault com-

mitted by the intoxated person. English v.

cated and fell to ground where he perished

Beard, 51 Ind. 489; Mastad v. Swedish Brethth-

held insufficient without proof of causal

rem, 83 Minn. 40, 85 NVP 913, 85 Am. St. Rep.

connection. Dudley v. State \[Ind. App.\] 81

446, 83 L. R. A. 803; Pickard v. Tearoq, 34 Ill.

NE 89. In suit for loss of support, a fall of

App. 398; Doty v. Postal, 87 Mich. 143, 49 NVV

plaintiff's husband while intoxated and

541; McClay v. Worrall, 18 Neb. 44, 24 NVV

subsequent incapacitation cannot be consid-

429. Injury to the wife's means of support

ered unless latter is traceable to the traffic

by the sulfide of the husband while intox

in liqu statute does not recognize degrees of intoxication, the degree of intoxication which caused the injury is immaterial.30 Knowledge or intent is not ordinarily an element of the cause of action.40 A cause of action may arise for loss of support though the person to whom the liquor was sold was already an habitual drunkard.41 The doctrine if in pari dilieto cannot usually be invoked to defeat a recovery,42 but may be invoked in mitigation of damages.43 Evidence of the conduct and habits of the person to whom the sale is made44 as affected by liquor is admissible,45 and in this connection evidence of other sales than the one charged is admissible.46 For certain purposes only, evidence of the illegality of other sales to such person is admissible,47 but evidence of sales to other persons is inadmissible.48 Damages not claimed cannot be allowed.49 In some cases both general and special damages may be recovered,50 and also punitive or exemplary damages.51 The question of excessiveness of dam-

III. 109; Mulcahey v. Givens, 115 Ind. 286, 17 \[ fact that plaintiff drank with her husband in defendant's saloon and gave defendant Boos v. Silney, 39 NE 197, 11 Ind. App. 267; written order to let him have liquor may be considered in mitigation of damages but 462, 102 Am. St. Rep. 686; King v. Haley, 86 \[ not as a bar to recovery. Leverenz v. Stev-III, 106, 29 Am. Rep. 14; Peterson v. Knolbe, 124 Ill. App. 401. Where, in action under Eve, v. People, 411 Ill. 447, 31 NE 425; for damages caused by sale of liquor to Curran v. Percival, 21 Neb. 434, 82 NW 215; plaintiff's minor son, plaintiffs claimed exemplary damages, evidence that father drank with son at other saloons was admissible.

823; Bodev v. Hughes, 53 N. H. 614; Fortier v. Boron, 229 Ill. 823, 82 NE 266, v. Moore, 67 N. H. 460, 36 A. 369; Wrelc v. Lander, 76 Ill. 93. Not all of these authorlies state the rule as broadly as do the cases from Michigan and New York; but the logical tendency of all is in the same direction. As already noted, there are among them opinions which profess to apply the rule of proximate cause, but in each instance the term 'proximate' is used in the sense of an originating cause, from which the injurious effect is logically traced through an intervening series of acts or events. This rule is, of course, properly applicable where the right of recovery is based upon the second clause of the civil damage statute which makes the liquor dealer Iiable for injury sustained 'in consequence' of the intoxication of any person. But where recovery is sought under the first clause for injury done 'by an intoxated person' the adjudicated cases are practically unambiguous that when the plaintiff has proved the unlawful sale to a person on whom she is dependent for support, and the intoxication of such person thereby produced an injury done by him while in that condition to her means of support, she has made the case for which the statute provides."--From Bistline v. Ney Bros., 134 Iowa, 172, 111 NWV 422.

85. Instruction not advertising to necessity of causal connection held erroneous. James A. Dudley v. State \[Ind. App.\] 81 NE 89.

01. Lahey v. Crist, 130 Ill. App. 152.

01. A malicious intent to injure is not essential to the cause of action for injuries indicted by an intoxated person. Instructions held not erroneous. Howard v. McCabe \[Neb.\] 112 NW 305. Under Code, $ 2394, fact that drugist who sold liquor to one addicted to use thereof was Ignrant of the purchase-er's habits and made sale in good faith was no defense to civil action under $ 2418. Bistline v. Ney Bros., 134 Iowa, 172, 111 NWV 422.

01. Under dram shop act. Leverenz v. Stevens, 124 Ill. App. 401.

01. Leverenz v. Stevens, 124 Ill. App. 401.

01. In action under Dram Shop Act, $ 9, 100 10 Cur. Law. INTOXICATING LIQUORS SS 9. 459 ages depends, of course, upon the circumstances of each case.\[52\] In an action by a wife for loss of support, the loss of the comfort afforded her by her husband when sober cannot be considered.\[58\] Instructions not supported by the evidence need not be given.\[54\] An instruction in the language of the statute is proper.\[56\] Counsel should not endeavor to create prejudice against the defendant.\[56\] A juror is not necessarily disqualified by his prejudice against the liquor traffic.\[57\] Under some of the statutes an action may be maintained on a liquor dcaler's bond \[58\] by persons aggrived by a sale \[59\] or by violation of the conditions of the bond.\[60\] The plaintiff in such an action must prove that defendant was a licensee.\[61\] Where two persons have a cause of action for the same breach, the death of one does not abate the cause of action in favor of the other.\[62\] Where the action is to recover liquidated damages, it is in the nature of an action to recover a penalty,\[63\] and the statute giving the right of action may be repealed at any time.\[64\] to Insane asylum as insane from drink and |dence requested in action on bond for sell-had been discharged as cured. Leverens v. (Stevens, 124 Ill. App. 401.

## 8 10. Property rights in and contracts relating to intoxicants.

The courts will not enforce contracts of sale in violation of law, \[86\] but since a license to sell liquor is a personal trust, one may presume that a person whom he finds in charge of a saloon is the propritor and licensee or his agent and may deal with him accordingly. \[86\] In order to invalidate a sale made in another state, \[87\] it must appear that the seller intended by the sale to aid the buyer in his unlawful design. \[88\] Where the illegality does not appear upon the face of the contract or in the plaintiff's evidence necessary to prove the same, the defendant must specifically allege such illegality. \[89\]

Drunkeness as an offense. \[86\] C. L. 208. Drunkenness is a statutory offense \[70\] and punishable as such. \[71\]

Intoxication; Inventions; Investments; Inrigation; Islands; Issue; Issues to Jury10 Cur. Law. Joint Adventures. 461

\_Rights and liabilities of parties.\_See 5 C. L. 520.--The relation being contractual its duration,74 the interest of the parties in the property forming the basis of the venture 75 and the credits to which the parties are entitled thereunder,76 are determinable from the contract creating it. Such contracts frequently provide for the payment of interest,77 segregation of the property involved, and separate accounting,78 and provision for repayment of moneys advanced in the event of the venture proving unsuccessful, in which case the withdrawing party must tender his interest in the undertaking.76 The parties to a joint undertaking occupy a fiduciary relationship toward each other and must act in the highest good faith,89 and, though not a partnership, the relative rights and duties of the parties toward each other are the same89 and are governed by the same principles as are applied by courts of equity to partnership transactions.82 Accordingly, a concealed profit arising out of the transaction in favor of one accrues to all.83 It follows that one of the parties may not convert the joint property to his own use.84 Where the contract provides a method for the settlement of the accounts of the parties, such method, in the absence of fraud,

balance to be divided equally between parties, held a joint adventure. Wisconsin Bulletine Fibre Co. v. D. K. Jeffris Lumber Co. \[Vis.\] 111 NWP 237. Contract for sale of mining stock under agreement to share profits and losses equally held to constitute parties joint adventurers. Jones v. McNally, 53 Misc. 59, 103 NYS 1011. Contract under which parties agreed to share recipients, expenses and profits arising out of transfer of certain property, held a joint adventure. Vogellin v. Bowdoin, 54 Misc. 254, 104 NYS 394. Evidence held insufficient to show that plaintiff and defendants, real estate brokers, holding an option for the purchase of land, purchased same as joint adventurers and hence a concealed profit to defendants did nottitle plaintiff to impose a trust on the land. Scott v. White \[Or.\] 91 P 487.

74, Time held of essence of joint venture for sale of land owned by one party to the agreement, the contract fixing a definite time during which sufficient land to re-thurbures such party for his investment with interest should be sold and providing that the other party should be entitled to a certain commission instead of halt the profits in the event of a failure to dispose of land during such period. Corbin v. Holmes \[C. C. A.\] 154 F 593.

75. Contract of joint venture in sale of land owned by one of the parties providing for a compensation of halt the profits to the other party if sufficient land were sold during prescribed time to reimburse former for his investment with interest held not to give latter a lien on land entitling him to a judicial sale of undisposed of land to secure return to former amount invested. Corbin v. Holmes \[C. C. A.\] 154 F 593.

01. Where contract for manufacture and sale by defendant of logs owned by plaintiff provided that former should be credited with "actual cost" of manufacture, the reasonable or usual cost cannot be considered. Wisconsin Sublittle Fibre Co. v. D. K. Jeffris Lumber Co. \[Vis.\] 111 NWP 237.

01. Contract construed and held to entitle one of the parties to interest on investment at agreed rate and also upon all disburse-ments made by him and to charge him with interest upon all receipts at the same rate. Corbin v. Holmes \[C. C. A.\] 154 F 593.

01. Contract for manufacture and sale by defendant of plaintiff's logs held not to require former to keep a separate set of books showing the transaction or to sell the property separately from mere fact that contract required logs to be separately kept and lumber separately piled. Wisconsin Bulletine Fibre Co. v. D. K. Jeffris Lumber Co. \[Vis.\] 111 NWP 237.

01. Under contract guaranteeing repayment of amount invested by party to joint venture upon request of such party, notice of acceptance of such provision held a sufficient tender of his interest to require re-construct payment, the contract not providing for the purchase and sale of specific property. Delaware Trust Co. v. Calm, 107 NYS 313.

01. Neither may obtain an advantage of the other by concealed or misrepresentation. Humphurg v. Lotz \[Cal. App.\] 85 P 510.

01. Church v. Odell, 100 Minn. 98, 110 NWP 346.

01. Hence, municipal court of New York. City has no jurisdiction over an action by one of the parties against the other. Voeget-lin v. Bowdoin, 54 Misc. 254, 104 NYS 394.

01. Where real estate agent induced others to jolm with him in purchase of land re-senting that all stood on same footing but concealing fact that he was to receive a. commission for effecting a sale, held that each of the parties to the venture was entitled to share the proportionate to his interest. Church v. Odell, 100 Minn. 98, 110-NWP 346. Where one of the parties obtained a secret commission on the purchase of property and actually contributed less than he represented to have contributed, held injured party could recover his share of the excess irrespective of financial loss on his part (Humburg v. Lotz \[Cal. App.\] 88 P 510), and the fact that a corporation was subsequently formed and that the injured party sold his shares therein at a profit does not affect his right to recover his share of such-conceded profit (Id.).

01. Evidence held insufficient to show fraudulent conversion by defendant of substantial portion of property constituting basis of joint adventure. Wisconsin Bulletine Fibre Co. v. D. K. Jeffris Lumber Co. \[Vis.\] 111 NWP 237.

462 JUDGES. 10 Cur. Law. bad faith or mistake, must be followed," and unless absolutely untrustworthy cannot be rejected." Joint adventurers are liable for money advanced for their use though the means by which it was procured by a party to the venture were unauthorized," and payment by one of the parties of a joint liability entitles him to credit therefor upon settlement." Noncompliance with terms of the contract which results in no injury to the other parties is not actionable."

\_Actions.\_Sce & C. L. 520--An action of debt cannot be maintained to recover losses sustained on a joint adventure, the fact of a loss and its amount not being conceded." Evidence as to whether a party would have entered a joint venture if he had known of a secret profit obtained by a copparty is admissible." The court must find upon all issues presented," and the relief which may be awarded is limited to that demanded."

Joint Executors and Trustees: Joint Libabilities on Agreements, see latest topical index.

Joint Stock companies." A joint stock company cannot maintain an action at law in the name of the association nor in the name of its officers as trustees."

Joint Tenary, see latest topical index. .

JUDGES. 8 I. The Office; Appointment or Electici; Qualifications and Tenure, 463. The LICS of a De Facto Judge, 463. Salaries, 465. Disability to Practice or Hoid Other Office, 465.

Ideal. Disqualification in Particular Cases, 465. Interest and Kinship, 466. Disqualification in Reactions of Having Begen Coun-sel, 466. Bias and Prejudice, 466. Procedure and Trial of Fact of Disqualification, 466.

This article treats of judges as such and as distinguished from the courts over which they preside. The organization " and jurisdiction " of courts and matters common to the election, salary and tenure of officers generally," are excluded.

S5. Defendant's books of account held to constitute basis for settlement. Wisconsin Submittee Fibre Co. v. D. K. Jeffris Lumber Co. \[VWs.\] 111 NWP 237.

S6. Mere errors in book accounts held not to warrant resort to another method in settlement between parties. Wisconsin Submittee Fibre Co. v. D. K. Jeffris Lumber Co. \[VWs.\] 111 NWP 237.

S7. Party to venture who was also cashier of bank loaning money held to have acted as agent for his co-adventurers in procuring loan. Jigms v. Andrews \[C. C. A.\] 151 F72.

S8. Payment of taxes. Wisconsin Submittee Fibre Co. v. D. K. Jeffris Lumber Co. \[VWs.\] 111 NWP 237.

S8. Failure to keep and present vouchers for expenses and monthly statements and remittances and annual settlements resulting In no injury. Wisconsin Submittee Fibre Co. v. D. K. Jeffris Lumber Co. \[VWs.\] 111 NWP 237.

S9. Allegation that stock was worthless held not an allegation of loss admitted by demurrer. Jones v. McNally, 53 Misc. 59, 103 NYS 1011.

9. Hamburg v. Lots \[Cal. App.\] 88 P 510.

S10. Where the player for relief is for a money judgment only as in debt, the complaint cannot support a cause of action for accounting and contribution. Jones v. McNally, 53 Misc. 59, 108 NYS 1011.

9. See S6. C. L. 521. See, also, the related topics Associations and Societies, 9 C. L. 274; Partnership, 8 C. L. 1261, See, also, the forthcoming article on Negotiable Instruments for annotation on Negotiability of joint stock association bonds exempting shareholders from liability.

1. Weir y. Metropolitan. St. R. Co. \[Mo. App.\] 103 NWP 538.

1. See Courts, 9 C. L. 839.

1. See Jurisdiction, 8 C. L. 579.

1. See Offera and Public Employees, 8 C. L. 1191.

- 10 Cur. Law. JUDGES SS 2. $ 1. \_The office; appointment or election; qualifications and tenure,\_See
- C. L.
- 32--The legislature has general power under most constitutions to fix the terms of judges,"9 and alter the mode of designation,1 and provide for the filling of vacancies.3 Where one is named to fill a vacancy ad interim until an election can be had, and he is then legally elected, he is judge without intermission.8 Before a judge can assume full control of his office he must qualify as required by law.4 Judges of inferior courts may be temporarily suspended and temporary appointment to vacancies made by higher courts under statutory power.5

Footnote 10: Cur. Law. JUDGES SS 2. $ 1. \_The office; appointment or election; qualifications and tenure,\_See * C. L. * 32--The legislature has general power under most constitutions to fix the terms of judges,"9 and alter the mode of designation,1 and provide for the filling of vacancies.3 Where one is named to fill a vacancy ad interim until an election can be had, and he is then legally elected, he is judge without intermission.8 Before a judge can assume full control of his office he must qualify as required by law.4 Judges of inferior courts may be temporarily suspended and temporary appointment to vacancies made by higher courts under statutory power.5

Footnote 11: Words v. Bragaw \[Idahol 92 P 576; McNew v, Nicholas County, 30 Ky. L. R. 1147, fix the term of a temporary judge sitting until a new judge is elected. Const. art. 6. & 26. McCracken County v. Reed, 31 Ky. L. R. 31, 101 SW 348, Ky. Stat. 1903, $ 3356.

Footnote 12: Where Judge dies, date of death is not to be reckoned in computing time to next election where statutory provided that general election shall be held 'not earlier than six months after death of previous judge. Foster \[AIA.\] 43 S 179.

Footnote 13: Money is only due for actual time served not for term appointed. Cobb v. Hammock \[Ark.\] 102 SW 382.

Footnote 14: Usually, where there are several judges of a district, they may sit in each other's places during one's absence. Judges of civil court of New Orleans. Faulk v. State \[Ga. App.\] 58 SE 1109; Bolden v. Barnes, 118 La. 273, 42 S 934. Where a judge of a district court has power to try both civil and criminal cases, he may take the place of another judge with only civil jurisdiction in trial of a criminal case in the latter's court. Act July 23, 1870 (6 Laws Tex. p. 211, Rev. St. 189, ext. 1519), and Const. art. 5, $ 83, 11. Hull v. State \[Tex. Cr. App.\] 18 Tex. Cr. Rep. 772, 100 SW 403.

Footnote 15: A judge of a city court is qualified to preside at the trial of a cause in the circuit court. American Car & Foundry Co. v. Hill, 226 Ill. 227, 80 NE 784. The fact that there are other circuit judges not disqualified trying causes in the county does not render it error to call a judge of the city court to replace a recused judge of the circuit court. Id. Where a statute provides that certain judges may on disqualification of one interchange courts, a judge of an inferr court may sit in place of a judge of a higher tribunal. Const. 1877, art. 6, $ 5. "The becomes the impersonation of the superior side,1\* though the regular judges may be holding a regular term of court in the same district.17 Where a statute provides that where a judge is excused for interest he shall appoint a lawyer of judicial qualification, the judge cannot assign a judge from an adjoining district to try the case.18 Where statute provides for election of a special judge in absence of regular incumbent, the question of notice necessary to interested attorneys is one which the statute usually cares for.19 The special judge need not necessarily live in the same district if his other qualifications are proper.20 In some cases notices of election must be given to attorneys of record before special judges can be named.21 A special 22 or substitute 22 judge has the same powers as the regular judge, but his rights expire with his term of service.14 The same is true where judges interchange districts by order of snpreme court justice.23 Where because of disqualification of judges others are called in on a rehearing of case, the decision of the new court will not be reversed because it did not hear the entire case.20 Where a judge makes an order as to allow amendment to pleadings, a succeeding judge to have right to pass on legality of such amendment, and said order was made to prevent delay, it is proper for the succeeding judge to strike out the amendment.27 A special judge elected according to statute is a judge de jure during the time the actual judge is disqualified.28 It is immaterial whether or not a special judge has acted on his independent judgment or consulted with the regular judge.29 In Louisiana the substitute judge must proceed within a specified time to try the case.20

**SS 3.**\_Powers, duties, and liabilities.\_See $ C. L. 226--Except in cases of substitution properly made,21 a judge cannot act, in any other court than his own,22 nor can he, except as jurisdiction exists to issue supervisory writs,23 control the action of another court.24

\_Powers during vacation or at chambers_See $ C. L. 526 usually extend to all pro-

court for that case during the term." Paulk

v. State \[Ga. App.\] $8 SE 1108.

**10.** Where record shows consent and one attorney present when selected and no objection to special judge made until after judgment was entered, held judgment could not be set aside. Tabor v. Armstrong, 30

Ky. L. R. 938, 99 SWP 957.

**17.** He is at least a de facto judge. Louisville & N. R. Co. v. Herndon's Admir, 31 KY. L. R, 1059, 104 SWP 732.

**18.** Act No. 185, p. 430, of 1898. Judge was defendant and he named another judge from adjoining circuit to try case. Heid void, as he should have appointed an attorney from his own district. Wells v. Blackman, 118 La. 287, 42 8 939.

**19.** Notice unnecessary in certain cases. Code 1899, #1, ch. 112 ($ 3630, Ann. Code 1906). Fulton v. Messenger, 61 W. Va. 477, 56 SE 830.

**20.** Stat. 1903, $ $71. Commonwealth v. Carnes, 30 Ky. L. R. 506, 98 SWP 1045.

**21.** Fulton v. Messenger, 61 W. Va. 477, 56 SE 830.

**22.** Gen. St. 1906, $ 1481. May fix amount and conditions of supersedeas bond. Hathcock v. Societe Anonyme La Floridienne \[Fla.\] 45 $2. May call a special term of court. Commonwealth v. Carnes, 30 Ky. L. R, 506, 98 SVP 1045.

**23.** Right to make all proper orders in granting extension of time for preparing or presenting statements or bills of exception or filing afflavits on motion for new trial. Morris v. Lemp \[Idaho\] $8 P 761. May grant an appeal from declasion of absent judge. Boloc n. Barnes, 118 La. 273, 42 S 934. Where after findings objections to judge

## 10 Cur. Law. Judges $ 4.

visual and interlocutory matters,\[85\] and in some states full power is given to act during vacation on all matters not requiring trial of an action.\[86\] And where such rights are given by statute enforcement of obedience can also be made.\[47\] The jurisdiction of Federal judges for chambers business is extended to any place within his circuit without regard to the district in which cause is pending.\[38\] Court commissioners are by statute given chambers powers of a circuit judge in Wisconsin.\[39\]

_Powers after term of office.\[85\]_ & C. L. 526--The powers of a substitute judge terminate with his term of service,\[46\] and those of a regular judge with his term of office,\[41\] his successor having full power to complete all unfinished business.\[42\]

_Immunities and exemptions.\[85\]_ & C. L. 528--A judicial officer cannot be held liable for damages in a civil action for his judicial acts no matter how mistaken or erroneous they may be.\[43\]

_Disability to practice or hold other office.\[85\]_ & C. L. 528--In Wisconsin the office of justice of the peace cannot be filled by county judge acting in both capacities at the same time.\[44\]\_

Disqualification in particular cases.\[85\]\_ & C. L. 528--Though a decision is reversed because the judge made a personal examination of premises involved, he is not thereby disqualified to sit on a retrial.\[45\]\_

A judge of one district usually cannot re-strain the acts of a court of another district. Judge of one district, where cause was pending, granting injunction to re-strain acts of receiver in similar action in another district, held without authority. Ray v. Trice \[Fla.\] 42 S 901.

Federal judges in the exercise of general equity powers and those given by Federal statutes have authority in chambers to make an order appointing a receiver in a pending cause or on a bill and an answer by defendant joining in the prayer for appointment. Horn v. Pere Marquette R. Co., 151 F 626. The Iowa statutes give judges in vacation the right to appoint receivers on proper showing made. Code $ 2822. McGee v. Murphy \[Iowa\] 113 NV 498. In the various states, judges in chambers have powers to hear various forms of arguments just as they might hear them in open court. Right to dissolve a temporary injunction. Brown v. Donnelly \[Okl.\] 91 P 859. This is not an arbitrary power but the judge acts Judicially after a hearing. May issue writs of habeas corpus, mandamus, injunction, certiori, etc. after a hearing. Thorne v. Moore (Tex.) 19 Tex. Ct. Rep. 985.

105 SVW 985. To dissolve an injunction but not dismiss a cross bill. Logan v. Ballard, 61 W. Yu. 526, 57 SE 143. In Kentucky though a single judge may issue or dissolve a temporary injunction, a motion to dissolve an injunction can be argued before a whole court. Thomas v. Thompson, 31 Ky., L. R. 524, 102 SVW 849. May hear not only the application for an injunction but application for temporary nilomorph. Edmondson v. Edmondson, 128 Ga., 57 SE 508. In Georgia, court in vacation cannot sustain demurrer to an equitable petition or motion to dismiss it for want of equity. Ivey v. Rome \[Ga.\] 58 SE 852.

In re Potter \[Vv.\] 112 NWV 1087. The Iowa Code, $ 247, authorizes judge to enter decree during vacation only with consent of parties. Marengo Sav, Bk. v. Byington \[Iowa\] 112 NWV 192. In South Carolina a judge in chambers cannot set aside a judge.\[10 Curr. L-- 80.

\_Interest and kinship.\_See s C. L. 528--A judge is disqualified by interest when his interest is apparent.46 The interest must be more than a casual one.47 It must be in the subject-matter of the suit and not merely to a legal question involved.48 In Texas it has been held that a judge holding an insurance policy is disqualified for interest from trying suit in which insurance company is a party.49 A judge, who is a citizen taxpayer and indirectly interested in city water supply, is not disqualified from trying an action involving injunction to restrain condemnation of lands for city water supply.50 A judge whose father is first cousin to the grandfather of a defendant cannot sit at trial of defendant in Georgia.51 Where the statute debars a judge from trial by reason of affinity or consanguinity, it must be shown that the relationship was an immediate relationship of blood.52 A judge need not go into a minute investigation to determine his own disqualification on account of relationship to attorney.53

\_Disqualification because of having been counsel.\_See s C. L. 529--The question of the disqualification of a judge' by reason of his having acted as counsel for either of the litigants is generally cared for by statute.54

\_Bias and prejudice.\_See s C. L. 529--The bias will not extend to disqualify a judge from sitting in judgment upon an attorney charged with contempt based on an affidavit of bias filed against the judge in support of a change of judges.54a One cannot assert bias in his own favor as a disqualification 55 but the rule is otherwise as to disqualification by kinship.56 The rule of disqualification of judges must yield to the demands of necessity as in cases where, if applied, it would destroy the only tribunal in which relief may be had.57 One judge having been recused, a second petition for change of trial judge will not be granted.58

\_Procedure and trial of fact of disqualification.\_See s C. L. 529--An affidavit filed, against a judge alleging bias, in some states makes mandatory a change of judges.59 But proof of the bias and prejudice may be required and it is often discretionary with the court as to granting request for another justice.60 In the absence of statu-

46. Where judge was called on to issue | the blood relatives of his wife and vice order to secretary of state to put certain | versa, but held, where wife of judge is a ticket on ballot and judge was a candidate second cousin of wife of a party, not dis-on the ticket, held disqualified for interest. | qualified. | Plus V. Calle Bros. Co., 149 Mich. Cowie v. Means \[Colo.\] 88 P 485. | 601, 14 Det. Leg. N. 590, 113 NW 317. 47. Where the judge was interested in |same water rights but had no part in pres- | can suit whatever, held, even though he | was interested and had to weigh evidence | judge. Dunbar v. Wallace \[Ark.\] 105 SWP 485. | 257. | 257. | 54. Code Civ. Proc. | 170. Does not apply | Super. Ct. \[Cal.\] 90 P 709. | 48. Judge had years before acted as counsel for one party in one of the legal matters | now in controversy, Cheuvront v. Horner | 90 P 709. Judge having once been counsel | \[VR. Va.\] 59 SE 964. Where judges in suit | improving title to lands had been a partner | controversy, held not disqualified.

tory authority on the part of a mayor who has judicial powers, to certify a case to another court for trial, he cannot be ousted of jurisdiction by the filing of an affladavit of prejudice.\[61\]

JUDGMENTS.

- 8. Definition, Nature, and Classification
- 8.1. Definition, Nature, and Classification
  be kept clearly in mind.\[72\] A judgment which terminates and completely disposes of the action is final,\[73\] the test being whether an appeal lies therefrom.\[74\]

SS 2. \_Requisites. A. In general.\_See * c. L. \[83\]--In order to have a valid judgment the court must have jurisdiction of the cause of action and the subject-matter thereof,\[75\] and except in actions in view of all necessary parties \[76\] who must be competent to appear in the courts.\[77\] Having such jurisdiction, mere irregularities of procedure do not invalidate the judgment.\[78\] There must be a legal service of valid process or its equivalent.\[79\] Personal service within the jurisdiction of the court or \*

- 72. What judgments are final for the pur-
- V. Beeler's Adm'r, 31 Ky. L. R. 19; 101 SWV poses of appeal and res judicata is treated
- S97. Where judgment is sought against a respectively in Appeal and Review, 9 C. L. \[108\] firm and a plea of privilege's sustained as 108, and Former Adjudication, 9 C. L. \[102\] to one of the partners, the court is there-
- a judgment or decree may be final as to some
- after without jurisdiction to enter judgment things and not as to others. See topics
- Vold, the other partners being nonresidents.
- V. A. An order, "Judgment is directed non-
- Kretelsen & Degeteau v. Pratt Brogs, & Seay obstante veredicto in favor of" the garnishee
- \[Tex, Civ. App.\] 18 Tex. Ct. Rep. 956, 100 SWV is not a final judgment and is not appealable.
- K. Keystone Brew, Co. v. Canavan \[Pa.\] 67 A 77. Judgment on counterclaim after action
- V. Judgment against a former administra-
- had been dismissed for want of capacity in
- for which does not dispose of the sureflies
- Phaintiff to use is void. McClellan's Adm'r v. who were also parties is not final and the
- Tromedle, 30 Ky. L. R. \[61\], 98 SWV 329. action continues pending as to them. State
- Y. Failure to comply with rule of secretary. Canterbury, 124 Mc, App. 241, 101 SWV 678.
- An interlocutory order which practically dis-
- toursite trustees, appointed unfer act May poses of the subject-matter of the action
- V. K. Deerner, 191 Nl. App. 168, 12, 86 Stat. 109 (U. S. Comp.) will not prevent the entry of final judg-
- St. 1901, p. 1463, to deposit 832 with treasment. Carlson v. K. Deerner, 192 Nl. App. 168. \[102\], under board before hearing of cause, held Under Code Civ. Proc. 8 \[102\], 122, 122, final
- not to affect judgment of court of general judgment cannot be entered upon an order
- Jurisdiction having jurisdiction over person overruling a demurrer to the counterclaim
- and subject-matter. Thurston v. Washing-
- where the issues of fact raised by the an-
- \[103\], 80 Uk. 362, 80 P 16. \[104\], 79. Judgment entered without service of Industrial Exposition & Amusement Co., 53
- Misc. 46, 102 NYS 1006. Order overruling
- K. Y. Jaydment against a demurrer filed with text but not signed by him as required by Code Civ. Proc. 8 \[105\], 107 NYS 85. Answer of garment. Id.
- M. Malone v. Johnson \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 255, 101 SVV 503.
- Y. Judgment rendered by state court after removal of cause to Federal court
- held error not to vacate it on motion. Tom-
- V. Iowa State Traveling Men's Ass'n
- \[Neb.\] 110 NWV 97. Judgment in excess of
- amount over which court had jurisdiction is void. Louisville & N. R. Co. v. Sutton \[Fla.\] by default held erroneous where citation
- A 894.
- A. R. In action of assnmpsit judgment is
- Orcerly entered against only such defend-
- a.s are served with process. Swannell v. Byers, 123 Nl. App. 545. Under Hurd's
- Rev. St. 1905, c. 110 (Practice Act & 2), where a party resident in the county is made
- a. defendant in good faith and under a reasonable belief that a cause of action exists
- against him, and the defendants not resident in the county appear and defend the action,
- the court has jurisdiction to render judgment against the nonresident defendants, even though verdict is directed in favor of the resident defendant. Lehigh Valley Transp. Co. v. Post Sugar Co., 228 Nl. 121, 181 NE 819. Under Civ. Code, 8 \[80\], where the venue of an action against several defendants is laid in the county of the residence of one of them,
- the. of the agent that the defendants not resident in the county appear and defend the action,
- the court has jurisdiction to render judgment against the nonresident defendants, even though verdict is directed in favor of the resident defendant. Lehigh Valley Transp. Co. v. Post Sugar Co., 228 Nl.
  an appearance is essential to a judgment in personam.\[80\] It is essential that the court speak through a properly qualified judge.\[81\] A judgment must be supported by pleadings \[82\] and by valid and consistent findings \[82\] or verdict \[84\] or all the material issues, and this presupposes an issue or a default.\[85\] An issue being raised the judgment must be supported by proof.\[86\]

(SS 2) _B. Conformity to process, pleading, proof and verdict of findings.\[86\]_

s c. L. \[84\] A judgment must conform to the process in the action, and, except where the issues have been changed by statute, agreement, or a consent decree the judgment must conform to the pleadings,\[87\] the verdict \[88\] or finding,\[89\] and should be

ership in plaintiff and defendant, held not to render judgment a nullity, defendant be-held void on its face. Berry v. Equitable Sperry \[Tex. Civ. App.\] 18 Tex. Ct. Rep.\] 876. 103 SW 419. 88. 103 SW 419. 88. 104. 88. 112 NW 765. See Process, 8 C. L. 1449. Personal service on a nonresident without the state does not authorize a judgment in personam against him. Richardson v. Richardson, 134 Iowa, 242, 111 NW 934. Personal degree against a nonresident served only by publication and who has not appeared is void. Personal decree for deficiency in action to enforce vendor's lien. Sweeney v. Tritsch \[Ala.\] 44 S 184. 81. 144 Spanning made by a disqualified judge are void. Blias v. Celine Bros, Co., 149 Mich. 601, 14 Det. Leg. N. 590, 113 NW 317. 83. 144. 83.

- 470

JUDGMENTS $ 2B. 10 Cur. Law.

supported by the proof,90 though this latter has been held not essential in so far as

both the real and personal property in controversy to defend. Johnson v. McNellis, v. McNellis, 118 App. Div. 768, 103 NYSYS 228 Ill. 351, 81 NE 1035. Judgment in excess 884. Where an assignee of a bond refused of amount claimed in counterclaim held erroneous. Mark v. EL D. Williams Cooperative Cooperage

thenon and was therefore made a defendCo., 204 Mc. 241, 108 SW 20. Where plea in an, diling an answer demanding no affmma-reconvention admits plaintiffs title to prove: they relief against his codependent, judgment entry sought to be recovered and defendant

could not be entered in his favor against the recovers damages under plea, held error to

later. Bluwet v. Hoyt, 118 App. Div. 227, enter judgment against plaintiff denying re-102 NYS 451.

every of such property. Barker v. Hoyt, 118 (Tex. Civ. App.) 24 (Tex. Civ. App.) 18 Tex. Ct. Rep. 676, 103 SW

Tex. Ct. Rep. 76, 105 SW 830. Judgment re-101. Held error to allow interest on value

forming to tract as descriptive of control-of property destroyed where same would would: lower recovery in excess of amount used for.

St. Louis S, W. M. Ge, C. v. Guthrie (Tex. Civ. App.) 17 Tex. Ct. Rep. 708, 103 SW 211, 827, 100 SW 817. Under Burny Ann. St. 1901.

Where in trespasas to try title plaintiff sought

$ 573-574, court must render judgment in the recovery of land but petition did not

conformity with the verdict and special find-show that he was entitled to a decree pro-102.

Ing. Masters v. Southern R. Co. (Ind.

tecting an easement, the cannot recover on a

App.) 82 NE 1021. Where more than one judgment introduced in evidence establishing

issue is presented by the evidence, the court his right to an easement. Pounus v. Zachery

is not limited to a single finding in render-102 Civ. App.) 18 Tex. Ct. Rep. 687, 103 SW

ing judgment without rendering it subject to restrain collection of tax defendants answered paying recovery of same, the state

the vediet. Montgomery v. Montgomery

not being a party and the answer being

SW 1145. Where jury brings in verdict for interposed to obtain a construction of the

plaintiff less amount claimed in counter-at-at-tabled demands had no such right

claim it is error to enter judgment for plain-of action for recovery of tax as to settle

them to an ordinary money judgment there-

counterclaim and for the defendant for the

for. Texas Co. V. Stephenne (Tex.) 18 Tex.

Ct. Rep. 775, 103 SW 481. Judgment grant-

ing prayer of petition and setting aside dead

straction Co. (Arkly, 103 SW 174. Where in a upon a cause of action, portion of which was

sulted in petition and remainder in reply,

saide a conveyance as a fraudulent conveyable) erroneous as not responsive to issue.

ance of land by the debtor it is determined

Burk v. Pence, 206 Mc. 315, 104 SW 23.

Where waiver of a chause of action alleged

in the complaint does not appear in the

changer for value, the plaintiff is entitled to

judgment roll, though referred to in opinion

a decree against the judgment debtor for the

of court, judgment of no cause of action is

in

b balance due on the judgment with interest

improproperly entered. Duclos v. Kelley, 106

and costs. Briggs v. Manning, 80 Ark. 304.

NYS 1058. Decree for plaintiff on failure of

57 SW 283. Where only issue in case was

defendant to perform compromise agree- as

as to validity of note used on and jury found

ment on assignment for benefit of creditors

for plaintiff in sum less than amount due,

held within the issue. Sauslibrary v. Brown,

Payne, Deaver & Co., 31 Ky. L. R. 855, 104

amount actually due instead of requiring

SW 257. Decree against person allowed to

become a party but who did not avail him-

Ann. Code, 8 196, held harmless. Harris v. self of permission by filing plagellings, and

McLaughlin \[Coj. 90 P 93.

as to whom no issue was tended, led errro

89. See Jacquelin v. Jacquelin, 104 NYS

roneous. Powell v. Crow, 204 Mc. 481, 102

701. Judgment entered by clerk on disal-

SW 1024. Plaintiff in action to recover part

of abandoned streets cannot recover as an

held in accordance with order. Nicholas v.

abutting owner where he held in pleadings

on reversion to original owner and convey-

conclusion of trial court orally announced

ance from him. Bothwell v. Denver Union

that it would make certain provisions ?n de-Stockyard Co.

the character of the relief granted is concerned.\[91\] While the judgment should properly conform to the relief prayed for,\[92\] still, at least after a contested trial, the prevailing party is entitled to any relief which the facts alleged and proved entitle him to.\[98\] That the judgment awards excessive relief does not render it void,\[94\] and it may be modified only by proceedings in the court of rendition or in equity.\[95\] It is sufficient if the judgment is warranted by one of several grounds.\[96\] As to whether a several judgment may be taken against one or more joint defendants depends upon the character of the liability,\[97\] as does the right to have a joint judgment against two or more defendants.\[98\] The failure of one asking affirmative relief to

master mechanic for personal injuries, Judge- | relief demanded, applies to the amount ment in the master mechanic's favor held not necessarily inconsistent with a judgment against the master. Republic Iron & Steel

Do. v. Lee, 227 Ill. 246, 81 NE 411, rvg. 126

Ill. App. 297. Plaintiff's evidence warranting a recovery of $150 and defendants evidence nothing, a judgment for $75 is unsustain- |a

Cal. 99, 88 P 267.

able. Bernstein v. Goodman, 102 NYS 751.

Where in action against state officers to enjoin collection of tax the answer was by "the defendants" praying that the state recover, etc., but there was nothing to indicate intent on part of attorney general to make state a party, held state was not a party and judgment in its favor was unauthorized.

The reason why the defendants are not perfectly consistent with the defendants is that they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants.\[99\] The defendants are not perfectly consistent with the defendants, but they are not perfectly consistent with the defendants, but appear and establish his rights has merely the effect of a nonsuit and does not entitle the other party to affirmative relief on the issue so raised." The granting of a motion to dismiss a complaint being in effect a nonsuit, a judgment on the merits as improper.1 Where the court has no jurisdiction, the proper judgment is one of dismissal for want of jurisdiction or without prejudice.2 Where two demurrers are interposed to a complaint, the court should render but one decision and one judgment.3 Since the filing of an amended petition amounts to the withdrawal of the original, plaintiff cannot recover upon the cause of action set out in the original petition.4 If the complaint can be construed as to uphold judgment, such construction must be adopted.3 Until an order is made setting aside the verdict or rendering judgment for the party against whom a general verdict has been rendered upon answers to interrogatories, it is the court's duty to follow the general verdict by judgment in conformity therewith without motion.4

Footnote 21: The author is grateful to being relegated to a motion for a new trial \[12\]. Questions cannot be raised for the first time on the motion for judgment non obstante \[13\]. The motion must precede the rendition or entry of judgment on the verdict \[14\]. Upon denial of the motion it is proper to move for a rehearing and for an order setting aside the former order \[15\].

SS 3. \_Arrest of judgment \[See 8 C. L. 338--The grounds for the procedure on, and the effect of a motion for an arrest of judgment, are treated elsewhere \[16\].

SS 4. _Rendition_. _entry_, _and docketing_. See 8 C. L. 338--Judgment cannot properly be rendered until all material issues have been disposed of by the finding \[17\]. Where one defends in two capacities, judgment may be entered against him in one, while the issues in the other are undetermined \[18\]. A judgment should be rendered within the time authorized by law \[19\], though the requirements thereof may usually be waived by the parties \[20\]. Where the cause of action survives the rendering of judgment after the death of the plaintiff is a mere irregularity \[21\]. Under the statutes of some states the findings, conclusions, and decree may be made simultaneously \[22\]. Notification of counsel before rendering the decision is not essential \[23\], unless a continuance has been granted \[24\]. It is not necessary for the order to contain the exact language of the entry of judgment to be made. The clerk is supposed to understand the order with reference to the case .and to make the entry in proper form \[25\]. Prior to entry the court, by the judge making the order or his successor, may correct the same \[26\], but a full and complete entry being made, the court is without power to treat it as ineffective \[27\].

_Form and contents \[See 8 C. L. 339--The judgment must describe the subject- ._

**12.** In such case motion for a new trial is in two days of the close of the term may be the proper remedy. Bond v. Pennsylvania R.

wavived by the parties. Rendition one day prior to close of term held waived where de- .\_

**13.** Where in a suit to recover a preferen- .\_

tendant stood by and made no protest. Rowe tail payment by a bankrupt defendants did .\_

v. Gohlman (Tex. Civ. App.) 17 Tex. Ct. Rep. not raise the point that another was inter- .\_

t50, 539, 88 SW 1071.

ested in the fund as the bankrupt's partner by plea in abatement, afflavit of defense.

58 SE 447, where a consent decree entered in or notice of special matter, it is too late to vacation was held void.

raise the question for the first time on a motion for judgment non obstante. Speck- .\_

man v. Smelley Bros., 153 F 711.

proceeding where a party seeks to recover, a judgment or decree rendered after the death of one of the parties does not render and answers to interrogations must be made before the court renders judgment for the opposing party on the interrogations without exception. Masterson v. Southern R. Co. \[Ind. App.\] 81 NE 730.

15. Sim v. Rosholt \[N. D.\] 112 NW 50.

01. See New Trial and Arrest of Judgment, S. C. L. 1153.

01. Everitt v. Jones \[Utah\] 91 P 860.

01. Where party defends as executor and individually as deveive of the maker of a note and mortgage, and files same answer in both capacities, judgment may be rendered as against him as executor while denumer to the other answer is still pending. Mosnat v. Uchytil, 128 Iowa, 274, 105 NW 519.

01. A judgment rendered in vacation is void. Jaqua v. Harkins \[Ind. App.\] 82 NE 920. Consent decree entered in vacation held void, there being no order in return authorization \[ing same and Civ. Code 1895, SS 4325 et seq., not having been compiled with. Sapp v. Williamson, 128 Ga. 743, 58 SE 447.

01. By consent of the parties a judgment in a term case may be rendered after the term. Comp. St. 1903, c. 20, SS 7, construed. Hayward v. Fisher \[Neb.\] 110 NW 884. A rule prohibiting rendition of judgment with- .\_

01.

matter with certainty.28 In a judgment for money the sum must be specified in words or figures with some mark or character designating the precise sum.29 That the decree fails to mention the names of the prevailing parties does not affect its validity, the names being ascertainable from the record.30 So, too, suit against one by a wrong name will not avail after appearance and answer.31 Clerical mistakes will be disregarded.32 A decree overruling demurrer to bill need not recite facts essential to sustain it.33 A judgment against plaintiff prior to a hearing on the merits should be without prejudice.34 In an action at law for the recovery of money where there is but one count in the petition and one in the counterclaim filed, there can be but one judgment.35

\_Entry, docketing, and recording.See * c. L. \*49-A judgment, on conclusions of law as well as on findings of fact,30 must be entered upon the judgment record of the court,37 and failing to be so entered it is not enforcible.38 There is a distinction between the rendition and the entry of judgment, the former being a judicial act which must be performed while the court is in session, while the latter is a mere ministerial act which may be performed at any time provided the record is afterwards examined, approved, and signed by the judge.30 The right to have judgment entered is an absolute one 40 and may be enforced by mandamus.41 To authorize 28. A patent is sufficiently identified in a decree by giving the number and name of the patentee, and the decree is not rendered void for uncertainty because the description of the invention is not given in the language of the title head of the patent, which is merely used for the purposes of classification in the patent office. Magin V. Standard Innal judgment and hence required by Code Civ. Proc. & 688, to be entered in judgment 29. Omission of word "dollars" or character indicating it renders judgment void - minutes of court under $8, relating to disflor uncertainty. Boyne v. Vanadia R. R. Co. \[Cai.\] $2 P 868. B. & C. Comp. $ 921, $70. A judgment in favor of one party by name "et al" does not operate to annul the judgment as to thp arties not named, they never having been eliminated as parties to the action. Garrigan v. Huntimer \[S. D.\] $11 NEW 563. Where corporation appears and answers in name by which it was used and did business, it cannot question the validity of a judgment entered against it in that name though it had previously changed its name. Robbins v. Midkiff \[Tex. Civ. App.\] $18 Tex. Ct. Rep. 47, 102 SW 430. Where in copying verified into judgment question answered "yes" was written "no," held a clerical mistake which did not invalidate judgment. Moore v. Woodson \[Tex. Civ. App.1 17 Tex, Ct. Rep. 364, 99 SW 116. 33. All material averments are admitted by demurrer. Joseph N. Elsendrath v. Gebhardt, 124 III. App. 325. 34. Default judgment against plaintiff upon failure to proceed on denial of adjournment should be without prejudice to a new action. Burnstine v. Reddy, 107 NYS 626. 35. Rev. St. 1899, $ 726. Dunnevant v. Mocksoud, 122 Mo. App. 428, 99 SW 516. 36. Comp. Laws, $ 10,266, 10,261, 10,297, require the entry of judgment by the clerk on a decision of questions of law as well as on findings of fact, Knack v. Wayne Circuit Judge, 147 Micl. 485, 111 NW 161. 37. The appearance docket is not the judg.

entry by the clerk there must be a judgment rendered by the court.\[42\] The judgment must not be prematurely entered,\[43\] the entry of judgment pending the consideration of the case by the court being erroneous,\[44\] though not rendering it a nullity.\[45\] There being no issue for trial, judgment may be entered,\[46\] but a final judgment should not be entered the day a default is made.\[47\] A money judgment may be entered over twenty years after its rendition, the presumption, if any, of its payment being rebutted.\[48\] In some states a notice of entry is required.\[49\] A judgment cannot be entered in the name of a deceased party.\[50\] After the record has been extended, docket entries cannot be considered a part thereof.\[51\] In order to be effective for the purpose of a lien, a judgment must be properly indexed.\[52\] Here delay in docketing the judgment will not ordinarily deprive the judgment creditor of the benefit of the lien when the judgment is properly docketed.\[58\] Rules providing that where a judgment is not entered on a verdict it shall be considered as entered on the last day of the term are applicable only to verdicts which are sufficient to support a judgment.\[54\] Clerical mistakes in making the entry may be corrected on motion.\[58\]

_Nune pro tunc entries.\[50\]_ & C. L.\[41\]\_-A person interested in the proceeding of a court of record may appear. before the court at any time and ask to have the journal of the court made correct and complete as of the date such record should have been made, and the court should entertain and hear such motion upon notice given to those adversely interested,\[58\] and upon a proper showing the court may correct its record nunc pro tunc at a subsequent term \[87\] or pending an appeal.\[58\]

42. Kansas City Pump Co. v. Jones \[Mo\] of entry of judgment in city court of New App.\] 104 SWT 1136.

01. Judgment on plea to jurisdiction held not prematurely entered. summons being swimmer, 52 Misc.\[45\], 103 XYS 562.

switched 80 days before first day of term on which it was returnable, and on motion for change of venue being granted transcript being filed in court to which venue was changed ten days before the first day of term. Davis v. Robinson \[Mo. App.\] 102 SWT 1048.

44. Judgment of dismissal without disposing of motion to refer to a commissioner, after a continuance had been granted, and without notice, held error. Samples v. Rankin, 30 Ky. L. R.\[845\], 99 SWT 985.

01. Entry of judgment before motion for new trial and in arrest had been disposed of does not nullify it as the judgment does not become final until their disposition. Warren v. Chicago, etc., R. Co., 122 Mo. App.\] 254, 99 SWT 16.

01. Where defendant's answer has been stricken and he has elected not to amend, judgment may be entered. Need not pass on motion for security of costs. Pliant v. Hirsch \[N. M.\] 83 PS 112 NWT 827.

01. Oakdale Heat & L. Co. v. Seymour \[Neb.\] 110 NWT 841.

01. Held rebutted by moving papers of judgment debtors stating that nothing had been paid. Puls v. New York, etc., R. Co., 54 Misc.\[303\], 104 XYS 374.

01. A notice entry of an Interlocutory judgment held to sufficiently show that the judgment was entered in the office of the clerk of the city court of the city of New York. Fourteenth Street Bk. v. Strauss, 54 Misc.\[588\], 104 XYS 956. An objection to the notice of entry of an interlocutory judgment, In that the cover when folded concealed the notice of entry, held frivolous. Id. Notice entry by the clerk there must be a judgment rendered by the court.\[42\] The judgment must not be prematurely entered,\[43\] the entry of judgment pending the consideration of the case by the court being erroneous,\[44\] though not rendering it a nullity.\[45\] There being no issue for trial, judgment may be entered,\[46\] but a final judgment should not be entered the day a default is made.\[47\] A money judgment may be entered over twenty years after its rendition, the presumption, if any, of its payment being rebutted.\[48\] In some states a notice of entry is required.\[49\] A judgment cannot be entered in the name of a deceased party.\[50\] After the record has been extended, docket entries cannot be considered a part thereof.\[51\] In order to be effective for the purpose of a lien, a judgment must be properly indexed.\[52\] Here delay in docketing the judgment will not ordinarily deprive the judgment creditor of the benefit of the lien when the judgment is properly docketed.\[58\] Rules providing that where a judgment is not entered on a verdict it shall be considered as entered on the last day of the term are applicable only to verdicts which are sufficient to support a judgment.\[54\] Clerical mistakes in making the entry may be corrected on motion.\[58\]

_Nune pro tunc entries.\[50\]_ & C. L.\[41\]\_-A person interested in the proceeding of a court of record may appear. before the court at any time and ask to have the journal of the court made correct and complete as of the date such record should have been made, and the court should entertain and hear such motion upon notice given to those adversely interested,\[58\] and upon a proper showing the court may correct its record nunc pro tunc at a subsequent term \[87\] or pending an appeal.\[58\]

42. Kansas City Pump Co. v. Jones \[Mo\] of entry of judgment in city court of New App.\] 104 SWT 1136.

01. Judg fore the entry nunc pro tunc of an order or judgment may be made, it must appear that there was a failure to record an order as judgment which the trial court intended as the disposition of the question considered.\[59\] An order nunc pro tunc will be made only in the furtherance of justice, and will not be allowed for the entry of an order announced when the evidence shows that the order was vacated by the court at the term of rendition.\[60\] The fact that the motion to modify is not made on as many days' notice as the rules of the court require for ordinary motions does not render the modification erroneous.\[61\] Where the default was that of the court or its officers, it is the duty of the court to make its record complete at any subsequent date when the default is called to its attention without the formality of a motion.\[62\] As a general rule the power to correct by nunc pro tunc entries extends only to clerical misprisions\[63\] and should be distinguished from the other amendatory powers of the court.\[64\] The power is a judicial one and cannot be exercised by the clerk.\[65\] Generally a judgment nunc pro tunc relates back to the time when it should have been entered and completes the record \[60\] except as to intervening rights.\[67\] One may become estopped to oppose the entry nunc pro tunc.\[68\] _Contents of the judgment roll_ See s c. L.\[62\] is largely statutory.\[69\] _Filing transcripts in other courts or offices.\[65\]_ See 6. C. L.\[62\]--In most states the judgment of an inferior court becomes the judgment of a superior court from the date of the filing of the transcript therein.\[70\] Cases dealing with the sufficiency of "certificates" are shown in the notes.\[71\] \_Cessation and propriety of amending, opening, vacating, or restraining enforcement. A. Before finality.\[65\] See 6. C. L.\[62\] During the term or until the judgment has became a finality,\[72\] the court has the inherent,\[73\] exclusive, plenary \[74\] _Cessation and propriety of amending, opening, vacating, or restraining enforcement._ See 6. C. L.\[63\] During the term or until the judgment has became a finality,\[72\] the court has the inherent,\[73\] exclusive, plenary \[74\] _Cessation and propriety of amending, opening, vacating, or restraining enforcement._ See 6. C.L.\[64\] See 6. C.L.\[65\] See 6. C.L.\[66\] See 6. C.L.\[67\] See 6. C.L.\[68\] See 6. C.

power, in the exercise of its judicial discretion, to vacate, alter, revise, or amend \[78\] the judgment for clerical, judicial or other errors,\[79\] and this power is not taken away by statutory provisions regulating the granting of new trials and the setting aside of default.\[77\] Though, except where the verdict has been procured by fraud,\[78\] an exception has been made where the judgment is based on a verdict and the motion is based on defects not appearing of record.\[79\] Opening a judgment and striking it are two entirely different things.\[80\] No court has power to strike off a judgment regular on its face.\[81\] The courts differ as to the trial court's power over the judgment during the term and after the determination of an appeal.\[82\] There being no terms in the bankruptcy court, it has full power to re-examine its orders upon timely application in an appropriate form.\[83\] An exercise of the power will not be disturbed in the absence of an abuse of discretion.\[84\] Where a motion to vacate a judgment is filed during the term, the fact that the hearing thereon was the property susceptible of partition in kind and appointing commissioners to make the restimony. Nelson v. Meehan \[C. C. A.\] 155 same is interlocutory and not final, and may be reopened, set aside, or modified on motion discretion and in furtherance of justice, set by the court which entered it. Dangerfield v. Calowell \[C. C. A.\] 151 F 554.

- 78. Ayers v. Lund \[O.T.\] 89 P 806; Ehrhart's Estate, 31 Pa. Superc. Ct. 120; Cohen v. Moore \[Tex.\] 113 New 588. DeGreece by mistake making distribution accord-Moore \[Tex.\] 19 Tex. Ct. Rep. 742, 104 SWW 1053.
- 80. Court of general jurisdiction possesses power to vacate its judgments during term of rendition when convinced that injected. Ehrhart's Estate, 31 Pa. Super. Ct. injustate has been done. Scott v. Joffee, 125 Mo. App. 573, 102 SWW 1038.
- 81. Patterson Produce & Provision Co. v. Wulkes, 1 Ga. App. 430, 57 SE 1041; Georgia 77. Cohen v. Moore \[Tex.\] 19 Tex. Ct. Rep. R, & Elee, Co. v. Hamer, 1 Ga. App. 673, 58 STE 8472, 104 SWW 1055.
- 82. Fabry of judgment notwithstanding 104 SWW 610; Scott v. Joffee, 125 Mo. App. 573, 102 SWW 103; Cochran v. Moriarty \[Neb.\] 111 NWW 583; State v. Several Parcels of Land \[Neb.\] 113 NWW 243; Miocene Ditch Co. v. 58 SE 818.
- 83. An order setting aside a decree entered at the same term pursuant to a settlement made by the attorney for one of the parties without the knowledge or authority of his client held within the proper discretion of the court under the facts shown. Id. Default judgment. Peek v. Eamsler, 104 NYS 346. Vacation of decree on day of entry to permit of introduction of further evidence held not an abuse of discretion. Ayers v. Lund \[O.T.\] 89 P 806.
- 84. During term court may amend or correct the record and judgment so as to make it conform to the rulings of the court. DeGreece confirming special assessment. McChesney v. Chicago, 226 Ill. 238, 80 NE 770. Irregularities in the rendition of judgment may be corrected by motion. Olson v. Mattison \[N. D.\] 112 NWW 994.
- 85. Judgment against garnishee or answer admitting indebtedness held properly set aside on showing that at time answer was filed garnishee did not know that note on which indebtedness was founded had been transferred. Patterson Produce & Provision Co. v. Wilkes, 1 Ga. App. 430, 57 SE 1047. The court having rendered a judgment sustain-ing a special demurrer to the plea and allowing time for filing an amendment, a sub-agent order extending the time prevented said judgment from becoming conclusive as against the defendants until after the ex-operation of such time. Lovelace v. Browne, 126 Ga. 802, 55 SE 1041. During term may continued to a subsequent term does not affect the jurisdiction of the court to grant relief.\[85\]

(SS 5) _B. Right to relief after the judgment has become final, as by the expiration of the term of rendition or of the statutory extension thereof._ See e. C. L. 544 \_Expect as to matters of form \*\* or as to clerical misprisions,\[87\] a final \*\* judgment **?** can-not be altered, amended, or vacated after it has become a finality,\[89\] unless it is void **?**

or mistake. Wagoner Nat, Bk. v. Welch \[Ind. T.\] 104 SW 610.

85. Stark Bros. v. Glaser \[Okl.\] 91 P 1040.

01. Where party is known by more than the one name designated in the judgment, the court may, upon proper notice given the criteria (see e.g. \[Tex. Civ.\], pures interested and upon sufficient facts (see e.g. \[102\], 102 SW 181. Rule being shown, amend the order by inserting the other names by which the incompetent was known. Order appointing committee for insane person. Spora v. German Sav. Bk., 114 NVS 260. Judgment held properly amended so as to insert plaintiff's true given name therein, same being a mere clerical error and defendant not being named thereby. Tim v. Berrick, 107 NYS 665.

Mistakes tu the description or names of parties may be corrected after the term during which judgment was rendered so as to make it conform to the decision. Chapman v. Western Irr Co., 75 Kan. 765, 90 P 284.

87. Sweeney v. Tritsch \[Ala.\] 44 S 184.

Wired the clerk failed to enter a judgment as of the proper date, the court should correct the judgment entry on motion made as required by statute and within one year after Applying the expiration of the term of rendition, though the mistake was not evident. Code 1857, 8401, 4093, 244, constructed. Gra Graael v. Price \[Towan\] 112 NV 827. A Judgment may always be reformed for the purpose of correcting computations made under it, regardless of whether the term at which it was entered has ended. Woodruff \[V. U. S., 154 F 861. Where a party has filed with the protohortary of the common pleas a certified transcript on appeal from a decree of the orphan's court, the latter court may modify its decree and reduce the balance due from the accountant, but is without jurisdiction to strike off the transcript from the recordant. In re Ashaman's Estate \[Pz.\] 67 A 842. May correct Judgement entry so as to make the judgment that which the court in fact rendered. Davison v. Davison \[Mo.\] 106 SW 1.

88. Rule prohibiting amendments of substance after the close of the term applies only to final judgments. Decree in foreclosions were providing for appointment of commissioner, a sale by him, and a report of his doings under the order appointing him, held not a final judgment. Venner V. Denver Union Water Co. \[Colo.\] 90 P 623.

01. Where the superior court entered on its docket, in an action to charge an admin-istrator with unfaithful administration, the words, "Nov. 19, 1906, Heard and decision for appellant. Exceptions." Such entry was a full and complete record of the decision that the appelle administrator was guilty of manifestation/adminstration, and hence court had no power to treat it as ineffective and to enter a new decision as of February 12, 1907, after vacating the former Court and Practice Act 1905, 8 303, considered.

or was procured by the fraud 92 of an adverse, prevailing party, his counsel or agents,93 or by accident, surprise, or mistake of fact,94 extrinsic of the matters decided,95 or unless the vacation or modification is ordered by an appellate court.99 Neither error 97 nor mere irregularities 98 will warrant relief in the trial court.

knowledge of plaintiff's attorney. Wolter \[take. Boggs v. Inter-American Min. & v. Liebmann, 52 Misc. 571, 102 NYS 487. En-Smitting Co. \[Md.\] 66 A 259. Only errors of try by clerk of judgment not rendered by fact affecting validity or regularity of pro-court held a nullity which court could set seedlings may be corrected at a subsequent aside at a succeeding term. Kansas City \[Mem. Davis v. Robinson \[Mem. App.\] 102 Pump Co. v. Jones \[Mem. App.\] 104 SW 1136. SW 1048. A judgment regular in appearance That defendant a nonresident corporation but of no effect because of some error of had knowledge of the pendency of a suit at-tent to not made to appear may be set aside at a subsequent term. City of Dearborn v. stranger held not to bar relief by it from Gann \[Mem. App.\] 105 SW 14. Where a parcel judgment by default. National Metal Co. of hand sought to be condemned was by mistake omitted from the petition, but hearing 635. A decree in equity dismissing a bill, and award proceeded upon theory that it entered by mistake on bill and answer, when was included therein, damages assessed in fact the case had not been set down for the hearing on bill and answer, is without juris-tift was entitled to have judgment referring diction and void and may be set aside on a bill in the nature of a bill of review. Per-kins v. Hendryx, 149 F 526. If a state court renders judgment in a cause which has been removed to the Federal courts, held error to refuse to vacate such judgment upon a motion thereor accompanied by a proper face on the part of all parties there was the records of the state court did not show that it had been deprived of jurisdiction.

Tomson v. Iowa State Traveling Men's Ass'n \[Neb.\] 110 NW 997. W. Koch \[Cal. App.\] 88 P 604: 92. Barnes v. Henshaw, 226 Ill. 605, 80 NE 1076: Boggs v. Inter-American Min. & Smell-ing Co. \[Md.\] 66 A 259: Scheer v. Ulrich \[VWs.\] 113 NW 661. Consent occree. Barnes v. Henshaw, 226 Ill. 605, 80 NE 1076. Code Clv. Proc. $ 602, considered. State v. Omaha County Club \[Neb.\] 110 NW 693. A defendant being wrongfully precluded from having her day in court, she is entitled as a matter of right to have the judgment va-cated. Fallon v. Crociocchia, 53 Misc. 503, 102 NYS 641.

92. Schere v. Ulrich \[VWs.\] 113 NW 661. C. W. Los Angeles \[Cal. App.\] 90 P 42. Er-Code Civ. Proc. $ 602, considered. State v. Omaha County Club \[Neb.\] 110 NW 693. Fraud of husband in concealing service of process in action against wife on debt for which he alone was liable held insufficient to warrant settling aside judgment. Lanier v. Nunnally, 128 Ga. 358, 57 SE 689.

01. Upon the expiration of the term of its rendition a judgment becomes final and will not thereafter be set aside except for fraud, as the vacation of the decreree would not re-circumstances depriving a party of an opportunity to present his case. Hockwald v. American Surv. Co. of New York \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 521, 102 SW 181. Consent decree. Barnes v. Henshaw, 226 Ill. 605, 80 NE 1076. Where word "ten" in provision of wlll bequeathing ten thousand dollars to certain legates was by mistake read as "two" and subsequent proceedings including a decree of distribution were based on such mistake, held decree was properly set aside, and award proceeded upon theory that it can v. Bacon, 160 Cal. 477, 89 P 317. Court having jurisdiction and judgment being reg-courstances, but not be stricken on motion of defendant, unless the latter was prevented from appearing and defending or upon some ground of fraud, surprise, or mis-
    Statutory enumerations of grounds of relief are generally deemed exclusive.\[99\] Unwarranted levy under the judgment does not warrant the vacation of the latter.\[1\] A court should not ordinarily amend a valid decision in an action tried to the court merely for the purpose of amplifying it,\[2\] and a new decision or a substantial change in the judgment cannot be made after the expiration of the term under the guiso of an amendment.\[8\] In many states the rule has been enlarged by statutes providing for the correction or vacation of a judgment,\[4\] and especially a default judgment \[5\] taken against a party through his mistake, inadvertence, surprise, or excusable neglect.\[9\] There is an apparent conflict as to the extent to which such statutes are rendered applicable to the Federal courts by the Federal conformity statute.\[9\]

not ground for opening judgment. Blake To- \[ cation by a party within one year after its bacco Co. v. Posluszsy, 31 Pa. Super. Ct. 602. \[ entry. Fink v. Woods, 102 Minn. 374, 113 Neither defect in the advertisement nor \[ NVW 909. Under Rev. St. 1899, $ 777 (Ann. St. omission in the list of creditors are ground \[1906, p. 752\], a party not served with sum- for the vacation of a judgment homologist- \[ nons and who did not appear in the action ing a receiver's account. Not ground under \[8\] is entitled to relief under a petition for Code Prnc, art, 606. Payne v. Schaeffer- \[ review notwithstanding actual knowledge of \[ Guiennle Co., 119 La. 382, 44 & 8 134. That the endravit showing monompliance by a \[ noncom

## 10. X. No. 4. Current Law, August, 1908.

(Copyright, 1908, by The Keefe-Davidson Company.)

**JUDGMENTS--Cont'd.**

Fraud in the procurement of a judgment does not render the judgment void but only voidable and is ineffective unless taken advantage of by motion or a proceeding in equity.\* Relief should be sought in the court of rendition.\* The granting of relief,\[10\] especially in the case of a default judgment,\[11\] is discretionary with the court, though in the latter class of judgment the discretion of the courts should be liberally exercised in setting aside the default.\[12\] Also the trial court is allowed wider control over the annulment or modification of judgments which, outside of the merits of the controversy, pertain to rules of practice and are rendered upon formal matters of procedure, than over judgments upon substantial matters affecting the merits.\[13\] In all cases, except where the judgment is void,\[14\] the establishment of a meritorious defense is essential,\[15\] and this requirement would seem to have been made essential in some states even in the case of a void judgment.\[16\] So, also, a judgment by default, court sitting in that state in an action of ejectment. Virginia T. & C. Steel & Iron Co. * Must establish a meritorious defense and v, Harris IC. C. A. J 151 F 428. * S Entry of judgment after payment of debt. Deadman v. Yantis, 230 Ill, 247, 82 NE * 592. * Regardless of residence of parties. Trimble v. M. V. Corey & Son \[Neb.\] 111 NW * 765. Under Kirby's Dig. $ 443, requiring $76. * 10. Riddle v. Quinn \[Utah\] 90 P 893. * 11. Western Loan & Sav, Co. v. Smith, 12 Idaho, 94, 85 P 1084; Hitchings v. Simmons, 53 Mise, 399, 104 NTS 794; Cutler v. Haycock \[Utah\] 90 P 897. Though judgment by default is irregular, defendant is not entitled to have same vacated as a matter of right. Default final entered on unverified complaint Cowan, McClung & Co. v. Cunningham \[N. C.\] 59 BE 992. * 12. Montijo v. Robert Sherer \[Cal. App.\] 91 P 261. In all doubtful cases the general rule of the courts is to incline toward granting relief from a default. Cutler v. Haycock \[Utah\] 90 P 897. * 13. Stroacham v. Wolf \[Ga. App.\] 58 SE 492. * 14. Flowers v. King \[N. C.\] 58 SE 1074. * 15. Default judgment. Peterson v. Plunkteft \[Cal. App.\] 82 PS 283. Fink v. Woods, 12 Ithinn. 374, 113 NW 809; Stevermark v. Landau, 121 Mo. App. 402, 99 SW 41; Cowan, McClung & Co. v. Cunningham \[N. C.\] 59 BE 922; Bartlett v. S. M. Jones Co. \[Tex.\]. Civ. App.\] 19 Tex. Ct. Rep. 551, 103 SW 705. Where judgment was rendered in an action to quiet title, defendant and applicant must set forth what he can prove in support of his title. Peterson v. Plunkteft \[Cal. App.\] 88 P 283. Will not be opened to admit a demurrer. Bowen v. Webb, 34 Mont. 61, 85 P 78. Proof based answer must state a defense. Willis v. James Rowland, 117 App. Div. 122, 102 NYS 186. Answer held to contain meritorious defense in part justifying settings asfde default, the judgment being permitted to stand as security. W. R. Lynn Shoe Co. v. Schunk, 101 Minn. 22, 111 NW 728. Held error to set aside default without finding that defendant had a meritorious defense. Stockton v. Wolf verine Gold Min. Co., 14 X. C. 595, 57 SE 335. * 17 defendant's affdavits show a prima facie Defense, it is the duty of the court to open a judgment by confession on warrant of attorney. Vennury v. Carr, 130 Ill. App. 309. Answer held to allege meritorious defense to action to enjoin setting up against judgment of claim accruing subsequent to its rendition. 10 Curr. L.--81.

will not be set aside in absence of showing by moving party that it was without fault on his part and the result of fraud, accident, or mistake.\[17\] The court should weigh the evidence,\[18\] consider the credibility of the witnesses,\[19\] and may or may not send the case to a jury.\[20\] The decision of the court will not be reversed on appeal unless its discretion has been manifestly abused.\[21\] In some states the jurisdiction of inferior courts in this matter is regulated by s:atute.\[22\] The courts do not look with favor upon judgments perpetuating illegal acts.\[23\] The rules as here stated do not prohibit the postponement of enforcement of the judgment even though the term of rendition has expired.\[24\]

_Courts of equity._ See s C. L. 548.--A court of general equity jurisdiction has the inherent, discretionary\[25\] powe: to set aside or enjoin the enforcement of a void\[26\] judgment at law, or one procured by fraud of an adverse party,\[27\] or by accident or mistake rendering its enforcement unconscionable,\[28\] unaccompanied by unexcused negligence,\[28\] or laches,\[30\] or fault\[31\] on the part of him who invokes the remedy or relief. Complaint alleging merely want of asge of act. Morris v. Duncan, 126 Ga. 461, service of process held not to allege a merit.\[45\] 4SE 1045.

fortious defense. Reed v. New York Nat.

Exch. Bk., 230 Ill. 50, 82 NE 341.

17. Wagner Nat. Bk. v. Welch \[Ind. T.\]

104 SW 610.

18. Groninger v. Acker, 32 Pa. Super. Ct. 124; Doyle v. Reiter, 32 Fa. Super. Ct. 251.

On an application to open a Judgment, the court may properly weigh the evidence and decide according to the preponderance thereof. McCullough v. Kinnan, 31 Pa. Super. Ct. 557.

19, 20. Groninger v. Acker, 32 Pa. Super. Ct. 124; Doyle v. Reiter, 32 Pa. Super. Ct. 251.

21. McCullough v. Kinnan, 31 Pa. Super. Ct. 557; Blake Tobacco Co. v. Postussy, 31 Pa. Super. Ct. 602. The appellate court will examine the record only to determine whether the discretion vested in him over application to open was properly exercised.

Bastan v. Paullmanns, 38 Pa. Super. Ct. 341.

Refusal to set aside default entered 16 months after filing of answer and cross complaint held not an abuse of discretion, application for vacation not being made until 8 months thereafter and there being no showing that default was not due to plain:if's negligence. Bannero v. McCure \[Colo.\] 80 P 70. Held an abuse of discretion to refuse to vacate default due to failure to file pleading in time, country being sparsely settled and communicated difficult and defendant presenting a sufficient excuse. Cutler v. Haroeck \[Utah\] 90 P 897.

22. Under Municipal Court Act, # 253, the municipal court of New York City has power to set aside default entered upon failure of defendant to appear on return day of summons. Hinds v. Calamarns, 107 NYS 28. Prior to amendment of Municipal Court Act, # 253, by Laws 1307, ch. 304, p. 554, the municipal court of New York City was without power to set aside a judgment on the ground of nonservice of summons, the only available remedy being by appeal. Mann v. Merzash, by 107 NYS 599. Motion to open default and to permit defendant to traverse return unaccompanied by proposed answer, or affavit of merits, held not a motion to open a default provided for by Municipal Court Act, # 253, and hence properly denied. Id. Acts # 253, to be used in a judgment on the ground of nonservice of summons, the only available remedy being by appeal. Mann v.

10 Cur. Law. JUDGMENTS SS 5B. 483

those representing him,\[32\] either as attorney \[33\] or guardian ad litem.\[34\] The rule has been denied where the courts are of co-ordinate jurisdiction.\[35\] That the judgment at law was unjust, irregular, and erroneous, or that equity would have arrived at a different conclusion, is not ground for equitable interference.\[36\] It follows that relief will not be granted where there is no claim of want or jurisdiction or of fraud or mistake, and where the situation of the parties remains unchanged.\[37\] A court of equity will not interfere with the enforcement of judgments at law unless the same are shown to be unjust and inequitable,\[38\] and unless the complainant has an equitable defense of which he could not avail himself at law,\[39\] or had a good defense or

\\begin{tabular}{l l} \\multic 484 JUDGMENTS. SS 5B. 10 Cur. Law.

remedy at law which he was prevented from availing himself of by fraud or accident unmixed with negligence of himself or agents.\[40\] Equity will control and restrain the enforcement of a judgment at law where otherwise such judgment would operate to give the judgment creditor an unfair advantage and render the court at law an instrument of justice,\[41\] and this rule applies where the judgment at law is relied on as a defense.\[42\] The denial of an application to open a judgment by a court of law after it has lost jurisdiction to grant it does not bar relief in equity.\[43\] Equity may restrain the enforcement of a judgment at law in order to give effect to an equitable set-off,\[44\] a judgment debtor is not debarred from the right to maintain a suit in equity to enjoin its collection or an allegation of set-offs against the beneficial owners which would render its enforcement inequitable by the fact that such set-offs are legal demands or unliquidated, especially where the defendants against whom they exist are nonresidents of the United States or are insolvent.\[45\] Where the judgment assailed is of such a character that equity may not properly set it aside, it may prevent an inequitable advantage being taken of it by adjudging the guilty beneficiary or his successor with notice a trustee for the defrauded party.\[46\] In this, or in other suits, equity acts in personam and not in rem.\[47\] Statutory regulations are sometimes encountered.\[48\] Statutes extending the powers of trial courts in granting relief against judgments when application therefor is made within a limited time do not broaden powers of courts of equity to grant relief in an independent prosecution.\[49\] In those states where one court possesses both law and chancery powers, it is not essential that the injunction proceeding be tried by the court rendering the judgment complained of.30

(SS 5) \_C. Fraud, accident, mistake, surprise, and other particular grounds.\_See 5 C. L. 551--Frand must lie in the procurement of the decree 61 and must be

50. Rev. St. 1895, art. 2936, relating to injunctions to stay proceedings in a suit or execution on a judgment, does not apply unless invalidity is not apparent from record. Ketelsen v. Pratt Bros. \[Tex. Circ. App. 1\] 18 and that no stenographer was called and the Tex. Ct. Rep. 956, 100 SW 1172.

01. The fraud must have directly induced the rendition of judgment and not merely have brought about a condition on the exist-ence of which the court acted as the basis of its judgment. Scheer v. Ulrich \[VWs.\] 118

144 N. C. 81, 56 SE 681. Allegations that evilver execution on a judgment, does not apply unless invalidity is not apparent from record. Ketelsen v. Pratt Bros. \[Tex. Circ. App. 1\] 18

184 N. C. 81, 56 SE 681. Allegations that evilver execution on a judgment, does not apply unless invalidity is not apparent from record. Ketelsen v. Pratt Bros. \[Tex. Circ. App. 1\] 18

185. The fraud must have directly induced the rendition of judgment and not merely have brought about a condition on the exist-ence of which the court acted as the basis of its judgment. Scheer v. Ulrich \[VWs.\] 118

1861; Dorman v. Hall, 124 Mo. App. 5, 101

18701; Uecker v. Thiedt \[VWs.\] 113 NWV

1871; Uecker v. Thiedt \[VWs.\] 113 NWV

18872; Uecker v. Thiedt \[VWs.\] 113 NWV

18873; Uecker v. Thiedt \[VWs.\] 113 NWV

18874; Uecker v. Thiedt \[VWs.\] 113

18875; Uecker v. Thiedt \[VWs.\] 113

18876; Uecker v. Thiedt \[VWs.\] 113

188776; Uecker v. Thiedt \[VWs.\] 113

1887778; Uecker v.

486 JUDGMENTS SS 5C. 10 Cur. Law. extrinsic or collateral to the questions examined and determined in the action.\[52\] Cases in which the facts are deemed to show or not to show surprise,\[53\] accident,\[54\]

\\begin{tabular}{l l} gated therein. Sargent Co, v. Baublis, 127 & mortgage did not Keep and had no intention \\ Ill. App. 63L. & of keeping, held collateral fraud warranting \\ & Note: The general rule as to what constitures extrinsic fraud or mistake is clearly \\ & & sale by trustees under a void trust in a will \\ & & on order of probate court obtained by con- \\ & in U. S. v. Throckmorton, 98 U. S. 65, 25 Law. \\ & e2d. 93. After stating the general rule that \\ & a bill in equity will not lie to set aside & a \\ & judgment obtained by means of perjured \\ & & held an extrinsic fraud justifying relief in \\ & & equity. Campbell-Kavanzanakos. v. Campen- \\ & in evidence In support of a contested issue \\ & & buli \[Cal.\] 92 p 184. Where the claim Averred \\ & of fact, that court says: "But there is an \\ & admitted exception to this general rule in \\ & upon and determined by the court, it is not \\ & cases where, by reason of something done \\ & by the successful party to the suit, there \\ & & relief against the judgment. Amestoy Estate \\ & & Co. v. Los Angeles \[Cal.\], 30 p 43. \\ & cision of the issue in the case. Where the \\ & & & \\ \\end{tabular}

\\begin{tabular}{l l} Co. v. Lose Angeles \[Cal.\], 30 p 74. \\ & & buli in a equity will not lie to set aside \\ & & not to scheme to defraud nonresident heirs, \\ & held an extrinsic fraud justifying relief in \\ & & equity. Campbell-Kavanzanakos. v. Campen- \\ & buli \[Cal.\] 92 p 184. Where the claim Averred \\ & to be fraudulent was one of the issues passed \\ & & upon and determined by the court, it is not \\ & & collateral and is not available as ground for \\ & & relief against the judgment. Amestoy Estate \\ & & Co. v. Los Angeles \[Cal.\], 30 p 74. \\ & cision of the issue in the case. Where the \\ & & & \\ \\end{tabular}
and mistake,55 or excusable neglect,56 are shown in the notes. The casualty and misfortune must be such as reasonable skill and diligence could not have avoided.57 The courts differ as to the effect of mistaken advice of counsel.58

ordinary action of assumpsit under Act 1887, employ of his codefendants and on informing P. L. 271. Commonwealth v. Perrego, 81 Pa.

them of service of summons on him was Super. Ct. 126.

54. Held not error to open default due to sickness of defendant and his attorney.

mistake. Montijo v. Sherer \[Cal. App.\] 91 P. Brawner v. Maddox, 1 Ga. App. 332, 68 SE 278.

Default for failure to file pleading held prop-

file undertaking or continuance held due to

ery set aside, defendant's counsel in good

exusable mistake, each of two defendants

**elink believing he had filed a demmer to the**

bl1. Schwarz v. Kennedy, 156 F 316.

**55. A. mistake which is available as a**

ground for equitable relief against a judge.

ment must be a mutual mistake of both

patries. Corbett v. Craven \[Mass.\] 82 NE 37.

**Mismureprenements of attorney, as to extension**

of time to answer, held ground for opening

default, motion being made during same term

and a meritorious defense being presented.

United States Fidelity & Guaranty Co. v. Com., 31 Ky. L. R. 35, 101 SWV 360.

**56. Neglect of agent to retain counsel not**

not to be tried at that term, and where a-

ground for setting aside default. Leinhart

v, Kirkwood, 130 Ill. App. 398. Where Judge

ment was rendered after due notice, absence

of one or party's attorneys in Europe does not warrant opening the judgment. Sarratt

v, Gaffney Carpet Mfg. Co. \[S. C\] 87 SE 616.

**Dimimicity of attorney in communicating**

with client held not to excuse default in failing to

ing to answer, as extension could have been

brosumed dollars instead of two, as read to

procured. Bishop v. Hughes, 117 App. Div. 425, 102 NYS 595. Default of defendants

held due to mismuerestanding of counsel warranting relief. Elliott v. Quinn \[Colo.\] 90 P.

607. Motion to open default held properly

denied, defendant's attorney buying know-

**ingly permitted** same to be entered for the

purpose of compelling plaintiff to sue in

other jurisdiction. Lowenthal v. Hodge, 105

NYS 670. Held error to deny motion of open

condition. Davis v. Robinson \[LMo. App.\]

default, where day before ingested defendant's

attorney was notified to proceed with ease in

audree court and on day of request was

been set, held not to constitute negligence

quired to appear in answer to a motion at

special term. Gumbinner v. Burns, 53 Misc.

642. 103 NYS 218. Denial of motion to open

default on ground counsel had verbully

arged to postpement held not erroneous.

Jones v. Morrison Shirt Wajat Co., 52 Misc.

651, 102 NYS 763. Where plenings were

mailed to attorney but not sufficiently

mid and hence refused, held no grounds for

opening default. Kuh v. Goldman, 104 NYS

255. That office elevars of plaintiff's attorney

thought ense would not be reached because

of its position on list on ready section of day

default in a law action against same party,

calendar, held not a sufficient excuse to warrant opening of default. Loehr v. Brooklyn

latter action. Wilson v. Jump \[Iowa\] 110

Ferry Co., 115 App. Div. 666, 101 NYS 209.

\*\*Failure to file answer held inexcusable,

fendant being represented by local counsel

to whom duty of filing answer was not en-

trusted, nonresident counsel, to whom it was,

having had ample time. Stockton v. Wol-

vering Gold Min. Co., 144 N. C. 595, 57 SE 385.

\*\*Pressure of business on the part of coun-

and answer held properly denied. North Side

sol, calling him out of the office a great deal

of the time and causing him to make a mistake as to the date of appearance, held

client to warrant relief on ground of want of

sufficient: Bowen v. Webb, 34 Mont. 61, 85 P

789. Where **nauswering defendant was in**

answer should be deemed controverted had 488 JUDGMENTS SS 5D. 10 Cur. Law. (SS 5) \_D. Procedure to amend, open, vacate, or enjoin.\_See 8 C. L. 552--The general rules of venue apply.\[59\] A judgment cannot be set aside at chambers for fraud or surprise.\[60\]

\_Time for application.\_See 8 C. L. 552--Application must be seasonally made 61 and within the statutory time.\[62\]

Footnote 6: The _T.C._ is a _T.C._ is a _T.C._.

not been filed pursuant to alleged agreement

vacate it held unreasonable. Smith v. Pelton Water Wheel Co. \[Cal.\] 90 P 934. Va-indexed, assistance of clerk not being re- cation of judgment by default held properly queried. Louisville & N. R. Co. v. Payne-

denied where application therefor was not ter's Adm'x, 31 Ky. L. R. 163, 101 SVW 935.

made until six months after entry of judgment, defendant having notice thereof, and mise, judgment, or advice of counsel, not until after his examination in supplementary ground for vacation of judgment. Painter

proceedings had disclosed property. Park v. Norfolk & W. W. R. Co., 144 N. C. 486, 57 SE v. Regan, 105 NYS 253. Delay of slightly 151. Held error to deny opening of defendant under than a year held not fatal laches, it where defendant relied on mistaken advice not appearing that delay in instituting pro-

of counsel that error in stating its name in

ceeding to, have judgment vacated was for summons rendered it fatally defective and the purpose of injuring adverse party or that no attention need be paid to it. Cainen

that such a result followed therefrom. City v. New York Contracting Co., 53 Music. 540, of Dearborn v. Gann (Mo. App.) 105 SWV 14. 103 NYS 725. The ignorance, blunders, or. Where delay of two years in seeking equati-

ill advice of a party's attorney is not ground

ble relief against judgment was caused by for relief against a judgment. the selection

proceedings to quash a default judgment, of the attorney not being induced by any act

and on appeal to the supreme court from. of the adverse party and the complaining

an order refusing relief inches was not party having a full knowledge of the facts.

shown, defendant not having been served Amestoy Estate Co. v. Los Angeles \[Cal.\] with process. National Metal Co. v. Greene App.\] 80 P 42. Code City. Proc. 8 473, held

sonfficiently broad to entitle a party to re- in adversary proceeding rendered after

lief on the ground of mistake of law on

death of one of the parties being voldable

the part of his attorney preventing him

merely must be attached within the time

from making a defense where application

and in the manner provided for setting aside is made thereunder. Id.

erroneous decrees. Hotchkiff v. Bussell

59. Action to restrain enforcement of

judsment against land of a stranger held

60. California: Filing and service of no-

properly brought in county in which land

tice of motion within six months after de-

is situated. Horvets v. Dunnman (Tex. Cir. App.) 18 Tex. Ct. Rep. 212, 102 SWV 462.

61. Barrett v. Gaffney Carpet Mfg. Co.

fixe months is not the making of an applica-

\[S. C.I 57 SE 616.

62. Applicant must proceed with reason-

\[S. C.I 57 SE 616.

63. Applicant must proceed with reason-

\[S. C.I 57 SE 616.

64. Applicant must proceed with reason-

\[S. C.I 57 SE 616.

65. Applicant is not the making of an applica-

able diligence. Cowan, McClung & Co. v.

Sunpex, Ct. \[Cal.\] 92 P 739. Code Civ. Proc.

Cunningham \[N. C.\] 59 SE 892. Application is 473, requiring application to vacate de

to vacate a void judgment held not too

fault to be made within a reasonable time

late because it was then too late to obtain

relief in the action against a default. Cross-

main V. Vivierla Water Co., 150 Cal. 575, 89

\[S. C.I 575. Discovery of fraud before disposal

than six months might be unreasonable.

tion of case on appeal does not preclude

Smith v. Pelton Water Wheel Co. \[Cal.\] 90 injured party from seeking relief in court

\[S. C.I 57 SE 616.

\[S. C.I 575.

62. Applicant is not the making of an applica-

below upon entry of mandate, such ground

\[S. C.I 575.

63. Applicant is not the making of an applica-

not being available on appeal. Louisville

court for relief against judgment to be

\[S. C.I 575.

64. Applicant is not the making of an applica-

\[S. C.I 575.

65. Applicant is not the making of an applica-

\[S. C.I 575.

66. Applicant is not the making of an applica-

\[S. C.I 575

### 10 Cur. Law. Judgments $ 5d.

decree.\[63\] The time within which relief may be had commences to run from the time of the entry of judgment and is not affected by an agreement staying execution pending determination of another case on appeal.\[64\] The disability of an insane person is terminated by death.\[65\] Limitations do not begin to run against a ward seeking to set aside a decree because of the fraud of the guardian, until the influence of the confidential relation has ceased,\[66\] and until something has occurred to raise a doubt in the mind of the ward as to the guardian's conduct.\[67\]\_Parties.\[See * C. L. 552\]\_All necessary parties must be joined.\[68\] In some states an administrator or heirs of a person may prosecute an application for the vacation of a decree against the deceased and affecting property rights.\[69\] A surviving plaintiff is not entitled to move to set aside judgment dismissing complaint on the ground of the death of a coplaintiff,\[60\] such judgment being in effect against the deceased party and the right is consequently only available to his personal representatives.\[71\]\_Modes and manner of procedure.\[See * C. L. 554\]\_A final judgment can be vacated as condition to right of appeal. Held such \*\*Texasas and set aside only on some proceeding authorized by law. Besides error and appeal,\[12\] the common-law remedies were on the law side error coram nobis and audita querela and later a motion during term to vacatc, and on the chaneery side by bill of review or by other bill appropriate to the case.\[73\] The judgment being void, certiorari may be employed.\[74\] Where the error in a judgment is apparent from the face of the record, the remedy is by appeal,\[75\] but when not so apparent a proceeding to vacate the judgment is proper.\[76\] In equity the ordinary remedy, when a decree is improperly entered, is by bill of review.\[77\] If the bill of review or other remedy is unavailable to vacate an erroneous judgment, relief may be had by suit in equity aided by injunction.\[78\] If a default judgment is illegal, defendant's remedy is by motion to open the default.\[79\] If it is erroneously entered, the proper motion is to vacate it.\[80\] Mandamus is not the proper remedy to annul a judgment on the ground of conspiracy and fraud.\[81\] An action in nullity of judgment on the ground of fraud cannot be brought by rule.\[82\] Statutory provisions control.\[83\]

\_Pleadings and practice.\[See S. C. L. 555.-Proceedings for correction are not generally deemed essential before bringing suit to restrain the enforcement of the judgment.\[84\] In Ohio a motion to set aside a default judgment and revive the cause for further consideration may be heard at a term subsequent to that of the entry of the judgment only when the motion has been filed during the term of the entry and duly continued.\[85\] A judgment cannot properly be modified or vacated without notice to the party affected thereby,\[88\] and when a modified judgment is entered without notice same should on motion be set aside.\[87\] This rule has, however, been altered in some states by statute.\[88\] Motions to modify must state the grounds upon which they are based.\[80\] A motion to correct the record so as to show the true date of the entry of judgment covers both the appearance rocket and the judgment record.\[90\] The complaint should show the fraud\[91\] and diligence on the part of the 84. So held where judgment was rendered in favor of plaintiff and another not a party defendant. Rev. St. 1899, art. 1357 considered. Houston, etc., R. Co. v. SKeeter Bros. (Tex. Circ. App.) 16 Tex. Ct. Rep. 941, 17 Tex. Ct. Rep. 538, 98 SV9 1064.

The complaint should show the fraud\[91\] and diligence on the part of the 84. So held where judgment was rendered in favor of plaintiff and another not a party defendant. Rev. St. 1899, art. 1357 considered. Houston, etc., R. Co. v. SKeeter Bros. (Tex. Circ. App.) 16 Tex. Ct. Rep. 941, 17 Tex. Ct. Rep. 538, 98 SV9 1064.

## 87 Payne v. Martin \[Colo.\] 89 P 46

Vacation of erroneous judgment of dismissal one car particle application at a subsequent term and without notice to defendant and entry portion from the judgment against him held Hartmetz, 54 Misc. 87, 104 NYS 498. Where judgment rendered without jurisdiction reclues voluntary appearance and trial remedy is by motion to set aside the judgment and not by appeal or error. American Surety Co. v. Bernstein \[Tex.\] 120 Tex, Ct. Rep. 1, 105 SV9 930, rvg. 102 SV81.

### V8. Corbett v. Craven \[Mass.\] 82 NES 37

### V9. So. Fourteenth Street Bk. v. Strauss, 54 Misc. 588, 104 NYS 956

### V8. State v. New Orleans Police Depet. Comm's, 112 A. 515, 44 S 283.

V8. Shera e default judgment was based on an order for substituted service which had been Improvloently granted, defendants' remedy was by appeal, as provided by Munich-pil Court Act, Laws 1902, p. 1578, c. 580, 510, 511, and not by motion for an order to set aside to set aside the order for substituted service. Wolter v. Liebmann, 52 Misc. 517, 102 NYTS 487.

applicant.\[92\] Conclusions of law should be avoided.\[93\] Statutory requisites, when applicable, should be followed.\[94\] In many states an affidavit of merits is not essential and may be dispensed with in the discretion of the court,\[95\] provided the application is accompanied by an answer setting up a good defense on the merits and the party has not been guilty of laches in making the motion.\[96\] Also, under the statutes of some states, an allegation as to the existence of a meritorious defense is not essential, the judgment being against a minor.\[97\] The pleading must not be uncertain nor multifarious.\[98\] A demurrer only reaches facts apparent on the face of the pleadings.\[99\] If attacked by motion or demurrer, an allegation that one has a meritorious and valid cause of action without more is insufficient,\[1\] though sufficient in the absence of such an attack.\[2\] The failure to allege date of entry of judgment or court in which it was rendered does not render complaint bad on general demurrer.\[3\] A bill for relief being for discovery it must allege want of evidence to establish defense and demand discovery.\[4\] A verification of a bill in equity to set aside a decree by one or more complainants, though not by all, is sufficient.\[9\] The petition averring fraud and false testimony, a verification on information and belief is insufficient.\[9\]

leged that they were disregarded. Riddle\[\] Sperry v. Sperry \[Tex. Clv. App.\] 18 Tex. v. Quinn \[Utah\] 90 P 893. Allegation that Attorney for defendant became interested for plaintiff and used his influence to obtain judgment for latter held indefinite. Estep v. Estep, 30 Ky. L. R. 577, 99 SWP 280. All-election of falsity of testimony not sufficient of payment. Horvets v. Dumman \[Tex. Clv.\] to charge perjury in absence of allegation of sleiter. Moore v. Guleley, 14 Nat N. C. 51, 909. Fink v. Woods, 102 Minn. 374, 113 NWP 56 SE 681. General allegations that Judge n.ent was procured by fraud which plaintiff can show by evidence which with reasonable allegations of the complaint is sufficient in at the trial held insufficient. Burgess v. Grier, 31 Ky. L. R. 215, 101 SWP 884. Petition Shelver \[Cal. App.\] 91 P 261. allegating that in reliance on certain unfulfled promises of plaintiff defendant did not attend trial, which did not avert that promotions or defense being taken, it is less were made with design to cheat and defen- fraud and with no intention of keeping tense, as under Civ. Code Pr. 8 126, the them, held not to allege fraud. Sperry v. Sperry \[Tex. Clv. App.\] 18 Tex. Ct. Rep. 876, 103 SWP 419. Petition alleging falsity of testimony as ground for vacation must land. 30 Ky. L. R. 831, 99 SWP 902. show what testimony was introduced and wherein it was untrue, the better practice to restrain collection of the judgment on being to attack affidavits of witnesses show- the ground that it was held by the judgment mightn't in trust for his codependants, against default on ground of "fraud of defendants and words and actions of defendants" attorneys" held insufficient in absence of allegation that "words and actions" were 516.

fraudulently made. Wagoner Nat. BK. v. Welch \[Ind. T.\] 140 SWP 610.

92. Petition to set aside judgment three months after expiration of term held not to show due diligence in ascertaining facts asserted as ground for relief. Sperry v. Sperry \[Tex. Clv. App.\] 18 Tex. Ct. Rep. 876, 103 SWP 419.

01. Complaint alleging that plaintiff has a complete defense without alleging facts showing in what it consists held bad on demurrer as a mere conclusion of law. Reed v. New York Nat. Ekch. BK., 230 Ill. 60, 82 NE 841. Petition to set aside judgment in action for divorce and for adjudication of property rights, alleging that testimony that property was separate property of plaintiff did not avert facts showing it to be communi- ty property, held to state a mere conclusion, Tex. Ct. Rep. 876, 103 SWP 419.

JUDGMENTS SS 5D. 10 Cur. Law. Failure to verify the petition to vacate is not ground for demurrer.\[7\] Equitable grounds for vacation cannot be set up in a motion in law, being triable only in equity.\[8\] In action to vacate a judgment on the ground that plaintiff was not a party, plea of res adjudicata is not applicable.\[9\] On a motion to vacate a default the court cannot consider matters going to the merits of the case other than to determine that the defense presented is meritorious.\[10\]

_Burden of proof and evidence.\[See 8\]_ C. L. 556--All reasonable indentments will be indulged in to support the regularity of proceedings of courts of general jurisdiction,\[11\] though there is a conflict as to the application of this rule to judgments based on constructive or substituted service.\[12\] The only service appearing in the record being insufficient to confer jurisdiction, another sufficient service will not be presumed,\[18\] though if the judgment recites due service of process the presumption of jurisdiction is not overcome by any defects in the record.\[14\] An amendment of a decree by a court of general jurisdiction is presumably within its power and made before the expiration of the term at which the cause was finally disposed of.\[18\] To open a judgment there must be a prima facie showing from which the court itself may infer that the relief asked would be in furtherance of justice.\[16\] It is not sufficient for the moving party to say as a legal conclusion that the judgment is improper or unjust.\[17\] Where the petition is traversed by a general denial, evidence to sustain the allegations of the petition is essential.\[18\] The proof of fraud, surprise or mistake must be clear and convincing.\[19\] The applicant must prove that he was free from service. To sustain judgment entered on service by publication, record must show compliance with statutory provisions authorizing publication. Schailer v. Marx \[Iowa\] 114 NW 42. Where defendant is without the territorial limits of the court, the record must show service, jurisdiction author being presumed in support of the judge-ment. Foregni corporation. Knapp v. Walsec \[Iowa\] 126 June 10: 93 P 1054. \[13\] Thompson v. Great Western Acc. Ass'n \[Iowa\] 114 NW 31. \[14\] Detective midmavit for service by pub- of wrtt. City of Chicago v. Condell, 124 IL. \[Iowa\] 114. Peterson v. Investors' Trust Co. App. 64. Where the affluxit of service of \[Iowa\] 19 P 596. Defect in summons. Bock \[V. Sanders\] 111 NW 57. \[V. Sanders\] 115. Magnin v. Standard Equipment Co. \[C. C. A.\] 150 P 139. Amendment of decree had not void nor subject to collateral at-Welsh v. Koch \[CAL. App.\] 88 P 604. After, although entered at a term subsequent to the decree, where the record does not sound that court required all to be done that affmixturesly show that such decree was a final disposition of the case. Id. \[R.\] 116. \[M.\] Smart v. Gaffney Carpet Mfg. Co. Eastern Kentucky Insane Asylum, 31 Ky.-L. L. K. 417, 102 SW 818. \[N.\] 117. Simple v. Corey \[Neb.\] 111 NW 376. \[Nag.\] 112. Burden is on compliant alleggg.v. Inter-American Min. & Smellet- \[Ingo Co. \[Md.\] 66 A 259. The burden being was made in another state. McDonald v. \[Cahron\] 44 S 385. Upon one who seeks to have a judgment, obtained on serv- \[Ingo\] 112. Anytime at the truth, relief will be det- \[Ingo\] 112. There only evidence of alleged fraud suit was had, is imposed the burden of prov- \[Ingo\] 112. Anytime was affected to an condition that ord showing that no evidence or proof was \[Ingo\] 112. Anytime was affected to an option that ord showing that no evidence or proof was \[Ingo\] 112. Anytime was affected to an option that ord showing that no evidence or proof was \[Ingo\] 112.

negligence.\[20\] Cases dealing with the sufficiency of the evidence are shown in the notes.\[21\]

\_Questions of law and fact.\_See s c. L. SSSS.

\_Judgment or order of vacation and extent and effect thereof.\_See s c. L. SSSS.

_The imposition of conditions on opening the judgment is largely discretionary with the court.\[22\] A conditional order setting aside a judgment merely suspends it until the conditions are fulfilled or broken.\[23\] Compliance with terms imposed in order granting motion to vacate judgment absolutely vacates it,\[24\] but the converse of this rule has not been applied in all cases.\[25\] Entry of judgment after the making of a conditional order of vacation raises a presumption that the conditions were not complied_

controverted by testimony of plaintiff, is in-sufficient to warrant opening or to require them of costs and the placing of the action submission to jury on trial of an issue awarded. Groninger V. Acker, 32 Pa, Super., Peck v. Kamsler, 104 NYS 346. Inequitable Ct. 124. In a proceeding to open a judgment, valid on its face, upon a petition alleging properly set aside without requiring the payment of costs by defendant. Reeves v. is founded is a forgery, to which there is a fully responsive answer, the defendant is _judgment_ is entered notwithstanding an answer, and the failure of plaintiff to call \_s_wer was served in time, the judgment should be opened unconditionally. An open-inal of the genuineness of the signature _dags_' notice of trial and that the cause be met. Blake Tobacco Co. v. Poulsuzzy, 31 Pa. Super. Ct. 602. Evidence held insufficient to warrant setting aside of a judgment at _Hughes & Co._, 114 Apr. Div. 110, 98 NYS 611, law by a court of equity on the ground of the alleged misconduct, fraud, and collusion of the complainants' attorney. Sanford v. White \[C. C. A.\] 150 F 724.

_Cilizens' ins. Co. v. Herpolisheimer \[Neb.\] 111 NW 606. Payiling to show that he could not have discovered evidence before, by the exercise of reasonable diligence, the application will be denied. Id._

_The application will be denied. Id._

\_The valuation of an order of the circuit court affirming an order of the country court apointing an administrator held sufficient though there was no affdavit of merits. In re Skelly's Estate \[S. D.\] 113 NW 91. Evidence held insufficient to show abuse of discretion in refusing to open judgment on \_s_round that instrument on which it was based was a forgery. Blake Tobacco Co. v. Poulsuzzy, 31 Pa. Super. Ct. 602. Evidence held insufficient to show that note upon which confessed judgment was entered $s$ or \_s with.20 Where both trial and appellate courts have concurrent jurisdiction over the opening of defaults, the granting of an application made to one on terms not complied with, bars a similar application to the other.21 The court should only grant such relief as is consistent with the pleadings, facts, and nature of the proceeding.28 The vacation of a judgment against one of several judgment debtors whose interests are inseparable vacates it as to the other judgment debtors,29 but the rule is otherwise where the judgment is severable.30 A judgment ceases to exist upon vacation and thereafter proceedings to give it vitality are ineffective.31 The effect of opening a judgment may be somewhat controlled by stipulation.32 In some cases the court may on vacating the judgment finally fix and determine the rights of the parties,33 thus, where relief is granted in equity on the ground of fraud, the court has full power to adjust the equities of the parties.34

\_Appeal or review.\_See * C. L. 599--The appealability of an order is largely statutory.35 Certiorari is the proper remedy to review an order setting aside a default judgment.36 The trial judge's findings of fact as to whether default was due to excusable neglect are conclusive on appeal.37 Error cannot be predicated on an

successful. Matthews v. Carmen, 107 NYS \[cndant alone. Nashville R. & L. Co. v. Travicki \[Tenn.\] 99 SW 698.

20. North Baltimore Bottle Glass Co. v. Altepeter \[Wis.\] 113 NW 435. Where a judge-

on a judgment note was set aside and vacant is vacated on condition and is re-

cated and defendant allowed to plea, held

tered after the lapse of the time set for the

error to subsequently attempt to reduce

performance of the condition, it will be presumed that the conditions were not complied

with. Id.

27. Court and Practice Act 1905, $ 428, empowers trial court to set aside default within

six months after entry, $ 471 empowers superme court to order trial within year after entry of default, held both courts have concurrent jurisdiction within six months' period. Moore v. Stillman \[R. I.\] $ 419.

28. Where the referee in bankrupty who

had been allowed to intervene in a mort-

gage foreclosure suit defaulted upon the trial, the fact of an order: opening a de

fault which required the trustee to furnish

an undertaking to meet any deficiency occasioned by the default held improper. Mc

Loughlin v. Collins Bldg. & Const. Co., 104

NYS 620. Where a void judgment entered on

alliged unshaped findings and a transcript

was filed in the county clerk's office after

motion to vacate the judgment, orders directing the striking of such findings and the

withdrawal of the transcript after vacation

of the judgment were proper. Sackett v. Price County, 130 Vis. $37, 110 NW $21. On

a motion to retax costs the court has no

right to reduce or modify the judgment, but

merely to direct that the amount disallowed,

if any, be credited on the execution. Ost v. Salmanowitz, 54 Misc. 547, 104 NYS 849.

20. Sturgis, Cornish & Burn Co. v. Miller

\[Neb.\] 112 NNV 595. So held as to judgment

against principal and varieties. Id. Where

after the consolidation of two suits separate

decrees are entered, they are In effect one

decree and an order vacating one vacates

both. Schallenberg v. Kroeger \[Neb.\] 110 NVV 664.

30. Where judgment is entered on ver-

dict finding in favor of plaintiff against defendants used jointly in separate amounts,

the court may thereafter on motion of

plaintiff dismiss as to one defendant and

render judgment against the remaining de-

\[endant alone. Nashville R. & L. Co. v. Travicki \[Tenn.\] 99 SW 698.

20. North Baltimore Bottle Glass Co. v. Altepeter \[Wis.\] 113 NW 435. Where a judge-

on a judgment note was set aside and vacant is vacated and defendant allowed to plea, held

tered after the lapse of the time set for the

error to subsequently attempt to reduce

performance of the condition, it will be presumed that the conditions were not complied

with. Id.

27. Court and Practice Act 1905, $ 428, empowers trial court to set aside default within

plaintiff and the judgment defendant a

six months after entry, $ 471 empowers superme court to order trial within year after entry of default, held both courts have concurrent jurisdiction within six months' period. Moore v. Stillman \[R. I.\] $ 419.

28. Where the referee in bankrupty who

had been allowed to intervene in a mort-

gage foreclosure suit defaulted upon the trial, the fact of an order: opening a de

fault which required the trustee to furnish

an undertaking to meet any deficiency occasioned by the default held improper. Mc

Loughlin v. Collins Bldg. & Const. Co., 104

NYS 620. Where a void judgment entered on

aligned findings and a transcript

was filed in the county clerk's office after

motion to vacate the judgment, orders directing the striking of such findings and the

withdrawal of the transcript after vacation

of the judgment were proper. Sackett v. Price County, 130 Vis. $37, 110 NW $31. On

a motion to retax costs the court has no

right to reduce or modify the judgment, but

merely to direct that the amount disallowed,

if any, be credited * 10 Cur. Law. JUDGMENTS SS 7.

- 11
- 12
- 13
- 14
- 15
- 16
- 17
- 18
- 19
- 17
- 18
- 19
- 20
- 21
- 22
- 23
- 24
- 25
- 26
- 27
- 28
- 29
- 27
- 28
- 29
- 30
- 31
- 32
- 33
- 34
- 35
- 36
- 37
- 38
- 39
- 37
- 38
- 39
- 40
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 47
- 49
- 48
- 49
- 40
- 41
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 47
- 49
- 48
- 49
- 40
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 47
- 48
- 49
- 40
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
- 41
- 42
- 43
- 44
- 45
- 46
- 47
- 48
- 49
  496 JUDGMENTS SS 7. 10 Cur. Law.

empt to impeach a judgment in a proceeding not instituted for the express purpose of annulling, correcting, or modifying such judgment.51

Footnote 51: See 17 A. & E. Ency. of Law \[2nd Ed.\].

\_Grounds.\_See * C. L. 561.--A court having jurisdiction over the parties, the subject-matter,52 and over the precise question the judgment assumes to determine or the particular relief which it assumes to grant,53 its judgment is not subject to collateral attack. A judgment void for want of jurisdiction 54 or for other reasons 55 may be collaterally attacked at any time 56 by any person who has not by his conduct estopped himself from questioning its validity,57 though, being a court of general jurisdiction, want or jurisdiction must affirmatively appear on the face of the record.58 The reason for this is that, as to a court of general jurisdiction, all

51. See 17 A. & E. Ency. of Law \[2nd Ed.\].

01. See 17 A. & E. Ency. of Law \[2nd Ed.\].

01. No. constitute a direct attack the main App. Div. 818, 102 NYS 181. Parent not a object of the proceeding must be the setting

party to adoptin proceedings held entitled aside of the judgment. O'Neil v. Potvin

\[Idah\] 93 P 20. Hence, where Independent corpus proceeding for the possession of the relief is sought, though it may require the

childer. Beatty V. Davenport (Wash.) J 85 vacation of the judgment, the attack is

51. No. judgment made by disqualified judge collateral. Action to quiet title against sale

on execution held a collateral attack. Id. being vold may be collaterally assailed.

An attempt by an independent proceeding to Bliss V. Caline Bros. Co. (Mich.) 14 Pt. Lge. Impeach a foreclosure de reordered in an

- N. 590, 118 NW 317. Diverse degree void for other court is a collateral attack on such de-

- N. 591, 118 NW 317. Diverse degree V. Gelllet held subject to col-

- C. E. 152 %57. A proceeding to \[208, 102 NYS 1015.

- Judgement imprisoning person for contempt

- Hinten, under Code, 4901, is not a collateral

- N. Wood &. Wood \[Iowa\] 113 NW 492. Proceedings to enjoin enforcement are col-

- P. Myla, 61 V. Var. 406, 956 SE 602.

- Judgement against a disoved expiration

- Suit to vacate judgment and to enjoin its en-

- Is void and may be collaterally impached

- R. Groem, 18

## 10 Cur. Law. Judgments $ 7.

jurisdictional facts as to which the record is silent will be presumed.\[59\] Becitals of jurisdictional facts are conclusive \[40\] unless contradicted by the record.\[61\] A decision on jurisdictional questions has the same binding force as against collateral attack as a decision upon any other question.\[62\] It is sometimes held that the presumptions in favor of jurisdiction are lacking where the service of summons is made by publication.\[63\] It will be presumed that all matters in controversy were disposed of by the

from the record, the judgment is subject to \[pleadings. Old Wayne Mut. Life Ass'n v. collateral attack. Order of county judge decreasing amount of guardian's bond held void under Rev. St. 1895, 81 1949-1952, 2066. Moore v. Hanscom'\[Tex. Civ. App.\], 19 17ex Ct. Rep. 707, 103 SWV 665. Where the record shows on its face that the court was without jurisdiction, the judgment is void. Franklin County v. Crow, 128 Ga. 458, 57 SE 784. Where the complaint was sunflect to give the court jurisdiction and the record shows due service of summons and entry of default, the judgment cannot be held to be void on its face. Robinson v. Blood \[Cal.\] 81 P 258. Want of service cannot be shown on collateral attack except where it appears on the record. Watermann v. Bash \[Wash.\] 89 P 556. Insunity of a party, not appearing on the face of the record, does not render the judgment subject to collateral attack. Wilkingson v. Lehman-Durr Co. \[Ala.\] 43 S 857. In a proceeding to nevive a dormant Judgment its validity cannot be collaterally assigned by showing want of service where same does not appear on the record. Smath-ers v. Sprouse, 144 N. C. 637, 57 SE 892.

59. Service, Page v. Garver \[Cal. App.\] 90 P 481; Knapp v. Wallace \[Or.\] 92 P 1054. Jurisdiction of defendant presumed unless judgment roll shows contrary on its face. Welsh v. Koch \[Cal. App.\] 88 P 604. Presumed that petition for sale of ward's real estate was filed before publication of notice. Mortgage Trust Co. of Pa. v. Redd, 38 Colo. 458, 88 P 473. Failure of record to show that father was absent from state when service was had on minors. Kaylor v. Hiller \[S. C\] 58 SE 2. Proceedings for appointment of committee for insane convict in a court of general jurisdiction. Trust Co. of America v. State Deposit Co. \[N. Y.\] 79 NE 996, Presumed that service prayed for in the petition was had though record contains no recitals of service. Flack v. Bramman \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 107, 101 SWV 537. Fresumed that probate court required into mental meaning of alleged imbecible before appointing guardian. Hare v. Shaw \[Ark.\] 104 SWV 931. On collateral attack it will not be presumed that' service by publication described defendant by his initials only merely because he was so described in the judgment and order of sale. Williams v. Lobban, 206 Mo. 399, 104 SWV 58. Decree entered in action by de facto corporation cannot be collaterally attacked on ground of nonexistence of such corporation. Whipple v. Tuxworth \[Ark.\] 99 SWV 86. Decree bearing date of day foliowing adjournment held not void on its face as made in vacation so as to render it subject to collateral attack, court having been in session on day fixed for hearing and for three days thereafter. Temple v. Preston \[Mich.\] 14 Det. Leg. N. 772, 114 NWV 336. Presumption of jurisdiction will not be induced on such decree for the purpose of as-dugled in an collateral attack where want of jurisdiction affirmatively appears from the order of publication. Id.

10 Curr. Law. -- 83.

498 JUDGMENTS SS 7. 10 Cur. Law. judgment." For the purposes of collateral attack a transcribed judgment is generally deemed the judgment of the superior court." Want of jurisdiction cannot be shown by extrinsic evidence." Fraud, unless perhaps when it goes to the jurisdiction of the court," is not ground for collateral attack." An erroneous judgment," or one voidable for mere irregularities of procedure," cannot be collateralally at-

44. Towne v. Towne \[Cal. App.\] 92 P 1050. 46. 5.

10 Cur. Law. JUDGMENTS SS 8. 499

tacked. The courts are not in full harmony as to what constitutes an irregularity within the meaning of the rule referred to. Generally speaking, however, an irregularity may be defined as a failure to follow appropriate and necessary rules of practice or procedure, omitting some act essential to the due and orderly conduct of the action or proceeding or doing it in a proper manner.\[71\] Errors or defects of this character, that may be amended without prejudice to the absolute rights of the parties, do not affect the jurisdiction of the court to the extent that its final action is a nullity,\[72\] but proceedings outside the authority of the court, or in violation or contravention of statutory prohibitions, are, whether the court has jurisdiction of the parties and subject-matter of the action or proceedings or, not, utterly void.\[73\] A collateral attack on the ground of fraud must be made within a reasonable time after the discovery of the fraud.\[74\] The same general principles apply to probate \[75\] and bankruptcy \[76\] decrees, to judgments by confession,\[77\] and to judgments of courts of competent jurisdiction in special statutory proceedings.\[78\] $ 8. _Lien. When and to what it attaches,\[86\]_ S C. L. 188a--The lien of a judgment does not attach in favor of persons not parties to the action.\[79\] Until levy a judgment for money is not a lien on the property of the judgment debtor.\[80\] The lien covers all the real property of the judgment debtor, reaching, however, only the interest of the latter therein.\[81\] A judgment against an adult Indian is not a lien upon his inherited trust lands situated in the county where the judgment was ren

by creditors for any defect appearing on presumptions of jurisdiction of subject-the face of the record, must be taken in con-mater and parties as judgments of the notion with $ $386, prohibiting such attack

same court when proceeding according to the course of the common law. Sale of ward's ferro, 1 Ga. App. 255, 58 SE 128.

71, 72. Sache v. Gillette \[Minn.\] 112 N NV 386.

73. Sache v. Gillette \[Minn.\] 112 N NV 386.

01. Sache v. Gillette \[Minn.\] 112 N NV 386.

01. Low v. Skaggs, 31 Ky. L. R. 1292, 105

In an action to determine adverse claims, a default judgment awarding relief beyond the scope of the allegations is void. Rev. Laws 1905, $ 4262, construed. Id.

74. Mahoney v. State Ins. Co., 113 Iowa, 570, 110 N7 1041.

01. A degree admitting a will to probate is not subject to collateral attack. Cohen v.

Herbert, 205 Mo. 537, 104 SW 84. Judgment of probate court allowing claim against es-tate cannot, in the absence of a showing of fraud, be attacked in a proceeding to enjoin the sale of property to satisfy it. Williams v.

Riser \[Ark.\] 104 SW 647. Under Const. art.

5, $ 21. the probate court is a court of record as to matters of probate and its records, judgments, and proceedings import absolute verity. In re McVay's Estate \[Idahol 93 P \]

76. Adjudication in bankruptcy imports absolute verity. Edelstein v. U. S. (C. C. A.)

149 F 636.

77. Judgment by confession is not subject to collateral attack in the absence of fraud, want of jurisdiction, or other defect ren-dering it. void. Gilman v. Heitman \[Iova\]

118 Nvw 921. Judgment entered on consent cannot be collaterally attacked by party allegations want of consent. Hollegnk v.

Histor, 128 Ga. 52, 57 SE 108. Want of aux-dinity to confess judgment appearing on

89 P 638. Where a judgment had been re-covered against the purchaser of certain subject to collateral attack. Rasmussen v.

Hakler, 15 N, D, 542, 108 N7 541.

78. A judgment of a court of competent jurisdiction, although rendered in a special

for seven years to Hurd's Rev. St. 1905, statutory proceeding, is entitled to the same

a. 77, $ 1, as soon as the purchaser ac 500 JUDGMENTS SS 9. 10 Cur. Law. dered." Under the Illinois Chancery Act, decrees in equity constitute liens on reality to the same extent as judgments at law.\[83\] To constitute a lien the judgment must be recorded in the manner provided by statute.\[84\] The indexing and transcribing of a judgment for the purposes of a lien is treated elsewhere.\[85\] Where a dormant judgment has been revived, it is a lien on defendant's property only from date of revival.\[86\]\_Duration of lien.\[85\]\_S c. L. 564--A judgment lien is created by statute and is destroyed by statute.\[87\]\_Rank and priority of lien.\[85\]\_S c. L. 567--The judgment lien is superior to the rights of the grantee of an unrecorded deed.\[88\] Cases determining the rank of the judgment lien with reference to other liens and rights are shown in the notes.\[89\]\_Mode of asserting lien.\[85\]\_S c.L. 588. \_Release.\[85\]\_S c. L. 252. \_"Judicial mortgages."See 6 C. L. 258--In a hypotheary action to enforce a judicial mortgage, parol evidence is not admissible to prove that the purchase price of the property was not paid in cash, as recited in the deed to defendants' author, but that the true consideration was partly cash, a special mortgage held by the purchaser, and his assumpsit of a vendor's lien and mortgage held by a third person.\[90\] Using the purchase price to pay pre-existing mortgages which were extinguished and canceled of record, gives no right of subrogation to the purchaser or his assigns.\[91\]\_SS 9. \_Suspension, dormancy, and revival.\[85\]\_S c. L. 588--The life of a judgment is generally regulated by statute and varies in the different states.\[92\] In some states

quired title, subject, however, to a trust deed \[fore the owner's adjudication as a bankrupt given for the npapld portion of the price.\] is not removed by the order canceling the Wehrheim V. Smith, 226 Ill. 346, 90 NE, 808. \[82\]. Beall V. Graham, 75 Kan. 98, 88 P 543. \[83\]. Character Act. SS 44-45. Decree for all- 54 Misc. 552, 104 NYS 852. \[83\]. many may be made a lien on reality of deed.\[88\]. Under Code 1906, & 3106. Logan v. Balendant. Leafgreen v. Leafgreen, 127 Ill. \[89\]. Vol. Va. 471 SE 142. \[80\]. \[81\]. \[82\]. Butry of tabulated or abstract statement of contents of clerk's certificate held \[83\]. \[84\]. \[85\]. \[86\]. \[87\]. \[88\]. \[89\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[90\]. \[91\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[98\]. \[99\].

10 Cur. Law. , JUDGMENTS SS 9.

the judgment dies with the judgment debtor unless revived against his legal representatives." Where pending equitable proceedings in which it is involved a judgment becomes dormant, its revival is not essential to the protection of the judgment creditor's rights." A judgment, though an obligation, is not within a' statute making all joint obligations joint and several," hence a several revival of a joint judgment cannot be had." A void judgment cannot be validated by an order of revival." A proceeding to revive a dormant judgment is a continuation of an action previously commenced, and in case of an assignment of the judgment such proceeding may be had in the name of the judgment creditor, if living or in the name of the assignee as the real party in interest." In most states statutes regulate the time and manner of procedure for reviving a judgment."' Scire facies to revive a judgment is treated elsewhere.1 The general law as to the statute of limitations does not apply to a proceeding to revive a dormant judgment.2 In most states a transcribed judgment being deemed a judgment of the superior court from the date of the filing of the transcript therein, the period of limitations begins to run from such date,3 and extends for the same length of time applicable to other judgments of the superior court.4 An acknowledgment of the debt evidenced by the judgment will not prevent the running of the statute of limitations so as to permit of revival.5 The general rules of pleading apply.6 A return to a summons in an action to revive a judgment that the time within which the judgment could have been revived has long

The entry as it appears on the execution should be recorded in the docket. Id. Non-examinance with Civ. Code 1895, $ 3761, pro- or. Cottingham, V. Smith \[Ala.\] 44 S 864. viding for entries on execution, held not to 98. Moline Milburn & Stoddart Co., V. Van denuder judgment dormant where during en-

Boskirk \[Neb.\] 111 NVR 605. Revival of tire period of limitations judgment creditor

udSTEM in name of transfreeze instead of constantly endeavored to enforce judgment,

In name of original plaintiff for use of

but was restrained from doing so by legal

transfreeze, as required by Civ. Code 1896, proceedings set in motion by judgment

$ 5384, does not render it void. Chapman v. debtor and his wife, Smith . Ya. Zachery, I Ga.

Taliaferro, I Ga. 205, 68 SE 128.

App. 344, 57 SE 1011.

**Onliore Decrees charging specifico property**

don not become dormant, but rights given

for revival of dormant judgments, held to

thereby may be lost by laches in permitting

applying to all judgments in force at time of its

them to remain inactive for a great length

passage which were not then barred by laimtiff of time to the prejudice of innocent parties.

tation. Doehlu v. Phillips \[Call.\] 91 P 330. However, where there is a valid excuse for

Under Code Civ. Proc. $ 686, and $ 686, as

not enforcing the degree (as in this case,

amended by Act April 9, 1935, personal repre-

the assertion and allowance of a nonceated),

it will continue a charge upon the property

as against the entire world. Smith v. Philipas, 5 Ohio N. P. (N. S.) 502. A degree in

def in the latter section, but is entitled to

equity charging specifico property with the

payment of a debt, and ordering a sale

thereby, does not become dormant at the

expiration of five years unless execution is

issued. Not being a personal judgment, it is

not enforcing by execution, and therefore

$ 5380, relating to dormancy of personal

judgment, is not applicable to it. Id.

89. People's B. of Kentucky's Assignee v. Barbour, 30 Ky. L. R. 712, 99 SW 608. In

the absence of a revival, an execution issued

on the judgment is void as to his estate and

does not prevent the running of the statute

of limitations. \[Under Ky. St. 1903, $ 2514,

the period of limitations is to be computed

from the date of the last execution on the

judgment. Id.

94. Judgment and lien thereof involved in

foreclosure suit, Wehrein V. Smith, 226 IL,

345, 80 NE 908, rvg. 126 IL. App. 228.

\*\*95. Hurd's Rev. St. $ 3, ch. 76, does not

apply to judgments. Eastman v. Crawford,

126 IL. App. 320,

96. Revival must be had as to all parties.

Boskirk \[Neb.\] 111 NVR 605. Revival of

the period of limitations judgment creditor

udSTEM in name of transfreeze instead of

but was restrained from doing so by legal

transfreeze, as required by Civ. Code 1896,

proceedings set in motion by judgment

$ 5384, does not render it void. Chapman v. debtor and his wife, Smith . Ya. Zachery, I Ga.

Taliaferro, I Ga. 205, 68 SE 128.

**99. California:** Code Civ. Proc. $ 685, as

and amended by St. 1885, p. 3, c. 83, providing

for revival of dormant judgments, held to

thereby may be lost by laches in permitting

applying to all judgments in force at time of its

them to remain inactive for a great length

passage which were not then barred since expired is a sufficient plea of the statutory bar.7 The construction placed on various judgments of revival are shown in the notes.8 A scire facias to revive a judgment is a continuation of the former proceeding,9 but it so far partakes of the nature of an original action that the defendant may appear and plead thereto.10 In Maryland scire facias to renew a judgment is a judicial writ which may, however, be converted into an action by appearance and plea thereto by the defendant.11 It is not the equivalent of an action on the judgment, its function being to continue the effect of and to have execution on a former judgment.12 It must be brought within the statutory time.15 State statutes cannot restrain or limit the power of the Federal courts to issue writs of scire facias to revive judgments and to provide a reasonable method of service without the district where the judgment debtor has departed therefrom.14 The conformity act does not require the Federal courts to adopt the method of service of writs of scire facias to revive judgments prescribed by state statutes where such methods are insufficient.15 Rules of court applicable to ordinary actions at law have no application.16 The plaintiff in scire facias must produce the record,17 and his right to a revival of the judgment depends upon its showing as to the jurisdiction of the court,18 but a defense predicated upon want of jurisdiction must fail, if the showing is dependent upon facts dehors the record.19 The only defenses which can be set up in scire facias are that no judgment was rendered, or if one was rendered that it has been satisfied or discharged.20 The considera'ion of the judgment cannot be inquired into on scire facias to revive it.21 In scire facias to revive a judgment, a plea of nul tied records raises only the question whether there is a record of a judgment corresponding to that set out in the writ.22 The general rules of pleading 23 and evidence 24 are to some extent applicable.

## 6.1. The foundation of the judgment

The foundation of the judgment is that the judge is not a judgment but a judgment is not a judgment but a judgment. The judge is not a judgment but a judgment.

- 10Cur. Law. JUDGMENTS SS 11.

- 10Assignment of judgment. See 10C. L. 570--With reference to assignment, a judgment is simply a chose in action and the assignee takes subject to any defense or right of set-off, legal or equitable, which was available in favor of the judgment debtor as against the assignor 26 at the time of the assignment,28 even though the assignee had no notice thereof.21 An assignee of a part interest in a judgment has no lien or interest on property attached in the action 28 and cannot maintain an action at law against his assignor.29 He has however an equitable interest therein sufficient to enable him to hold his assignor to account in equity as trustee for his share

- of the proceeds of the enforcement of the judgment.30 The property sold to satisfy the judgment being decoded to the judgment creditor and his assignee of a half interest jointly, the latter is not entitled to further relief.31 Assignment of judgment being doubtful in its terms, parol evidence is admissible to show the assignee's interest.32 Specific performance of an agreement to purchase a worthless judgment will not be decreed.33 The general rules of pleading 34 and of evidence 28 apply. SS 11. Payment, discharge, and satisfaction. See 10C. L. 570--Payment to an unauthorized person does not discharge the judgment, the creditor not receiving the funds.34 Payment to the party of record without notice of the interests of others satisfies the judgment.37 The presumption of payment from lapse of time is generally deemed prima facie only 38 and does not arise where the facts are inconsistent with such a presumption.39 The effect of statutory presumption depends upon their terms.30 Defendant in repleniv cannot demand satisfaction pro tanto upon a return of a portion of the chattels in a damaged condition.31 A discharge of a defendant

- 11Cour of civil appeals, record of same as entered in minutes of trial court held admissible in evidence. Henry v. Red Water Lumber Co. \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 216, 102 SWV 149.

- 125De Laval Separatot Co. v. Sharpless, 134 Iowa, 28, 111 NWV 438; Small v. Ushet \[LS. C.\] 57 SB 623. A judgment is not a negotiable instrument, and a purchaser stands merely in the shoes of his assignor. Judgment for allmony. Cohen v. Cohen, 150 Cal. 99, 88 P 267.

- 126Assignee does not take subject to judgment against his assignor assigned to judgment debtor subsequent to assignment to him and satisfaction thereof on execution sale. Miller v. Rosebrook \[Iowa\] 113 NWV 771.

- 127De Laval Separator Co. v. Sharpless, 134 Iowa, 275, 111 NWV 438.

- 128Gebhardt V. Merchant \[Ark.\] 105 SWV 1036.

- 129, Kirby's Dig. 11 391-393, 425-429, and 6012, giving a remedy to person having an interest in the property itself, do not apply. Gebhardt v. Merchant \[Ark.\] 105 SWV 1036.

- 130Gebhart v. Merchant \[Ark.\] 105 SWV 1036.

- 131Where court directed that land ordered sold in satisfaction of judgment should be decided to judgment creditor purchasing same and his assignee of a half interest in the judgment, jointly, held that assignee obtained all the relief to which he was entitled. Gebhardt v. Merchant \[Ark.\] 105 SWV 1036.

- 132First Nat. BL. of Payette v, Miller, 48 Or. 587, 87 P 892.

- 133Agreement to purchase judgment for $900 against an insocient at its face value. Spotts v. Eisenhauer, 31 Pa. Super. Ct. 89.

- 134Where in action for wrongful release of judgment after its sale to plaintiff defendant did not pleead failure of considera- tion, plaintiff's want of title to land forming 504 JUDGMENTS SS 12. 10 Cur. Law.

from execution not appearing to have been by authority of the plaintiff or to have been acquiesed in or approved by him does not discharge the judgment.\[42\] A court of equity is without jurisdiction of a suit for a decree requiring the entry of satisfaction of a judgment at law, the court which rendered such judgment having full power over it, and to grant any relief in respect thereto which justice may require.\[43\] To 'vacate the record of a satisfaction of judgment, however, either upon motion or in an independent action, involves the cancellation of a written instrument, one of the recognized subjects of equity jurisdiction, and involves the exercise of a sound discretion.\[44\] Whatever mode of procedure he pursued, the remedy sought is governed by equitable principles, the ultimate question being whether it is inequitable for the person relying thereon to avail himself of the entry of satisfaction.\[45\] Where equitable conditions may be imposed,\[46\] notice sent by registered mail and receipted for by addressee is generally deemed sufficient.\[47\]

_Restitution after reversal._ See s C. L. #72--Payment of judgment pursuant to stipulation as condition to appeal to determine solely certain questions of liability raised by defendants, amount to be repaid in case of reversal, held a mere depositwas security and not a payment of the judgment.\[48\]

8 12. _Set-off._ See s C. L. #72--Mutual judgment 49 may be set off against each other, especially where one of the judgment debtors is insolvent.\[50\] The right is lost by the assignment of the judgment in good faith and for a valuable consideration prior to the rendition of judgment against the assignor.\[51\] "Claims" may, in some states, be set off against a judgment.\[52\] Though as a general rule a mere contract debt cannot be set off against a judgment,\[53\] the rule is different where the parties agree that work to be performed by the judgment debtor shall be applied toward the satisfaction of the judgment.\[48\] Equitable grounds of a set-off must be pleaded and proved.\[55\]

8 13. _Interest._ See s C. L. #72--In New York, by statute, a judgment of a court

41. Horses rendered in a diseased condition--was sold separately, one parcel of which, Jones v. Messenger \[Colo: 190 P 64.

01. Wood v. Tyrrell \[R. L.\] # 439.

01. Macrum v. U. S. I. C. A. 154 F # 685.

owned by debtor as condition to vacation 44. Plan Maffe Co. v. Thompson \[S. D.\] 112 of satisfaction of judgment pro tanto based NV 149.

45. 45. Plan Maffe Co. v. Thompson \[S. D.\] 112 of \[M. App. 102 W 36.

112 NW 149. Where defendants' property was sold by direction of the plaintiff and the 282.

46. Persons v. Gardner, 105 NYS 616.

proceeds applied in partial satisfaction of a judgment obtained against him, willfully judgments but be set off until after him to expense and inconvenience so that the justified argument against him had been assigned and parties would not be restored to the position satisfied by execution sale, there was no mutually requiring set off. Miller v. Rose-

tion if it were canceled, held the court acted brooking \[Tow11\] 118 NW 711.

within its discretion in refusing to cancel the record of partial satisfaction, notwithstanding the defendant had recovered a judgement against the harmful for his consequences.

47. People v. Carter, 19, and 5 96,

judament against the sheriff for his consequences.

version of the goods wrongfully sold, which against a creditor arising before assignor the plaintiff had to pay as his indemmitor.

Id. Partial satisfaction entered upon pur purthe judgment creditor or his assignor. Clark

chase by judgment creditor at execution sale v. Raison, 31 Ky. L. R. #95, 104 SW 342.

under erroneous belief that property was v. Kass, Lilly v. Cox, 61 W. Va. 547, 56 SB 900.

owned by debtor is ground for vacation of 54. Items of work and services performed satisfaction. Bailey v. Buchanan (Mo. App.) under such an agreement held properly set

102 SW 36. Where on motion to vacate a \[off. Lilly v. Cox, 61 W. Va. 547, 56 SB 900.

satisfaction entered by cirth on an insulimit.

55. Heid not error to refuse to set off

cient showing, under Rev. v. 1887, 84 1461, judgment for costs in favor of defendant

it is the duty of the court to examine into against assignor of judgment for plaintiff, and determine whether the judgment was grounds for equitable relief not being in fact paid. Tanner v. Wood \[Idaho\] 90 pleaded or proved. Missouri, K. & T. R. Co.

P 733.

v, Cassinoba \[Tex, Civ. App.\] 17 Tex. Ct.

48. Where each parcel at an execution sale Rep. 431, 99 SWV 858.

#### 10.1.1 Introduction

The _Judgment_ of 506 JUDGMENTS SS 15. 10 Cur. Law.

Statutory proceedings are peculiar. \[80\] Execution, other final process, and creditors' suits, are treated elsewhere. \[70\]

SS 15. _Audita querella._ See **c. L. 125.**--The wit of audita querela does not lie where the party has had a legal opportunity to defend but has neglected it, \[71\] and being a suit in equity to which the parties may plead and take issue on the merits, it cannot be sued against the United States. \[72\]

SS 16. _Actions on judgment; merger._ See **c. L. 572**--Whenever.it is made to appear that a second judgment may be in any respect more available than the first, an action on it may be maintained regardless of whether it is dormant or not. \[73\] The judgment sued on must be a final one. \[74\] An action or a judgment is an action of debt, \[75\] and though the state practice in such case permits assumpsit, the principles applicable to the common-law action of debt govern; \[76\] hence an action can be maintained on a decree in equity only where it requires the payment of a specific sum of money absolutely and unconditionally. \[77\] The action must be prosecuted by the real or beneficial owner of the judgment, \[78\] and must be brought within the statutory time. \[79\] As a general rule a judgment is not deemed a "contract" within the meaning of statutes of limitation. \[80\] Statutes limiting the time for suing on judgments are generally deemed to apply to final judgments only. \[81\] In Minnesota an action upon any judgment, domestic or foreign, must be brought within ten years from the rendition thereof without reference to the residence of the judgment debtor during the ten years. \[82\] The general rules of pleading apply. \[83\] Though jurisdiction will be presumed still where facts upon which jurisdiction is predicated are pleaded, and are insufficient to sustain it, the presumption will not avail to cure the insufficiency. \[84\]

JUDICAL NOTICE, see latest topical index.

- **g.** A proceeding under Cal. Code Civ.
- **proc. $\\lx@sectionsign$ 685, which provides for the enforce- , judgment under Civ. Code Prac. $\\lx@sectionsign$ 439, per- , ment of a dormant judgment by execution,**
- **hitting same on return of "no property is a remedy entirely Independent of an action upon the judgment and such execution in fifteen years after last execution, as re- , paired by Key, St. 1903, $\\lx@sectionsign$ 2514, fixing the period of limitations, such action being , dependant. In re Rebman \[C. C. A.\] 150 F **?**,**
- **f50.** See separate articles, Creditors' Sult, **?**,\*\*
- **g.** C. L. 849; Executions, **g.** C. L. 1328, etc.
- **hittings same on return of municipal court**
- **hittings** A **?**,\*\*
- **hittings** A \*\*? 10 Cur. Law. JUDICIAL SALES $ 5. 507

JUDICIAL SALES.

0 1. Oceansion for and Nature of Judicial

$ 7. Completion of Sale; Deeds, Payments, Sales, 507.

$ 2. The Petitlon, Order, Writ, or Decree,

$ 8. Title and Rights Under Sales and Deed,

$ 507.

$ 3. Levy, Seizure, Appraisal, and the Like,

$ 507.

$ 4. Notice and Advertisements of Sale, 507.

$ 5. Sale and Conduct of it and Return, 507.

$ 6. Confirmation and Setting Aside Sale,

$ 508. Setting Aside a Sale, 508.

$ 6. Confirmation and Setting Aside Sale,

$ 508. Setting Aside a Sale, 508.

and on Bld, 611.

This topic excludes matters peculiar to special kinds of sales under order or process of court. \[88\]

$ 1. \_Occasion for and nature of judicial sales.\_See S C. L. 674--A sale by a trustee under order of the court at a price and on terms agreed on by the parties prior to the order of sale is a judicial sale though made privately. \[88\]

$ 2. \_The petition, order, writ, or decree.\_See S C. L. 674--The order for sale or appointing the officer to conduct it must comply with statutory requirements. \[87\] It may be modified where the best interests of the parties demand it, \[88\] though in Virginia land will not be sold until the priority of subsisting liens has been fixed and determined. \[88\] Where strict compliance with the rule would work an injury rather than a benefit, the court may properly modify its application in the particular case to promote the object sought to be gained by the rule. \[88\] A deposit of a portion of the bid may properly be required. \[88\]

$ 3. \_Levy, seizure, appraisal, and the like.\_See S C. L. 675

$ 4. \_Notice and advertisements of sale.\_See S C. L. 675--An advertisement of sale by the sheriff prior to receipt of the commission is ineffective, \[92\] but with the consent of the parties the court may change the time for advertising notwithstanding stipulations in instrument foreclosed. \[93\] More irregularities are not fatal \[94\] and are cured by confirmation. \[83\]

$ 5. \_Sale and conduct of it and return.\_See S C. L. 675--The rule that a purchase of the trust property by the trustee renders the sale voidable at the instance of the cestui que trust applies to judicial sales. \[88\] The commission to the officer making the

for substituted service held fatal. Fishburn

$ 106 Va. 327, $ 58 EE 158.

$ 58. See Bankruptey, S C. L. 345; Executions, S P. C. L. 1328; Estimates of Decedents, 9

$ 10. Isame to be forfeited and applied to

$ 114; Foreclosure of Mortgases on

$ 124; $ 507.

$ 131; Mechanics' Liens, $ 4 C. L. 954; Partition, $ $ C. L. 1246; Taxes, $ 5 C. L. 2068.

$ 86. Richardson v. Jones, 106 Va. 540, 56

$ 37. Order of Federal court appointing ita

$ 144; $ 908.

$ 38. Place of time for advertisement of

$ 154; $ 164; $ 164; $ 164; $ 165; $ 166; $ 167; $ 168; $ 169; $ 170; $ 171; $ 172; $ 173; $ 174; $ 175; $ 176; $ 177; $ 178; $ 179; $ 180; $ 181; $ 182; $ 183; $ 184; $ 185; $ 186; $ 187; $ 188; $ 189; $ 190; $ 191; $ 192; $ 193; $ 194; $ 195; $ 196; $ 197; $ 198; $ 1997; $ 1998; * \[508\] JUDICIAL SALES SS 6 10 Cur. Law. sale constitutes his sole guide as to the manner in which the property must be disposed of "? Where the sale was commenced within the hours prescribed, the fact ' that it was continued beyond the prescribed time until all the property was disposed of does not affect the validity of the sale."

- \[518\] 6 Confirmation and setting aside sales.See SS 6. L. 578-- Confirmation of a sale is discretionary with the court," but it must be exercised in accordance with established principles of law,1 and when made is conclusive as to all objections which were raised or which might have been raised thereto; '. and though a sale may be irregular as not in compliance with the decree, it may be ratified by confirmation where the variance consists in something which the court could have initially required.3 Facts sufficient to warrant the court in setting aside the sale justify a refusal of confirmation.4 Objectors to confirmation should be required to give a guaranty that there will be no loss on resale.5 Reversal of the judgment on which the decree of sale was based does not affect the title of bona fide purchasers,6 but the rule has no application to a party of record 7 or one in privity with him.8_Setting aside a sale.See SS 6. L. 578--Fraud in the conduct of the sale ' or failure to comply with the order of sale 10 constitute grounds upon which confirmation may be refused and the sale set aside in the discretion of the court.11 Mistake of a prospective bidder,12 when asserted by him,13 may also warrant such action, but in the absence of irregularity or misconduct affecting the validity of a judicial sale it will not be set aside to allow the purchaser's bid to be advanced by 'another person,14 nor 15.27. Sale in separate tracts of property de-
- \[52\] 97. Sale in separate tracts of property de-
- \[53\] 10 is ordered by order of sale to be indivisible in
- \[54\] 110 is ordered by order of sale to be indivisible in
- \[55\] 1110 is ordered by order of sale to be indivisible in
- \[56\] on account of inadequacy of the price, unless so great as to raise a presumption of fraud.16 After confirmation a sale will not be set aside except for causes which would warrant a court of equity in setting aside a like sale between private parties,10 and thereafter the court is without power to set aside the sale without cause, even during the term at which it was confirmed,17 but during the same term the court may for cause shown, upon notice, set aside the sale without the filing of a formal bill for that purpose.18 A proceeding to set aside a judicial sale may be barred by laches of the complaining party 19 or by his presumptive ratification,20 and where the result complained of is caused by the party's negligence, relief will be denied.21 An order of confirmation cannot be set aside by an order entered at a subsequent term unless fraud has entered into it,22 and when entered is final and hence appealable.23 The purchaser is a necessary party to the proceeding.24 Upon setting aside a void sale an innocent purchaser is entitled to reimbursement for taxes paid and for improvements,28 and when based on the fraud of the purchaser the latter is entitled to a return of the money paid thereon less costs properly charged against him.28

\_Costs.\_50 e C. L. 264--Where a sale is set aside for fraud on the part of the purchaser, all costs thereof, together with the costs of the vacation proceedings, are properly charged against him.27

\_Proceedings on resale.\_See * C. L. 576

SS 7. \_Completion of sale; Leeds, payments, and credits.\_See * C. L. 576--Until conveyance the title of the purchaser is only an equitable one,28 and hence may be

sale was regularly conducted, bidder being 535, 4 F 717; Collier v. Whipple, 12 Wend. present at both sales. Watkins v. Jones \[N. Y.\] 224, 228; Watson v. Birch, 2 Ves. Jr. \[Va.\] 57 SE 608. 51; Williamson v. Dale, 3 Johns, Ch. 15. Wilber v. Wilber, 104 NYS 179; State \[N. Y.\] 290, 291; Ware v. Watson, 7 De Gex Reality & Mortstage Co. v. Villaume, 106 NYS & M. & G. 739, 741; Condon v. Maynard, 71 Md. 698. Inadequacy of the price is not of itself 601, 18 A 957, 958; Smith v. Black, 115 U, S, sufficient ground to set aside a sale unless 308, 317, 92 Law. Ed. 398; Barling v. Peters, so grossly inadequate as to establish fraud. 134 Ill. 606, 25 NE 765, 768; Graham v. Burschett v. Beebe, 226 Ill. 417, 80 NE 951. More gess, 117 U. S, 180, 119, 192 Law. Ed. 839; inadequacy of price will not justify refusal 10 confirm unless so gross as to raise presumption of fraud. Schultz v. Hasse, 227 III. 156, 81 NE 50, 4fg. 129 Ill. App. 193. Before confirmation, mere inadequacy of price, unless very great, is not sufficient to warrant reopening of sale (Morrison v. Burnette \[C. C. A.\] 154 F 617), but it the inadequacy is great, slight circumstances of un-fairness on the part of the party benefited will prevent confirmation (Id.). Inadequacy of price in connection with insulficiency of assets for payment of creditors does not constitute ground for interfering with a sale. Wilber v. Wilber, 104 NYS 178. Safe for inadequate price coupled with fact that holders of legal title were not parties constitutes ground for settings sale aside. Nickels v. Mineral Development Co., 31 Ky. L. R. 1324, 104 SWV 1033. 16. Inadequacy of price or offers of better price not sufficient. Morrison v. Burnette \[C. C. A.\] 154 F 617; In re Perryman \[Ind. T.\] 104 SWV 804. 104 SWV 814. 115 Piles v. Brown, 59 C. C. A. 403, 407, 408, 124 F 133, 137, 138; Berlin v. Melhorn, 175 Va. 639, 841; Perwabie Mining Co. v. Masin, 145 U. S, 49, 867, 36 Law. 762; Thompson v. Ritchie, 80 Md. 247, 80 A 708, 710; Ins. Co. v. Cottrell, 85 Va. 57, 857, 95 NE 132, 438, 17 Am. St. Rep. 108; Fidelity Ins. & Safe-Depostial Co. v. Toanoke et. R. Co., 98 F 475, 476; Trull v. Rice, 92 N. C. 572, 574; Pritchard v. Askew, 80 N. C. 6; Bank v. Jarne, 28 W. V. 805; In re Third National Lank, 9 Biss. \[U. S.\] 101, 100 SWV 331. 102, 103, 104 SWV 814. 115 Piles v. Brown, 59 C. C. A. 4 transferred by assignment.\[22\] Upon conveyance title relates back to the date of the sale.\[30\] The description of the property sold need be no more definite than that required in a voluntary deed.\[31\] The terms of payment are discretionary with the court,\[32\] and a voluntary payment of the purchase prior to the time required will not relieve the purchaser from the payment of interest.\[38\]

SS 8. \_Title and rights under sales and deed. A. Defects and collateral attack.\_See * c. L. \[57\]--Unles the judgment upon which the sale was based \[34\] or the sale itself is absolutely void,\[35\] it is not subject to collateral attack; \[36\] and though a sale may be a nullity as to holders of the legal title who were not made parties, it is not for that reason void as to parties who were before the court.\[37\] All matters necessarily determined by the judgment are concluded.\[38\]

(SS 8) \_B. Outstanding titles and interests.\[38\]\_S c. L. \[57\]--A purchaser at a sale at which certain liens have been deducted in the appraisement purchases subject thereto \[39\] and is estopped to question their validity in subsequent proceedings,\[40\] and the.rule is equally applicable to a purchaser who is also a judgment plaintiff.\[41\] A mere stipulation as to the invalidity of such liens does not constitute a waiver of the estoppel.\[42\]

\_The rule of caveat emptor_See * c. L. \[57\] applies to judicial sales,\[43\] and is applicable to a purchaser who was a party to the proceedings as well as a stranger,\[44\] but it does not apply to secret equities in favor of third persons,\[45\] nor to errors in the trial upon which the judgment and order of sale were based.\[46\]

30. Howard v. Brown, 197 Mo. 36, 95 SWV \[source of sheriff's deed. Thomassen v. De Gocy, 133 Iowa, 273, 110 NUV 581. \[37\]. Description held sufficient. Gallup v. Flood \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 861. \[38\]. X. L. \[39\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[43\]. X. L. \[44\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[43\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[43\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[43\]. X. L. \[44\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[43\]. X. L. \[44\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[41\]. X. L. \[42\]. X. L. \[43\]. X. L. \[44\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[49\]. X. L. \[40\]. X. L. \[41\]. X. L. \[42\]. X. L. \[44\]. X. L. \[45\]. X. L. \[46\]. X. L. \[47\]. X. L. \[48\]. X. L. \[49\]. X. L. \[49\].

10 Cur. Law. JUDICIAL SALES SS 8C. 511

(SS 8) Q. \_Rights of parties under sale and in proceeds.\_See * C. L. 878.--The rights of a purchaser at a judicial sale vest upon confirmation 47 and relate back to the accrual of the lien under which the property was sold, consequently, intervening purchasers take subject thereto.48 The title of all persons who were made parties to the proceeding passes to the purchaser 49 who acquires all the title and rights which they possessed 50 and no more.51 While the title passing will as a rule be limited to the terms of the decree,52 the question may be materially affected by agreement between the original owner and the purchaser,53 and evidence to prove such an agreement is admissible.64 The statute of limitations runs in favor of the purchaser only as to parties to the proceeding in which the sale was made.58 As a general rule the redemption allowed by statute cannot be affected after the expiration of the statutory period allowed therefor,54 though equity may in the proper case grant relief upon terms.57 A mere tender, under a decree allowing redemption after the expiration of the statutory period therefor, does not stop the running of interest as it constitutes a mere option to redeem.58

\_Rights in proceeds and on bid.\_See * C. L. 878.--A successful bidder at a sale subject to confirmation becomes a purchaser upon the announcement of the sale to him by the officer 59 and thereafter may be compelled to pay the purchase price.60 A rule to the purchaser to show cause why the property purchased by him should not be resold at his cost and risk is a proper proceeding to compel performance.61 The decree in such a proceeding must be certain.62 A purchaser desiring to except to a sale must do so before confirmation,63 and his exceptions are not available when not

- sale is not bound by a secret equity in favor of a third person. Scarborough v. Holder, and that the understanding between them was that the appurtenances as well as a 48 A purchaseer is not bound to take no- 165 of errors in trial of proceeding leading over will be stopped from thereafter up to judgment under which he purchased, and where court had jurisdiction, and sale bare lease under the decree of sale, and this was made pursuant to decree, he will be protected. Hansford v. Tate, 61 W. Va. 207, the possible fact that the sheriff would be 56 SE 372.
- 47 Morrison v. Burnette \[C. C. A.\] 154 F 617.
- 48 Title acquired, subsequent to attachment, subject to title acquired on execution sale thereafter. Martinovich v. Marsicano, 150 Cal. 597, 89 P 335.
- 49 Where ded gave surviving husband of grantee a life-state and he joins with her in a proceedings for sale, his in-house interest thereby passes. Cosby v. Newby, 80 Ky. L. R. 1375, 101 SW 376.
- 50 Nickels v. Mineral Development Co., 31 Ky. L. R. 1224, 104 SW 1038. Purchaser on partition sale succeeds to right of re- 165 mainderman to enjoin maintenance of elevated railroad in front of land purchased. Muller v. Manhattan R. Co., 53 Misc. 133, 102 NYS 454.
- 51 Purchaser of property incumbered by mortgase acquires merely the right to re- 165.
- 52 Though the word "lease," when referring to a lease in operation, means the whole plant, that is, the lease 'in its technical sense, together with equipment and appurtenances 11 use in its operation, the title obtained by purchase of such a lease at judicial sale would ordinarily be limited to terms of decree of sale. Nicee v. Percy, 53 Ohio C. C. (N. S.) 233.
- 53 Where the evidence goes to show that there was such a community of interest be- 165.
- 54 Where the purchase was acting some- 165.
- 55 Gather v. Gage \[Ark.\] 100 SW 80.
- 56 W. Bunting v. Haskell \[Cal.\] 93 P 110.
- 58 Clv. Code, $ 1504, providing that tender shall stop running of interest on obligations, held not to apply; Bunting v. Haskell \[Cal.\] 93 P 110.
- 59 G0 Morrison v. Burnette \[C. C. A.\] 154 F 61.
- 61 Richardson v. Jones, 106 Va. 540, 56 SE 343.
- 62 But uncertainties as to amount to be paid which can easily be ascertained are not fatal. Richardson v. Jones, 106 Va. 540, 56 SE 343.
- 63 Thompson v. Thompson's Adm'r \[Ky.\] 105 SW 1185.

518 JURISDICTION SS 1.10 Cur. Law.

made until the attempted collection of the purchase price. \[94\] Where the particular interest offered is not expressed, the purchaser has a right to assume that he is to receive a conveyance of the fee \[85\] and that the title is marketable, \[60\] and where such is not the case he is entitled to be relieved from his bid. Such relief will not be granted for mistake of law, \[67\] and the person seeking it must offer to place the parties in statu quo. \[98\] Where affidavits are filed tending to show the unmarketability of the title, the court may permit the filing of affidavits in rebuttal, \[69\] and in such case it is not the duty of the court on its own motion to order a reference. \[70\] A purchaser relieved from his bid on the ground of defects in the title is not entitled to damages as for breach of contract \[71\] but must rely upon the court to do equity. \[72\]

## 1 Definitions and Disinctions, 512.

- 2. Elements and Extent in General, 513.
- 3. Legislative Power Respecting Jurisdiction, 514.
- 4. Territorial Limitations, 514.
- 5. Limitations Resting In Situ of Subject-Matter or Status of Litigants, 514.
- 6. Limitations Resting In Amount or Value In Controversy, 516.
- 7. Limitations Resting In Character of Subject-Matter or Object of Action, 519.
- 8. Limitations Resting In Character or Capacity of Parties Litigant, 521.
- 9. Original Jurisdiction, 522.
- 10. A. Exciusius, Concurrent, and Conflict-Ing, 522.
- 11. A. Exciusius and Divesture, 538.
- 12. Ancillary or Assistant Jurisdiction, 514.
- 13. A. Exciusius and Divesture, 538.
- 14. Objections to Jurisdiction, Inquiry, 524.

10 Cur. Law. JURISDICTION SS 3. 513 essential to a cause of action.74 Facts which merely condition the character of the judgment or decree or the nature of the relief which should be granted are not jurisdictional.79 Where a court has jurisdiction of the parties to an action and the cause is of a kind triangle therein, it has jurisdiction of the subject of the action and power to render any rightful judgment therein.80 If a court having jurisdiction of subject-matter and parties renders an order or judgment not within its power, the act is one in excess of its jurisdiction.81

Footnote 80: The author is grateful to the anonymous referee for the support of the author.

SS 2. \_Elements and extent in general._See 8 C. L. 550_--Essential to jurisdiction is a subject-matter upon which adjudication is regularly invoked82 in a competent forum,83 either against adversary parties or in respect to the subject-matter itself, which must be at least constructively in court.84 Jurisdiction to afford a particular kind of relief carries with it by implication power to do all things necessary to effectuate the purpose for which the jurisdiction was conferred.85 A reserved jurisdiction is limited by the purposes and objects for which it was retained.86

SS 3. \_Legislative power respecting jurisdiction.\_See 8 C. L. 551--Constitutional jurisdictions cannot be limited or enlarged by statute or rule unless the constitution so authorizes,87 A law of one state or territory attempting to restrict the jurisdiction

Power of court to decide erroneously re- 83. Court of appeals was established Octobering matters within its jurisdiction is 12, 1906, when governor proclaimed that as undouthed as power to decide correctly. constitutional amendment creating it had Pownhat Coal & Coke Co, v. Kitz, 60 W. V., been ratified, hence it had jurisdiction of 385, 56 SE 257. Mandamus will not lie to "wrt of error signed in December, though compel a Federal circuit court to remain "judge thereof did not qualify until follow- to state court a cause which it refused "judge". Gas, 632, 57 SE 1007.

to remand because of opinion that case pre- 84. Court obtained no jurisdiction to en- 85. Court of appeals was established Octobering matters within its jurisdiction is 12, 1906, when governor proclaimed that "judge". Gas, 60 W. V., been ratified, hence it had jurisdiction of 385, 56 SE 257. Mandamus will not lie to "wrt of error signed in December, though compel a Federal circuit court to remain "judge thereof did not qualify until follow- to state court a cause which it refused "judge". Gas, 632, 57 SE 1007.

to remand because of opinion that case pre- 84. Court obtained no jurisdiction to en- 85. Court of appeals was established Octobering matters within its jurisdiction is 12, 1906, when governor proclaimed that "judge". Gas, 60 W. V., been ratified, hence it had jurisdiction of 385, 56 SE 257. Mandamus will not lie to "wrt of error signed in December, though compel a Federal circuit court to remain "judge thereof did not qualify until follow- to state court a cause which it refused "judge". Gas, 60 W.

of the courts of another state or territory will not be recognized by those courts.\[89\] State statutes cannot enlarge or impair the jurisdiction of Federal courts,\[90\] though they may enlarge equitable rights and these rights will be enforced by the Federal courts.\[90\]

SS 4. \_Territorial limitations.\_See 8 C. L. 888--All jurisdictions are bounded tertiorially either by the limits of the state " or nation, or by those of the district or circuit in which they are established.\[92\]

SS 5. \_Limitations resting in situ of subject-matter or status of litigants.\_See 8 C. L. 888--While power to adjudicate upon a subject-matter which can have no existence save at a fixed place pertains to the courts erected for that place,\[93\] other

be vested in supreme court, circuit courts could sue in Texas though injured in New and such "other courts" as general assembly might establish, legislature could create a superior court with same jurisdiction as 88. Federal jurisdiction may not be impericult courts were then exercising. Board of Com's of Elkhart County v. Albright, 168 by. Rubber Co. \[C. C. A.\] 156 F 1; Dunlop Ind. 684, 81 NNE 578. Under Const. art, 5, & Zferer \[C. C. A.\] 156 F 545. State may not $ 22, authorizing legislature to increase ddimlish, or change jurisdiction of county courts (Morril V American Reserve Bond Co. of Kentucky, 151 F 305), or take of such courts in proceedings for street benefit assessments 1s valid. Naille v. Austin \[Tex. City, App.\] 18 Tex. Ct. Rep. 54, 103 of subject-matter of suit in accordance with \[cstablished practice (Id.). Federal court as to extent of apellate jurisdiction it will confer on district courts (In re McVay's Estate (Idaho) 93 P 28), it cannot grant securities of insolvent corporation deposited with state treasurer for benefit of creditors of probate, debate court having exclusive, constitutional, original jurisdiction therein (Id.). Rule of practice of supreme court requiring application to circuit court for writ of habeas corpus before application to a judgment includes power to enforce it supreme court is invalid. Ex parte Doyle \[W. Va.\] 57 SE 824. Under Const. 1895, art. 5, & Zferer \[C. C. A.\] 152 F 414; Id. \[C. C. A.\] 155 F 388. State statute barring maintenance has power to restrain collection of illegal tax notwithstanding Civ. Code 1902, $ 412, taxpayer. Ware, Sholas Mfg. Co. v. Jones providing that collection of taxes shall not be prevented by injunction, where there is no other adequate remedy for protection of \[S. C.\] 68 SE 811. While the legislature may by the establishment of Intermediate courts or other appropriate legislation limit (or regulate the right of litigants to invoke the jurisdiction of a court of last resort, it may not unreasonably interfere with or embarrass its ultimate constitutional revitory powers. Memphis St. R. Co. v. Byrn \[Tenn.\] 104 SW 460. Determination as to whether an appeal has been properly brought up precedes consideration whether the apellate court had jurisdiction of it (Bolden v. Barnes, 118 La. 273, 42 S 934), and hence a statute requiring an apellate court to inquire whether an appeal not within its jurisdiction has been properly brought up in order to determine whether the appeal shall be dismissed or transferred to another court is not invalid as attempting to confer a jurisdiction not granted by the constitution (Id.). Act No. 56, p. 135, 1904, relative to transfers between supreme court and court of appeals. Id.

SS 85. \_Limitations resting in situ of subject-matter or status of litigants.\_See 8 C. L. 888--While power to adjudicate upon a subject-matter which can have no existence save at a fixed place pertains to the courts erected for that place,\[93\] other

be vested in supreme court, circuit courts could sue in Texas though injured in New and such "other courts" as general assembly might establish, legislature could create a superior court with same jurisdiction as 88. Federal jurisdiction may not be impericult courts were then exercising. Board of Com's of Elkhart County v. Albright, 168 by. Rubber Co. \[C. C. A.\] 156 F 1; Dunlop Ind. 684, 81 NNE 578. Under Const. art, 5, & Zferer \[C. C. A.\] 156 F 545. State may not $ 22, authorizing legislature to increase ddimlish, or change jurisdiction of county courts (Morril V American Reserve Bond Co. of Kentucky, 151 F 305), or take of such courts in proceedings for street benefit assessments 1s valid. Naille v. Austin \[Tex. City, App.\] 18 Tex. Ct. Rep. 54, 103 of subject-matter of suit in accordance with \[cstablished practice (Id.). Federal court as to extent of apellate jurisdiction it will confer on district courts (In re McVay's Estate (Idaho) 93 P 28), it cannot grant securities of insolvent corporation deposited with state treasurer for benefit of creditors and have same subjected to their claims, constitutional, original jurisdiction therein (Id.). Rule of practice of supreme court only on state courts. Id. Jurisdiction of Federal court over subject-matter and parties with of habeas corpus before application to a judgment includes power to enforce it supreme court is invalid. Ex parte Doyle \[W. Va.\] 57 SE 824. Under Const. 189 * 10 Cur. Law. JURISDICTION SS 5.

courts may have jurisdiction for the purpose of adjudicating personal rights of parties present in court which are in respect to, but do not directly affect, such subject-matter."4 Jurisdiction is often affected by the nonresidence or alienage of the parties,"5 or by the place where the cause of action arose."6 More transitory actions," however, are not controlled by these matters,"8 though alienage or diversity of citizenship may often draw the case into the Federal courts."9 If matters essential to a transitory action arose within the jurisdiction of the court," jurisdiction of the cause exists though other matters involved arose beyond that jurisdiction." The or-

- 10. Cur. Law. JURISDICTION SS 5.
- 11. Though a citizen may be restrained not maintainable in District of Columbia where principal question related to title, though secretary was resident of that district and could only be there served. Irriga-
- 12. A simple example of a citizen may be restrained from proceeding in another state to attach wages due another citizen of the state'in
- 13. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a citizen. A simple example of a citizen may be created by a simple example of a citizen. A simple example of a citizen may be created by a simple example of a citizen.

dinary of the county in which a testator resided at the time of his death has jurisdiction to probate his will though the property devised is situated in another county and all the interested parties reside there.3 Jurisdiction to adjudge rights with respect to a child is vested in the courts of the state where the child is held in lawful custody.4

Footnote 25: The \_H.

"recovered."" The amount demanded by the pleadings determines the amount involved or in controversy,10 unless it is clear that as a matter of law such amount cannot be in dispute or that it is merely colorable or fictitious.11 In injunction 1076.

Lillystrom v. Anderson, 75 Kan, 857, 88 P \[tion of suit to restrain assessor from making a certain tax levy, amount of tax not being stated or in controversy, Lowrance v. judgment for costs amounting to $33.95 held by twelve \[Tex. Civ. App.\] 18 Tex, Ct. Rep. 224, to involve only the costs which being less than $200, court of appeals had no jurisdiction. Tillie v. Payne, 30 Ky, L. R. 644, 99 SVW 322. In suit by husband and wife for injury to a mule, wife's interest being a lien on the mule, amount in controversy as between her and defendant held less than $200 so that court of appeals had no jurisdiction. Tillie v. Chesapeake & O. I. Co., 30 Ky. L. R. 1367, 101 SVW 342. Where in equity an agreed-order eliminated all issues raised in law actions between the parties except as to amount of damages, and plaintiffs recovered only $125 each, court of appeals had no jurisdiction. Cincinnati, etc., R. Co. v. Slaughter, 31 Ky. L. R. 875, 104 SVW 317.

Louisstman: On appeal from judgment decliming to set aside order appointing receiver. amount of assets is test of jurisdiction. Perkins v. Crystal Ice & Pop Mfg. Co., 119 La. 519, 44 S 284. Appeal by shelf from order rejecting claim for fees and commisions amounting to less than $2,000 held not within jurisdiction of supreme court. Robson v. Beasley, 119 La. 387, 44 S 136, Supreme court is without jurisdiction of appeal in suit where appointe to office seeks by mannersupoint to pump district attorney to bring suit to oust the incununents and where it appears that the fees of such office would exceed $100 but not $2,000. State v. Parsons \[La.\] 45 S 125. Of appeal in suit by citizens and taxpayers to compel filling of list of persons who have paid their poll taxes, same not involving amount sufficient to confer it. State v. Brledge, 119 La. 161, 43 S 99. Affl-davit as to amount involved held a mere conclusion. Id.

Missouri: Supreme court could not entertain motion to establish attorney's lien which could not exceed $4,000. Wait v. Atchison, etc., R. Co., 204 Mo. 491, 103 SWW 60. Had no jurisdiction of appeal in injunction proceeding since amount in dispute did not exceed $4,500, where decree simply perpetuated injunction against defendants and adjudged costs against them, Moffatt v. Kansas City Board of Trade, 203 Mo. 277, 101 SWW 6. Pennsylvania: Appeal lies to supreme court from allowance of claim of creditor of decedent for more than $1,500, though appealing legate has interest in fund in controversy to amount less than $1,500. In re-May's Estate \[Pa.\] 67 A 120.

Texas: County court had jurisdiction though ad adammun exceeded $100 where damages alleged and sought to be recovered was only $500. Ainsa v. Moses \[Tex. Civ. App.\] 18 Tex, Ct. Rep. 644, 100 SVW 371. Has exclusive jurisdiction of suit to recover an office and its emoluments alleged to be of value of $400, brought directly by claimant against person in possession, and not by quo warranto, matter in controversy exceeding $200 and not exceeding $500. Harris v. Willismson \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 638, 99 SVW 113. District court has jurisdiction of suit to recover an office and its emoluments alleged to be of value of $400, brought directly by claimant against person in possession, and not by quo warranto, matter in controversy exceeding $200 and not exceeding $500.

proceedings the value of the object to be gained by the bill determines the question of jurisdiction.\[12\] Separate and distinct claims cannot be added so as to confer jurisdiction.\[13\] When a suit is brought for an amount within the jurisdiction of the court, the acerual of further damages pending the action will not deprive the court of power to render judgment within its jurisdictional limits,\[14\] but if the amount demanded or originally involved is beyond the jurisdiction of a court, entry of judgment for a smaller amount will not confer jurisdiction.\[15\] Under some statutes a plaintiff may waive any excess of his demand over the jurisdictional amount.\[16\] The amount claimed is immaterial where jurisdiction attaches on other grounds.\[17\]

Mattman College Board of Trustees v. Berronote of the fact, when it exists, that plaintiff cannot under his petition possibly recover the jurisdictional amount (Clement v. Louis-ville & N. R. Co., 158 F 979), and in such zease allegations as to the quantum of damages must be regarded as merely colorable Federation of Labor, 156 F 808.

Mattman College Board of Trustees v. Berronote of the fact, when it exists, that plaintiff cannot under his petition possibly recover the jurisdictional amount (Clement v.

- \[10\] Cur. Law. JURISDICTION SS 7.

## 7 Limitations resting in character of subject-matter or object of action

See * C. L. 1988--Particularly with respect to courts below those of general original jurisdiction and in cases of appeals is jurisdiction denied or conferred where the action involves the title to land,18 a freehold,19 homesetead exemptions,20 constitutional questions 21 properly raised and passed upon below,22 saved for review 28

Though amount in controversy is less than $200. Agnew v. Barto & Sons Bk. \[Wash.\]

- \[1\] Ng. Title involved: Petition held to show case "respecting title to land" and outside jurisdiction of city court. Daniels v. Chambers, 1 Ca. App. 607, $7 SE 1022. Where in county court right to partition land is contested or title involved, action must be removed to circuit court on motion of either party for trial of question of title, hence such case must be so removed where right claimed in petition is contested by demurrer, raiseding question of title. Hunt v. Phillips \[Ly.\]

- \[1\] Ng 445. Constitutional provisions considered and held to confer upon court of common pleas of Baltimore jurisdiction of suit by vendee to recover deposit of less than $100, based on failure of title to land which was thus necessarily involved. Legum v. Ell. 416, 83 NE 187. In suit for specific per-blank \[Md.\] 65 A 1071. Justice of peace without jurisdiction of suit to recover deposit for reality, title to which was alleged to have failed. Id.

Not involved: In suit to have contract for sale of trees declared a first line on land and to foreclose. Stark v. Martin, 204 Mo. 433, 102 SW

- \[1\] Ng 26. Where in suit involving right to possession. Hough v. Jasper County L. & Fuel Co (Mo.), 106 SWV 647. In action to recover amount paid for volt city tax dead, subsequent taxes, etc. Russell

- \[1\] Ng 49. But for breach of contract to construct and maintain a ditch. Not transferable to supreme court, but were entitled to portion of Withers v. Wabash R. Co., 122 Mo. App. 282, 98 SVW 34. Question whether one had home-stead right in land exempting it from exe-cru. Snodgrass v. Copple, 203 M 480, 101

- \[2\] Ng 1090; Sperry v. Cook \[Mo.\] 105 SWV 1088. Action of trespans quare clausum is not a controversy concerning title or boundary of land giving jurisdiction to supreme court or error therein. Dickinson v. Mankin, 61

- \[3\] Ng 429, 55 SE 824. But by unsuccessful jetement defendant to recover value of im-provements is not a continuation of elect-ment suit so as to give surpeum court juris. Bristol v. Thompson, 204 M 366, 102 SWV 981. Right of owner of water system to recover for water supplied does not involve title to reality so as to authorize further appeal from superior court from judgment for less than $300. Hegeria Land & Water Co. v. Gardner \[Cal. App.\] 88 P 286, Where under common points plaintiff could offer evidence of other claims within court's ordinary jurisdiction, fact that special count showed that title to reality was involved did not bring case within court's special jurisdiction of actions for less than $100 in-volving title to reality. Legum v. Blank \[Md.\] 65 A 1071.

- \[1\] Ng 49. To give jurisdiction to supreme court, freehold must be directly and not merely coilaterally or incidentally involved. Burroughs v. Kotz, 226 Ill. 40, 80 NE 728. Must be involved in questions assigned for error. Miller v. Rich, 231 Ill. 416, 83 NE 187.

- \[2\] Ng 49. To give jurisdiction to supreme court, freehold must be directly and not merely coilaterally involved. Burroughs v. Kotz, 226 Ill. 40, 80 NE 728. Must be involved in questions assigned for error. Miller v. Rich, 231 Ill. 416, 83 NE 187.

- \[3\] Ng 49. To give jurisdiction to supreme court, freehold must be directly and not merely coilaterally involved. Burroughs v. Kotz, 226 Ill. 40, 80 NE 728. Must be involved in questions assigned for error. Miller v. Rich, 231 Ill. 416, 83 NE 187.

- \[4\] Ng 50. To give jurisdiction to supreme court, freehold must be directly and not merely coilaterally involved. Burroughs v. Kotz, 226 Ill. 40, 80 NE 728. Must be involved in questions assigned for error. Miller v. Rich, 231 Ill. 416, 83 NE 187.

- \[5\] Ng 51. To give jurisdiction to supreme court, freehold must be directly and not merely coilaterally involved. Burroughs v. Kotz, 226 Ill. 40, 80 NE 728. Must be involved in questions assigned for error. Miller v. Rich, 231 Ill. 416, 83 NE 187.

- \[6\] Ng 52. To give jurisdiction to supreme court, freehold must be directly and not merely coilaterally involved. Burroughs v. Kotz, 226 Ill. 40, 80 NE 728. Must be involved in questions assigned for error. Miller v. Rich, 231 Ill. 41 520 JURISDICTION SS 7. 10 Cur. Law.

and assigned as error in the appellate court,\[34\] questions of law decided erroneously or contrary to other decisions,\[25\] the construction of a statue,\[26\] elections,\[37\] office fees,\[28\] taxes or revenue,\[29\] penalties,\[80\] certain tort liabilities,\[31\] and where any kind

jurisdiction when there is drawn in question

the legality or constitutionality of a fine imposed by a municipal corporation, or where

24. See Appean and Review, 9 C. L. 108.

01. Under Laws 1899, p. 170, c. 58, requir-

ing certification of a cause to supreme court, an ordinance or law of the state has been

where decisions of court of civil appeals

declared unconsontontational. Town of Ruston

conflict, that decision of court of civil ap-

V. Fountain, 118 La. 53, 42 B 644: Town of peals conflicts with decision of supreme court

Milden v. Frichton, 118 La. 747, 43 B 395.

Where a fine has been imposed under under municipal ordinance, appellate jurisdiction of

26. Question of whether under a statue

prereme court is limited to determination as

determination of a corner that a case war-

to its alleged invallity. Id.

Missouri Where motion for new trial and

on county on his presenting claim for fees

in arrest raised constitutional questions and

hold to involve construction of statue and

mount appealed, court of appeals would

to authorise appealed directly to supreme court,

certify cause to supreme court though it

Stults v. Allen Country's 168 Tal. 639,

was of opinion that constitutional point was
81 NE 471. Construction of statute is not

not well taken. Wabash R. C. v. Fianni-

involved where case arises upon the evl-

gan, 118 Mo. App. 124, 100 SW 661. Supreme

come, unless evidence shows that court con-

control had jurisdiction of appeal by city of

struct a statute. Id. Sustaining of ob-

St. Louis from judgment for defendant in

sections to questions propounded to corner

action to recover a fine for violation of an

on redirect examination did not necessarily

ordinance which court below adjdged un

present question as to construction of cor-

constitutionally. City of St. Louis v. De

oner statute. Id. Construction of revenue

Lassus, 205 Mo. 578, 104 SW 12. Constituit-

laws not involved in suit to recover amount

tional questions involved where motion to

quadr for void city tax dead, subsequent taxes,

quasi execution on constitutional grounds

costs, etc. Russell v. Woerner \[Mo.\] 106 SWV

was overruled and petitomer appealed.

49.

Overton v. White, 124 Mo. App. 489, 105 SW

30. Where up to time of erroneous appeal

tifying to election judges fraudulent and

to St. Louis court of appeals no steps had

fictitious registrations made by said clerk

been taken to eliminate a constitutional

is not an action to supervise or control an

question, court of appeals properly trans-

election, hence is not within rule restricting

ferred case to supreme court, jurisdiction of

which was not affected because defendant,

brought in district court. Aichele v. People

on motion to retranser, waived the constitu-

(Colo. 109 p 1122. General election law, Rev.

tional question. Taylor v. St. Louis Mer-

Laws, c. 11, & 421, confers jurisdiction on

chants' Bridge Terminal R. Co. (Mo.) 105 SW

supreme judicial court to issue mandamus in

740. Where in suit to restrain maintenance

a proper case to prohibit counting of in-

of toll road defendant get up impairment of

valid ballot. Brewster v. Sherman \[Mass.\]

contract obligation. denial of duc process,

80 NE 821.

etc., and that it had a fee in the road, con-

"28. Sult by appointee to office to compel

stitutional questions were sufficiently raised

district attorney to use to quest incumbents

though complainment sought only to force

right of public to travel free. State v. Scott

of the office, hence supreme court being

County Macadmissed Road Co. (Mo.) 105 SW

without jurisdiction of appeal therein may

752. Where a section of a city charter had

transfer it to court of appeal. State v.

been declared unconsontational, question

1-4.5 S 115.

could not be raised in subsequent action

29. Revenue must be directly involved,

so as to give supreme court jurisdiction of

People v. City Council of Peoria, 229 Ill. 225,

appal. Dickey v. Holmes \[Mo.) 106 SW 511.

82 NE 255. Test is whether some recog-

22. Must appear that constitutional ques-

instead authority of state or some of its union was raised below and ruled to disad-

nicipalities authorized by law to assess or

vantage of appellant. Shell v. Missouri Pac.

collect taxes are attempting to proceed under

T. Co., 202 Mo. 339, 100 SW 617. Hence su

the law, and questions arise between them

reme court was without jurisdiction where

and those of whom the taxes are demanded.

10 Cur. Law. JURISDICTION SS 8. 531

of equitable relief or cognizance is sought.\[32\] More often the statute merely prescribes what jurisdiction inferior courts shall have, impliedly excluding all else.\[33\] By statute, such jurisdictions as those exercised by courts of bankruptey,\[34\] courts of probate and the like,\[88\] often becomes exclusive or at least primary.\[30\] Special statutory or constitutional jurisdictions are limited to occasions and objects contemplated by the law creating them.\[87\]

Courts have no power to control or supervise legislative or official administrative discretion.\[38\] A purely criminal court has no jurisdiction of civil matters.\[39\] A statute providing that injunctions to stay proceedings in a suit or execution on a judgment, shall be returnable and tried in the court where such suit is pending or judgment was rendered, does not apply in proceedings to restrain execution of a judgment affirmatively appearing from the record to be void.\[40\]

SS 8. \_Limitations resting in character or capacity of parties litigant.\_See s. C. L. 502

--Where a receiver is authorized to sue by the court which appointed him, an objective--in district court. Meyers v. State \[Tex. Civ. Jurisdiction concurrent with orphans' court App.\] 19 Tex. Ct. Rep. 800, 105 SWV 48,

$1. Under Act Nev. March 23, 1905, liability

purpose of distribution, where executors au-for personal injury caused by wrongful acts

thorized to sell were dead. Vol. 5. Birnie's or negligence exists only in so far as ad-judged by a state or Federal court in Ne-vada and an action is not maintainable in

valla and aid executors, and fact that a any other court. Coyne v. Southern Pac. Co.,

155 F 683. New Mexico statute limiting suits

tribution is no objection to its determination

for personal injuries to courts of that territory with not bar suit in a Texas court by

\[Viv.\] 113 N NV 398. Could determine noun-an Arizona citizen linjured in New Mexico.

her of shares of stock executors must trans-Achitson, etc., R. Co. v. Savers \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 613, 99 SWV 190. When

an action can be fairly treated as based

either on contract or in tort, the courts in

favor of jurisdiction will sustain the election made by plaintiff. Complaint treated as

element to use in superior court in tort for

conversion of proceeds of sale of horse left

with defendant to sell. White v. Eley \[N. C.\]

58 SE 487.

32. Injunctions being matters of chance-cerry compliance, county courts have no

power to Issue them though constitution an-thorizes county judge to grant them in certain cases. Randolph v. Abbott \[Ark.\] 105

that he has been commanded by governor SWV 576. Appellate jurisdiction in all cases in

not to surrender petitioner on hases corpus

equity is given to supreme court, hence dis-

rict court of appeals has no jurisdiction

where suit is to restrain diversion of water.

Rickey Land & Cattle Co. v. Glader \[Cal. App.\] 91 P 414. Appeal erroneously taken

to court of appeals is not lost but will be

transferred to supreme court. Id. Where

suit for infringement of trade mark was

brought in city court of Atlanta for damages alone, held error of dismiss because

the board, is not legislative or nonjudicial.

matters complained of were cognizable to

state v. Missouri Pac. R. Co. \[Kan.\] 92 P 606.

equity, Hagan & Dodd Co. v. Friberg, 1 Ga. App. 100, 57 SE 970. To require municipal

coform of St. Paul to certify a case to dis-

trict court on ground that equitable defense

or equitable relief is interposed, answer

must set forth facts sufficient to constitute

a defense. Selover v. Williams, 98 Minn. 155,

107 NWV 960. A proceeding in equity seeking

determination of questions under trust dead

and will should be addressed to superior

court having sole jurisdiction in equity in

such matters and not to supreme court. Angeil \[R. L.\] 67 A 325.

gell v. Angell \[R. L.\] 67 A 325.

33. See post, 9 SC.

01. See BanKruptcy, 5 C. L. 343.

01. Circuit court as court of equity had

01. See post, 9 SC.

01. See post, 9 SC.

01. See post, 9 SC.

01. Application concurrent with orphans' court

to dispose of trust property under will for

31. Under Act Nev. March 23, 1905, liability

purpose of distribution, where executors au-for personal injury caused by wrongful acts

thorized to sell were dead. Vol. 5. Birnie's or negligence exists only in so far as ad-judged by a state or Federal court in Ne-vada and an action is not maintainable in

valla and aid executors, and fact that a any other court. Coyne v. Southern Pac. Co.,

155 F 683. New Mexico statute limiting suits

ribution is no objection to its determination

for personal injuries to courts of that territory with not bar suit in a Texas court by

\[Viv.\] 113 N NV 398. Could determine noun-an Arizona citizen linjured in New Mexico.

37. See post, 9 SC.

01. See post tion to the jurisdiction of the court in which he sues cannot be sustained.41 A suit to enjoin an Indian agent from unlawfully interfering with prospecting on reservation land is not unauthorized as one against the United States, though defendant claims to represent the government.42

Footnote 41: Demurrer for want of jurisdiction not sustainable in suit by receiver of insolvent

Footnote 42: We use the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to refer to the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "unlaw" to refer the term "unlaw" to the term "un and litigants may be restrained from interfering,\[48\] this rule not applying, however, where the objects of two suits are different.\[49\] Where similar proceedings are pending in courts of concurrent jurisdiction, the later proceeding should be stayed,\[50\] but courts will not indulge in considerations of comity where it would disown their own jurisdiction of a matter over which they have exclusive control, or work injury to residents of their own state.\[81\] That a court of bankruptcy has possession of the proceeds of a sale of chattels covered by a mortgage given by the bankrupt does not deprive a state court of jurisdiction of a suit by the trustee to set aside the mortgage as fraudulent.\[82\] A state court has no power to enjoin a proceeding or judgment of a Federal court,\[83\] and the power of Federal courts over suits in state courts is re-vent state court from deereening sals to sat- tiled to maintain bill for similar relief and isfy Hen of certain equipment bonds in suit receiver in court of concurrent jurisdiction, begun, before Federal court took possession, and to have first proceeding enjoined. Gray Wabash R. Co. v. Adelbert College, 28 S. Ct. v. South & N. R. Co. \[Ala.\] 43 S 859. 182. **R**ecievership proceeding in suit to oust a foreign corporation and for penalties held to be in rem and court held to have acquired complete jurisdiction when corpora- on such question in suit by attorney general tion was served and appeared and receiver to whom by Federal courts. In re Consol. Gas taken possession of the property. Waters Pc., 56 Misc. 49, 106 NYS 407. **S**ult In Fed-Pierce Oil Co. v. State \[Tex. Civ. App.\] 18 **F**eral court to quiet title to water would be re-cer. Ct. Rep. 840, 103 SV 386. On appeal unn- ortecated by injunction as against similar der supredeses bond, applicat court ac-quires same full jurisdiction of the res. Id. **L**ad & **C**attle Co. v. Miller \[C. C. A.\] 152 F receiver to take possession of the res held to 11. **W**ner parties and greater part of property involved is within court's jurisdiction, late court. Id. **Th**ough after supredes\*\* **is** subsequent suit in a foreign country between receiver was unable to take possession of the property, he was so far subject to appellate matter, United Cigarette Mach. Co. v. court's jurisdiction as to permit that court to direct him to appear before Federal court whose receiver had interfered and insist upon the right of the state and jnt-, diction of state court. Id. Where question of title and right of possession of property suit in state court for dissolution of corpora- arises in both a state and a Federal court, NYS 247. **R**ecievership **F**adlection. Ayers v. Farwell \[Mass.\] 82 NE **S**. **R**epelivn would lie in state court to 11. **S**aty of Proceedings, 8 C. L. 1989. **T**em-recover property in possession of bankrupt orhere nothing had been done to obtain possession in Federal court. Id. **F**acts held to show that court in one county had ac-quired jurisdiction for recovery of certain staves so as to preclude suit by defendant Co. v. Atlanta Stove Works, 128 Ga. 207, 17 SE in another county. **L**oveland-Garrett Co. v. **L**oly\*\*, 30 Ky. L. R. 879, 99 SWP 24. **Where** bills were tendered for filling in Federal court and restraining orders issued based thereon, court obtained jurisdiction over subject-matter though suits were instituted in state **L**atrellie Oil Co., 119 La. 793, 44 S 510. **Ac**-courts before formal filling of such bills. St. **L**ouis & S. F. R. Co. v. Hadley, 155 F 220. **W**here court acquires jurisdiction in suit to subject property to satisfaction of a claim, later proceedings by any of the parties in other courts without leave of first court are ineffectual to establish claims adverse to complaints. Brun v. Mann \[C. C. A.\] 151 F 145. But it is the duty of the court first acquiring jurisdiction to hear and determine adverse claims when seasonally presented. **Id**. Where, while really was in custody of Federal court, administrative sought allow- since for expenses. Id. Where suit was instituted on demand of a stockholder for accounting against lesser of a railroad and U. S. E.

stricted by statute.54 A court of concurrent jurisdiction cannot ordinarily review the orders or judgments of another such court.56

(SS 9) _B. Ancillary or assistant jurisdiction_ See 8 C. L. 594 is that which is incident to or in aid of a primary one.56

(SS 9) _C. General or inferior, limited and special jurisdiction._ See 8 C. L. 594--A general jurisdiction is one which within the territorial bounds is not limited as to nature of subject-matter, amount in controversy, or character of parties.57

The jurisdiction of probate,58 county,59 justice,56 city,61 municipal,62 and other

in bankruptcy or enjoin purchaser from | was issued. Walker v. Ehresman \[Neb.\] 113 acquiring title. Henderson v. Henrle, 61 W. NV 218.

VA. 183, 56 SE 389.

54. See post, SS 11A, and also injunction, 8

construc a provision of a will and determine C. L. 279.

55. One of two district judges of concurrent authority held without power to set aside order of other appointing referee in bankruptcy. In re Steele, 156 F 855. An ordered of one court cannot be set aside or re-strained by another court of co-ordinate jurisdiction in an action subsequently initiated. Proceedings to incorporate city lying partly within jurisdiction of two circuit courts. Salter v. Cook, 131 Wis. 20, 110 NW 823.

01. Where execution was levied and claim filed in superior court, it had jurisdiction of ancillary petition in aid of key instituted by plaintiff against an adverse claimant irrespective of such claimant's residence, Thomson v. Thomasson \[Ga.\] 59 SE 238.

01. Connecticut Supreme court of errors has no power to issue mandamus in exercise of either original or applicable jurisdiction. In re Ansonia Water Co. \[Conn.\] 8 A 378.

Idahe: District court has no original jurisdiction in matter of probate, jurisdiction of probate court being exclusive. In re McVay's Estate \[Idaho\] 93 P 28.

**Missouri:** Circuit court having general common-law and equity jurisdiction has jurisdiction of suit involving a resulting trust and partition. Padgett v. Smith, 206 Mo. 303, 103 SW 943.

**Nebraska:** The district courts of Nebraska are courts of general equity jurisdiction in the exercise of which they are not limited by statute. Rhoades v. Rhoades \[Neb.\] 111 NW 122.

**Wyoming:** District court has original equity jurisdiction. Littleton v. Burgess

\[Vyo.\] 91 P 832.

58. Idaho: Probate court has exclusive original jurisdiction in all matters of probate, and its judgments, records, and proceedings as to such matters import absolute verity. In re McVay's Estate \[Idaho\] 93 P 28.

**Kansas:** Probate court no equitable jurisdiction. Ross v. Wollard, 75 Kan. 383, 89 P 680.

**Massachusetts:** Under Rev. Laws, 137, $ 1, and c. 162, $ 3, probate court has jurisdiction to appoint an administrator of a non-resident decedent whose only property in the state is a claim in a trust-state created by a will admitted to probate in the state and in process of settlement in a court having jurisdiction of subject-matter and of the trustee. Vinton v. Sargent \[Mass.\] 80 NE 826.

**Nebraska:** Probate court has no jurisdiction to determine title to land by adjusting that devises in entryman's will were owners to exclusion of heirs at law to whom patent

## 10 Cur. Law. Jurisdiction $ 9c.

inferior courts varies with the statutes of the different states. A court of general jurisdiction may have special statutory jurisdiction conferred upon it not exercised according to the common-law and not belonging to it as a court of general jurisdiction,\[68\] and in such cases its decisions are treated as those of courts of special jurisdiction.\[64\] A constitutional grant of power to issue designated writs is construed and applied in connection with the settled rules of law controlling the use of the writs.\[60\]

Lamar v. Dallor \[Ga.\] 57 SE 85; Id. \[Ga.\] held not to involve equitable powers (Id.). App. J 57 SE 1064; Gower v. Fowler, 1 Ga.\] Defense that property had been transferred App. 814, 57 SE 1054.

60. See Justices of the Peace, 8 C. L. 635.

01. Georgia: The jurisdiction of a city court is limited and restricted to powers excepted by the act creating the court, and such as are necessarily incident to its existence and proper operation. Woolley, V. Lowshe, 1 Ga. App. 817, 57 SE 1083. Neither judge nor clerk of city court of Fayetteville has authority to issue a distress warrant. Id. Under Act 1895, creating city court of Brunswick in Glynn county, a justice of the peace of Ware county could issue attachment against a nonresident for sum exceeding $100 and make it returnable to that court. Howard Supply Co. v. Bunn, 127 GA. 683, 56 SE 175. City Court of Macon has no jurisdiction of matters involving equitable rights except purely by way of defense, Butler v. Holmes, 128 GA. 33, 57 SE 715.

Hilmos: City court organized under Hurt's Rev. St. 1905, c. 37, $ 240, has concurrent jurisdiction with circuit court only in all civil and criminal cases arising in the city and in which it failed to state. Appraise House of Peace, 107 NYS 563.

526 JURISDICTION SS 9D. 10Cur. Law.

(SS 9) \_D. Original jurisdiction of courts of last resort.\_See * C. L. \*\*526--\*\*This includes the prerogative common-law jurisdiction necessary to the proper control and supervision of the courts below,\*\*53 and in its more common sense such as the constitution and statutes enumerate.\*\*54 Except in these cases their jurisdiction is

\\begin{tabular}{l l} may issue perenptory writs. Id. No objection that right of trial by jury is guaranteed & from the constitution and not from statute. In re Meyer, 35 Colo, 154, 91 P 738. \\ by bill of rights (Id.), or that no appeal is & Kansas: Supreme court has original jurisdiction in proceedings in quo warranto, \\ 68. Supreme court is not simply a court of common-law jurisdiction but has general supervision of all courts of inferior jurisdiction & mandamus, and habeas corpus only. Has \\ & provision of all courts of inferior jurisdiction to issue injunctions \\ & to prevent and correct errors and abuses, \\ & and may issue writ of cercercern for superior & or appoint receivers. State v. Anhouser- \\ & to prevent and correct errors and abuses, \\ & and may issue writ of cercercern for superior & may, however, in order to protect and render effectual its own jurisdiction, restrain the \\ & or exist therein without other remedy & use and transfer of property and appoint a \\ & pressily provided, and when such issue is \\ & necessary for furtherance of justice. Hyde \\ & v. Superior Ct. \[R. I.\] 68A 292. Centrozzi & conducting its business in this state, pend- \\ & would lie from interferometry deeper from \\ & which there was no appeal where parties, \\ & by reason of action of court and after having \\ & to compel obedence to order of board of \\ & spent time and money in partition proceed- \\ & rairod commissioners. State v. Missouri \\ &, were thrown back to position where \\ & all would otherwise have to be done over \\ & again. Id. Exercise of general supergravity \\ & control by supreme court over inferior courts \\ & as provided by art. 94, Const., is discretion- \\ & & \\ & any. State v. Summit Lumber Co., 117 La, \\ & 643, 42 S 195. Mandamus lies to control the \\ & such order not being within $ 296, 297. \\ & action of an inferior court. acting beyond its \\ & jurisdiction or where it refuses to take juris- \\ & deletion when it is its duty to do so \\ & there is no other adequate remedy, but not \\ & to control its action in matters within its \\ & & \\ & \\
appellate only.48 The existence of original jurisdiction in a court of last resort does not imply that a litigant has always an absolute right to invoke it.49

SS 10. \_Appellate jurisdiction.\_See $\\lx@sectionsign$ c. L. 507.--Appellate jurisdiction is the power of a superior court to rehear and determine causes tried in inferior courts.70 It depends upon the existence of a judgment or order of which the court below had jurisdiction,71 and which is subject to review independently of other judgments.72 This jurisdiction also varies in the different states and territories,73 especially where there

the ground that he has suits pending and that the public are interested and the sover-eightty of the state is affected, the supreme court will assume original jurisdiction under the constitution though attorney general re-fuses to consent that relator may apply for people who have been asked to be are courts of intermediate appellate jurisdiction."4 Whether the jurisdictional facts exist in the particular case and the tests thereof are considered in preceding sections."5 In certain classes of cases courts of intermediate appeals are given final jurisdiction and as to such it is exclusive of the courts of last resort."6 As between two appellate courts the one which rendered a judgment in the exercise of its appellate jurisdiction is the proper tribunal to interpret and enforce it."7 Where an inferior court has exclusive original jurisdiction of matters involved in an action or proceeding, appellate jurisdiction in a superior court to try the case de novo implies power only to retry on the original papers and on the same issues that were tried below."8 Appellate jurisdiction cannot be conferred by waiver or consent,"9 and a statute conferring appellate jurisdiction is inapplicable to suits already merged in final judgment."80

**SS 11.**\_Federal jurisdiction. A. Generally.\_See 8 C. L. 599--The constitution of the United States vests in the Federal courts generally the entire judicial power of the nation"1 circumscribed only by limitations in that instrument contained,"1 though the courts inferior to the supreme court possess only such powers as are expressly granted to them by congress."83

## 10 Cur. Law. Jurisdiction SS 11A.

courts unless congress has given the Federal courts exclusive jurisdiction.\[85\] A state court has jurisdiction of a suit to enforce a lien given by state statute for materials furnished in the construction of a vessel.\[88\] State courts have no jurisdiction of controversies involving a determination of title to and right of possession of Indian allotments still held in trust by the United States.\[87\]

A Federal court has no jurisdiction of an action against a state brought by a citizen of another state,\[88\] nor can it issue any injunction to stay proceedings in a

\\begin{tabular}{l l} estate of a decedent, Federal court had like & held immaterial where they were fairly a \\ jurisdiction in proper case. Brun v. Mann & part of her original construction. Id. \\
\[C. C. A.\] 151 F 145. Where in state court & 87. Not conferred by act Aug. 15, 1894, \\ creditors of Insolvent corporation could & delegating to Federal circuit courts power \\ avail themselves of securities deposited with & to determine such questions. McKay v. \\ state treasurer for their benefit, they could & Clayton, 204 U. S. 458, 51 Law. Ed. 556. \\ also do so in Federal court. Morrill v. American Reserve Bond Co. of Kentucky, 151 F & 88. Pronblblion extends to suit by citizen \\
\[305. Though state statutes cannot enlarge, & 441. \\ the equitable jurisdiction of Federal courts, & \\ \\end{tabular}

What constitutes a suit against the state: \\ they may enlarge equitable rights and these & If the state is the real party against which \\ rights may be enforced by a Federal court & relief is asked and the judgment will oper- \\ in the same manner as they are enforced & age, a suit is not maintainable against its \\ by state courts. State statute authorizing & officers though it is not named in the plead- \\ bringing of suit to determine adverse claim & ings. Western Union Tel. Co. v. Andrews, \\ to reality. North Carolina Min, Co. v. Westfeldt, 151 F 290. & 154 F 96. A state is the real party in interest \\ in a suit brought against its officers when & the relief sought is that which \\ & \\ \\end{tabular}

SS. State courts may take cognizance of & the relief sought is that which \\ causes arising under postal laws. Lewis & the state alone or when the suit will operate \\ Pub. Co. v. Wyman, 152 F 290. A state & to deprive the state of funds or property in \\ court has jurisdiction of an action by stock- & its possession. Id. A suit to restrain or \\ holders of a banking association to compel & direct a state officer in a matter intrusted to \\ an agent elected by them, after the compel- & his discretion and involving the pecuninary \\roller of currency has paid claims allowed & interest of the state is a suit against the \\ as provided by the Federal statute to dis- & state itself (Morrill v. American Reserve \\ tribute to them property collected by him & Bond Co. of Kentucky, 151 F 305), but where \\ though the Federal statute provides that & no official discretion or pecuninary interest \\ such agent may sell or compromise debts & of the state is involved and the suit would \\ due association with consent of Federal & not violate any statute indicative of the \\ court, and requires him to account to such & public policy of the state, relief may be had \\ court at conclusion of his trust. Ingold v. & in the Federal court (Id.). Suit by corporate \\ Gilmore, 118 App. Div. 727, 103 NYS 373. Act & creditors to require state treasurer to turn \\ Cong. Feb. 4, 1985, providing a remedy in & over to receivers securities deposited with \\ Federal courts to materialerning & him for their benefit. Id. Suit may also be \\ Federal contractors' bonds, is not retrospective, hence did not preclude action in state & maintained even though state pecuninary in- \\ court on bond to enforce rights acquired & its purely ministerial. Id. A suit against in- \\ prior thereto. United States v. U. S. Fidelity & dividuals, though they be state officials, to \\ \\end{tabular}

Hiability of national bank officers, imposed by & of property or the impairment of property \\ Ur. S. Rev. St. 5238, for making false & rights under color of an unconsutriutional law \\ ports as to the bank's financial condition, & is not a suit against the state. Seaboard Air \\ may be enforced in state courts though exclusive jurisdiction is conferred on Federal & lane R. Co. v. Railroad Commission of Ala- \\ & & \\ \\end{tabular}

John, 155 F 791. Morrill v. American Reserve \\ courts to declare a forfeiture of the bank's & Bond Co., 151 F 305. Hence, a suit, is in main- \\ charter as result of acts committed. & . Yates \\ \\end{tabular}

Janees Nat. Ek., 206 U. S. 185, 51 Law. Ed. 1002. State court has jurisdiction of action & to recover an unjust and unauthorized exac- \\ & & \\ \\end{tabular}

H. 1002. State court has jurisdiction of an action against a state brought by a \\ toevercharge under the interstate commerce & Tel. Co. v. Andrews, 154 F 95), and a suit to \\ act, as where plaintiff, who had shipped too & restrain state revenue officers from enforcing \\ many cattle in an emlignant car, was com 530 JURISDICTION $ 11A. 10 Cur. Law.

state court,"\* but this prohibition is inapplicable where it acts in aid of its own jurisdiction already rightfully acquired."\* Federal courts of equity have jurisdiction of suits to determine the constitutionality of state railroad rate laws attacked as being unremunerative or confiscatory," or to enjoin a railroad company from putting into effect a proposed rate alleged to be unjust in itself or discriminatory."

A suit in equity dependent upon a former action of which a Federal court had jurisdiction may be maintained in that court without diversity of citizenship, or a Federal question to aid, enjoin, or regulate the original suit," to restrain, avoid, explain, or enforce the judgment or decree therein," or to enforce or adjudicate liens upon or claims to property in the custody of the court in the original action." The power and duty of Federal courts to enforce their own judgments and decrees is conferred and imposed by the constitution and laws of the United States," and may not be lawfully destroyed, limited, or diminished by legislation of the states or decisions of their courts." Hence, though a Federal court has no jurisdiction of the estates of deceased persons, as such "\* it has jurisdiction of all controversies in an administration which involve the enforcement of its judgments." Federal statutory power to issue writs of scire facias to revive judgments includes power to prescribe the methods of their service 1 and to cause them to be served either within or without the district in which the court sits."

The district court of Alaska, created by the organic act of 1884, was supplanted by the court created by the Alaska Code of 1900, and the jurisdiction of the latter court is governed by the provisions of the code."

Circuit courts have jurisdiction of civil cases in which the matter in control-

against the officers of the state to test the constitutionality of a statute in the en-

ing enforcement of state court judgment

where necessary to preserve rights of parties

forcement of which such officers will act

in suit properly before it. Southern R. Co.

only by formal judicial proceedings as at

Nimon, 153 F 234.

torneys for the state, the suit is one against

91. And such suits are appropriate for de-

the state itself (Id.). Sult by foreign corp-

termining the question. St. Louis & S. F. R.

ration to restrain prosecuting attorneys of

Co. V. Hadley, 155 F 220.

different state circuits from proceeding to

92. Where requisite amount was involved

recover penalties for complainants' violation

and rate was alleged to violate interstate

of alleged unconsontutional state law, rela-

commerce act. Sult by shipper. Jewett v.

tive to its doing business in state, held suit

Chicago, etc., R. Co., 156 F 160. Not an

against state and not maintainable. Id.

reference with functions of commerce commerce com-

A suit to restrain enforcement of a state

mission. Id. Circuit court may take

carranged rate law in which state officers

arranged with the duty of enforcing the law

company to enjoin it from putting in force

are made defendants is not a suit against

confiscatory rates and as preliminary thereto

the state. Poor V. Iowa Cent. R. Co., 155 F

to inquire whether states are in fact too low,

226; Perkins v. Northern Pac. R. Co., 155 F

Ex parte Young, 28 S. Ct. 441.

445; Southern R. Co. v. McNelli, 155 F 756;

93. Brun v. Mann \[C. C. A.\] 151 F 145.

Seaboard Air Line R. Co. v. Ralfrod Com-

94. Proceeding to subject land of decedent

mission, 155 F 79; Ex parte Young, 28 S. Ct.

441. Contra. State v. Southern R. Co. \[N. C.\]

95, 96, 97, 98. Brun v. Mann \[C. C. A.\] 151 F 145.

89. Sult to restrain state revenue officers

F 146.

from enforcing taxes against exempt land

90. Had jurisdiction to subject land of a

held not to enjoin action of state court. Univeralty of the South v. Jeton, 155 F 182.

decree notwithstanding tendency of admin-

Federal salt to enjoin defendant from re-

iteration in state county court. Brun v.

ceiving and using exchange quotations held

Mann \[C. C. A.\] 151 F 145.

not suit to enjoin proceedings in state court

1. While Federal courts may follow state

because defendant had there obtained in-

methods, they are not restricted to them

junction restraining a telegraph company

but may prescribe their own and follow them

from refusing to furnish him the quotations.

Kounty Nat. Bk. v. Hughes \[C. C. A.\] 152 F 322. 61 Law. Ed. 821.

90. May restrain resort to state courts

which would defeat or impair complete Fed-

eral jurisdiction first obtained. Rickey Land

& Cattic Co. v. Miller \[C. C. A.\] 152 F 141.

May grant preliminary injunction restrain-

1. While Federal courts may follow state

States v. Newth, 149 F 302.

very exceeds in value $2,000, and arises under the constitution or laws of the United States,4 but the amount in controversy is immaterial where the United States is plaintiff,s and it has jurisdiction of an action by a receiver of a national bank to recover assets without regard to citizenship or amount involved.6 An action for rent brought against the agent for the stockholders of an insolvent national bank to whom the controller has released the estate is one to wind up the affairs of the bank and as such within the jurisdiction of the circuit court.7 The circuit court sitting in equity has no jurisdiction of a bill by insured under a tontine policy against the insurance company for an accounting.8 While circuit courts have jurisdiction in habeas corpus to discharge from custody a person restrained of his liberty in violation of the constitution or any treaty of the United States 9 such jurisdiction should be exercised with a legal discretion controllable by principles applicable in the particular case.10 A suit to administer for the benefit of creditors of a railroad company, its property situated in different districts, may be brought in any of the districts.11 The circuit court has no power to enjoin the suing out of a writ of error from the circuit court of appeals to review a judgment rendered on its law side.12 Citizenship or amount in controversy is immaterial in proceedings ancillary to litigation already pending.13 The circuit court of appeals has no power to issue a writ of prohibition either as an original or independent proceeding or as ancillary to a contemplated appeal or writ of error.14 The supreme court has original jurisdiction of controversies between states 15 or between a state and the United States.16 \_Court of claims._80 C. L. 608_--Prior to the passage of the Tucker Act this court was without equity jurisdiction.17 By that statute equity jurisdiction was conferred 4. Circuit court has jurisdiction of suit to compel Intermediate carrier to perform contract to issue free passes where carrier refused to Circuit Act. Of U. S. for Eastern Dist. of Virpio do so because of Act Cong., June 29, 1906, prohibiting granting of free interstate transportation, and complainants also alleged that supreme court extends to a controversy because to each of them of right sought to be enforced exceeded $2,000. Mottley v. Louis-ville & N. R. Co., 150 F 406. 5. United States is real and not mere nominal plaintiff in suit on bond of public contract under Act August 13, 1894, for protection of materialmen. United States Fidelity & Guaranty Co. v. U. S., 204 U. S., 349, 51 Law, Ed. 516. 6. Suit is one by officer of United States using under authority of act of congress. Murray v. Chambers, 151 F 142. 7. International Trust Co. v. Weeks, 203 U. S., 364, 51 Law, Ed. 224. 8. Peters v. Equitable Life Assur, Soc. of the U. S., 149 F 290. 9. Exx part Collins, 149 F 573. 10. Would not discharge convict pending appeal in state court to which error would lie to Federal supreme court. 8x part Collins, 149 F 573. 11. And appointment of receiver equitably attaches all the property in the state. Horn v. Pere Marquette R. Co., 151 F 626. 12. Macrum v. U. S. \[C. C. A.\] 154 F 653. 13. Suit by Federal receiver for insolvent corporation to recover assessments against stockholders is ancillary and cognizable, regardless of citizenship or amount in controversy. Brown v. Allebach, 156 F 697. 14. Except in cases reviewing bankruptcy versy exceeds in value $2,000, and arises under the constitution or laws of the United States,4 but the amount in controversy is immaterial where the United States is plaintiff,s and it has jurisdiction of an action by a receiver of a national bank to brought against the agent for the stockholders of an insolvent national bank to whom the controller has released the estate is one to wind up the affairs of the bank and as such within the jurisdiction of the circuit court.7 The circuit court sitting in equity has no jurisdiction of a bill by insured under a tontine policy against the insurance company for an accounting.8 While circuit courts have jurisdiction in habeas corpus to discharge from custody a person restrained of his liberty in violation of the constitution or any treaty of the United States 9 such jurisdiction should be exercised with a legal discretion controllable by principles applicable in the particular case.10 A suit to administer for the benefit of creditors of a railroad company, its property situated in different districts, may be brought in any of the districts.11 The circuit court has no power to enjoin the suing out of a writ of error from the circuit court of appeals to review a judgment rendered on its law side.12 Citizenship or amount in controversy is immaterial in proceedings ancillary to litigation already pending.13 The circuit court of appeals has no power to issue a writ of prohibition either as an original or independent proceeding or as ancillary to a contemplated appeal or writ of error.14 The supreme court has original jurisdiction of controversies between states 15 or between a state and the United States.16 \_Court of claims._80 C. L. 608_--Prior to the passage of the Tucker Act this court was without equity jurisdiction.17 By that statute equity jurisdiction was conferred 4. Circuit court has jurisdiction of suit to compel Intermediate carrier to perform contract to issue free passes where carrier refused to Circuit Act. Of U. S. for Eastern Dist. of Virpio do so because of Act Cong., June 29, 1906, prohibiting granting of free interstate transportation, and complainants also alleged that supreme court extends to a controversy because to each of them of right sought to be enforced exceeded $2,000. Mottley v. Louis-ville & N. R. Co., 150 F 406. 5. United States is real and not mere nominal plaintiff in suit on bond of public contract under Act August 13, 1894, for protection of materialmen. United States Fidelity & Guaranty Co. v. U. S when the party would be entitled to redress against the United States in law, equity, or admiralty if the United States were suale.\[18\] An action to recover back duties collected at Manila after the signature of the treaty with Spain and during the Philippine insurrection does not sound in tort so as to prevent the court of claims from assuming jurisdiction.\[19\] If from the language of a bill referred by the senate to the court of claims under the Tucker Act that court can determine that a claim exists against the United States which congress desires it to investigate to aid it in determining whether it should be allowed, the court may take jurisdiction though the bill does not in express terms provide for the payment of the claim.\[20\]

(SS 11) \_B. As affected by diversity of citizenship.\[See s c. L. "003"\]\_The circuit court has original jurisdiction of controversies between citizens of the state where suit is brought and citizens of other states,\[21\] provided the requisite amount is involved.\[22\] All the parties on one side of the suit must have a citizenship different from that of any of the parties on the other side,\[28\] but the real matter in dispute determines the arrangement of the parties,\[24\] and hence, if a defendant is not an indispensable party, although a proper one, plaintiff may dismiss as to him.\[28\] The suit must be between citizens of different "states."\[22\] A suit between aliens\[27\] or one between a citizen of a state and a citizen of a territory cannot be maintained on the ground of diversity of citizenship.\[28\] For purposes of Federal jurisdiction a corporation is a citizen only of the state in which it was incorporated,\[29\] and where the state contains more than one district a domestic corporation is at least prima facie a resident and inhabitant of the district in which it has its principal office.\[30\] Diversity of citizenship is not essential to jurisdiction in suits relating to patents,\[31\] or in proceed-

**18. The equity jurisdiction of the court of**

**executor against another to prevent injury claims is not general in the sense that it**

**to the estate, a certain investment holding can grant injunctions or decree the perform-company held properly made defendant as**

**ance of contracts (MilliKen Imprinting Co., hawning interests adverse to complainants. v. U. S., 40 Ct. Cl. 81), but where a suit will**

**Konmonth inv. Co. v. Means \[C. C. A.\] 151**

**result merely in a decree for the payment**

**if**
**T59. In a stockholder's suit to remove an of money, it has jurisdiction as fully as**

\*\*alteredized fraudulent lien from corporate prop-other equity courts (Id.), hence, it may re-

**form a contract and adjudicate rights under**

**in addition to the operation will be placed**

\*\*in addition to the side of complaints. Gage v. River-

**19. Warner, Barnes & Co. v. U. S., 40 Ct. 16F 1002.**

**20. Leahy Receiver v. U. S., 41 Ct. Cl. 265.**

**21. Suit to require**
\*\*interstate carrier to re-

**else and transport property held cognizable**

**on ground of diversity of citizenship alone.**

**and maintainable in district of which either complainant or defendant was inhabitant.**

**Danciger v. Wells-Fargo & Co., 154 F 879. Afflavits held insufficient to show that complainant was a citizen of Washington so as to be able to use in South Dakota. Jones v. Shupers, 150 F 462. Testimony that plaintiff was "at home" in a certain town and lived there hold sufficient proof of citizenship to sustain suit against corporation of another state, though averment of citizenship was defective. Baltimore, etc., R. Co. v. Davis \[C. C. A.\] 149 F 191. Evidence held to show that palantiff was a citizen of Pennsylvania though he was engaged in business in Ohio, and hence he could not use another citizen of Pennsylvania. Harton v. Howley, 155 F 491.**

**22. Seo, ante, & 6.**

**23. Blunt v. Southern R. Co., 155 F 499; Barnes v. Berry, 156 F 72.**

**24. The parties will be arranged on one side or the other according to their interests**

\*\*or the facts and regardless of the places they occupy in the pleadings. Gage v. River-

**side Trust Co., 156 F 1002. In suit by one**

\*\*25.

ings ancillary to pending litigation.\[32\] That a nonresident executor suing to prevent injury to the estate qualified in the state of situs will not preclude resort to the Federal court.\[83\] The court cannot entertain a cross bill by an intervenor whose presence as a party to the original bill would have defeated its jurisdiction, unless the intervenor represents an interest already before the court or claims an interest in property in its possession.\[84\] Colorable transfers of property or arrangements of parties will not be tolerated.\[85\] An action depending on diversity of citizenship cannot be maintained without the consent of the parties in a district in which neither plaintiff nor defendant resides; \[86\] but a suit to enforce a claim to land and remove a cloud therefrom may be instituted in the state where the property is located though the parties are not residents of that state,\[87\] and the inhibition of the judiciary acts against the bringing of suits in a district whereof defendant is not an inhabitant is inapplicable where exclusive jurisdiction has been conferred by special acts of congress.\[88\] A suit will not lie in a Federal court by an assignee to recover the contents of a chose in action payable to bearer and not made by a corporation, unless it might have been prosecuted if no transfer had been made.\[89\] (SS 11) _C. As affected by existence of Federal question._ See 8. C. L. 406--A Federal question exists whenever a Federal statute,\[40\] a treaty, or the Federal constitution \[41\]

32. Cross bill for relief ancillary to that sought in original suit held maintainable by resident of District of Columbia. Ulman v. Jaeger's Admr, 155 F 1011.

Mach. Co., 156 F 298). Action against car- 151 F 159.

33. Newton v. Gage, 155 F 598.

01. Evidence insufficient to establish fraud or collusion in suit by nonresident stock- 406.

Chicago, etc., R. Co., 149 F 539.

holder of local corporation to enjoin a city

40. Case held to involve construction of from enforcing an ordinance. City of Chi- 406.

41.0 is to be construed, or its effect or operation is involved. The laws enacted by the legislature of a territory are not laws of the United States so as to confer Federal jurisdiction of suits arising under them.\[42\] That the state constitution prohibits the passage of laws impairing the obligation of contract does not deprive one of the right to invoke the similar provision of the Federal constitution.\[48\] That the case involves a Federal question must be plainly shown by the record and it is not enough that such question may arise.\[44\] In addition to a Federal question, the jurisdictional amount must also be involved.\[45\] Federal questions as affecting review of state decisions are treated in the next section.\[46\]

(SS 11) \_D. Averments and objections as to jurisdiction.\_See SS C. L. 600. Every fact essential to bring a cause within the limited jurisdiction of a Federal court must affirmatively appear on the record,\[47\] whether the suit was originally brought in a state or in the Federal court,\[48\] but jurisdiction will not be renounced or denied where the requisite facts so appear, either directly or by just inference from any part of the record,\[49\] and a suit may not be properly dismissed as not involving a controversy within the court's jurisdiction unless the facts appearing on the record create a legal certainty of that conclusion.\[50\] A bill alleging that the matter in dispute exceeds in value the requisite jurisdictional amount and disclosing no contradictory facts is not demurrable on the ground that the requisite amount is not involved.\[51\] It is not necessary to allege matters of which the court takes judicial notice or matters which the law presumes.\[52\] A bill may be amended so as to show the jurisdictional amount where at the time of the motion the record shows that such amount is involved and the defect is merely one of pleading.\[53\] An amendment to show citizenship must al-

pursant to command of writ of mandamus

was action of state, and if carried out would

take property without due process and deny

equal protection of laws. Raymond v. Chi-

cago Union Trac, Co., 28 Sup. Ct. 7. But to

restrain enforcement of state railroad rate

laws as confiscatory and depriving carriers

of property without due process, and deny-

ing equal protection of laws, arises under

constitution of United States. Perkins v. Northern Pac. R. Co., 155 F 445. Whether

enforcement of state railroad rate law will

take property of railroad companies without

due process held a Federal question though

incidentally involving question of fact. Ex

parte Young, 28 S. Ct. 441. Whether enormity

of penalties prescribed would deprive of

equal protection of laws and of property

without due process held also a Federal question. Id.

**Not involved:** Suit to enjoin enforcement

of city ordinance alleged to deprive of property without due process involves no Fed-

eral question as to acts clearly not authorized by the ordinance, and which if committed would be more private trespasses. North

and

the

same

## 10 Cur. Law. Jurisdiction SS 12B.

lege its existence not only at the time it is filed but also at the time the action was commenced.${}^{\\ref{eq:1}}$ Proof in support of an averment as to the jurisdictional amount need not be offered when defendant does not formally plead to the jurisdiction.${}^{\\ref{eq:1}}$ A defendant may waive as a mere personal privilege his right to be sued only in the district of his' residence.${}^{\\ref{eq:1}}$ Objection to jurisdiction by bill of review setting up a collusive transfer of the subject-matter cannot be made for the first time after final decree and end of term.${}^{\\ref{eq:1}}$

SS 12. _Federal appellate jurisdiction. A. Inquiry into jurisdiction.${}^{\\ref{eq:1}}$_ See s c. L. ${}^{\\ref{eq:1}}$--A circuit court of appeals is bound to inquire first as to its own jurisdiction,${}^{\\ref{eq:1}}$ and second as to the jurisdiction of the court from which the record came, though the question is not raised by the parties.${}^{\\ref{eq:1}}$

(SS 12) _B. Appeals between Federal courts.${}^{\\ref{eq:1}}$_ See s c. L. ${}^{\\ref{eq:1}}$--A United States circuit court has no appellate jurisdiction over a district court.${}^{\\ref{eq:1}}$ The jurisdiction of the circuit court of appeals to review contempt proceedings prior to termination of the main suits is limited to proceedings criminal in their nature.${}^{\\ref{eq:1}}$ An appeal lies directly to the supreme court in cases in which the jurisdiction of the circuit or district court is in issue,${}^{\\ref{eq:1}}$ or those directly and substantially involving the construction or application of the Federal constitution.${}^{\\ref{eq:1}}$ Failure of the certificate of a circuit court to show the exact nature of a jurisdictional question relied on to sustain a direct appeal is not fatal where the record aided by the opinion below

## 11 Failure of amended bill to allege citi-

certain time. Doyle v. London Guarantee & zenship at time of commencement of suit

Led fatal. Cochran v. Pittsburg, etc., R.

**C.** The circuit court of appeals cannot

pass on questions challenging the jurisdiction of circuit courts. Boston & M. R. Co. v.

S. Ct. 91.

Gokey \[C. C. A.\] 149 F 42. Direct appeal

from circuit court not allowable where jurisdiction challenged was not that of court

strict held waved where after removal

which rendered a former decree set up in bill

as basis of title in suit. Empire State-Idaho

v. Henricz Washner Co., 151 F 938. Appearance, pleading to merits, etc., held to waive

m. & Developing Co. v. Hanley, 205 U. S.

privilege of surety of government contractor

of being sued in district where bond was

made or in which it had its office. United

States v. California Bridge & Construction

Co., 152 F 55. In suit for infringement of

patent, objection that suit was in wrong district held waived by general demurrer or

other acts constituting a general appearance. Thomson-Houston Elec. Co. v. Elec-

trose Mfg. Co., 155 F 543. Where a corpora-

tion values objection that it is sued in dis-

rict where neither it nor any other parties

are inhabitants by joining in complainant's

payer for a receiver, such waiver is con-

C. v. Fluidon, 205 U. S. 60, 51 Law. Ed. 708.

clusive upon persons not parties and these

cannot claim that appointment of receiver

was without jurisdiction. Horn v. Pere Marquette R. Co., 151 F 626.

57. Acord v. Western Pocahontas Corpo-

ration, 156 F 988.

58. Puget Sound Nav. Co. v. Lavendar \[C.

C. A.\] 156 F 361.

59. Puget Sound Nav. Co. v. Lavendar \[C.

C. A.\] 156 F 361. See post, SS 14.

60. Cannot review its proceedings for

rors or irregularities on petition for habens

corpus where district court had jurisdiction.

Ex parte Bick, 155 F 908.

61. Could not review order adjudging

fendants in contempt for failure to produce

books and papers, and imposing fine or im-

prisonment for failure to produce within a

vertain time. Doyle v. London Guarantee &

c. Co., 204 U. S. 589, 51 Law. Ed. 641.

62. The circuit court of appeals cannot

pass on questions challenging the jurisdiction of circuit courts. Boston & M. R. Co. v.

Gokey \[C. C. A.\] 149 F 42. Direct appeal

from circuit court not allowable where jurisdiction challenged was not that of court

rudering decree appealed from but of court

which rendered a former decree set up in bill

as basis of title in suit. Empire State-Idaho

Min. & Developing Co. v. Hanley, 205 U. S.

225, 51 Law. Ed. 779. Questions whether

circuit court by appearance or536 JURISDICTION $ 12C. 10 Cur. Law.

clearly shows the nature of the question passed upon.\[44\] The United States supreme court may review decisions of the Federal district court for Porto Rico under the same conditions prescribed for review of decisions of the supreme courts of the territories.\[65\] The act of March 3, 1905, did not authorize a writ of error to the supreme court of Hawaii as to suits which had merged in final judgment before its passage.\[66\] Error lies from the supreme court of the United States to the supreme court of the Philippine Islands in cases where a right claimed under an act of congress is denied.\[67\] On appeal from the supreme court of a territory, the jurisdiction of the Federal supreme court is limited to considering rulings on evidence and determining whether the findings of fact support the judgment.\[68\] (SS 12) \_C. Control over state courts.\_See s c. L. 100_Final judgments of the highest court of a state in which a decision in the suit could be had,\[69\] where any title, right, privilege, or immunity is claimed under the constitution or statutes of the United States and the decision is against such rights,\[69\] specially set up and claimed,\[70\] may be reviewed by writ of error in the Federal supreme court.\[71\] It must

64. City of Chicago v. Mills, 204 U. S. 221,

Yates v. Jones Nat. 'Bk., 206 U. S. 158, 51 Law. W. 51 Low. Sk., 504.

Ed. 1002. State court judgment in favor of

65. Act Apr. 20, 1900, $ 25. Appeal lay

trustee in bankruptcy in action to recover

from decree in suit by wire to obtain liquida-

value of voidable preference, where state

tom of community, in which matter in dis-

court answered some of defendants' con-

pute exceeded $5,000. Garroxi v. Dastas, 204

tenttions by construction It gave to bank-

U. S. 64, 51 Law. Ed. 365. Contention that

rut act. Each Claire Nat. Bk., 'Jackknan,

changes made by Porto Rico leglating in-

204 U. S. 622, 51 Law. Ed. 596. Contention

boundaries of judicial districts and in num-

that state state was authorized by enabling

ber of judges deprived the courts affected of

act and hence valid though contravenaling

validity under act of April 12, 1900, $ 33,

staintich relation led to presen a claim

legalizing existing tribunals, held too fivro-

of right under authority exercised under the

lous to sustain error to supreme court of

United States State of Montana v. Rice, 204

Porto Rico under $ 35. Kent v. People of

U. S. 291, 51 Law. Ed. 490.

Porto Rico, 28 S. Ct. 55. Errors assigned

Not Involved: State law merely directing

with respect to action of trial court with ref-

change of entry of bonds on books of state

erence to confession of guilt held no basis

transfer held to present no ground for con-

for error to Porto Rician supreme court

tention that contract obligations were im-

record not showing assertion or denial of

right under Federal constitution. Id.

Law. Ed. 1001. Request for finding that

66. Though a petition for rehearing had

state states could not under Federal con-

not been denied. Harrison v. Magoon, 205

situation prohibit defendant from obtaining

U. S. 501, 51 Law. Ed. 800.

in-

surance outside the state held not to au-

**67.** Convention for falsification of docu-

ments held not revlewable in Federal su-

preme court as involving denial of protection

tion under Philippine Bill of Rights, where

the most that could be gathered from the

51 Law. Ed. 799. No Federal question pre-

record was that accused contonted that second conviction

complaint was bad by rules of criminal

placing. Parasas v. U. S., 28 S. Ct. 127.

Denial of motion for rehearing could not

liberty without due process by twice sub-

serve to bring Federal questions Into record

so as to sustain error. Id.

**68.** Arzison: Crowve v. Trickey, 204 U. S.

not put in jeopardy by prior conviction be-

228, 51 Law. Ed. 445; Crowve v. Harmon, 204

cause such conviction was reversed on

U. S. 241, 51 Law. Ed. 464.

round that there had then been no legal

69. Court of civil appeals of Texas held

themed. Shoener v. Com. of Pennsylvania,

highest court for purpose of Federal review

28 S. Ct. 110. Carrier's denial that "it was

where state supreme court had disclaimed

bound by law" to receive and forward as a

jurisdiction. Sullivan v. State of Texas, 28

connecting and ultimate carrier an interstate

S. Ct. 216. No decision In highest court of

shipment held not to amount to assertion of

state where that court dismissed appeal for

a right under Interstate commerce act.

defect in parties there. Newman v. Gates,

Louisville & N. R. Co. v. Smith, Huggins &

204 U. S. 89, 51 * 10 Cur. Law. JURISDICTION SS 12C. 537 appear that a substantial Federal question 78 and not merely a local one 74 was necessarily involved.7 If a Federal question was necessarily involved, Federal review may

Federal claim, and essential to judgment 41, 51 Law. Ed. 953. Exclusion of evidence rendered. State of Montana v. Rice, 204 U. in suit to quiet title. Id. Objections that S. 291, 51 Law. Ed. 490: Chambers v. Batli- information in contentp was not supported more & O. R. Co., 28 S. Ct. 34. Federal right by afflawt until after it was filed, that auits held "specially set up and claimed" where rebrote proceedings in New Jersey were pending, and that decisions therein were clearly rolled upon in New York, by execu- wrong and contrary to previous decisions.

tors as defense to assessment of New York Patterson v. People of State of Colorado, 205 transfer tax, though such right was not in terms stated to be claimed under Federal.

- 114, 51 Law. Ed. 879. Claim of con- constitutional. Tilt v. Kelsey, 28 Sup. Ct. 1.
- 115, 28 Sup. Ct. 1.
- 116, 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34. In addition to the 28 Sup. Ct. 34.

538 JURISDICTION SS 13. 10 Cur. Law. be authorized though the decision purports to deal only with local law.78 The certificate of the state court cannot help out a total failure of the record to show that a Federal question was raised.77 Review will be limited in extent to questions within the jurisdiction of the supreme court.78

SS 13. \_Acquisition and divestiture.79--\_Jurisdiction in a particular case is usually acquired either by process or appearance.80 Constructive service is authorized in a Federal court in suits to remove an incumbrance lien or cloud on title to property within the district where suit is brought.81 While jurisdiction of the person may be conferred either by acts or consent of the parties,82 jurisdiction of the subject-matter cannot be so conferred.83 In a suit based on substituted process, only the res can be affected.84

78. State court could not oust Federal Ju-

parties consent that the issues may be de-

risdiction by deciding that one killed by

termined in one suit. Where plaintiff's right

attempting to make coupling with car not

to interpose special demurrer was waived by

equipped with automatic coupler as required

day. Puckett v. Page \[Tex. Civ. App.\] 100

by Federal statute was guilty of contribu-

slow negligence, where that statute was es-

tion did not defeat jurisdiction of Federal

pecially invoked as excluding assumption

circuit court where answer set up demand

of risk. Schmelmer v. Buffalo, etc., R. Co.,

205 U. S. 1, 51 Law. Ed. 681.

68.7

7. Louisville & N. F. Co. v. Smith, Hugh-

gins & Co., 204 U. S. 5, 51 51 Law. Ed. 612,

- 10Cur. Law. JURISDICTION SS 14.

After a court has acquired jurisdiction, it ordinarily retains it until the cause is disposed of," unless its power is divested by failure to take steps necessary to preserve it " by a transfer of the cause," the making of unauthorized orders," the conduct or substitution of parties," or by otherwise permitting the case to pass beyond further cogninance." Jurisdiction cannot be ousted by the agreement of contracting parties not to sue on the contract in the state courts." Provision is generally made for the preservation or transfer of existing jurisdictions upon the establishment of new courts " or districts."

SS 14. _Objections to jurisdiction, inquiry thereof, and presumptions respecting it._ See s C. L. SS14.--Courts will at all stages entertain objections to the jurisdiction and inquire thereof," and the duty of spontaneous investigation is particularly emphasatic.

- 10Introduction of a commission, and objections to its admission because not properly executed, held not such commencement of trial that court lost jurisdiction of case by ordering adjournment to permit commission of ward's property, it retained jurisdiction by, 564, 102 NYS 1023,
- 118P. Plaintiff by withdrawing demand for hearing, order guardian to show cause why safe should not be set aside and enjoin of defendant's counter-claim for his deposit and damages. Ballelsen v. Schiff, 105 NYS 144 N. C. 562, 57 SE 342. During term all proceedings are under control of court and may be stricken, altered, or amended with- but notice. Hansford v. Tate, 61 W. Va. 207,
- 118P. Judge of court of Coffeyville need not to be present or act on day fixed by summons for answer, and no adjournment need be A. J. 151 F 159.
- 119P. Where judgment was entered by clerk Schockman v. Williams \[Kan.\] 91 P 64. Where a stipulation extending the time of the trial justice in an action in the municipal court was made October 1st, but hadver- tently dated October 2d, and judgment rendered on the 8th, jurisdiction was held by virtue of the stipulation. Roth v. Goodman, 62 NYS 683. Municipal court held to have lost jurisdiction by failure of judge before whom case was tried to set it for jury trial on ground of conflicting evidence within 8 days from time of making order for jury trial as provided by Laws 1902,
- 120NYS 144.

sized in the Federal courts.95 A state court must construe the law and determine the facts upon which its own jurisdiction depends,96 and unless a principle controlled by the Federal constitution is involved, it need not follow the decisions of the Federal courts.97 Where jurisdiction is dependent upon a fact which the court is required to ascertain, its determination of the existence of such fact is conclusive until set aside or reversed by a direct proceeding.98 The Federal full faith and credit clause does not prevent the courts of one state from examining the records of the courts of a sister state to ascertain whether or not that court had jurisdiction of the subject-matter.99

Jurisdictional questions are usually raised by motion, plea in abatement, or other proper pleading 1 seasonally made or filed.2 A demurrer for want of jurisdiction of the person raises only the question whether defendant is such a person as can be subjected to the process and jurisdiction of the court.3 A party invoking the power of a court of general jurisdiction by obtaining an injunction cannot in avoidance of damages therefrom assert that the court had no jurisdiction.4 When a court has no jurisdiction there should be a judgment of dismissal for want thereof and not a general judgment for defendant.5

Footnote 10: Cur. Law.

_Evidence and presumptions._ See S. C. L. #14.-An objection to jurisdiction must be supported by evidence when the record does not show facts going to support it.8

Footnote 10: Cur. Law.

\_NWF 43: West v. Martin \[Vash.\] 92 P 334), \[collateral attack unless want of jurisdiction and will be noticed by appellate court on its own motion (Western Union Tel. Co. v. (Id.). As to garnishment proceeding in Cooper \[Ga. App.\] 58 SE 517; Columbia N. S. (and other state. Id.) D. Co. v. Morton, 28 App. D. C. 288), Su- preme court must notice its own want of applicable jurisdiction whether question is \[diction of subject-matter is by demurrer or raised by the parties or not. McCashland v. (and such question cannot be raised \[Utah\] 88 P 680. (and motion to set aside service, at least 95. Whenever a Federal court becomes satisfied that it is without jurisdiction, it is \[diction of subject-matter appeared on its duty to dismiss or remand the suit of Its \[diction of subject-matter appeared on the Federal courts\] 1002.). Jurisdiction is fundamental and may be inquired into \[n any manner, at any stage, by court of own motion, or by parties.\] (C. A.) 149 F 647. Cause erroneously removed to Federal court should be remanded at any stage at instance of \[diction of subject-matter appeared on international, etc., R. Co. v. Hoyle \[C. C. A.\] 149 Trace of declaration. Legum v. Blank \[Md.\] F 180. Appellate court will notice without objection or assignment lack of jurisdiction of lowered court. Morrison v. Burnette \[C. C. (and not follow the decisions of the Federal courts.) 154 F 617; Rogers v. Penobscot Min. Co. \[C. C. A.\] 154 F 606. In qualifying into its own jurisdiction, Federal court may not determine questions on merits, hence dismissal was not authorized under act March 3, 1875, $ 5, because of finding that defendants did not jointly and that value of land with court held by each was less than $2,000, question whether defendants acted jointly in withholding land of alleged value of $5,000 being in issue. Smithers v. Smith, 204 U. S. 632, 51 Law. Ed. 656. (and \[Tex.\] 90, 97. Southern Pac. Co. v. Allen \[Tex.\] 91, 20 Tex. Ct. Rep. 202, 106 SW 441. (and \[Tex.\] 90, 97.) 20 Tex. Ct. Rep. 202, 106 SW 441. (and \[n.\] 90, 97.) 20 Tex. Adjunction as to age of one imprisonst oned in a reformatory not open to attack in hase corpus. In re Wallace, 75 Kan. 422, 89 P 687. Every court has power to determine its own jurisdiction both as to parties and subject-matter (Baltimore & O. R. Co. v. Freeze \[Ind.\] 82 NE 761), and the decision of an inferior tribunal on facts essential to its jurisdiction is not subject to * 10Cur. Law. JURY $ 1A.

Courts of general jurisdiction will be presumed to have acted within their jurisdiction,' but such presumption does not obtain as to courts which exercise only a limited or special jurisdiction.8

- 1. Necessity or Occasion for a Jury Trial, 541.

A. As "Preserved" by the Constitutions, 541. Denial of the Right; Condition-Gutamated, 543. The Character of the Jury Guaranteed, 548.

B. As Conferred Where the Common Law Did Not Give it, 543.

C. Demand, Loss, or Waiver of Right, 543.

$ 2. Eligibility to and Exemption from Jury Service, 544.

$ 3. Disqualifications Pertaining to the Particular Cause, 545.

$ 4. Discretion of Court to Exeuse Jury, 546.

$ 5. The Jury List and Drawing for the Term, 546.

$ 6. The-Venice and Like Process, 549.

$ 7. Exempting the Trial Jury, 549.

$ 8. Arraying and Challenging, 549.

$ 12. Custody and Discharge of Juryers and Jerry, 553.

A. Challenge to the Array or Panel, 549.

$ 13. Compensation, Sustenance, and Comfort of Jarrows, 553.

_The scope of this topic is noted below._

$ 1. \_Necessity or occasion for a jury trial. A. As "preserved" by the constitutions,\_See & C. L. 617 the right to trial by jury cannot be abridged by legislative enactment,10 but a general guaranty that the right "shall remain involate" only preserves the right as it existed at the time of adoption of the constitution,11 and creates no

- 7. While national courts have only a \_as ground for new trial (see New Trial and limited jurisdiction, they are not inferior courts and their judgments possess every attribute of finality and estopped appertaining to courts of general jurisdiction (In re First Nat. BK, (C, A.) 162 F 64), hence failure of their records to affirmatively show jurisdictional facts is not fatal (Id.). United States district court being a court of record, proof of order discharging a bankrupt raises presumption that court acquired jurisdiction and that proceedings were legal. New York Institution for Instruction of Deaf and Dumb v. Crockett, 117 App. Div. 269, 102 NYS 412. In this connection, see Judgments, 8 C. L. 530.

$ 8. As to validity of foreign justice of peace judgment. Geruld v. Baltimore & O. R. Co., 105 NYS 110. The rule that no presumptions are indulged in favor of the jurisdiction of an inferior court is inapplicable where a judge of such court acts in the special capacity of an officer whose duties are presumed to have been regularly performed. Inquest by justice of peace. Morgan v. San Diego County, 3 Cal. App. 454, 86 P 720.

$ 9. It includes generally all matters relating to necessity of jury trial and the selection and service of petit jurors in both civil and criminal cases. It exedades grand juries (Grand Jury, 9 C. L. 140), felged issues out of chanery (see Equity, 9 C. L. 1110), the custody and conduct of juries during the trial (see Trial, 8 C. L. 2161, as to civil trials; Indictment and Prosecution, 10 Q. L. 57, as to criminal trials), misconduct and the resulting set of juries in both civil and criminal cases. It exedades grand juries (Grand Jury, 9 C.

543 JURY $ 1A.

10 Cur. Law. new rights \[12\]. Hence the right to trial by jury does not exist in equitable suits \[13\], the primary relief sought characterizing the action \[14\], unless the equitable relief is asserted in the answer, in which case its defensive or affirmative nature controls \[15\]. Where an equitable action involves distinct legal issues, the latter are triable by jury \[16\]. The right to a jury does not exist in special proceedings \[17\], such as contempt \[18\], nor in prosecutions for misdemeanors \[19\], and violations of municipal ordinance \[30\], though it is usually constitutionally guaranteed in criminal actions \[21\].

\_Denial of the right; conditions.\_See 8 C. L. 619--While the exaction of a jury fee as a condition precedent is not a denial of the constitutional right to a trial by jury \[22\], it has been held that where a statute gives the right absolutely \[23\], such condition cannot be imposed \[24\]. The granting of a nonsuit, where the court would be obliged to set aside a verdict for plaintiff \[25\], and the limiting of matters triple in a jury court upon appeal from nonjury court to those specified in the appeal \[26\], is not unconstitu-

Where levy for costs is made upon property

of plaintiff in execution, who filed affdavit

(N. M.) 51 P 724. Jury trial is not of right of illegality on ground that CIV. Code 1895,

in cases within the jurisdiction of equity

$ 4161, had not been compiled with so as to

render him liable, held error to overrule

to. Shedd V. Sefefeld 230 H. 118, 82 NNE 580.

motion to dismiss and to refuse an appeal

to a jury. Payne v. Stevens, 1 Ga. App. 266,

$ 26, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 141, 142, 143, 144, 145, 146, 147, 148, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 211, 222, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 41, 42, 43, 45, 46, 47, 49, 51, 52, 53, 54, 56, 57, 59, 61, 62, 63, 64, 65, 67, 69, 71, 72, 73, 74, 75, 76, 78, 79, 81, 82, 83, 84, 85, 86, 87, 89, 90, 91, 9 tional as a denial of the right to jury, and while a statute creating a disputable presumption of fact from the proof of other facts, does not deny the right,\[27\] one providing for proof of guilt from reputation is unconstitutional.\[8\]

\_The character of the jury guaranteed,\[8\]\_see s c. L. 819--The constitutional jury of Texas is one composed of twelve men,\[29\] and a verdict cannot be returned by less than the full jury except by consent,\[30\] which consent cannot be given by accused in a felony case,\[31\] unless a juror during the trial dies or is disabled from sitting.\[32\]

(SS 1) \_B. As conferred where the common law did not give it.\[8\]\_See s C. L. 820--The right to trial by jury as existing at common law has been modified\[32\] and extended\[34\] in many states, but, to be available, case must come clearly within the state.\[85\]

(SS 1) \_C. Demand, loss, or waiver of right.\[8\]\_See s C. L. 821--The right to a trial by jury in some courts is withheld\[36\] or given\[37\] absolutely, and can be waived only by written stipulation,\[38\] but in others it is dependent upon a timely demand.\[39\] In

"no matters shall be tried in superior court 1899, SS 691 (Ann. St, 1806, p. 700), providing except those specified in the appeal," held that issues of fact in actions for money only constitutional. Mead v. Cutler, 194 Mass. must be submitted to jury unless jury trial is waived. Van Raalte v. Epstein, 202 Mo. 277, S0 NE 496. 15, 1903 (Acts 1903, p. 90), 173, 93 SW 1077. In action for nuisance held not violative of par. $, $ 1, art. 1, Const., Judgment is demanded under $ 1662, providential jury, because it raises a rebuting for damages and order of removal, right able presumption of fraudulent intent from proof of certain facts (Yance v. State, 128 & 661, 57 SE 889), nor does it repeal $ 1023, of Pen. Code of 1905, which provides that move nuisance. Heughes v. Galusus Stove "on the trial of all criminal cases the jury shall be the judges of the law and the facts" (Id.).

**28.** Under Valentine Anti-Trust law, 173, 93 SW 1077. In action for nuisance held not violative of par. $, $ 1, art. 1, Const., Judgment is demanded under $ 1662, providential jury, because it raises a rebuting for damages and order of removal, right able presumption of fraudulent intent from proof of certain facts (Yance v. State, 128 & 661, 57 SE 889), nor does it repeal $ 1023, of Pen. Code of 1905, which provides that "deferndant" be directed to re- or- on the trial of all criminal cases the jury shall be the judges of the law and the facts" (Id.).

**28.** Under Valentine Anti-Trust law, 173, 93 SW 1077. In action for nuisance held not violative of par. $, $ 1, art. 1, Const., Judgment is demanded under $ 1662, providential jury, because it raises a rebuting for damages and order of removal, right able presumption of fraudulent intent from proof of certain facts (Yance v. State, 128 & 661, 57 SE 889), nor does it repeal $ 1023, of Pen. Code of 1905, which provides that "on the trial of all criminal cases the jury shall be the judges of the law and the facts" (Id.).

**29.** Under Valentine Anti-Trust law, 173, 93 SW 1077. In action for nuisance held not violative of par. $, $ 1, art. 1, Const., Judgment is demanded under $ 1662, providential jury, because it raises a rebuting for damages and order of removal, right able presumption of fraudulent intent from proof of certain facts (Yance v. State, 128 & 661, 57 SE 889), nor does it repeal $ 1023, of Pen. Code of 1905, which provides that "on the trial of all criminal cases the jury shall be the judges of the law and the facts" (Id.).

**28.** Under Valentine Anti-Trust law, 173, 93 SW 1077. In action for nuisance held not violative of par. $, $ 1, art. 1, Const., Judgment is demanded under $ 1662, providential jury, because it raises a rebuting for damages and order of removal, right able presumption of fraudulent intent from proof of certain facts (Yance v. State, 128 & 661, 57 SE 889), nor does it repeal $ 1023, of Pen. Code of 1905, which provides that "on the trial of all criminal cases the jury shall be the judges of the law and the facts" (Id.).

**29.** Under Valentine Anti-Trust law, 173, 93 SW 1077. In action for nuisance held not violative of par. $, $ 1, art. 1, Const., Judgment is demanded under $ 1662, providential jury, because it raises a Oklahoma one charged with a crime triple by jury at common law 40 cannot waive the right, and a conviction by the court is void,41 but such right may be waived in a proceeding to punish for refusal to testify before a general military court martial.42

Footnote 42: The _FUSE_ is a _FUSE_, which is a _FUSE_, 3. Disqualifications pertaining to the particular cause. Right to an unbiased and unprejudiced jurySee 5 C. L. 623--The parties are entitled to a jury that will decide the case upon the evidence adduced, hence an opinion upon a material issue 58 disqualifies.57 Such opinion, however, must be fixed,68 and such as will prevent the juror from trying the case on the evidence,59 and, consequently, an opinion based exclusively 60 upon public rumors,61 conversations,62 and newspaper reports,63 is generally not a ground for challenge where the juror testifies that he can render a fair and impartial verdict notwithstanding,64 although one based upon a conversation with a material witness,65 or formed from hearing the evidence of another case involving the same issues,68 usually disqualifies. If a juror is actually biased, how-

any person who has served on any jury such fixed opinions as to disqualify. Rosen-

within twelve months shall be excused from

cranx v. U. E. \[C, C. A.\] 155 F 38. Posses-

service im cities of over 100,000 upon challeng

sion of opinion requiring evidence to re-

lense: $ 6567 provides for special juries in

such cities; $ 6567), provides that no

wealth V. Curcic \[Pa.\] 67 A 643.

person shall be required to serve more than

once a year. Held that $ 6547 controls

opinion shall not disqualify unless court is

party's right to challenge Jurors called un-

der $ 6566, and service within twelve

months, though not in current calendar

month, is ground of challenge, $ 6567

furnishing personal privilege to juror. Wil-

lismson v. St. Louis Transit Co., 203 Mo. 345.

100 SWV 1072. Under express terms of Code

1896, $ 4988, service as juror during

previous week does not disqualify a special

answer. Green v. State \[Tex. Cr. App.\] 17

vaehreeman in murder trial. Andrews v. State

\[Ala.\] 44 S 696.

54. Wilson's Rev. & Ann. St. Okl. 1903,

$ 3308, disqualifying sherifts from performing jury service, applies to deputies. Rob-

rison v. Oklahoma Ter. \[C. C. A.\] 148 F 380.

55. Fact that juror is a justice of the

p Peace, a constable, or a deputy sheriff, is no

ground of challenge under express terms of

Act. No. 135, p. 217, of 1889, $ 2. State v. Petit, 119 La. 1013, 44 $ 848.

56. In action on insurance policy, opinion

as to plaintiffs right to recover does not

disqualify where only issue is measure of

damages. Furlong v. American Cent. Fire

Ins. Co. \[Iowa\] 113 NW 1087. Fact that

jurors had believed that deceased was mur-

dered and had made up their minds as to

the punishment which should be inflicted

held not to disqualify where they had no

opinion as to guilty of accused and could give

him a fair trial. Cason V. State \[Tex. Cr. App.\] 170 Tex. Ct. Rep. 339, 165 SWV 337.

57. In summary hearing of challenge for

predetermined opinion, question is whether

he knows facts or has received information

of facts which he believes to be true and

has formed a settled opinion therefrom upon

a material issue. State v. Smith, 74 Kan. 383,

$5 P 1020, 89 P 21. Statement by juror that

from fact that indictment had been returned

against accused he presumed that there was

more chance of him being guilty than one

against whom no indictment had been returned

turned held not to disqualify in view of

whole examination. Niezorawski v. State

131 WTs. 166, 111 NWV 250. Where juror stated that he had no opinion, that he had

been informed of homicle by persons whom

he did not know, that same had made no impression on his mind and that he could give

accused a fair trial, held competent. Gregg

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 89,

100 SWV 1161.

58. Yoir dire examination held to show

10 Curr. L.--85

10 ever, it is immaterial from what source he received his information.\[67\] A prejudice of any kind which materially affects the case,\[68\] as against a party,\[69\] a material witness,\[70\] or a prejudice growing out of the nature of the charge,\[71\] renders a juror incompetent. Likewise, conscientious scruples against capital punishment in convictions on circumstantial evidence\[72\] is a ground for challenge on the part of the prosecution.\[73\] While friendships\[74\] and any relationship\[78\] which creates actual bias disqualifies, certain relations ipso facto renders a juror incompetent,\[79\] while a general interest as a citizen or taxpayer does not usually disqualify for service in an action in which the county is financially concerned,\[71\] one who is directly interested,\[78\] or in the employ of one interested,\[79\] is incompetent.

SS 4. \_Discretion of court to excuse juror.\[See S. C. L. 625--By statute in some states a broad discretion is vested in the court to excuse jurors for cause,\[80\] and it is no abuse thereof to excuse member of national guard when his regiment is in camp.\[81\]

SS 5. \_The jury list and drawing for the term.\[See S. C. L. 625--In many states the list is made by a juror commission, the qualifications,\[83\] manner of appointment or

**67.** Pen. Code, $ 107$, relating to opinions based on rumors, etc., held inapplicable where juror is actually biased. People v. 118 La. 349, 42 S 960. Where juror was related to accused by affinity but marriage has been dissolved by death, disqualification that latter is without bias. State v. Caron, 118 La. 349, 42 S 960. In prosecution of bank officials for conspiracy to defraud bank, creditors of bank who positively testify that they are without prejudice held competent. Imboden v. People \[Cod.\] 90 P 608. Although juror in homicle case had known deceased and had read accounts of homolide and had talked about same, held competent where he stated he could try case on the evidence though he had formed an opinion. Gregey v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 89, 100 SWV 1161. In a prosecution for vagrancy, mere fact that juror is witness in another vagrancy case against accused does not disquality him. Jacobs v. State, 1 Ga. App. 519, 57 SE 1063.

**68.** In action on liquor dealer's bond for sales to plaintiff's minor son, fact that juror was an active prohibitionist and was prejudiced against retail liquor business, and men engaged therein, to the extent of the liquor traffic, but not against individuals, held not to disqualify where he stated that he could render fair and impartial verdict. Ellis v. Brooks \[Tex.\] 18 Tex. Ct. Rep. 448, 102 SWV 94.

**70.** Questions asked by juror of witness while evincing possible disbelief held not to show such prejudice as to require withdrawal of a juror. Chicago City R. Co. v. Shreve, 128 Ill. App. 462.

**71.** Discovery by juror after trial had begun that he entertained a prejudice growing out of incident occurring in father's family, which was revived by evidence of case, held an accident within $ 281, City. Code Proc. (Gen. St. 1905, p. 5176), Justifying discharge of jury. State v. Hansford \[Kan.\] 92 P 551.

**72.** Coleman v. State \[Ala.\] 44 S 184; Commonwealth v. Curcio \[Pa.\] 67 A 643. May be examined in respect thereto, especially where punishment is fixed by jury. Strickland v. State \[Ala.\] 44 S 90.

**73.** Accused cannot object. Gregory v. State \[Ala.\] 42 S 829.

**74.** Close neighbor and friend of accused. State v. Caron, 118 La. 349, 42 S 960.

**75.** Cousin of accused. Family of juror based on rumors, etc., held inapplicable where juror is actually biased. People v. 118 La. 349, 42 S 960. Where juror was related to accused by affinity but marriage has been dissolved by death, disqualification is thereby removed. Gillespie v. State, 168 Ind. 298, 80 NE 829.

**76.** Relation of attorney and client b-b-b-c-f- 10 Cur. Law. JURY SS 5. . 547

election,\[83\] and the terms " of its members being regulated largely by statute. A statute authorizing a specific number of the members to act contemplates that all shall be qualified.\[84\] In South Carolina the superintendent of education may act in the place of an absent member.\[84\]

The legal number must be drawn " at the designated place,\[85\] under the prescribed oath,\[86\] and pursuant to a sufficient order, if one is necessary,\[80\] and the list prepared as required.\[81\] After a jury has been drawn it must be preserved in the manner prescribed.\[92\] Jurjes existing at the time a statutory change in the manner of drawing becomes operative are usually not affected thereby.\[93\]

Jurors must be drawn from the appropriate district.\[94\]

of approved integrity and sound judgment,

pair to clerk's office and there supplement able to read and write English language,

Jury list is no ground for quashing venire and freeholders of county, held not to impose

under 18, Act. 135, p. 223, of 1888, requiring uncon constitutional tests. State v. Anson

(IW18.) 112 NWP 475. Fact that jury commissioner, but no is ex orlico a jury

miscinors selected jurors for term which

commissioner, is not required to take oath was never held does not disqualify for sec-

as jury commissioner in addition to oath as

lection for new term, under Laws 1903, p.

clerk. State v. Bradley \[La.\] 45 S 120.

218, c, 112, f. I. providing that every jury

Const. art. 160, requiring oath to support commissioner shall be disqualined to select

Federal and state constitution and law, is

for two successive terms. Territory v. Emil-

not compiled with by oath of jury commissioner to discharge duties according to par-

lie \[N. M.\] 89 P 239.

stiner to discharge duties according to par-

estin C.art. 18, 5, relating to

(IW18.) 112 NWP 475. Fact that jury commissioner, but no is

and St. 188, & 2533a, authorizing appoint-

according to such statute does not render

ment by circular judge, held not in violation

thenfective (Id.).

thereof V. Anson \[VWs.\] 112 NWP 475),

90. Order directing jurv commissioners to

or of Const. art. 6, & 4, requiring all county

convince on particular day to discharge qu-

offcers, except judicial officers, to be chosen

ties is not affected by failure of clerk to

by electors (Id.). Neither is it uncontinu

spread order on minutes. State v. McClenen-

tonal as imposing executive duties upon

don, 118 L, 123, # 48 417.

Julojciary. Id.

91. Where, in violation of Ky. St. 1803,

01. Once appointed continues to hold office

until displaced by judge, State v. Bradley

shall selected numbered or littzens from

\[La.\] 45 S 120. Office of jury commissioner

assessers's book, write names on separate

created by Bess. Acts 1879, p. 28, embodied

ships and place in drum, and that no person

in Rec. St. 1889, # 6514 (Ann. St. 1906)

shall be permitted to be present commissioner

p. 3272), in cities having a specified popula-

tion, is not within Const. art, 9, 14, limiting

court write and place in drum, the array

term of office of county, township, and mutex

may be quashed and without a showing of

psqal officers to four years. State v. Cor-

Projeded. Louisville, etc., R. Co. v. Schwab,

corn, 266 Mo. 1, 103 SW 1044. Sess. Acts. 1879, p. 28, embodied in Rev. St. 1899,

92. Under 1 Code of Laws 1902, & 2912,

$ 6539, $541 (Ann. St. 1906, p. 3272), and

providing that three separate locks shall be

Act March 3, 1857 (Laws 1856-7, p. 661), as

placed on jury box, each lock having a spec-

amended by Act Nov. 14, 1857 (Laws 1857,

clal key to be kept by specified officer, it is

p. 487), constructed and held that jury commissioner

miscinors' only that one key opened two

missioner appointed to fill vacancy caused

locks. State v. Smith, \[S. C.\] 57 SB 868,

by death holds for four years from May 1st

Where names of jurors from different super-

of year of appointment, notwithstanding his

visors' districts were placed in separate

appointment is for the unexpired term of de-

boxes without covers, and put into a ballot

decdent. Id.

S. Act No. 135, p. 216, 1898, providing

a sufficient compliance with Laws 1896, p. 9
While the Federal constitution does not insure one a jury drawn from his own race or even a mixed one,\*\* it entitles him to one drawn without race discrimination,\*\* and any statute making such a discrimination 97 is void. The presumption is that a jury was lawfully drawn,\*\* and one alleging discrimination must establish the same \*\* by competent evidence * if controverted.\*\*

The jury for the term must be drawn in the prescribed manner * and at the proper time,4 and where it has not been regularly drawn, the court is usually authorized to draw or summon one.\*\*

**Status regulating the drawing of juries are usually construed as directory only, and an irregularity vitiates the drawing only when fraudulent.** The fact that jurors for the term are withdrawn from the box in an illegal manner does not\*\*

\*\* jury may be drawn wholly from within city.\*\*

**State v. Fendrick \[Ohio\] $2 NE 1078. Jurora**

**for trial of criminal case in Federal courts**

**may be drawn from entire state of Minneapolis,**

**standings $289, declaring provisions for**

\*\*scata, which constitutes the "judicial district," and need not be drawn from sub-

**division thereof where case is viable. Clement v. U. S. \[C. A.\] 149 F 505.**

**95. Montgomery v. State \[Fla.\] 42 S 894.**

**Miller v. Com. \[Key.\] 105 SW $99; State v. Laborde \[La.\] 45 S 83.**

**96. Under Const. U. S. Amend. 14, $ 1, forbidding any state to deny to any person**

**equal protection of the laws, statute excluding negrees from juries is invalid. Miller v. Com. \[Key.\] 105 SW $99.**

\*\*97. Equal protection of law is not denied by law which makes no discrimination against colored race merely because discretion

**tion vested from certain officers may be used to discriminate. Montgomery v. State \[Fla.\] 42 S 894.**

**S 894.**

**Key. Cr. Code Prac. $ 281, providing**

**that decisions upon motion to set aside indictment shall not be subject to exception, though prohibiting appeal from motion to set aside**

**set aside**because of race discrimination in\*\*

**selection of grand jury, held valid. Miller v. Com. \[Key.\] 105 SW $99.**

**98. Montgomery v. State \[Fla.\] 42 S 894.**

**Louisville, etc., R. Co. v. Schwab, 31 Ky. L. \[R.\] 1313, 105 SW 110.**

**99. Evidence as to negro population proportion subject to jury duty, and of the jury commission that no discrimination was made, held not to show discrimination.**

**Washington v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 301, 103 SW $79.**

**Mex fact that Sheriff, in summoning a venire, summoned only white persons and failed and refused to select any colored men, does not itself**

**show discrimination solely on account of color. Montgomery v. State \[Fla.\] 42 S 894.**

**1. Evidence of proceedings in other courts of county is irrelevant. Washington v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 301, 108 SW $79.**

**2. Where challenge to array on ground of discrimination against colored race is verified by aff afflowit of defend, evidence in support thereof is not admissible until challenge is controverted. Montgomery v. State \[Fla.\] 42 S 894.**

**the**

**of**

**the**

**of**

**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**

**of**
**the**
**of**
**the**

vitiate the box," and irregularity in drawing the term panel is harmless where the trial jury is not drawn therefrom."

SS 6. \_The venire and like process.\_See * C. L. 628--The venire must be served by the proper officer," who must have qualified for his office,"10 and be duly sworn.11 Where the sheriff is disqualified because of prejudice, his deputies are also disqualified.12 The venire for a special term need not be published in Louisiana.13

SS 7. \_Empaneling the trial jury.\_See * C. L. 628--The trial jury must be empabeled substantially 14 in the manner-prescribed by statute.15 Until a talesman has been sworn he may be discharged to make place for a regular venireman.16 The granting of a continuance to allow counsel time to investigate a list of jurors furnished is largely discretionary,17 especially where such list is unnecessarily served.18

SS 8. \_Arraying and challenging. A. Challenge to the array or panel.\_See * C. L. 629--The ground of challenge to the array must be one whnch affects the entire panel and not particular jurors,19 and must be timely made.20 In some states the grounds of challenge are specified.21

notwithstanding: Ann, Code 1892, $ 2389, making provisions for drawing jurors directory. Cook v. State \[Misa.\] 43 S 618, 7, $. Cook v. State \[Misa.\] 43 S 618, 9. Under Mills' Ann. St. 2613, providing that ventures shall be served by sheriff, or, if disqualified, by coroncer, special venire surmomed by bailiff held void. Burnside v. People \[Colo.\] 90 P 97. Writ for special venire, directed to sheriff or any constable of county, need not be served entirely by sheriff, but part may be served by constable. Hull v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 772, 100 SW 403. Where deputy sheriff had been duly appointed and sworn, fact that his commission had not been filed held not a ground for challenge to special venire surmomed by him. Smith v. People \[Colo.\] 88 P 1072.

11. Though officer summoning talesmen was not sworn in accordance with law, the irregularity is not available after trial, it not appearing that appleplant did not know thereof at the time. San Antonio Trac. Co. v. Davis \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 978, 101 SW 554.

01. State v. Barber \[Idaho\] 88 P 418. Fact that sheriff was related to accused held no ground of objection to talesmen summoned by deputy under immediate orders of the court, the sheriff being absent and taking no part therein. Freeney v. State \[Ga.\] 59 SE 788.

01. Rev. St. $ 1982, held repealed by Act 135, p. 216, of 1898. State v. Armstrong, 118 La. 480, 43 S 87.

01. Fact that jurors were drawn from hat instead of from box as required by statute held no ground for quashing panel in absence of showing of rrand intended to prejudice accused. Washington v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 301, 103 SW 879.

01. Under Code Cr. Proc. 1895, arts. 682, 688, providing that, when particles have announced ready for trial in criminal action less than capital, clerk shall write names of regular jurors for week on slips and place in box from which trial jury shall be drawn, it is reversible error to prepare list from box before case is called. Adams v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 735, 99 SW 1015.

01. State v. Freeman, 119 La. 663, 44 S 384; Tankersley v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 92, 101 SW 834.

01. Where jurors are prominent men and well known to counsel, held not an abuse to refuse continuance longer than until 10 o'clock next day for investigation. Imbad v. People \[Colo.\] 90 P 608.

01. Action thereon will not be inquired into in absence of proof of prejudice. State v. Laborek \[La.\] 45 S 38.

01. It is no cause of challenge that some of the jurors had served on the trial of another jointly indicted, which case involved same witnesses and evidence. Paulk v. State \[Ga. App.\] 58 SE 1109. Where accused moves to quash panel because prejudicial newspaper account of crime had appeared since impanleming, but does ask privilege of examining individual jurors, motion is properly over-vuled. State v. Crane, 202 Mo. 54, 100 SW 422. Fact that some of jurors summoned did not appear is no ground for quashing special venue, though their absence was not explained and forfeurures were not issued against them. Young v. State \[Ala.\] 48 S 160. Where colored persons are discriminated against in summoning of a venire, ar-ray may be challenged. Montgomery v. State \[Fla.\] 42 S 894. Where solitor for state said: "If any member of the jury had formed or expressed the opinion that the prisoner was not guilty, to let it be known, no juror answering thereto, the prisoner thereupon admits the cause as a challenge to
    (SS 8) _B. Challenge for cause_.See & C. L. #29--Challenge for cause may be expressly waived by stipulation,\[21\] or it may be waived as to known disqualifications,\[23\] or such as could have been ascertained by reasonable examination \[24\] by failure to object \[25\] at the proper time.\[26\] A challenge must be sufficient to disclose the ground thereof.\[27\]

\_Right to list of jurors_See & C. L. #30 from which the trial jury is to be selected \[28\] is controlled largely by statute.\[29\] While the names of jurors drawn but not served need not be placed on the list,\[30\] the placing of them thereon does not vitiate the panel.\[31\] (SS 8) _C. Peremptory challenges and standing jurors aside_.See & C. L. #30

_Peremptory challenges_.See & C. L. #31.--The right to challenge Peremptory is absolute \[22\] and exists only by statute.\[33\]

_Number allowed_.See & C. L. #31.--The number of preemptory challenges to which a party is entitled is statutory, and usually dependent upon the punishment which may be inflicted.\[34\] Where separate actions are consolidated merely for convenience but are so far distinct as to require separate verdicts, each party is entitled to the same number of challenges as if they were not consolidated,\[35\] although joint parties are usually entitled in the aggregate only to the number allowed to a single party.\[36\] A party may waive his right to the statutory number,\[37\] but the ing and returning jury, and complaint can- not be made that jurors were from expired panel. People v. Collins \[Cal. App.\] 92 P 513.

_22_ Oral stipulation in open court to vative challenge for implied bias does not apply to subsequent trials. Multomomah 28. List headed, "Petit jurors for Monday, County v. Willamette Towing Co. \[Or.\] 89 Oct. 15, 1906," is sufficient, since defendant is presumed to know that jurors are drawn for different weeks of term and not for different days, and hence that list was for week it must appear that accused and his counsel 369, 42 S 967.

_38_, 42 S 967.

_39_. List of tales jurors summoned by Mathews, 202 Mo. 143, 100 SW 420. Where on shiffr need not be served on accused two days before trial as in case of ventres drawn state of mind, conviction will not be reversed by jury commission. State v. Laborde \[La.\] because of prior opinion. Clifford v. People, 45 S 38. Failure to furnish accused with jury list before arragminent, as required by Mills' Ann. St. $ 1460, held not ground for to whether he had formed or expressed an opinion as to guilt of accused does not using prejudice. Imboden v. People \[Colo.\]

_39_. List being furnished before trial had not show sufficient diligence to justify reversal on ground that juror was related to one of plaintiffs attorneys, and that attorneys, and that attorneys, are required to receive portion of land recovered. Cowan v. Brett \[Tex. Civ. App.\] 16 Txx, Ct. Rep. 776, 97 SW 330.

_25_. Juror accepted without challenge is presumed qualified. State v. Megorden \[Or.\] 85 P 206.

_26_. Laws 1905, p. 176, $ 10, 11, 16, prescribing what persons shall not be permitted to serve and declaring that statute is manda-tory, does not repeal Rev. St. 1899, $ 3763 (Ann. Stat. 1906, p. 2095), hence objection that juror cannot read or write as required by former act cannot be raised after jury is sworn. Orr v. Bradley \[Mo. App.\] 108 SW

_1149_. Objection that juror, though resident of country and otherwise qualified, lived outside territorial jurisdiction of court and within that of special court created for portion of county, is too late when made on motion for new trial. WWalker v. State \[Tenn.\] 99 SW

_27_. General challenge for cause together with examination held sufficient to show that it was based on juror's inability to read, as required by Code, $ 332. Harris v. Moore, 134 Iowa, 704, 112 NW 163.

_28_. List headed, "Petit jurors for Monday, Oct. 15, 1906," is sufficient, since defendant is presumed to know that jurors are drawn for different weeks of term and not for different days, and hence that list was for week it must appear that accused and his counsel 369, 42 S 967.

_38_, 42 S 967.

_39_. List of tales jurors summoned by Mathews, 202 Mo. 143, 100 SW 420. Where on shiffr need not be served on accused two days before trial as in case of ventres drawn state of mind, conviction will not be reversed by jury commission. State v. Laborde \[La.\] because of prior opinion. Clifford v. People, 45 S 38. Failure to furnish accused with jury list before arragminent, as required by Mills' Ann. St. $ 1460, held not ground for to whether he had formed or expressed an "reversal of conviction in absence of show-opinion as to guilt of accused does not using prejudice. Imboden v. People \[Colo.\] * 10 Cur. Law. JURY SS 8D.

- 551

failure of the state to use its full number in the city court of Jeffersonville does not entitle the accused to use the same.\[38\]

\_Time for challenge.\_See * C. L. \[31\]--A juror may be peremptorily challenged until accepted by both sides,\[50\] but not thereafter,\[40\] except in the discretion of the court.\[41\]

(SS 8) \_D. Examination of jurors and trial and decision of challenges.\_See * C. L. \[63\]--In some states, upon request,\[42\] the court is required to put certain statutory questions or their equivalents.\[48\] In Kansas a summary hearing on questions of fact raised by challenges is prescribed by statute.\[44\] Courts should be liberal in excluding challenged jurors.\[45\]

\_Scope of examination.\_See * C. L. \[63\]--The scope of examination rests largely within the discretion of the court.\[48\] In an action for injuries to a servant, jurors may be examined as to their connection with any employer's casualty insurance company,\[47\] but such examination must be prosecuted in good faith.\[48\] Jurors may be questioned as to any prejudice\[49\] or opinion\[50\] which may prevent a fair and impartial trial.

\_Review of trial of challenges.\_See * C. L. \[63\]--The right of review is largely regulated by statute,\[51\] but generally only such objections as are made below can be urged

Restaurant & Oyster House v. McElligott, \[questions prescribed for use ln trial of fell-227 Ill. 317, 81 NE 888. Under Code, art. 51, \[online or such other question as will test immediatement markings, Jacobs v. State, 1 Ga. App. 519, \[first\] furnished the parties shall contain \[57 SE 1068. Where juror stated that he had 20 names, and that each party may strike four therefrom, remaining 12 to constitute jurors, individual members of a party are not \[12 months, which fact would disability.\] each entitled to strike four names. Diamond State Tel. Co. v. Blake \[M.J. 66 & 631.\] 44, Trial provided by Gen. St. 1901, \[5647\]. Under express provisions of statute where several defendants are tried together on misdemeanor charges, they are entitled to only three pencptory challenges among them. Wilcox v. U. S. \[Ind. T.\] 103 SW 774. Where M., as administrator, was made code-refant in action brought by himself and another as executors, he cannot as defendant, over objection of his codeendants, challenge jurors passed by plaintiffs. Medlin v. Simpson, 144 N. C. \[397, 67 SE 24.\]

37 Where panel of qualified jurors from which trial jurors are to be selected is required to equal number of peremptory challenges and 12 additional, and accused accepts panel of 80 drawn on assumption that he has 12 peremptor challenges, he waives right to 20 challenges. State v. Yandell, 201 Mo. \[46, 100 SW 466.\]

38 Under Acts 1905, p. 248, nixing number of peremptorly challenges in city court of Jeffersonville. Epps v. State \[Ga. App.\] 58 SE 281.

39 Had not been accepted by defendant. State v. Cornelius, 118 La. 146, 42 N 754.

40. Cagle v. State \[Ala.\] 44 S 381. Cannot be peremptorily challenged by state, especially where no reason for untimely action is shown. Andrews v. State \[Ala.\] 44 S 69.

41 Court In homicide case may permit state to peremptorily challenge accepted juror. Carr v. State \[Ark.\] 99 SVV 581.

42 Not required ln absence of motion. Tucker v. Buffalo Cotton Milli \[S. C.\] 67 SE 626. One charged with misdemeanor may have jurors tested if he makes proper request before jury is sworn. Jacobs v. State, 1 Ga. App. 519, 67 SE 1063.

43 Where in misdemeanor prosecution challenge to poll is properly made, court may ask or cause to be asked statutory \[Ky.\] 105 SWV 899.

on appeal.\[52\] The court being vested with a broad discretion in passing on the fitness of a jury, his decision will be reversed only in case of abuse,\[53\] but where a rejected juror serves without the knowledge of the party or his counsel, a new trial will be granted.\[54\]

\_Improper overruling or sustaining of a challenge as a ground for reversal. See * C. L. 633--\_An improper ruling will work a reversal only upon a showing of prejudice,\[55\] and hence no error can be predicated upon the overruling of a challenge where such juror is thereafter excluded,\[56\] or could have been peremptorily challenged,\[57\] or who votes in favor of the challenger.\[58\] Since litigants are bound to use their peremptory challenges to exclude objectionable jurors, the jury is conclusively presumed acceptable if any challenges remain.\[59\] Some states hold that not only must the peremptory challenges be exhausted, but an objectionable juror must thereafter be called.\[60\] Failure to exercise peremptory challenges does not preclude a review of rulings on challenges to the array.\[61\]

SS 9. \_Talesmen, special venires and additional jurors.\[58\]\_See * C. L. 633--\_Where through inadvertence of the court,\[92\] as distinct from willful action,\[62\] or for any reason,\[64\] the jury commissioners fail to select regular jurors, or where the regular panel is quashed\[65\] or is waived,\[66\] the court is usually authorized to summon a

- \[leftmargin=\*\]

- \[rightmargin=\*\]

- \[leftmargin=\*\]

- \[rightmargin=\*\]

- \[leftmargin=\*\]

- \[rightmargin=\*\]

- \[leftmargin=\*\]

- \[rightmargin=\*\]

- \[leftmargin=\*\]

- \[rightmargin=\*\]
  special venire, talesmen,"" or additional jurors," but he must do so in the manner prescribed by statute." The court may order a special panel before trial where he has reason to believe that regular panel will prove insufficient." In a criminal case in Texas, the accused is entitled to a jury drawn from a special venire unless he waives the right," and after the regular special venire is exhausted, the court cannot over his objection draw another venire from the special venire list," but may summon talesmen." Where, however, a second venire is drawn from the special venire list, the names previously drawn need not be replaced."

- 10. \_Special and struck juries and juries of less than twelve.\_See 8 C. L. 638

- 11. \_Swearing.\_See 8 C. L. 638

- 12. \_Custody and discharge of jurors and jury.\_See 8 C. L. 638

- 13. \_Compensation, sustenanc, and comfort of jurors.\_See 8 C. L. 638

## 1 The office.

- 2. Compensation, Dutles, and Libhilties,
- 3. Civil Jurisdietton, 555. Residence Determining Jurisdiction, 556. The Amount in Controversy, 556. The Record, 566. Dism vent the state from establishing justices' courts in cities,\[78\] but cities cannot be required to furnish offices for such justices.\[76\] Courts will take judicial notice of a justice's term of office.\[80\] A justice is sometimes allowed to hold another office,\[81\] and other officers are sometimes ex officio justices,\[82\] but in some states the acceptance of an office in another department of the state vacates the office of justice,\[83\] or vice versa.\[84\] Justices of the peace, when clothed with judicial power, are courts from which removal may be had to the Federal courts.\[85\] There is no such office as clerk of a justice court.\[88\]

**SS 2.**\_Compensation, duties, and liabilities.\[See SS 5. L. Ess Ess.--The legislature may compensate some justices by fees, and others in more populous districts by salaries.\[87\] A justice will be entitled to his fees though he holds another office.\[88\] He is not liable for his judicial acts though improper and erroneous.\[89\] The sureties on his bond are not liable for acts not done in his official capacity.\[80\] A justice may be indicted \[91\] or removed for misconduct in office.\[82\]

the peace is authorized to perform the duties of his office in the township to which the territory in which he resides has been anexed, but only until the end of the term of three years for which he was elected. State v. Macleifreesh, 9 Ohio C. C. (N. S.) 224. In 128 Gai, 119, 57 SE 229.

**SS7.** Salaries of justices were fees allowed peace is created for which a successor should be elected and qualified; it is only by appilation to and determination by the probe judge of the county, in accordance with the provisions in the first part of 5 658, that the number of justices of the peace can be permanently increased. Id.

**78.** As part of the state system, although the city by charter was authorized under the constitution to provide as $\\upphi$ the constitution and jurisdiction of police courts. Graham v. Fresno (CaL) 91 P 147.

**79.** Where provision already made for a police court under the charter. Graham v. Fresno (CaL) 91 P 147.

**80.** Will refuse a writ directing him to proceed where he is no longer justice. First Nat. Bk. v. Rowland (Tex. Civ. App.) 18 Tex. Ct. Rep. 55, 93 SW 1043.

**81.** Const. art, 14, $ 7, excepting justice from prohibition against holding two offices, and so may be recorder of a city court. State v. Lord (N. C.) 69 SE 656.

**82.** As mayor of a city, Burgin v. Sullivan (Ala.14 $ 202. Recorder ex officio justice, held entitled to fees of justice where he heard a warrant made returnable before him by another justice, State v. Lord (N. C.) 59 SE 656. County judge is also the justice of the peace, but in trying cases in the capacity of a justice of the peace, damages cannot be recovered in excess of the jurisdiction of a justice of the peace. Wilson v. White (Neb.) 109 NWV 367. Action in probate court within justice of peace jurisdiction. St Louis, etc., R. Co. v. Bradford, 18 Okl. 154, 88 P 1450.

**83.** Coenay sludge to accepting office of mayor, which belongs to executive department, as the judicial powers of that office were only incidental, State v. Armstrong (Misa.) 44 S 809.

**84.** County judge vacates his office by accepting office of Justice of the peace. State v. Jones, 130 WIs. 572, 110 NWV 431.

**85.** Constitutive part of the judicial system.

**Kativ.** Herschel Mfg. Co., 150 F 684.

**86.** Though a person may be employed by 10 Cur. Law. JUSTICES OF THE PEACE SS 3. 555

SS 3. \_Civil jurisdiction.\_See e. C. L. 637.--Justices have limited jurisdiction and only such powers as are conferred by statute." It is essential that the jurisdictional facts appear of record, for they will not be presumed." In an action on a justice's judgment, it is necessary to prove that the justice had jurisdiction over the subject-matter." The consent of the parties cannot give a justice jurisdiction of a subject-matter where he has none by law," but within the limits of his jurisdiction he is free from the control of any other court." His jurisdiction is sometimes limited to the township," and he has no right to preside elsewhere except in special cases," though statutes sometimes permit a justice of another district to act for an absentee.1 There must be proper service " of the summons by a competent person," though slight defects in the copy of the summons left with defendant is not jurisdictional.4 In suits against nonresidents the justice has jurisdiction only within the county and town where the property is attached." When jurisdiction is dependent on an attachment the affidavit must be sufficient," and a bond 7 and proper inventory must be filed." In Georgia a justice may issue attachments returnable before a superior court." A justice may issue a distress warrant for rent,10 and he has exclusive jurisclengthed without entering his reasons. Lenham Mercantile Co, v. Herke, 105 NY8-presented falsified bills for services, did not keep a record in his criminal docket nor enter cases, but hired another to write up entries in order to corroborate this bills to town. In re 70 NY82, the amendment of 584, Revised Status, passed April 18, 1894 (93 D. L. 146),
93\. Statutes must be construed liberally to effect their object. State v. Houston \[Mon.\]
92 P 476.
94\. In summary proceeding the description of petitioner's interest as landbird is insufficient. Matthews v. Carman, 107 NY8 894.
95\. Foreign judgment. Bick v. Lanham, 123 Mo. App. 268, 100 SWP 520.
96\. Western Union Tel. Co. V. Cooper \[Ga. App.\] 88 SB 517. Consent to trial of case in another town. Eisenberg v. Lape, 52 Misc. 322, 103 NY8 169.
97\. Justice having authority to discharge an imprisoned debtor, the circuit judge might not in advance, on an agreed case, rule whether defendants had a right to apply for a discharge. McGovern v. Hoffman \[Ky.\] 105 SWP 458.
98\. Burns' Ann. St. 1901, SS 1498, but where nonresident defendant maintained an office in the township, service might be made on an agent therein. Worthington v. Qualkin-bush \[Ind. App.\] 82 NE 534.
99\. Unless justice or notory of district is disqualified or parties consent, otherwise the judgment is a nullity. Simplikus v. Hester \[Ga. App.\] 59 SE 322. He cannot try a case in an adjoining town before a jury even with the consent of the parties. Eisenberg v. Lape, 52 Misc. 329, 103 NY8 169.

I. Statute providing that where justice is absent the nearest justice may perform his duties only authorizes justice to act in his own precinct and not in that of the absent justice. Stewart v. Bismlywood \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 502, 102 SWP 159.

2. A. constable's return that he served the summons on "the within named defendant" naming another, is insufficient. Morse v. McQande, 54 Misc. 166, 105 NY8 862.

1. Mere showing of service by a private person was insufficient. Marr v. Cook, 147 Mich. 425, 111 NIV 116.

1. Last figure in year of return day was omitted and defendant ignored the summons.

diction of suits for recovery of leased premises.41 A justice has no equity jurisdiction but he may consider a separate legal question,12 and equitable defenses may be interposed,14 or the principles of equitable estoppel may be involved.14 He may entertain suits brought by a receiver under a chancery court,15 also suits against a carrier for overcharge,16 or for failure to deliver goods in time.17 Such action must be brought in the township where the injury happened,18 but a justice has no jurisdiction of suits against a carrier for failure to perform a public duty,19 or of suits by a sendee for failure to deliver a telegram.20 A justice may lose jurisdiction even after once acquired, as by failing to proceed according to statute,21 or by unauthorized adjurments.23

the complaint demands more than the jurisdictional amount."2 If each separate cause of action is within the jurisdiction of the justice, it is immaterial that the aggregate is beyond."3 The amount claimed inclusive of interest is the criterion,"4 but the plaintiff may sue for less than his full claim in order to bring his case within the jurisdiction of the justice."8 A verdict in excess of the jurisdictional amount may be reduced."8 A plea cannot be entertained which involves amounts outside of a justice's jurisdiction."9 Statute requiring consolidation of independent demands susceptible thereto has no application where the consolidation would deprive the justice of jurisdiction."3 The limit as to amount in controversy applies also on appeal."9 The appellate court may allow amendments to the complaint increasing the sum demanded, but not so as to exceed the jurisdictional amount of the justice."40

\_Title to reality.\_See S C. L. #50--A justice has no jurisdiction of summary proceedings except where there is the relation of landlord and tenant." A mere claim of title, however, will not oust him of jurisdiction."4 He has no jurisdiction to declare a lien on a coal mine,"4 or of a suit to recover earnest money on account of breach of contract to convey land."4 Where title to reality is involved the justice may send the case to a higher court on the filing of a bond."4 This must appear on plaintiff's own showing or by verified answer,"4 and application must be made for removal at the earliest opportunity."47

- **10** 558 JUSTICES OF THE PEACE SS 4.10 Cur. Law.

_Objections to the jurisdiction_ See 8 C. L. 639 may be made on special appearance,\[48\] or, where not apparent of record, must be raised by plea or motion to quash.\[49\] They are not waived by proceeding to trial.\[50\] Where the justice did not acquire jurisdiction, the judgment may be attacked collaterally.\[51\]

SS 4. _Procedure in justices' courts._ See 8 C. L. 639--Where no form of procedure is prescribed, the course of the common law must be followed as nearly as possible.\[52\] The proceedings will be presumed regular except as to matters required to be of record.\[53\] The defendant is not entitled to a continuance as a matter of right,\[54\] but it is addressed to the justices' discretion \[55\] when there is a case before him.\[56\] It is sometimes provided that the defendant \[57\] or either party shall bring forward all demands existing at the commencement of the suit which can be consolidated into one action or defense or be debarred,\[58\] but an action for rent cannot be united with an action against a tenant and sureties on an appeal bond in an unlawful detainer action.\[59\]

_The docket and other records_ See 8 C. L. 640 need not be technically exact.\[60\] The statutory requirement that docket entries shall be made at the time is directory only.\[61\] They may not be varied by paro\],\[62\] but evidence contradicting a docket in another action is not necessarily incompetent.\[63\] The justice of peace is regarded as his own clerk in making the entries on his docket.\[64\]

_Change of venue._ See 8 C. L. 641--An action may be tried in the wrong county unless defendant demands a change of venue,\[65\] and a defendant as to whom the venue is proper cannot complain as to the propriety of venue as to another defendant.\[66\] The justice to whom a cause is sent shall cause the parties to be notified of the time of trial by notice served as the original summons.\[67\]

_Transfer of cause._ See 8 C. L. 641--Where the papers show on their face that the

48. Though no objection was specified, separate action. Mackenzie v. Porter \[Colo.\] might show no bond filed in the attachment, or that summons was served by a private person. Marr v. Cook, 147 Mich. 425, 111 NW 116.

01. Motion to dismiss ineffectual where facts as to residence of the parties did not appear of record. Applema v. Fahn, 149 Mich. 245, 14 Det. Leg. N. 450, 112 NW 917.

01. May be urged on appeal that no jurisdiction of the amount in controversy. Leathers v. Geitz \[Iowa\] 112 NW 191.

01. Jurisdiction founded on the attachment of a judgment which was rendered in another township. Gilman v. Heitman \[Iowa\] 113 NW 932.

01. Enforcement of mechanics' lien. There must be suit and an attachment against the property. Warner v. Yates \[Tenn.\] 102 SW 92.

01. Where suit might be brought in adjoining township and no requirement that the reason should be of record, a judgment will be sustained. Jonas v. Weires, 134 Iowa, 47, 111 NW 453.

01. Suit upon an unconditional contract in writing. Williams v. Fain \[Ga. App.\] 58 SE 307.

01. No abuse to refuse where asked at second term because of unexplained absence of plaintiff. Young v. Darten & W. R. Co., 1 Ga. App. 317, 57 SE 921.

01. Where no complaint filed on return day, there was nothing to adjourn. Sheter v. Cannon, 104 NYS 709.

01. Different from law as to counterclaims in other courts. Walter v. Cox \[Mont.\] 91 P 1083.

01. But unlawful detainer not a common law action, and so may sue for rent in a
    justice has not jurisdiction, he may order the proceedings transferred to the proper court.68 A case may be removed to the Federal courts where there is the proper diversity of citizenship and the value in controversy exceeds $2,000.69

_Process and appearance._\[See 8 C. L. 641\]--There must be proper service 70 of the summons returnable in the time prescribed by statute,71 and a copy of the cause of action must be attached thereto.72 Defendant may be designated by a fictitious name where his real name is unknown,73 and subsequently defendant's name in the summons may be amended to conform to the proof.74 Where technical defects in the summons will be no ground for a reversal.75 Plaintiff has the burden of proof to sustain his attachment.76 The provisions for arrest in civil cases do not apply to justices' courts.77 Defendant may waive the nonservice of process 78 as by a general appearance.79 There is a common statutory provision that the justice shall wait one hour for the appearance of defendant.80 Defendant may appear specially to object to irregularities,81 and where dismissal is refused defendant may proceed to trial without prejudicing his rights on appeal.82 In cases where there has been no personal service or appearance, failure to continue a case for the statutory time will cause the justice to lose jurisdiction.83

_Pleadings, issues, and proof._\[See 8 C. L. 642\]--As written pleadings are not required 84 the pleadings may be oral,85 but there must be pleadings of some kind.86 The form is of little consequence so long as the rights of the parties may be ascertained,87 and a statement of facts is sufficient,88 but not a mere affidavit of indebted.88.

ness."99 The most liberal interpretation is to be given pleadings,"99 especially in absence of a special demurrer 99 or on general demurrer,92 or where objection is first made after verdict."99 Technical pleading 99 or precision in form is not required,99 and the strict requirements as to pleading special damages are not enforced."99 It is sufficient if the pleading is intelligible,99 and informs defendant of the nature of the demand,99 or puts him on notice of the character of the claim."99 An informal statement of a material fact is sufficient, but the complete omission to state an essential fact is fatal." Defendant may demur where the statement of facts is insufficient,2 or where no cause of action at all is stated, but not for mere formal defects." A demurrer is sometimes treated as an exception to the complaint.4 Where an action is founded on a written instrument the same should be filed,5 but in a plea of bankruptcy it is not necessary to attach certified copies of the proceedings.6 The answer in forcible detainer must be one in specific denial.7 Equitable defenses may be pleaded.8 Where a complaint was verified, an unverified denial may be stricken out.9

Footnote 144: The authors are grateful to the anonymous 10 Cur. Law. JUSTICES OF THE PEACE SS 4. 561

The court should be liberal in allowing amendments,10 even where damages are increased,11 and this may be permitted though the complaint was not properly verified.12 The case must come to issue,18 and jurisdiction is lost by an adjournment thereafter except where it was necessary to procure a material witness.14 The pleadings must be such as to authorize a judgment.15 A slight variance between the process and proof is immaterial,16 but one cannot recover on a different action from that set out in the pleadings,17 though the justice may permit an amendment on an adjourned day charging cause of action.18

\_Verdict and judgment.\_See SS C. L. 644.-A verdict will be sustained where the issues were fairly submitted to the jury.19 Where the jury fails to agree,20 or where the verdict is invalid, the justice may set the case for retrial.21 The justice may grant a new trial 22 only within a fixed time from the rendition of the judgment.28 The same principles apply as govern courts of record.34 In some states he has no power to grant new trials.25 The action may be dismissed for'the nonappearance of plaintiff,28 or where the matter appears to be res judicata.27 The justice may enter a default: judgment 28 provided the return shows proper service of summons.29 This may be done where an answer was stricken out.20 In case of an unliquidated claim for damages, judgment cannot be rendered without proof.31 A justice may set aside a de 563JUSTICES OF THE PEACE SS 4.10Cur. Law.

fault judgment on the same day as entered without notice.\[32\] The judgment must be authorized by the evidence,\[38\] but a judgment entered for a sum in excess of that for which it was rendered is not void.\[34\] An informal entry of judgment is good \[35\] even on appeal,\[34\] but the judgment must be rendered at the close of the trial \[37\] or within the statutory period \[38\] and for a definite and ascertained amount \[39\] which should include costs.\[40\] An entry made by another purporting to be a judgment is a mere memorandum where not signed by the justice.\[41\] Where the invalidity of a judgment does not appear on its face, the remedy is to appeal in case the justice refuses to make the correction.\[42\] A judgment is not liable to collateral attack for irregularities of procedure \[43\] where jurisdiction was originally acquired, but where no process was served the judgment is void.\[44\] A default judgment may be set aside in a separate equity suit where the proper showing is made.\[45\] A dormant judgment cannot be used for purposes of garnishment.\[46\]

_Execution_\[Sec & C. L. 44\] will only issue on strict compliance with the statutory provisions.\[47\] It will be void unless made returnable within the statutory limits.\[48\] A levy will be dismissed where there are sufficient entries to show payment in full.\[49\] If the return is substantially correct, that is sufficient.\[50\] The advertisement and sale must be in the manner prescribed by statute for executions issued from a justices'

plain verified, action for killing hogs by urea to furnish security for costs on issuance train. Georgia, etc., R. Co. v. Shepard \[Ga. App.\] 59SE 717.

32An inherent power in every court. Cohen v. Moore \[Tex.\] 19Tex. Ct. Rep. 742, 144 SWV 1055.

33Open account not verified or proved by the evidence. Hardy v. Hardy \[Ga. App.\] 58SE 717.

34Where defeated party took no steps to secure relief, he will not be entitled to an injunction to restrain its collection. Gump Carbo Co. v. New Orleans German Gazette \[Miss.\] 43S 82.

35Good against collateral attack if docket entry, taken as a whole, shows that he had made a final determination of the action, though the entry was not technically exact. Nelson v. Schmoller \[Neb.\] 110NW 658.

36It is not wholly void. Rains v. Reasonover \[Tex. Civ. App.\] 18Tex. Ct. Rep. 515, 102 SWV 176.

37COn failure to do so, without consent of parties, the court loses jurisdiction. State v. Houston \[Mont\] 92P 476.

38Where a justice of the peace fails to render judgment until ten days after the return of a verdict by a jury, such failure works a discontinuance of the action, the judgment so rendered by the justice is absolutely void, and a court of equity will enjoin any further proceedings upon such judgment. Sigler v. Shaffer, y. Ohio C. C. (N. S) 267.

39AJudgment in 1903 for goods sold in 1902 may provide that judgment shall draw interest from date of demand in 1902. Thomas v. Mariner, 6 Pen. (Del.) 571, 66 A 93.

40Statutes as to offers of judgment apply to justices. Palmer v. Styles \[Neb.\] 110NW 1004.

41Made by a person employed to do clerical work. Park v. Callaway, 128Ga. 119, 57 SE 229.

42Invalid because summons not served. Knight v. Cresswell \[Ark.\] 101 SWV 754.

43Unauthorized adjourments, or failure, and failure, are not necessarily available.

563JUSTICES OF THE PEACE SS 4.10Cur. Law.

fault judgment on the same day as entered without notice.\[32\] The judgment must be authorized by the evidence,\[38\] but a judgment entered for a sum in excess of that for which it was rendered is not void.\[34\] An informal entry of judgment is good \[35\] even on appeal,\[34\] but the judgment must be rendered at the close of the trial \[37\] or within the statutory period \[38\] and for a definite and ascertained amount \[39\] which should include costs.\[40\] An entry made by another purporting to be a judgment is a mere memorandum where not signed by the justice.\[41\] Where the invalidity of a judgment does not appear on its face, the remedy is to appeal in case the justice refuses to make the correction.\[42\] A judgment is not liable to collateral attack for irregularities of procedure \[43\] where jurisdiction was originally acquired, but where no process was served the judgment is void.\[44\] A default judgment may be set aside in a separate equity suit where the proper showing is made.\[45\] A dormant judgment cannot be used for purposes of garnishment.\[46\]

_Execution_\[Sec & C. L. 44\] will only issue on strict compliance with the statutory provisions.\[47\] It will be void unless made returnable within the statutory limits.\[48\] A levy will be dismissed where there are sufficient entries to show payment in full.\[49\] If the return is substantially correct, that is sufficient.\[50\] The advertisement and sale must be in the manner prescribed by statute for executions issued from a justices'

plain verified, action for killing hogs by urea to furnish security for costs on issuance train. Georgia, etc., R. Co. v. Shepard \[Ga. App.\] 59SE 717.

32An inherent power in every court. Cohen v. Moore

### 10. Cur. Law. Justices of the Peace $ 5.

Fourt. \[51\] To levy on land the papers must be filed in the circuit court for further proceedings. \[52\] Sometimes the filing of the transcript of the judgment in a higher court is conditional on the issue of an execution which has been returned nulla bona. \[53\] Where the transcript of the judgment may be filed in a higher court, the latter has power to correct the same. \[54\] One may not enjoin execution on an erroneous judgment until legal remedies are exhausted. \[55\]

SS 5. _Appeal and error and remedies extraordinary._\[56\] & C. L. \[64\]--Appeal is a statutory remedy, \[54\] and must be taken within the statutory time from the rendition of the judgment. \[57\] The appellate court has only the same jurisdiction as the justice, \[58\] which is determined by the law at the time of the appeal. \[59\] No appeal can be taken until a motion for a new trial has been overuled. \[60\] In all cases except on a judgment by confession, an appeal lies, as from a judgment for appellant, \[61\] or from a dismissal, as they are final judgments. \[62\] To what court an appeal may be taken may depend on the amount recovered or whether there was a jury trial. \[53\] An appeal is perfected by giving notice and filing an undertaking, \[54\] within the statutory time. \[65\] The written notice of appeal \[66\] must be filed before or contemporaneously with its service, \[67\] on the adverse party. \[68\] The notice of appeal is not fatally defective on account of variance in the corporate name of appellant. \[69\] The venue of an appeal may be changed where a judge is disqualified. \[70\] An appeal vacates the judgment. \[71\] The substantial rights \[72\] and all jurisdictional questions, though not raised below, will be considered by the court. \[73\] Appeal and not mandamus is the proper remedy from an 564 Justices of the Peace $ 5: 10 Cur. Law. erroneous judgment.\[74\] A party on special appeal may raise any objection to the process, pleadings, proceedings, or decision which would not be allowed to be made on the trial of the appeal.\[78\] Error may be only prosecuted from a final judgment.\[78\] One may have remedy by petition,\[77\] or by a separate proceeding in equity to set aside a default judgment.\[78\] Injunction will not lie to restrain the enforcement of a void judgment,\[79\] where there is a remedy at law.\[80\] Where the justice had jurisdiction, prohibition will not lie to prevent enforcement of a judgment.\[81\] In Kentucky a case may be removed by a traverse and joinder of issue thereon to the circuit courts.\[82\]

\_Bonds.\_See $ C. L. 649--An appeal is not effectual until a sufficient undertaking is filed,\[83\] within the statutory limit. This cannot be waived,\[84\] but one may be relieved therefrom on an afflavit of poverty.\[85\] Frequently fiduciaries,\[86\] or municipalities, are exempt from giving bond.\[87\] If bond is not given, there is no stay of proceedings.\[88\] It is sufficient if the bond substantially conforms to the statute;\[89\] if there is not such compliance, any judgment rendered will be void.\[90\] On filing the

plaint had demanded $300. Cook v. Cook, where last figure in year of return day was omitted, and judgment had been entered. Lenham Mercantile Co. v. Herke, 105 NYS 472.

52 Appearance of traversee 1n circuit court is all that is necessary to constitute a jolometer of issue. Check v. Reiter, 31 Ky. L. R. 249, 102 SWP 287.

53. Undertaking filed within 30 days, but varieties failed to justify, and new undertaking filed after the 30 days, but appeal must be dismissed. Lane v. Kings County Super. Ct. \[Cal. App.\] 91 P 405.

01. Must be filed within 30 days of ren-dition of judgment. Deardoff v. Thorsten-

give jurisdiction of the entire case in an appeal from an order by a magistrate over-

85. But where a firm appealed and each

ruling a motion to discharge an attachment, but the decision by the common pleas is to be sent to the justice to be entered by him in his docket as the final judgment of the matter in the Justice's court, and this

was dismissed on oral motion. Livingston judgment of the justice is the only final judgment in the action and the only one from which error may be prosecuted. Lyon v. Phareg, 9 Ohio C. C. (N. S.) 614. Where

property is held by a justice of the peace under attachment and an appeal is taken from the overvilling of the motion to dissolve the attachment, the proper procedure under $ 644 is for the common pleas to determine within three days whether the action of the justice in overvilling the motion was right and the decision with the original papers returned to the justice to be entered by him on his docket as the final determination of the motion. V Williams v. McCartney, 10 Ohio C. C. (N. S.) 161.

77. Must show fraud, accident or mistake, and be accompanied by a proper afflavit of defense on the merits. Collins v. Farley

\[Vt.\] 66 A 713.

78. To set aside a default judgment suffered by reason of reliance on agreement of plaintiff's attorney to notify defendant of re-setting of case, but insufficient showing as to valid defense. Stevermark v. Landau, 121 Mo. App. 402, 98 SWP 41.

01. Summons not served and might appeal. Knight v. Creswell \[Ark.\] 101 SWP 76.

01. If execution issued on entry of judgment not made by justice, it could be met by afflavit of illegality. Park v. Caltaway, 128 Ga. 119, 57 SE 229.

01. Defendant had ignored summons

01. Defendant had ignored summons

01. Defendant had ignored summons

01. Defendant had ignored summons

01. But where last figure in year of return day was omitted, and judgment had been entered. Lenham Mercantile Co. v. Herke, 105 NYS 472.

01. Appearance of traversee 1n circuit court is all that is necessary to constitute a jolometer of issue. Check v. Reiter, 31 Ky. L. R. 249, 102 SWP 287.

01. Undertaking filed within 30 days, but varieties failed to justify, and new undertaking filed after the 30 days, but appeal

must be dismissed. Lane v. Kings County Super. Ct. \[Cal. App.\] 91 P 405.

84. Must be filed within 30 days of ren-dition of judgment. Deardoff v. Thorsten-

01. But where a firm appealed and each

member filed an afflavit that he was unable

to give security, that was not enough, as

it did not appear that the firm was unable

to give a bond, and accordingly the appeal

was dismissed on oral motion. Livingston

9. King \[Ga. App.\] 88 SE 395.

1. But he must give written notice of

appeal within the time limited, oral notice

and entry on the justice's docket being in-sufficient. McCartney v. Sells Co., 76 Ohio

87. General law as to exemption from necessity of giving a supersedeas applied

under $ 644 is for the common pleas to

to appeals from justice's court. Town of

determine within three days whether the action of the justice in overvilling the motion was right and the decision with 10 Cur. Law. JUSTICES OF THE PEACE SS 5. 565

undertaking, notice thereof must be given the adverse party so that he may except to the sufficiency of the sureties.\[91\] A defective justification of the sureties is not ground for dismissal of the appeal.\[92\] In proper cases an appellant may be authorized to file a new bond.\[93\] Where judgment is rendered against appellant, it may also be awarded against the surety,\[94\] when properly authorized by the court,\[95\] for not more than the penalty.\[95\] One may recover against a surety in a separate action on the bond.\[97, 98\]

\_Process or appearance.\_See * C. L. 655. The court will acquire jurisdiction " on an appeal taken of a corporation by its agent from a judgment against the corporation, when it appeared the latter was the real party.

\_The transcript_See * C. L. 651 must be made and filed by the justice trying the case,\[1\] for it is the duty of the officer and not of the appellant to transmit the transcript,\[2\] though an appeal is not vitiated by delivering the transcript to the appellant's attorney, if it is filed in the county court within the right time.\[9\] An appeal will not be dismissed for the justice's failure to file his return.\[9\] though if appellant is responsible for the failure, the judgment may be affirmed.\[9\] Where a cause was pending before one justice but was tried by another, the transcript may be certified to by the former.\[9\] The time for filing transcript may be extended where appellant not at fault,\[9\] and if the return is lost, appellant by order of court may be allowed to file a copy.\[9\] The appellate court acquires jurisdiction upon the filing of the appeal bond and the transcript of the justice.\[9\] When the return appears defective, the justice may be compelled to amend the same,\[10\] or to make additional returns,\[11\] and by a general appear-conditioned to prosecute "this trial" was in-sufficient to confer jurisdiction on the density court and its judgment was a nullty, his transcript. Haesely-v. Thate \[N. D.\] 114 Wood Grocery Co., Vace Grocery Co. (Tex. NVV 311.

ance, a party does not waive his right thereto.11 The failure of the justice to sign the return may be waived by further proceedings.13

_The record._\[1 before the justice,\[85\] will be allowed. New issuable facts may be pleaded, if the identity of the cause of action is preserved,\[80\] but the cause of action cannot be changed\[87\] by increasing the damages claimed to an amount beyond the justice's jurisdiction,\[88\] by setting up a sufficient cause of action,\[89\] by adding a new cause of action,\[40\] or by adding new parties, unless necessary to a determination of the appeal.\[41\] In some states the court may allow amendments or new pleas as fully as if the case had originally been brought in that court.\[42\] A clerical error in the pleadings will not prevent the entry of a valid judgment.\[43\]

\_The case is tried de novo on appeal.\[85\]\[c\] amount recovered before the justice," where the appellant is in default." It cannot be rendered for an amount greater than that within the jurisdiction of the justice." The judgment may be valid, though the judgment of the justice was defective," or the appeal was improper." The court may reduce or may modify judgment," and refuse costs." Appellant must stand all costs where he recovers less than he recovered before the justice." The clerk has no authority to enter a judgment not pronounced by the court."

_Further appeal or error._\[68\] _e C. L._\[65\] _--The right of further appeal is frequently limited by the amount in controversy." Only errors of law can be reviewed," for the finding of fact of the lower court will not be reversed unless contrary to the clear preponderance of the evidence," or where there has been an abuse of discretion." So the court will not interfere where the pleadings were permitted to be amended." Points may be raised which were not considered in the lower court," but new issues cannot be tried."_

_SS 6. Certiorari_ See * C. L.\_\[65\] _will lie where a party has lost the right of appeal without being at fault," but not where he has been guilty of_ _laches." It is a proper remedy where no process was served on defendant," or where a judgment by default has been erroneously entered," or in some states where a judgment appears on its_

_Leg. N._\[33\] _111 NWV 194. That the summons_

_ingly, there was no right of further appeal, and appeal was dismissed. Bishop v. Law-Welch, 7% S. C._\[33\] _68 SE 668. A default_

_will not be set aside on the mere showing that defendant's attorney forgot on account of press of business, and that "defendant was not indebted to plainff" without stating facts. Coleman v. Keady, 53 Misc._\[52\] _105 NYS 299._

\_56. Plaintiff had appealed but failed to file his petition in the district court. Hess v. Hoss \[33\] _110 NWV 999._

_57. Judgment record on appeal is conclusive on this point, and cannot be Impeached by bill of exceptions. Roblin v. Jenkins \[Ark.\] 104 SWY 203._

_58. Judgment on appeal for_ $302.25 vad.ated. Smith v. Clark, 38 Colo. 89, 88 P,636.\_

_VWhere verdict in excess of_ $200, it was re-duced on appeal to supreme court. Wilson v. White \[Neb.\] 109 NWV 367.\_

_59. Was only entered against one party, though both appealed and took part in the proceeding, and judgment entered against both in the appellate court. Rains v. Reasoner \[Tex. Civ. App.\] 18 Tex. Ct. Rep. E15, 102 SWV 176._

_60. Appeal from an interlocutory judgment of justice, the county court believing it was a final judgment. Jennings v. Munden \[Tex. Civ. App.\] 18 Tex. Ct. Rep. E61, 102 SWV 945._

_61. Where incompetent evltdence was admitted, plaintiff's judgment for_ $82.40 was reduced to\_ $59.12, the amount defendant had admitted to the due. Dugan v. Lohenstraf, 52 Misc. 288, 102 NYS 1120.\_

_62. Where recovery was less than the offer of judgment, justice had erroneously entered two judgments, instead of one for the difference. Spears v. Sorge, 106 NYS 141._

_63. Kessler v. Burckell \[Tex. Civ. App.\] 99 SWV 173._

_64. A mere nullity and court may correct at a subsequent term. Kansas City Pump Co, v. Jones \[Mo. App.\] 104 SWV 1136._

_65. Where limit was $100, though plaintiff had originally claimed $175, yet where on recovering_ $91.25, he had amended accord- _ingly, there was no right of further appeal, and appeal was dismissed. Bishop v. Law-Welch, 7% S. C._\[33\] _68 SE 668. A default_

_105 SWV 1008._

_69. Cannot retry on merits, or decide on the weight of evidence. Deyo v. Keighley_

_105 SWV 1008._

_60. Cannot retry on merits, or decide on the weight of evidence. Deyo v. Keighley_

_105 SWV 1008._

_61. Cannot retry on merits, or decide on the weight of evidence. Deyo v. Keighley_

_105 SWV 1008._

_62. Circuit court had reversed the justice. Drunkow v. Waters, 131 Wis. 31, 110_

_63. Refused to set aside a judgment of affirmance because of appellant's failure to the transcript. Brown v. Gorman \[Ind. T.\] 104 SWV 1163._

_64. In action against carrier for failure to deliver egg cases, variance between allegation of complaint in justice's court that_

_200 cases were not delivered, and allegation of complaint on appeal to circuit court, where trial was de novo, that twenty cases were not delivered, held not available on appeal to supreme court. Southern R. Co. v. Moody \[Ala.\] 44 S 94._

\_7 face to be void." It will not be granted as a matter of right," it must be applied for within the limited time," but it will not be dismissed for laches where issued within that time." Before the writ will issue, appellant must produce a certificate that all costs have been paid." The defendant may waive notice of the sanction of the writ." The application must contain more than general statements of a good defense." It will be refused when not verified in the proper manner," but where the answer supports the petition,' it will not be dismissed for a defect in the affidavit." Where the application is verified, the allegations of fact are to be taken as true." The petition must be answered by magistrate," and if not verified by the answer of magistrate," or the admissions of defendant, it will be dismissed." The plaintiff in certioriari may except to the answer of the magistrate where parts of the record have been omitted," but the exception must be specific." No question is raised unless there is a transcript of the record of the justice," and one cannot on a rehearing introduce an amended record." The petition will be overruled unless the rulings are shown to be harmful as well as erroneous." For a reversal will not be granted for mere irregularities." The office of the writ is to bring up the record for review on questions of law," and only matters specified in the petition " and raised in the to which the summons was returnable," under the knowledge of respondent" is a 'O'Donovan v. Ocean S. S. Co., 1 Ga. App. 190, 57 SB 98Z.

**76.** Because of want of service of summons. Knight v. Creswell \[Ark.\] 101 SWP 754.

**77.** Content: Given by a justice presiding out-side of his district. Simplkins v. Hester \[Ga. App. 731, 58 SE 247.

**88.** Final judgment against plaintiff in "App.\] 59 SE 322.

**77.** Will not lie to permit a party to avail himself of a defense which he could have urged but neglected to do so. McShurent v., Lambzk \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 1988, 101 SWP 864.

**78.** Dismissed where not applied for within thirty days of final determination of case, and outside proof not admissible to show that application was in fact made in time. Landrum v. Moss, 1 Ga. App. 216, 57 SE 986.

**79.** Issued just before statutory limitation of eighteen months would have expired. Receva v. Jones \[N. J. Lawl 86 A 113.

**80.** Must be certificate of officer whose decision is reviewed and not of clerk. Davis v. Joiner, 1 Ga. App. 106, 88 SE 62.

**81.** Written notice of sanction may be amended by inserting the date when the notice was waived. Maddox v. Georgia Cent. R. Co., 1 Ga. App. 46, 67 SE 1062.

**82.** Petition must state facts on which it is expected to recover, and where it fails to do so the appellate court will order the petition to be dismissed. McShurent v. Lambzk \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 988, 101 SWP 864.

**83.** No affidavit to petition. Hobbs v. Hunter, 1 Ga. App. 329, 57 SE 922.

**84.** Where verdict set aside because the ends of justice require it, the voice of the evidence would have to be very loud to be heard in this court. Epperson v. Kltchens \[Ge. App.\] 58 SE 501.

**85.** Where appeared verdict was greater than the amount weed for, and the account was not proved, the writ should have been ordered. Linder v. Renfroe, 1 Ga. App. 68, 67 SE 975.

**86.** "The facts set forth * * * are substantially true * * so far as come court below will be reviewed." But in some cases an applicant will be entitled to a trial de novo." On dismissal of the writ, the court may enter a new judgment for the amount recovered below with the aggregate costs," and it may also enter judgment against surety.1 The court may not render final judgment where there is conflicting evidence," but it may remand the case 3 for granting a new trial.4 But where no fact is involved,5 or where the petition is overruled, the court may make a final disposition of the case."

Footnote 1: The court may not be confused with the case of the court.

SS 7. _Criminal jurisdiction and procedure_,"See * C. L. \*56--The criminal jurisdiction includes offenses committed by corporations." The general subject is elsewhere treated."

KIDNAPPING."

Abduction of females for the purpose of prostitution or concbinage is elsewhere treated." Where consent to leave the state is accomplished by intimidation of such a character as to arouse fear and overcome the will, and without which consent would not have been given, the offense is complete.10 In North Carolina removal from the state is not an essential element of the offense.11 Under the Georgia statute creating the offense of inveighling or decoying away children under eighteen years of age without the consent of the parents, a conviction authorized on showing that the child was enticed away from parental control without the consent of the parent.13 The indictment need not allege matters of evidence 18 and is sufficient if in the language of the statute.14 It is incumbent on the state to prove that the person alleged to have been kidnapped was actually carried away,15 and it may be established by circumstantial evidence.16 Where the state relies on circumstantial evidence to establish guilt, evidence that defendant who was a neighbor of the parents of the boy alleged to have been kidnapped did not join in the search for him is admissible.17

to raise the question as to whether the finding was supported by the evidence. Gilbert v. King, I Ga. App. 572, 57 SE 891.

7. Imcluded in the term person. People v. Paterno Land & Water Co. \[Cal. App.\] $9 P

because of defective return, and objection 723.

not made that he had appeared and asked for an adjournment. Reeves v. Jones \[N. J. L. Law\] $6 A. 113.

98. To review a justices' judgment rendered against a garnishee without notice.

Ft. Morgan State Bk. v. Harcourt, 38 Colo. 243, 88 P 855.

99. Statute authorized entry of judgment as might be right, and where a judge had concluded his decision by dismissing the work, he or his successor might authorize a proper judgment. Krack V. Wayne Circuit Judge, 147 Mich. 485, 111 NW 161.

01. Statute authorizing entry in case of appeals construed to cover reuteriorl. Krack V. Wayne Circuit Judge, 147 Mich. 485, 111 NW 161.

01. What the question is overruled, the court may make sure that the court may not be confused with the case of the court."

- 10Cur. Law. LANLORD AND TENANT SS 2. Evidence of the acts and conduct of defendant prior to the kidnapping should be limited to such acts as evince an intent to take or send the person, alleged to have kidnapped, out of the state against his will.\[18\] The instructions must be based upon facts shown by the evidence \[19\] and must correctly state the essentials to conviction.\[20\]

Labels; Labor Unions; Laches; Lakes and Ponds, see latest topical index.

## 1. Definitions and Distinctions, 571.

- 2. The Contract of Lese and Creation of Teenney, 571. How Created or Established, 571. Construction of Lenses and Proof of the Terms of Teenney, 572. The Statute of Frauds, 573. Covenants, 574. Breach of Contract to Make Lease, 574.
- 3. The Different Kinds of Teennacles and Their Lendents, 574.
- 4. Rights and Interests Remaining in the Landford's Remaining in the Landford, 575. A. Reverston, Esis, and Right of Reentry, 575. B. Estopel of Tennant to Deny Title, 575.
- 5. Mutual Rights and Lashillities in Denyness, 576. A. Occupation and Enjoyment, 577. B. Assignment and Subletting, 579.
- 6. Repairs and Improvements, 580.
- 7.1.1 Rights and Lashillities Between Landford or Tennant and Third Person, Waste, 581. D. Insurance and Taxes, 581.
- 8.1. Definitions and distinctions. See 8 C. L. 656 The relation of landlord and tenant exists where one person occupies the land of another in subordination to his title and with his consent.\[21\] It is to be distinguished from a sale \[22\] and from a contract of hiring carrying the right to possession of particular premises as an incident thereto.\[23\]
- 8.2. The contract of lease and creation of tenancy. How created or established. See 8 C. L. 657.--The relation of landlord and tenant, being contractual, the general rules of contract law,\[24\] such as assent,\[25\] mutuality,\[26\] and those relating to false
- 18. Evidence of illicit sexual relations be- tweet parties held inadmissible. State v. Airbus \[Kan.\] 92 P 594.
- 19. Instruction on fraud and undue in- fence alleged to have been exercised by defendant in inducing woman with whom ther are the same as ther. Landson v. Airbus \[Kan.\] 93 P 594.
- 20. Instruction on essentials to conviction for inveigling children under eighteen years of laweg without the consent of the father under tenant. Moore under Pen. Code 1895, 8 110, held correct Arrington v. State \[Ga. App.\] 59 SE 207.
- 21. Express or implied. Hawkins v. Tranner \[Ga.\] 95 SE 225. Where one transferred property subject to trust feed made to secure loan and reserved to himself rents and control of property to secure him as surety, held that he sustained relation of landlord to tenant leasing property. Meyers v. Rus- sell, 124 Mo. App. 317, 101 SW 606. Contract by which one street railway company divested itself of use and possession of its road and appliances in consideration of stepped to deny knowledge of terms. Muel-specific rent, etc., held to be lease and not to create partnership or agency. Moorshead 573

LANDLORD AND TENANT SS 2. 10 Cur. Law.

representations and warranties," etc., apply. The relation may be created by express agreement \[28\] and be evidenced by a written instrument," or may be implied from the acts of the parties." A lease under seal can be executed only by an agent under sealed authority.\[31\] After the commencement of a partition suit, a lease of the premises can be made only under the authority of the court.\[32\] The contract must identify the property leased,\[33\] but need not be signed by the lessee if he enters thereunder.\[34\] A lease signed by one not a party thereto is not binding on him.\[35\] In some states leases for more than specified terms must be recorded or filed.\[36\] A lease under seal cannot be modified by a subsequent parol agreement.\[37\]

\_Construction of leases and.proof of the terms of tenancy._See S C. L. 659_--A lease as a contract is governed by the rules of construction applicable to contracts generally,\[38\] being interpreted most strongly against the party drafting the same.\[39\] The

session is a trespasser under claim of title - a week landlord will give and tenant will and seller cannot effect forfeiture of contract of purchase by mere service of notice - at fixed rental, held to operate as lease, no and thereafter treat purchaser as a tenant - formal lease having been executed. Feust liable for rent, unless assent on his part to - c. Craig, 107 NYS 637. Instrument reciting he so regraded can be shown. Geli, Jr. v. that owner had received a certain sum on Lehr, 4 Ohio N. P. (N. S.) 638. Evidence held - account of designated premises at a monthly to show that although plaintiff, a married - would not be a result to constitute a lease. - would not so understand, and hence no - would not be a result of two specific lofts, ant. Vanderburg v. Kansas City Gas Co. - "rent to be $45 per month and to run for two years," held not to constitute a lease, - would not be a 10 Cur. Law. Landlord and Tenant $ 2. 573

entire instrument must be looked to and all terms be given effect,\[40\] and must be construed in connection with contracts contemporaneously executed,\[41\] and in the light of existing statutes.\[42\] Printed provisions are controlled by written ones in conflict therewith.\[43\] The expression of particular purposes for which the premises may be used impliedly excludes other uses.\[44\] Since the written contract is presumed to express the real agreement of the parties, it cannot be varied by parol,\[45\] although parol evidence is admissible to show that lease was subject to a condition that it was to be one inoperative if premises were unfit for leased purposes.\[46\] The term,\[47\] obligations of the parties,\[48\] right of renewal,\[49\] and the property covered by the lease,\[50\] must be determined from the reci 574 LANDLORD AND TENANT SS 3. '0 Cur. Law. unless taken out by a part performance.\[54\] Likewise, written authority is usually necessary to enable an agent to execute a lease for more than one year,\[60\] although it has been held that a lesseee signing a lease is estopped to assert that agent's authority in writing has not been shown.\[66\] Changes in a lease which do not affect the interest in the really passed by the lease may rest in parol.\[57\]\_

_Covenants.\[58\]_ & C. L. \[69\]_--In many states there is an implied covenant that the premises will be open for entry at the time fixed for the commencement of the term\[68\] and for quiet enjoyment of the same thereafter,\[69\] but there is no implied covenant that the premises are in good repair or are fit for the intended use.\[60\] The consideration supporting the lease generally is sufficient to sustain covenants for renewal or for sale,\[61\] and such covenants are not void for lack of mutuality.\[62\] They must be definite and certain.\[63\]_

_Breach of contract to make lease.\[58\]_ See s C. L. \[69\]_--Where a tenant has been in possession for considerable time under an imperfectly executed lease, it will be treated as a contract for a lease.\[64\]_ Where a contract for a lease is contingent, such contingency must happen before contractee becomes entitled to a lease.\[65\]\_

_SS 3. The different kinds of tenancies and their incidents. Periodical tenancies. See s C. L. \[69\]_--A periodical tenancy may result from an express agreement,\[60\] by holding over after expiration of a fixed term,\[67\] or by entry under a verbal lease.\[68\]\_

_listing equity for improvements made._ Poole \[58\]\_

_v. Johnson, 31 Ky. L. R. 165, 101 SWP 555._

_54. Where possession has been taken under panel lease and money expended, it will be enforced._ Cole v. Ellwood Power Co., 216 _Covenant to have premises open for entry Pa. 283, 65 A 678._ Where oral lease came within statute of frauds, It was permissible for lesser to show that wheat sown by him was required by lease and hence part performance. Jones v. Com., 31 Ky. L. R. 1148, 104 SWP 782.\_

_61. Overall v. Madisonville, 31 Ky. L. R. 278, 102 SWP 278._

_278, 102 SWP 278._

_14 Dot. Lee. N. 631, 113 NWP 779._

_14 Dot. Leg._

_15. Option to purchases at price not to exceed $75 per acre, held not void for uncertainty of price._ Wright v. Kayser \[Mich.\] 14 Dot. Leg. N. 631, 113 NWP 779.\_

_16. Unve without specifying terms is not_

_void for indefiniteness, since renewal upon years which was not consummatated held_

_17. Original lease will be implied._

_18. Royal Metal Furniture Co., 117 App._

_19. New 84, 103 NYS 871._

_19. And as against purchaser of property having knowledge who is seeking to oust leases executed by him is inadmissible to tenant, a decree will be granted directing_

_10. Evidence that witlases be executed. Raitz v. Dow,_

_11. Onio C. C. (N, S) 249. Fact that lease been signed by defendint, authorizing defendants agent to rent, etc. held insuffuffuffance._

\_19.

10 Cur. Law. LANDLORD AND TENANT SS 4B. 575

\_Tenancy at will.\_See 8 C. L. 864.--Where leased property is sold under a trust deed antedating the lease,69 or where a tenant enters and pays rent under a void lease,70 a tenancy at will is created and a tenancy at the will of one is at the will of the other.71_Tenancy at surface.\_See 8 C. L. 864

$S$ 4. \_Rights and interests remaining in the landlord. A. Reverson, seisin, and right of re-entry.\_See 8 C. L. 864.--The landlord may assign or sell his reversion,72 notwithstanding the lease gives the tenant an option to purchase,73 but after he has done so, the option cannot be varied without the consent of the purchaser.74 Where attornment is unnecessary, the assignee or purchaser immediately succeeds to all of the landlord's interest and rights,75 the lease becoming his tenant.76 A tenant is bound by the written lease, knowingly signed, although it is not the true contract where the reversion has been purchased in reliance thereon.77 The statutes of some states prohibit attornment by the tenant to a stranger without lessor's consent.75 Upon the surrender of the leasehold, the landlord's estate becomes perfect.75

(SS 4) B. Estoppel of tenant to deny title. See 8 C. L. 864.--A tenant 80 in possess-

Barnaby Co. v. Johnston \[R. I.\] 65 A 613.--A agent," held to assign lease so as to enable

Lease for one year and so on from year to

him to restrain removal of chattlets which year until same should be terminated at end

passed to lesser on termination of lease.

of a year by lessee by due notice, forfeitable

I'mancor, 217 Pa, 133, 66 A 329.

for nonpayment of rent, held not a lease for

126fnite term, within Baltimore's Ann.

1274. Martin \[R. I.\] 68 A 420.

Codes St. 8 4570. Morris V. Weakly Lumber

75. Martin \[R. I.\] 68 A 420.

Co. \[Vash.\] 91 P 186.

67. Lessee remaining in possession for

01.

01.

over year after expiration of five year lease

and paying rent held a tenant from year to

1289.

year. Striet v. Fay, 330 Ill. 319, 82 NE 648.

Evidence that defendant rented premises for

a month and remained from one month to

another held to establish a tenancy from

month to month. Hanks v. Workmaster

\[N. J. Law\] 66 A 1097.--

68. Where after sale of urban property

under trust deed purchaser and tenant, hold-

ing tenancy inferior to deed, agree orally

to continue same, under Rev. St. 1899, 8 4110

(Ann. St. 1906, p. 2234), tenancy from month

to month is created. McFarland Real Es-

date Co. v. Joseph Gerardi Hotel Co., 203 Mo.

597, 100 SW SW77. Where possession is taken

under oral lease for a year, rent payable

monthly, under Ballinger's Ann. Codes & St

$ 4569, tenancy from month to month is

created. Mades v. Howaldt \[Vash.\] 90 P

$ 588. --Rev. St. 1899, 8 4110 (Ann. St. 1906, p. 2234), declaring that under verbal contract

for occupation of town property tenancy

shall be one from month to month, cannot

be Invoked where plaintiff constructed build-

ing on defendants land under agreement

that defendant will either pay him for such

building or rent to him till rents equal cost.

hadms v. Bonnefon, 144 Mo. App. 457, 101

the court, as against lease for 2,000 years

$ 68. McFarland Realstate Co. v. Joseph

Gerardi Hotel Co., 202 Mo. 597, 100 SW77.

$ 70. Hayes v. Atlanta, 1 Ga. App. 25, 67 SE

$ 1087. In action for taking of tenancy at

will by eminent domain, void lease is admis-

sible to aid in establishing tenancy. Id. Ac-

not exist, though annuity is called rent.

tion of lower court examined and held in

conformity with directions of supreme court

Whetsler v. Sprague, 224 Ill. 461, 79 NE 667.

to determine right of parties to avoid lease

for years as tenancy at will. La Rue v.

under procedding of record under which

Parmelle \[Neb.\] 111 NWV 121.

title is openly avowed as in fee simple, and

71. Lease was sufficiently executed by les-

continues in undisturbed possession for over

see but not by lessee. Hayes v. Atlanta, 1

$ 1099.--

$ 25. --Signment of lease to "Felix Isman, 1099.-- sion cannot deny his landlord's title \[81\] though his term has expired,\[82\] nor can he change the character of his possession to the prejudice of the latter,\[83\] and the benefit of this doctrine inures to all who succeed to the lessor's estate,\[84\] and is binding on all who claim under the lessee.\[85\] This estoppel, however, relates to the title as it existed at the time of leasing and does not preclude lessee from showing that such title has terminated.\[88\]

**SS 5.**\_Mutual rights and liabilities in demised premises.\_See_s C. L. 665--Contractual rights between the parties are measured by the terms of the lease \[87\] as are stat-

**81.**\_Haynes v. Sherwin-Williams Co., 126

Jill. App. 414; Washington v. Moore \[Ark.\]

105 SWV 253. Cannot assert that he is only owner in common. Griffling Bros, Co. v. Winfled, 58 Pla. 589, 43 687. Cannot purchase and assert outstanding title. McCutchen v. MoCutchen, 77 S. C. 129. 57 SE 678. Cannot maintain action to quiet title. Engle v. Tennis Coal Co., 80 Ky. L. R. 1269, 101 SWV 309. Where tenant has failed to pay rent, he cannot defend against dispossession proceeding on pla of title on himself or another. McParlane v. Kirby, 28 App. D. C. 391. \_Tenant held stepped to deny lessof's interest under contract giving her use of land during widowhood. Henderson v. Henderson \[Iowa\] 114 NWV 178. In trespass to try title, plaintiff need not establish a valid title where defendant is shown to be his tenant. Berry v. Jagore \[Tex. Civ. App.\] 18 Tex. Ct. 126, 101 SWV 309. Where tenant has failed to pay rent, he cannot defend against dispossession proceeding on pla of title on himself or another. McParlane v. Kirby, 28 App. D. C. 391. \_Tenant held stepped to deny lessof's interest under contract giving her use of land during widowhood. Henderson v. Henderson \[Iowa\] 114 NWV 178. In trespass to try title, plaintiff need not establish a valid title where defendant is shown to be his tenant. Berry v. Jagore \[Tex. Civ. App.\] 18 Tex. Ct. 126, 101 SWV 315. Subtenant is estopped to assert as against his lesser that sublens- ing was vold for lack of landlord's consent. Boyd v. Kinzy, 127 Ga. 358, 65 SE 420. Where grantes in defectively acknowledged deed claimed to own land described therein, one leasing from him is not estopped to deny title of grantor. Vincent v. Means \[Md.\] 106 SWV 8.

**82.**\_Cannot show paramount title in him-self existing prior to lease to excuse surrender of possession. Thomas v. Young, 79 Conn. 493, 65 A 955.

**83.**\_Lesse attempting to assert possess-ion as liquidator of partnership business. Campbell v. Hart, 118 La. 871, 43 S 533.

**84.**\_Purchased property. Hackney v. McIninch \[Neb.\] 112 NWV 296.

**85.**\_Assignee of lease. Hackney v. McIninch \[Neb.\] 112 NWV 296.

**86.**\_Telch v. Arms \[Cal. App.\] 80 P 962. Where property had been sold to state for taxes prior to execution of lease and resol to bank during term, proof of such facts did not deny leasers' title as it existed at time of leasing, since resuler by state divested lesser of title and right to possession. Id. Sold under foreclosure of trust deed and came into hands of lessee through means conveyeances. Spafford v. Hedges, 231 Ill. 140, 83 NE 129.

**87.**\_Where lease of space between trees of an orchard provided that lessee was to care for the trees, it was no defense to action for negligence that he gave trees better care than others not included in contract. Griffling Bros. Co, v. Winfled, 53 Fla. 589, 43 S 687. Lease of building for laundry purchased, requires lessor to furnish tenant "with right to connect with sewer drain at rear of store building with drainage and fall suMicent to carry off water, imposes duty to furnish drain sufficient to carry off water, and of the cost of a special * 10 Cur. Law. Landlord and tenant.$ 5A.

- 10 577
  578 Landlord and TENANT SS 5A. 10 Cur. Law. himself in conducting such business.2 While ordinarily a tenant is entitled to enjoy the premises free from disturbance of the landlord,3 the latter may enter to comply with health ordinance or order.4

\_Right to enter._See # C. L. 600_-\_A landlord is bound to put his tenant in possession according to the terms of the lease * and it is no defense that an existing lease prevents.6 A tenant must accept a belated tender of possession where he can do so without serious prejudice,7 but he does not thereby waive accrued damages.8 While a tenant holding over after the end of his term is liable to a tenant who is thereby excluded from possession,9 one whose tenancy has not been terminated incurs no liability.10 The measure of damage for failure to give possession is the difference between the market value of the lease and the reserved rent.11

- 10Cur. Law. -- Landlord and Tennant SS 5B. 579

\_Nature of tenant's estate.\_See * C. L. "67--A leasehold interest for three years is personality." \[15\] An entry under the lease is no longer necessary in many states to create the relation of landlord and tenant." \[SS 5\]

(SS 5) \_B. Assignment and subletting.\_See * C. L. "67--An assignment must identify the leasehold," comply with the statute of frauds," and be recorded if required by statute." An assignment under seal and duly delivered is sufficient without entry thereunder." \[20\] A conveyance of lessee's entire interest will usually be construed an assignment though in form a sublease." \[21\] The lessee's common-law right of assignment may be restricted by statute," or by covenant," the landlord's consent usually being required." \[24\] Where landlord's consent is necessary, such consent may be made the basis of a new contract," and, likewise, the assignment may be made the subject of contract between lessee and assignee." \[26\] While assignment of lease does not of itself pass collateral agreements," they may be conveyed by parol with the assignment." \[28\] Lesser cannot assert fraud in the procurement of a recorded lease against a bona fide assignee." \[29\] Where lessee performs all the covenants and obligations of * \[seeking to off-set damages for breach of warranty against rent must show a disturb- * \[20\] to two persons is broken by assignment of * \[21\], or * \[22\] under the same token by * \[23\], and * \[24\] under the same token by * \[25\], or * \[26\] under the same token by * \[27\], or * \[28\] under the same token by * \[29\], or * \[29\] under the same token by * \[29\], or * \[28\] under his lease notwithstanding an assignment in violation of his contract, he is entitled to all the benefits thereof.\[80\]

At common law a tenant may sublet his estate,\[11\] but this right has been restricted by statute in some states\[33\] and, may be prohibited or limited by express agreement.\[38\] Where landlord's consent is necessary to a valid subletting, the lease must come within the consent given.\[24\] Where by statute leased premises cannot be sublet without landlord's consent, they cannot be sold under a forced sale.\[36\] In Missouri a landlord cannot re-enter for subletting by a tenant for less than two years without giving the statutory notice.\[30\]

(SS 5) \_C. Regairs and improvements.\_See S. C. L. #10.--While the law imposes no duty upon the landlord to make repairs,\[37\] he may obligate himself to do so by express agreement,\[38\] but an agreement to make outside repairs will not be implied from the fact that the lease expressly requires lessee to make inside repairs.\[39\] A collateral covenant to put the premises in good repair is personal and does not pass with the reversion.\[40\] Whether landlord's covenant to make repairs obligates him to search for defects or merely to repair on notice depends upon the intention of the parties.\[41\] Where a building is leased to several tenants, parts thereof remaining under the control of the landlord for their common use must be repaired by him.\[42\]

\[Todge purpose." O'Neill v. Ogden Aerle No. assignment for which he could have recovered if no assignment had been made. Morrow v. Camp \[Tox, Civ. App.\] 18 Tex. Ct. Rep. 13, 101 SW 819.

**31.** Where lease does not prohibit subletting, fact that leasee was going to sublet to achieve the property' to achieve achieving splitting to automobile cleanup. Fleisch v. Schnaker, 194 NYS 821.

Where assignee reassigned lease to original lease and thereafter continued in possession, it will be presumed that his occupancy was as tenant of lessee. Donaldson v. Strong \[Mass.\] 81 NNE 267. Lease by lessee for a part of term is a subletting and not an assignment. Grever v. Ogden Little Circle Zinc Co. \[Mo. App.\] 103 SW 151. Arrangement by corporation lessee whereby other was allowed to transact private business on premises upon paying one-half of janitor, gas, and telephone bills, held subletting. Levy v. Hockwaid \[Cal. App.\] 82 P 872. Arrangement whereby one selling steamship tickets was permitted to occupy premises upon payment of commission held a subletting. Ide, to repair front window held sufficient to allow recovery for repair of defective construction not known when lease was executed. Ide.

**32.** Under Ky. St. 1903, $ 2292, a sublease without lease's consent of wall for advertising purposes is void where lessee has a cuted. Ide. Where lease was to repair root term for less than two years, and landlord but was to be liable for leakage only upon may recover actual damages (Louisville Gunnlng System v. Parks, Sl 1K. R. 923, 104 SW 831; Louisville Gunnlng System v. Parks, Sl 1Ky. L. R. 923, 104 SW 332), but not punitive damages where sublesge acted in good faith in printing sign thereon (Louisville Gunnlng System v. Parks, Sl 1Ky. L. R. 923, 104 SW 332).

**33.** Where lessee covenanted not to sublet premlises for any purpose other than for "lodge use" or "lodge purposes" without lease, sl and premises were leased to various lodges which conducted dances therein, parol evidence of usage among lodges in respect to social dances and of acts and conduct of parties ls admissible to show meaning of term "lodge use" and 10 Cur. Law. Landlord and tenant $ 5D. 581

Without lessee's consent," landlord has no right to enter upon leased premises and make changes therein," even though beneficial to lessee," and if he does so, lessee may sue in tort though it also violates the contract." In reconstructing the premises of one tenant, the landlord owes an absolute duty not to injure the property of another." The taking and retaining of possession by lessee does not waive damages for lessor's breach of covenant to repair."

While it is the duty of a tenant to repair defects arising during the term," an express covenant to keep old premises in repair obligates him to remedy defects existing at the time of leasing." The duty to make "repairs," to pay for the same," and to return the premises "in good repair," etc.," is frequently the subject of express agreement. Acceptance of surrender of premises with knowledge of its condition does not waive recovery for breach of covenant to repair," especially where a contrary intent is manifest." A tenant cannot improve the premises without the landlord's consent and make him a debtor therefor," his right .to compensation resting wholly in contract."

\_Waste.\_See * C. L. 678

Although the tenant wrongfully cut an archway through the wall, its use will not be enjoined in the absence of special damages."

($ 5) \_D. Insurance and taxes.\_See * C. L. 678

The duty to insure and the rights of the parties in the proceeds are largely governed by the terms of the lease."

approaches to apartments in repair as apartments themselves. Glain v. Sparande, 119

poses to repair changes necessarily made to La. 359, 44 S 120. Must exercise reasonable

carry on business, Marks v. Chapman I\[Iowa\]

care to keep common fairway in repair.

112 NW 817. Breaking of window due to deJohnson V. Lembeck & Bet Eagle Brew. Co.

(N. J. Law) 68 A 85.

(43. Lessoar has burden of showing assent when used in trespans. Wood v. Monteleone,

118 La. 1005, 43 S 657. Evidence held in-sufficient to show assent, especially in view of inconvenience to which it would put lessee. Id.

44, 45. Wood v. Monteleone, 118 La. 1005, 43 S 657.

46. Action construed ex delicto. Wood v. Monteleone, 118 La. 1005, 43 S 657.

01. Immaterial that work was being done through independent contractor (Bilckley v. Luce's Estate, 148 Mich. 233, 14 Det. Leg. N. 121, 111 NW 752), and at expense of tenant (Id.). Instruction limiting recovery to personal negligence of landlord held erroneous.

Id.

48. Uhfelder v. Loughran, 54 Misc. 593, 104 NYS 891.

01. Especially where landlord at time of letting expressly refused. Clapp v. Donaldson \[Mass.\] 80 NE 486.

(50. Especially if defects are open to observation. Keroes v. Richards, 28 App. D. C. 310.

51. Replacement of terra cotta drain with iron one, as required by building regulations, held a "repair" within provisional requiring lessee to make repairs, and not an improvement (Keroes v. Richards, $8 App. D. C. 310), and it is duty of lessee to pay the forefor, at least to extent of cost of a terra cotta drain (Id.).

01. Where lease requires lessee to pay for all repairs and municipal authorities compel

lessor to repair drain, lessee must reimburse him. Keroes v. Richards, 28 App. D. C. 310.

53. Covenant to surrender premises "in as good condition as reasonable use thereof would permit" and to "keep" premises in as good repair as they now are held not to re-representatives.

01. Especially where parties agree to contrary. Herrmann v. Laemmle, 107 NYS 73.

01. Instrument accepting surrender of premises and releasing tenant "of and from all obligation to pay rent" held not to release liability for breach of covenant to take good care of premises. Herrmann v. Laemmle,

107 NYS 73.

56. Put in window. Critcher v. Watson \[N. C.\] 59 S 544.

01. Diderlich v. Rose, 228 Ill. 610, 81 NE 114. Stipulation that if premises were not reject new tenant should take improvements at appraised value held not to entitle tenant to compensation from purchaser. Id.

01. Chamberlain v. Childs' Unique Dairy Co., 53 Misc. 371, 104 NYS 912. Will not be compelled pendente lite to seal up same, where complaint is based on theory of continuing treasas and no irreparable injury is shown. Chamberlain v. Child's Unique Dairy Co., 54 Misc, 56, 105 NYS 370.

01. Where tenant was to put in certain improvements which were to remain his property until end of term, when it should become property of landlord, insurance thereon in case of destruction to be used towards replacing improvements in new building, held that where lease was forfeited after destruction of property, lessor could recover proportion of insurance which
    (SS 5) \_E. Injuries from defects and dangerous condition.\_See 5 C. L. 575_In the absence of a covenant to repair, the landlord 40 is not liable for lack of repairs arising during the term,61 but knowledge 62 at the time of leasing 63 of latent defects renders him liable for resulting injuries, unless the same are disclosed.64 The landlord is not liable for injuries resulting from the wrongful act of a cotenant,65 or for an improper use of the premises by such cotenant, unless he authorizes or causes such use or let the premises for that particular purpose.66 Where landlord undertakes to make repairs, he is liable for negligence in prosecuting the work.67 Lessor is not responsible for injury due to extraordinary use of the premises,68 nor is he liable except as a licensee to a tenant using property not leased 69 with his consent.

A covenant to repair does not ordinarily render the landlord liable in tort for failure so to do.70

A landlord is liable for injuries result from his negligence 71 in failing to keep in a reasonably safe condition portions of a building leased to several tenants over which he retains control for their common use.72 In the absence of statute,73 no portion of term before destruction bore to centre term. Lincoln Trust Co. v. Nathan, 122 Mo. App. 319, 95 SWV 484.

60. Evidence held insufficient to show defendants ownership or control of premises and responsibility for defect. Rosenstein v. Deffaa, 107 NTS 90.

01. Jones v. Brumme, 104 NYS 1038. Where coal had several times been put through coal hole after letting proof that edges had been broken byrying cover off so that cover did not fit, held insufficient to show that it was in that condition when let. Clapp v. Donaldson \[Mass.\] 80 NE 486.

01. Knowledge of agent is knowledge of lessor. Holzhauer v. Sheeny, 31 Ky. L. R. 1228, 104 SWV 1084.

01. Knowledge must exist at time of leasing, and hence knowledge thereafter acquired does not impose duty to notify lese-see. Holzhauer v. Sheeny, 31 Ky. L. R. 1228, 104 SWV 1034. Admissions of agent tending to show that he had knowledge prior to injury is landmissible in absence of evidence that such knowledge existed at time of leasing. Id.

01. Holzhauer v. Sheeny, 31 Ky. L. R. 1228.

104 SWV 1034. Especially where premises were represented as being in good repair. Meyers v. Russell, 114 Mo, App. 817, 101 SWV 605. Blind fell and finured pedestrian on street. Gronlund v. Forsman, 124 III. App. 362.

65. Where lease of upper floor of building obligated lessee to keep and return premises in good repair, landlord is not responsible to tenant of lower floor for damage due to overflow of water closer on top floor which was ln good repair when leased, Lebensburger v. Scoffel \[C. C. A.\] 155 F 86.

01. Peterson v. Bullion-Beck & Champion Mim. Co. \[Utmah\] 91 P 1085. To render lesser liable to lessee for injury caused by another tenants use of premises, the interference must be such as would necessarily result from use of premises for purposes for which it was leased. Id. Fact that lease provided that lease should use premises with due regard to rights of other lessee and that lessor should have right to prohibit interfering uses held not to render lesser liable to a tenant damaged by improper use. Id.

01. Collapse of building while being re- * 10 Cur. Law. LANDLORD AND TENANT SS 5F. 583

duty rests on the landlord to light the hallways of a tenement, though he retains control.\[14\] As in other actions for personal injury, contributory negligence defeats recovery.\[15\]

_To strangers.\[85\]_ See s C. L. 671--The landlord \[16\] is not liable to third persons for injuries caused by defects which do not constitute a nuisance,\[17\] but is liable for all damages resulting from a nuisance created,\[18\] or permitted by him,\[19\] or under his supervision,\[20\] or which is the necessary and probable result of the use for which the premises are leased.\[21\] The party injured must be rightfully on the premises or the defective part thereof.\[22\] A member of the tenant's family can recover for the landlord's negligence under circumstances which would warrant a recovery by the tenant if injured.\[23\] A direct recovery is often allowed against the landlord to avoid circuity of action.\[24\]

(SS 5) _F. Emblements and fixtures.\[85\]_ See s C. L. 678--In the absence of contract,\[85\] a tenant may remove trade fixtures,\[18\] but an improvement made under a void lease cannot be removed where made under protest.\[19\] Many leases, however, regulate the rights of the parties in respect to improvements \[18\] and crops,\[20\] and where landlord

- 73. Held error for court to read to jury
- 83. Failed to repair common hallway, entire statute relating to lighting tenement

Domencils v. Fleisher \[Mass.\] SS 1NE 191. hallways when only a part was applicable.

- 84. Where party injured by failure of les-Robinson v. Crimmins, 104 NYS 1076.
- 74. Robinson v. Crimmins, 104 NYS 1076.
- 75. Where person, who was inspecting

one can use lesser to avoid circuitry of action tenement after deciding that it would not

is not involved, since wife cannot use husband, without waiting for janitor who

- 85. Where lease stipulates as to ownership

hallway and stepped into darkness, she as-

of chattels placed on premises, law of trade

sumed all risks of injury. Robinson v. Crimmins, 104 NYS 1076. See Negligence, 8

217 Pa. 133, 66 A 529.

- 86. See Fixtures, 9 C. L. 1367.
- 87. Where leases did nothing until other

parties acting under prior lease went onto

float is made in private and not governless, when they temporarily enjoined

mental capacity, and liabilities are same

them and went onto land under protest of

as those of an individual. Commercial

owner, Improvement cannot be removed upon

- 88. See proving void. Brune v. Hicks, 230 Ill.
- 89. K. 88. Provision that "all alterations, addl-

102 NYS 857.

tions, and improvements," except movable

- 88. Compilant in action against landlord

for injuries held sufficient to sustain recovery on theory of nuisance as distinct from

apparatus, gallery, restibules, dummy waiters, negligence. Uggia v. Brokaw, 117 App. Div.

and toilet rooms placed in building. Isman

$86, 102 NYS 857.

$9. Which under terms of lease he could

validate company puts down side-tracks at

abate. Chosen Freeholders of Hudson Coun-

request of coal company upon its leashedlord

ty v. Woodcliffe Land Imp. Co. \[N. J. Law\]

estate for purpose of removing coal, lease

$4.

providing that, upon abandonment of prema-

80, Fact that building which is so con-

served as to constitute a nuisance was

have right to remove mining appliances,

built by, tenant does not relieve landlord

such railroad company has right to remove

where he maintained control and supervis-

such side-tracks, upon abandonment of

ion. Uggia v. Brokaw, 117 App. Div. 586,

premises by coal company, over objection of

103 NYS 857.

81. Chosen Freeholders of Hudson County

substantial injury to freehold, and before

v. Woodcliffe Land Imp. Co. \[N. J. Law\] 65 A

$4.

82. Evidence examined and held that one

seeking employment had no implied invitation

to use elevator which was marked "for

fresight only." Missel v. Lennox \[C. C. A.\]

156 F 347. Evidence of use of elevator from

recipes by coal company, over objection of

as completing rear passage to restaurant

for purpose of delivering provisions, etc., to-

sether with direct testimony that lease

authorized such use, held to make question

for jury whether leeman had implied invitation

to use same. Hamilton v. Taylor

\[Mass.\] 80 NE 592.

584Landlord andTenant SS 5G.10Cur.Law. is given the option to claim fixtures but no time is fixed for the exercise thereof, he must elect within a reasonable time.\[90\]Under an agreement permitting tenant to remove buildings "at expiration of the term" unless landlord elected to purchase, he cannot remove upon forfeiture of the lease.\[91\]Where tenant is entitled to remove an improvement,'a promise by landlord to pay therefor is not without consideration.\[92\]Where the lease is forfeited by the lessee and the landlord makes an entry, title to the growing crops vests the landlord.\[93\]

(SS 5) G. Options of purchase or sale,See S C. L. 879.An option to purchase 94 is frequently given.\[95\]Where the right can be exercised at any time during the term, "provided the tenant promptly pays the rent," a default in the rent forfeits the option," although such forfeiture may be waived by the landlord.\[97\]

(SS 5) H. Actions.--In an action against the landlord for failure to furnish water for irrigation as required by the lease, an irrigation company which had undertaken to furnish him with the water is, not a necessary or proper party.\[98\]One holding a leasehold as a trustee of an express trust may sue thereon in Missouri without joining the beneficiaries.\[99\]An allegation that default sued for occurred before expiration of notice terminating the lease is sufficient without setting out the notice.\[1\]

The plea of non infregit continem cannot be used where the breach charged is also in the negative.\[9\]Where lessee relies on breach of a covenant, such covenant should be set out in the pleadings and a breach thereof be alleged in accordance with legal requirements.\[9\]

A stranger suing the landlord for personal injuries has the burden of showing that the premises were let in a state of nuisance,\[4\] or of establishing his negligence where negligence is relied upon.\[9\]A lease for less than three years cannot be proven

SB. Where defendant leased farm to plain-

iff upon the agreement that on sale of

PENSES during term plaintiff would va-

PENSES by certified transcript in New York.6 There must be no variance between the contract alleged and the one proven.7

Where an action involves the question of abandonment, the court should define the word.8

8 6. \_Rent and the payment thereof, and actionable use and occupation.See 8 c. L. 879--The obligation to pay rent is contractual.9 Where the landlord has elected to treat a lessee holding over as a tenant, he cannot thereafter increase the rent by notice.10 Rents are personally and the right to collect and distribute the same passes to the personal representative.11 A conveyance of the fee by operation of law transfers to grantee all rents thereafter accruing,12 and an assignee of rent without the reversion may maintain an action for rent accruing.13 While the parties may stipulate for payment of rent in advance,14 in the absence thereof rent is payable at the end of the rent paying period.15 Where rent is payable in advance, an eviction for default;16 or a surrender of the lease 17 does not relieve the tenant from liability for accrued rent for the current rent paying period, although under the New York statute the issuance of a warrant of distress terminates the lease and relieves from further liability,18 in the absence of an express agreement to the contrary.19 Where the landlord elects to terminate the lease for nonpayment of rent, he is not entitled to rent for the current month,20 nor to the time of eviction in the absence of an agreement,21 nor is the tenant liable for the difference between the rent reserved and the rental received on a release.22 Where the landlord has followed a practice of collecting and receiving the rent in a particular manner, he cannot put the tenant in default and
claim a forfeiture by discontinuing without notice.23 Where rent is payable monthly, each month's rent constitutes a distinct and separate cause of action,24 and where the tenant wrongfully abandons the premises, the lessor may sue for each month's rent as it becomes due.25 A married woman is not liable for rent on the premises occupied by the family in the absence of an express agreement.28 To stop interest on rent due, a continuous tender must be made.27 The payment of rent is frequently secured by a deposit 28 or by a surety bond.29 Covenant to return the deposit does not run with the land.30

\_Defenses, set-offs, and reductions.80e s c. L. \*\*\*--Payment 21 to one authorized to receive payment 22 discharges the tenant from further obligation, but not the fact that excavations on adjoining property renders the leased premises of less value.33 Fact that landlord takes possession upon default and relets does not relieve the tenant from liability for accrued rents,34 nor does a default on the landlord's part giving the lessee a right to surrender the premises relieve from future rents unless such surrender is made.35 An assignment of the lease does not discharge the tenant from his personal obligation to pay the rent unless the landlord accepts the assignee as his tenant with such intent,36 and the lessor must be notified of the assignment although the lease provides for assignment to a particular corporation.37 The covenant to pay rent runs with the land and hence an assignee is liable by reason of his priority of estate,38 but not after reassignment.39

23 Where lessor under lease calling for

be dispossessed and offer to pay costs and payment of rent in advance has for many

advanced rental made at time tenant is not years called at lessee's office and accepted

In default or insolvent does not relieve surety

check, he cannot without notice discontinue

for subsequent defaults, Raved v. Klibbe, 102

such practice and claim a forfeiture. Ken-

NYS 490.

tucky Lumber Co. v. Newell \[Ky.\] 105 SW

30 Hence lessor's grantee cannot be held

312 Hence, under Sayles' Rev. Civ. St. art.

Failert Brev. Co. v. Blass, 103 NYS 865.

31 Evidence as to dealings in respect to

to county court cannot be amended so as to

certain securities held to show payment of

include additional rent. Williams v. Houston

Contlace Works \[Tex. Civ. App.\] 18 Tex. Ct.

Fen. Chicago R. Equipment Co. v. Nat. Hol.

32 Evidence held insufficient to show that

33. Devilence held insufficient to show that

01. Devilence held insufficient to show that

res judicate, Davidson v. Hirsh \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 159, 101 SWY 269.

10 Cur.'Law. Landlord and TENANT SS 7. 587

Damages accruing from breach of the landlord's covenants may be set off against the rent,40 but not damages arising from independent torts.41 Where the tenant grants the landlord a license, he cannot set off against the rent the rent received by the latter for a license within the one granted.43 A deposit to secure performance of the covenants for the entire term cannot be set off until the end of the term.43 Where the landlord is entitled to interest on his rent, the tenant should be allowed interest on his set-offs.44

In Kentucky a tenant is entitled to a proportional abatement of the rent where one or more of several leased buildings are destroyed by fire during the term,45 unless the lease otherwise provides.45 A tenant is not entitled to an abatement of rent during a temporary surrender of possession to enable landlord to make repairs voluntarily undertaken on the tenant's request,47 unless the lease consumes an unreasonable length of time. 48 While a tenant wrongfully abandoning the premises is entitled to reduction of rents in the amount of the rents received from a reletting, landlord is not bound to relet.49 The parties may stipulate for an abatement upon the happening of specified contingencies.50

\_Ground rents and perpetual leases.\_See 8 C. L. 884

\_Use and occupation.\_See 8 C. L. 884--An action will not lie for use and occupation against one adversely or toriously in possession.51

SS 7. \_Renal on shares.\_See 8 C. L. 884--Whether one letting a farm on shares has a specific undivided interest in the crops when gathered or only a lien depends upon the terms of the agreement.52 While a creditor of a tenant on shares may levy upon his interest in the crop,53 a creditor of a hireling who is to receive a portion of the crop merely as compensation 54 cannot levy until division.55 Where a landlord renting on shares prevents the tenant from raising a crop, the measure of damages is the market value of tenant's share of the expected crop, less the cost of growing and harvesting the same, and the earnings of lessee during the season.58 Where one furnishes land and a team and another labor, latter has only a lien on crop.57

v. Schonger, 53 Misc. 648, 103 NYS 738. Assig-

1803, $ 2297, inapplicable. Scott Bros. v.

neo may destroy privity of estate by assign-

Flood's Trustee, 30 Ky. L. R. 955, 99 SWV 967.

ment to original lessee without notice to

1827, 483. Chambers v. Matingly \[Tex. Civ.

lessor even though there is a covenant

Appl.) 19 Tex. Ct. Rep. 643, 103 SWV 663.

against assigning without leasor's consent.

1837, 637. May re-

Donaldson v. Strong \[Mass.\] 81 NEP 267.

40. Covenant to repair. Ubfleider v. Longhi

which it could be rented to others. Davidson ran, 54 Misc. 593, 104 NYS 831. Fact that

lease is oral is immaterial, Id. Lessee may

prove that lesser has violated lease and set

of damages against rent without filing other pleadings than statutory afflavit. Smith v. Green, 128 Ga. 90, 57 SE 98.

41. Smith v. Green, 128 Ga. 90, 57 SE 98.

01. Where lessee granted to lessor a license, at least, "for people" to pass "with

leases to and from a bath," a license to city

for bath at end of dock held within license

granted. Pierson v. Hughes, 102 NYS 528.

43. Slater v. Bonfiglo, 106 NYS 801.

01. Morrow v. Camp \[Tex. Civ. App.\]

18 Tex. Ct. Rep. 153, 101 SWV 819.

45. Ky. St. 1803, $ 2297, providing that tenan+ and sholl not be liable for rent of any building destroyed by fire during term, etc., held

to entitle tenant to proportional abatement

of rent when one of several buildings is destroyed. Scott Bros, v. Flood's Trustee, 30 Ky. L. R. 855, 99 SWV 967.

46. Provision in lease relieving tenant

from rent where premises are rendered un-

tenatable by fire does not apply to partial

destruction which does not render them un-

tenatable, and hence does not render Ky. St.

1803, $ 2297, inapplicable. Scott Bros. v. Flood's Trustee, 30 Ky. L. R. 955, 99 SWV 967.

47, 48. Chambers v. Matingly \[Tex. Civ.

19 Tex. Ct. Rep. 643, 103 SWV 663.

49. Feust v. Craig. 107 NYS 637. May re-

cover rent without deducting amount for

which it could be rented to others. Davidson

v. Hirsh \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 153, 101 SWV 269.

50. Where lease for annual rental of $2,000

provided that, in event of a partial overflow, les

## 8 The term, termination of tenancy, renewals, holding over

See 8 C. L. eess_A lease may be made to commence in future,\[56\] and where it is for a definite term, it expires at the end thereof,\[59\] and a provision giving the tenant a right to remove improvements does not extend his right of possession.\[60\] The bankruptcy of the tenant does not of itself terminate the lease.\[61\] A sale of the property under a deed of trust or a mortgage extinguishes postdated leases,\[42\] especially if lessee had notice thereof,\[59\] but does not affect those which antedate the deed or mortgage.\[64\] By express provision a lease may be made terminable at a particular time\[65\] by a named person "#" upon notice,\[57\] or upon the happening of a designated contingency,\[68\] and the performance of certain conditions precedent.\[69\] Where a lease of municipal property is terminable if needed for improvements, the right must be exercised in good faith.\[70\] By statute in some states, a lease is and by agreement may be made terminable, upon being rendered "unfit of occupancy" by fire, etc.\[71\] Although a lease is terminable on notice, a party condemning the land cannot exercise the right where the tenant's rights become fixed at the same moment that such party succeeds to the landlord's interest.\[72\] Where one claiming under a lessee is not estopped to deny his title or the lease, he may acquire the fee by adverse possession.\[73\]

penses, etc., in producing. Waggoner v., 936, 103 SW 1114. Where landlord accepted Moore \[Tex, Civ, App.\] 18 Tex. Ct. Rep. 490, 101 SWV 1058.

St. Code 1896, $ 2712. Cannot mortgage same, notwithstanding $ 1064, making mortgage on unplanted crops a valid conveyance if given after Jan. list. Carleton v. Kimethrough \[Ala\], 43 S $17.

58. United Merchants' Reality & Imp. Co. v. Roth, 107 NYS 511.

01. Where term extends "from" December Ist, 1904, "to" December Ist, 1906, a term of "two years," it explores on November 30, 1906, or December Ist, 1906, according as possession was intended to be taken on December Ist or 2nd, 1901. I X. L. Furniture & Carpet Installment House v. Berets \[Utah\] 91 P 275.

01. Gave right of re-entry at most. I X. L. Furniture & Carpet Installment House v. Berets \[Utah\] 91 P 279.

01. Mayer v. Clarke, 129 Ill. App. 434.

01. McFarland Real State Co. v. Joseph Gerardi Hotel Co., 202 Mo. 597, 100 SWV 571.

63, 64. Gross v. Chittim \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 906, 100 SWV 1006.

65. Under lease for five years, "with the privilege "\*" to terminate the lease at the expiration of one year on sixty days' notice," leaste cannot be terminated by notice after first year, M. Fine Reality Co. v. New York, 53 Nise. 246, 103 NYS 115.

01. Lease construed to expressly provide for cancellation by superintendent of public buildings and grounds at end of five years. (Tips Foundry & Mach. Co. v. State \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 568, 103 SWV 886), and lease claiming under such lease cannot deny validity of such provision (Id.).

01. Acceptance of rent due held not a waiver of refusal to vacate on notice. Outhouse v. Baird, 121 App. Div. 556, 106 NYS 246.

01. Where lease was terminable upon sale with immediate right of possession, fact that sale did not expressly call for immediate possession did not prevent termination therefore of where vandee understood that he was to be put in Immediate possession, Thomason v. Oates \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 936, 103 SWV 1114. Where landlord accepted check for year's rent in advance upon condition that lease was terminable on sale, purchaser was not estopped to terminate lease because heashed the check, having first offered to return it, and subsequently tendered unearned rent. Id. Where landlord was entitled to take possession on tenant's abandonment or for breach of other conditions, instruction requiring lessor .to establish abandonment and breach of other conditions as defense of action for eviction is erroneous. Union Scale Co. v. Iowa Mach. & Supply Co. \[Iowa\] 113 NWV 762.

01. To find tenant another place equally as good. Lewis v. Taylor \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 306, 101 SWV 846.

01. Donohue v. New York, 54 Misc. 415, 105 NYS 1069. Held that mere approval of plans for improvement, which might never be carried out, and which it carried out would not require use of such property for several months, did not entitle city to terminate lease. Id.

01. Amount of insurance received held admissible as bearing upon issue whether fire had rendered building "unfit for * 10 Cur. Law. Landlord and Tennant SS 8. .589 \_Surrender, abandonment, and eviction.\_See s C. L. ess_To effect a surrender there must not only be an offer of surrender 74 or an abandonment, but there must also be an acceptance thereof 78 by one having authority to accept.79 A surrender destroys all rights conditioned on the continuance of the lease,71 but does not affect accrued rights.78

A tenant may abandon 79 the premises where rendered untenantable through lessor's failure to repair as required by the lease,80 or through breach of his other covenants.81

To constitute constructive eviction, the actions of the landlord must be of a grave and permanent character and such as to deprive tenant of the enjoyment of the premises.82 Uninhabitable condition of premises due to tenant's own default does (Id.).

- 74. Letter asking whether lesseses deslred to vacate on certain date or to release held to under facts of case not abandoned by re-show that lessor mistakenly believed that mayl of float for repair although not release expired on such date, and hence was placed. Commercial Wharr Corp. v. Boston, not an officer to modify lease (Auer v. Hoff-194 Mass. 460, 80 NE 645. Prima facele case of manann \[Viss\]. 112 NWV 1909), nor does it respond lessor from claiming rent for remain-from business block and anonymment of rent. Parnass v. Ryerson, 128 Ill. App. 489. Lease mistake before he had leased other property be thereafter constructed, not obliging (Id.).
- 75. Dagett v. Champney, 106 NYS 892; Higgins v. Street \[Cok\]. 92 P 158. Mere sending by mere failure to build. Morris v. Healy 112 590 LANDLORD AND TENANT SS 8. 10 Cur. Law.

not relieve him. \[93\] A subtenant yielding possession in good faith to the paramount title of the original landlord asserting a forfeiture may recover of his lessor, \[94\] but not if he participates in securing the forfeiture. \[95\] A landlord is not liable as for an eviction unless the premises are surrendered, \[94\] which surrender must be made while the conditions constituting the eviction continue, \[97\] and within a reasonable time after the commencement thereof. \[98\] A provision authorizing the landlord to terminate lease upon payment of a specified sum is not a covenant to pay such sum as liquidated damages upon eviction. \[99\] Lessee cannot recover punitive damages for an eviction where he is using the premises for an unlawful purpose. \[99\] Only the tenant can recover for a wrongful eviction. \[91\]

_Forfeiture._ See 8 C. L. 699--As a general rule, forfeitures are not favored in equity. \[92\] While one succeeding to the landlord's interest may usually exact a forfeiture under circumstances which would authorize the latter to terminate the lease, \[93\] a purchaser subject to the lease cannot declare a forfeiture for nonpayment of rent reserved to the vendor. \[94\] The acts which constitute a forfeiture depend largely upon statute \[95\] and the terms of the lease, \[96\] but are usually nonpayment of rent, \[97\] or

house habitually flattened to the telephone and reconstructing of building on adjacent conversations of the defendant's wife, and led, wall on one side of leased hotel was made use of the information thus acquired frequently to insult her. Despite complaint,

perarily unfit for use, but furniture was not the landlord neglected to dismiss the super-removed and lease remained in possession intended, whereupon the defendant abandent for a part of time, held that doned the premises. Held, the rent could not be recovered. \[94\] For , Murdock, SS N. Y. Law

Misc, 595, 104 NYS 883.

Jour, No. 55. The doctrine of constructive eviction was established in an early case

SS7. Parke v. Proby, 130 Ill. App. 571.

where the landlord harbored immormal perseus. Pendicon

remaining in possession for five months, v. Dyett, & Cow. \[N. Y.\] 727. Though criticized

hold not a wavier where leaseor was at-for a time (Ogilvie v. Humil, & Hill III, Y. 52),

tempting to repair. Kraussl v. Fife, 105 64: Royce v., Ouggenheim, 106 Mass., 201, 205,

NYS 834.

8 Am. Rep. 322), the doctrine has persisted

80, Harrison v. Jordan, 194 Mass. 498, 80

(Cohen v. Dupont, I Sandt, (N. Y.) 360: Sully

NE 804.

v. Schmitt, 147 N. Y. 248, 49 Am. St. Rep. 659, 5

80. Especially where lease prohibits such Columbia L. R. 648), and has been applied to

use. Schultv. Lewis \[Colo.\] 90 P 1030,

the maintenance of a long series of minor

91. Where lease husband terminated lease nuisances (Cohen v. Dupont, I Sandt. \[N. Y.\] 260), or of single major nuisances (Duff v. Humil, 16 NYS 163; "Palman v. Murphy, 120

recover for eviction where she voluntarily NY 345; Wade v. Herndl, 127 Wis. 544). The

fetti after goods were removed. Butler v.

retention of an improper servant may, therefore, constitute a constructive eviction, that

82. Strict and leaseal forfeiture for non-is, when the servant's acts constitute a payment of rent is not favored in equity.

material impairment of the tenant's benefits.

Pattinson v. Northern Trust Co., 230 Ill. 234,

dclai enjoyment of the premises (Humes v. 82 NSE 837. Forfeiture of lease will not be Gardner, 23 Miles. \[N. Y.\] 333), and from the

sustained in equity where rent, for nonpay-landlords' knowledge thereof in an intention on

then of which forfeitures is demanded, has

hls part to evict may be implied (Hanas v. 87 NYS 411). The courts have prop-

by offset or laseal forgevation having dis-

crienary power. Chicago R. Equipment Co.

treme limits (Seaboard Reality Co. V. Fuller, 33 Miles. \[N. Y.\] 109), and the proof of the

App. 833.

principal case would not seem to justify its

93. Where leasee fails to pay purchase application.--From & Columbia L. R. 65.

money which under lease "would-entike him

83. Because damp because of how or water

to a deed, assignee of leaseor who also

into house during heavy rain, or because re-

scured dead may recover possession for non-taining wall became dislidated. Jackson v.

payment of rent. McFarlane v. Kirby, 28 Stewart, 31 Pa. Super. Ct. 85.

84. Though the secretly wished to get rid

of 10 Cur. Law. LANDLORD AND TENANT SS 8.

taxes," assignment, or subletting without landlord's consent," failure to make repairs,1 etc. The use of the word "re-enter" in a lease of modern form does not rebut the presumption that the parties contracted with reference to existing laws.2 A subletting of a part of the premises does not work a division of the covenants of the original lease.3

While the acceptance of rent up to the time of notice declaring the forfeiture,4 or to the time of issuing the writ for possession where a specific number of days must elapse after notice,5 does not waive the forfeiture, acceptance of rent occurring after the acts of forfeiture,6 or the commencement of an action for the collection thereof,7 with full knowledge of the facts,8 constitutes a waiver.

A strict forfeiture is usually required unless waived,9 but one seeking a forfeiture for an unlawful sale of liquors on the premises need only produce proof required in civil actions generally.10

The forfeiture of a lease under its terms does not release the sureties on the tenant's bond as depriving them of security in that they could not exercise the option of purchase.11

Footnote 10: Cur. Law. LANDLORD AND TENANT SS 8.

\_Notice to vacate and demand of possession._50e s C. L. ess_--Where a notice is necessary to terminate a lease,12 such notice must be given 18 by the proper person.14

Footnote 10: Cur. Law. LANDLORD AND TENANT SS 8.

taxes," assignment, or subletting without landlord's consent," failure to make repairs,1 etc. The use of the word "re-enter" in a lease of modern form does not rebut the presumption that the parties contracted with reference to existing laws.2 A subletting of a part of the premises does not work a division of the covenants of the original lease.3

The notice must be unqualified \[15\] and must clearly and unequivocally show an intention to terminate the tenancy.\[16\] It must begin and end at the proper time,\[17\] the length of notice depending largely upon statute and the nature of the tenancy.\[18\] A notice may be waived by the subsequent acts of the party giving the same.\[19\] \_Renewal or extension under express agreement.\_See \[8\] C. L. \[99\]--A covenant for renewal must be definite as to the terms of the new lease,\[20\] but if so a perpetual right of renewal may be given.\[21\] The option to renew passes with the \]leasehold \[22\] and is binding upon one succeeding to the landlord's interest.\[23\] The equity rule disfavoring forfeitures has no application to the loss of the right of renewal,\[24\] and hence the option must be timely exercised,\[25\] unless the default is caused by the landlord \[26\] or is waived by him,\[27\] and in strict conformity with the offer.\[28\] Equitable right of renewal may be asserted before a justice of the peace in North Carolina.\[20\] Election to exercise the option may be implied from the tenant's acts,\[30\] must be brought home to the landlord,\[31\] and possession to be equivalent to notice of election must be binding on parties and their "personal rep- (resentatives." lesser's grantee may terminate on notice, Adler v. Lowenstein, 52 Mise. 556, 106 NYS 932), 102 NYS 492. \[15\] Notice giving lessee the option of quitling or of continuing at increase rental is insufficient Columbia Brew, Co, v. Miller, 124 Moto. App. 84, 101 SV7 711. \[16\] Letters to landlord stating that tenant would have to vacate premises, as a part thereof was to be taken by city, with request to accept rent to a day mentioned with suggestion of an agreement for future, held in- \[17\]. Furtherall v. Armour \[Pa.\] 66 A 1001. \[17\] Under Hurd's Rev. St. 1895, c. 80, 5, providing for 60 days' notice to terminate tenancy from year to year, notice for immediate possession is insufficient. Streit v. Fay, 230 Ill. 319, 82 NE 648. Notice to terminate tenancy from month to month must correspond with beginning and end of term. Hanks v. Workmaster \[N. J. Law.\] 66 A 1097. \[18\] Where tenant enters into possession under a lease untenforfeible under statute of frauds, a month's notice is sufficient. Poole v. Johnson, 31 Ky. L. R. 165, 101 SV95. \[19\] Payment of rent to agent after notice to quit held not to bind landlord. Finkelstein v. Faybik, 107 NYS 67. \[20\] Coverant providing for advanced rent to be based upon revaluation, without stating how or when such revaluation should be determined, held void for indefiniteness. Streit v. Fay, 230 Ill. 319, 82 NE 648. \[21\] Hoff v. Royal Metal Furniture Co., 117 Arp. Div. 884, 108 NYS 371. \[22\] Where lease to partnership contained unrestricted option of renewal, and one part- (if assigned his interest in partnership to other, latter could exercise option. Barbee v. Greenberg, 114 N. C. 430, 57 SE 125, 23. Covenant of lease to renew is a cove-nant real passing with reversion. Parker v. Gortaotowsky, 127 Ga. 560, 56 SE 846. \[24\] I. X. L. Furniture & Carpet Installment House v. Bereta \[Uttah\] 91 P 279. \[25\] Where lease is renewable upon lease's election "at the expiration of the term," election must be made before or at the very time of expiration and cannot be made there. After. I. X. L. Furniture & Carpet Installment House v. Berets \[Utah\] 91 P 279. \[26\] These provides for additional term on written notice of election on or before a certain day, 10 Cur. Law. LANDLORD AND TENANT SS 8. 593

actual, visible, and exclusive.\[32\] Where tenants in common join in lease as parties of the first part, notice of election served upon survivor is sufficient.\[33\] Whether a written lease is necessary to effectuate the right depends upon the intent of the parties.\[34\] Where the lease gives the tenant an option to occupy for two additional years, possession after expiration of the term will be deemed pursuant thereto.\[35\] An option of renewal may be waived.\[36\] Where the tenant fails to exercise the option, his rights and obligations after expiration of his term are governed by the general principles relating to holding over.\[37\] The exercise of an option to extend a lease does not create a new lease.\[36\] An assignee under an invalid assignment cannot exercise the option.\[39\] Breach of covenant not to assign precludes lessee from exercising the option.\[40\]

_Holding over without agreement.\[ See 6. C. L. 601\]_--Where a tenant holds over after the expiration of his term,\[41\] the landlor may treat him as a trespasser,\[42\] or as a tenant from year to year,\[43\] unless a different contract of leasing has been made,\[44\] but a notice of increased rental will not bind the tenant where he dissents thereto.\[45\] Where, under the terms of the lease, a holding over continues the lease for another year, the lessee cannot limit the effect of such holding over.\[46\] The option of treating a tenant holding over as a tenant for a new term is available only to one sustaining to the tenant the conventional relation of landlor,\[47\] and hence is unassignable separate from the reversion.48 In Illinois a tenant willfully 49 holding over is liable in double damages, and the fact that the premises had been leased to another does not prevent landlord from recovering such damages, where possession was not to be given to new tenant until defendant surrendered.50 The fact that the landlord has leased the premises to another to take effect at the expiration of the current term does not prevent recovery of stipulated damages for holding over.51

SS 9. \_Landlord's remedies for recovery of rent and advancements. Parties and procedure generally.56_Sec 8 C. L. 692--Rent for a dwelling house occupied by a tenant and his family is a claim for necessaries for which attachment may issue in Ohio.52 An action for rent 52 may be maintained byessors as copartners though the word "incorporated" appears after their name in the lease where the same is not signed as by a corporation and no one was misled.54 On appeal to the circuit court in Missouri from an action for rent and possession in the justice court, judgment may be rendered for rent acerning up to the time of hearing.85 A provision waiving the right of appeal in an action for rent held applicable though eviction was set up as a defense.55

\_Distress.\_See 8 C. L. 692--Distress lies to recover rent 67 due,88 though a note therefor has been accepted by the landlord,89 but in Illinois it will not issue to recover damages for breach of covenants other than for payment of rent.90 While furniture sold to the tenant under an instalment contract and placed in the leased house as a part of the equipment is subject to distress,61 goods held under judicial process,62 or which have been held by the tenant as baillee but which have been re-

between them, for there is none even be-

BHG. & Cont. Co. v. Kinnerk \[Mo. App.\] 105

tween the holdover and the landlord before

SW 673. Where, in action for rent and possession, there is no issue raised as to pos-

v. Littlefield, 51 N. Y. 539, nor will the law

session by tenant, it is proper to render judg-

raise an assumption from the mere occupation

ment for rent to date of judgment without

of the premises (Hill v. U. S., 149 U. S. 593,

affirmative proof of possession. Id.

37 Law. Ed. 862; Hurley v. Lamereaux, 29

38 Minn. 138), and since summary proceedings

Where there are special facts which preclude

in New York can be brought only by a land-

lord against to tenant (Imbert v. Hallock, 23

appeal, and lease fails to assert same in

How. Pr. \[N. Y.\] 456), and no action lies

response to rule to show cause why appeal

against the lease, who does not ovenant to

show not be stricken, the rule may be

give actual possession (Gardner v. Ketelas, 3

3 Hill \[N. Y.\] 38, 38 Am. Rep. 637)--From 8

case v. Clay, 5 Bing. 440), the lease's proper

record s is ejectent (Gardner v. Ketelas, 3

Hill \[N. Y.\] 38, 38 Am. Rep. 637)--From 8

Columbia L. R. 332.

48 United Merchants' Reality & Imp. Co. v.

Roth. 107 NYS 611.

49. To render tenant liable under Hurd's

Rev. St. 1905, p. 1296, & 30, $, holding over

must be Wilful. Alexander v. Loeb, 230 Ill. 454, 82 NE

454, 82 NE

50. Alexander V. Loeb, 230 Ill. 454, 82 NE

01.

01. Thomas v. Wightman, 129 Ill. App. 305.

01. As provided in 5521, Revised Statutes,

and does not lose its character as a claim

for necessitates by tenants moving out dur-

ing month and renting and occupying anoth-

er house. Smith v. Getz, 9 Ohio C. C. (N. S.)

321.

001. Complaint held to state cause of action

for rent though improperly blended with

action against tenant and his surtees on

stay bond given in summary proceedings.

Blackmore v. Winders, 144 N. C. 212, 56 SE

874.

001. Julicher v. Connelly, 52, Misc. 655, 102

NYS 620.

65. Statutes construed, Goesse & Remmers

BHG. & Cont. Co. v. Kinnerk \[Mo. App.\] 105

SW 673. Where, in action for rent and pos-

session, there is no issue raised as to pos-

v. Littlefield, 51 N. Y. 539), nor will the law

session by tenant, it is proper to render judg-

raise an assumption from the mere occupation

ment for rent to date of judgment without

of the premises (Hill v. U. S., 149 U. S. 593,

affirmative proof of possession. Id.

37 Law. Ed. 862; Hurley v. Lamereaux, 29

38 Minn. 138), and since summary proceedings

Where there are special facts which preclude

in New York * 10 Cur. Law. Landlord and tenant $ 9. 595 delivered to the bailor, \[85\] are not. Where mortgaged chattels moved by the mortgagor onto the premises are seized in distress and sold, the proceeds in Delaware must be applied to the payment of rent first. \[64\] Goods clandestinely or fraudulently removed from the demised premises may be followed and distrained. \[65\] In Georgia the writ will issue before the rent is due where the tenant is removing the crop from the premises. \[66\] Replevin lies to recover property wrongfully seized for rent. \[67\] The warrant must be issued \[85\] and the issues created by a counter affidavit tried \[85\] by a court having jurisdiction. The warrant must be served as provided by law. \[70\] An abandonment of a levy under a mistaken belief that it is irregular does not bar a subsequent levy. \[71\] A distress warrant operates as a judgment and a fi. \[72\] unless a counter affidavit is filed, in which case the proceedings becomes an action for rent. \[73\] After the warrant has been converted into mesne process by counter affidavit, it is amendable as other such processes. \[74\] Tenant cannot dismiss a levy on the ground that it is excessive. \[75\] A lien obtained in good faith by levy of distress warrant pursuant to a lease giving the landlord a lien and the right to distrain is not affected by filing of petition in bankruptey by tenant. \[76\] _Liens and securities for the payment of rent_. \[85\] C. L. \[60\]--The landlord's lien given by the Iowa Code attaches as soon as the personal property is brought onto the premises and becomes security for the entire rent. \[77\] While the priority of the landlord's lien given by state statute for rent due at the time proceedings in bankruptcy are begun is preserved by the bankruptcy act, it has preference only over claims not specified therein to be of higher right. \[76\] The landlord owes no duty to enforce his lien against any particular property. \[78\] The landlord's lien on the crop for rent \[80\] is enforceible against a purchaser with notice, \[61\] the burden resting on the

- 63 Walsh V Philadelphia Bourse, $2 Pa. 71, Wickchant v. Richmond Standard Steel Super. Ct. 48. 64. Rev. Code 1852, amended 1893, p. 874, **72**. Dislussinal of counter affidavit terminates case and no judgment can be entered. \[65\] **65**. Open removal of tenant's goods from denissed premises in daytime is not a clan- destine or Traudulent removal, and, without nor, is not sufficient to justify landlord in following and distraining same, McCrossen v. Rellly, 33 Pa. Super. Ct. 628. 66. Affidavit for distress warrant, which alleges that tenant "is removing his crops from the premises so rented whereby said rent is now due and unpaid," comples with cliv. Code 1859, $124, authoring lesser to distrain before rent is due where tenant is removing crop from premises. Smith v. 67. 68. Being preserved by $67 of Bankruptcy Act of April 19, 1981, P. L. 88, held applicable. Drumgoole v. Lyle, 30 Pa. Super. Ct. 463. 68. Any justice of the peace in county where debtor resides or has property may issue warrant. Dean v. Donalson \[Ga. App.\] 58 SE 679. Held that neither city court of Fayetteville nor clerk thereof has jurisdiction to issue. Woolsey v. Lawshe, 1 Ga. App. 811, $7 SE 1039. Distenses being a harsh remedy, inferior courts cannot issue same without express authority. Id. \[69\] **69**. Justice issuing distress warrant may try issue made by counter affidavit unless amount claimed exceeds $100, whether debtor resides or has property within his district or not. \[Ga. App.\] $8 SE 679. Execution of distress writ after sandwich is valid where tenant prevents service between sunrise and sunset. Pickering v. Breen, $1 Pa. Super. Ct. 280. 69. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 68. Any justice of the peace in county where debtor resides or has property may issue warrant. Dean v. Donalson \[Ga. App.\] 58 SE 679. Held that neither city court of Fayetteville nor clerk thereof has jurisdiction to issue. Woolsey v. Lawshe, 1 Ga. App. 811, $7 SE 1039. Distenses being a harsh remedy, inferior courts cannot issue same without express authority. Id. \[69\] **69**. Justice issuing distress warrant may try issue made by counter affidavit unless amount claimed exceeds $100, whether debtor resides or has property within his district or not. \[Ga. App.\] $8 SE 679. 70. Execution of distress writ after sandwich is valid where tenant prevents service between sunrise and sunset. Pickering v. Breen, $1 Pa. Super. Ct. 280. 69. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 60. 61. 63. 64. 66. 68. 69. 61. 64. 67. 69. 61. 65. 66. 68. 69. 61. 67. 68. 69. 61. 6 596 LANDLORD AND TENANT SS 9 10 Cur. Law.

landlord to show notice.*Merchant's goods sold in good faith and in regular course of business are relieved from the lien in Texas.*\[83\] In North Carolina the lien exists only for rent on lands leased for agricultural purposes.*Ownership and a lien are inconsistent.*\[85\] The lien may be waived * or limited.*\[97\] Before distress warrant has been lucid,-bailor may remove bailed property from the premises without paying rent due.*\[88\] In New Jersey rent, if certain in amount,\*\[89\] must be paid by officer levying execution before chattels can be removed from the premises.

The lien must be enforced by the proper proceedings.*\[90\] A copy of the lease need not be attached to a complaint to enforce the lien.*\[91\] Where in foreclosure of landlord?s lien a receiver is appointed and takes possession of a store, a complainant who has been paid in full has no interest in an accounting.*\[92\] In foreclosing a lien, questions not within the province of the jury must not be submitted.*\[93\]

In many states the landlord has a lien on the crop for advancements made in the production thereof *\[94\] which is frequently made superior to mortgages,*\[95\] but such preference may be waived.*\[96\] Such lien has been held analogous to a chattel mortgage in Missouri,*\[97\] and hence must be recorded or filed for record or possession taken

edge that crop was grown on leased premises * supplies he would only hold crop for the held to put on inquiry. Maselzer v. Swan, 75 \*and rent, leased could not increase rent by Kan, 496, 89 P 1037. Where purchaser has \*adding thereto unpaid balance of rent for route of facts which would put reasonably \*previous year. Beattie v. Hughes \[Ark.\] 101 \*pudrell man on inquiry, he is charged with \*s of crop to be effective against bona fide purchaser." In Kentucky the lion must be enforced within 120 days after end of the term."

When executions issue to foreclose a landlord's special lien, the foreclosure is final unless converted into mesne process by counter affidavit.1 After issue has been formed affidavit may be amended as other pleadings.2 After issue has been created by a counter affidavit, the general rules of evidence are admissible.3

SS 10. \_Landlord's remedies for recovery of premises.\_See * C. L. \*\*\*-A tenant in peaceable possession cannot be forcibly dispossessed though his term has expired.4 Injunction to restrain trespass cannot be invoked to recover possession of a tenant holding over.5 Where a tenant repudiates his tenancy and denies his landlord's title,6 the latter may commence an action to recover possession without waiting for expiration of the lease.7 A lessee condemned in ejectment to vacate is not entitled to a suspensive appeal unless he has set up a special defense duly verified,8 and the appeal must be taken within twenty-four hours after rendition of judgment,9 and the statutory bond be given.10 A dispossession in an action based upon a complaint failing to allege jurisdictional facts renders the landlord liable in trespass.11 A judgment of dispossession in New York for nonpayment of rent and taxes should be modified where the taxes were paid pending the proceedings.12 Where an amica-ble judgment in ejectment carrying costs is entered pursuant to the terms of the lease, the tenant may claim a debtor's exemption under the Pennsylvania statute.18

\_Summary proceedings.\_See * C. L. \*\*\*-Summary proceedings for the recovery of possession of the premises upon the expiration of the term14 or the nonpayment of rent18 are provided in many states. To authorize these proceedings the conventional

**98. Hence, where it was neither recorded**

**4. Where buildings and goods of tenant**

nor filed for record as required by Rev. St. are forcibly removed, lessee may recover for 1899, $ 2404 (Ann. St. 1906, p. 1980, nor ).

passession of crop taken, Saunders v. Ohl-

Brown, 75 Kan, 678, 90 P 277.

hausen (Mo. App.) 106 SW 541. Fact that

**5. Montaque v. Hood \[S. C.\] 58 SP 167.**

lease requested lessor to assist in harvest-

ling crop held not to show that tenant sur-

readered possession of crop. Id.

**99. Under Ky. St. 1903, $ 3232, providing**

that landlord's lien for advances shall not

Sass v. Thomas \[C. C. A.\] 152 F 627.\*\*

extend more than 120 days beyond term,

T. Sass v. Thomas \[C. C. A.\] 152 F 627.\*\*

and $ 3234, that same may be enforced by

distress or attachment, delivery of possession of crop to landlord held equivalent

La. 1070, 44 S 891.

to legal proceedings to enforce lien. Marques v. Ladd, 30 Ky. L.' R. 1142, 100 SW SW 305.

**1. Boyce v. Day \[Ga. App.\] 59 SE 930.**

To be effective counter affidavit must affirm-

lively show that no lien exists, or that

amount claimed is too large. Id.

**2. Affidavit in foreclosure of landlord's**

special lien given under City. Code 1895,

$ 2800, may be amended so as to claim for

horse sold instead of for use thereof. Boyce v. Day \[Ga. App.\] 59 SE 930.

\*\*3. Where lessee under crop lease, which

provided that title to crop should remain in

lessor until sold and that leaseor should de-

duct advance, assigned his interest on lsue

between assignee and lessor as to lessee's liability for an advancement, question

whether another was joint owner or part-

ner with lessee is immaterial. Loute Chung

v. Stephenson \[Or.\] 89 S 386, Where landlord forecloses special lien for supplies fur-

nished tenant to make the crop, and a

counter affidavit is filed by creditor of

tennant, execution issued in foreclosure is

not admissible in proof of claim. Martin v.

Nichols, 127 Ga. 705, 56 SE 995.

598 LANDLORD AND TENANT SS 10. 10 Cur. Law.

relation of landlord and tenant must not only exist \[18\] but must be alleged \[17\] and proven \[18\]. In New York the complaint must describe petitioner's interest in the premises \[19\]. Where the exclusive jurisdiction of such actions is vested in a particular court, the exercise thereof cannot be restricted by process from other courts \[20\]. The precept must be served \[21\] in the manner prescribed by statute \[22\] upon the person served with the notice terminating the lease \[23\]. Before summary proceedings for possession for nonpayment of rent or taxes can be instituted in New York, a demand for the rent due must be made \[24\] by a person duty authorized to make the same and to receive payment \[25\]. Where the answer raises a material issue, a continuance may be allowed to enable defendant to prepare for trial \[26\].

_Forcible entry and unlawful detainer \[28\]_ S C. L. 607--In many states a landlord \[27\] or his successor in interest \[28\] may maintain an action of forcible entry and unlawful detainer to recover possession upon nonpayment of rent \[29\] on demand, if demand is necessary \[30\], and after service of notice to quit \[31\]. The action will not lie in Iowa to

due and excessive interest are premature.

23. Where it appears in summary proceed-Parker v. Gortaowsky \[Goa\_\] 59 SEP 286.

ings that notice to terminate was served 16, Meyerhoffer v. Baker, 51 Misc. 598,

on one tenant who was not served with the 101 NYS 24; Robertson v. Birda, 101 NYS 75.

precept, while tenant served with precept Hence there can be no recovery where, it was not served with notice, not being a co-lease is valid, leasease has right to remain.

parparrishy, action was properly dismissed. Robertson v. Birda, 101 NYS 75.

17. Proceedings under landlord and tenant 495.

act (P. L. 1903, p. 27, p. 2). Binder V. Azazov

24. Under Code Civ. Proc.' 2231 (2), de- \[N. J. Law\] 5 C. A. Patashar of present

mand after institution of proceedings is in-ownership of premises in plaintiff and that

sufficient. Glans v. Schaefer, 102 NYS 518.

defendant is in possession under agreement

25. Troughs Reidly Co. v. Troughs Hotel

with former owner, without a showing as to

& Apartment Co., 104 NYS 748.

how ownership was transferred, held insur-

26. Held error to refuse one day continuo-

fclient. Id. Such showing being jurisdic-

ance to enable defendant to prepare for

tional, cannot be supplied by proof on trial.

trial where a material issue was raised by

Id. Aflafavi held insuffient to support

answer. Trunk V. Howard Laundry Co., 107

out as assigns of lease. Id.

18. Where summary proceedings to re-

01. Under Millu Ann. St. & 1973, subd. 5,

cover real estate is based on relation of

landlord and tenant, plaintiff must establish

entry and detainer against tenant whose

such relation. Nagelsenv v. Shaw \[Mich.\]

term has' expired, though he has leaseed

14 Det. Leg. N. 35, 114 NY 343.

19. Failure of petition to show petitioner's

\[Goa\_\] 92 P. 720. Where lease agrees to

interest is jurisdictional under Code Civ.

surrender possession at end of term and

Proc. & 2235, and hence not waived by

anyser. Elidean Reality & Construction Co.

or without legal process, lease held or-

v. Bensamon, 107 NYS 128. Petition showing

cuded from asserting that new lessee only

that petitioner is lease under lease bearing

could maintain action for forcible entry. Id.

date prior to time lease is alleged to have

acquired title hold defective. Id. Under

action will lie in favor of vendee to recover

Code Civ. Proc. & 2235, averment that petitioner was

to him and he has never been in possession,

loses to defendants in insufficient. Matthews v.

Thomason v. McLaughlin \[Ind. T.\] 103 SWV

595.

001. Since exclusive jurisdiction of dis-

001. Under Rev. Codes 1905, & 8406, subd. 4,

possessory actions by landfors where

monthly or yearly rent or rent for mex-

jpred term does not exceed $50 as vested in

of focribe detainer, McLeain v. Nurnberg \[N.

the justice court, exercises thereof cannot be

D.112 NWV 243.

affected or barred by process from other

30. Ordinarily, demand is not necessary

courts. Campbell v. Hart, 118 La. 871, 43 S

to enable leaseor to recover premises under

53. Ok, 4208, for nonpayment of rent. Union

01. Where, on appeal from final order in
    10 Cur. Law. Landlord and tenant $ 12.

599

recover of a tenant at will by operation of law.\[32\] Tenant cannot complain that suit is for unearned rent and for possession where the judgment is not entered until the expiration of the period for which rent is claimed.\[33\] The relationship of landlord and tenant must be shown,\[34\] and evidence of nonexistence is admissible under the plea of not guilty.\[35\] There must be no material variance between the allegations and proof.\[38\] Where action for rent is joined with a suit for unlawful detainer, surrender of possession terminates latter action but not former.\[37\]

SS 11. _Rights and liabilities between landlord or tenant and third persons._ See $ C. L. ### Since the right of possession is vested in the tenant and not in the landlord, the former\[38\] may recover for a disturbance thereof,\[39\] even though the latter consented to the entry,\[40\] but where the landlord is to receive a part of the crop as rent, he may recover for the destruction thereof.\[41\] A ballor is not bound by an unknown agreement between lessor and lessee that the latter and those claiming under him should not remove property from building without-the lessor's consent.\[42\] Where the landlord converts the goods of a ballor before he distrains the same,\[43\] the latter is not limited to an action of replevin.\[44\] The landlord cannot recover of the wife of the tenant for injury to the premises from the use thereof without proof of affirmative negligence.\[45\]

SS 12. \_Crimes and penalties.\_See $ C. L. ### In Mississippi one willfully enticing away a renter is criminally liable,\[46\] and by statute in Georgia a cropper is prohibited from selling any part of the crop without the landlord's consent until all advancements in producing the same\[47\] and the rent have been paid.\[48\] Where the $ 12. \_Crimes and penalties.\_See $ C. L. ### In Mississippi one willfully enticing away a renter is criminally liable,\[46\] and by statute in Georgia a cropper is prohibited from selling any part of the crop without the landlord's consent until all advancements in producing the same\[47\] and the rent have been paid.

lease is void the tenant is not criminally liable for abandoning the crops before payment of advances.\[49\] A successful defendant in a prosecution for employing another's cropper is entitled in Georgia to costs and attorney's fees if properly demanded and allowed.\[50\]

Land Patents, see latest topical index.

LARCENY.

1. Common-Law Lareeny, 600.

1. Statutory Lareeny, Theft, etc., 601.

1. Indictment and Prosection, 602.

1. Indictment, 602.

1. Indictment, 602.

1. Admissibility of Evidence, 603.

1. Trial, Sentence, and Review, 609.

The offenses of embezzlement \[51\] and obtaining money by false pretenses,\[52\] though denominated lareeny by the statute, and matters common to all crimes,\[53\] are elsewhere treated.

SS 1. Common-law lareeny. See S C. L. 609.Lareeny is the taking \[54\] and carrying away \[55\] of the personal property \[56\] of another \[57\] without his consent,\[58\] unlawfully,\[59\] and with a felonious intent,\[60\] entertained at the time of taking,\[61\] to deprive the

49. Married woman cannot be held criminally liable under Revisal 1905, $ 3867. State v. Robinson, 143 N. C. 620, 56 SE 918.

01. He must present such issue on trial intent, he is guilty of lareeny, State v. Soper and have same allowed by jury, Jones v.

\[Mo.\] 106 SNV 8. Lareeny may be committed by the wrongful taking of property by its

51. See Embezzlement, 9 C. L. 1067.

01. See False Pretenses and Cheats, 9 C. L.

01. See Criminal Law, 9 C. L. 851; Indictment and Prosection, 10 C. L. 57.

01. State v. Wolf \[Del.\] 66 A 739: State v.

01. Aftate v. Wolf \[Del.\] 66 A 739: State v.

01. Stewart \[Del.\] 67 A 786; Franklin v. State

\[Ga. App.\] 59 SE 835: State v. Weatherman, 202 Mo. 6, 100 SW 482. Where one acquires possession of check by promising to deliver it to owner, his subsequent appropriation of

7. Stewart \[Del.\] 67 A 786; State v. Weatherman, 202 Mo. 6, 100 SW 482; Cohoe v. State

1. State v. Wolf \[Del.\] 66 A 739. State v.

1. State v. Wolf \[Del.\] 66 A 739: State v. Stewart \[Del.\] 67 A 786; State v. Weatherman, 202 Mo. 6, 100 SW 482. A warehouse receipt is the subject-matter of lareeny. Currie v. State \[Ga. App.\] 59 SE 926. Where one detaches a future from its connection with the reality, retains possession of it and carries it away with intent to steal it, he is guilty of larey, although the severance, taking, and carrying away are one con-

1. State v. Wolf \[Del.\] 66 A 739: State v.

1. State v. Wolf \[Del.\] 67 A 786; State v. Weatherman, 202 Mo. 6, 100 SW 482. Where an agent

1. State v. Wolf \[Del.\] 66 A 739: State v. Weatherman, 202 Mo. 6, 100 SW 482. Where an agent

1. State v. Soper
   10 Cur. Law. LARCENY SS 2. 601

owner thereof. \[82\] and to convert the same to the use of the taker. \[83\] The taking need not be from the actual possession of the owner, if it is without his consent and the other elements of the offense are present. \[84\] The property must have some value, \[85\] but it is immaterial that the owner suffered no loss, or that the property was recovered, \[86\] or that part of it was returned. \[97\] When the property is taken and carried away with felonious intent, the larceny is complete, and what defendant may thereafter have done with it is immaterial except in so far as it tends to show his guilt. \[88\] One who was not present when the crime was committed is not a principal. \[89\] A wife cannot be an accomplice to the larceny of her and her husband's community property. \[90\] A receiver of stolen goods is not an accomplice of the principal thief. \[71\] It is no defense that defendant committed forgery in accomplishing the larceny. \[72\] The distinction between larceny and embezzlement is that in larceny the felonious intent must exist at the time of the taking, while embezzlement is the felonious appropriation of property the possession of which has been lawfully acquired. \[18\]

SS 2. \_Statutory larceny, theft, etc.\_See * C. L. \[71\]. This section includes only those statutory larcenies which are mere variations of common-law larceny, and not those which are logically embraced in the definition of another offense. \[74\] Some statutes merely prescribe the punishment for larceny without defining the crime. \[78\] Other statutes specify the property which may be the subject of larceny, \[76\] make special provision relative to larceny of particular kinds of property, \[77\] define particular kinds of larceny, \[78\] and grade the offense according to the value of the property

subsequently appropriating it to his own

**78.** Defendant proposed to F.an exchange

use, is guilty of larceny. People v. Neff, 106

of vests, and upon receiving F's vest turned

NYS 147. Where one obtains property by

his back and took therefrom and retained a

promise to deliver it to the owner, animus

roll of bills and then returned vest fo F.

furandi at time of the subsequent conver-

It was held that if taking was without F's

sion by him is sufficient. State v. Levine, 79

knowledge or consent, or so suddenly as to

Conn. 714, 66 A 539.

preclude restatence before sportation, it

**62.** Malone V, State \[Thd. 1\] 81 NE 1089.

constituted larceny from the person under B.

**63.** State v. Wolf \[Deol.\] 64 R 738; State v. Weather-

& C. Comp. 1 800. State v. Reyner \[Or.\] 91 P

Stewart \[Deol.\] 67 A 786; State v. Weather-

& 901. But taking a watch from prosecuting man, 202 M 6, 100 SW 482,

witness' vest pocket but not severing chain

64. Rose v. State \[Tex. Cr. App.\] 20 Tex.

from vest is not such reduction to possession

Ct. Rep. 526, 106 SW 143.

& 65. State v. Stanley, 123 Mo. App. 284, 100

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep.

SVV 678. It must be shown that property

& 902, 105 SW 190. Nor was such offense com-

was of some value, either generally or

mitted where money was taken from prose-

specifically, to prosecector. Ayers v. State

vitro's pants, which were taken from under

\[Ga. App.\] 55 SE 924.

dead of his bed. Gibson v. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 967, 100 SW 776.

67. Cobbe v. State \[Neb.\] 113 NW 532.

There is a "private" steathing from the person

68. State v. Super \[Mor.\] 106 SW 3.

son within meaning of Texas statue, though

69. Fruyer v. State \[Tex. Cr. App.\] 99 SWV

committed in presence of others, if prosecue-

104.

tor is asleep or stupefied and spectators are

70. Warren v. State \[Tex. Cr. App.\] 19 Tex.

chiled by defendants' assertion that prose-

Ct. Rep. 268, 103 SW 583.

71. Bradley v. State \[Ga. App.\] 58 SE 1064.

Appl. 19 Tex. Ct. Rep. 864, 104 SW 897.

72. Currie v. State \[Ga. App.\] 59 SE 926.

01. Facets held not to constitute larceny but

1895, 1 178, is the breaking or entering any

to constitute embezzlement. State v. Casey

to entering, stealing therform anything of

\[Mo.\] 105 SW 645

74. See Embezzlement, 9 C. L. 1067; False

Pretimes and Che * \[82\] **C. L. 703**--An issue not raised by the indictment cannot be submitted to the jury. \[83\] What may be charged in an indictment under a statute,\*\* and the mode of charging the offense in such case, \[65\] must be determined by the terms of the statute. Where simple lareeny is included in a crime of greater magnitude, a conviction may be had of the former under an indictment for the latter, \[88\] the test being that the evidence required to establish the greater offense would prove simple lareeny as a necessary element.\*\* Thus, under an indictment on information for lareeny from the person \[88\] or from a store,\*\* our conviction may be had for simple or petit lareeny. . In Texas it is competent to prove theft by fraudulent pretext under an ordinary indictment for theft.\*\* Under the Oregon statute \[91\] an information stating facts constituting two different kinds of lareeny is demurrable, \[92\] but a failure to demur waives the defect.\*\* Where an indictment contains two counts charging burglary and lareeny from the house, a conviction may be had of the latter offense, although the evidence also shows defendant guilty of former.\*\* Where one person has the general ownership of property and another person a special ownership therein, the property may be alleged to be in \[83\] **C. L. 703**--An issue not raised by the indictment cannot be submitted to the jury.\*\* What may be charged in an indictment under a statute,\*\* and the mode of charging the offense in such case, \[65\] must be determined by the terms of the statute. Where simple lareeny is included in a crime of greater magnitude, a conviction may be had of the former under an indictment for the latter, \[88\] the test being that the evidence required to establish the greater offense would prove simple lareeny as a necessary element.\*\* Thus, under an indictment on information for lareeny from the person \[88\] or from a store,\*\* our conviction may be had for simple or petit lareeny. . In Texas it is competent to prove theft by fraudulent pretext under an ordinary indictment for theft.

10 Cur. Law. LARCENY SS 3B. 603

either," and ownership may be alleged in one who had the lawful possession and control of the property.at the time it was taken," although no responsibility rested on him for the loss thereof." Where community property of husband and wife is stolen while in the care and possession of the wife, the indictment should allege possession and ownership in her." In a prosecution for horse theft under the Washington statute," if the owner of the animal is unknown, the information may aver ownership in the state.1 An indictment or affidavit charging a single theft is not vitiated by the allegation that the property stolen belonged to different owners.3 The indictment must allege every essential fact necessary to constitute the crime,3 and the property must be described with such certainty as will advise the defendant of the charge against him and furnish a bar against a future prosecution.4 Generally the place of taking * and the quality of the goods * are not required to be alleged. (SS 3) B. Admissibility of evidence.See 8 C. L. 100.-The general rules of criminal evidence apply, including those relating to materiality and relevancy," and gov-

\*\*05. Martin v. State \[Neb.\] 112 NWV 285. 96. Bradley v. State \[Ga. App.\] 58 SE 1044. 112. 113.

604LARCNY $3B.

10Cur. Law.

erning the admission of evidence of intent,8 ownership of property,9 value,10 coercion of defendant,11 declarations,12 opinions of witnesses,13 hearsay,14 and res gestae.15

10 Cur. Law. LARCENY SS 3D. 605 Evidence relating to facts remote from the time of the offense is not admissible.\[18\] Evidence that human footprints were found around the place from which the property was taken is admissible, although they are not identified as defendant's.\[17\] In the prosecution of an officer of a corporation, the books of the corporation are not admissible as evidence against him without proof of his further connection with such books or the entries therein.\[18\] In a prosecution for theft of a horse, it is not error to admit evidence that defendant when he borrowed the horse also borrowed a saddle.\[19\] Evidence is admissible to show that another than defendant had au opportunity to commit the theft without the aid or knowledge of the latter.\[20\] A question of law cannot be propounded to a witness.\[21\]

(SS 3) _C. Effect of possession of stolen property_,\[22\] & C. L. 197 The possession of stolen property recently after the larency raises a prima facie presumption of guilt\[23\] which will sustain conviction it unexplained,\[24\] though it does not cast the burden of proof upon the defendant.\[25\] The prima facie case so established may be rebutted by a satisfactory explanation of how defendant came into possession thereof.\[26\] Whether such explanation is sufficient to raise a reasonable doubt of guilt is a question of fact.\[27\] The strength of the presumption depends to some extent upon the period that elapses between the theft and the finding of the property . in defendant's possession.\[28\]

(SS 3) _D. Sufficiency of evidence_,\[22\] & C. L. 198 The burden is upon the state to prove the guilt of the accused beyond a reasonable doubt;\[29\] it must prove by competent and satisfactory evidence\[21\] every essential ingredient of the offense.\[31\] Thus, it must prove the corpus delieti,\[32\] that the property taken was personal property,\[33\] that neither ownership nor right of possession was in defendant,\[34\] and that the taking was with felonious intent to deprive the owner of his property.\[35\] Value must

their falsity is admissible. People v. Calmey, 117 App. Div. 462, 102 NYS 714.

16. Evidence of accomplice that he went out with accused on might following larency and admissible, but he cannot testify as to what was in his mind or as to knowledge of their purpose or what they did. State v. Stewart \[Del.\] 67 A 786.

01. Huecker v. State \[Tex, Cr. App.\] 19 Tex. Ct. Rep. 167, 101 SW 804.

01. People v. Burnham, 104 NYS 725. Motion for rearravement depicted 120 App. Div. 388, 104 NYS 87.

01. Richardson v. State \[Tex, Cr. App.\] 19 85 E48.

103 SW 852.

20. Where larency was alleged to have occurred in defendants' winnerom while alculated, evidence that ledter while there had sexual intercourse with a woman is competent to show that woman had opportunity to take money, State v. McCarthy \[Mount.\] 92 P 521.

01. In prosecution for theft of rule, it was proper to refuse to permit prosecuting witness to answer as to who had management, care, and control of music while one W. was working it, witness being permitted to tell all facts relating to matter. Ellington v. State \[Tex, Cr. App.\] 89 SW 997.

01. State v. Wolf \[Del.\] 64 A 739; Miller v. People, 229 Ill. 876.

01. State v. Wolf \[Del.\] 64 A 739; Miller v. People, 229 Ill. 876.

V. Stanley \[Del.\] 67 A 786.

24. Science and Technology of the United States \[Astronomy, 1999\] 83.

01. State v. White \[Kan.\] 92 P 825; State v. Stanley, 123 Mo. App. 294, 100 SW 678; State v.

01. State v. White \[Kan.\] 92 P 825; State v. Stanley, 123 Mo. App. 294, 100 SW 678. Unex.

01. State v. Wolf \[Del.\] 68 A 739; State v.

01. State v. Wolf \[Del.\] 66 A 739; State v.

01. State v. Wolf \[Del.\] 67 A 789.

01. State v. Wolf \[Del.\] 67 A 789.

01. Evidence held not to establish' corpus delieti. Franklin v. State \[Ga. App.\] 59 SB 83.

01. State v. Wolf \[Del.\] 68 A 739.

01. State v. Wolf \[Del.\] 68 A 739.

01. Proscution for horse theft. State v.

01. Malone v State \[Ind.\] 81 NE 1099; 606 LARCENY SS 3D. 10 Cur. Law.

be shown but direct proof thereof is not essential. It may be shown inferentially,\[8\]Defendant's guilt may be proved by circumstantial evidence,\[8\] but if the evidence is entirely circumstantial, it must be shown to the exclusion of every other reasonable hypothesis.\[9\] While a conviction cannot be had simply upon a confession of guilt, a confession may be used in making out the corpus delici.\[3\] The evidence must conform to and sustain the allegations of the indictment. In the notes are collated cases applying or illustrating this rule.\[9\] In the notes also are collated cases involving the sufficiency of the evidence as a whole to warrant conviction.\[40\]

State v. Eddy \[YWash.\] 80 P 641. Felonious in-

tial evidence. Flagg v. State \[Tex. Cr. App.\]

tent must be proved beyond a reasonable

19 Tex. Ct. Rep. 266, 103 SW 855.

doubt Malone v. State (Ind.) 81 NE 1099.

38. Sowles v. State (Tex. Cr. App.) 19 Tex.

A conviction cannot be sustained when all circumstances are inconsistent with exist.

39. Description of property: The proof

ence of an animus frandini. Simmons v. must show that the property stolen answers

State \[Ga. App.\] 58 SE 1066.

**Evidence held sufficient to show felelelous**

MelDonald v. State \[Ga. App.\] 58 SE 1067.

latent to deprive owner of his property.

Malone v. State \[Ind.\] 81 NE 1099: Slododdd

in money, lawful currency of the United

v. State \[Ws.\] 412 NW 468. Evidence held

Suficient to sustain finding that defendant

dollars," is sustained by proof of theft of

obtained property with fraudulent intent

to two dollars in silver. Brittain v. State

convert it to his own use. Thompson v.

\[Tex. Cr. App.\] 20 Tex. Ct. Rep. 175, 105

State \[Ala.\] 43 S 115. In prosecution of

soumy auditor for grand larger liveness in auditing

tion as "inutely dollars of the lawful currency of the United States of America," suff-

made against county by a contract, eviciently proven by evidence that money was

demo held to warrant finding against claim

in 810 and 820 bills; that one of the bills had

made by defendant that he honestly believed

word "gold" on it, and rest of money was

that contractor was entitled to sum for

greenbacks." McDonald v. State \[Ga.

which warrant was drawn. People v. Neff.\], App. 58 SE 1067. Evidence held to show

106 NYS 747. Evidence held sufficient to

droke that a boy eleven years old

Rose v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep.

empty to entertain the criminal intent

525, 165 NW 143.

necessary to constitute theft. Binkley v. State

\[Tex. Cr. App.\] 18 Tex. Ct. Rep. 79, 100 SW

780. In a prosecution under .Pen. Code,

$ 528, forlorexy of funds of Insurance com-

road depot, and evidence shows that a sub-

pany, evidence held set to show felous

tentent to deprive or defendant company of its

property. People v. Moss, 187 NY 410, 80 NE

183. Finding that payment by officer

10

corporation of company's money in settle-

ment of litigation was in bad faith, with

intent to defraud company, held not sup-

ported by evidence. People v. Burnham, 104

NYS 725.

35. Ayers v. State \[Ga. App.\] 59 SE 824.

Evidence of price paid in connection with

exhibition of article to jury is sufficient to

warrant finding that article has some value. State v. Stanley, 123 Mo. App. 294, 100 SW

678. The fact that the thing stolen was a

$40 bill of United States currency proves

its value. Sowles v. State (Tex. Cr. App.) 20

19 Tex. Ct. Rep. 848, 105 SW 178. Evidence

that amount of money stolen was $72 is

sufficient evidence that $72 was the value

of the money. Gibson v. State (Tex. Cr. App.) 18 Tex. Ct. Rep. 167, 100 SW 776. Evidence held Sufficient to prove value. Currie

v. State \[Ga. App.\] 59 SE 926.

**36. State v. Wolf \[Del.\] 64 A 78. Fig.**

inous intent to deprive owner of his property

may be shown by circumstantial evidence.

Madone v. State \[Ind.\] 81 NE 1099.

**37. Glaze v. State \[Ga. App.\] 88 SE 1126.**

The proved facts to warrant conviction In

such case must be inconsistent with

inno-

cence. Riley v. State, 1 Ga. App. 651, 57 SE

103l. Where defendant admits the taking

and was found in possession of the stolen property, the case is not one of circumstant

and the possibility of the 10 Cur. Law. LARCENY SS 3E. 607

(SS 3) \_E. Instructions.\_See s C. L. 709. An instruction defining lareeny must include the element of felonious intent,\[41\] and where the question of intent is the only material issue, the instruction in relation thereto must be so specific that the jury will be able to pass upon it intelligently under pertinent rules of law and evidence.\[42\] In the absence of request, the different degrees of lareeny need not be defined.\[43\] Where the offense is properly defined in the indictment, the definition need not be repeated in the instructions.\[44\] Instructions should connect the facts proved with the indictment.\[45\]- They must conform to the evidence 40 and exclude all issues not raised by it,\[47\] but all issues raised by the evidence,\[48\] and all defenses supported by competent underclerk having charge of part of depot of corporation of grand lareeny ln first de- from which goods were. stolen. King v. gree, under Pen. Code, SS 528, subd. 2, for mis- State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 833, approximating company's funds. People v. 100 SW 387.

In prosecution for theft from the person, **Theft of cattle.** Rios v. State \[Tex. Cr. evidence held to support allegation in midlet. App.\] 19 Tex. Ct. Rep. 135, 101 SW 398.

ment that theft was privately committed. **Theft from the person.** Thomas v. State Black v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 168, 101 SWV. Rep. 866, 104 SWV 897.

40. Little sunfelement. People v. Meyers \[Cal.\] 41. Grand lareeny under Montana statue. App.\] 91 P 167; Miller v. People, 229 Ill., 376, State v. Sloan, 35 Mont. 367, 89 P 829. Failure 82 NE 391; State v. McKinney \[Kan.\] 91 P to include element of felonious intent is not 1068; State v. Arthur, 26 Mo. 72, 105 SWV cured by use in other parts of charge of 600; Titterington v. State \[Neb.\] 110 NWV 678; Martin v. State \[Neb.\] 111 NWV 285; used synonymously and without broader Territory v. Meredth \[N. M.\] 91 P.19 P.200.

type v, Kipp, 121 App. Dlv. 692, 106 NX 307; dedition. Id. Barbe v. Ter. \[Ock.\] 91 P 783; Elliston v. State \[Cz. Cr. App.\] 18 Tex. Ct. Rep. 171, 43. Buffchr v. Ter. \[Ariz.\] 89 P 415.

99 SWV 999; King v. State \[Tex. Cr. App.\] 18 44 Territory v. Meredth \[N. M.\] 91 P Tex. Ct. Rep. 833, 100 SW 387; Rucker v 731.

State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 167, 101 SWV 804; Miles v. State \[Tex. Cr. App.\] 12ency, an instruction as to the presumption 19 Tex. Ct. Rep. 311, 103 SWV 854; Warren v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 136, 105 SWV 817.

Possession of stolen property in connec- tion with other circumstances. Ross v. State \[Tex. Cr. App.\] 100 SWV 1198.

40. Instruction as to presumption arising from possession of property recently stolen warranton conviction. Sheffield v. State, 1 Ga. App.\] 135, 67 SE 698. Evidence held to prove by 123 Mo. App. 194, 109 SWV 678. Evidence that defendant, a country auditor, consigned with others to steal money of county and alleged offense. State v. Soper \[Mo.\] 106 SWV defendant aliding and assisting. People v. 136 Piscretor loaned money alleged to have been stolen to one of defendants it was no longer his property. Glasgow v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 34, 100 SWV 938.

01. Where all evidence indicates that defendant had present intent to appropriate App.\] 19 Tex. Ct. Rep. 271, 103 SWV 892; Disrupter v. State \[Tex. Cr. App.\] 105 SWV 198; Penriev v. State \[Tex. Cr. App.\] 20 Tex.

taking, it being sufficient to instruct that to warrant conviction there must have been In- 15 Ga. 785, 84 SE 692; Wiley v. State \[Ga. App.\] 59 SE 438; Currle v. State \[Ga. App.\] 19 Tex. Ct. Rep. 866, 104 SWV 897. It is proper to refuse to charge in regard to law of voluntary re- 194. Birty, State, 1Ga. App.\] 58 SE 585; that same property that was taken was returned. Elliston v. State \[Tex. Cr.

608 LARCENY SS 3E. 10 Cur. Law. evidence,\[49\] must be submitted. They should not assume facts\[50\] and must not be upon the weight of the evidence.\[51\] In Georgia a charge which so particularizes and argumentatively enforces upon the jury the inference of guilt as to amount to an intimation of opinion is reversible error.\[52\] The court must charge upon the burden of proof.\[53\] Where the case is one of positive testimony the court need not charge on circumstantial evidence,\[54\] but where the question of guilt is wholly dependent on circumstantial evidence, an instruction thereon should be given\[55\] without request.\[56\] The court need not instruct that conviction cannot be had simply upon a confession of guilt if the confession is supported by corroborative evidence.\[57\] An instruction must not be involved or misleading.\[58\] An incorrect statement of the evidence will vitiate an instruction.\[59\] The charge must be considered as a whole.\[60\] An erroneous instruction is not reversible error if not prejudial to defendant.\[61\] Defendant

vict defendant for any action done by him in self horse, which he did, paying money to regard to stolen property subsequent to defendant, no charge on circumstantial evidential, where there is evidence as to his sub- defence is required. Richardson v. State (Tex. Acp.) 103 NW 852.

his guilt. Vandergrift v. State (Ala) 413 SS 852.

S52. Where it is proved that part of prop-

Riley v. State, \[Ga App.\] 61, 57 SE 1031. Where

ery stolen was returned to the owner, it is

evidence merely shows that defendant had

not error to instruct that such return does

on possession of goods after taking and his

not preclude conviction. Cohoe v. State

statement claiming honest possession, court

\[Neb.\] 113 NW 852.

should instruct on circumstantial evidence.

49. People v. Burnham, 104 XYS 75, Where

Bordett v. State (Tex. Cr. App.) 19 Tex. Ct.

defendant testified that his connection with

Rep. 139, 101 SW 858.

stolen property was merely as a hired man

56. Glase v. State \[Ga App.\] 58 SE 1126.

to haul it, and that he did not participate in

57. Bowley v. State \[Tex. Cr. App.\] 19 Tex.

original talking, court should instruct that

It can, Rep. 145, 105 SW 178. Instruction

this is so he cannot be convicted. Burdett

state must prove taking without consent of

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 139,

owner, without reference to any statement

101 SW 988. In prosecution under Laws

defendant may have made in nature of con-

1897, p. 53, c. 55, 1, for taking pec mean

tension, was properly refused where owner

from another's land, charge must present

tension that he did not consent to taking.

defendants' defense that he had consent of

Riley v. State (Tex. Cr. App.) 18 Tex. Ct.

persons owning pecans and having control

Rep. 838, 100 SW 837.

of land on which they were growing. Burrows, V. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 139,

required to prove criminal intent held to be

95, 101 SW 322. Where there is testimony

involved and misleading. State v. Stanley,

which reasonably raises the issue of pur-

423 Mo. App. 294, 100 SW 678. Instruction

chase, the court must instruct upon that is-

as bearing of certain testimony on ques-

sue. Tankersley v. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 101 SW 97.

190. Instruction held erroneous as assum-

001.

001.

001. Instruction basile defendants' right to

stopa goods unsatisfactory. Miller V. People,

possession of property alleged to have been

51. Charge held unobetable. In this

respect, Bravach v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 137, 95 SW 994.

18 Tex. Ct. Rep. 137, 95 SW 994.

82. Civil Code 185, 9 4334. So held as to

following charge: "The state contends

90. Charge considered as a whole held not

- - that this defendant was seen by a

operation between the two thing, that is, if they found de-

carriu witness to take and start away and

randomt was principal with one T. in obtaining

tides testified to you about, that it was

afterwards found in a wagon the was in

charge of and driving, and that this is the

only way possible to account for the theft."

Johnson v. State \[Ga App.\] 58 SE 684.

53. Instruction that jury must find defendant

ants guilty beyond a reasonable doubt suffic

cient. Glasev v. State (Tex. Cr. App.) 19 Tex. Ct. Rep. 289,

Tex. Ct. Rep. 34, 100 SW 933.

of 872 in sliver and currency, failure to

54. Glasev w. State (Tex. Cr. App.) 1 10 Cur. Law. LIBEL AND SLANDER SS 1. 609

cannot complain of erroneous instructions as to embezzlement where he was convicted of larceny and not of embezzlement. \[62\] In the notes are collated cases involving instructions and refusals to instruct in regard to ownership of the property taken, \[63\] the defendant's intent, \[64\] and the location from which property must be taken to constitute larceny from the house. \[63\]

(SS 3) \_F. Trial, sentence, and review. \[65\]_C. L. \[71\]_--Under a Texas statute the theft of cattle taken in one county and carried into another may be prosecuted in the district court of the latter county. \[66\] Where there is evidence which would authorize a verdict of guilty, it must be submitted to the jury. \[67\] The question of the ownership of the property is for the jury. \[68\] Upon an information for stealing several domestic animals taken at the same time, the state is not required to elect upon which property it will proceed to trial. \[69\] Where burglary and larency are charged in the same count, conviction may be had for either. \[70\] What findings of fact are involved in a verdict of guilty is to be determined in the light of the instructions given. \[71\] In Arizona upon an indictment charging grand larency, a verdict of "equilty as charged in the indictment" without specifically finding the degree of the crime is invalid. \[72\]

Lascatijousness; Lateral Railroads; Lateral Support; Law of the Case; Law of THE Road; Leases; Leoacies and Devises; Legal Cocyclusions; Leoacies; Leoacies; LeTERS; LETTERS of Credit; Leveises; LeWDNESS, see latest topical index.

LIBEL AND SLANDER.

**8 1. Definition and Distinctions, Nature of 8 4. Damages and the Aggravation and Multi-Tort, and Persons Liable or Damnli-**

**8 5. Actions and Procedure, 616.**

**8 2. Elements of Tert, 616.**

**A. Actionable Words, 610.**

**B. Pleading, 617.**

**B. Publication, 612.**

**C. Vallee, 612.**

**8 3. Ervislee and Justification, 613. Truth, 615.**

**8 7. Jactiltration or Slander of Title, 622.**

**8 1. Definition and distinctions, nature of tort, and persons liable or damnli-**

_fiable. See S C. L. \[71\]_--Libel is a malicious defamation, expressed either in printing or writing, tending to blacken the reputation of one who is alive and to expose him to

able to defendant than was justified by Pen.

Code, art. 865. Warren v. State \[Tex. Cr. Corp.\] 19 Tex. Ct. App.\] 19 Tex. Ct. Rep.\] 41, 100 SW 853.\*\*

**62. State v. Soper \[M0.\] 106 SW 3.**

**63. Instruction as to evidence of owner-**

**submission to jury, Commonwealth v. Proceship held as favorable to defendant as evidence warranted. Titterington v. State \[Neb.\] 110 NW 678.**

**64. Instructions upon question of defend-**

**and's good faith in taking and carrying**

**away property held not erroneous. State v. Soper \[M0.\] 106 SW 3. Warren v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep.\] 28, 103 SW 853.**

**85. Where there is substantial evidence that it belonged to complaining witness. State v. Soper \[M0.\] 106 SW 3.**

**86. The taking in such case constitutes but**

**quest, Hurely made, to charge that jury cannot confense. State v. Soper \[M0.\] 106 SW 3.**

**not convict if defendants intention was not**

**71. Over People, 729 III. 376, 82 NE 391.**

**71. Over of guilty held, in view of instructions given, to involve finding that ac-**

**(Ga. App.\] 58 SE 1108.**

**65. Instruction held not erroneous. John-**

**80 v. State \[Go. App.\] 58 SE 684.**

**66. This N as whether defendant carried**

**72. Pen. Code, 88 443, 444, 972. Buffehr v. cattle or had some one else to do it for him.**

**73. Per. \[Aritz.\] 89 P 413.**

\*\*10 Curr. L. \[73\] 610

public hatred, contempt, or ridicule.7\* A state legislature cannot authorize one citizen to libel or slander another without making compensation.7\* A corporation may be sued for libel,7\* but is not liable for slander by one of its officers unless it authorized or ratified the act of the agent in uttering the particular slander,7\* and a telegraph company has no right to receive nor transmit a message libelous on its face.7\* To render*the principal liable for slander committed by his agent the tort must have been expressly authorized or subsequently ratified.7* An injury to a firm by libel is an injury to each partner and each may maintain an action to recover the damage caused thereby to his interest.7\* Persons may sign a certificate as to character of plaintiff without becoming liable for libelous statements in petition to which it refers but which is not incorporated therein.8\*

SS 2. \_Elements of tort. A. Actionable words.\_See s C. L. 174--Words which have a tendency to injure a person in his business or occupation, or expose him to public hatred, contempt, ridicule, or disgrace, are defamatory.81 Words actionable per se without proof of special damage include words imputing crime82 or want of

73. Horton v. Binghamton Press Co., 106 plaintiff with having betrayed interests of a branch fraternal order in favor of rival branch for which he accepted a bribe and for which he was expelled from the order. clude, in the absence of proof of express Doherrty v. Lynett, 155 F 681. Words entering plaintiff with maliciously and without request, all allowance of compensation for reeneral injury to plaintiff's reputation. Nenfe v. Hoboken Printing & Pub. Co. \[N. J.\] 68 A 146.

01. Empire Cream Separator Co. v De Laval Dairy Supply Co. \[N. J. Law\] 67 A 71.

01. Thus where the agent of a sewing ma- achine company in his office and in the presence of others said to plaintiff, "You are a thief I know you," the corporation is not liable unless it approved or ratified such words. Singer Mfg. Co. v. Taylor \[Ala.\] 43 S 210.

01. Western Union Tel. Co. v. Cashman \[C. C. A.\] 149 F 367.

01. Singer Mfg. Co. v. Taylor \[Ala.\] 43 S 210.

01. Tobin v. Alfred M. Best Co., 105 NYS 294.

01. Thus, where certain parties signed such a certificate, in a divorce suit which requested therein that plaintiff's petition for a rehearing be granted, they are not liable for defamatory statements in such petition, the latter being signed only by plaintiff, though it commenced "We, the undersigned, etc.," the reference to the petition being only to show for what purpose certificate given. Fernalv. Shepard \[Mass.\] 81 NE 274.

01. Bergstrom v. Ridgway-Thayer Co., 53 Misc. 95. 103 NYS 1093.

01. Schaefer v. Schoenborn, 101 Minn. 67, 111 NVR 843.

**Held actionable per se:** Words spoken of plaintiff that the swore a lie Imports crime of perjury. Gillis v. Powell \[Ga.\] 58 SE 1051.

"Turn your searchlights on your treasurer and you will find the money," written concerning a county treasurer after his safe had been blown open at his store, containing a large amount of public money, imputes a crime. Logan v. Hodges \[N. C.\] 59 SE 349.

The words "I hope you will think tonight of all these I've you wrote," addressed to plaintiff. Moore v. Dodd, 31 Ky., L. R. 843, 104 SW 224. Publication of an article charging * 10Cur. Law. 611LISEL AND SLANDER SS 2A. 61I

chastity,\[88\] or exposing one to scorn, ridicule, contempt \[84\] or injuring one in his business or occupation.\[88\] In determining whether or not a publication is libelous per se, the article must be read as a whole,\[86\] the language given its ordinary meaning,\[87\] and the question is whether the natural import of the language complained of is defamation.

while taking the stand, and that her jewelry were mute opposing witnesses to her testi-mony of ,poverty, does not charge plaintiff with perjury. O'Neill v. Star Co., 106 NYS 973.

83A. publication charging plaintiff with being housekeeping of a man who was a criminal does not authoring the inference that she was his mistress or that she was a person of immoral character. Horton V. Bingling.

of which plaintiff was member was contion that plaintiff lived with her parents on a block which was known to be a resort for a broker of bogus insurance, that he was inferring that she was charged with being a prostitute, such inference being counter-balanced by the fact that she was living with her husband and children. Id.

84Helaotenable per se: Publication of an article purporting to give a humorous account of an interruption of a street parade by an alteration between two of its mu-foc, 53 Miles. 386, 106 NYS 983. Article

of living consumers, that he was infected with a string of amusing lawsuits following thereupon. Pascone v. Morning Union Co., 79 Conn. 523, 65 A 972. A publication imputing to plainfraudulent conduct, acts of cruelty, gross immoralities, and dis-honest practices. Tingley v. Times Mirror Co., \[Cal.\] 89 P 1097. An article charging plaintiff with transferring his property to defend creditors represents him to be a dish-honest man. Todd v. Every Evening Printing Co., \[Del.\] 86 A 97. To falsely publish of a wife that her husband has instituted an action for divorce against her. O'Neill v. Star Co., 106 NYS 973. Article published of partnership held actionable per se as injurling plaintiff in their business and exposing them to public hatred, ridicule, and contempt. Bergstrom v. Ridgeway-Thayer Co., 53 Misc., 95, 103 NYS 1093. Publication held libelous as calculated to create a disturbance of the peace and to bring a clerk of the court into contempt. Commonwealth v. Duncan, 31 Ky. L. R. 1277, 104 SW 997.

**Held not actionable per se:** Advertisement in newspaper consisting of portrait of woman, together with statement calculated to convey impression that she, for herself, and as nurse, used certain whiskey not libelons per se. Peck v. Tribune Co., \[C. C. A.\] 154 F. 330.

85S. Bergstrom v. Ridgeway-Thayer Co., 53 Misc., 95, 103 NYS 1093.

**Held actionable per se:** Language which imputes to one fraud or want of integrity in his business. Empire Cream Separator Co., 5 V. De Laval Dairy Supply Co. \[N. J. Law\]

67A 711. Words charging unprofessional conduct. Marion v. Conier Pub Co., 125 Ill.

App. 349. An article entitled "Bucket Shop Sharks" which read, "One of M.'s most intimate friends and active lieutenants is K., founder of the New York Bureau of Information., now managed by his brother, K. K. is a tout, gleek enough in his methods to have corralled bankers'and brokers of unimpeachable legitimacy as clients for the New York Bureau of Information. His portrait, until it was surreptitiously removed, was No. 295-G. in the Chicago Rogues' Gallery, and he has 613 LlibEL AND SLANDER $ 2B. 10 Cur. Law.

tory as it strikes the mind of an average man.\[88\] What is intended to be understood by the use of worlds slanderous per se is a question of fact.\[89\] A man's goods may be slandered as well as his good name.\[90\] Words which misrepresent the quality of any single article which a person has for sale are not actionable per se.\[91\]

($ 2) \_B. Publication.\[88\] C. L. 718--Publication is essential and consists in making known a defamatory statement to any person other than the object thereof,\[92\] but there is no publication when the words are only communicated to person defamed,\[93\] but the fact that defamatory words are addressed to plaintiff does not prevent publication where they are spoken in presence of others.\[94\] Every utterance of defamatory matter is a separate publication.\[95\] A husband may be labeled by a letter written to his wife and vice versa.\[90\] Publication of an article referring to a dead man may be made libelous by publication in a subsequent article of a statement by another party that the former article refers to plaintiff.\[97\] One cannot set up the defense that he merely repeated a defamatory statement.\[98\]

($ 2) \_C. Malicc.\_See S. C. L. 718--Malice is an essential ingredient to the action

88. Commercial Pub. Co. v. Smith \[C. C. A.\] 75 Kan. 147, 88 P 74. An admission of defendants in their answer that they mailed

149 F 704. Words imputing a crime need

the alleged libelous matter to plaintiff in a

are actionable if they would naturally and

sailed envelope addressed to her does not

presumably be understood by those who hear

them us charging a crime. Schaefer v.

Ing a libelous communication to a married

Schoeborn, 101 Minn. 67, 111 NW 843. Where

woman respecting herself, enclosed in a

a newspaper article describing a system of

called envelope, is not a publication of the

police blackmail by which, through corruption

libel. Id.

tion of police officers, crime was permitted

to go practically unpublished, it was held

that the facts as published would import to

the ordinary mind that plaintiff was

connected with the blackmailers. Breen v. New

York Herald Co., 55 Misc. 567, 106 NYS 872.

89. Convisisher v. Johnson, 127 III. App. 602.

01. And where the article which we was

sell derives its special value from the individual skill, experience, and qualifications

for its compilation of the editor or compiler,

or from the fact of its having been authorized

end to be used in the courts by the legislature, a serious wrong may be committed by

false and damaging statements as to these

gartcluars. Cobey V. State Journal Co.

\[Neb.\] 113 NW 224,

91. Thus a letter published in a fruit

grovers' magazine stating that writer had

used a certain powder for his fruit trees

which was recommended by plaintiff to pre-

vent brown rot, but that it had proven dis

astrous to them, is not libelons per se. Dust

Sprayer Mg. Co. v. Western Fruit Grower

\[Mo. App.\] 105 SW 566.

92. Western Union Tel. Co. v. Cashman

\[C. C. A.\] 149 F 867. A postal containing his

belous matter sent through the mails, passing

through the hands of carriers and others,

amounts to publication. Logan v. Hodges

\[N. C.\] 59 SE 349.

93. Where there was no evidence that a

libelous message was read by anyone after it

came into the hands of an authorized agent

of the telegraph company, and before it was

was not mentioned in first article, the two

delivered to plaintiff, held not to constitute

publication (Western Union Tel. Co. v.

Cashman \[C. C. A.\] 149 F 867), and the fact

that the messenger Boy took a letter press

copy before delivery of message to plaintiff

is no publication thereof where there is no

evidence that he read it. (Id.), even though

the matter reach the hands of a third person,

where this was not intended nor reasonably

expected by sender. Buckwater v. Gosowow,

\[ of libel,"" but it has been held that malice or the want thereof is only material in slander as bearing on amount of damages.1 Where the publication is libelous per se, the law presumes malice in fact in its publication,2 and in the absence of evidence rebutting such presumption plaintiff is entitled to exemplary damages.8 Express malice is never presumed but must be proved by indirect as well as direct evidence.4 The age of the party making the defamatory statement may not under some circumstances be an immaterial fact in determining the presence of malice.5 Repetition of slander whether before or after suit brought is admissible to show malice.6 An offer to retract defamatory matter after publication thereof may be shown as negativing presence of malice.7

614 Llabel and slander SS 3. & 10 Cur. Law. privilege does not extend to ex parte proceedings where plaintiff had no opportunity of being heard.\[12\] The report of a judicial proceeding need not be stated in the identical language used, provided it be the same in substance.\[18\] Occasions when a qualified privilege may be invoked extend to communications made in good faith from honest motives,\[14\] such as honest criticism of official conduct\[15\] if made to the proper party,\[16\] to recover missing property,\[17\] publications made in endeavor to bring suspected criminals to justice,\[18\] communications between public officials,\[19\] replies of an employer to inquiries by a parent\[20\] or child as to his reasons for the discharge of the child.\[21\] Privilege will not avail as a defense where malice is shown on part of defendant, the presumption being that he believed the statements to be true,\[22\] and it is sufficient to make a general allegation that words are maliciously spoken or published even though they may be otherwise privileged.\[23\] A plea in justification must be as broad as the charge attempted to be justified.\[24\]

igeed. Nixon v. Dispatch Print Co. \[Minn.\] by modified by adding that it was made under 112 NBV 258. & 12. Facts held not to constitute privilege. & 13. Facts held not to constitute privilege. & 14. Facts & 15. Facts & 16. Facts & 17. Facts & 18. Facts & 18. Facts & 19. Facts & 19. Facts & 18. Facts & 19. Facts & 19.

- 10Cur. Law. LIBEL AND SLANDER SS 4.
- 115The publication of defamatory statements is not actionable if true,\[25\] but when coupled with other circumstances may render the publisher liable.\[20\] A plea of guilty is sufficient to establish the truth of a charge of crime made by defendant,\[27\] but proof of the truth of a part only of the charge is not a complete defense.\[28\] In Nebraska, the truth when published with good motives and justifiable ends is a sufficient defense to an action for libel.\[29\] The fact that it is the common report and belief in the neighborhood that plaintiff is guilty is not sufficient.\[30\]

_Damages and the aggravation and mitigation thereof.\[81\]_--In case of publication of matter libelous per se, the law presumes damage to the plaintiff,\[32\] and it is not necessary for plaintiff to show special damage in order to recover.\[38\] Nor intent or desire on part of defendant to injure plaintiff by such publication.\[94\] Compensatory damages may be recovered for injury to reputation,\[39\] good name, or fame, or for any mental suffering caused by reason of publication.\[30\] Punitive damages may in general be allowed in actions for libel,\[37\] but only where malice is shown,\[38\] as distinguished from malice in law which will support a verdict for compensatory damages only,\[39\] or that the libel was carelessly or recklessly published in disregard of plaintiff's rights.\[40\] Husband is not liable in punitive damages for libel uttered by his wife.\[41\] Reiteration of slander in answer,\[42\] and evidence of prior publications in

- 25. Publication charging plaintiff with crime. Commercial Pub. Co. v. Smith \[C. C. A.\] 149 F 704. To justify a repetition of an accusation of crime, the proof must show not only the fact of the accusation but the truth of the accusation. Bennett v. Crump. ton. I Ga. App. 476, 58 SE 104.
- 26. Thus, if there is added by way of comment words which amount to accusation that charge is true, or assume guilty of party arrested by head lines or otherwise, the fact that such party was arrested upon the charge is no justification, Commercial Pub. Co. v. Smith \[C. C. A.\] 149 F 704.
- 27. In an action for libel for publication of article charging plaintiff with theft, where it appeared that he had been charged with theft and had entered a plea of guilty, evidence is inadmissible to show that even though such plea had been entered the was in fact not guilty. Register Newspaper Co. v. Stone, 31 Ky. L. R. 458, 102 SW 800.
- 28. Thus, where publication charged plaintiff with being a thief, arrested for lorexy and while in jall stole from a fellow prisoner, and that after being released began stealing again and that he seemed to have a mania for stealing, held that the fact that plaintiff pleaded guilty to the charge of stealing from fellow prisoner is not a complete defense to the whole article. Register Newspaper Co. v. Stone, 31 Ky. L. R. 458, 102 SW 800.
- 29. Soundness of doctrine that truth alone is not sufficient defense to an action for libel, but it must appear that publication was made with good motives, etc., not determin-ed, but instruction submitting question to jury, not prejudicial to plaintiff when supported by evidence. Fordyce v. Richmond \[Neb.\] 111 NW 850.
- 30. Thus, where A. used of B. the following language, "It is the general belief among the negres and a great many white people that A. broke open the smoke house of C. a negro, and stole therefrom a quantity of meat and syrup," a plea of justification is insufficient which only alleges that A. had used such words, and that_hts statement

Other newspapers than defendant's, are admissible on the question of exemplary damages.43 One may bear a bad reputation and still recover for injuries to feelings caused by a publication.44 Upon 'waiver of actual damages, plaintiff may recover nominal damages.45 The jury need not specify in their verdict the amount of damages awarded for injury to feelings where they are limited to such injury alone.44 Damages assessed by the jury will not be interfeed with in absence of abuse of discretion.47 To constitute a good plea in mitigation, defendant must allege and prove that he had knowledge of the facts set up in mitigation prior to the publication.45 Loss of reputation may be considered in estimating damages.46 Good motives and lack of malice,50 an offer to retract after publication,51 general bad character 52 and reputation of plaintiff,53 or facts going to show justification, may all be shown in mitigation of damages,54 but not that plaintiff has commenced actions against other papers for publishing the same libel.58

**SS 5.**\_Actions and procedure. A. Conditions precedent.\_See s C. L. 722\_\_In Alabama notice must be given a newspaper publisher five days before the beginning of a suit against him for libelous publication of a newspaper article.56

relation is joined in a suit against his wife not be disturbed on the ground that slander- for libel uttered by her without his knowl- edge or consent, he is not liable for punitive damages, though jointly liable with her consider either by passion, prejudice, or ignorwarded. Price v. Clapp \[Tenn.\] 105 SVW 864. In such case verdict may be rendered against husband and wife for the joint liability and against wife for exemplary damages. Id.

**42.** An instruction that an allegation In defendants answer that the charge is true may be considered by jury in aggravation of demand. Without any allegation that damages should be qualified by a direction that the reiteration of the slander in the answer shall be considered in aggravation of damages, provided that the circumstances evince that such reiteration was done malicously and without probable cause for believing it true. Bellis v. Roberts, 52 Misc. 493, 102 NYS 575.

**43.** Dalizil v. Press Pub. Co., 52 Misc. 207, 102 NYS 509.

**44.** Where defendant publishes of plaintiff that she bore a bad reputation, it is not necessary to a recovery that it be worse after publication thabefore. McArthur v. Sault News Printing Co., 143 Mich. 556, 14 Det. Les. N. 265, 112 NNV 126.

**45.** Where defendant does not justify the truth of slanderous words spoken, the plaintiff, having waived recovery of actual damages, is entitled to nominal damages. Slater v. Watte, 148 Mich. 650, 14 Det. Leg. N. 314, 112 NVP 652.

**46.** And it is not error for court to refuse such instruction. McArthur v. Sault News Printing Co., 148 Mich. 556, 112 NVP 126.

**47.** In an action for slander upon a charge that plaintiff, a white woman, had criminal intercourse with a negro, a verdict for $1,000 damages is not excessive. Smitlev v. Pinch, 148 Mich. 670, 14 Det. Leg. N. 324, 112 NVP 656. In slander for calling plaintiff a thief, a verdict for $200 was not such as to indicate any passion or prejudice or other improper motive. Dallin v. Mayer, 107 XYS 316. In an action for slander for words reflecting on plaintiff's elasticity, the fact that she is "a woman extremely common if not coarse" is an insufficient reason for setting aside a damages. Comer v. Age Herald Pub. Co. Vedic for $500. Plainigan v. Stavos, 131 Wis. 94, 111 NVP 216. A verdict for $500 will person other than a publisher of a news 10 Cur. Law. LIBEL AND SLANDER SS 5B. 617

(SS 5) \_B. Pleading.\_See s c. L. 128--Plaintiff must allege sufficient facts to constitute a cause of action \[67\] and the complaint must sufficiently identify plaintiff with the defamatory statements,\[68\] but it is not necessary to allege in the language of the statute that defamatory words were published concerning plaintiff if from the facts stated it necessarily appears that such was the case.\[69\] Where the language is doubtful, the court on demurrer will ascertain if there is anything in the language which by reasonable intendment is actionable.\[60\] When the words of a publication are capable of a defamatory or innocent meaning, dependent on extrinsic facts, the complaint must allege the defamatory meaning to state a cause of action,\[91\] and if not the innocent meaning will be adopted.\[62\] The alleged defamatory words must be set forth in full and it is not sufficient to state the substance and effect of the words.\[63\] Words having local and special meaning must be set out by inducement.\[64\] In an action by a partnership for libel, it is sufficient to allege and prove that the defamatory article was published of and concerning the partners individually.\[65\] Plaintiff may allege her chaste character and good reputation.\[66\] When the words of an alleged defamatory publication are capable of more than one meaning, the innuendo must explain or point out the sense in which it is claimed they were used,\[67\] but an innuendo does not enlarge the sense of the words used in a libelous publication and they should be given a fair and reasonable interpretation.\[68\] Where an innuendo has to be resorted to in order to show the libelous import of the language, special damages must be alleged,\[69\] and where plaintiff by his innuendo ascribed to a publication a par ticular meaning he is bound thereby and its correctness must be found or he fails.76 In New Jersey it may be averred that the words were used in a defamatory sense, specifying such defamatory sense without a prefatory averment to show how such words were nsed in that sense.71 Where a defamation is actionable per se, special damages need not be alleged.72 and, conversely, special damage must be alleged where the words are not actionable per se.78 The necessity for allegation and proof of special damage does not inhere in the form of the action but in the nature of the alleged defamatory words.74 The defense of justification must be specially pleaded.78 A petition showing on its face that the defamatory matter was a report by an officer to his superior within scope of his authority must show that there were reasonable grounds to believe such report to be true.76 An action for slander may be joined with an action for malicious prosecution,77 but in New York an action for slander cannot be united with an action for assault.78 A joint action against two or more persons for slander cannot be maintained since an utterance by each is a separate publication.79

(SS 5) _C. Evidence_,See s C. L. 725.--In the absence of any plea of justification alleging the truth of an alleged slanderous charge, the law presumes it to be false,80 and the burden is upon defendant to prove the truth of the alleged libelous publication,81 and to sustain such a plea defendant must prove plaintiff's guilt as imputed to him by a preponderance of the evidence.82 Evidence is inadmissible which does not wrote of plaintiff that without concerted action on part of better people, plaintiff, such damages are insufficient to sustain would be next judge, and that would mean dogm of "our Prohibition and Temperance Acuse, and would leave us almost at the mercy of the Blind Tiger Thugs, Bootleggers, etc," is insufficient, the letter not being libelous per se, per se and there being no allegation of special damage. Morrison V. Dean \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 657, 104 SWP 505.

76. Labour Review Pub. Co. V. Gallher \[Ala.\] 45 S 188.

01. A count is within the meaning of $ 106, p. 568, Act 1903, which charges that the defendant spoke or published certain words concerning the plaintiff and that he spoke them meaning that the plaintiff was guilty of certain specified fraudulent conduct. Embire Cream Separator Co. v. DeLaval Dalry Supply Co. \[N. J. Law\] 67 A 711.

01. Empire Cream Separator Co. v. DeLaval Dairy Supply Co. \[N. J. Law\] 67 A 711; Baxter v. Mohr, 52 Mice, 658, 102 NYS 844; Doherty v. Lynett, 155 F 681. Request to require proofs of special damages in an action for slander in charging plaintiff with latency properly refused. Carter V. Hooper, 894 Mass. 68, 80 NRE 2.

01. Peck v. Tribune Co. \[C. C. A.\] 154 F 320. In an action for libel upon an alleged libelous newspaper publication, article construed and held not libelous per se and a verdict in favor of plaintiff not sustained in absence of allegation of special damages. Daily v. New York Herald Co., 151 F 114.

Complaint alleging that because a publication was read by several of plaintiff's customers they declined to enter into business with him does not state special damages. Pascone v. Morning Union Co., 79 Conn.,523, 65 A 972. In an action for libel alleged to consist of statements concerning plaintiff's machines, held that where the only averment of special damages in a count setting out defamatory statements respecting quality and value of such machines, consisted tend to show the truth\_ of the alleged libelous statement,"84 but evidence of attempts to ascertain the truth as admissible,84 and plaintiff may introduce evidence tending to prove his own contention.85 Where upon a charge of lewdness defendant pleads truth in justification, he cannot show particular acts to sustain such plea,86 but plaintiff may introduce evidence of her chasticity.87 The party claiming a privileged communication has the burden of proving it.88 Where there is no plea of justification, evidence is admissible to prove such fact.89 Malice is presumed from publication of matter libelous per se.90 Upon the question of punitive damages, any evidence is admissible tending to prove or disprove presence of malice on part of defendant.91 Evidence of plaintiff's reputation is admissible on the question of damages.92 Evidence is admissible to show intent of defendant to charge plaintiff with crime,93 or dishonesty.94 Where the words used are capable of an innocent and defamatory meaning and the latter meaning is specially alleged, any evidence is admissible to show that the plea of justification would be estab- 90. Tingley v. Times Mirror Co. \[CaI.\] 89 P linked by a preponderance of the evidence that the statement made by defendant as to the existence of the general belief that plain- 107. Malice is not presumed upon publication by defendant of libelous allegations in * the existence of the general belief that plain- 107 was guilty of the crime imputed to him 107. But belief v. Gazette Co., 104 NYS 637. Evidence of facts and circumstances relating to a plaintiff, unknown to a defendant at the time of the publication of a libel, cannot be shown for the purpose of proving that the publication was without malice. But by stipulating parties to a libel suit that depositions taken for use in another suit might be used, they are admissible to show that publication was without malice. Id. But such reputation cannot be estab- 648, facts, but is established by resthmary of those who are familiar with and know the people among whom the one whose reputation is assisted associates. Register Newspaper Co. v. Stone, 31 Ky. L. R. 458, 102 SVW 800.

85 Where defendant published of plaintiff that he charged a larger fee as an attorney than his services were worth, and that attorney for defendant had looked after the transaction, evidence was admissible to show that plaintiff had not been released from responsibility as attorney of record in the case. Reynolds v. Holland \[Vash.\] 90 P 648. Smitlev v. Pinch; 148 Mich. 670, 14 Det. Leg. N. 824, 112 NWW 686.

87 Plaintiff may prove by a newspaper reporter who had lived in same town as plaintiff for three years that he had heard no suspicion against her chasticity. Smitlev v. Pinch, 148 Mich. 670, 14 Det. Leg. N. 324, 112 NWW 686.

88 Logan v. Hodges \[N. C.\] 69 SE 349. Evidence held inadmissible where there was no particular justification pleaded to which it could be addressed. Tingley v. Times Mirror Co. \[CaI.\] 89 P 1097.

620

LIBEL AND SLANDER SS 5D.

10 Cur. Law.

that such meaning was meant and understood."5 Where defendant charged plaintiff with theft, evidence of prior indictments for other misdemeanors is inadmissible."5 Evidence is inadmissible to show plaintiff's susceptibility to mental suffering." An article previously published is admissible in evidence only in aggravation of damages."8 In an action for libel, where the falsity of the publication has been admitted in the answer, the introduction by the plaintiff of evidence having reference to such falsity brings it within the discretion of the court to permit the defendant to also introduce evidence on the same subject, provided the question of the truth or falsity of the charge is not submitted to the jury." Where exemplary damages are claimed, evidence of value of defendant's property is admissible."

(SS 5) \_D. Trial. See S C. L. 728--A partial plea of justification will not entitle the defendant in a slander suit to open and conclude." Where the words are capable of but one interpretation, it is for the judge to determine whether they are defamatory or not," but if capable of two meanings, one of which would render the words libelous and the other not, the question is for the jury," and whether or not words are actionable per se is a question of fact for jury." When the facts are uncontroverted the court is to determine whether or not the publication is privileged," and if they are controverted it should instruct the jury as to what circumstances would render the publication privileged," and leave it to the jury to determine the character of the publication." What is a lawful justification is a question of law." If there is evidence of malice the question should be submitted to the jury." It a publication be conditionally privileged, it is a matter of law for the court to determine whether there is any evidence of malice, if not he should direct a verdict for defendant." The amount of damages in a libel suit are entirely within the discretion of the jury,"

95. Irving v. Irving, 105 NYS 609.

was libelous per se. Commercial Pub. Co. v. 96. In an action for libel for publication Smith IC. C. A.14 14 F 704.

of an article charging plaintiff with theft.

$ So held in an action upon the charge evidence of Indictments against plaintiff for that plaintiff and passed or attempted to misleading donors other than theft are indamis.

pass counterfeit money. Richardson V. Reps sibile. Register Newspaper Co. v. Stone, 31 \[Iowa\] 112 NW T88; Hubbard V. Furman Kly, L. R. 458, 102 SW S00.

107. Tingley v, Times Mirror Co. \[Cal.\] 89 an allegation that plaintiff husband had obtained a divorce from her, which was false,

001. Blodgett V. Des Molnes Daily News Co. \[Iowa\] 113 NW 821.

would tend to hold her up to contempt and

99. Todd v. East Liverpool Pub. Co., 9 Ohio C. C. (N. S) 24. The burden of proving publish to run alleged libelous communicating.

114 SW75. Whether an allegation that plaintiff reseglade in a scaled envelope is upon plaintiff. Proof of prostitutes tended to hold plaintiff up to

that she received letter from her husband without showing how it came into his pos-

In an action for slander upon the charge session is insufficient. Buckalter V. Goslows, 75 Kan. 147, 85 P 742.

1. Tingley v. Times Mirror Co. \[Cal.\] 89

1. Taylor v. Chambers \[Ga. App.\] 58 SE SE

1. Commercial Pub. Co. v. Smith \[C. C. A.\] 149 Y 704.

1. A publication in a newspaper under the heading "Alurderer Arrested" stated that plaintiff had been arrested by the asriff, that he was wanted to the killing of another man, the incentive being robbery that rewards had been offered for his arrest and that he did not deny being the man wanted and stated that he did the killing. The declaration admitted the arrest by asriff but denied the rest. Held a question for jury whether or not readers would understand the article to so charge and therefore libelous, and that judge erred in charging that it 10 Cur. Law. LIBEL AND SLANDER SS 6. 621

and the court should give proper instructions to the jury regarding quantum of damages,\[18\] and refusal to so give after request therefor is reversible error.\[14\] It is for the jury to determine whether the meaning ascribed to the publication by the innu-endo was intended by the defendant.\[18\] Whether or not a libelous petition is incorporated into a certificate sq as to make the parties signing the certificate liable for the libelous statements in the petition is a question for the court.\[19\] Whether certain facts stated in an answer to an action for libel constitute a justification should be determined by demurrer and not by motion to strike out,\[17\] and if defendant fails to sustain the answer he may be allowed to amend and allege the matter as a partial defense or amplify it so as to make it a justification.\[18\]

SS 6. \_Criminal libel and slander.\_See SS C. L. \[19\]--An indictment in slander must show that the alleged libelous statements were used concerning the plaintiff.\[18\] In Kentucky, to show the application of defamatory matter to person libel, it is sufficient to state in the indictment generally that the same was published concerning him.\[20\] It is sufficient if indictment charges defendant with having used language concerning plaintiff, which in its ordinary acceptation amounts to charging an offense.\[21\] A charge to the jury that they shall convict if they find that defendant used the language as laid down by the statute is not error.\[22\] Remote and irrelevant

13. It is not error for court to instruct; no evidence that contents were known to. jury that under law of this state punitive damages cannot be recovered, when instrucue- that these had disclosed contents, jury should not sufficiently defines meaning of such term

take this into consideration in assessing and jury are further instructed as to true

damages. Western Union Tel. Co, v. Cashman.

measure of damages. Fordyce v. Richmond

\[C. C. A.\] 149 F 867.

\[Neb.\] 111 NWV 850. Nor is it error for court

15. But the question is submitted only as to instruct' jury that plaintiff's damages

bearing on the matter of actual malice and are limited and restricted to the geograph-

in mitigation of punitive damages and not as cal territory in which the newspaper circu-

a defense that would prevent recovery. Irving v. Irving, 105 NYS 609; Todd v. East

found for plaintiff, she should recover a fair

compensation for all injury to her reputa-

16. Frehval d. Shepard (Mass.) 81 NNE 274,

tion, feelings, and good.name by reason of

17, 18. W. T. Hanson Co. v. Collier, 104

the publication. Butler v. Gazette Co., 104

NYS 687. An instruction that "the amount

of actual damages which may be assessed in

fendant published "a certain false scandal-

a libel case is entirely in the discretion of the

ous and malicious article or publication

jury, etc.," is not prejudicial to plaintiff where

continuing words and sentences of, and con-

it also charges that "it must be a sum

which will fairly compensate plaintiff for the

only when she sustained by reason of the

publication," Id. Upon a charge that defendant

lished of L. E. Pearce, Commonwealth v.

had published, after burning of a house

ducted by plaintiff, that it sustained a bad

reputation, it was not error to refuse an

in-

function to jury that if the house had no

worse reputation after than it had before

publication of article plaintiff could not re-

cover. McArthur v. Sault News Printing Co.,

148 Mich. 556, 14 Det. Leg. N. 265, 112 NWV

126. Where defendant does not peel truth

in justification of two of five charges made,

it is not error for court to refuse an instruction that if jury find either of these charges

to be true, they shall find for plaintiff nominal damages as to that charge, but if they

find them both to be untrue and the other charges to be true, they shall find for defendant. Smiliev V. Pinch, 148 Mich. 670, 14

Det. Leg. N. 324, 112 NWV 686.

14. Under Ann. Code Miss. 1892, % 1301, making it a misdemeanor for an employee of

a telegraph company' to divfuse contents of

message except to sende, in an action

against telegraph company for publication

of libelous telegram, it was error for court

to refuse an instruction that as there was

13. It is not error for court to instruct; no evidence that contents were known to.

any one save four employees, and no evidence

damages cannot be recovered, when instrucue-

that these had disclosed contents, jury should

tion sufficiently defines meaning of such term

take this into consideration in assessing

and jury are further instructed as to true

damages. Western Union Tel. Co, v. Cashman.

measure of damages. Fordyce v. Richmond

\[C. C. A.\] 149 F 867.

\[Neb.\] 111 NWV 850. Nor is it error for court

15. But the question is submitted only as

to instruct' jury that plaintiff's damages

bearing on the matter of actual malice and

are limited and restricted to the geograph-

in mitigation of punitive damages and not as

cal territory in which the newspaper circu-

a defense that would prevent recovery. Irving v. Irving, 105 NYS 609; Todd v. East

to be plain 632 LICENESES SS 1.10 Cur. Law. evidence is inadmissible,\[28\] under the constitution of Kentucky, in all indictments for libel, this jury shall have the right to determine the law and the facts under the direction of the court as in other cases.\[14\] In determining whether words spoken or written are libelous, the entire conversation or writing must be considered.\[28\] Upon a charge of imputing to plaintiff unchastity, accused may offer evidence of specific acts of illicit intercourse.\[26\] An information charging two or more females with unchastity is not duplicitous.\[27\]

_-_

-\_

_-_

-\_
10 Cur. Law. LICENSES SS 2. 623

subject to police regulation.\[44\] Valid license legislation may be directed toward an act neither malum in se or malum prohibitum,\[25\] and may properly limit the scope of the occupation licensed to less than that which naturally pertains to it.\[36\] Both the state and its municipalities may require a license from the same person to engage in the same business,\[37\] and the exercise by the Federal government of its right to tax and to prescribe the method of its enforcement in no way affects the right of the state under its police power to regulate the business then taxed.\[38\] In Louisiana the right of the parish to levy license taxes is subordinate to any action in respect thereto which may be taken by the various municipalities within its borders,\[39\] and where a village levies a license tax equal in amount to that level by the parish, its effect is to operate ipso facto as an exemption from parish license taxation.\[40\] The usual rules as to the separability of constitutional from unconstitutional provisions,\[41\] repeal by subsequent enactments,\[42\] and certainty in the description of the acts required to be performed thereunder,\[43\] and of the offense created for a violation thereof,\[44\] apply to licensing statutes and ordinances. Constitutional inhibitions against the abridgment of natural rights of citizens,\[45\] the passage of ex post facto laws,\[46\] granting privileges to citizens of the state not accorded to citizens of 34. Occupations operating directly on the person are subject to police regulation. Act relating to licensing of barbers requiring two March 18, 1901, Laws 1901, p. 349, e. 172, re-years' apprenticeship under one practicing quirring barbers to procure a license, held as a barber as condition to registration. held valid exercise of the police power. State v. Walker Walker \[Wash.\] 92 P 775. Licensing business of conducting a theater held within police power. People v. Steele, 231 Ill. 340, unconstitutional as a whole because of the invalidity of its provisions discriminating between agricultural products of the United States and those of other countries. Comnoltx held subject to regulation. People v. 42. Ordinance providing generally for the New York Health Department, 117 App. Div. 856, 103 NYS 278. Licensing of business of and occupation carried on within city, make-pedding held a proper exercise of police power. Commonwealth v. Hana \[Mass.\] 81 NE 149. License imposed upon breweries, distilleries, depots, or other agencies engaged in the manufacture or storage of intoxited-ing liquures, held within the police power. Schmidt v. Indianapolis, 168 Ind. 631, 80 NE 632. Business of selling fire uncle, auction sale, damaged, or bankrupt stocks of goods, held subject to police regulation. City of Emporis v. Endeleman, 75 Kan. 428, 89 P 685. Hird's Rev. St. p. 403, e. 24, providing for examination and licensing of plumbers held constitutional. Douglas v. People, 225 Ill. 536, 80 NE 541. 35. Dog license ordinance held not invalid because not prohibiting ownership of dogs within municipal limits. Ex parte Ackerman \[Cal. App.\] 91 P 429. 36. Ordinance providing for licensing of aestoiners prohibiting the selling of jewelry and watches at auction held valid. State v. Bates \[Minn.\] 112 NW 67. 37. Practice of medicine. City of Fairfield v. Shallenberger \[Towa\] 113 NW 459. 38. Laws 1907, c. 189, p. 307, making 1st an offense to fail to register and publish receipt showing payment of Federal revenue tax on Intoxicants, held valid. State v. Hanson \[N. D.\] 113 NW 271. 38. So held under Act No. 142, p. 313, of 1904. Parish of Calcasieu v. Avery, 119 La. 143, 43 S 986. 40. Parish of Calcasieu v. Avery, 119 La. 143, 43 S 986. 41. Invalid provision in act March 18, 1901, relating to licensing of barbers requiring two years' apprenticeship under one practicing quirring barbers to procure a license, held as a barber as condition to registration. held valid exercise of the police power. State v. Walker Walker \[Wash.\] 92 P 775. Licensing business of conducting a theater held within police power. People v. Steele, 231 Ill. 340, unconstitutional as a whole because of the invalidity of its provisions discriminating between agricultural products of the United States and those of other countries. Comnoltx held subject to regulation. People v. 42. Ordinance providing generally for the New York Health Department, 117 App. Div. 856, 103 NYS 278. Licensing of business of and all kinds of business and occupation carried on within city, make-pedding held a proper exercise of police prog. mention of dogs, held not to repeal a dog license organice. Ex parte Ackerman \[Cal. App.\] 91 P 429. Acts 26 Leg. p. 320, c. 189, specifically repealing Acts 25th Leg. in the manufacture or storage of intoxited-ing liquures, held within the police power. Scmidt v. Indianapolis, 168 Ind. 631, 80 NE 632. Business of selling fire uncle, auction sale, damaged, or bankrupt stocks of goods, held subject to police regulation. City of Expr. 43. Dog license ordinance held not uncertain for failure to specify particular time at which tax must be paid or in failing to definite term "current year." Ex parte Ackerman \[Cal

### 624licenses $ 3.

10 Cur. Law. other states,47 interference with interstate commerce,48 or depriving a person of property without due process of law,49 are binding, but a constitutional restriction upon municipal power does not affect the power of the state,50 and a license proper not being a tax limitation upon the power of taxation are not applicable.61 Classification of different occupations for the purpose of regulation is proper but it must not be unreasonable or arbitrary,52 must bear some substantial relation to the public welfare,53 and must apply also to all persons within the same class.54 Subclassification post facto. City of Louisville v. Roberts \[Ky.\] 105 SW 481.

\*\*47.\*\*Ordinance .Imposing license fee on breweries and other agencies engaged in manufacture or storage of intoxicants held to apply to residents as well as nonrefidents, only such grocers as use delivery wagons, and hence not unconstitutional as granting privileges to citizens of the state not accorded citizens of other states. Schmidt v., Indianapolis, 1688 Ind., 631, 80 NNE 632.

\*\*48.\*\*Deliveries outside of state held properly included in determining amount of business of wholesale dealer in oils for the purpose of fixing the amount of the tax imposed by Acts 29th Leg. p. 358, c. 148, such business being located wholly within the state. Tex-as Co., v. Stephens \[Tex.\] 18 Tex. Ct. Rep. 775, 103 SW 481.

49.\*\*Dog license ordinance held not invalid as taking property without due process of law, because providing for destruction of dog, without notice to owner, unless tax is paid within two days after impounding (Ex parte Ackerman \[Cal. App.\] 91 P 429), or as authorizing marshal to go upon private property to impound an unlicensed dog without process (Id.).

50: Const. art, $ &, 6, held to relate only to municipalities, and hence, license tax act of 1904 (24 St. at Large, p. 462), as amended by act 1905 (24 St. at Large, p. 827), imposing annual tax of one-half mill on each dollar of capital stock of certain corporations, is not invalid because not graduated so as to secure a just imposition of the tax upon all classes subject. Ware Shoals Mfg, Co. v. Jones \[S. C.\] 58 SE 811.

\*\*51.\*\*In the exercise of the police power a separate license for each place of business may be required without rendering the act obnoxious to a constitutional inhibition against double taxation. Conklin Lumber Co. v. Chicago, 127 Ill. App. 103.

52. Pedders and hawkers constitute a class by themselves to which police legislation may be directed. Servoir v. State \[Wis.\] 113 NW 277. Business of selling fire ankle, auction sale, damaged or bankrupt stocks of goods, held subject to separate classification and regulation. City of Emporia v. Endelman, 75 Kan. 428, 89 P 685. Provision in act March 18. 1901, Laws 1901, p. 349, c. 172, relating to licensing of barriers requiring as a prerequisite to obtaining a certificate of registration that applicent "has studied the trade for two years as an apprentice under or as a qualified and practicing barber in this state or other states," held arbitrary and void, it being immaterial in what manner the applicent acquired his knowledge. State v. Walker \[Wash.\] 92 P 775.

01. Ordinance authorizing arbitrary refusal to grant license to peddle water held void as discriminating against the right to pursue a lawful calling. City of La Junta v. Heath, 28 Colo, 372, 88 P 459.

54.\*\*Held discriminative: Ordinance imposing license tax on milk dealers using vehe 10 Cur. Law. **LICENESES SS 2.**

of members of the same class is proper when substantial reasons exist therefor.\[58\] Thus the license fee may be graded according to the magnitude of the business conducted and the opportunities for harm resulting therefrom\[56\] Constitutional provisions as to uniformity in taxation have no application to license taxes,\[57\] the only uniformity required being the imposition of a like tax upon all who engage in the occupation and who exercise the privilege taxed.\[88\] The validity of the license act is frequently determinable by reference to whether it was imposed under the police power,\[89\] or under the power to raise revenue by means of taxation.\[90\] Where a fee is imposed for the purpose of regulation under the police power and compliance with prescribed conditions is required in addition to the payment of the fee, such sum is a license imposed by virtue of the police power,\[61\] but where a fee is imposed solely for revenue purposes and payment thereof gives the right to carry on the business without the performance of any other conditions, it is a tax,\[92\] and as a general rule license fees imposed upon useful occupations, not hurtful or pernicious to society, and not calling for regulation, are in fact taxes exacted under the revenue power.\[68\] The amount which may be exacted for a license proper under the police power must be limited and reasonably measured by the cost of the issuance of the license and the regulation and inspection for which provision is made,\[64\] while a wider latitude is alm-

timber over public roads, held not unconsti-

the purpose of determining amount of Hi-

tutional as discriminating against persons en-

cense fee, each class being charged a differ-

gaged in such business, as the act operates

equally upon all in that class. Kennamer v. **113 NW 277**. Tax of fifty cents per cow on

State \[Ala.\] 43 S 482. Provision of Rev, Laws,

dafrymen held a method of differentiating

c. 65, 18, prohibiting issuance of license

dairmen according to the amount of busli-

to peddle to any one who has not declared

hhs intention of becoming a citizen, held

action. City of Birmingham v. Goldstein

not in violation of the fourteenth amendment

\[Ala.\] 44 S 113.

of the Federal constitution. Commonwealth

v. Hana \[Mass.\] 81 NE 149. Acts 29 Leg.

p. 364, 0.148, 9, held not invalid as denying

GS. Tax on dafrymen of fifty cents per cow

equal protection because act imposed similar

taxes on wholesalers of other goods at less

rate than on wholesalers of petroleum products. Texas Co. v. Stephens \[Tex.\] 18 Tex.

Ct. Rep. 775, 103 SW 481. Regulation applying to all plumners in cities of certain class

boefal not discriminative. Douglas v. People,

225 III. 536, 80 NE 341. Acts 29th Leg. p. 358,

c. 148, 9 12, imposing tax on owners of pipe

lines using same for conveyance of products

to others for hire, held not unconstitutional

because not imposing such tax on persons

using such lines for their own purposes

clusively (Texas Co. v. Stephens \[Tex.\] 18 Tex.

18 Tex. Ct. Rep. 775, 103 SW 481), or because

requiring that amount upon which occupation tax against pipe line companies transporting oil is to be calculated, includes not

only amount received for service to others

but also a sum calculated as the cost of

transporting their own oil, while such lat-

ter burden is not placed on owners of any

other pipe line business mentioned in the

section (Id.).

55. Pedders may be classified according to

their facilities for going from place to place

and carrying their wares. Servonix v. State

\[VWs.\] 113 NW 277. That all persons owning

or controlling pipe lines are included in the

first part of Acts 29th Leg. p. 358, c. 148,

$ 12, held to not preclude legislature from

making a further classification and applying

different rules among them (Id.).

56. Laws 1905, c. 490, p. 858, dividing pedders into those using a team, motor vehicle,

single horse, push cart, or pack carried on

foot for the distribution of their wares for

10 Curr. L-- 40:

the purpose of determining amount of Hi-

t
onal as discriminating against persons en-

cense fee, each class being charged a differ-

gaged in such business, as the act operates

ent fee, held valid. Servonix v. State \[VWs.\]

equally upon all in that class. Kennamer v. **113 NW 277**. Tax of fifty cents per cow on

State \[Ala.\] 43 S 482. Provision of Rev, Laws,

dafrymen held a method of differentiating

c. 65, 18, prohibiting issuance of license

dairmen according to the amount of busli-

to peddle to any one who has not declared

hhs intention of becoming a citizen, held

action. City of Birmingham v. Goldstein

not in violation of the fourteenth amendment

\[Ala.\] 44 S 113.

of the Federal constitution. Commonwealth

v. Hana \[Mass.\] 81 NE 149. Acts 29 Leg. p. 364, 0.148, 9, held not invalid as denying

GS. Tax on dafrymen of fifty cents per cow

equal protection because act imposed similar

taxes on wholesalers of other 686

LICENSES SS 2. 10 Cur. Law.

lowed in imposing a special tax upon a particular occupation or business as a source of revenue,65 but this doctrine applies only to licenses imposed upon useful occupation and not to lines of business harmful to public morals or productive of disorder in which case the police power may be rightfully exercised in the levy of such a license tax as will limit and discourage the business.66 The fact, however, that the revenue derived is in excess of that required for the purpose of regulation does not render it a tax under the revenue power when properly imposed under the police power.67

Footnote 67: The 1 10 Cur. Law. LICENSES SS 3. 627

municipal licensing act which is not in conflict with any general law of the state.71 While, under power to regulate a license, fee may be required sufficient to cover the cost of licensing and regulating,78 a municipality has no right to use the power to license and regulate as a means of raising revenue.79 In Georgia a municipality is without power to levy an occupation tax upon a commercial railroad doing business therein,80 nor can it segregate from such business a necessary incident and classify it as an occupation and tax it as such.81 The power and authority to license necessarily implies the right to fix the amount of the license fee,82 same being limited only by the requirement that the fee imposed must be reasonable and not oppressive,88 except where it is imposed under the revenue and not under the police power,84 but in any event the unreasonableness of the amount is not ground for judicial interference except where it is manifestly oppressive.86

SS 3. _Issuance and revocation._ See 5 C. L. 746

The application for a license must recite such facts as the law requires to appear 88 and its issuance is usually a mere ministerial act,87 which, when discretionary with the commission to whom power of issuance is delegated, cannot be compelled by mandamus notwithstanding the fact that the applicant possesses all essential qualifications,88 but in ascertaining the power of office to issue or refuse a license, occupations subject to prohibition in the discretion of the legislature must be distinguished from those subject to regulation merely.88

A license may be revoked upon only such grounds as are specified in the statute requiring it,89 and then only after notice and opportunity to be heard.81 The dele 628

LICENESS $ 4. 10 Cur. Law.

gation of power to a municipal board to require a license does not confer power to revoke it at will." Unauthorized acts of an agent of the licensee constituting a violation of the conditions upon which the license was granted may be ground for revocation." The petition for revocation must be brought in a court having jurisdiction," run in the name of the proper party," join all necessary parties " and must allege the ground therefor with sufficient certainty " which must be proved by competent " and sufficient " evidence. An action to cancel a license on the ground of fraud in procuring it is equitable in its nature," hence, the parties are not entitled to a jury trial as a matter of right."

SS 4. \_Interpretation of statutes and ordinances and persons subject.\_See s C. L. "+?--The time within which a licensing statute becomes operative," the powers of the officer to whom the carrying out of its provisions is delegated," the meaning of the terms used therein," the occupations to which it is applicable," the persons exempt,"

revocation for enumerated causes, license

cannot be revoked on any ground other than

Ter. \[Okl.\] 91 P 1037.

one of the causes specified. License to teach

no. Evidence held sufficient to show fraud

in public schools. Stone v. Fritts \[Ind.\] 82

in procuring physician's license on strength

NE 792.

1. Department of health held without

which was in fact a mere "diploma mill."

power to revoke milk dealers' license upon

Gulley v. Ter. \[Okl.\] 91 P 1037.

conviction for offense against sanitary law

without notice and hearing. People v. De-

Gulley v. Ter. \[Okl.\] 91 P 1037.

partment of Health, 117 App. Div. 856, 1037.

NYS 275.

92. There being no ordinance authoring

1st, 1906, making fiscal year begin September

revocation of milk dealers' license for con-

viction for offense against sanitary law,

board of health held without power to revoke

his license, People v. Department of Health,

117 App. Div. 856, 103 NYS 275.

93. Under Greater New York Charter,

$ 1481, Laws 1897, c. 578, p. 62, a license

of a theater is responsible for the acts of his

agents and hence his license may be revoked,

though acts constituting ground for revocation

broad to examine into qualifications of ap-

tion were contrary to his orders. In re City

of New York, 62 Misc. 606, 102 NYS 950.

94. District court held to have jurisdiction

over proceeding to revoke license to practice

medicine procured by fraud under St.

1883, $ 14, c. 8. Gulley v. Ter. \[Okl.\] 91 P

1037.

0001. Petition to revoke license to conduct

use streets with vehicles described whether

concert room running in name of police com-

missioner held proper under Greater New

Pegg V. Columbus, 10 Ohio C. C. (N. S), 199,

York Charter, $ 1476. In re City of New York,

62 Misc. 606, 102 NYS 950. That statute

as used in a statute relating to license is

quired complaint to be made by member of

synonymous with "trader." State v. Rosen-

territorial board of health held not to re-

baum \[Conn.\] 68 A 250. Acts 29th Leg., p.

quire action to revoke physician's license

358, c. 148, imposing tax on wholesale deal-

produced by fraud, to be brought by that

tors in oil products, construed, and one en-

body. Gulley v. Ter. \[Okl.\] 91 P 1037.

gaged in the wholesale oil business held a

6. Territory held a necessary party to an

achtion to revoke a physician's license

prox was bought for sale or purchased in a crude

cured by fraud. Gulley v. Ter. \[Okl.\] 91 P

1037.

0001. Petition to revoke concert room license

alleging belief of police commissioner in

whose name petition ran of alleged viola-

conveying passengers therefrom to various

tions, and the grounds thereof, and the

sources of his information, consisting of affl-

hack line under acts 1906, p. 200, requiring a

davits of witnesses of violations, held suffl-

licene meter. Commonwealth v. Walton,

client though no claim of personal knowl-

edge was made. In re City of New York, 62

p. 358, c. 148, 12, requiring pipe line com-

Misc. 606, 102 NYS 950.

98. Record of court of another state held

properly admitted, in action to revoke physi-

such sums as it would have been compiled

clan's license on ground of fraud in procuring

to pay for conveying oil owned by it and

ing it, to show that college from which de-

confanted claimed to have been graduated was

other pipe line company to convey it, held and the manner of computing the amount of the license fee,\* depend largely upon the construction placed on the particular statute. One engaged in several distinct taxable occupations is subject to a license for each,\* but mere incidents of a single occupation are not taxable as distinct occupations.\[10\] A license to maintain a business at one place gives no right to maintain it at another.\[11\] Proof of a single act is sufficient to create a presumption that a person is engaged in an occupation requiring a license,\[12\] and an exemption may be predicated upon evidence constituting a mere applicable to a company having no connec- \[their identity, creates a distinct product tion between its pipe lines and lines of others carrying oil for hire, and which could hed a manufacturer and exempt from 11- \[case tax. State v. Tichenor Antseptic Co. others. Texas Co. v, Stephens \[Tex.\] 18 Tex. 118 La. 685, 43 S 277. Under constitutional Ct. Rep. 715, 103 SW 481. Retail mercantile program exempting all but specified manu- \[documents from license tax, a gas company, at its store only in cash or merchandise held not being one of the enumerated exceptions, not a trading stamp company, within Ky. St. 1003, $ 422, imposing a license on such comm- \[documents from\]. Commonwealth v. Gibson Co., 31 Ky. L. R. 51, 101 SWV 385. Agent representing service company exclusively held liable for \[documents from\].

conclusion where to require a disclosure of the facts would involve the publication of a secret formula acquired at great cost.\[18\]

**SS 5.**_Assessment and recovery of license fees; prosecutions for failure to pay._ See * C. L. 750--An unpaid license may be recovered in an action as for debt \[14\] providing the claim is not barred by the statute of limitations,\[18\] but an action to recover a penalty for violation of a licensing ordinance cannot be maintained in behalf of a municipality without its consent.\[16\] The general laws have no application to a breach of a municipal ordinance requiring a license where the city was incorporated under a special act and not under the general laws,\[17\] but a municipal ordinance is a state law within the meaning of an act making the violation of a state licensing law a crime.\[18\] To justify a conviction, an actual violation of the law must be shown.\[19\] Under a statute empowering cities to license merchants and to provide for the enforcement of the tax imposed, a city may impose a penalty upon an agent or employe of an unlicensed merchant who assists in carrying on the business,\[20\] and such an ordinance places upon the employe the responsibility of ascertaining whether the tax was paid and the business licensed,\[11\] and where intent to disregard the ordinance is not made an element of the offense, intention is immaterial.\[22\]

**SS 6.**_Effect of failure to obtain._ See * C. L. 752--Nonprocurement of a license precludes recovery on contracts arising out of the business- for which a license is required,\[23\] but where a person has complied so far as he is able with the provisions of an ordinance requiring payment of an occupation tax, and has tendered the fee and demanded of the proper official a license which is refused through no fault of his, it is not unlawful for him to carry on a business which is otherwise lawful and which requires no supervision or regulation,\[24\] and he need not seek to compel issuance of a license by mandamus as a condition to recovery for work performed or material furnished.\[25\]

**SS 7.**_Disposition of license money._ See * C. L. 752

**SS 1.**\_Nature, Creation, and Indicia of a L1- * 2._Rights and Libabilities of Licenses, 631._ * 2._Rights and Libabilities of Licenses, 631._ * 2.

- 10Cur. Law. -- LICENSES TO ENTER ON LAND SS 1. -- \_Nature, creation, and indicia of a license and distinction from easements and other states.\_See S. C. L. 193--A license is authority to enter on the land of another for the purpose of doing some act thereon, without passing any estate in the land,24 but a license founded upon a valuable consideration may be such as to confer an irrevocable interest in the license.27 Unless an interest in land is created,28 a parol license is valid.29A license being a mere privilege is personal to the licensee 29 and is ordinarily revokable at the will of the licensor 31 in the absence of an agreement as to its duration; 32 but equity will not allow a licensor to withdraw this consent without compensating a licensee who has expended money on the licensor's land by reason of the license,33 and in Oregon, where the licensee erects improvements on the land of another on the faith of a parol license, same cannot be revoked to the prejudice of the party making the improvements.34 Being a mere permissive use, lapse of time does not create an estoppel to revoke.35 A license operates to estop the licensee from denying the licensor's title only during its existence and while rights are exercised thereunder.36

SS 2. \_Rights and liabilities of licenses.\_See S. C. L. 193--Substantial compliance with the terms of the license is all that is required.37

- 26One erecting a building on premises of another under agreement is at least a license. Towa-Minnesota Land Co. v. Connor \[Iowa\] 112 NNV 820.
- 27Grant in prafaeenti of right to lay pipes for conveyance of petroleum in land based on valuable consideration held to convey an interest in the land and not revocable as a mere license. Standard Oil Co. v. Buchi \[N. J. Eq. 4.27. Agreement by owner of land permitting another to build thereon and use same so long as building erected was used for certain purpose held to create more than a mere license revocable at will, but terminable only on death of such person or the cessation of such use. Frederic v. Mayers, 83 Miss. 127, 43 S 677.
- 28Agreement held to create a perpetual license in land which on death of licensee would descend to his hers, and hence required to be in writing under Rev. St. 1895, art. 624. Adams v. Wier \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 905, 99 SW 726.
- 29A parol contract permitting entry on land for the purpose of removing certain buildings held valid as a license. Volk v. Olsen, 54 Misc. 227, 104 NYS 415.
- 30Where a grantor attempted to reserve an easement in land conveyed, but the grantor did not sign nor seal the deed and hence did not convey an easement, the grantor possessed a mere parol license to enjoy an easement on part of the land conveyed which did not pass to his assignee Dawson v. Western Maryland R. Co. \[Md.\] 68 A 301. Under a provision in a license agreement rendering it nontransferable without the consent of the licensee, a silent partner of the licensee is not entitled to benefits thereunder in the absence of such assent. Conquer Gold Min, & Mill. Co. v. Ashton \[Colo.\] 80 P 1124. Permit to box and gather turpentine on lands owned by corporation held a mere license terminated by appointment of receiver for corporation. McKinnon-Young Co. v. Stockton, 58 Fla. 734, 44 S 237. Agreement by owner of fee in street, reciting consent to operation of previously argued to extend elevated road, held a mere license which was revoked by conveyance of the
  LISENS

8.1. Definition and Nature, 632.

8.2. Common-Law, Equitable, and Statutory

8.3. Rank and Priorities of Liens, 633.

8.2. Common-Law, Equitable, and Statutory

8.4. Walver, Exitinguhamen, Discharge, and

Lleens, 632.

A. Common-Law Liens, 632.

8.5. Enforcement and Protection of Liens,

B. Equitable Liens, 632.

G34.

C. Statutory Liens, 631.

Scope of topic.--This article treats only of liens in general, particular kinds of

liens being discussed in articles devoted specifically thereto or articles devoted to

the subject-matter to which the particular liens relate."

SS 1. Definition and nature.See 8 C. L. 755.--A personal liability does not result

from the mere existence of a lien."

SS 2. Common-law, equitable, and statutory liens. A. Common-law liens. See 8 C. L. 756

(SS 2) B. Equitable liens.See 8 C. L. 758.--An equitable lien may be created by

a contract showing an intention to charge some particular property," provided it
does not involve a fraud upon creditors." Such a contract will create a lien on

personal property though only verbal."

Where a part of the consideration for land

purchased by the committee of a lunatic in his own name is paid out of the funds

of the lunatic, the latter has an equitable lien in the land for the amount so

pended."

A tenant who takes possession under a contract void under the statute

of frauds has a resisting equity for any outlay or valuable improvement he puts

upon the land by reason of the tenancy."

A mere volunteer without interest who

pays a mortgage on another's property does not thereby acquire an equitable lien

thereon."

The wrongful conversion of property does not entitle the owner to a lien

either on the property converted or other property belonging to the wrongdoer."

One in possession and claiming title to another's land cannot create an equitable lien

thereon in favor of a person loaning money for the erection of improvements,

with
knowledge that the title is disputed, that can be enforced against the land in the

possession of the real owners."

8.5. See Agency, 9 C. L. 58; Agriculture, 9 V. Lee's Adm't, 30 Ky. L. R. 619, 99 SWV 306.

C. L. 82; Animals, 9 C. L. 100; Attachment, 9 C. L. 100; Attachment, 9 C. L. 282; Attorneys and Counselors, 9 C. L., secret lien cannot be created in favor of

300; Auctions and Auctions, 9 C. L. 318; brokers who purchase goods for a bankrupt

Brokers, 9 C. L. 413; Carriers, 9 C. L. 465; to be used and consumed in his business. Id.

Corporations, 9 C. L. 733; Executions, 9 C. L. 42. Goodenough Mercantile & Stock Co. v.

128; Factors, 9 C. L. 134; Forestry and

Galloway, 165 F 504.

Timber, 9 C. L. 1408; Inns, Restaurants, and

An owner of standing timber may, by a

Loding House, 10 C. L. 285; Judments,

verbal agreement, create a lien on the logs

10 C. L. 467; Landhorst and Tennant, 10 C. L. 517; Mechanics' Liens, 8 C. L. 954; Mort-

Goodenough Mercantile & Stock Co. v. Gallo-

gages, 8 C. L. 1022; Pwnbrokers and Sec-

way, 156 F 504.

ondhand Dealers, 8 C. L. 1387; Pledges, 8 C. L. 1431; Railroads, 8 C. L. 1590; Sales, 8 C. L. 1751; Shipping and Water Traffic, 8 C. L. 1903; Vendors and Purchasers, 8 C. L. 2116.

cored. Goodenough Mercantile & Stock Co. v.

39. Vindt v. Covert \[Cal.\] 93 P 67.

01. Goodenough Mercantile & Stock Co. v.

41.3 Storm v. McGrover, 189 N. Y. 558, 82

Galloway, 156 F 504. Where a son loaned

lunatic's next of kin and not to his heirs.

chase land upon her promise to give him a

l1.

then on the land to be expressed in the deed,

and deed, while not expressing existence of

lien, recited that cash payment had been

634.

made by son, and letters subsequently re-

ceived by son from both parents acknowledg-

edged indebtedness to him and gave assur-

Brown, W. Brown \[Miss.\] 43 S 178.

ances that-he had under terms of deed been

given a lien, it was held that son had an

18 Tex. Ct. Rep. 836, 100 SWV 1164.

equitable lien, which he could enforce

47. Armstrong 10 Cur. Law. LIESN SS 3. (SS 2) _C. Statutory liens._ 58.5 C. L. 1971--The thresher's lien laws of Minnesota 48 and South Dakota 49 have been held constitutional. It is essential to the validity of a statutory lien that it be perfected in the manner prescribed by statute.54 A statutory lien which attaches to the claim rather than to the claimant is assignable.51

Footnote 54: The _C. L._ 1971--The thresher's lien laws of Minnesota 48 and South Dakota 49 have been held constitutional. It is essential to the validity of a statutory lien that it be perfected in the manner prescribed by statute.54 A statutory lien which attaches to the claim rather than to the claimant is assignable.51

Footnote 55: The _C. L._ 1971--The thresher's lien laws of Minnesota 48 and South Dakota 49 have been held constitutional. It is essential to the validity of a statutory lien that it be perfected in the manner prescribed by statute.54 A statutory lien which attaches to the claim rather than to the claimant is assignable.51

Footnote 56: The _C. L._ 1971--The thresher's lien laws of Minnesota 48 and South Dakota 49 have been held constitutional. It is essential to the validity of a statutory lien that it be perfected in the manner prescribed by statute.54 A statutory lien which attaches to the claim rather than to the claimant is assignable.51

Footnote 57: The _C. L._ 1971--The thresher's lien laws of Minnesota 48 and South Dakota 49 have been held constitutional. It is essential to the validity of a statutory lien that it be perfected in the manner prescribed by statute.54 A statutory lien which attaches to the claim rather than to the claimant is assignable.51

Footnote 58: The _C. L._ 1971--The thresher's lien laws of Minnesota 48 and South Dakota 49 have been held constitutional.

634LISIS SS 4.10Cur. Law. priority over an attachment thereof.\[61\]A claim based on a recorded contract of sale reserving title in the claimant cannot be defeated by a lien subsequently arising.\[62\]

SS 4.\_Waiver, extinguishment, discharge, and revival.See $ C. L. 750--An attachment of property constitutes an abandonment of an equitable lien thereon.\[63\]A lien may be waived by parol,\[64\] or by conduct of the lienholder inconsistent with the existence of the lien.\[65\] To constitute a waiver the acts or omissions made the basis thereof must be relied upon and serve as an inducement to the doing of something which would otherwise not have been done.\[66\]A lienholder may by his conduct be estopped from asserting his lien.\[67\]

SS 5.\_Enforcement and protection of liens.See $ C. L. 750--A lienholder may in a proper case sue for the conversion of the property,\[68\] even though he was out of possession at the time of the conversion,\[69\] or he may sue to recover possession from one who wrongfully withholds it,\[70\] but an action for the conversion of property upon which plaintiff claims a statutory lien cannot be maintained if all preliminary requirements essential to the existence of the lien have not been complied with.\[71\]A demand is not an essential prerequisite to a suit for conversion where it is evident that it would be wholly ineffectual.\[72\]

_Slatutory proceedings to enforce or foreclose.See $ C. L. 751--Before a statutory lien can be foreclosed, all preliminary statutory requirements must be complied with.\[73\]Where a lien is claimed for the amount due for labor, part of which is lienable and part not lienable and there is no proof produced so that one can be separated from the other with reasonable certainty, the entire claim must be denied.\[74\]Many matters relating to statutory proceedings to enforce liens necessarily depend upon the construction of particular statutes.\[75\]_

61City Nat. Bk. v. Crahan \[Iowa\] 112 NW 71. Fact that bond required to be filed by Rev. Pol. Code, $145, before use of steam theyhrseling machine, is signed by "William

sary supplies furnished sawmill under Civ. Code 1895, $280, Tiff. Voqlurie Lumber

name of W. J. Hahn, where the names are of the same person, will not invalidate the

63City Nat. Bk. v. Crahan \[Iowa\] 112 NW 713.

64, 65. Van Gordon v. Goldamer \[N. D.\] 113 NW 713.

65. But for conversion of grain by one

01. That one having a thresher's lien on grain made no objection to its removal by

Sleepy Eye Mill. Co. \[S. D.\] 112 NW 843.

purchase from premises upon which it was

theshed does not constitute waiver of lien

if purchaser was not mailed thereby. Hahn

v. Sleepy Eye Mill. Co. \[S. D.\] 113 NW 843.

67. Frankfort & C. R. Co. v. State Nat. Bk.

01. McGoverse v. Stanton-De Long Lumber

81 Ky., L. R. 323, 102 SWY 243. Upon sale of

property of a railroad company, company

guaranteed that its current indebeness did

not exceed its current assets. A bank was a stockholder in company, held a lien on part

property does not release the specific lien deducing. If its property, and though its cashler was

cred by the Judgment.chuk. S. Schultz

a party to negotiations for the sale. It was

belt that bank, its failure to bring forward

where the holder of a special lien is com-

its lien claim having misled purchaser, was

estopped from enforcing its lien. Id.

tection, he may enforce payment of the

68S. May sue purchaser who denies his

amount as part of the claim for which his

right. Hahn v. Sleepy Eye Mill. Co. \[S. D.\]

712 NW 843.

69. Hahn v. Sleepy Eye Mill. Co. \[S. D.\]

01. Th where statute gives lienholder right of

01. Th where statute gives lienholder right of

possession for purpose of foreclosure. Phelan

v. Terry \[Minn.\] 112 NW 872. One who has

constructed a special lien within meaning of

protected a thresher's lien under Rev. Laws

1905, $3546, 3547, may maintain claim and

followery to recover possession of grain covered thereby. Id.

defined. Id.

10 Cur. Law. LIMITATION OF ACTIONS SS 1:

Equitable remedies and procedure.See S. C. L. 761.--It is of course essential that all necessary parties should be brought in in a suit to foreclose a lien.74 A judgment foreclosing a lien cannot be rendered if the plaintiff's petition contains no prayer therefor.71 The burden is upon the plaintiff in a foreclosure suit to establish his case as laid.78 The findings of the court must be sustained by the evidence.79 The fact that proceedings to enforce liens against property subject to a prior mortgage are not prosecuted to final judgment will not, where the property is sold under foreclosure proceedings, defeat the lienholders' priority over a subsequent attachment creditor in the surplus remaining after satisfaction of the mortgage.86

## 11 LIFE ESTATES, REEVERSIONS AND RERAILDERS.

LIFE INSURANCE; LIGHT AND AIP, see latest topical index.

## 12 LIGHTATION OF ACTIONS.

- 1. The Statutes; Validity and Application
- 1. Postponement, Interruption, and Reviewal, 646.
- 2. Classes of Actions and the Respective
- 2. Trusts, 647.
- 3. Acerual of Cause of Action and Beginning of Period, 638. As Between Stockholder, Corporation, and Credit, 642. Mistake and Fraud, 642. F. A New Promise to Pay or Acknowl-edgment of the Obligation, 649. Period, 644.
- 4. Time Tolled and Computation of the Obligation, 649. Period, 644.
- 5. What Is Commenceence of Action, 644. A. In General, 644. B. Amendment of Pleading, 644. C. Nonsuit and Dismissal, 645.
- 6. The scope of this topic is noted below.82
- 1. The status; validity and application generally.See S. C. L. 768--Status of limitation are statutes of repose operating to bar the right of action and not to transfer any right.83 They go to the remedy, not to the cause of action, and do not extinguish the debt.84 They proceed upon the presumption that claims are
- 1. After a lienor has parted with his in-test in the property, he is not a necessary party to a foreclosure suit against his ven-dee, where no personal judgment is sought. Slaughter v. Dallas (Tex. Civ. App.) 18 Tex. Ct. Rep. 689, 103 SVP 218. This rule was not changed by Rev. St. 1895, art 1340. Id. In action to enforce equitable lien against property in hands of a truste in bankrupt, neither bankrupt nor person from whom he purchased property were necessary parties. Goodenough Mercantile & Stock Co. v. Galloway, 156 F 504.
- 77. Prayer for general relief insufficient. Russell v. Deutschman (Tex. Civ. App.) 18 Tex. Ct. Rep. 896, 100 SVP 1164. Prayer that if plaintiff has not prayed for the specific relief to which in equity and good conscience he is entitled he granted "such relief as the nature of his case demands, and which may be required, to the end that he recelve all the proper and needful protection in his property rights and the benefits which in law or equity he should receive, from which he has, by the unlawful acts of the defendants, been excluded," is not sufficient basis for judgment foreclosing lien. Id.
- 78. Krowell v. Atkinson \[Ga. App.) 59 SE 316. When a clerk seeks to foreclose a lienor, he assumes burden of proving that by reason of nature of his employment he can properly be classed as a laborer. Id.
- 79. Evidence held to sustain finding that parents advancing money to child for purchase of land did not reserve any lien for their advances. Clapp v. Erway \[Wash.\] 89 P 883.
- 80. Maguire v, Spaulding, 194 Mass. 601, 80. NNE 587.
- 81. See S. C. L. 762. The matter comprehend in this title will hereafter be treated in the topic Real Property.
- 82. It includes all matters relating to the operation of general statutes of limitation.
- 83. Verifiable Hot Springs Co. v. McCray, 160 Va. 461, 65 SE 216.
- 84. Foot v. Burr \[Colo.\] 92 P 238; Holmquist v. Gilbert \[Colo.\] 92 P 232.

636 Limitation of actions SS 10 Cur. Law.

extinguished when they are not litigated in the proper forum within the period prescribed, and they take away all solid ground of complaint, as they rest on the negligence of the party suing.\[85\] The plea of limitations, based on one statute, will not admit the defense of another statute,\[86\] nor will exceptions in a general statute be applied to a special statute of limitations.\[87\] An.amendment, however, limiting actions for injury or death, affects all actions previously acured and not barred,\[88\] but a repeal of the statute will not affect pending actions,\[89\] and a statute not designed to create an exclusive remedy will not be held to work a bar.\[90\] A statutory provision that no action shall be brought unless notice thereof shall be given defendants is a statute of limitations and applies to both domestic and foreign corporations.\[91\] As it is actions that are barred by the statute, and not defenses to such actions,\[92\] the nature of the cause of action, and not its form, determines its application.\[93\] The rule that courts of equity will apply statutes of limitation, barring suits that are barred at law, does not obtain where the party was ignorant of the necessity of action and the rights of third parties not prejudiced,\[94\] nor where action was barred in a court of law not originally having jurisdiction but subsequently acquiring it.\[95\] Statutes of limitations are not applicable to causes of which courts of equity alone take cognizance,\[96\] such as actions for specific performance,\[97\] and the limitations prescribed for actions of tort will not be applied to actions founded on contract,\[98\] nor will the statute apply to a proceeding to revoke a physician's license,\[99\] nor does the general statute apply to proceedings to revive dormant judgments,\[1\] nor do the statutes applicable to actions against officers upon a liability by doing acts in official capacity and by virtue of office apply to actions against such officers for money had and received for official services upon untrue statements,\[2\] nor will the statute' be applied so as to give it a retroactive effect.\[3\] But the rule that limitations do not affect defenses properly applicable to plaintiff's cause of action has no application to cross actions,\[9\] and they are applicable where one grantee seeks to hold another as trustee of the legal title,\[9\] but courts of equity in applying the statute of limitations to trust estates

85. Patterson v. Safe Depoit & Trust Co. during the running of the statutes of limitation. Nichols v. Nichols, 79 Conn. 644, 66 A 161.

01. The twenty year statute having been pleaded, a statute adopting the common law accounting. Stevenson v. Markley \[N. J. v. Clifford \[Ca1.8\] S P 850.

01. Lewis V. Pawnee Bill's Willa West Co.

01. Sult to establish resulting trust. Patrick v. Stark \[W. Va.\] 59 SE 606.

01. Old law limited action to two years. Amendment limited them to one year. Limitation reduced to one year from time amendendment went into effect. Crothers v. Edison Elec. Co., 149 F 606.

01. Leight Valley R. Co. v. Comar \[C, C. A.\] 151 F 558.

01. Vit. St. 2810, relates to further hearing

01. In probate court and not to the time within

01. In probate court and not to the time within

01. Inolime Millburn & Stoddard Co. v. Van

01. Boskirk \[Web.\] 111 NW 606.

01. Bock, 79 VT, 449, 65 A 577.

01. Dev. St. 422, subd. 5. Arp v. Allia

01. Chalmers Co., 130 Vis., 454, 110 NW 385.

01. State v. Tanner \[Vash.\] 88 P 221.

01. Action for damages for permanent

01. prepossas to land is barred in three years.

01. W. McNeill \[S. C.\] 59 SE 986.

01. W. Robertson \[Tex. Civ. App.\] 17 Co., 150 CAI. 624, 89 P 599.

01. Action for accounting of rents and

01. W. Robertson \[Tex.\]

01. Poston v. Targhands, Morse & Co. \[Tex.\]

01. W. Robertson \[Tex.\]

01.

10 Cur. Law. LIMITATION OF ACTIONS $ 2. 637 will look to the facts and circumstances and construe the case outside of the bar as dictated by equity and good conscience.\* A 'foreclosure proceeding by a trustee, however, not being an action, is not affected by the statute.' In the several states different periods for different actions are prescribed, as, for instance, actions on judgments by confession,\* actions for an accounting for personal property,\* actions for revision of and for mistake,\[10\] actions on stockholder's liability,\[11\] actions to recover money deposited as margins,\[12\] and in Texas the three year limitation is applied when title to land is involved, and neither title nor color of title is shown.\[13\]

_The statutes do not run against the state_ See * C. L. 770 or the United States as to any claim for relief in a purely governmental matter,\[14\] but if it is clear from a statute that limitation shall run against the state, it will do so.\[15\] The statute does not run against a municipality in its governmental capacity,\[16\] hence, it will not run against the right of a city, town, or village to maintain action to recover title or possession to a road, street, alley, or other public grounds.\[17\] .

_Limitation is governed by the law of the forum._\[See * C. L. 770--The general rule is that the lex loci contractus must govern as to the validity, interpretation, and construction of the contract, but the remedy to enforce it, or to recover damages for its breach, must be pursued according to the law of the forum,\[18\] hence, in actions on contracts,\[19\] in the absence of statutory exceptions,\[20\] the limitation of action on an insurance policy is governed by the laws of the state where suit is instituted.\[21\] But an exception has been made where the difference between the two statutes are minor ones, not affecting their common purpose or the domestic policy of either of the two states,\[22\] and also in case of special statutory rights of action wherein the limitation imposed is deemed an essential part of the cause of action.\[28\]

_The defense of the statute may be waived\[24\]_ by a failure to assert it.\[28\]

SS 2. \_Classes of actions and the respective periods.\[See * C. L. 771--The character of the liability, whether contractual or penal, will determine what period applies.\[26\] To illustrate, actions for injuries to personal property,\[27\] or trespass on land, as by

- 6. Huntington Nat. Bk. v. Huntington Distilling Co., 152 F.240.
- 7. Mills' Ann. St. $ 2900, limiting certain actions to six years, has no application to deeds of trust. Holmquist v. Gilbert \[Colo.\] 92 P 232; Foot v. Burr \[Colo.\] 92 P 236; Breetton v. Benedet \[Colo.\] 92 P 288.
- 8. Limited to twenty years, Code 3447, Gliman v. Heitman \[Iowa\] 113 NW 932.
- 9. Limited to five years, McCord v. McCord (Iowa) 113 NW 852.
- 10. Limited to five years, Code Civ, Proc. $ 318. Union Ice Co, v. Doyle \[Cal. App.\] 92 P 112.
- 11. Limited to three years, Code Civ. Proc. $ 359. O'Neill v. Quarnstrom \[Cal. App.\] 92 P 391.
- 12. Limited to six years, Randolph v. Walker \[$ C.\] 89 SE 856.
- 13. Beale's Heirs v. Johnson \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 917, 99 SW 1045.
- 14. Proceeding to enforce judgment after ten years. United States v. Noojin, 155 F 677.
- 15. Laws 1905, c, 1, p. 3, applicable to action by state against railroad company for accounting as to license fees. State v. Chalcago, etc., R. Co. \[Vis.\] 112 NW 816.
- 16. Quinn v. Baage \[Iowa\] 114 NW 205.
- 17. City of Lincoln v. McLaughlin \[Neb.\] 112 NW 363.
- 18. Galliber v. State Mut. Life Ins. Co. \[Ala.\] 143 S 833; Klages v. Kohl, 127 III, App.

cutting timber,28 or by the erection of switch tracks and embankment,29 or to recover value of land 'taken and damages to adjacent land by a railroad,30 for pollution of water,31 obstructing flow of surface water,32 and for flooding lands.33 Different periods are prescribed for actions on written contract,34 sealed or unsealed,35 such as promissory notes,36 covenants,37 suits for the enforcement of mortgages,38 to recover on contractor's bond to the government30 for the delivery of goods sold,40 on written contracts containing express agreements to pay,41 or in installments;42 and the statute is not affected because, to make out the case, performance by plaintiff and breach by defendant had to be shown.43 In like manner different periods are usually prescribed for actions on judgments,44 or to vacate judgments for fraud,45 to actions for contribution to party-wall,46 to actions for accounting,47 actions of trespas to

\\begin{tabular}{l l} & \\ & try title,48 to correct acknowledgments,40 to reform 50 or cancel instruments,51 to enforce stockholder's liability52 or to redeem corporate stock,53 to reduce street assessments,54 action against municipality for injury by change of grade,55 to recover compensation of street railway company by municipality,56 to actions for conspiracy to injure by libel or slander,57 action to compel issuance of paid up life policy,58 actions for fraud,59 to set aside deeds for fraud,60 to set aside sales for want of consideration,61 and to actions on claims of which inadequacy of price is the predicate,62 to actions for damages for embezzlement,63 probate of will,64 of trover 65 and conversion,66 to enforce liabilities created by statute,67 when no other time is fixed by the statute creating. the liability,68 to enforce collection of license fees,69 and to recover penalties.70

Footnote 48: Limited to two years, Sanborn v. Crow-dus Bros. \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 739, 99 SVV 444.

Footnote 49: Limited to four years, notwithstanding nonresidence. Veeder v. Gilmer \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 957, 105 SVV 381.

Footnote 50: Limited to ten years. Stark v. Zehnder 204 Mo. 442, 102 SVV 992.

Footnote 51: Limited to four years in Texas. Mexican Nat. Coal, Timber & Iron Co. v. Frank, 154 F 217.

Footnote 52: Limited to six years. Ramsden v. Knowles, 151 F 718; Id. \[C. C. A.\] 151 F 721.

Footnote 53: Suit by pledgtor to redeem corporate stock from a transfer of pledge is limited to ten years after accvall of action in a case where a limitation is not specially prescribed. Treadwell v. Clark \[N. Y.\] 82 NE 505.

Footnote 54: Rev. St. SS 482, limiting to four years the time for bringing certain actions, does not apply to an action for the reduction of a street assessment in excess of benefits. Gault v. Columbus, 10 Ohio C. C. (N. S.) 263.

Footnote 55: Limited to two years, under Bailinger's Ann. Codes & St. SS 4805. Denney v. Everett \[Wash.\] 89 P 34.

Footnote 56: Action by city to recover of street railway company compensation for location of tracks limited to six years. Asbury Park, etc., R. Co. v. Township Committee of Neptune Tp. \[N. J. Eq.\] 67 A 790.

Footnote 57: An action for conspiracy to injure one by libel or slander and an action for libel or slander are not so identical in character as to bring them both into one category under the statute of limitations, and where the conspiracy forms the gist of the action and the libel or slander is merely incidental to the accomplishment of that purpose, the action is not barred by the statute applying to libel or slander. Zurhorst v. Kroll, 10 Ohio C. C. (N. S.) 228.

Footnote 58: Limited to ten years after expiration of six months after default. Collman v. U. S. Equitable Life Assur. Soc., 133 Iowa, 177, 110 NYV 444.

Footnote 59: Limited to ten years when constructive. Chormmann v. Bachmann, 104 NYS 151.

Footnote 60: Limited to ten years from time fraud discussed, or, with reasonable diligence should have been discovered. Gordon v. Anderson \[Miss.\] 44 S 67.

Footnote 61: Limited to four or ten years, depending on the circumstances. Rudolf v. Costa, 119 Lab. 781, 44 S 477.

Footnote 62: Limited to four years. Fontenette v. Kling, 118 Lab. 152, 42 S 756.

Footnote 63: Limited to three years by Gen. Laws, c. 285, SS 38. Williams v. Smith \[R. L\] 68 A 308.

Footnote 64: Limited to ten years. Mullins v. Fidelity & Deposit Co.. 30 Ky. L. R. 1077, 100 SVV 256.

Footnote 65: Limited to six years by Rev. St. 1898, 4 2292. Palmer v. O'Rourke, 130 Wis. 507, 110 NYV 889.

Footnote 66: Limited to three years by statute. Code Civ. Proc. SS 338, subd. 3. Allsopp v. Joshua Hendy Mach, Works \[Cai. App.\] 80 P 38.

Footnote 67: Limited to five years. Anan. St. 1906, p. 2349. City of Moberly v. Hassett \[Mo. App.\] 100 SWV 115.

Footnote 68: Limited to five years, Ky. St. 1903, 2515, applied in action to enforce lion for street improvements. Waggoner v. Frankfurt Coumclmen, 80 Ky. L. R. 847, 99 SVV 918.

Footnote 69: Action by state to enforce collection of railroad license fees limited to six years. State v. Chtcago, etc. R. Co. \[Wis.\] 112 NYV-515.

Footnote 70: To recover penalty for refusal by street railway company to give 640 LIMITATION OF ACTIONS SS 3. 10 Cur. Law. not until the courts have jurisdiction to adjudicate between the parties upon such cause and bind them by decision.10 To say that a "cause of action arose," means that it "acerved." The terms are synonymous.11 Where a condition precedent to a right of action exists, the cause of action does not accrue until the condition is performed,18 and, where parties are entitled to a reasonable time to perform, a cause of action for failure to do so does not accrue until the lapse of such reasonable time.19 Hence, on a contract for the sale of logs which stipulates for their measurement after delivery, action does not accrue until after the lapse of a reasonable time after such delivery.10 The right to sue for a personal tort accrues on commission of the tort,11 hence, the right to sue for malicious prosecution accrues when the prosecution is terminated.12 Right to sue for breach of contract,12 or covenant accrues with the breach,12 except that breach of a covenant of seizure accrues when covenantee suffers actual loss,12 and breach of an implied warranty of fitness of machinery accrues on its installation, without reference to plaintiff's knowledge, and irrespective of the date of subsequent consequential damage.13 If there be several contracts to furnish material for government work, the statue begins to run when work on any one is finished, though the preliminary contract only contemplated one contract for the entire work.14 Right of action on judgment accrues at the time of its entry,14 but to enforce a liability over, based on judgment, on the affirmance of the judgment.15 Actions to annul a donation accrues on the death of the donor,15 and to sue for services, when such services are due.15 To redeem stock action accrues when plaintiff knows of defendant's wrongful possession,16 and to recover a railroad license fee by the state the right accrues when the last instalment thereof is due.16 The statute does not begin to run against a ward from the time he acquires the right to call for an accounting,17 nor is it started against the bailor's right to recover property 75. Where grantee of land agreed to con-, Clinton v. Clinton's Estate, 148 Mich. 496, 14 vey on demand, the statute did not begin to run until demand and refusal. Cromwell v. Norton, 193 Mass. 291, 79 NE 43. 76. Judgment in 1858 in Missouri. Removal of defendant to Illinois in 1901. Claim filed in latter state, 1905, after defendants death seizure, July 1, 1982, surrender to paramount in 1902. Not barred by statute limiting actions on foreign judgments to five years. Draws v. Senate of William Pohlman, 128 thing, 124 Mo, App. 674, 102 SW 40. 111. App. 206. 86. Action on purchase-money note and cross bill setting up breach of warranty. 78. Ott v. Borling, 131 Wils. 472, 110 NWV 824, 111 NWV 838, 112 SW 908, aff. 17 Tex. Tex. Ct. Rep. 636, 102 SW 908, aff. 17 Tex. 79. Dead to railroad company in 1839 of land, in consideration of the company's building a depot thereon. Action to cancel deced not barred in 1905. Louisville, etc., R. Co. v. Bankett, 31 Ky., L. R. 108, 104 SW 955. 80. Contract for sale of logs to be measured after delivery. Logs escaped before measurement and not recovered. Delivery Dec. 30, 1902, and action Jan. 3, 1905, not barred under two year limitation. Southern Pine Lumber Co. v. Cameron (Tex. Cliv. App.) 18 Tex. Ct. Rep. 1, 101 SW 488. 84. Action to hold bank liable for money paid to receiver, such payment being a participation in a breach of trust by such receiver. American Nat. Bik, v. Fidelity & Dep posit Co. (Ga.) 88 SE 867. Action for Injuries received by street car. Indianapolis St. R. Co. v. Fearnaught \[Ind. App.\] 83 NE 102. 82. Hackler v. Miller \[Neb.\] 114 NWV 274. 83. Agreement to pay mortgage within two years. Action accrue on failure to pay, 185.

of the downress at the death of such downress,\[20\] but to restrain the operation of a rail-way the cause of action accrues only when the road is completed and operations being.\[21\] Action for permanent trespass,\[22\] or nuisance accrues at the time of such trespass or nuisance,\[22\] and the fact that plaintiff has failed to discover the character and cause of the injury cannot change the rule,\[24\] hence, action for damages to land taken for writs accrues when the land has been entered for that purpose,\[25\] for damages resulting from a nuisance in the erection and operation of a water-tank by a railroad company on its erection and operation,\[26\] for the taking of a right of way, on the taking, and construction of the road,\[27\] and for damages for pollution of a stream and incident deposits on land at the time of the injury.\[28\] But where an act, not of itself a nuisance, becomes so only at intervals, the cause of action arises on receipt of each injury,\[29\] hence, action for damages to latteral support accrues at the time the injury is done and not at the doing of the act from which the injury resulted,\[30\] and for damages resulting from the negligent construction of a levee on the occurrence of the damage.\[31\] The statute does not run against the right to abate a continuing nuisance.\[22\]

_As between stockholder, corporation, and creditor.\[28\]_ See s c. L. 778--Right of action against a corporation for the refusal to issue new stock to a shareholder accrues on such refusal,\[33\] and the right of a creditor to recover a purchaser of its property accrues on the day of the purchase,\[34\] but the right of creditors to sue in equity to enforce an equitable lien against corporate property does not accrue until judgment at law and return of nulla bona.\[35\] Action accrues on a stockholder's liability for his proportion of corporate debt when it is created,\[26\] on his liability on debenture bond at the dissolution of the corporation, whether the debt is matured or not,\[37\] and the statute does not begin to run in his favor for an assessment decreed against him until such decree is rendered and receiver appointed,\[38\] nor against enforcement of his liability by a creditor till rendition of judgment and return of nulla bona.\[39\]

_Mistake and fraud.\[35\]_ See s C. L. 778--Actions for relief on the ground of mistake do\_

bankknient. St. Louis, etc., R. Co. v. Hoshall \[Ark.102\] 102 SWV 207; International, etc., R. Co. v. Kyle \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 940, 101 SWV 272; Gulf, etc., R. Co. v. Caldwell \[Tex, Civ. App.\] 18 Tex. Ct. Rep. 539, 102 SWV 461.

_30._ Simon v.\_ Nance \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 539, 102 SWV 461.

_31._ Barnett v. St. Francis Levee Dist. 156 Mo. App. 61, 102 SWV 583.

_32._ Wright v.\_ Ulrich \[Colo.\] 91 P 43.

_33._ Action against stockholder on pote nuisance bared in five years. Virginia Hot Springs Co. v. McCray, 106 Va. 461, 65 SE 216.

_35._ Under Rev. Laws, c. 48. 13, the award is payable on entry for purposes of construct-ing the street. Averill v. Boston, 193 Mass.

_48._ 80 NE 583.

_36._ Texas, etc., R. Co. v. Edrington \[Tex.\]

_37._ Ckb v.\_ Wrightsville & T. R. Co. \[Ga.\]

_38._ Action by landowner against coal and iron company for polluting stream and depositing on land coal dust, ore-washings and muck, resulting in loss of crops, held entitled to damages caused within a year from commencement of suit. Alabama. Consol. Coal & Iron Co. v. Vines \[Ala.\] 44 S 317.

_39._ Action to recover damages of railroad company for injury to land caused by improper construction of roadbed and em-inpg.\[39\]

_40._ 41.\_ 42.\_ 43.\_ 44.

- 10Cur. Law. LIMITATION of actions SS 3. 643

not accrue until the mistake is discovered,40 hence, action for shortage in land, caused by mistake, accrues only when the shortage is discovered, or should have been discovered, by the exercise of ordinary diligence,41 but the right to have a mutual mistake in a deed corrected accrues when such mistake is made.42 Whether the mistake was discovered within the statutory period is a question of fact,43 and a party will not be heard to allege mistake not discoverable by ordinary diligence if the facts were plainly shown by the court records.44 In some jurisdictions fraud in no instance postpones the running of the statute, save the specified exceptions in the statute,45 while in others action may be brought at any time within the statutory period after discovery of the fraud,46, 47 but actual knowledge of the fraud is not necessary,48 yet notice imparted by the records will not constitute constructive discovery of fraud where for special reasons, the aggrived party ought not to be found.49 Where relief is sought, however, on the ground of fraud, some reason why the discovery was not sooner made must be given 50 and ignorance and diligence must be shown.51 Hence, in an action to recover money paid through fraud or mistake, the plaintiff must show the payment was induced by such fraud or mistake, and that he had failed to discover it after due diligence before the statute had run.52 Fraudulent concealment of a cause of action from the party entitled thereto, to prevent the running of the statute, must be something of an affirmative character,58 and the claim that the fraud was'concealed is rendered valueless by the showing that the means of discovering it were open to the party at the time he claims to have been affected thereby.54 The statute begins to run in favor of a third person, to whom has been fraudulently diverted partnership funds, immediately upon the diversion, if the injured partner knew of it,55 and action for damages sustained through fraud accrues on perpetration of the fraud.56 Statutes

- 40West v. Fry, 134 Iowa, 675, 112 NW 184, conveyed to satisfaction of judgment ob-Suit to set aside decree of distribution, Balanced in 1894 brought Nov. 14, 1908. Held.
- 41Peaceok v. Barnes, 142 N. C. 215, 65 SE
- 42Action to enforce lien and reform contract, Stark v. Zehnder, 204 Mo. 442, 102 SW 992.
- 43Agreement in 1892 between father and son by which latter, on doing certain acts, was to have certain insurance money otherwise going to his sister. Receipt in full to -son by sister of all demands due her, at which time trust was terminated, and evidence that she was present and consented to the conditional disposition of the money, held sufficient to show she knew the facts of the case. Marston v. Kuhland \[Cal.\] 30 P 108.
- 44Action to surcharge tax collector's accounts. Green County v. Howard \[Xy.\] 105 SW 897.
- 45Action by state against railroad for accounting and discovery of license fees, and subd. 7, $ 4222, St. 188, applied. State v. Chicago, etc., R. Co. \[Vis.\] 112 NW 815.
- 46, 47. Anderson v. Fry, 116 App. Div. 740, 102 NYS 112. Action for decree declaring defendant trustee for benefit of plaintiff of certain reality which it was alleged defendant -obtained title to by fraud. Delmoe v. Long, 35 Mont. 139, 88 P 178. Action by joint tenants to set aside partition sale in suit brought by ootenant, and to charge purchaser as trustee because of fraud of said cotenant and purchaser, controlled by three and not ten year statute. Tuttle v. Tuttle \[N. C.\] 59 SE 1008.
- 48D Deed to defraud creditors recorded on Feb. 8, 1897. Action to subject property 683.

644 LIMITATION OF ACTIONS SS 4. 10 Cur. Law.

limiting the time for relief on the grounds of fraud do not apply to actions to have the foreclosure of a trust deed set aside for fraud,57 and though the action for a fraud may be barred within a limited time after the right accrues, the defense of fraud is never barred.58

SS 4. \_Time tolled and computation of the period.\_See s c. L. 718--The day on which a cause of action accrues,59 or the time during which an obstruction continues, should not be computed in the limitation period.60

SS 5. \_What is commencement of action. A. In general.\_See s c. L. 718--Not only must petition be filed, but there must be a bona fide intention that process shall at once be served,61 hence, merely filing a will and ordering a subpoena issued for sub-scribing witnesses is not such commencing of action as to suspend the statute,62 nor where action begun and proceedings had in a court without jurisdiction,63 nor will an execution on a judgment against a party deceased suspend the statute,64 nor a scire facias sned out not followed by fiat within the statutory period,65 but judgment, without steps to enforce it,66 or service of citations, with copies of petition, though the citations be without seal,67 or a citation improperly addressed,68 or filing claim within the statutory period, though it be not immediately acted upon and no express orders of continuance, suspends the statute.69

(SS 5) B. Amendment of pleading.See s c. L. 781--The time to which the statute of limitations runs is the filing of the original complaint,70 hence, an amendment, properly allowed, relates back to the filing of the original so as to prevent the bar of the statute.71 An amendment setting up substantially a new cause of action will not,72 while one which does not do so will be allowed.73 To illustrate : Where the orig nal petition did not state a cause of action, an amendment curing this defect,74 or changing the cause of action from one implied contract to one on express contract,75 or introducing different parties 76 will not be allowed. But an amendment which changes an action brought against a person in a representative capacity to an action against the same person as an individual does not bring in a new party,77 nor is a new cause of action set up where it is apparent that the matters complained of in the amendment and the original are the same,78 but merely amplified 79 or elaborated,80 or only amount to a restatement, in a different form of the original cause of action,81 nor is it a statement of a new cause of action where the pleader's misconception of the facts is corrected,82 as where it cures a defective description in the original,83 or more particularly specifies damages,84 or merely charges the acts complained of in varying form to suit different phases of the evidence,85 or adds the allegation that defendant promised to pay,86 or corrects clerical errors.87 An amendment does not suspend the statute as to matters in the original petition not denied,88 nor can it affect the running of the statute in favor of new parties brought in by it.86 An amendment filed pending suit is not barred.90

(SS 5) \_C. Nonsuit and dismissal.\_See 8 C. L. 782.-A second suit may be brought

74. Action to foreclose subcontractor's lien, original alleged it ran on switch and collided original petition failing to allege notice of filing lien was served on owner. After action barred, amendment setting out sneh notice disallowed. Powers v. Badger Lumber Co., 75 Xeon. 687, 90 P 254.

01. Booth v. Houston Packing Co. \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 861, 105 SW 46.

01. Original declaration by widow for death of husband. Amendment, making personal representative plaintiff. LeBar v. New York, etc., R. Co. \[Pa.\] 67 A 413.

01. Suit against trustee for personal injuries on property under his control as such. Amendment procured against him individually. Boyd v. U. S. Mortgage & Trust Co. \[N. Y.\] 79 NSE 999.

01. Action for personal injuries. Mobile Light & R. Co. v. Bell \[Ala.\] 45 S 56.

01. In action for personal injuries, the original declaration, which was defective, in that it failed to show defendant was responsible for employment of plaintiff, or responsible for the action of the forearm, and that it failed to connect the defendant with the 'negligence, may be amended by curing these defects, basing action on same injury.

01. Auction for personal injuries. Mobile Light & R. Co. v. Bell \[Ala.\] 45 S 56.

01. In action for personal injuries, the original declaration, which was defective, in that it failed to show defendant was responsible for employment of plaintiff, or responsible for the action of the forearm, and that it failed to connect the defendant with the 'negligence, may be amended by curing these defects, basing action on same injury.

01. Auction for personal injuries. Mobile Light & R. Co. v. Bell \[Ala.\] 45 S 56.

01. In action for personal injuries, the original declaration, which was defective, in that it failed to show defendant was responsible for employment of plaintiff, or responsible for the action of the forearm, and that it failed to connect the defendant with the 'negligence, may be amended by curing these defects, basing action on same injury.

646 'LimitATION OF ACTIONS $ 6A. 10 Cur. Law. within one year after dismissal of the first," but the statutory period within which to renew action after dismissal cannot be extended by repeated dismissals," nor will the petition in a former suit on the same subject-matter be admitted to show that such suit was brought and prosecuted in good faith." As to unnecessary or improper parties, a dismissal does not effect a discontinuance in the sense that a new cause of action is created." Reversal, after action begun in due time extends the period for bringing a new action for one year," but this rule, when the time limit has expired pending action, applies only where there has been a reversal without re-mand." Statutes giving additional time to sue after arrest or reversal of judgment do not apply to suits in equity."

SS 6. \_Postponement, interruption, and revival. A. General rules.--\_See * C. L. "sa...No reason based upon apparent inconvenience or hardship will justify suspending the statute on other grounds than those mentioned therein." The running of the statute cannot be suspended by agreement," nor by the confidence the party seeking to avoid it has in the integrity and veracity of the adverse party,1 nor by the debtor's possession of the evidence of debt,2 nor by redemption of mortgaged premises,3 nor a conveyance of mortgaged property,4 nor by delay in taking action,5 nor does the rule "contra non valentem agree" apply where the courts have been open at all times to bring suit,6 nor does the fact that the security is sealed prevent the statute running against the obligation secured.7 In Kentucky, the thirty year statute bars all claims, without regard to disability, where there was a right of action in the claimant.8 A suspension of the right of action works a corresponding suspension of the statute of limitations,9 and if made before the former period of limi tations expires, a valid extension may be created by amendment to the statute.\[10\] So, too, the statute is suspended in favor of the remainderman during the life of the life tenant,\[11\] in favor of a junior lienor, who has paid off a senior lien during the life of such junior lien,\[12\] and where the cause of action accrues when there is no one in existence entitled to sue, suit may be brought in double the time otherwise provided.\[13\] An action is not commenced so as to suspend the statute unless complaint is filed and summons served, or attempted to be served, within the statutory period;\[14\] it must have been instituted in good faith in a court having jurisdiction,\[16\] and if begun and afterwards dismissed, the statute is not affected,\[18\] nor will an appeal interrupt the running of the statute as to persons not parties to the case appealed,\[17\] but the effect of the action is not interfered with by the subsequent operation of the statute on the matter in controversy.\[18\]

(SS 6) \_B. Trusts.\_See * C. L. 184--The statute does not run in favor of a trustee until the beneficiary has the power to sue,\[10\] and as implied trusts are within the operation of the statute of limitations,\[20\] it does not begin to run in favor of a trustee of such implied, continuing, or express trust until it is determined or repudiated,\[21\] or until demand and refusal,\[22\] or until he holds the trust subject hostile to the rights of the cestui que trusts,\[23\] and knowledge brought home to them of such repudiation or violation of the trust on his part.\[24\] Merely taking a deed to himself does not imply a denial by the trustee of the claim'of the cestui que trust.\[25\] The statute begins to run in favor of a trustee ex malificio of a constructive trust from the discovery of the fraud,\[28\] and has been held a complete bar after twenty years from removal of disability.\[27\] The statute does not run in favor of a guardian until confidential relations have ceased.\[28\]

(SS 6) \_C. Insanity and death.\_See * C. L. 185--Where an injury results in insanity, the insanity occurring on the same day, the two events are simultaneous and the dis ability suspends the statute.\[29\] Death, however, removes the disability of insanity.\[30\] Death suspends the statute, as a rule,\[31\] but whether, and to what extent, it suspends it depends on the terms of the statute.\[32\] Generally, it is extended one year after the appointment of a representation.\[33\] Death of the debtor suspends the statute for the period provided in such cases,\[34\] and the statute does not begin to run again until the appointment of an administrator,\[35\] but the statute once started against a judgment creditor is not suspended by his death.\[36\]

(SS 6) \_D. Infancy and covcurture.\_See 8 C. L. 185--Infancy suspends the statute\[37\] during minority,\[38\] but such suspension is governed by the law in force when the cause of action accrued.\[39\] If, however, the statute begins to run against the ancestor, it will not be interrupted by her death and the supervening infancy of her heirs.\[40\] After coming of age an infant may sue on one cause of action, though during his minority action had been brought by his next friend for another cause.\[41\] Coverture suspends the statute,\[42\] but the death of the husband removes the disability,\[43\] nor can such disability be tacked to that of infancy.\[44\]

(SS 6) \_E. Absence and nonresidence.\_See 8 C. L. 180--Absence from the state suspends the statute,\[45\] when so provided only,\[46\] but a statute suspending actions against nonresidents only applies to cases falling within its terms.\[47\] Absence of mortgagor from the state will not suspend the statute in favor of his grantee, who purchased subsequent to the mortgage, though he may not have held the title during the entire statutory period,\[48\] nor will it suspend the limitation governing actions for.personal injuries.\[49\] A person departing from the state cannot have reckoned in his favor clandestine or fraudulently contrived visits to his former residence for the purpose of ascertaining the time of absence, but otherwise if he returns openly, though the plaintiff does not learn of his presence.\[49\]

29, Injury and insanity occurred Jan. 12, age, Action barred by the statute in force 1899. Disability continued till Sep. 25, 1996, when it accrued. Glover v. Floyd, 76 S. C. Action brought Jan. 25, 1997, within the six year limitation. Neola v. Minnesota Iron Co., 102 Minn. 89, 112 NW 580, 110 NW 705.

30, Wood v. Wood (Iowa) 113 NW 492.

31, McAllen v. Alonzo (Tex. Clv. App.) 19 Tex. Ct. Rep. 44, 102 SW 475.

32, Morse v. Hayes (Mich.) 14 Det. Leg. N. 785, 114 NW 397.

42, Beale's Heirs V. Johnson (Tex. Clv. App.) 17 Tex. Ct. Rep. 417, 99 SW 1045: 357.

34, Right of action accrued Jan. 1, 1990, debtor died Nov. 3, 1994. Action Mar. 2, 1905.

42, Action for land accrued in 1887 while not barred by five year statute. McGill v. Hughes (Lark.) 150 SW 255.

35. Griesel v. Jones, 123 Mo. App. 45, 99 SWV 768. Ward came of age in 1883, died in 1885, before accounting by guardian. Guardian (Mich.) 130; Hinkle v. Lovelace, 204 Mo. 208, 102 SWV 1015.

pointed in 1906 and suit brought. Held not barred. Stevenson v. Markley (N. J. Eq.) 66 A 185.

36, Judgment Mar. 30, 1892. Death of debtor 1894. Sci. fa. Nov. 8, 1905. Barred by twelve year statute. Brooks v. Preston (IMd.) 68 A 294.

37, Meurin v. Kopplin (Tex. Clv. App.) 18 187, notwithstanding defendants' absence (Tex. Clv. Rep.) 601, 100 SW 984. Cause of action accrued Dec. 30, 1878, at which time in- 18 years of age. Action begun Feb. 21, 1899. Held brought within the twenty years allowed after disability removed. Muler v. Mannhathat I. Co., 53 Misc. 135, 102 NYS 454.

38, Cobb v. Virgintsville & T. R Co. (Ga.) 68 SEE 862.

39, Cause of action arose while plaintiff (Vest Co. (Del.) 66 A 471.

39, Stewart v. Stewart (Cal.) 92 P'87, was an infant. Action after infant became of 10 Cur. Law. LIMITATION OF ACTIONS SS 6F. 649

(SS 6) \_F. A new promise to pay or acknowledgment of the obligation.See * c. L. 780--The acknowledgment, to take the case out of the statute, is only a matter of evidence,\[51\] and a recognition of the debt and an admission that the party is the debtor is all that is necessary,\[52\] but to have this effect it must be express,\[53\] or, if there be no express promise, there must be a deliberate, voluntary act of the debtor or his agent evidencing an intention on his part to acknowledge the existence of the debt.\[54\] It must be clear and direct with reference to the indebtedness admitted; \[53\] it must be an unqualified,\[54\] unconditional promise,\[57\] or admission of an existing debt from which the law will imply a promise.\[58\] In some jurisdictions the acknowledgment may be made orally,\[59\] but the rule that a subsequent promise removes the bar of the statute does not apply to actions ex delicto,\[60\] nor to a judgment debt.\[61\] For an acknowledgment to have the force of a new promise, it must be made to one in privity of contract,\[62\] to the creditor, or some one acting for him,\[63\] by an agent acting under a power of attorney,\[64\] the payee, who has transferred the note,\[65\] or, a husband may extend the time without the wife's consent,\[60\] but the approval of an account by one not having authority to direct its payment will be ineffective.\[67\] It has been held that a city warrant,\[68\] confession of judgment,\[69\] and balances of account, stated each year and carried forward as a part of the next year's account, with the knowledge and consent of the parties, were new promises.\[60\] A clear acknowledgment of the debt in a letter by the debtor,\[71\] recognizing the continuance of the obligation, is sufficient.\[72\] The debt is sufficiently acknowledged in an instrument reciting that the note is thereby renewed,\[73\] by recitals in a deed \[74\] or mortgage that the prop erty is subject to a deed of trust,\[75\] or prior mortgage between the same parties,\[76\] or that mortgagor promises to pay certain notes.\[71\] A new note and mortgage given to a party who pays the old debt,\[78\] or a note to a creditor by account, is sufficient,\[79\] the giving of a new note by the corporation does not operate to extend the time on a stockholder's liability,\[80\] and this rule is not affected by payment by a surety, accommodation maker, or indorser,\[81\] nor will an itemized claim for expenditures, filed against an estate, be considered an acknowledgment of indebtedness to the estate.\[82\]

(SS 6) \_G. A partial payment.\[See 8 C. L. 787--Payment suspends the statue,\[83\] if an actual payment,\[84\] and it must be shown to have been made at the time it purports to have been,\[85\] by the debtor in person or for him by his authority, or for him and in his name without authority; and subsequently ratified by him,\[88\] but this rule does not apply where the proceeding is in rem to enforce a mortgage.\[87\] A payment that will suspend the statute must have been intended by the debtor as a payment upon that particular debt,\[88\] hence, a payment made with the intent to thereby discharge the whole debt will not interrupt the running of the statute,\[89\] nor will unauthorized credits on account,\[90\] nor can the creditor apply an undirected payment so as to suspend the bar of the statute,\[91\] nor will an application of proceeds of deed of trust sale \[92\] by the trustee and to the payment of the note, even though directed to do so in the deed, revive the debt,\[98\] but an application by creditors of proceeds of collateral to payment of note will do so.\[94\] Payment of interest will suspend the statute,\[95\] and where interest payments are made on a note, the statute begins to run from

note and reciting that they are renewed and extended, sufficient. Moore v. Gould \[Cal.\] 111 NW 198.

91 P 616.

74. Deed, in which recited that grantor had theretofore executed a lien upon the property conveyed to secure an indebtedness, that such indebtedness was largely unpaid, that granted had agreed to convey creditor's property "thereby conveyed" and that "this shall in nowise affect the lien," which "shall remain unimpaired as security," held sufficient. Stewart v. Forman \[Miss.\] 43 S 67.

01. Purchase, subject to deed of trust, mortgage of the premise subject to same encumbrance, and subsequent sale, and not mentioning deed of trust. Held, on proceedings to enforce deed, that last grantee took with notice of his grantor's recikals in mortgage. Medina v. Phelps \[Colo.\] 88 P 848.

01. D'Avid v, Faulb, 9 Ohio C. C. (N. S.) 263.

01. Moore v. Gould \[Cal.\] 91 P. 616.

01. Note and mortgage executed to bank and debt paid off by third person, at request of debtor, to whom executed new note and mortgage. Davies v. Pugh \[Ark.\] 98 SV 78.

01. United States v. Axman, 152 F 816.

01. Action to enforce stockholder's liability for proportion of debt of corporation. O'Neill v. Quarstrom \[Cal. App.\] 92 P 891.

01. O'Neill v. Quarstrom \[Cal. App.\] 92 P 391.

01. Visher v. Wilbur \[Cal. App.\] 90 P 1065; Id. \[Cal. App.\] 91 P 412.

01. Action for money had and received and payment on account within statutory period held to repel the bar. Purdy v. Deprex \[Colo.\] 88 P 972.

01. Endorsement on note of a certain sum as part payment, when, in fact, there had been no payment or other consideration for the indorsement, is insufficient. Rogers v.

10 Cur. Law. LIMITATION OF ACTIONS SS 7C. 651 the last credit.\* * Payment or other act which suspends the statute as to the debt will suspend it as to the security,\* but will not affect it after it has been barred.\* * Payment by either of two joint obligors,\* with the knowledge, consent, and ratification of the other, arrests the running of the statute as to both,1 and payment made by an agent will do so,2 but payment by a joint promisor in a mortgage will not.3 * 652 LIMITATION OF ACTIONS SS 8. 10 Cur. Law. But'the statute is not available tc a mortgagor seeking to quiet title against the mortgagee,\[29\] and an action to foreclose mortgage, the defendant, claiming under a tax feed, cannot set up the statute against such action.\[21\] The plea is not available to a party guilty of such conduct as makes it inequitable for him to take advantage of it,\[22\] nor can a nonresident invoke the benefit of it,\[28\] nor a party in whose behalf an action is instituted;\[24\] and where partnership transactions cover a long term of years, and the matters in dispute yet undetermined, neither party should have the benefit of it.\[25\]

SS 8. \_Pleading and evidence.\_See 8 C. L. 789--The statute of limitations being an affirmative defense, plaintiff need not show in his complaint that his action is not barred;\[28\] but where fraud is the basis of the action and a longer time has elapsed than the law permits within which to bring action, the complaint must allege that the fraud was not discovered within that time.\[27\] A defective complaint may, however, be cured by general verdict.\[28\] When the statute is interposed, a new promise may be set up by amendment to the petition,\[29\] or plaintiff may assert by replication facts avoiding the bar pleaded;\[30\] but a replication which seeks to prevent the operation of the statute must be clear and positive in its statements.\[31\] In North Carolina, a written reply to the plea need not be put in, but is always deemed to have been made as upon a direct denial or avoidance, as the nature of the case may require.\[32\] The statute cannot be set up by demurrer,\[33\] or motion to dismiss,\[34\] unless it is apparent from the petition that the action is barred;\[35\] but in some jurisdictions the statute cannot be set up by demurrer, though it appear from averments of the petition that the action is barred.\[36\] In Wisconsin, however, the defense may be set up by demurrer,\[37\] and a demurrer is proper where an estate is sought to be declared insolvent,\[38\] but in jurisdictions where the statute may be interposed by demurrer in actions on contract, it cannot be so set up in actions to enforce deeds of trust.\[35\] It being an affirmative defense,\[40\] in the nature of a special privilege,\[41\] must be pleaded\[42\] specially, even in actions to recover a penalty.\[43\] The plea, however, must be based on an available statute,\[44\] and after the case is closed and no evidence offered to sustain it, an amendment setting it up will be disallowed.\[45\] It does not

33. Punta Gorda Bk. v. State Bk., 52 Fla. 399, 42 S 846; Green County v. Howard \[Ky.\] 105 that the right of mortgagee to foreclose was barred. Gibson v. Johnson, 73 Kan. 261, 84 p 982. 21. Bare v. Ford, 74 Kan. 593, 87 p 731. 22. Tomlinson v. Bennett \[N. C\] 59 SE 87. 23. Action to recover land, party setting up statute a nonresident, but paid taxes and had tenant on land. Beals Heirs v. Johnson \[Ek. v. App.\] 17 T 7ex. Ct. Rep. 817, 99 SW 1045. 24. Michigan Trust Co. v. Frymark \[Neb.\] 107 NW 760. 25. Hanson v. Hanson \[Neb.\] 111 NW 368. 26. Donahue v. Stockton Gas & Elec. Co. \[Cal. App.\] 92 P 196; Willis v. Willeman, 53 Misc. 462, 102 NYS 104; Church v. Stevens, 107 NYS 310. 27. Smith v. Linder, 77 S. C. 535, 58 SE 610. 28. Complaint on note alleged that "defandant had not paid the note or any part thereof, except 82, paid an account thereof, on the 2nd Jan., 1899," which was within the statute. No demurrer. Heid cured by general verdict. Scott v. Christenson \[Orl.\] 89 P 376, 29. Pendley v. Powers \[Ga.\] 58 SE 652. 39. Tuttle v. Tuttle \[N. C\] 59 SE 1008. 31. Patterson v. Safe Deposit & Trust Co. \[C. C.\] 148 F 787. 32. Oldham v. Rieger \[N. C\] 58 SE 1091. 33. Punta Gorda Bk. v. State Bk., 52 Fla. 399, 42 S 846; Green County v. Howard \[Ky.\] 105 SW 897. 34. Oldham v. Rieger \[N. C.\] 58 SE 1091. 35. Donahue v. Stockton Gas & Elec. Co. \[Cal. App.\] 92 P 196; Thornton v. Jackson \[Cal. App.\] 92 P 196; Titusa County Corn's v. Miller \[Min.\] 112 NW 276; Bk. v. Wilson, 17 Misl. 381, 87 P 844; Union Stock Yards Nat. \[Tek. V.\] 112 W. Mislica \[Vy.\] 92 P 619. 39. Tager's Adam'r v.

10 Cur. Law. LIMITATION OF ACTIONS 8. 653

admit allegations made to take the case out of the statute.46 The plea may be set up by answer,47 especially in jurisdictions where the replication has been abolished.48 But as the plea does not go to the merits, and though it must be received with strictness, it need not be set out in the words of the statute, a statement of such facts as may be necessary to form the defense being all that is required,49 nor is the same strictness of pleading required in equity as at law.50 Therefore, anything in an answer which will apprise plaintiff that defendant relies on the statute is sufficient, if such facts are stated as are necessary to show the statute is applicable.51 An answer merely stating that the suit is barred because not commenced in time,52 or which distinctly alleges that the action is barred by provisions of a specified section of the code,53 or which alleges facts that constitute a bar and indicate with reasonable certainty that it is relied on, is sufficient.54 A defendant in order to take advantage of the statute need not deny the complaint, but may admit all its allegations, and plead the cause of action did not accrue within the statutory period,55 and the fact that the pleader set up two periods of limitation will not preclude him from the defense of the longer one if it applies to the facts of the case.56 Where one statute is pleaded another cannot be relied on.57 Whether an action is barred is matter of proof, and the pleading alone will not furnish grounds for dismissal.58 Any competent evidence is admissible which will show or tend to show that the debt is barred.59 Evidence to prove payment though not positive is admissible,50 and an indorsement of payment made on the note by the payee is also admissible, he having testified that such payment was made by an obligor,61 but the note, with the indorsements thereon, standing alone, are not.62 Parol evidence is competent to establish a new promise,93 and if the record fails to show the fact, such evidence is admissible to prove the new action is identical with that in which the plantiff was formerly nonsuited.54 The burden of establishing the defense is on the party setting it up,65 unless proof is shown by the adverse party.65 If the complaint shows the bar of the statute, and the answer sets it up, the burden is on plaintiff to show that it has been suspended,67 and where the note sued on is apparently barred to effect a recovery, facts must be proved that will take it out of the operation of the statute.68 When a credit on a note is denied by the payor, the burden is on the holder to prove it.69 The burden is upon defendant to show knowledge

46. Manders v. Irwin, 118 La. 1048, 43 S 69. 47. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 21. 21. 22. 23. 24. 25. 26. 27. 28. 29. 21. 23. 25. 27. 28. 29. 21. 24. 28. 29. 22. 23. 26. 29. 23. 24. 26. 28. 29. 24. 27. 29. 25. 28. 29. 26. 29. 27. 28. 29. 29. 28. 29. 29. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 43. 45. 47. 49. 42. 44. 46. 48. 49. 42. 45. 47. 49. 43. 46. 48. 49. 44. 47. 49. 45. 48. 49. 46. 49. 47. 49. 48. 49.

654

LIS PENDENS.

10 Cur. Law.

of the fraud in plaintiff, or that he knew of such facts, which, if pursued with reasonable diligence, would have led to such knowledge.\[10\] Where the evidence of the new promise is conflicting, the question of its sufficiency is with the trial court.\[11\]

Llimited Partnership: Liquidated Damages, see latest topical index.

## 11 LIS PENDENS.

General Rule, 654.

Statutory Ls Pendens, 655.

General rule,\[Soc & C. L. 199\] Except in proceedings in rem, a suit is not pending until the court has acquired jurisdiction of both person and subject-matter.\[72\] A purchaser of property after commencement\[73\] of, and pending, litigation in which it is involved, takes subject to the event of the action,\[74\] and is as fully bound thereby as the parties thereto.\[75\] The rule is applicable to a sale at foreclosure of a pre-existing mortgage when the mortgage creditor was party to the suit,\[76\] but a purchaser at mortgage foreclosure is not affected by a judgment in an ejecment suit commenced after institution of the foreclosure proceedings,\[77\] and assignees of a mortgage executed before suit was commenced will be protected though the transfers were made pending the suit.\[78\] The doctrine cannot be invoked to sustain a judgment resulting from mistake,\[79\] nor does it apply to independent titles not derived from parties to the action of their privis,\[80\] but all persons entering upon land after commencement of an action to recover it are presumed to have entered under defendant therein.\[81\] Third persons cannot be charged with notice of a new and independent cause of action set up by supplemental pleadings after they purchased,\[82\] but failure of the clerk of court to properly index amended declarations in ejecment covering additional property does not excuse failure of a searcher to examine the files.\[83\] Common-law lis pendens applies only to, actions in rem,\[84\] and a suit against nonresidents by sub-

70. Action to set aside deed for fraud.

and rights of another company pending ap-Smith v. Linder, 77 S. C. 535, 58 SE 610.

pell in suit by latter to condemn land for 71. Sankor, V. Wels (Col. 3) 89 P 797.

r2. Suit for wrongfall death brought by vidwot under state statute * 10 Cur. Law. LIS PENDENS. 655

stituted process can be invoked as his pendens only by parties whose property has been seized. \[88\] Pendency of a suit to establish a will devising lands forming part of an estate administered as intestate does not affect one who buys from the heirs without knowledge of the suit. \[80\]

\_Statutory lis pendens.\_See 8 C, L. 102. The object of a lis pendens notice is to warn persons and put them on their guard in their dealings regarding the subject-matter of a pending action, \[87\] hence, such notice is not necessary in proceedings which in themselves attain the same object. \[88\] Statutes generally authorize the filing of lis pendens in suits affecting the title to real estate, \[89\] and unless the statutory notice is filed, innocent purchasers will be protected. \[90\] A statute binding the holders of unrecorded conveyances executed prior to filing of notice of lis pendens is valid \[91\] and will be enforced, \[92\] but lis pendens will not cut off or affect the rights of one whose interest in the property was known when notice was filed. \[88\] In Kentucky the filing if a lis pendens notice is essential to the creation of a lien by execution good as against subsequent purchasers. \[94\] In New York summons must be served within sixty days after filing of the notice of lis pendens, \[95\] and plaintiff is not entitled to file successive notices so as to have the benefit of notice indefinitely without service of summons. \[96\] Notice of lis pendens in a creditors' suit is inoperative to impound property for the payment of debts which have not yet become liens either general or 656 MAIMING; MAYHEM. 10 Cur. Law. specific." A suit to enforce a judgment against real property in Porto Rico on the ground that the debtor is owner, though title appears of record in another, is within the scope of the local mortgage law requiring the giving of cautionary notice," and such law is applicable in suits in equity as well as in actions at law." Property within the rule.See * C. L. 1983 Continuity of his pendens.See * C. L. 1984 A notice will not be canceled on motion on the mere ground that the suit cannot be successfully maintained, especially where plaintiff's contention is plausible.1 Unreasonable delay in proceeding with the action is ground for cancellation,2 the question of what constitutes unreasonable delay often depending upon the circumstances of each case.3 An improper discharge of record of a his pendens and lien before taking a bond, as required by order of court, is remediable by motion to restore and not by appeal.4

Literary Property; Livery Starle Keepers; Live Stock Insurance; Lloyd's; Loan and Trust Companies; Loans; Local Improvements and Assessments; Local Optiox; Loos and Loosing; Lost Instruments; Lost Property, see latest topical index.

Lotteries.

\_What constitutes.\_See * C. L. 1985 A lottery is a scheme for the distribution of property by chance among persons who have paid or agreed to pay a valuable consideration for the chance.5

\_Recovery back of losses.\_See * C. L. 1985 An agent active in procuring a person to enter a lottery may be held personally liable with his principal for the return of the money paid.\*

\_Offenses and prosecution.\_See * C. L. 1985 MAIMING; MAYHEM.4

At common law the offense consisted in depriving a man of a member affecting his ability in physical combat,"a but statutes in most states have extended the offense so as to include disfigurement of the person.8 Under such statutes the disfigurement must be visible to a casual observer as distinguished from a wounding which merely mars the member," but the question as to whether the injury is of the necessary char acter is ordinarily for the jury.\[10\] Evil intent is a necessary element of the offense.\[11\] Self-defense is available in defense of the act providing the.resistance is proportionate to the injury offered,\[12\] but instructions thereon must include all necessary elements.\[18\]

To constitute an attempt to commit mayhem there must be a guilty intent,\[14\] together with the apparent adequate means of carrying it out.\[15\]

Malicious abuse of process, see latest topical index.

Malicious interest, real or constructive, toward the owner of the property injured, is a necessary element of the offense,\[16a\] hence, ownership of the property in defendant,\[17\] or an honest though mistaken belief of ownership,\[18\] is a good defense. The value of the property destroyed is immaterial.\[19\] The abatement of a nuisance does not constitute malicious destruction of property.\[20\] Under the Texas statute making it unlawful to willfully deface any public building, an indictment for mutilating a church building must aver that the church was a public building and then and there devoted to a public use.\[21\] Evidence of the time, place, and circumstances of the act is relevant to disprove malice,\[22\] but parol evidence is inadmissible to show ownership of the land upon which the property destroyed was situated.\[23\] Instructions must submit all issues presented by the evidence\[24\] and contain all elements essential to conviction.\[23\]

MALicious prosecution and abuse of process.

8.1.Nature and Elements of the Wrong, 657.1.

658 MALICIOUS PROSECTION, ETC. SS 1B. 10 Cur. Law.

"17...The elements necessary to sustain an action are prosecution, investigation by defendant, malice, want 'of probable cause, and termination in favor of the now plaintiff.", 28 It has been held in some states that malice and want of probable cause must coexist,29 though it is usually said that malice is inferred from want of probable cause.30 As in other torts, damage resulting to the plaintiff is essential to the right of action.31 There is a difference between malicious prosecution and false imprisonment.32

(SS 1) \_B. Abuse of process.\_See * c. L. 178--It is abuse of process to institute criminal proceedings to remedy a civil wrong.33, 34 or to bring unfounded civil proceedings with malicious intent,35 and an analogous right of action exists for the malicious commencement of proceedings in private tribunals.35 Where an alleged process is void on its face, no action will lie.37

SS 2. \_Responsibility of defendant for the prosecution or suit and his participation therein.\_See * c. L. 179--Defendant's connection with the prosecution need not be directly proven but may be inferred from reasonable circumstances.38 One is responsible for the institution of a prosecution by his confredate,39 or by his agent if the institution was within the scope of the agent's authority,39 or was subsequently ratified.31 A creditor is liable for an arrest in a suit maliciously instituted.42

SS 3. \_The prosecution of the 'plaintiff.\_See * c. L. 179--The now plaintiff must have been prosecuted.43

SS 4. \_Termination of prosecution in plaintiff's favor.\_See * c. L. 180--The prosecution must have terminated44 in favor of the accused,45 conviction being usually deemed conclusive as to probable cause, though some courts regard it as prima facie

wrongful levy of attachment (see Attach- 38. Aiding and abetting prosecution. Carp ment, 9 C. L. 283), execution (see Executions, 9 C. L. 1328) and the like, as well as the award of damages on dissolution of immulicuously prosecute. Moon v. Flack \[N. H.\] (see Injunction, 10 C. L. 246). **This article supplements** (in connection with those in 8 C. L. 1797 and 6 C. L. 490), an exhaustive special article in 4 C. L. 470. **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C. L. 1797 and 6 C. L. 471). **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C. L. 1797 and 6 C. L. 472). **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C. L. 1797 and 6 C. L. 473). **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C. L. 1797 and 6 C. L. 474). **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C. L. 1797 and 6 C. L. 475). **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C. L. 1797 and 6 C. L. 476). **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C. L. 1797 and 6 C. L. 477). **The operation**'s property to institute proceedings \*\*(in connection with those in 4 C.

10 Cur. Law. MALCIOUS PROSECTION, ETC. SS 6. 659

only,48 and that the fine imposed was subsequently remitted does not show want of probable cause.47 Arrest and release on prosecutor's motion is sometimes sufficient to support an action,48 although generally mere arrest and final discharge are not sufficient.49

SS 5. \_Want of reasonable and probable cause.\_See 8 C. L. 480...By probable cause is meant a reasonable ground for suspicion, supported by circumstances sufficiently strong within themselves to warrant a cautious man in the belief that accused is guilty of the crime charged.50 Probable cause for the prosecution is a complete bar to liability.51 Good faith is an element of the defense of probable cause, and where facts existed showing probable cause, but defendent prosecuted not on these grounds but solely for an illegitimate purpose, probable cause will not excuse him.52 Proof of the commission of the offense charged is usually deemed a good defense and is prima facie evidence of probable excuse,53 though guilt or innocence is not strictly in issue, the question being solely "was there probable cause to believe him guilty."54 In like manner lack of probable cause may be inferred from uncontroverted proof of innocence.55 Conviction in court raises a presumption of probable cause50 where there has been no unfairness, fraud, conspiracy, subornation, or other improper acts or methods during trial.87 Often a holding or binding over by a magistrate after examination will raise a prima facie presumption of probable cause.58 The test of defendant's liability is his belief in the existence of probable cause based on reasonable grounds,59 and the question is to be determined as of the time of instituting the prosecution.49 Probable cause may exist independently of the advice of counsel,41 but advice of counsel is usually taken as fairly conclusive.62 Where a public board orders its executive officer to enforce a law, the officer is held to have probable cause to prosecute offenders under the law.83

SS 6. \_Malice.\_See 8 C. L. 801...Malice is generally inferred where there is absence

46, 47. Miller v. Runklo \[Iowa\] 114 NW 56. Presumption may be overcome by evidence that conviction secured by defendant's penalty. McGurik v. O'Halloran, 149 F 509.

48. Criminal prosecution dropped when tenant vacated house after arrest for destroying property. White v. Apsley Rubber Co., 194 Mass. 97, 80 NB 500.

01. Burden remains on plaintiff to show no probable cause and malice. Simmons v. Gard-ner \[Vdash\] 89 P 887.

01. Whipple v. Gorsuch \[Ark.\] 101 SW 755; Carp v. Queen Ins. Co., 203 Mo. 295, 101 SW 78; Pinson v. Campbell, 124 Mo. App. 260, 101 SW SW 621.

01. Whipple v. Gorsuch \[Ark.\] 101 SW 755; Hudson v. Truman \[Neb.\] 112 NW 325.

01. Vorhes v. Buckwald \[Iowa\] 112 NW 1106.

01. Defendant may prove probable cause by showing conviction although conviction subsequently reversed and plaintiff acquitted. McGurik v. O'Halloran, 149 F 909. Where suit arises on alleged wrongful attachment, held proof of sustaining of attachment by courts is probable cause. Bell v. Thompson, 31 Ky. L. R. 475, 102 SW SW 830. Actual guilt is a complete defense under doctrine of probable cause. Whipple v. Gorsuch \[Ark.\] 101 SW SW 755.

01. Cramer v. Barmon \[Mo. App.\] 103 SW 1086.

01. Smith v. N. Y. Anti-Saloon League, 121 App. Div, 600, 106 NYS 251. Evidence of arrest by defendant, a private citizen, and subsequent acquitral for want of evidence held to show want of probable cause. Bern-stein v. Walsh, 32 Pa. Super, Ct. 392.

01. Presumption may be overcome by evidence that conviction secured by defendant's penalty. McGurik v. O'Halloran, 149 F 509.

01. Staton v. Mason, 104 NYS 155. Overcome by evidence of fraud- and other improper means. Putnam v. Stalker \[Or.\] 91 P 363.

01. Prima facie presumption subject to overturn by showing binding over as result of fraud or other improper means. Putnam v. Stalker \[Or.\] 91 P 363. Where defendant is held by magistrate, held prima facie evidence of probable cause. Schultz v. Greenwood Cemetery \[N. Y.\] 83 NE 41.

01. Defendant acquitted of arson but circumstantial evidence shown to connect him with fire, held nonsuit proper. Boyd v. Kerr, 216 R. 250, 65 A. 674. Hudson v. Truman \[Neb.\] 112 NW 325.'Where it was shown that defendant believed honestly that xn action was well founded held no liability. Berko-switch v. KQommel, 107 NYS 115; Whipple v. Gorsuch \[Ark.\] 101 SW 755.

01. Hartman v. Hedden, 31 Pa. Super. Ct. 564.

01. Instruction that defense rest solely on counsel's advice held erroneous. Sasse v. Rogers \[Ind. App.\] 81 NE 580.

01. Evidence of probable cause held sufffffff 660 MALICIOUS PROSECTION, ETC. SS 7. 10 Cur. Law. of probable cause,64 or from a finding of reckless and grossly negligent prosecution.65 Invalidity of complaint or deficit in judgment or proceedings on criminal trial are no bar to recovery where malice is shown and there was no probable cause.66 The burden of proof in showing malice is on the plaintiff.67 Following advice of officer of the law negatives idea of malice.68

SS 7. \_Advice of private counsel, prosecuting attorney, or magistrate.\_See * C. L. 802- In some states it is a complete defense apart from malice and question of probable cause,69 but generally advice of counsel alone cannot make out a complete defense.70 Acting in good faith upon the mistaken opinion of counsel will not subject the prosecutor to liability to the person prosecuted,71 The advice of counsel must be sought before the prosecution is begun.72 Concealment of any facts will vitiate the otherwise good defense.73 The question of whether defendant stated all his known facts and acted in good faith on the advice is for the jury.74 Advice of counsel is not necessary to establish probable cause.75 Where a reputable attorney is consulted and advice given in good faith is acted on in good faith, it is not necessary to show an investigation such as might be made by a prudent man ordinarily.76

SS 8. \_Damages.\_See * C. L. 803-- Punitive damages can be recovered where actual malice is shown 77 and actual damage has resulted.76 Damage to mind or body and general humiliation,79 loss of time in defending criminal action and costs of defense, may be considered.70

SS 9. \_General matters of pleading and practice.\_See \*c. L. 804-- An action for malicious prosecution growing out of suing out of a writ of attachment cannot be joined with an action for breach of indeminity bond.75 The statute of limitations will not

64, 65. Smith v. New York Anti-Saloon League. 121 App. Div. 600, 108 NYB 251. 66. Hackler v. Miller (Neb.) 114 NW 274. 67. Henley v. Aspinwall \[Mass.\] 81 NE 256: Schultz v. Greenwood Cemetery \[N. Y.\] 83 NB 41. 68. Radeliffe v. Hollywood, 216 Pa. 867, 65 A 789. There gan be no malice where one in good faith consults an officer of the law and is advised that information should be worn out, where all known facts are related to the officer. Pinson v. Campbell, 124 Mo. App. 260, 101 SW 671; Radeliffe v. Hollywood, 216 Pa. 867, 65 A 789. 69. Slater v. Walter, 148 Mich. 656, 14 Det. Leg. N. 314, 112 NW 882; Flelecrinyer v. Taffee, 149 Mich. 678, 14 Det. Leg. N. 645, 113 NW 911. Where one goes before a competent attorney and obtains his advice about a prosecution and then acts in good faith upon the advice, it is a good defense. National Life & Acc. Ins., Co., v. Gibson, 31 KY. L. R. 101, 101 SW 895. 76. Murphy v. Eliditz, 105 NYB 674. Advice of counsel is good defense only when sought in good faith and based upon complete statement of all facts within prosecutor's knowledge. Idea of malice is negatively. Radeliffe v. Hollywood, 216 Pa. 867, 65 A 789; Van Meter v. Bass \[Col.\] 90 P 837. Not liable has having acted without probable cause though more facts might have been learned by glilient inquiry. Putnam v. Stalker \[Or.\] 91 83. 71. Van Meter v. Bass \[Col.\] 90 P 637. 72. Advice sought one week after prosecution. Murphy v. Eliditz, 105 NYB 674. 73. Carp v. Queen Ins., Co., 203 Mo. 295, 101 SW 78. 74. Heeley v. Aspinwall \[Mass.\] 81 NE 256; Phiscator v. Rice, 147 Mich. 411, 13 Det. Leg. N. 1095, 110 NW 1095. 75. Sasse v. Rogers \[Ind. App.\] 81 NE 590. 76. King v. Apple River Power Co., 131 W15, 157, 111 NW 668. 77. Carp v. Queen Ins., Co., 208 Mo. 295, 101 SW 78. In estimating exemplary damages, wealth of defendant can be considered. Ide. The wealth of defendant may be shown for the purpose of estimating exemplary damages. Evidence of capitalization held competent to show wealth. Id. 78. Where no actual damages are recoverable because of the institution of a suit, no exemplary damages can be recovered although malice is shown. Lightfoot v. Murphy \[Tex., Civ. App.\] 19 Tex. Ct. Rep. 651, 104 SW 511. 50. 79. Not shown. Held $500 was excessive. \[Sasse v. Rogers \[Ind. App.\] 81 NE 580. Evl. / dence of a person as to appearance of plain-tiff to show his mental worry held not proof of mental angushi. Carp v. Queen Ins. Co., 203 Mo. 295, 101 begin to run until the criminal case is dismissed or prosecution is otherwise determined.\[82\] The complaint must allege a judicial proceeding, prosecution at instigation of defendant, no probable cause for same, malice terminating in plaintiff's favor, and damages.\[83\]

\_Issues.--\_A general denial puts in issue allegations of want of probable cause and malice and under it defendant can show anything which tends to disprove malice a lack of probable cause.\[84\]

_Burden of proof.\[85\]_ See e. L. 800--\_The burden of showing lack of probable cause " and malice is on the plaintiff.\[86\]

_Admissibility of evidence.\[85\]_ See c. L. 800--\_Any evidence tending to show the motive of the prosecution is admissible,\[87\] as are all facts tending to show defendant's connection with the prosecution,\[88\] and the existence or want of probable cause.\[80\] Evidence of plaintiff's character is not in issue and incompetent as testimony to prove probable cause except where same is known to or should be known by person bringing action.\[80\]

\_Questions of law and fact.--\_It is the province of a jury to determine any conflict of testimony,\[91\] as where facts are in dispute in a question of probable cause,\[92\] in which case the court should instructly on what constitutes probable cause,\[93\] but a

- 82. Hackler v. Miller \[Neb.\] 114 NWP 274.
- 83. Sanders v. Davis \[Ala.\] 44 S97.
- 84. Hackler v. Miller \[Neb.\] 114 NWP 274.
- 85. Emory v. Egran, 75 Kan. 82.8 8 P 740;
- 86. Where charge of selling mortgaged property
- 87. Egoran v. Aspinwall \[Mass.\] 81 NE 256.
- 88. Where arrest and discharge is conceded. Healey v. Aspinwall \[Mass.\] 81 NE
- 89. Schultz v. Greenwood Cemetery \[N. Y.\]
- 81 NE
- 82 NE 41; Simmons v. Gardner \[Wash.\] 89 P
- 83.2 Fvidence that criminal prosecution was begun to shield against civil liability held admissible on the issue of probable cause.
- 84. Evolence that criminal prosecution was begun to shield against civil liability held admissible on the issue of probable cause.
- 85. Emory v. Queen Ins. Co., 203 Mo. 295, 101 SWP
- 86. Where board of underwriters had offer- ed reward for conviction of fire bug and witness allowed to testify connection of in- sure of burned property, with underwriters relative to existence and object of board, held incompetent but not prejudical. Carp v. Queen Ins. Co., 203 Mo. 295, 101 SWP 78. Ciruclars given to agent for defendant company by general agent who was agent's superior, for guidance of agent, held properly introduced in evidence though unsigned by defender corporation or its officers. Providence Sav. Life Assur. Soc. V. Johnson, 30 Ky., L. R. 1031, 89 SWP 1159. Evidence of reward offered by board of underwriters without showing connection of defendants with underwriters in arson case held incompetent. Carp v. Queen Ins. Co., 203 Mo. 295, 101 SWP 78.
- 89. Held competent for plaintiff in rebuttal, where defense is well not probable cause, to show in arson case, that he was at home until after fire alarm had called him to scene of fire. Carp v. Queen Ins. Co., 203 Mo. 295, 101 SWP 78. Evidence of clerk of fifteen years' experience that goods insured for only $6,00 were worth $12,000 held admissible to show diligence of defendant in procuring evidence before beginning action against plaintiff. Id. Evidence of advice by counsel a week after prosecution held inadmissible. Murphy v. Elidlitz, 105 NYS 674. Where offer to drop prosecution on payment of money due on mortgage is offered in evidence to rebut evidence to show good faith in bringing prose-> question of probable cause being shown under admitted state of facts is for a court to determine upon." Issues of fact regarding communications to attorneys are for the jury," but where it appears that all facts were given to the attorney, it is for the court to determine." The jury has the sole right to determine who was instigator or procurer of prosecution." Peremptory instructions are improper and erroneous where there is any evidence on the point instructed."

\_Instructions.\_See S C. L. SS8. It is the court's duty to state in hypothetical form the material facts which the evidence tended to establish and give the jury positive instructions as to whether upon the state of facts assumed there was probable cause and if there was conflicting evidence to charge the law regarding conflicting testimony."

Instructions should not be misleading.'

\_Special findings_See S C. L. SS10 should accord with general verdict.", \[\]

**MANDAMUS.**

**8 1. Nature and Office of Remedy in General, \[\] 8 3. Jurlsdiction and Venne, 67S.**

**662. Other Adequate Remedy, 665.**

**8 4. Parties Plaintiff, 679.**

**8 2. Dulles and Rights Enforceable by Manmanus, 67.**

**8 5. Pleading and Procedure in General, 680.**

**8 6. Petition or Affakavit, 680.**

**8 7. Alternative Writ, 681.**

**8 8. Denumerve to Petition or Writ; Answer**

**8 6. Return; Subsequent Pleadings, 682.**

**8 9. Trial, Henring, and Judgment, 684.**

**8 4. Trial and Hearing, 684.**

**8 6. Judgment, 685. Costs, 685.**

**8 10. Peremptory Writ, 685.**

**8 11. Performence, 686.**

**8 12. Review, 686.**

**8 13.**

\*\*8 14. Nature and office of remedy in general. See S C. L. SS10. The writ of manda-

mus was originally a prerogative writ which the court of king's bench was wont to

**94. Richardson v. Powers \[Arlz.\] 89 P 542;**

**Whipple v. Gorsuch \[Ark.\] 101 SV 726; Sasse**

**w. Rogers \[Ind. App.\] 81 NE 590; Boyd v.**

**Kerr, 116 Pa. 259, 65 A 674; King v. Apple**

**River Power Co., 131 Wils. 575, 111 NW 668.**

**85. Heid error to refuse instruction that**

**where defendant not knowing law in good**

**fallin gave all known facts to prosecuting attorney and on his advice swore out to warrant that recovery could not be had. Slater v. Walter, 148 Mich. 650, 14 Det. Leg. N. 314, 112 NW 682. Where question of whether all facts were given to prosecuting officer is in dispute, it is a question for the jury to determine. Carp v. Queen Ins. Co., 203 Mo. 295, 101 SV 78.**

**86. Simmons v. Gardner \[Vdash.\] 89 P 887.**

**87. Smith v. N. V. Anti-Saloon League, 121 App. Div. 600, 108 NY 251.**

\*\*88. Provident Sav. Life Assur. Soc. v. John-

**89.**

**80 20 KY L. R. 1051, 99 SVV 1159.**
10 Cur. Law. MANDAMUS $ 1. 663

issue to any part of the realm for the prevention of disorder from failure of justice or defect of police.4 In modern practice it is not regarded as a prerogative writ running in the name of the sovereign, but as ordinary process of court available to any private citizen to protect a private right when it is an appropriate remedy.5 It is in no sense an equitable proceeding, but is a common law remedy to compel performance of a legal duty.6 It may not be used to establish rights or to determine legal controversies, but solely to compel the performance of clear legal duties.7 The writ is discretionary and will not be awarded in all cases, even when a prima facie right to relief is shown, but regard will be had to the exigency which calls for exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case,8 and it will not issue where it will work an injustice,9,10 or operate harshly,11 or produce confusion and disorder,12 or where it will not promote substantial justice;13 but courts

- 664 $\\cdot$ MANDAMUS $ 1. 10 Cur. Law. should not exercise their discretion to refuse a writ of mandamus simply because some hardship or embarrassment may ensue.14 To warrant the issuance of a writ of mandamus, the petitioner must first show a legal right to have the act done;15 second, it must appear that the act which is to be enforced by the mandate is that which is the plain legal duty of the respondent to perform without discretion either to do or refuse;16 third, that the writ must be availing as a remedy,17 and the petitioner must

- 14 Dev. M. M. 14 Dev.

10 Cur. Law. **MADAMUS SS 1.** 665

have no other plain, speedy, and adequate remedy.18 In some states, however, the power to issue writs of mandamus has been enlarged to include supervisory control,19 but even where the jurisdiction of courts has been thus enlarged, it will be granted only in special emergency cases and to prevent impending present injury, and cannot be used in place of appeal.20 The relator must come into court with clean hands.21 A demand and refusal is usually necessary to put respondent in default, but the law never demands a vain thing, and, where conduct is equivalent to a refusal to act, it is not necessary to go through the useless formality of demanding performance. Anything showing that the defendant does not intend to perform his duty is sufficient to warrant mandamus.22 Courts as a general rule will not declare an act unconstitutional in an application for mandamus,23 but there are exceptions to this rule for which, however, it would be difficult to formulate a general rule.24

\_Other adequate remedy.\_See 8 C. L. 813--Mandamus is an extraordinary writ and not to be resorted to where the purpose sought to be accomplished by it can otherwise reasonably be accomplished,25 as by appeal 26 or a specific remedy provided by statute.27

the peace, to proceed with the trial of a case as justice. First Nat. BK. v: Rowland \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 85, 98 SW 1043. \[dams will not issue to compel a judge to 18. Putnam Foundry & Mach. Co. v. Harrington Town Council \[R. I. 67 A 738. See infra. Other Adequate Remedy. 19. Louisiana Constitution, Art. 94. Murat v. New Orleans, 119 La. 505, 44 87 279. \[Ind.\] 81 NTE 46. Jin a petition to compel a judge to issue an injunction where the same has been refused \[on hearing did not present a case of this \]. Murat v. New Orleans, 119 La. 505; Nation v. Public School Directors, 119 La. 819, 44 815. \[dams will not issue to compel a judge to 18. Putnam Foundry & Mach. Co. v. Harrington Town Council \[R. I. 67 A 738. See infra. Other Adequate Remedy. 19. Louisiana Constitution, Art. 94. Murat v. New Orleans, 119 La. 505, 44 87 279. \[Ind.\] 81 NTE 46. Jin a petition to compel the injunction where the same has been refused \[on hearing did not present a case of this \]. Murat v. New Orleans, 119 La. 505; Nation v. Public School Directors, 119 La. 819, 44 815. \[dams will not issue to compel a judge to 18. Putnam Foundry & Mach. Co. v. Harrington Town Council \[R. I. 67 A 738. See infra. Other Adequate Remedy. 19. Louisiana Constitution, Art. 94. Murat v. New Orleans, 119 La. 505, 44 87 279. \[Ind.\] 81 NTE 46. Jin a petition to compel the injunction where the same has been refused \[on hearing did not present a case of this \]. Murat v. New Orleans, 119 La. 505; Nation v. Public School Directors, 119 La. 819, 44 815. \[dams will not issue to compel a judge to 18. Putnam Foundry & Mach. Co. v. Harrington Town Council \[R. I. 67 A 738. See infra. Other Adequate Remedy. 19. Louisiana Constitution, Art. 94. Murat v. New Orleans, 119 La. 505, 44 87 279. \[Ind.\] 81 NTE 46. Jin a petition to compel the injunction where the same has been refused \[on hearing did not present a case of this \]. Murat v. New Orleans, 119 La. 505; Nation v. Public School Directors, 119 La. 819, 44 815.

666 **MADAMUMS SS 1.** **10** Cur. Law.

A writ of mandamus ought not to be used to perform the office of certiorari.28 The pendency of another proceeding involving the same question will, as a general rule, preclude the issuance of a mandamus 29 unless it will be ineffective 30 or the other tribunal' is without jurisdiction.31 The existence of a temporary injunction granted in a suit by a third party against the railroad commission and the respondent in a different forum, temporarily restraining the commission from putting into effect similar rates prescribed in other circulars, is no bar to a petitioner in another case from prosecuting his remedy for mandamus.32 The fact that the legality of certain assessments of taxes by the borough is under review by certiorari proceedings is no defense on an application for mandamus to compel the borough to pay over the state and county taxes.33 If, however, the other remedy is not as adequate, mandamus will lie.34 Mandamus is not the usual proceeding for the enforcement of a claim or payment of a salary and it is only where upon both the facts and the law it clearly appears that there can be no defense that the court exercises its discretionary powers by compelling payment in this way.35 Under the Georgia code a private person having a special interest may enforce the performance of a public duty by a corporation, and it is not necessary before such remedy can be availed of that such person has no adequate remedy at law.36

\_Loss of remedy by limitations, laches, delay, estoppel, etc._See S. C. L. 815_-Laches may defeat the remedy by mandamus.37 Delay may be excused by special circumstances

28. Reversal of the determination of a common council for jurisdictional error. Hartwig v. Watertown \[ViN.\] 112 NWP 21. **20**, Mandamus to restore a police officer. **20**, **115**, **116**, **117**, **118**, **119**, **120**, **121**, **122**, **123**, **124**, **125**, **126**, **127**, **128**, **129**, **121**, **123**, **124**, **125**, **126**, **127**, **128**, **129**, **129**, **130**, **131**, **132**, **133**, **134**, **135**, **136**, **137**, **138**, **139**, **140**, **141**, **142**, **143**, **144**, **145**, **146**, **147**, **148**, **149**, **150**, **151**, **152**, **153**, **154**, **155**, **156**, **157**, **158**, **159**, **160**, **159**, **161**, **162**, **163**, **164**, **165**, **166**, **167**, **168**, **169**, **170**, **171**, **172**, **173**, **174**, **175**, **176**, **177**, **178**, **179**, **180**, **181**, **182**, **183**, **184**, **185**, **186**, **187**, **188**, **189**, **190**, **191**, **192**, **193**, **194**, **195**, **196**, **197**, \*\*198 10 Cur. Law. **MADAMUS $\\lx@sectionsign$ 2A.**

where no harm has come thereby to the respondent.**11 No lapse of time protects a company from the consequences of a refusal to transfer shares of stock on their books where the ownership is of no concern to it.**11**:**

### 668 Mandamus $ 2A.

unless there appears to be an abuse thereof.\[45\] Mandamus does not lie to correct judicial error but a writ of error must be used or an appeal taken.\[46\] Some acts of a court are ministerial and not judicial and if the duty is imperative, specific, and definite, mandamus will lie to compel performance.\[47\] Mandamus will be used to control an inferior court where it is the duty of the inferior court to act within its jurisdiction,\[48\] or if having jurisdiction, the court refuses to retain it where there was a

14 Det. Leg. N. 180, 111 NW 1043, The super-intending control of the appellate court over inferior courts will not be extended to decreting whether a circuit judge should do when he has refused to do where the error claimed to have been committed is reviewable on appeal from the order entered in the matter or from a final determination of the matter or proceeding in which it was made, and the refusal does not deny a clear statutory right but involves the determination of questions of law or fact, or both, of such difficulty that a judge might reasonably, proceeding considerably, commit judicial error. Mandamus to compel change of venue. State v. Circuit Court for Rock County \[Ws.\] 114 NW 455, In mandamus proceedings to review the action of a judge in appointing administrators for an estate, his conclusion on the evidence as to their qualifications will not be reviewed. McMeekin v. Saginaw Probate Judge \[Mich.\] 14 Det. Leg. N. 723, 114 NW 241. Mandamus to vacate a decree allowing solicitor's fees. Trial judge made a return that he decided the matter from his knowledge of the case and the services required for the election of a judge in appointing administrators for an estate, his conclusion on the evidence as to their qualifications will not be reviewed. McMeekin v. Saginaw Probate Judge \[Mich.\] 14 Det. Leg. N. 723, 114 NW 241. Mandamus to vacate a decree allowing solicitor's fees. Trial judge made a return that he decided the matter from his knowledge of the case and the services required for the election of a judge in appointing administrators. Shewray v. Weber \[Mich.\] 113 NW 595. A mandate will never issue to control the judgment or discretion of an inferior tribunal in a matter over which it has full jurisdiction. Jurisdiction \[Mich.\] 90 P 107. Motion for leave to peti- of police board over discharge of police off-cer. State v. Metropolitan Police Com'rs \[Ind.\] 83 NE 83.

45 Wooster v. Calnoun Circuit Judge \[Mich.\] 14 Det. Leg. N. 746, 114 NW 22.3, 114.14, 114 NW 22.3, 114.

clear duty so to do,\[48\] or where the court goes beyond its jurisdiction,\[50\] but only where all other remedies are inadequate,\[61\] for it is well settled that the remedial writs will not be issued if the applicant has complete remedy by appeal.\[52\] Where the court complies with the rule nisi, it would serve no useful purpose to make a writ of mandamus peremptory,\[53\] nor will the writ be granted in any case where it would be of no effect.\[54\]

which the circuit court of appeals can have power to interfere by mandamus with the action of the circuit court is where the question involved relates to its jurisdiction as a tribunal of original jurisdiction. Downsage Mfg. Co. v. McSherry Mfg. Co. \[C. C. A.\] 155 F 524. Will compel action where court refuses to take jurisdiction. In re Pollitz, 206 U. S. 323, S1 Law, Ed. 1081. If a county judge from whose decision there is no appeal refuses to order an election, when the statutory is neither of appeal. Manlon & Co. v. Public compelled by mandamus to act. O'Neal v. Minary, 30 Ky. L. R. 888, 101 SW 951. Where a court refuses or delays to act, mandamus is the appropriate remedy to set the machin- (Mfg. Co. v. McSherry Mfg. Co. \[C. C. A.\] 155 F 524. Will compel action where court refuses to take jurisdiction. In re Pollitz, 206 U. S. 323, S1 Law, Ed. 1081. If a county judge from whose decision there is no appeal refuses to order an election, when the statutory is neither of appeal. Manlon & Co. v. Public compelled by mandamus to act. O'Neal v. Minary, 30 Ky. L. R. 888, 101 SW 951. Where a court refuses or delays to act, mandamus is the appropriate remedy to set the machin- (Mfg. Co. v. McSherry Mfg. Co. \[C. C. A.\] 155 F 524. Will compel action where court refuses to take jurisdiction. In re Pollitz, 206 U. S. 323, S1 Law, Ed. 1081. If a county judge from whose decision there is no appeal refuses to order an election, when the statutory is neither of appeal. Manlon & Co. v. Public compelled by mandamus to act. O'Neal v. Minary, 30 Ky. L. R. 888, 101 SW 951. Where a court refuses or delays to act, mandamus is the appropriate remedy to set the machin- (Mfg. Co. v. McSherry Mfg. Co. \[C. C. A.\] 155 F 524. Wills compel action where court refuses to take jurisdiction. In re Pollitz, 206 U. S. 323, S1 Law, Ed. 1081. If a county judge from whose decision there is no appeal refuses to order an election, when the statutory is neither of appeal. Manlon & Co. v. McSherry Mfg. Co. \[Nev.\] 15 F 737.

670 MANDAMUS SS 2A. 10 Cur. Law. Mandamus lies to compel the signing of bills of exceptions \[85\] or other papers necessary for appeal.\[86\] Under the provisions of par. 5 of rule 28 of the supreme court of Idaho, an application for a writ of mandamus against a court or judge must contain the name of the real party in interest so that he may be served with notice and come in and defend.\[87\] Mandamus may compel a judge to act or to enter a mandate commanded by a higher court.\[88\] In mandamus to compel a judge to set down cases for trial, his response that they will be heard as soon as prior cases are disposed of will be assumed to be made in good faith and the proceedings continued.\[89\] Mandamus is not the remedy to annuli a judgment on the ground of conspiracy and fraud.\[86\] Mandamus will not lie to compel the vacation of an order restraining the collection of an execution issued on an invalid judgment,\[81\] nor will it lie to compel the issuance of an execution on an invalid default judgment.\[82\] \_The writ of supervisory control.\[88\]_S_ C. L. 811.\_The supreme court of Louisiana will compel a district judge to fix a date for trial of cases under its supervisory power in exceptional cases, when in its judgment it is necessary to bring about an effective remedial administration of justice,\[83\] and may review a judgment by writ of mandamus even though the case is appealable,\[84\] but it is too late where the case has been appealed.\[85\] Upon mandamus proceedings the court will decline to set aside the judgment of the lower court refusing to punish for contempt of an injunction where the facts do not show contempt.\[88\] The writ of supervisory control will not be issued where there is a right of appeal or where nonjurisdictional action is intimated but no order has been made.\[87\]

down for trial. State v. Reid, 119 La. 390, 44 17 Tex. Ct. Rep. 771, 99 SVW 1025: Id. \[Tex. S 137. 54. Mandamus does not lie to compel a trial 1027. 57. Connolly v. Woods \[Idaho\] 92 P 573. 58. McBride v. Hon \[Ark\] 102 SVW 359. 59. McBride v. Hon \[Ark\] 102 SVW 359. 58. McBride v. Perry, 31 Ky. L. R. the order merely denied to parties a right to 716, 193 SVW 287. 58. 19. 19. 19. 19. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44.

10 Cur. Law. MANDAMUS SS 3B. 671

(SS 2) \_B. Administrative and legislative functions of public officers.\_See 4 C. L.

*19--Mandamus may issue to compel administrative officers to discharge purely ministerial duties,* but it will not compel them to act in a particular manner where they

derived from the purchase of stocks, the ex-

http by statute Mespite the pendency of an

eeutor could not get out a writ of supervisory

appeal of an intervening claimant. Hart v.

control even assuming that the court had no

Stephens \[Tex.\] 100 SW 135. Mandamus lies

jurisdiction to determine the title to the

topnel a court steeprapher to deliver a

stock, as the executor may appeal, and fur-

transfeript of evidence upon payment or ten-

ther it is to be assumed that the court will

der of the statutory fees. Stereographer re-

act legally and no order has been made as

used to furnish evidence until a bill he had

yet. State v. District Court of First Judicial

Against relator was paid. Lyle v. Sherman,

Dist., 35 Mont. 384, 90 P 161.

417 Mich. 42, 13 Del. Leg. N. 1067, 110 NW

68. Hertel v. Boissmene, 229 Ill. 474, 82 NE

01. Lies to compel a state treasurear to ex-

01. Mandamus lies to compel the perform-

change a certificate of stock for a coupon

ance of an act which the law specially en

bonds as, a duty resulting from an office, trust,

of Laws 1892, pp. 24, 25, 84 1, 2. Ehrlich v.

or station. Meyer v. San Francisco, 150 Cal.

131, 83 P 722; City of San Antonio v. Rout-

legating highway commissioners to com-

ledge \[Tex., Civ.\], App.1 j 19 Tex. Ct. Rep. 457,

pel the removal of obstructions built at the

102 SW 756. A writ of mandamus lies to the

officer, board, or other organ of a cooperation

of a bayr at highwater mark. Bath houses

whose legal duty it is to perform the required

built above high water across the end of a

act. Mandamus against members of a board

of education which was a corporation to al-

law a boy to attend school. People v. Hend

rickson, 54 Misc. 337, 104 NYS 122,

that a municipal ordinance regulating the

Duties held ministerial and enforcetible: To

compel civil service commission to hold a

does not justify the creation of any height of

promental examination. People v., Ermat,

sky sign without a permit, but the party may

229 Ill. 56, 82 NE 271. Mandamus will lie to

apply for a permit asking that the superin-

compel the free commissioner to fix a proper

content of buildings determine whether or

pension for a retired fireman under the

not the proposed sky signs is properly con-
visions of statute. Greater. N. Y. Charter

structed and may enforce performance of the

Laws 1901, p. 330, ch. 46, 679. Ramsay v.

duty by mandamus. City of New York v.

Hayes, 187 N. Y. 367, 80 NE 493. May compel

land commissioner to issue land patent where

mayor to issue saloo license where appl-

he has refused so to do because of error in

cant has compiled with all laws and or-

papers filed with him. Patton v. Terrell

damases. Harrison, V. People, 126 Ill., App.

\[Tex.\] 20 Tex. Ct. Rep. 147, 168 SW 116 SW

178. Municipality cannot be compelled to

require common council to pass a resolution

grant license to pawnbroker where former

requiring bars, etc, to give an unobstructed

license was properly revoked. Harrison v.

view of their premises on Sundays where the

people, 121 Ill. App. 159. With not lie to re-

duty so to do is made mandatory by the statutory

view mayor's discretion in revoking salo

ute. Lay v. Hoboken Common Council \[N. J.\]

License. Harrison v. People, 124 Ill. App. 519.

Lawly 67 A. 1064. Combel the payment of a

less to compel restoration of license revoked

pension to a fireman by the fire commissioner

without authority. United States v. Macfar-

as required by law. Ramsay v. Lantry, 107

land, 28 App. D. C. 552. Where the statute

verse action without discretion by a board

case of "the closing of a street a property

where certain facts exist, such action may be

owner may have proceedings instituted to

compelled by mandamus

assertain the compensation to which he is en-

medicine may be compelled by mandamus

title, mandamus will lie to compel the

where the law provides that the state board

stitution of such proceedings and it is no

of health shall issue it where the applicant

defense that the damages are small. People

has articulated prior to a certain date, has

v. Delaney, 105 NYS 746. A ministerial officer

a diploma, and pays a fee. State v. Adcock,

who has a specific * 678

**MANDAMUS $\\lx@sectionsign$ 2B.**

10 Cur. Law.

are vested with a discretion in respect thereto,**69** in the absence of evidence of abuse of such discretion,**70** though it may be invoked to compel officers to act so as to ex-

- **Dutles relating to assessment and levy of**

**taxes: Mandamus lies to compel a borough**

**collector to pay to the county collector the**

**state and county taxes "out of the first money**

**bury City Council \[Ky.\] 105 SW 926. The collected," as required by statute, for there**

**exploecology of providing for and constructing is no other adequate remedy. Trewin v.**

**swerves by a municipality is left to the judgk-Shurts \[N. J. Law\] 65 A 984. A perenptory**

**mandamus will issue for the payment of**

**lips \[VWs.\] 114 NV 802. Mandamus will not state and county taxes by a borough where it**

**has collected sufficient money for borough,**

**bonds by the trustees of a village in lieu of county, and state purposes to pay such state**

**have required by a provision of a statute and county taxes. Id. Mandamus against a city council to require it to apportion taxes**

\*\*where another provision makes such accept-

**among the proper subdivisions of real estate**

**as provided for by statute. Morris & Cum-**

**mings Dredging Co. v. Bayonne \[N. J. Law\]**

**of 20. Mandamus is the proper remedy to**

**compel supervisors to make an assessment**

\*\*and levy under the statute providing for ir-

**region assessments, though the petitinger's**

**demand was represented by a judgment**

**against the district rendered an an action on**

**the district bonds. Nevada Nat. Bk. v. Kern**

**council its issuance by the state's attorney.**

\*\*Council Sup's \[Cal. App.\] 91 P 122. In re-

**spec to matters over which an assessor has**

**no discretionary power and is governed by**

**pair of bridges will not be controlled. State**

\*\*the law, mandamus lies to compel proper ac-

**v. Switzer \[Neb.\] 112 NV 297.**

**tion in the name of the state at the instance**

**of the tax commissioner. Assessments so**

**police commissioners to issue a license to run**

**made as to be a fraud upon the state. Dillon**

**a pool room. Goytion v. McLaier \[Cal. App.\]**

**v. Bare, 60 W. Va. 483, 56 SE 390. State**

**was 8 P 951. Issue of a license to operate a**

\*\*compel a county tax collector to levy and as-

**theatre and sell wines. State v. Langan**

**sesses taxes. Territory v. Gaines \[Ariz.\] 93 P \[Ala.\] 45 S 187. License to sell milk refused**

**by health commissioner because relator was**

**281.**

\*\*69. Not lie to compel exercise of a discre-

**is selling unclean milk. People v. Gilman, 103**

\*\*tionary power. People v. State Racing Com-

**mission \[N. Y.\] 82 NE 723. Jurisdiction of**

**pel action of officers in a different manner**

**police board over discharge of police officer.**

**State v. Metropolitan Police Com'r \[Ind.\] 83**

**the law is unconstitutional, where without the**

\*\*NE 83. Mandamus will not lie to compel

**value**
**fromes to compel the issue of a license to**

**leave to file information in nature of quo**

**warranto. People v. Healy, 230 D1. 280, 82**

**583. 103 SW 1078. Insurance commissioner in**

**NE 599. Court will not by mandamus usurp**

**the functions of officers. Will not compel**

**acts judicially. Cole v. State \[Miss.\] 45 S 11. the appointment of court attendants where**

**wherever the duty, the performance of which the statute provides that the board of city**

**magistrates shall appoint such court attend.**

**atts upon the assent of the board of estimate**

**divides by the officer against whom it is**

**and apportionment as may be necessary.**

**People v. McClellan, 52 Misc. 609, 102 NYS**

\*\*voked, the writ is not available to the petit-

\*\*946. Certiorari is the proper remedy to re-

**view an assessment by the board of assessors.**

\*\*People v. Keefe, 104 NYS 154. A town coun-

**cih constitutes the legislative branch of the**

**town government and as long as it acts**

**within the statutory authority given it, its**

**acts are not subject to judicial investigation.**

**The refusal of the council to reconstruct a**

**bridge which was washed away cannot be**

**reviewed. Clay City v. Roberts, 80 Ky. L. R.**

**Adcock, 206 Mo. 550, 105 SW 270. Standing of**

**820, 90 SW 651. Where statute provides that**

\*\*v veterans of 10 Cur. Law. Mandamus $ 2B. 673

ercise their judgment or discretion in the premises.\[71\] There must be a clear legal right to compel official action.\[72\] A demand having been made and action refused,\[73\] mandamus will not lie to compel a general course of official conduct.\[74\] Under the laws of Texas mandamus lies against any officer of the state government except the governor.\[15\] Mandamus will not lie to compel the effacement of records which an officer is required to keep upon the ground that they are erroneous.\[74\]

\_Duties relating to allowance and payment of claims against municipalities.\_See * c. L. 81.--Where a claim is duly established, mandamus will lie to compel the payment of the same,\[75\] despite the fact that an action at law may also be brought,\[78\] and 10 Curr. L. 43.

right the wrong he has suffered. Revocation (ure to perform the same on demand. Meyer of a license to sell milk. People v. New York (V. San Francisco, 150 Ca1, 131, 88 P 722. No Health Dept., 189 N. Y. 187, 82 NE 187. But this (andamus until officer refuses a proper or-should be done by a petition for an alterna-der. Mandamus does not lie to compel paying written rather than a preemptory write. Id. (ment by a county treasurement of money de-Fraudulent assessment. Dillon v. Bare, 60 W. Ya. 483, 56 SE 320. Refusal to grant a ll-censed to pay an order of the court. Higcense to have races held arbitrary. People v. Bins v. Keyes (Cal. App.) 90 P 972. Courts State Racing Commission \[N. Y.\] 82 NE 723. 71. Dillon v. Bare, 60 W. Ya. 483, 66 SE 390. (against public officers to compel action in An officer having discretionary power as to how he shall act may be compelled to act but not been clearly and unequivocally demanded the court which compels him to do so will not. (of such officer. Location in streets by tele-prescribe in its order how he shall act. If an assessor refuses to assess property within 113 NW 40.

to compel the levy of a tax for such purpose \*9 where it appears that there are not sufficient funds. \*80 It is the appropriate remedy to compel a comptroller to sign a warrant for funds to pay a claim against a city where it appears that the funds are sufficient. \*81 Before an officer can be required to pay out public money, those who demand it must show a clear provision of the law which entitles them to receive it, \*82 also that a demand for payment has been made and refused. \*83 Allegations of a petition held sufficient to support alternative writ in an action to recover damages against a city. \*84

\_Duties of election officers.\_See * C. L. \*82--Mandamus will issue to compel election officials to act \*85 and to discharge purely ministerial duties, \*88 provided the duty be

\*9. Under Hurd's Rev. St. 1905, p. 565, c. 34, and collect a tax to pay a judgment against $ 84, to compel county board to reconvene them obtained on a note which was uncollective because it created an indebtedness in judgment in the purposes of tax levy. Coles County Sup'rs v. People, 226 Ill. 576, 80 NE 1066. Compel key and assessment by county commissioners to pay warrants issued in payment of a ditch construction which had been abandoned or to proceed to condemam land necessary for the completion of the ditch and thus levy the assessment as provided for by statute. State v. Lewis County \[Wassh.\] 88 p 760. The fact that condemnation proceedings and the construction of a ditch have not been completed is no defense to mandamus to compel the levying of an assessment to pay warrants issued in payment of a ditch construction which had been abandoned or to proceed to condemam land necessary for the completion of the ditch and thus levy the assessment as provided for by statute. State v. Lewis County \[Wassh.\] 88 p 760. The fact that condemnation proceedings and the construction of a ditch have not been completed is no defense to mandamus to compel the levying of an assessment to pay warrants issued several years before in payment of construction. Id. Under the charter of a ditch prohibiting the issue of execution on a judgment against it and exempting all its property from forced sale but binding it to pay judgments and giving it the power to raise money therefor, mandamus lies to compel payment. City of San Antonio v. Koutl. ledge \[Tex. Civ. App.\] 192 Tex, Ct. Rep 467, 102 SW 756. The fact that the council of a city has discretion to transfer the excess of funds over current expenses to any of the special funds does not show that mandamus may not issue to compel the city to levy a tax to create a fund from which a judgment may be paid. Id. Under the charter of the city of Antonio providing for the raising of money for the payment of judgments, a petition to compel the city to raise money by taxation, alleging that had a surplus or unexcluded to discharge it. Judgment against a county would raise money sufficient to pay the Judgement and that it refused to provide payment for two years after the date of rendition of injuries due to such. Id. Where a judgment of a city seeking to compel the city to pay the judgment alleges that it is the duty of the city to provide payment in levying taxes for the fiscal year, it was not necessary to allege wherein it became the duty of the city to provide for the payment of the judgment. Id. A petition for payment of a judgment until the extent that it does not allege it did not appear that the fund would not be exhausted by obligations of the city pending or not established. Id. The levy of a special tax by the council of the city of San Antonio under the charter, empowering it to levy for enumerated special purposes, is not within the discretion of the city and mandamus will lie to compel it to levy such tax to pay a judgment. Id. May compel the trustees to levy 10 Cur. Law. MANDAMUS $ 2B. 675 clear." When, however, election officials have acted and declared the result, mandamus does not lie to compel them to declare some other result which may be more just,"88 for that is the exclusive province of the officials subject only to review by quo warranto,"89 unless such officials have acted wrongfully." The writ will lie to prevent the counting of a defective ballot."91

\_Enforcement of right to public office.\_See 5 C. L. 892--A writ of mandamus cannot be rightfully invoked to settle a doubtful claim to an office,"92 or to have the title thereto adjudicated as between adverse claimants,"93 but where the relator is shown to hold a prima facie and uncontested title to an office a writ of mandate may be issued to put him in possession." One who has been unlawfully deprived of office

election. State v. Felton, 6 Ohio N. P. (N. S.) vere objected to. In re Ordway, 118 App. 286. Mandomus lies to compel an election Div. 386, 103 NYS 36. 88. When a board of canvasser s has acted, 88 N. Y. 460, 82 NEP 567. Rev. Laws 6 of Mass., c. 11, $ 421, being-the general election ums will not lie to compel them to reconvene law giving the courts jurisdiction to enforce and declare some other result which may be the provisions of the chapter, confers juris- A more just one. Dickinson V. Cheboygan lection on the supreme Judicial court to Issue Country Canvasser, 148 Mich. 512, 14 Det. a writ of mandamus in proper space. Brewers - Leg. N. 196, 111 NVE 1076. 88. When a board of canvasser s to make a recent. Dickinson v. 12 party, which is the exclusive province of the 14 Det. Leg. N. 196, 111 NVE 1075. A board of board 8 board 88. Victory by quo war- canvasser s may be compelled to reconvene to restore & v. Madcox, 189 N. Y. 460, 82 NE make a canvasser s of returns where they ad- 507. 80. Where election inspectors wrongfully uman v. Pettingell \[Colo.\] 89 P 48. Where a counter unofficial ballots, they could be compelined by mandamus to reconvene and reject power and retugers to order an election in the such ballots and rectify the result of the face of a sufficient petition, mandamus will lection, leaving the persons then appearing 16 to be emel it to act. Good v. Shan Diego & 6 to be elected to assert their rights to their Common Council \[Col. App.\] 89 P 44. Fall- vere to make up and sign a statement of the People v. Beam, 117 App. Div. 874, 103 N1S result of a primary election as required by 815. 88. 88. 88. 88. 88. 88. 88. 88. 88. Action against board of registrams of 88 Election Board (N. J. Law) 87 G A voters and the town clerk to refrain from 713. Where the election law provides that uming a ballot marked with a diagonal only official ballots shall be deposited in ball- line instead of a cross. Brewster v. Sher- 1ot boxes except in certain cases and provides man \[Mass.\] 80 NNE 821.

676

MANDAMUS $ 2C.

10 Cur. Law.

may be restored by peremptory writ of mandamus, \[98\] as where one has been dismissed contrary to civil service regulations, \[98\] but he must be remitted to his suit at law to recover any arrears of salary to which he may be found justly entitled. \[97\] Title to office cannot be determined by mandamus where there is another specific remedy prescribed or where there is another plain, speedy, and adequate remedy at law. \[98\] This rule, however, is one only of procedure and not jurisdictional so the fact that title to office is incidentally involved does not interfere with mandamus proceedings. \[99\] Mandamus is the proper remedy to require an officer who has been ousted of his authority to turn over property belonging to the public and devoted to the use of the public to the new officer, \[1\] despite-the fact that an appeal is pending. \[2\]

($ 2)

_C. Quasi public and private duties._\[98\] S. C. L. \[94\]--While mandamus will not issue to enforce a private contractual right, \[3\] it may be invoked to compel

95. Mandamus is the proper remedy for an estopel on either of the claimants to the the restoration of a police officer who has done of mayor, but the practical effect was been dismissed without a trial before the to finally decide the title between them. police commissioner to which he is entitled. And, although mandamus has always been Elder V. Bingham, 118 App. Div. 25, 10 NYS held proper when brought by a de facto $17. Mandamus to compel reinstatement to and de jure officer to obtain possession of office because of insufficient time within books or records, it has been denied when which to meet charges allowed by statute $17. Keeler v. Deo, 117 Mich. 1. Or the question was given and charges were not complicated or title was directly and unavoidably in and no complaint of lack of time was made controversy (State v. Williams, 25 Michn. at the time of hearing. People v. Butler, 340), or the court would have to go behind $4 Mise, 18, 103 NYS $63.

01. Dismissal of a police officer contrary to the civil service regulations. Lattime v. must be clear, and quo warranto is necessary Hunt \[Mass. 81 NTE 1001. A clear. appointed to try the title of a de facto office. Law-under Greater New York Charter, $157, rationale v. Khanley, $4 Michn. 389, 404: State v. authorizing coroners to appoint clerks, etc., Atlantic City, 52 N. J. Law, 322, $ L. R. A. is not a public officer, and hence, when dis- $69. Nor can an officer try his title by bring-missed in violation of the civil service laws, in mandamus is his remedy, People v. Cahill, 188 N. Y, 438, 81 NNE 453. May compel the municipal civil service commission to cer- to insist that the proper action be used. tify the relator's name upon the municipal People v. Board of Police Com'rs of Yonkers, pay roll under Laws 1893, p. 807, $7, $19, where he has been properly appointed to a John, 81 M. No. 13. On the other hand the wirt position, although he did not perform serv- has been allowed where there was no other $155 appropriate to the title of the position assignment or occupant (State v. Daggett, 28 assigned him. People v. McWilliams, 56 Mise. 296, 10 NYS 459. Civil service rules $28, 16 L. R. A. 413; Metaker v. held compiled with and mandamus to relen- state a building inspector refused. People or v. Butler, 107 NYS $33. Mandamus will lie to review the classification of a civil service commission. May compel the municipal civil service commission of the city of Buffalo to could be properly determined. In re Del-exempt the position of registrar in the bureau of water from the competitive class, its action in so classifying it not being judicial. People v. Wheeler, 56 Mise. 289, 106 NYS 450.

01. Lattime v. Hunt \[Mass. 81 NTE 1001. 98, McKannay J. Horton \[Cal. 3\] 91 P 598. 99. Mandamus to compel payment of a mayor's secretary's salary Involved question of title to office of mayor, McKannay v. Editor Horton \[Cal. 9\] 91 P 598. 99.

Note: That mandamus is not the proper action in which to try the title to an office is generally conceded, but the courts differ in their application of and imitations upon the principle. As a rule, even where there is a clear legal right, it will be denied if questions between pesons not parties to the proceedings must be decided. United States v. Gen'l Land Office, 72 U. S. (S Wall.) 563; Keeler v. Deo, 117 Mich. I. In the principal case service was made upon Schmits, and the judgment of the court could not operate as $17.

10 Cur. Law. Mandamus SS 2C.

performance of a public duty imposed by contract * or law.\* Mandamus is the appropriate remedy to effect the restoration of a member of a private corporation who has been irregularly removed from membership,\* to compel a common carrier to perform its duties as a public service corporation,\* to compel the inspection of public records * or the inspection of corporate books by a stockholder * or creditor, where such right is given by statute,\* but if it appears that the application is not made in good faith for the protection of the stockholder or the corporation but for some ulterior motive, the writ will be denied.\* Mandamus will also lie to compel the reinstatement of a scholar improperly dismissed from school,\* and where a statute

\[R. I.\] # A 78. Mandamus will not lie to

S 213; Id., 63 Fla. 689, 44 S 232. The duty

compel issuance of certificate of stock where

to construct cattle guards and crossings by a

the by-laws of corporation relating to trans-

railroad company may in a proper case be

for stock have not been compiled with

enforced by mandamus. But not where

Shirley Farmers' Grain & Coal, Co. V. Doug-

there is serious dispute between the parties

lass, 130 Ill. App. 285. Will not lie to compel telephone company to obey ordinance

are necessary. State v. Colorado, etc., R. Co.

quiring. reports of business and payment

of gross earnings tax. City of Chicago v.

S. But when the only right of the petl-

Chicago Tel. Co., 230 Ill, 167. 82 NE 607.

tomer is his interest as one of the,public, he

qught to show that the issue of the writ

quate remedy, the right to salary as secretary of the mayor of a city may be determined by mandamus. Secretary to the

proper motives. In re Freeman \[N. J. Law\]

mayor of San Francisco where there were

two claimants. McKannay v. Horton \[Cal.\]

91 P 588. When a public franchise which

involves the performance of a certain service

is granted and accepted, the party accepting

such franchise can by mandamus be com-

pelled to perform such service. Compel a

street railway to carry certain classes of

persons free as provided in the franchise.

Oklahoma City v. Oklahoma R. Co. \[Okl.\]

93 Pla. State v. Lazarus \[Mo. App.\] 105 SW7 780;

91 P 588. When a public franchise which

involves the performance of a certain service

is granted and accepted, the party accepting

such franchise can by mandamus be com-

pelled to perform such service. Compel a

street railway to carry certain classes of

persons free as provided in the franchise.

Oklahoma City v. Oklahoma R. Co. \[Okl.\]

93 Pla. Mandamus will lie to enforce performance by a traction company of duties in re-

spect to public highways occupied by it

pursuant to the terms of the municipal

dinances under which such occupation is

enjoyed. Borough of Pleasantville v. At-

lantic City & Suburban Trac, Co. \[N. J. Law\]

68 A 60.

5. A railroad company which has laid

tracks in a street may be compelled by

mandamus to restore the street to its former

condition as provided by law. State v. Wabash R. Co., 206 Mo. 251, 103 SW7 117.

6. Expelled without a hearing. Venezia v.

Italian Mt. Benev. Soc. of Perth Amboy \[N. J. Law\] 65 A 898. Mandamus is the proper

remedy to compel reinstatement in a church

society by a member summarily deposed

without cause and without hearing. Hughes

v. North Clinton Baptist Church \[N. J. Law\]

67 A 66. Mandamus will lie to restore one

who has been improperly expelled to membership in a society whose object is not

soley religious but is to provide a funf for

the payment of benefits and to generally

help members In distress. People v. Erste

Ulasskoveer Kranken Unterstuungs Ver-

eln, 56 Misc. 304, 106 NYS 922.

7. Connolly v. Woods \[Idaho\] 92 P 673.

- The duty of providing a reasonably safe and

sufficient roadhead and equipment and operating

ing and maintaining the property In a re-

sonably safe manner, and so as to give

whether the crossings and cattle guards

effect and adequate service, may be

forced upon-a common carrier by mandamus.

Whether such duties are imposed-by statute

charter or raised by implication of law. State

V. Atlantic Coast Line R. Co., 58 Fla. 650, 44 Id.

requires the annual election of officers of corporations, any stockholder may compel by mandamus the calling of a meeting for such purpose if no meeting has been held.13 Under the California constitution, persons to whose use water has been dedicated by a quasi public corporation engaged in supplying water, no matter for what purpose, may compel the continuance of the supply by mandamus by whososever may be in control of the corporation.14 Mandamus will not lie to compel a voluntary organization to comply with its by-laws.15

SS 3. _Jurisdiction and venue_.Soc s C. L. 825_Jurisdiction is a matter of substance and not of mere form and cannot be supplied by stating facts and demanding relief.18 The supreme court of errors of Connecticut,17 the supreme court of Michigan,18 and the supreme court of North Dakota, except in special cases,19 is without power to issue a writ of mandamus in the exercise of its original jurisdiction. Under the Texas constitution the district court and judges thereof may issue mandamus in all cases where courts of law or equity under settled rules would have the power to issue them.20 Judges may issue mandamus in vacation under the Texas constitution.21 The superior court of Arizona has original jurisdiction in mandamus throughout the state.22 The probate court of Oklahoma has no jurisdiction to issue writs of mandamus.23

_Federal courts_.See s C. L. 825_The circuit courts of the United States have no power to issue writs of mandamus as an original and independent proceeding,24 but only when ancillary to a jurisdiction already acquired.25 Mandamus will not be

12. Vermillion v. State \[Neb.\] 110 NWV 736.

01. Sylvania, etc., R. Co. v. Hoge \[Ga.\]

01. City of South Pasadena v. Pasadena

Land & Water Co. \[Ca.\] 93 P 490. Right to

receive water was appartement to the land

and a private right. Orcutv v. Pasadena

Land & Water Co. \[Ca.\] 93 P 497.

15. Will not lie to compel board of trade

01. Vermillion v. State \[Neb.\] 110 NWV 736.

01. Sylvania, etc., R. Co. v. Hoge \[Ga.\]

01. Sykenia, etc., R. Co. v. Hoge \[Ga.\]

01. Sykenia, etc., R. Co. v. Hoge \[Ga.\]

Is a good candidate for the existence of * license there was collusion between the plaintiff and defendant, which agreed not to interpose any defense, taxpayers and voters of the municipality might intervene and defend. \[49\] Where mandamus is brought against a city council to compel the performance of a duty and before hearing the life of the council expires and a new council takes its place, the mandamus goes against the new council. \[40\] A claim for title to office should be brought against the adverse claimants and not against the municipality. \[41\]

- SS 5. \_Pleading and procedure in general.\_See 5. C. L. \[28\] The procedure relating to the issue of mandamus is regulated by statute in many states. \[42\] Where mandamus is the sole relief sought, it is ordinarily classed as a special proceeding but still remains triable at law. \[43\] Service of an alternative writ can be made under the code of New York on a board of education by service upon a majority of the members or its presiding officer. \[44\] By code in California the ordinary rules in civil actions are applicable to pleadings in mandamus except in respect to matters otherwise provided. \[45\] An ad interim injunction granted by a Federal court on a bill filed subsequently to a petition for mandamus to which litigation in the Federal court the petitioner is not a party, affords no sufficient reason for staying the mandamus proceeding or denying the issue of a mandamus absolute. \[46\]
- SS 6. \_Petition or affidavit.\_See-s C. L. \[27\]--In mandamus the object of the petition or complaint is to secure the granting of the alternative writ or rule to show cause, \[47\] and when that has been issued the complaint is functus officio and the alternative writ becomes the initial pleading in the cause. \[48\] An application for the writ should not be granted unless the petition shows every fact necessary to entitle the relator to the relief sought, \[49\] but a petition is sufficient if it give the facts necessary for serving as a basis for mandamus and it need not go into detail. \[50\] The facts on which relator's right is based and not mere conclusions of law in respect thereto should be alleged. \[61\] A clerical error in a petition for mandamus may be corrected on motion. \[52\] The giving of notice of a petition for mandamus is discretionary. \[53\] In an original proceeding for mandamus to compel the clerk of a district court to file an against a city it is not necessary to make application will be made at a certain time such officers parties as have the duty and before any papers are filed does not confer jurisdiction to issue a perenptory writ in a case where notice must be given. State v. provide for the payment of a judgment, it is not necessary to make the aldermen and members of the city council parties. City of San Antonio v. Routledge \[Tex. Civ. App.\]
- 19 Tex. Ct. Rep. 457, 102 SW 756.
- 20. Conlee v. Clay City, 31 Ky. L. R, 533, 102 SW 852.
- 40. Morris & Cummings Dredging Co. v. Bayonne \[N. J. Law\] 67 A 20.
- 41. Couch v. State \[Ind.\] 82 NE 457.
- 42. Maine Rev. St., c. 104 SS 17, 18, construed. Hamlin v. Higgins \[Me.\] 67 A 625.
- 43. Ford v. Manchester \[Iowa\] 113 NW 846.
- 44. People v. Hendrickson, 54 Misc. 337, 104 NYS 122.
- 45. Taylor v. Burks \[Cal. App.\] 91 P 814.
- 46. Southern R. Co. v. Atlanta Stove Works, 128 Ga. 207, 57 SE 429.
- 47. Chipman v. Forward \[Colo.\] 92 P 913. The New York code contemplates the issue of a writ of mandamus, whether perenptory or alternative only, upon affidavits or other, written proofs showing a proper case theretof. People v. Ahearn, 104 NYS 860. An action to procure the issuance of a writ is not begun until a motion and affidavit or a petition verified positively is filed in the district court. A notice that information presented by the prosecuting attorney, the state is the party interested and the prosecuting attorney represents the state and may verify the complaint.\[54\] Where a statute requires that an affidavit be sworn to by the parties or by their attorney if they are absentees, it does not require that where all the relators are absentees except one, who is, however, merely a nominal party, the affidavit must be made by that party in person.\[55\] Where in mandamus to compel supervisors to make an assessment for irrigation under Laws 1897, p. 267, c. 189, SS 39,\*it appeared that all the land was situated in one county, the petition was not insufficient because it failed to state that the office of the board of directors was situated in the county where the proceedings were brought.\[56\] Under the Kentucky statute regulating mandamus, a petition need not be filed ten days before the beginning of a term but may be filed during or out of term time and stands for hearing ten days after service, if the court in which the proceeding is pending is then in session.\[57\]

SS 7. \_Alternative writ.\_See * C. L. 828--It is usually necessary both at common law and by statute that an alternative writ issue in the first instance,\[58\] except where there is no room for controversy as to the right.\[59\] Such a writ recites the allegations upon which it was issued and the respondent is required to do certain acts therein described or make return why he should not do them.\[50\] The allegations in the alternative writ are clearly amendable within the discretion of the court,\[61\] at least if no new ground is introduced or if the amendment does not authorize a more stringent command in the peremptory writ.\[62\] All irregularities as to an alternative writ are waived by submitting the case for final decision on the merits.\[59\] The mandatory part of a writ should conform to the allegations of the writ and should not in general require more to be done than is justified by such allegations.\[64\] The mandatory clause of the writ should state with definiteness the particular duty required to be performed.\[65\] An alternative writ need not bear the seal of the court or be signed by

54. State v. Quarles \[Idaho\] $9 P 636.

01. Arknassas Southern R. Co. v. Wilson, 118 La. 395, 42 S 976.

01. Nevada Nat. Bk. v. Kern County Snprs \[Cal\], App.\] 91 P 122.

01. McChesney v. Hager, 31 Ky. L. R. 1028,

01. State v. Harrington \[Neb.\] 110 NWP 1016. At common law application was made to the court, containing allegations of facts requiring the issuance of the writ. If these allegations satisfied the court of the need of the writ, there was issued with or without notice a preced called an alternative writ of mandamus. Harlin v. Higgins \[Mc.\] 67 A 625. Where on motion for a peremptory writ issues of fact are presented by the opposing affidavits, the peremptory writ cannot be granted, but an alternative writ may be had instead. Mandamus to compel restoration to membership in a society. People v. Erste Ulaszkower Kranken Unterstutzung Verein, 56 Mins, 304, 106 NYS 922. Where the allegations of a complaint are. denied by the respondent, it is error to grant a peremptory writ, but an alternative writ should be issued. Statute provided for a rebate of liquor license fee if there had been no prior convictions for violation of the liquor laws upon surrender of license before it explored. In mandamus to compel payment of the rebate, where the commissioner denied that relator had not been convicted, the burden was on the relator to prove compliance with all conditions precedent. People v. Clement, 117 App. Div. 589, 102 NYS 779.

01. Only where there is no room for controversy as to the right, and where from the nature of the facts set forth in the affidavit the court can take judicial notice that a valid excuse is impossible, that a writ may issue without notice. Mandamus to compel the delivery of cars to transport freight cannot be issued without notice.

01. The alternative writ is neither an origin-in vari nor a final writ of execution. It is practically a rule to show cause issued by a justice in vacation. Hamlin v Higgins \[Mc.\] 67 A 625.

01. After return by respondents, petition-res were allowed to amend their writ to coincide with facts stated in the return. Hamlin v. Higgins \[Mc.\] 67 A 625. An alternative writ may be amended. State v. Atlantie Line R. Co., 52 Fla. 650, 44 S 213; Id., 53 Fla. 689, 44 S 223.

01. Hamlin v. Higgins \[Mc.\] 67 A 625. An Independent allegation of an important fact is in effect the institution of a new proceed- ing People v. Ahearn, 104 NYS 860.

01. Wunderlich v. Kalkofen \[Vis.\] 113 NNV 101.

01. State v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 S 213.

01. Wrift issued to enforce performance by a common carrier of its duty to the public. State v. Atlantic Coast Line R. Co., 53 Fla. 689, 44 S 223. The range of action required of the respondent by an alternative writ should be clearly and explicitly set forth in the mandate of the writ, and should not be left to indiscriminate outside ascertain the clerk, the signature of the justice himself being sufficient authentication. \[96\] Where the duty sought to be enforced is a general one and its nature is such that some discretion in the performance of it is vested in the respondent and the character of the duty and the particulars of the breach as alleged in the writ are peculiarly within the knowledge of the respondent, a general allegation of the duty to the public with statements as to the violation of the duty by nonperformance or otherwise, in terms sufficient to enable the court to specifically enforce compliance with the mandate, will be sufficient on motion to quash the writ. \[97\] Allegations of alternative writ which are relevant and not otherwise improper will not be stricken out on motion. \[98\] The alternative writ has no real place in mandamus procedure in some states; all that need precede a peremptory writ is notice sufficient to give opportunity for a hearing. \[98\] If the respondent performs the acts required by the alternative writ, its purpose is answered. If he does not he may move to quash for want of sufficient allegations or other imperfections, \[96\] or he may make return upon it of facts relied upon to excuse his nonperformance. \[91\]

SS 8. _Demurrer to petition or writ; answer or return; subsequent pleadings._ See s C. L. \[98\] It is no longer proper practice to address a demurrer to a writ of mandamus; it should be addressed to the petition, which is the real pleading and declaration of the relator. A defect in the writ should be reached by motion to quash, and if the opportunity for filing a motion to quash has been allowed to pass, the defect cannot be reached by a demurrer, even though addressed as in this case to both the petition and the writ. \[98\] The respondent may pleald in its return and rely upon facts which occurred since the issuance of the writ. \[93\] In Massachusetts the statute has been construed to permit a demurrer to a petition for mandamus. \[94\] A demurrer to a petition admits the truth of its averments. \[95\] Substantive matter pleaded going to the sound discretion of the court exercised in issuing a peremptory writ of mandamus is not demurrable. \[98\] A demurrer will not lie to an alternative writ of mandamus and the petition therefor on the ground that the judge was without jurisdiction to order the writ while sitting at chambers and in another county of the same judicial district and subdivision. \[97\] A demurrer is properly sustained to a separate statement of defense in the return to an alternative writ, no new matter being contained in it, but all that it embraces being embraced in the issues raised by the denials. \[98\] When matters of inducement stated in an alternative writ are replied to, they should be either admitted, denied, or confessed and avoided. \[99\] At common law the respondent cannot pleald a general denial but must pleald specially by a distinct traverse of the allegations of the writ, \[90\] or by way of confession and avoidance. \[91\] An answer in mandamus is sufficient if it clearly responds to and denies the asserment outside the writ. Howell v. State \[Fla.\] 45 S 453. \[Fla.\] 45 S 453. \[Fla.\] 45 S 454. \[Fla.\] 45 S 455. \[Fla.\] 45 S 456. \[Fla.\] 45 S 457. \[Fla.\] 45 S 458. \[Fla.\] 45 S 459. \[Fla.\] 45 S 450. \[Fla.\] 45 S 451. \[Fla.\] 45 S 452. \[Fla.\] 45 S 453. \[Fla.\] 45 S 454. \[Fla.

tions of the petition.\[82\] If the answer to an alternative writ is wholly insufficient as a pleading, a demurrer will lie,\[83\] and if it is wholly irrelevant and impedes a fair trial of the cause, it may be stricken on motion,\[84\] or any irrelevant, immaterial, or otherwise improper matter stated in the answer may be stricken on motion,\[85\] but when the answer contains positive denials and other averments that are responsive, a motion to strike the entire answer will not be granted.\[86\] Where no afflavits are presented on behalf of the respondent, the material allegations of the petition are assumed to be true,\[87\] and every fact pleaded by the plaintiff not specially traversed by the respondent is taken as admitted.\[88\] An evasive return is properly regarded as conceding the facts alleged and only raising a question of law as to whether the facts entitled to relief.\[89\] The plea must be as broad as the alternative writ unless it be expressly stated to be a partial defense.\[90\] On an application for a perenptory writ, the replying afflavits must be taken as true,\[91\] but averments of the answering afflavit on information and belief do not put in issue the allegations of the relator's petition,\[92\] and mere indefinite conclusions in answering afflavits are insufficient to raise an issue to defeat a peremptory writ.\[93\] Mandamus may issue on a prima facie case by the relator despite proof denying the same by the respondent and the question of fact may properly and conclusively be determined upon the traverse to the return to an alternative writ.\[84\] A motion to make a mandamus absolute necessarily involves a determination that the averments in the answer either afford or do not afford a sufficient reason in opposition to the issuance of the writ, and the question whether or not the answer was sufficient is open despite the fact that it was not attacked by way of motion to strike out or demur in the court below.\[88\] In mandamus to compel the reinstatement of a patrolman discharged after hearing on charges of neglect of duty, relator is not entitled to have the return made more definite by having set out how, when, and where he neglected his duty, and also a copy of the proceedings set out for uncertainty in the removal proceedings cannot be attached in collateral mandamus.\[89\] Where on a writ of error after the quashing of an alternative writ the relator in the mandamus proceedings disclaims any intention of having the writ cover matter included within its terms, upon which issues are made by the respondents, the order quashing the writ will be affirmed, but the cause will be re-manded with leave to amend the writ.\[97\] Where a petition of a turnpike company for mandamus to compel the auditor to certify to the clerk of a county court the taxes due from a railroad company on its property in petitioner's taxing district did not make allegations required by statute, an answer alleging no knowledge of the facts which should have been alleged in the petition is sufficient.\[88\] Under Rev. St. 1901, par. 1367, providing that where the defendant has answered and the plaintiff amends no further answer is necessary, the original answer extending to the amendments, a 82. "Respondents deny the allegations and each of them contained in 16th paragraph," NYS 617. held sufficient without repeating words of allegation. People v. Chicago Board of Trade, 125 Ill. App. 20. See 224 Ill, 370, 79 NE 611. 83, 84, 85, 86. State v. Atlantic Coast Line Church IN. J. Law\] 67 A 66. R. Co., 53 Fla. 711, 44 S 230. 87. People v. Metz, 107 NYS 970. 88. City of San Antonio v. Routledge \[Tex. Civ. App.l 19 Tex. Ct. Rep. 457, 102 SW 756. 89. Vunderlich v. Kalkofen \[N!s.\] 113 NNV 1091. 90. People v. New Rochelle Water Co, 104 NYS 92. 91. Hammond v. General Committee of Republican Party, 56. Misc, 302, 106 NYS 589. 92. 92. Elder v. Bingham, 118 App. Div. 25, 103 NYS 617. 93. Mandamus to compel the issue of a Il-case. People v. State Racing Commission \[N. Y.\] 82 NE 723. 83, 84, 85, 86. State v. Atlantic Coast Line Church IN. J. Law\] 67 A 66. R. Co., 53 Fla. 711, 44 S 230. 87. People v. Metz, 107 NYS 970. 88. City of San Antonio v. Routledge \[Tex. Civ. App.l 19 Tex. Ct. Rep. 457, 102 SW 756. 89. Vunderlich v. Kalkofen \[N!s.\] 113 NNV 1091. 90. People v. New Rochelle Water Co, 104 NYS 92. 91. Hammond v. General Committee of Republican Party, 56. Misc, 302, 106 NYS 589. 92. 93. 94. 95. 96. 97. 98. 99. 99.

684

MANDAMUS SS 9A. 10 Cur. Law. demurrer to the application for mandamus extends to subsequent amendments, no other answer or return having been made by the respondent.\[98\]

SS 9. \_Trial, hearing, and judgment. A. Trial and hearing.\_See s c. L. 829--A petition for mandamus is one which ought in many cases to be summarily heard and disposed of if the petitioner is to have what he is entitled to.1 Under the Washington code mandamus is held to be a judicial investigation, the object of which is the determination of civil rights, the same as in any ordinary proceeding, not only the determination of rights but their determination in such a way as to culminate in an effective judgment.2 Though the circuit court has jurisdiction in mandamus proceedings, it must try such a proceeding according to its inherent nature as an extraordinary remedy limited in its scope.\* The relator has the burden of proving the allegations of his complaint.4 In mandamus proceedings to compel obedience to an order of the board of railroad commissioners, the order of the board is prima facie reasonable and the burden is on the defendant to prove its unreasonableness.5 Where a petition is properly brought by the attorney general, it is immaterial who prosecutes the same.6 Immaterial allegations may be waived dispensing with the necessity of their proof.7 Under Code 1896, SS 2827, requiring appeals from final judgments to be taken within thirty days after judgment, an appeal taken Jan. 24, 1907, from a judgment rendered Nov. 21, 1906, was too late.8 Where the answer to mandamus proceedings states that the act required to be performed will be done as soon as possible, the proceedings may be continued to await such performance.\* Where the petition alleges the facts essential to the issue of a writ and the answer denies the allegations, the case being submitted on the pleadings for judgment, the petition is properly dismissed,9 and under Washington Code Civ. Proc. SS 1091, affirmative allegations of a sworn answer not controverted by either pleading or proof are sufficient to support a judgment though no evidence is introduced under them.11

\_Jury.\_See s C. L. 830

By statute in some states, if the answer makes an issue of fact, the issue thus made shall be tried by a jury.12

\_Damages.\_See s C. L. 831

\_Abatement and dismissal.\_See s C. L. 831

A petition will be dismissed where the pleadings disclose questions of fact which the court cannot determine.13 Where the right is restored pending proceedings, an alternative writ issued has no substantial office to perform and may be quashed.14 Any defect in substance in the writ may be taken advantage of at any time before the peremptory mandamus is awarded.16

(SS 9) _B. Judgment._ See 0 C. L. 613

_Scope of relief._ See 0 C. L. 631.--A judgment in a proceeding to compel respondent to act should not unnecessarily prescribe the manner of performance.16 Relief may be granted to the petitioner without providing for other interested parties.17 Both mandamus and injunction may be granted in one action where no objection is made to the petition praying therefor as multifarious.18

_Costs._ See 0 C. L. 631.--Where the controversy has arisen because of negligence on the part of the relator in creating a condition which seemed to warrant the action of the respondent, the costs should be adjudged against the relator.19 Costs aceruing in the supreme court of Georgia in an application against a judicial officer are taxable against the applicant.20 Costs go against the persons committing the wrong.21 A mandamus proceeding is regarded as an action respecting the right to costs.22 If pending appeal the right sought to be enforced expires, the appellant is entitled to reversal of judgment if the lower court improperly denied the petition, and a direction that he recover his costs.23

Footnote 17: The author is grateful to the anonymous referee for the support of the paper.

SS 10. _Peremptory writ._ See 0 C. L. 631.--Where after return the facts are undisputed and the relator's right is clear, a peremptory writ should issue in accordance with the prayer of the petition,24 but if issues of fact are presented by the opposing afflavits, the peremptory writ cannot be granted but an alternative writ may be had instead.25 Where the mandatory part of a writ taken with its allegations is not so definite and specific that its performance can be readily enforced, a peremptory writ will not be issued.26 Where after a petition for a mandamus has been presented the respondents do the act sought to be enforced thereby, the relator is not entitled to a peremptory writ.27

Footnote 70 686 MARRIAGE $ 1. 10 Cur. Law.

**SS 11.**\_Performance,See\*C. L. 831.\_The court cannot punish for contempt where it is impossible to carry out the order of the court and the inability of the respondent is not due to any design or purpose on his part.\[28\] A peremptory writ issued against an officer in his official capacity after his resignation is not binding on his successor where such successor was not a party and is not named in the writ.\[29\] Where in mandamus proceedings to compel a society to hold a meeting a void meeting is held before issue of the peremptory writ, the relators may attack such meeting as not constituting a defense in the proceedings and are not driven to a direct attack upon the meeting.\[30\]

**SS 12.**\_Review,See\*C. L. 832.\_Where in mandamus all facts are conceded, an exception that the order and judgment was not supported by the law or the evidence should be construed to mean that the final result was not warranted by the conceded facts.\[31\] The assumption by a trial court that mandamus is a proper remedy is equivalent to so deciding, thus presenting the question of the propriety of the remedy for review.\[32\]

\*\*Mandate; Marine-Insurance; Maritime Llens; Market Reports; Markets; Markets,\*\*see latest topical index.

**MARRIAGE.**

**SS 1.**\_Nature of Marriage; Capacity of Parties;

France and Ducress, 686.

**SS 2.**_Essentials of a Contract of Marriage,_

**SS 3.**\_Vulidity and Effect, 688.

687. A Common-Law Marriage, 687.

**SS 4.**\_Proceedings for Annulment, 689.

**SS 5.**_Criminal Offenses and Penalites, 690._

Slave marriages,\[83\] the rights and liabilities resulting from marriage,\[34\] and the crime of bigamy,\[84\] are excluded.

**SS 1.**\_Nature of marriage; capacity of parties; fraud and duress.\[See\*C. L. 833

Statutory restrictions on marriage of divorced persons have no extra-territorial effect,\[84\] but annul a marriage in violation thereof within the jurisdiction where they are operative.\[37\] The presumption of death from continued absence\[84\] is strengthened by the presumption in favor of the validity of a remarriage by the remaining spouse,\[84\] and such a marriage is valid as to all but the absent spouse.\[40\] Interracial marriages are prohibited in some states.\[41\]

and a meeting is held but without proper in District of Columbia was valid. Dimpfel authority. State v. Rombottis \[La.\] 45 S 43.

**SS 28.**_Writ against the secretary of a company to produce books. Secretary had resigned prior to issue of peremptory writ,_

**SS 48.**

but not for purpose of evading the order of court,\_

**SS 49.**\_Website V. Green, 12 * 10 Cur. Law. MARRIAGE $ 2. 687

**SS 2.**\_Essentials of a contract of marriage.\_See * C. L. 833

\_A Common-law marriage_See * C. L. 834 is a mutual agreement of competent parties 42 to be husband and wife in presenti with present assumption of the relation.43

While a cohibition meretricious in its inception is presumed to so continue, slight evidence will overcome the presumption,44 and in Arkansas the question is regarded as one of fact without presumption either way.45 The relation created by a common-law marriage is the same as that created by ceremonial marriage.48

\_Evidence of marriage.\_See * C. L. 834.Though it is said that the burden is on one asserting marriage to prove it,47 marriage is presumed from cohabitation and repute.48

Ceremonial marriage may be proved by the record 48 or by the testimony of any person who knows the facts,50 or by proof of cohabitation and repute.51 A common-law marriage may be and ordinarily is established by cohabitation and repute,52 and to be sufficient these must be matrimonial in their character.53

\_Competency of witnesses.\_See * C. L. 835

notwithstanding the statute, The principal agree to take each other and promise to have case decided that Spicer v. Spicer, 16 Abb. Prac. \[N. S.; N. Y.\] 112, was contrary to the time for years, held not a valid, common-law meaning of the statute. Similar holdings to marriage. Judson v. Judson, 147 Mich. 618, those of the New York courts are found in 111 NW7 78.

Estate of Harrington, 140 Cal. 244, 73 P 1000, 98 Am. St. Rep. 51; Charles v. Charles, 41 Minn. 201. A few courts seem-to have gone 111 NW7 822.

even further and have pronounced the marriage valid, nothing being said about the right of the first husband or wife to insund the subsequent marriage. See Strode v. \[Let. Neg. N. 865, 114 NW7 873. Decedent had strode, 65 K.Y. 287, 96 Am. Dec. 211; Thhab. 111 Worms, who not knowing or former mar-Am. Dec. 555; Woods v. Woods' Admrs', 2 Frage in good faith coabited with him and Bay \[S. C.\] 476. The old common-law rule \[v\] were until his death. Held that she became applied in some of the states. This common-law wife on death of insane wife.

law rule in well expressed in the opinion in 1 In 6 Welsh Estate, 108 NYS 164. Where Martin's Heirs v, Martin, 22 Ala. 85, in these words: "Though a man marrizes never so often, he can have but one lawful wife living. So long as she is living, and the marriage bond remains in full force, all his 111 Worms, who not knowing or former mar-Am. Dec. 555; Woods v. Woods' Admrs', 2 Frage in good faith coabited with him and Bay \[S. C.\] 476. The old common-law rule \[v\] were until his death. Held that she became applied in some of the states. This common-law wife on death of insane wife.

law rule in well expressed in the opinion in 1 In 6 Welsh Estate, 108 NYS 164. Where Martin's Heirs v, Martin, 22 Ala. 85, in these words: "Though a man marrizes never so 111 Worms, he can have but one lawful wife living. So long as she is living, and the marriage bond remains in full force, all his 111 Worms, who not knowing or former mar-Am. Dec. 555; Woods v. Woods' Admrs', 2 Frage in good faith coabited with him and Bay \[S. C.\] 476. The old common-law rule \[v\] were until his death. Held that she became applied in some of the states. This common-law wife on death of insane wife.

law rule in well expressed in the opinion in 1 In 6 Welsh Estate, 108 NYS 164. Where Martin's Heirs v, Martin, 22 Ala. 85, in these words: "Though a man marrizes never so 111 Worms, he can have but one lawful wife living. So long as she is living, and the marriage bond remains in full force, all his 111 Worms, who not knowing or former mar-Am. Dec. 555; Woods v. Woods' Admrs', 2 Frage in good faith coabited with him and Bay \[S. C.\] 476. The old common-law rule \[v\] were until his death. Held that she became applied in some of the states. This common-law wife in well expressed in the opinion in 1 In

## 3 Validity and effect

See 4. C. L. 582.-Every presumption favors the legality of a marriage,54 and the presumption is strengthened by cohabitation and birth of issue.55 Positive evidence, however, of a former marriage overcomes any presumption of its invalidity arising from subsequent marriage.56 A marriage valid when made continues so though the law under which it was so is superseded.57 A marriage void when made 58 may become valid by ratification after impediment is removed.58

### 52, 53. Klipfel's Estate v. Klipfel \[Colo.\] 92

P 26.

54. Foster v. Berrier \[Colo.\] 89 P 787; Murchison v. Green, 128 Ga. 358, 67 SE 709; Sparks v. Ross \[N. J. Eq.\] 65 A 977; Potter v. Potter \[Wash.\] 88 P 625.

01. Murchison v. Green, 128 Ga. 339, 67 SE 709; 769; McDonald v. WPhite \[Vwash.\] 89 P 891.

Where there was fifteen years cohabitation with birth of nine children and couple lived as husband and wife till day of husband? death, held that the evidence of prior marriage was not powerful enough to invalidate marriage. Sparks v. Ross \[N. J. Eq.\] 65 A 977.

56. Resnick v. Resnick, 126 Ill. App. 132.

01. Marrigages made by Indians under triplaul customs which were valid while tribal relations existed will be held valid after stature laws take effect making Indians citizens of the U. S. Ortley v. Ross \[Neb.\] 110 NVR 982.

01. Between parties, one of whom has a spouse living, Brown v. Brown \[Miss.\] 43 S 178; Stein v. Dunne, 103 NYS 894.

01. At time of ceremony wife had husband living. This fact known to both parties. Plaintiff on learning of former husband's divorce said "Before God, you are my wife." Held ratification and annument refused. Mick v. Marti \[N. J. Eq.\] 65 A 851. Where couple legally married in England, separated, and husband came to America, then both remarried, English woman dying in 1901 and the man in America in 1904, and from 1901 to 1904 the American wife was generally recognized as the wife of the man, held a presumption would lie that either a divorce had been secured before marriage to the Ameri- can wife or that the marriage to the Ameri- can wife was created after death of first v. Attorney General, L. R. 1 App. Cas. 686.

wife. In re Thewille Estate, 217 Pa. 807, 66 A 519. Couple married after woman had left another man with whom she had lived. After death of first man she remarried formally her husband. Held, at least after death of first man, couple were husband and wife. Husband had widower's Interest. Gelfger v, Ryan, 108 NYS 13. Marrage relaul tions continuing after death of first husband. Bechtel v. Barton, 147 Mich. 318, 13 Det. Leg. N. 1047, 110 NVP 935. The defendants' wife obtained a decree of divorce from him, but before the decree became absolute be married another woman. The parties involved in this latter marriage separated, but subsequently cohabited after the divorce obtained by the first wife was made absolute. On indictment charging defendant with jokesm marriage was not cured by the subsequent cohabitation of defendant and his secondaries became absolute. Common wealth v. Stevens \[Mass.\] 82 NE 83.

Note: The question whether a marriage, vold because of an existing marriage, can be made vally by cohabitation after the removal 10 Cur. Law. MARRIAGE $ 4. 689

As a general rule a marriage valid where made is valid elsewhere,60 but this is subject to exceptions.61 The plea of prescription cannot be invoked to make valid an invalid marriage.62

Footnote 62: The name of living, where the annulment is based on a prior marriage of the woman.\[12\] On the expiration of the period fixed by statute, the court must make final an interlocutory judgment of annulment.\[78\]

SS 5. _Criminal offenses and penalties.\[74\]_--While the issuing of a license for the marriage of a minor female without the consent of her parents is in some states a crime or subjects the officer to a penalty \[75\] the clerk cannot be held in civil liability to the father of a minor girl for loss of her services because of her marriage under such license.\[76\] Under the statutes of Ohio, it is required that an applicant for a marriage license state under oath the number of times he has been previously married, and a false statement with reference thereto, given under oath, warrants a conviction for perjury.\[77\]

Markriage Settlements, see latest topical index.

## 7 Marshaling assets and securities.

_The doctrine_ See 8 C. L. SSSS of marshaling assets requires a creditor having recourse to two funds to one of which only other creditors can resort to first exhaust the fund in which his interest is exclusive.\[78\] It is administered only as between creditors and not at the suit of the debtor,\[79\] and will not be so applied as to injure third persons with equities equal to or greater than that of the creditor invoking the rule.\[80\] So, also, the court may direct payment to the paramount creditor from the common fund and provide for subrogation for its replenishment.\[81\] The right of a junior mortgagee to invoke the doctrine cannot be defeated by secret agreement between the senior mortgagee and the debtor.\[82\] Where by reason of intervening liens superior to his own a junior mortgagee can have no interest in other property covered by a general senior mortgage, he is not entitled to have the value of such other property

lation. Schneider v. Rabb \[Tex. Civ. App.\]

18 Tex. Ct. Rep. 962, 100 SWV 163.

72. Husband sued wife to annul on ground that she had husband living when she married complained. Harned v. Harned \[N. J. Eq. \] 67 A 180.

01. Interlocutory judgment was opened on condition and defendant did not comply with condition. Bernzott v. Bernzott, 107 NYS

01. See 8 C. L. SSSS. Bigamy (see 9 C. L. 392), and offenses against the marital relation (see Husband and Wife, 10 C. L. 1, and topics there referred to), are excluded.

01. License issued for marriage of a worthless girl of 16 without consent of father and without inquiry of father, who was well known to register and who could have been reached by phone, application made by man unknown to register and no oath was taken by applicant. Heid failure to exercise reasonable inquiry. Laney v. Mackey, 144 N. C. 630,57 SE 886.

01. Clerk issued license to girl just over fourteen years while statute forbade issu-ance under eighteen years. Girl at fourteen capable of contracting common-law marriage. Heid at marriage girl went from jurisdiction of father and he could not recover for her services. Jackson v. Bansier (Tex. Civ. App.) 18 Tex. Ct. Rep. 735, 105 SWV 66.

01. Rev. St. 6890. Field v. State, 9 Ohio

01. Assignee of rents entitled to landlords'

01. X.g.

- 10 Cur. Law. MASTER AND SERVANT SS 1. 691
- / yet unsold added to the fund for distribution." Equity will not entertain jurisdiction of a suit by a solvent individual to marshal his assets and'establish claims for or against the estate."
- \_Partnership assets.\_See e C. L. SS20
- \_Inverse order of alienation.\_See e C. L. SS30
- / MARSHALING ESTATE, see latest topical index.

MASTER AND SERVANT.

- 1. The Relation; Statutory Regulations
- 1091. Termination of the Relation,
- 111. Actions for VWrongful Discharge,
- 111. Actions,
       699 MASTER AND SERVANT SS 1.10 Cur. Law.

tract. Where service continues without change after expiration of a term, there is an implied hiring &or another term of the same length.\[92\] A general or indefinite hiring is prima facie a hiring at will " and is terminable at any time by either party." An agreement to pay a certain salary monthly is held by some courts to be a contract for a month,\[95\] by others, such a hiring is held to be a hiring at will."

An employer's right to cancel a contract for employment must be based on an act of the employee either in derogation of his duties or because of something outside the contract which affects his performance thereof." That other persons desired services to be performed by another is not ground for an employee's discharge," nor does the fact that the employee's services are no longer required justify his discharge before the end of his term." A discharge or termination of the contract for causes specified in the contract is of course justifiable, if the right to terminate is exercised in good faith." Where services to be rendered under a contract are personal, involverote to employe that his salary had been increased to a certain figure per month, and employee continued to work, he accepted the new contract and thereafter was employed \[Ga. App.\] SS 5E 720. On expiration of two by the month. Schett v. La Compagnate Generale Trans-Attainque, 52 Misc. 236, 102 NYS 901. Contract constructed as a hiring for one year which read, "I will work for you the first year for one thousand dollars, give my "Trans-Attainque, 52 Misc. 236, 102 NYS 901."

undivided time and attention to the advance-

98. The fact that wages are payable ment and best interest of the enterprise, after

that time, * * * I will leave it to you to the

the absence of a showing to the contrary.

say what I am worth to the business. This

Contemplates continuous and perpetual serv-

108.5 Weap v. White \[Tex. Civ. App.\] 18 Tex.

70.

Ct. Rep. 183, 100 SBV 1015. Where a contract

for employment for a year terminated and

vessel and marine engineer for employment

eight days later the employe demanded a contract for another year and stated that he

specified, is a hiring at will and not by the

would quit at once unless he got it and the

maste said, "You are all right, go

usage to the contrary, either party may ter-

Held a contract for a year. Embry v. Harga-

minate it at any time without notice. The

dine, McKittrick Dry Goods Co. \[Mo. App.\]

Pokanocket \[C. C. A.\] 156 F 241. A contract

105 SWY 717. Where contract of employment as

for a certain sum per month, nothing being

originally made provided for termination

by either upon thirty days notice but it was

note hiring and the master may discharge at

renewed for one year from a certain date,

a term of a year was created and a discharge

Dispensary, 107 NYS 404.

during the year was not justifiable. Daniel

v. Manhattan Life Ins. Co., 116 Apr. Div., 780,

contract nor responsible under it express an

102 NYS 27.

91. Contract of employment, with appendix,

ploye is not sufficient. Porter v. Murphy

held one instrument, which provided that it

could be terminated at any time by either

party, Killen v. Citizen Life Ins. Co., 30 Ky.

Id.

L. R. 881, 99 SWY 943. Contract with sales agent

98. One who employed a person to weigh,

allowing employer to terminate it on four

mark, and deliver cotton could not breach

months' written notice in case he desired to

such contract on the ground that sellers de-

consolidate with other manufacturers held

manded that another welsiger weigh the cot-

valid. Fuller v. Downing, 104 NYS 891.

ton. Sadler-Lusk Trading Co. v. Logan \[Ark.\]

92. Where contract of employment has

104 SWY 205.

been extended from year to year, payment of

99. Where a corporation contracted to am-

s salary after lapse of extended period tends to

display an agent for five years, reserving no

establish fact of renewal for a further year.

Fish v. Marzlur, 128 Ill. App. 549. The

the end of the contract where it displayed him at

ginning of a new year's service without

change of compensation at the end of a

lees were no longer required Chipman v.

period of one year's service is a new hiring

for a year on the former terms. Appleton

W water works Co. v. Appleton \[Wis.\] 112 NWV

106 SWY 852.

114. Under a contract employing one as fore-

001.

001. Where a contract for hiring is general

or indefinite in its terms, it is prima facie a

b discharged whenever his employer be-

hiring at will and the servant has the burden

comes in good faith dissatisfied with his

to prove hiring for a definite term. Frank

v. Manhattan Maternfy & Dispensary, 107

because the master gives a wrong reason if

he has a good reason. Corgan v. George F.

10 Cur. Law. Master and servant $ 1. 693

ing fitness, integrity, and confidence, all that is required of the employ in exercising his option to discharge is that he act in good faith and not arbitrarily.\[9\] Acts committed before existence of the relation,\[9\] or done at his request,\[10\] or which have been condoned by- the master,\[11\] are not grounds for the servant's discharge. Where an employee has bargained all of his time to his employer, he has no right to appropriate any of it to his own use without his employer's consent,\[11\] but a temporary absence from the employment at a time when work has been suspended, so that no injury results to the employer, will not in all cases justify discharge of the employ.\[12\] The question must in each case be determined by the contract, the nature of the business, and the interests of the employer.\[13\] Insubordination and incompetency authorize a discharge when shown.\[11\] A charge of incompetency is not sustained by showing acts of third persons not under the servant's control.\[14\] A servant's incompetency is not waived by the master retaining him an unreasonable time after discovery of such fact.\[15\] Whether a regulation adopted by a corporation for government of its employees is void for unreasonableness is a question of law and not of fact.\[16\] A resigna-'tion tendered and accepted terminates the contract of employment\[17\] and precludes an action for wrongful discharge.\[18\] Where according to the terms of a contract the employment is terminable at any time, a refusal-to let the employe begin work is a breach of the contract.\[19\] Whether a discharge was justified may be a question for the jury.\[20\] It depends largely upon the facts of the particular case.\[21\] No particular

Lee Coal Co. \[Pa.\] 67 A 655. Where contract reserved to employer right to terminate contract upon giving four months' written notice, in case he desired to consolidate with charge. Sharp v. McBride \[La.\] 165 S 41. use good faith in terminating the contract. Fuller v. Downing, 104 NYS 991. Evidence of an attempt of the employer to effect a consolidate with the issue of good faith, in action for breach. Id. Where contract provided that plaintiff was to render satisfactory services in her specialties twice a day for a week, and she was discharged in good faith after the first day because her services were not satistortory to defendant nor the public, she could not recover for the entire week. Parker v. Hyde & Behamham Amusement Co., 53 Misc. 543, 103 NYS 731.

2. Beissel v, Vermillion Farmers' Eleventor Co., 102 Minn. 29, 113 NWP 575.

1. Delivery to a competitor of master's list of agencies before servant is employed does not justify dlebarge. Butterick Pub. Co. v. Whitcomb, 225 Ill. 605, 80 NE 247.

1. In an action for wrongful discharge, an instruction that, if the servant was prevented from devoting his entire time and skill to the work by assuming other work at the master's request, he was not absolived from carrying out his contract. was properly refused. Sexton v. Richardson \[Cal. App.\] 92 P 395.

1. Sharp v. McBride \[La.\] 45 S 41. Filtergate rick Square Bale Ginning Co. v. McLaney \[Ala.\] 44 S 1023. Instruction approved. Id. Retention of servant for one year after knowledge of fact that before his employment commenced he delivered a copy of master's list of agencies to a competitor waives right to discharge on that ground. Butterick Pub. Co. v. Whitcomb, 225 Ill. 605, 80 NE 247.

1. When the author is ready to accept the correct answer, he 694 MASTER AND SERVANT SS 1. 10 Cur. Law.

form is required for a notice of termination so long as the intention to terminate and to give such notice is evident.\[18\]

\_Actions for wrongful discharge.\_See * C. L. #43.--The usual rules of pleading apply.\[19\] Plaintiff must show a contract of employment \[20\] and a wrongful discharge.\[21\] A servant who quits the service voluntarily has no right of action for breach of the contract.\[22\] A voluntary resignation by the servant may be shown by the employer under a general denial.\[23\] The discharge being shown, the master must show a reasonable cause therefor.\[24\] In an action for damages for breach of a contract of employment, plaintiff is prima facie damaged to the extent of the amount agreed to be paid \[28\] for the time up to the commencement of the action.\[20\] Indemmity \[27\] or expenses \[28\] are recoverable when shown to have been agreed upon in case of discharge, and special damages may be recovered \[29\] when alleged and proved.\[30\] While it is

employe failed to give his entire attention to

man that he felt bad and wanted to go home

the business, proof that after the discharge

and the foreman told him, "you don't need to

the employer engaged the agent of a com-

come tomorrow; they are going to move,"

petitor, who served both, was admissible.

When the servant left and did not re-

Fitzpatrick Square Balg Ginning Co. V. McManey \[Ala.\] 44 S 1023.

turn, shows not a discharge but that the

servant left voluntarily. Fenster v. Bass, 107

18. Letter held sufficient notice of terminating

19.07 contract of employment according to

for wrongful discharge. New York Life Ins.

its terms. Fuller v. Downing, 104 XYS 991.

Co. v. Thomas (Tex. Civ. App.) 19 Tex. Ct.

Where one was employed as nurse to an

n-

valid, and shortly afterward the employer

moved to a distant state, leaving the servant

trarily. Abelson v. Goldstone, 102 XYS 177.

in possession of his place, and after several

months the servant sent in a bill for nursing

19 Tex. Ct. Rep. 576, 103 SW 423.

and caretaking, and the master replied

20. In an action for damages by a servant

through an attorney to leave the place, held

sufficient notice to terminate the employment

for his time of service has expired, it is the

and there could be no recovery for sub-

duty of the master to aver and prove that the

quent services. Kershner v. Henderson

(USAW). 93 P 232.

19. Declaration in action for wrongful discharge, setting up terms of contract of

employment, fulfillment by plaintiff, and breach

just cause therefor" is error. Bart v. Burton

by defendant, held not demarable. Jackson

Bros. & Watts Co. v. Gillespie, 127 Ga. 358, 56

20. Complaint in action for wrongful

19 Tex. Ct. Rep. 576, 103 SW 423.

21. In an action for damages by a servant

discharge of plaintiff's assigner held sufficently

safety definite and certain to state a cause

of action. Abrahams v. Finkelstein, 55 Misc.

314. 102 XYS 89.

001. In an action for breach of contract of

employment to weigh, mark, and deliver cotton, evidence sufficient to show that such

contract was made. Sadler-Lusk Trading Co.

v. Logan \[Ark.\] 104 SV 205. In an action for

wrongful discharge, evidence held to show

that plaintiff was employed by defendant and

not by defendants' subcontractor. Smith v. Kooperstein,

Ohler, 21 Ky. L., T. 1275, 104 SV 955.

22. Evidence sufficient to show that an

ploye was wrongfully discharged. Dagult v. D. H. Holmes Co. \[L.L.\] 44 S 93. In an action

to recover salary on an alleged wrongful discharge,

charge, evidence sufficient to sustain a ver-

dict for plaintiff. Kelly & Jones Co. v. Moore,

198 Ga. 683, SS SS 181. Whether hiring was

for a year held a question for the jury in

an action for wrongful discharge. Schultz

v. Simmons Fur Co. \[Wash.\] 90 P 917. Where

a merchant employs a salesman for a year

at a fixed salary and during the year refuses

to continue the contract unless it is changed

to a percentage basis, it amounts to a breach

of the contract emitting the servant to damages. Americus Grocery Co. v. Roney \[Ga.\]

58 SP 462. Evidence sufficient to show such

breach. Id.

22. Testimony that a servant told his fore-

01.

10 Cur. Law. Master and Servant SS 2. 695 plaintiff's duty to use reasonable diligence to procure other employment of the same kind,\[31\] he may maintain his action whether or not he obtained other employment.\[32\] The burden of showing failure to use due diligence to procure other employment is upon defendant.\[33\] Plaintiff need not, as a part of his case, show that other employment was sought and could not be obtained,\[34\] nor the amount of his earnings.\[35\] To defeat plaintiff's claim entirely, defendant must show that he could have obtained other employment for the same compensation for the balance of the term.\[36\] _Remedies of master for breach by servant.\[36\]_ & C. L. 845 _Labor laws_ See 8 C. L. 845 which violate the right to contract are invalid.\[37\] Statutes prohibiting employment of minors in certain occupations are a valid exercise of the police power.\[38\] The title of a statute must be sufficiently comprehensive.\[39\] In Colorado it is held that since the power to regulate hours of labor cannot be delegated by the legislature to coordinate branches of the government,\[40\] an eight-hour law applied to a particular business is invalid unless the legislature has declared such business injurious to health of employees.\[41\] The question of right to discharge in such case is one of law.\[42\] _SS 2. The right of the master in services of the employee, and right of employe_

that but for the contract the plaintiff could

it, is sufficient without alleging failure to have obtained other employment, where there

obtain other work. Fitzpatrick Square Balo

was no evidence that at the time the contract was made there was any request for

employer wrongfully discharged who sues to employment with other parties. Stovall v. recover waess for unixpired term need not

Gardner (Trox. Civ. App.) 18 Tex. Ct. Rep.

allage and prove that in the interim he was

87, 103 SWV 405.

81. Graff v. Blumberg, 53 Misc. 296, 103

01. Presharged servant is only bound
    696 MASTER AND SERVANT SS 2. 10 Cur. Law.

_to compensation; trade secrets; medical treatment; assignments of-wages; statutory regulations; liens.See_\* C. L. \*\*\*.--The right to compensation must rest upon contract, express **43** or implied.**44** Where there is an express contract, the amount of compensation depends upon its terms;**45** if the contract is implied, the reasonable value of services rendered may be recovered.**46** The presumption is that services similar to those contracted for are paid for by regular wages or salary, and one seeking to recover extra compensation must, prove an express agreement therefor.**47** But an employee in a particular service has a right to compensation for services rendered on request outside the sphere of his employment, although there is no express agreement to pay therefor.**48** An agreement for a bonus is not enforcible if without a considera-

42. Evidence insulficient to show that de-

Iiquidated damages for breach of contract,

fendant ever employed plaintiff or that

it was held error for the court to receive

plaintiff rendered him any service. Bright-

other evidence and direct verdict for plain-

man v. Dring \[R. J.\] 67 A 449. Evidence sur-

tiff. Rains v. Penza, 107 NYS 25. Where a

fheient to show a contract for hiring in an

section for wages. Bogard v. Bartruff \[Wash.\]

manager of a company at a fixed salary but

92 P 778. Where contract of employment

accepted reduced pay under protest, there

was no such acquiescence as to work an

employer as trustee, but the servant did

aboration of the contract. Kelly v. Jersey

not know whom the employer represented,

City Water Supply Co. \[N. J. Err. & App.\] 67

the employer was held personally liable.

Whalen v. Ruegarman, 108 NYS 38. Contract

that he was to receive 50 per cent of the

with architect to assist him in preparing

gross profits on his sales, and bear 50 per

plans for building held too indefinite and

cent losses on his sales, he was liable for

vague to be enforceible. Bluemner v. Garvin,

104 NYS 1009. Deceded proposed to claim-

customers were insulficient. Meyers-Bridges

ant to pay him. $15 a week and expenses to

Co. v. Badeau \[Miss.\] 43 S 609. In an action

assist in establishing a business and to give

for commissions, the construction of the

him a one-fourth interest when decedent

contract held for the court, and the amount

could draw $10,000. Held, claimant having

of sales, and the amount of commissions

accepted the proposition, and received $15

paid, held for jury. Peyver, Western Dry

per week, and then $17.31 per week, he ac-

Goods Co. \[Wash.\] 92 P 886. Corporate res-

cited the entire proposition and was enti-

olution to compensate a manager for the

led to one-fourth interest when business

first year at a certain salary, the second

had grown as agreed. Ott v. Borring, 131

Wis. 472, 110 NW 824, 111 NW 833. An offer

year," which had already terminated, at a

of employment at a certain sum per year

further increase, should be construed only

may be accepted by overt sats showing ac-

or payment of past services, and, where the

qualescence, express acceptance by words

servant continued in the service after the

is not necessary. Smith v. Williams, 123 Mo.

resolution was passed, there was no pre-

App. 479, 100 SW 55. Under a contract to

sumption that the salary provided for the

pay a salesman an additional sum if his

third year applied. Bell v. Piper Tobacco

sales were satisfactory, it lay with the mas-

warehouse Co. 205 Mo. 475, 103 SW 1014.

ter to determine whether sales were sats-

46. Where architect agreed to give a re-

factory. Alforv, Cook, 107 NYS 710.

sonable and fair share of commission to an

44. In an action to recover for services

under an alleged contract, evidence held to

latter could recover upon a quantum merit,

show that no definite price had been fixed for

though the contract was not definite enough

the work, and that there was no agreement

to sustain an action for damages for its

as to the value of the services. Bentley v.

bench. Bluemner v. Garvin, 104 NYS 1009.

Smith \[A. App.\] 59 SB 1720.

47. Evidence insulficient to show agree-

01. Contact providing for a per cent of

met profits as compensation construed,

ices to defendants invalid wife. Jerome v.

Schrader v. Fraeneckl, 117 App. Div. 97, 102

Wood \[Colo.\] 88 P 1067. Evidence insulf-

NYS 385. Contract with salesman constructed

court to show that a servant who sued for

as entitling salesman to $50' per week, the

overtime had worked such overtime. Fried-

commission agreed upon to be adjusted at

man v. Ferrel, 107 NYS 832. Evidence suff-

close of term of service. Wallach v. Slater,

client to sustain finding 10 Cur. Law. Master and Servant $ 2. 697

tion.49 Expenses are recoverable when there is an agreement, express or implied, to pay them.50 An agreement that the servant shall forfeit sums retained from wages, if he quits without the master's consent, is enforcible.61 Some cases hold that an employee who quits or is discharged for cause cannot recover for services already performed,52 others, that he may recover the proportionate part of the stipulated compensation for services actually rendered or their reasonable value not exceeding the stipulated sum.53 Where a servant is to be compensated for his services by a percentage of the results of his labor, no title or ownership passes to him until the production of the product is complete.54 An action for wages cannot be maintained before they are due.55 An employee discharged without cause during the term of his employment may treat the contract as rescinded, and sue on a quantum merit as if the special contract had never been made, whether the contract is valid or invalid.55 Where the allegations of a complaint warrant a recovery upon a quantum merit, an allegation of an express promise to pay may be regarded as surplusage.57 But where a plaintiff has elected to sue upon a quantum merit, he cannot recover upon a promise to pay a fixed sum.58 Holdings as to pleadiags,59 burden of proof,50

year. Kendall v. Chapel, 147 Michon, 709, 14 less than a certain sum the first year, not Del. Leg. N, 58. 111 NW 339. An employee was than a certain greater sum the next, etc., plaintiff requested to be released and employer said he would lose nothing by staying and would be given a bonus at the end of his term. Held, agreement for bonus was without consideration and bonus not recoveable. Price v. Press Pub. Co., 117 Apr. 54. Where servant was to receive one-Div. 854, 103 NYS 296. 50. Where a servant's work included daily trips to another city and required him to be there at noon, and it appeared that the em-Dipyer had paid for lunches of other servants who got them where they pleased, and that he was under obligations to provide Buennell, 52 Misc, 560, 102 NYS 775. 54. Brown v. Crown Gold Min. Co., 150 Cal. to recover the reasonable cost of the lunches. Taylor v. St. Clair, 79 Vt. 586, 65 A 655. 51. Where a servant is employed at so amone of certain services, their reasonable much per week under a contract that $2 per week should be retained as a guaranty that he would not leave during the busy season, where he left without the master's consent in the middle of the week during the busy season, he forfeited the amount retained and his wages due. Fenster v. Bass, 107 NYS 872. 52. See cases cited in Peacock v. Coltrane \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 609, 99 SW 107. A contract by which an actor is employed for a certain number of weeks at a weekly salary is separable only to the extent that payments are to be made weekly, and where he quits or is discharged during the week, he cannot recover the entire or proportionate part of the week's salary, his auction being for breach of contract. Keane v. Liebbl, 107 NYS 102. 53. Instruction, so far as it went, held correct, embodying above rule. Peacock v. Coltrane \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 609, 99 SW 107. Willful assault on plaintiff by defendant led to justify plaintiff in leaving defendant's service, and to recover for services performed, though contract was for entire term. Langguth v. Burmeister, 101 Minn. 14, 111 NW 653. Where plaintiff agreed to work in entire year for a percentage of gross receipts for a year, and worked only two months and a half, he was entitled to recover only the average percentage for the year. Kendall to Chapel, 147 Michon, 709, 14 less than a certain greater sum the next, etc., plaintiff requested to be released and place abandoned the contract after cutting the trees. Held he was entitled to recover for work done. Buckwalter v. Bradley, 31 Ky. L. R. 1171, 104 SW 97. 54. Where servant was to receive one-fourth of crop for compensation, no title or ownership passes until crop is matured. Baltimore & O. S. R. Co. v. Stewart, 128 Ill. App. 270. 55. Action for wages, before they were due, dismissed without prejudice. Dixon v. Bunnell, 52 Misc, 560, 102 NYS 775. 56. Brown v. Crown Gold Min. Co., 150 Cal. 376, 89 P 86. 57. Where a complaint alleges perform- \[J\], 107. Where a servant is employed at so amone of certain services, their reasonable value and that they were rendered at the special instance and request of defendants warrants recovery upon a quantum merit, and an allegation of an express promise to pay may be disregarded as surplusage. Brown v. Crown Gold Mill, Co., 150 Cal. 376, 89 P 86. 58. Plaintiff having amended and elected to sue upon a quantum merit could not thereafter recover upon an express or implied contract fixing the value of the servant. Schrader v. Francckel, 117 App. Div. 97, 102 NYS 325. 59. In an action for damages for breach of contract of employment by nong payment, it is necessary to allege nonpayment. Babcock v. Anson, 106 NYS 642. Complaint held sufficient. 1d. In an action on a contract for services rendered, where the defense was non * 698 MASTER AND SERVANT SS 2. 10 Cur. Law. sufficiency, \[91\] and admissibility \[62\] of evidence, in action to recover compensation, are given in the notes. \_Trade secrets and inventions.\_See s C. L. 848.-An employee impliedly contracts not to disclose trade secrets, knowledge of which is obtained by him during his work. \[63\] Where there is an express contract on the subject, its terms control as to the matter covered by it. \[64\] Former employees may be enjoined from using or disclosing valuable trade secrets learned in the course of their employment, \[65\] and may be compelled to account for profits acquired under a contract secured by means of information obtained from the employer. \[66\] One who induces the servant of another to break his contract and enter his employment may be enjoined from using secret processes, learned by the employee while in the service of the other, and from continuing the servant in his employ, and the employee may be enjoined from disclosing such processes. \[67\] A manual-

it was for the master to prove that such

containing words of praise, if competent to allegation was true. Demeules v. Jewel Tea

show satisfaction, are at most ordinary mes> Co. \[Minn.\] 114 NNV 733.

sages calculated to stimulate the servant.

**G1.** In an action for services rendered as nurse and caretaker of property on conflict-

**G2.** This is so though the employer is re-

ing evidence as to the servants' right to post-

session of the property, the question was for

tentee under whose license the process is

the jury. Kershner v. Henderson \[Wash.\]

used. Taylor Iron & Steel Co. v. Nichols \[N. J. Eq.\] 65 A 695.

**G2.** Where in an action for salary the only

**G4.** A contract between a manufacturer

question was whether compensation for

and employee for a certain term, binding him

services used on was included in salary paid

not to disclose knowledge of processes of

him for other work, an extended examinata-

steel making that might have then been,

tion into the servants's method of performing

or which might, during the term of his

his work, representation respecting his ability, etc., was properly excluded. Fox v.

player, held only to bind him to hold invo-

Baily \[Mich.\] 14 Det. Leg. N. 837, 114 NNV

late secrets used in the works of his

employer. Taylor Iron & Steel Co. v. Nichols

standing putting in plant, defendant claimed

It was antidated and unnecessarily

provisions of such contract binding him

pensive. Held, plaintiff could show the

not to disclose processes known to him

plant was a good one, etc. Mathieson Alkali

for entering into the employment did not

Works v. Mathieson \[C. C. A.\] 150 P 241. In

invalidate the covenant to hold invotivate the

an action for overtime, it was held error to

employer's secret processes. Id. A contract

refuse to allow the master to prove that the

servant had failed to work full time during

ing process, under license from the patentee,

days for which he had been paid full wages.

Keysaw v. Datterweich Brew. Co., 105 NYS

of the patent, held to protect the patentee

652. Where in action to recover for overtime it was alleged that plaintiff worked

ourse made by experiments of the em-

under a contract, between the master and $\\lambda$

labor union, fixing the rate of wages, it

65. Former employees of corporation en

could be shown by parol that the master

recognized the fact that plaintiff was work-

learned while in employ of corporation.

ing under the terms of such contract. Id.

Vulcan Detinning Co. v. American Can Co.

Where one used for compensation as super-

intendent, monthly statements of receipts

competitor may be enjoined from disclosing

and expenditures sent by him to the

compientry sectors learned while in plain-

pany, a summary of which contained a claim

tiff's employ. Taylor Iron & Steel Co. v.

for salary, are admissible to show claim for

sslary, that services were performed, and

restraining perpetually all use of informa-

that the company had knowledge of them.

Pearce v, Greek Boys' Min. Co. \[Wash.\] 92

by plaintiff's predecessor, and all informa-

P 773. Proper to refuse to allow the

definition would only so have been obtained,

fendant company to show that its board of

held too broad. International Register Co.

trustees had no knowledge of such monthly

v. Recording rare Register Co. \[C. C. A.\]

statements. Id. In an action to say a salesman

151 F 199.

to recover compensation under a contract for

66. Where a contract was obtained for

commissions on net sales, evidence of sal-

defendants by means of information ob-

aries and other expenses of the business is

tated by one of them while an employe of

not admissible on the question of net sales.

brainttiff's predecessor, whose good-will and

Norman v. Loomis-Manning Filter Co., 108

business plaintiff purchased, defendants

NYS 261. Extracts from the employer's

were accountable to plaintiff for profits ob-

books to show sales were admissible where

tained thereby. International Register Co.

they were furnished the salesman at his re-

v. Recording rare Register Co. \[C. C. A.\] 151 10 Cur. Law. MASTER AND SERVANT SS 2. 699

facturer seeking such relief must show that he possesses valuable trade secrets, but is not bound to disclose them to his competitor whom he seeks to enjoin from using them.68 Where there is a special service of inventing under a special employment to invent for a consideration, the employer becomes the owner of the servant's invention,66 And the same result follows where, in a contract of general employment of inventive skill, there is an express agreement that the employer is to be the owner of any invention or improvement.70 But to warrant a decree of specific performance, such a contract must be clearly and unequivocally proven, and its terms as to subject-matter, consideration and all essentials, must be specific and unambiguous.71

\_Medical treatment.\_See 8 C. L. 848--A physician cannot recover from the master for services to an employ in the absence of some agreement to which the master is a party.72

\_Assignments of wages.\_See 8 C. L. 848

\_Stationary regulations.\_See 8 C. L. 848--Regulations relating specifically to liability,78 to safety appliances,74 to liability for negligence of fellow-servants,78 and to assumption of risk,78 are treated in subsequent actions of this article. Decisions under the statutes of Arkansas,77 Massachusetts,78 and Washington,78 regulating the

89,70. Portland Iron Works v. Willett

not liable to penalty, where discharged employee presented time check, was told to call

71. Portland Iron Works v. Willett \[Or.\]

in afternoon, and failed to return or leave

89 F 421. Contract made by correspondence

any instructions as to payment, Wisconsin &

constructed and held that defendant agreed to

ARansas Lumber Co. v. Reaves \[Ark.\] 102

take out patents upon improvements on be-

SWP 206. Where employee was given time for

half of plaintiff and assign them to plaintiff

each month, and presented only one, corpora-

as a part of his employment in designing im-

tion was not liable for penalty as to the

provements on machines made by plaintiff

other. Id. Under Kirby's Dig. $ 6699, pre-

1d. Evidence held also to show that in-

verbing a penalty for failure to pay dis-

ventions were made during term of em-

charged employees, it must appear that wages

ployment. Id.

were due, and the mere fact that the em-

ployer retained a portion of wages which it

generally to attend employees and has been

claimed it had a right to do under the con-

paid by the employer, he may assume, on being

tract is insufficient to authorize recovery of

called in the usual way, that the person

in the penalty. Stewart & Alexander Lumber

jured is an employ, but on being notified

Co. v. Weaver \[Ark.\] 104 SWP 152. Under

that he is not, the physician cannot recover

for services thereafter rendered. Burton v.

failure to pay a discharged employee within

Fletcher Mfg. Co. \[R, L\] 67 A 866. Where

seven days, where a foreman, at the time he

an employer retained a portion of wages of

his servant for medical services, and em-

hose been discharged, it was error to instruct

ployes contracted with a physician for medi-

that as long as the foreman was transacting

cal treatment and directed the master to

busness for the company he was presumed

pay their hospital dues to him, which the

to be in the employment of the company. St.

master refused to do and notified the em-

Louis, etc., R. Co. v. Broomfield \[Ark.\] 104

ployes that the dues would be paid to certain

SWP 133. Under Kirby's Dig. $ 6649, impospos-

hospital and that any employe not consent-

ing a penalty for failure to pay a laborer

ing to such payment would be discharged,

within seven days after discharge, where a

held, the physician employed by the servants

shadzed employee agreed that wages

had no cause of action against the master

might be paid at the next regular pay day,

though the master's sets were. malicious

Banks v. Eastern R. & Lumber Co. \[Ywash.\]

1d. Under Acts 1905. p. 798, providing for

90 P 1048. Where the manager of a corpora-

consolidation of actions, actions by members

tion directed an employee to call a doctor to

or a section crew, discharged at the same

attend an injured employee, and placed such

time by the same foreman, to recover wages

injured employee under his care, and knew

and penalties under Kirby's Dig. $ 6649,

of his continued care of him, there was

were properly consolidated. Id.

an employment of such doctor for his entire

78. Rev. Laws, c. 106, $ 62, amended by St.

attendance. Freeman v. Junge Baking Co.,

1902. c. 450, providing that employees shall be

126 MO. App. 124, 103 SWP 865.

T3. See post, $ 8A.

charged or leaves the employment, he shall

74. See post, $ 3B.

be paid in full the following regular pay

75. See post, $ 3E.

day, does not prohibit a contract by which

76. See post, $ 3E.

an employee agrees to fortifent wages due if

he quits without giving ten days' notice,

for entry v. Kinsley Tron & Mach. Co. \[Mass.\] 61

NE 8 time and manner of paying employees, are given in the notes. The Vermont act of 1906 is held valid.\[80\] The Indiana act of 1901 is held invalid.\[81\] A statute requiring operators of mines to supply wash rooms for miners in their employ is unconstitutional.\[82\] The Federal eight-hour day law is valid,\[83\] and a contractor violating the same is liable, though he acts under a mistake of law as to what constitutes an extraordinary emergency.\[84\] The act applies only to laborers \[85\] engaged on public works of the United States.\[86\]

\_Liens.--\_The subject of liens for labor is elsewhere fully discussed.\[87\] Holdings under the Georgia act, which is different from the usual mechanics' liens statutes are given in the note.\[88\]

Master's liability for injuries to servants. A. Nature and extent in general.\[89\] The master is not an insurer of the safety of his servants; the law imposes only the duty of ordinary or reasonable care for their safety,\[89\] that is, that

Laws 1905, p. 219, making it unlawful to pay \[GA, App.\] 59 SE 316. A clerk asserting such wages in any other manner than in cash or \[Iien has the burden to prove that the nature by check negotiable and redecamble at its face value. State v. Chehalis Furniture & the classed as a laborer. Id. The nature of Mfg. Co. \[Vwash.\] 92 P 277. A check given a workman \[Pay to order," etc., "on" 15, 1907, is not a violation of Laws 1905, p. 219, requiring payment of wages in full on discharge of an employee or when he suits work, where it does not appear that the la-bofer had quit or was discharged. Id. \[80\] Act Dec. 10, 1906, p. 114, No. 117, requiring mining, manufacturing, etc., or railroad companies to pay its employees weekly in lawful money, is not a violation of due \[Iien has the constitution whose charter is subject to amendment, alteration, or repeal. Lawrence v. Rutland R, Co. \[Vt.\] 67 A 1091. Nor is such Statute void as to a railroad company, though not including all corporations. Id. Nor is it subject to the objection that it cannot operate alike on all within its provisions because it includes forelgm corporations as to which the legislature is without power to amend charters, since such corporations are amenable to the laws of the state. Id. Nor is it void as a restriction on the right of employees to the contract with their employer. Id. Nor is that it a violation of a bill of rights provision as to equality of rights to acquire and possess property. Id.

S1. Burns\[8\] Ann. St. 1901, SS 7056, 7057, requiring corporations to pay employees at least once a month, is unconstitutional as imposing on corporations a burden not imposed on individuals. Toledo, etc., R. Co. v. Long \[Ind.\] 82 NE 757.

S2, Stame v. People, 222 TL 189, 78 NE 61.

S3. Act Aug. 1, 1892. Ellis v. U. S., 206 U. S. 246, 51 Law. Ed. 1047.

S4. Delay in receiving materials held not to create such an emergency. Ellis v. U. S., 206 U. S. 246, 51 Law. Ed. 1047.

S5. Employees on tuss and dredges used in dredging a channel held not laborers. Ellis v. U. S., 206 U. S. 246, 51 Law. Ed. 1047.

S6 Dredging of channel in Boston harbor held not such a work. Ellis v. U. S., 206 U. S. 246, 51 Law. Ed. 1047.

S7 See Mechanics' Liens, & C L. 954.

S8. Primarily a clerk in a mercantile establishment is not a "laborer" who has a lien, within City. Code, SS 1882, 1974, though the discharge of his duties includes performing once of manual labor. Howell v. Atkinson * 10 Cur. Law. Master and servant $ 3A.

degree of care which reasonably prudent and cautious persons exercise under similar conditions. \[90\] Thus, a master is not liable for injuries which could not reasonably have been foreseen and guarded against. \[91\] The degree of care required of the master in a particular instance depends upon the nature and character of the business or employment, \[92\] the character of the agencies employed by the master with and about

- v. Mullins, 35 Mont. 323, 88 P 794. Master is only under duty of using ordinary care to supply reasonably safe appliances, etc., instruction held erroneous, but not prejemplarily so, when construed in connection with other instructions. Brusseau v. Lower Bruck Co., 133 Iowa, 245, 110 NW 577. Employer is only under duty to furnish reasonably safe place and tools; instruction that he must furnish "safe" place and tools held reversible error. Powell v. American Sheet & Tin Plate Co., 216 Pa. 618, 65 A 1113. Where injury was caused by defect in roadway used by employe in hauling lumber.
- instruction held not objectionable as imposing on master absolute duty of keeping way reasonably safe. Cameron v. Tezathuto ITex. Civ. App.100 SW 194. Mine operators owe employes the duty of ordinary care to furnish a reasonably safe place; instruction making master responsible, if place was unsafe, held erroneous. Big Hill Coal Co. v. Albuey\* Adm'r, 30 Xy. L. R. 1304, 101 SWV 394. It is error to charge that, before a servant can recover for injuries, the jury must believe that the master was guilty of gross negligence. Oversboro Wagon Co. v. Boiling \[Ky.\] 107 SWV 264. No negligence of company was included in this case.
- Wisconsin rule: It is held in Wisconsin that it is the absolute duty of the master to furnish a reasonably safe place of work; instruction that master must use ordinary care to provide such place held erroneous. Parker v. Fairbanks-Morse Mfg. Co., 130 Wis. 525, 110 NWV 409.
- 90. Instruction that it was master's duty to use that degree of care and prudence ordinarily exercised by the great mass of men under similar circumstances in providing place and appliances, and preventing injuries, approved. Van De Bogart v. Mari-nette & Menonmee Paper Co. \[Wis.\] 121 NWV 443. In guarding machinery under the factory act, an employer must use that degree of care which reasonably prudent and cautious persons exercise under similar circumstances and conditions. Noren v. Larson Lumber Co. \[Vas.\] 89 F 65. It is the duty of a railroad company employing men to remove a wreck to use such precautions as a reasonable and prudent man would take for his own safety under the same conditions. St. Louis, etc., R. Co. v. Inman \[Ark.\] 99 SWV 832. To render a master liable for injuries caused by the condition of his premises, it must appear that the servant did not appreciate the risk incident to the condition, that the master did, and that an ordinarily prudent man would not permit it to exist, and that the master did not warn the servant. Bennet v. Concord Woodworking Co.
- \[N. H.\] 68 A 460. Where foreman of gang engaged in excavation examined roof, and was advised that it would be safe to move a column, and did so in the honest belief that it would be safe, he was not negligent, though a rock fell from the roof killing one of the men. Bertolami v. United Engineering & Cont. Co., 105 NYS 90. Where a railroad employee was injured while boarding a train in full view of the engineer, it was proper to charge that, if the engineer saw him and pulled the throttle just as the servant was about to board the train, and a reasonably prudent man would not have done so, the company was liable. Daniel V. Atlan-
- 91 A servant cannot recover where an injury is wholly due to accident. Brown v. Adam's Co. \[La.\] 44 S 1005. The master is not liable if the injury is the result of an ac.ident. Harrod v. Hammond Packing Co., 126 Mo. App. 357, 102 SWV 637. He did not an accident where employee .was injured by defective circular saw. It. Evidence held insufficient to go to jury, where trackman, with eap over ears, was struck by train, the proof showing that usual signals were given and all possible means- used to avoid accident. Hoffard v. Illinois Cent. R. Co. \[Iowa\] 110 NWV 446. No liability where employee stood or sat so close to passing engine that he was scaled by steam and hot water, not shown to have been discharged in any excess-wise amount. Valvo v. New York, etc., R. Co., 105 NYS 105. No negligence of company shown where employe was killed in an attempt to cross a track directly in front of a car. Kupec v. Interborough Rapid Transit & Co., 104 NYS 924. Employe giving signals to engineer of ttrain operating in connection with steam shovel was struck by a root which fell from shovel after being raised by it. Accident held unavoidable and master not liable. Havlin v. Oliver, 30 Ky. L. R. 1192, 100 SWV 835. Master not liable for poisoning of employee engaged in sorting broken vanilla beans, when that danger was not necessarily juries, approved. Van De Bogart v. Mari-nette & Menonmee Paper Co. \[Wis.\] 121 NWV 443. In guarding machinery under the factory act, an employer must use that degree of care which reasonably prudent and cautious persons exercise under similar circumstances and conditions. Noren v. Larson Lumber Co. \[Vas.\] 703 MASTER AND SERVANT : 3A. 10 Cur. Law.

which the employes are required to work,\[93\] and upon all the exigencies and circumstances of the particular case.\[94\] It follows that,the question whether due care has been exercised by the master, or by those who stand in his place, in a given instance is usually a question of fact to be solved by the jury.\[95\]

Thompson v. Galveston, etc., R. Co. \[Tex. about a dangerous machine, want of knowl-Civ. App.\] 20 Tex. Ct. Rep. 756, 106 SWP 310. Flagman at crossing was also required to honest belief that he was over that age, may place and take away certain switch lamps. Held, where he was struck by a train while some engaged, train employees owed him no that. Id. A servant eighteen years old who duties to look out for him, since it was his duty to watch out for trains. Conniff v. Lomisville, etc., R. Co., 30 Ky. L. R. 982, 89 SWP 1154. Where a master carries on his business in a manner unnecessarily danger.

Stagram at crossing was also required to place and take away certain switch lamps. Held, where he was struck by a train while some engaged, train employees owed him no that is used as a question of fact to be solved by the jury.

The common-law duties of the master to use ordinary care to provide a reasonably safe place of work, reasonably safe tools and appliances," and a sufficient number of reasonably competent servants to do the required work," to provide suitable methods of work, and to make, promulgate, and enforce reasonable rules and regulations," and to warn and instruct servants," are more fully discussed and illustrated in the succeeding paragraphs. These duties are personal to the master and cannot be delegated so as to relieve him from liability for their nonperformance."

The right to recover for injuries is governed by the law of the place where the injury occurred," but where a servant sues in one state for injuries sustained in another, and neither avers nor proves the laws of the latter state, he submits himself to the law of the state in which he brings his action and his rights will be determined thereby."

\_Statutory liability,\_See & C. L. 853.\_Statutes relating particularly to the master's duties with reference to the place of work, tools and appliances," and fellow-servant statutes," are discussed in succeeding paragraphs. Decisions under statutes relating to the employment of miners are given in the note." The imposition of a statutory 704 MASTER AND SERVANT SS 8A. 10 Cur. Law.

duty is not usually held to abrogate the common law.7 An action for damages may be based upon a violation of a statutory duty though such duty was not imposed by the common law, and though the statute provides no penalty or remedy.8 After much disagreement among the lower Federal courts,9 the Federal Employer's liability Act of 1906 has been held invalid by the supreme court of the United States.10 Willful violation 11 of the Illinois statute renders the master liable, but only for such injuries as proximately result therefrom.12

Footnote 11: The author is grateful to the anonymous referee for the support of the 1990s.

\_The relation of master and servant must exist._See 8 C. L. 854_.\_To warrant a recovery for injuries caused by an alleged breach of a master's duties, it must appear that the person injured was at the time the defendant's servant 12 and was engaged in

child under twelve In a tobacco factory in

pose of getting a drink of water as was customized for enzymes to do is a servant while being negligence per se. Leathers v. Blackwell's Durham Tobacco Co., 144 N. C. 334, 57 44 S 586, Where child 13 years old was killed at a transfer in a kaolin plant, evidence and Insufficient to show that she was a servant of the owner of the plant. Taylor v. defect in places or appliances, due to negligance of the employer or his agent entrusted

Plaintiff had been frequently hired by a. with the duty of seeing that they are in

foroman to do work for defendant, being paid

proper condition, does not abrogate the common law but gives a right of action additional to those theretorce existing. Kleps

Held to was an employee of the company

v. Bristol Miff, Co. 189 NYC 61, 81 NE 768.

8. Code 1896, & 2917, requiring stretchers

and medicines and bandages to be kept in

mines. Wolf v. Smith \[Ala.\] 42 S 824.

9. Act Jun 11, 1906, & 34 Stat. 322, & 5073,

is not within power of congress. Howard v.

Illinois Cent. R. Co., 148 F 997. The act

makes common carriers liable for injuries

to employees for negligence of the company

Cent. R. Co. v. Shegeog's Admr., 81 Ky., L. R.

as to appliances, road, etc., and also for neg-

ligence of other employees. It is held not a

place is an implied obligation of the contract

regulation of interstate commence but an attempt to apply its provisions to all

message railroad company cannot recover from

merce. Id. Act held constitutional. Kelley

v. Great Northern R. Co., 152 F 211; Snead

v. Central of Georgia R. Co., 151 F 608, Stat.

vette constructed as not retroactive and as lay-

Ing down comparative negligence rule, held

valid. Plummer v. Northern Pac. R. Co., 152

F 206. The statute was held not to apply

causes of action existing at the time of its

doption. Hall v. Chicago, etc., R. Co., 149

If 564. It was held that if the company was

an interstate carrier an employee injured on

the penultimate train was entitled to the

enfits of the act. Id. Plaintiff, injured by

unboxed saw in defendants' car shops, held

was struck by a brick which fell through an

not to have assumed the risk, in view of 8

of the act, though the danger was obvious.

Manly v. Northern Pac. R. Co., 151 F 1019.

10. Howard v. Illinois Cent. R. Co., 28 S.

clearly was conducting business of railroad

Ct. 141.

"Willful" violation of statute requir-

ing mine owners to observe suitable preca

144 N. C. 242, & 56 SE 101. The violation by

tions for the safety of the miners held to

mean any conscious violation, regardless of

operator's intent. Eldorado Coal & Coke Co.

to any conscious violation, regardless of

of its poles and wires and the use of

v. Swan, 227 Ill. 858, & 1N 659. Had that

any conscious violation of the statute (H. R.

S, 1905, c. 93, & 33), providing for liability of

a linemann employed by a telephone company,

mine owners, is willful within the meaning of

who in accordance with established custom

the statute, regardless. Id. Any conscious

failure to perform a duty imposed by the

stature as willful. Springfield Coal Min.,

phone wires. Bockv. Cincinnati Gas &

v. Gedutis, 127 Ill. App. 327.

12. See post, this section.

01. An employee while going a short distance from his place of work for the pur- performing, in a reasonable and proper manner,14 duties within the scope of his employment.15 In other words, it must appear that defendant owed the duties of a engaged, so that the master was liable if he was sent into an unsafe place and was injured. Flucker v. Buffalo Cotton Milli \[S. C.\] 57 SE 626, Evidence held to warrant submission to jury of question whether by or later to be an employee of defendant. Flucker v. Plucker v.

706 MASTER AND SERVANT SS 3A. 10 Cur. Law.

master to the person injured at the time of the injury.16 Usually, it is held that these duties continue while the employe is on the premises preparing for his work or to leave it.17 Where a minor knowingly misrepresents his age and is accepted by a railroad company as a student fireman, though the rules of the company forbid acceptance of minors for train service, he is a trespasser, or at most a bare licensee, and not a servant.18

Where the relation is that of general employer and independent contractor,19

time being of the foreman of that depart-
$72, 104 SW 356. No affirmative duty to ex-
ment, Jno. Kaufman Brew. Co. v. Betz, 8

ercise due care is owed to a volunteer in the
Ohio C. C. (N. E.) 64. Evidence sufficient to
absence of knowledge that he is in peril. A
warrant finding that factory employee was in

volunteer is one who introduces one into mat-
his assigned place of work when injured, and

was not guilty of contributory negligence in

takes to do something he is not bound to do.

going to a place where he was not authorized

Kelly v. Tyrya (Minn.) 114 NW 750. The mate
to be. Walker v. Simmons Mfg. Co., 131 Wis.

of a miner who set of his blast according to

$42, 111 NW 694. Where a servant employed

custom, where the other had left before quit-
to gauge oil in tanks was found dead in

ting time, and blasting was done as miners

one of the tanks, whether he was in the dis-

where leing, laid not a mere volunteer.

charge of his duties at the time of the injury

McHenry Coal Co. v. Render, 31 Ky. L. R.

held for the jury. Yellow Pine Oil Co. v.
174, 104 SW 996.

Noble \[Tex.\] 19 Tex. Ct. Rep. 841, 105 SW

27. A servant entering the master's prem-

01. Where an engineer was killed by being

less to begin work or leaving them at close

crushed between supporting columns of a

of work is not, while using ways and means

round house and cab of an engine, and it

provided, a licensee but is there by invita-

appeared that it was his duty to operate all

engine, evidence held to show that at the

Co. (Mass.) 82 NE 705. Relation continues

time the was in performance of a duty of his

until employe leaves piece of work or has a

employment. Texas, etc., R. Co. v. Johnson,

reasonable opportunity to leave. Southern

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 410, 106 SW

Paintaint your work on account of sickness,

773.

001. Where a servant of a railroad company

pumped to operate a pumping station pro-

questioned by superintendent, and during

cured the voluntary assistance of his brother,

this time was injured. Held relation still

who was killed during the performance of

exist, fd.

such work held that, in the absence of proof

18. Railroad not liable for his injury in a

of an emergency or necessity for his brothers'

collision in absence of willful or wanon

anstainstance, the relation of master and serv-

jury. Norfolk, etc., R. Co. v. Bondurant's

ant did not exist, and the company was not

44mT \[v. 59 SE 109.

liable. Grison v. Atlanta, etc., R. \[Ala.\] 44

18. It is not essential that one who engages

$61. Where traimment violated a rule by

a contractor to produce a given result should

entering a single track without orders of

reserve or should interfere and take com-

ascertaining whether trains due on such

plete control over all features of work to

track had arrived, it was held not the duty

render him liable as master. Kansas City,

of the operator to call their attention to

etc., R. Co. V. Loosley \[Kan.\] 90 P 890. But

facts disclosed by the train register. Cog-

the fact that he possesses limited or partial

bill v. Louisville, etc., R. Co. \[Ala.\] 48 SS 682.

contrived will not entail such liability, if the

Where an employee was on the railroad track

not In the discharge of any duty, and at a

methods of accomplishing the results, fd.

place where his presence was not to be an-

ticipated, no duty was owed him until his

When one contracts to do and deliver

presence was discovered. Cincinnati, etc., R.

ca. V. Reynolds' Aamr, 21 Ky. L. R. 529, 102

the manner of the doing of which, including

SW 88. Where servant was injured by fall

of the trap door of an elevator, evidence held

how used, is left entirely to him, he is an

insufficient to show that the master had

trol of the building or appliance which would

115 La. 1089, 42 S 887. Person hired by saw-

make it chargeable with negligence in re-

will company to hault and plle lumber at a

spect thereto. Bradford v. Bankers Bros. Co.

in their price per, 1000-feet, he to employ men

107 NYS 450. Where outfit cars of a railroad

to be paid by company out of funds due the

company the general employer does not owe the duties of a master to the contractor \[20\] nor to the servants of the contractor, \[21\] even though he pays such employees in order to protect himself against liens. \[22\] The general employer may, however, assume the duties of master to the contractor's servants. \[23\]

The rule that the negligence must have been the proximate cause of the injury applies equally to liability for violation of statute, \[24\] but neglect of a statutory duty need not be the sole cause of -accident. \[25\]

_The master's negligence must have been the proximate cause \[26\] of the servant's injuries. \[27\]--What was the proximate cause of an injury is ordinarily a question of_

duced, and employ men who are to be paid \[ imposed by law upon such relation attach.\] by the owner out of such 75 cents per M., the balance to the contractor, is not an indepen- \[ P 90\].

dent contractor but an agent, and the relation of master and servant exists as to the \[ or \] contractor's servants. Barclay v. Puget of injury to driver caused by the consequent \[ or \] backing up of his rule. Kosan v. Big Muddy a manufacturing company employed a man to \[ or \] to unload cars and be employed his own \[ or \], he is not an independent contractor \[ or \], and is not an employee of the company who is \[ or \], and is not an indepenant contractor \[ or \], and is not an indepenant contractor \[ or \], and is not an indepant contractor \[ or \], and 708 MASTER AND SERVANT SS 3A. 10 Cur. Law.

fact to be determined by the jury, except in those few cases where the facts are undisputed and are such that only one reasonable conclusion can be drawn therefrom.28 Negligence of the master will be held the proximate cause of an injury if the master, in the exercise of ordinary care, ought reasonably to have foreseen that injury might result therefrom; 20 it is not necessary that the particular injury which occurred

Sturtevant Co., 194 Mass. 431, 80 NE 459.

Guding the work, with not enough men. Ba-Failure of telephone company to furnish rub-kamp v. Chicago, etc., R. Co., 123 Mo. App. ber gloves to employ cannot be set up as 270, 100 SWV 689. Where locomotive engineer negligence where the proximate cause of the was killed by derainment of his train, testi-injury was negligence of fellow servant.

mnor that slush and water would come up on Hartenstine v. United Tel. & T. Co. \[Pa.\] 67

the ties when trains ran over the track was A 898. Where employee walked into open ele-vator shaft which was well lighted, he could

whether the yielding condition of the track not recover on account of failure to have de- vase the proximate cause. Jones v. Wilcox

vice to give notice that it was in motion in \[8 C.\] 68 SE 231. Whether the placing of an violation of Pub. Laws, p. 43, c. 973. Leahy

empty round top horse car in the middle of v. U. S. Cotton Co. \[R. L\] 66 A 572. Where a train of loaded cars instead of back next to failure to equip cars with air brakes was not the cabose, as required by rule of the com- the proximate cause of an injury, it cannot

pany, was the proximate cause of death of a be assigned as negligence. Lyon v. Charles- brakemann who fell off such car at night while ton, etc., R. Co., 77 Q. 238, 58 SE 12.

purning lituy. Freeland v. North Car-VWhere injury was caused by hooks in a 1ad-darina R. Co. \[N. C\] 69 SE 890. Where a brake-der carried by plaintiff catching in machin- man was injured by a derainment, whether any, an instruction that if the injury was due to a bobbin rolling under plaintiff's foot,

ster which had been weakened by absence of causing ladder to catch, it was immaterial

burns from the ends of truss rods. Henson that ladder was tilted up, was proper. Red-v. Lehigh Valley R. Co., 108 XYS 602, Whether

mond v. Sherman Cotton Mills \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 983, 100 SWV 186.

by. negligence in causing the stone to be Plaintiff was injured by section car being moved by a derrick. Powers v. Miller, 197

precipitated upon him while it was being re- mvced from the track. Held proximate

rective engine was proximate cause of col-cause-of injury was sudden and unusual act

liston and death. Stone v. Union Pac. R. Co. of foreman in lifting car from track, and slip-

(Utah) 89 P 715. Whether negligence of mass-pery condition of ground was a mere condi- ter in falling to warn was proximate cause of

tion. Hard v. Chicago, etc., R. Co., 130 Wis.

Injury to section man, Mack v. Chicago, etc.,

512, 110 NWV 427. Evidence insufficient to

R. Co., 123 Mo. App., 581, 101 SWV 142. Whether

show any negligence on the part of the mass- want of repair of a guard on a machine was ter where a servant on a ladder was seized

the proximate cause of an injury. Fergeson with dizziness, and to steady himself rested v. Robinson Mfg. Co. \[Vwash.\] 93 P 428. his foot on oog wheels which crushed them.

Leffler v. Anchueuser-Busch Brew. Ass'n \[Mo. App.\] 106 SWV 105.

(IN. C.\] 69 SE 676. Where plaintiff was im- jury: The question of proximate cause is for jured whole assisting in carrying a rail, evi- the jury where the evidence does not show

dence held not to warrant assumption that what it is as a matter of law. Fogarty v.

neglence of fellow-servants caused the In-Southern Pac. R. Co. \[Cal.\] 91 P 650. Where

car repairer was injured while working be- natha a car, in consequence of the car being struck by another. Id. Field that question

Tex. Ct. Rep. 73, 99 SWV 413.

whether order of foreman to stop train after

29, To warrant a finding that a negligent having ordered servant to uncupole cars

act or omission, not amounting to a wanton thereon was the proximate cause of servant's

wrap, is the proximate cause of an injury, injury was for the jury. East St. Louis Con- not that apper that the injury was the natu- natha- a 202. Whether defective condition of the track

t must and probable consequence of such act or resulting in derainment and death of en- s 10 Cur. Law. **MASTER AND SERVANT SS 3A.** 709 ought to have been foreseen,\[30\] provided it was the natural and probable consequence of the master's negligence.\[31\] If an injury would not have resulted but for negligence of the master, he is not relieved from responsibility by the fact that an independent cause, for which he is not responsible,\[32\] such as negligence of a fellow-servant,\[33\] or of a third person, or other agency, concurred in producing the injury.\[34\] These principles are further illustrated by holdings grouped in the notes.\[35\]

usual strain is put on other machinery and an injury results, the master is liable because the machine should have been made strong enough to withstand the strain, but if the first accident could not have been anticipated, 35. Negligence of master, or one represent there is no liability. Atoka Coal & Min. Co. **V. Miller** \[Ind. T.\] 044 SW 555. Proximate cause of injury held failure to award betking, as required by Comp. Laws, exercise of ordinary care could have anticipated a $549. Swick v. Aetna Portland Cement Co., pated as likely to result in injury, then he 147 Mich. 454, 111 NW 110. Evidence sum-liable for any injury actually resulting there, though he could not have anticipated causing it to have a lateral motion was the precise injury which occurred, Stone v. Proximate cause of an injury. Herword v. Union Pac. R. Co. \[Utah\] $9 P 175. Where an injury to a switchman resulted from the act SW 627. Defect in track held the proximate cause of injury to a mixer struck by a car by the exercise of ordinary care, the switchman could recover without proving that the stopped because of such defect. Moore v. formation should have foreseen the particular injury. Brady V. Kansas City, etc., R. Co., 203 WC. 603, 102 SW 978. Where defect in ma- achieve. It employment of bay under 12 in chinery is liable to cause some injury, the violation of statute held proximate cause of fact that the particular accident which did matter by machine he was operating, as a result was not reasonably to be anticipated will not relieve the master. Industrial Lum-ham Tobacco Co., 144 N. C. 330, 67 SE 11.

ber Co. v. Birven \[Tex. Civ. App.\] 20 Tex. **Evidence sufficient to warrant finding that**

**Ct. Rep. 117, 105 SW 831. Whether the knocking loose of a car-rirage fataenter by a fellow-servant falling against it was the natural result to be anticipated from failure toprovide a suitable fas-goly \[Tex.\] 18 Tex. Ct. Rep. 437, 102 SW 107.**

**Ct. Rep. 117, 105 SW 831. Where it is a statutory duty to guard a saw, the master cannot escape liability on the ground that the employee was negligent in raising his foot so that his heel touched an unguarded saw, Johnson v. Far West Lum-ber Co. \[Vash.\] $2 P 274. An employee in-jured by coming in contact with machinery which should have been guarded as required by Burns' Ann. St. 1901, 17 0871, may recover though he was injured by reason of his foot slipping, where the injury would not have occured if the machinery had been guarded.**

**United States Cement Co. v. Cooper \[Ind. App.\] $3 N 851.**

**3A. See post, $ 3E.**

**Proximate cause of injury held not to be foraman, concerning negligence of third person. Conroy v. G. W. & F. Smith Iron Co., 194 Mass. 468, 80 NE 488.**

**Railroad company liability where its negligence in the form of furnishing defective chain to hold lumber**

**Servantury. Simpspor v. Hansel-Elecock**

\*\*Sevantury Corp. 229 IN 1154, 82 NE 388. Evi-ber company to which duty of loading car had been delegated. Britt v. Cardina North-hand car was the proximate cause of serv-ern R. Co., 144 N. C. 24, 68 SE 910. Where defective couplers was proximate cause of infin-jured by making a fresh of injury. Herword v., jury to brakeman, the fact that his foot slip-ped on a tie at the time (risk of which was changed wire was not the proximate cause of injury. International, etc., R. Co., 194 N. C., 203 W., 194 N. C., 203 W.

Contractual exemption from liabilitySee 8 C. L. 861.--The validity of a release from liability is to be determined by reference to the law of the place where the contract of service is to be performed.36 Contracts relieving employers from liability for negligence are usually held void as against public policy,37 but agreements to look to benefits from a relief fund in lieu of damages are usually enforced.38 Thus, a pro-

128 III. App. 133. Evidence held insufficient to show that the one ahead could not be shown that the allowing of switch to remain open was due to the negligence of defendant, duct, and not the defective condition of a Chicago, etc., R. Co. v. Sammis, 127 III. App. 288. Evidence insufficient to show negligence of master as cause of brakeman slipping and Co. \[Neb\], 110 NW 690. Where a mill em-erting foot caught under car wheels. Cre-ola Lamber Co. v. Mills \[Ala.\] 42 8 1019. Where an engineer operating a mine cage was instantly warned by the shock of the torreck of the cage and stopped it as soon as possible, failure of the mine owner to keep an electric signal by which the cage could communicate with the engineer was not contrutory to the injury. Elkton Consol. Min. & Mill. Co. v. Sullivan \[Colo\], 92 P 679, De-

fedant held not negligent where superintendent of brickwork on building was knock-

ed off by a swinging bucket just as he stepped upon the roof. Kreigh v. Westinhouse,

Church, Kerr & Co. \[C. A.\] 152 'F 120,

Mining company held not liable where miner was crushed by a descending cage which he

signaled for, no negligence on the part of the company being shown. Southeastern Developed

ment Co. v. Boyd \[Ind. T.\] 104 SW 1174. Where a servant was struck by a truck placed so close to a railroad track that it was hit by a passing train, the act of a fellow-servant in leaving the truck so close to the track, and not the omission of the master to employ an

extra man on the engine to watch out for such obstacles, was held the cause. Haskell & Barker Co. v. Prezezdziankowski \[Ind.\] 88 NE

626. Where cause of brakeman's injury was

his stumbling, the company was not liable. Louisville, etc., R. Co. v. Cox's Adm'r, 81 Ky. L. R. 1214, 104 SW 956, Where an employee was injured while driving through a shed driveway by striking his head on the top of the driveway, evidence held insufficient to show that negligence of the master in permitting ice to be on the driveway was the

proximate cause of the injury. Carroll v. Boston Coal Co. \[Mass.\] 81 NE 296. Where car

was on time, and running 5 or 6 miles an hour at time of collision, negligence of car

company in ordering motorman to observe a certain schedule was not proximate cause of

collision. McGahan v. St. Louis Transit Co., 201 Mo. 500, 100 SW 601. Where employee in

car factory was caught between cars and

killed as he was going through a space between them, and provision had been made

for warnings during switching operations,

held injury was due to negligence of

employee himself or of a fellow-servant. Jurkiewicz v. American Car & Foundry

Co., 147 Mich. 622, 14 Det. Leg. N. 11, 111 NW 183. Evidence insufficient to show that

negligent act of a conductor in ordering

a brakman to go on top of a train on a

stormy might for the purpose of stopping it

was the proximate cause of his injury. Shaw

v. Chicago, etc., R. Co. \[Minn.\] 114 NW 85.

Evidence insufficient to show negligence of

the conductor in caring for the man after his

injury. Id. Where employees were hauling

trucks down an incline, with such short dis-

10 Cur. Law.

vision in a contract for indemnity from a benefit fund, requiring as a condition precedent to receiving any benefits the execution of a release of all claims for damages by persons injured by the death of the employee, was held valid and enforcible,\[39\] though the contract also provided that all employees assumed the risk of injuries.\[40\] Under a contract with the relief department of a railroad that the receipt of benefits from that department shall bar all actions for damages for death of the mcmber, a beneficiary cannot maintain an action for damages after receiving benefits\[41\] but the receipt of benefits by the beneficiary alone will not b.r an action by her as administratrix for the benefit of her minor children.\[42\] A provision in such a contract that benefits otherwise payable shall be forfeited if any action for damages be brought is not enforcible.\[43\]

(SS 3) \_B. Tools, machinery, appliances, and places for work.\_See * C. L. 802_It is the duty of the master to use ordinary care \[44\] to furnish machinery, tools and appliances which are reasonably sale and suitable\[45\] for the purposes for which they are **39**, **40**. Frank v. Newport Min. Co., 148 Mln. **45**. Coughlin v. Philadelphia, etc., R. Co. 637, 14 Det. Leg. N. 289, 112 NW 504. **41**, **42**. Chicago, etc., R. Co. v. Healy \[Neb.\] Indianapolis Trac. & T. Co. v. Holtselaw **43**. Widow sued for damages for death of husband but was defeated. Held she was entitled to payment of benefits. Chicago, etc., R. Co. v. Healy \[Neb.\] 111 NW 598. **44**. Reasonable care must be exercised in furnishing an unsafe appliance, furnishing and keeping in repair structures and appliances to be used by the servant. **45**. Coughlin v. Rhladelphia, etc., R. Co. 637, 104 SWV 99. Evidence that a swinging circular saw was guarded as such as swaps usually 104 SWV 77. The master is not under absolute duty to furnish safe appliances but only to of proof that such method rendered the saw excessively reasonable care. Vilter Mfg. Co. v. Donnelly, Kent \[Tex. Civ. App.\] 19 Tex Ct. Rep. 955, 105 SWV 525. The master must use ordinary care in selecting and keeping appliances in repairs. **46**. Coughlin v. Miller **47**. I 104 88V 555. Ordinary care is such as a person of ordinary prudence would exercise under the circumstances. Id. Where **48**. I observe that a swinging circular saw was guarded as such as swaps usually **49**. It is not clear whether the answer is not made to be a intended to be used.\*\* Instrumentalities of the kind ordinarily used by those engaged in the same business are reasonably safe within the meaning of this rule,\*\*${}^{\\star}$ **which does not require the latest, safest, or best obtainable to be provided.**${}^{\\star}$ **Whether**

**dangerous to the ordinarily careful employ-**

**315, 14 Det. Leg. N. 222, 112 NWV 113, Duty**

**er charged with the duty of exercising due**

**is discharged by providing machinery and care for the safety of his employees. In-**

**apiliances which are in common use and**

**struction criticized as not properly present.**

**are reasonably fit for the purposes to which**

**ing law.**

**Yazdewski v. Barker, 131 Vris. 494,**

**they are to be applied. Sparks v. River &**

**111 NWV 688.**

**46. It is the master's duty to use reason-**

**A 600. An employer who uses machinery in**

**able care to furnish appliances which are**

**common use is not liable for an injury reasonably safe for the purpose for which**

\*\*caused thereby which might have been pre-

**they were intended. Cheneworth v. Schuber-**

**vended by the use of different machinery.**

**land (Mo. App.) 107 SWV 6, Tools and ap-**

**Employe injured while placing a belt on a**

**places are sufficient which are reasonably**

**moving pulley by his clothes catching on the**

**safe and adapted to intended purposes.**

**bolts projecting from the sides of the pulley**

**Bowring v. Wilmington Mailleable Iron Co.,**

**Warner v. Armond \[Or.\] 90 P 1113. Stub**

**5 Pen. \[Del.\] 594, 66 A 368. No negligence**

\*\*plot of engine in universal use and approv-

**where appliances furnished were suitable**

**ed by experience of a number of roads held**

**for purposes for which they were intended.**

**reasonably safe within the rule. Jones -v. Connory v. Morril & Vhitton Const., 194**

**Yazoo, etc., R. Co. \[Miss.\] 45 S 813. Evidence**

**Mass, 476, 80 NE 489. A master may adopt**

**held not to show negligence in use of lever**

**such reasonably safe appliances as he deems**

\*\*jack instead of screw lack in raising loco-

**best suited for the work in hand. Quick v.**

**v. Meyers v. Rudock, Orleans Cypress**

**Millfort Mill Co. \[S. C\] 59 SE 826. A rail-**

**Co., 118 LA. 805, 43 S 448. No negligence**

\*\*road company is required to exercise ordi-

**shown where mangle which caused injury**

**nary care in furnishing machinery equal to**

**was new, of approved make, in good order,**

**that in general use and reasonably adapted**

\*\*and properly placed. Lambert v. Troy Laun-

**to the uses to which it is pbt. Central of**

**dry Co., 118 LA. 48, 42 S 642. Master held**

**door negligent in using standard machine**

**machine as furnished was unsafe and master**

\*\*put on an appliance to make it less danger-

**and in good working order. McGrath v. Fibre**

**ous, it was the duty of the master to see**

**Conult Co., 106 NYS 777. Where a joinder**

\*\*that it was properly adjusted. Giacomini v. was

**was as well protected as similar machines**

**Pacific Lumber Co. \[Cal. App.\] 89 P 1058.**

\*\*generally are, the master was held not neglig-

**It is the duty of a railroad company, with**

**xent in failing to screen the machine. Brown**

**respect both to the original construction**

**v. J. A. Adams & Sons Co. \[LLa \] 44 S 1005.**

**and subsequent maintenance of a semaphore**

**duvy of master is performed where he**

\*\*to exercise due care to have such a perma-

\*\*nent adjustment of it that, when the lan-

\*\*from a reputable and experienced manu-

**term is kept in suitable working order and**

\*\*facturer and makes a test when re-

**property set, it will display the correct**

**quired. Bauman v. Cowdin \[N. J. Law\]**

**signal to the engineer of an approaching**

\*\*66 A 914. Whether immediate test is re-

**train. Tillson v. Maine Cent. R. Co., 102 Me.**

\*\*quired in such case depends upon cir-

**463, 67 A 407. Evidence sufficient to show**

\*\*cumstances and terms of contract of pur-

**performance of this duty. Id. Miner injured**

\*\*chase. Id. The master is not liable when an

**by care in which he was riding coming in**

**conact with ore chute, which had been used**

\*\*decision when apparatus is used if the

\*\*for eighteen years without accident, and was

**method of use is the same as would be used**

**placed close to where care passed to avoid**

\*\*dropping ore on men below. Held no negill-

\*\*48. Vinson, V.

10 Cur. Law. MASTER AND SERVANT SS 3B. 713

due care in this respect has been exercised in a given case is ordinarily a question of fact.40

49. Question of negligence held one for falling on his hand, evidence as to the surjury: Held that question whether defendant

ficiency of a part of the appagatus by which was negligent in furnishing an insufficiently

the hammer was operated held for the jury, hardened concrete slab which broke and

Rittel V. E. B. Souther Iron Co. \[Mo. App.\] caused plaintiff to fall was properly sub-

105 SW 662. Whether an injury was due to

mitted to jury William Grace Co., Larson,

defective rope and the masters' failure to

227 Ill. 101, 81 NE 44, aff. 129 Ill. App.

inspect it. Chewroth v. Sutherland \[Mo.

290. Question whether master was guilty of

neglence in permitting hand rail of engine

draw into elevator for elevating grain.

used by switchman in mounting to be placed

evidence of master's negligence in not tak-

so close to boiler head as to make it iming precautions to prevent such accident.

possible for him to grab it held properly sub-

Lynch v. American Linsed Co., 107 NYS 458.

mitted to jury. Chicago, etc., R. Co. v. Martin.

Where cable on bucket in mine shaft broke

nan, 124 Ill. App. 275. Whether, in furnishing

dropping the bucket, whether cable was

defective machine used to winder upon

gocius, master was guilty of negligence held

47. Whether amplause used to unload car

question for jury. Western Elec. Co., V. Prochaska, 129 Ill. App. 883. Whether handle on

144 N. C. 242, 56 SE 910. Whether belt shifter

hand car broke because of insimbeliency for

in a cotton milli was a safety appliance and

purpose or because of latent defect unknown

in proper repair, and if not whether its de-

to master. Southern R. Co. v. McGrown \[Ala.\]

(active condition was or should have been

43 S 378. Where an employ was killed by

known to the mill owner, held for jury.

the explosion of a boiler, held for the jury

Silbert v. Scotland Cotton Mills \[N. C.\] 59

Whether the "explosion was caused by crys-

SE 19. Whether reasonable care was car-

talification, of which weakness the master

cised in providing a safe stentening for a

should have known. Ultima Thule, etc., R

lever. Trickey v. Clark \[Or.\] 93 P 457. Bucket

Co. v. Calhoun \[Ark.\] 103 SW 726. Whether

used to moist one from hold of vessel broke

breaking of belt was due to age and de-

dropping are on plaintiff. McGeehan v.

fectiveness or from other causes. Northern

Hughes, 217 Pa. 121, 64 A 238. Water glass

P. R. Co. v. Wendel \[C. C. A.\] 156 F 336,

on locomotive exploded, putting out fire-

Saw milli employ was pushed against saw

man's eye. Shield used was not a wire

by log carriage. Held proof that curriage

screen but strips one-half inch apart.

mechanism was out of repair so that car-

Whether master was negligent in using such

riage would creep was sufficient to make the

appliances. El Paso, etc., R. Co. v. Foth \[Tex.

question of negligence on face for the jury.

Civ. App.\] 18 Tex. C. Rop. 610, 100 SW

Crookston Lumber Co. v. Boutin \[C. C. A.\] 171, Brackem stepped on spike projecting

149 F 680. Whether derrick was properly

from top of straight car. Texas Mexican R.

braced to withstand strain incident to its

Co. v. Lewis \[Tex. Civ. App.\] 18 Tex. Ct. Rep.

use was for jury. George B. Swift Co. v. 345, 99 SW 671. It cannot be said as a matter

Gaylord, 29 Ill. 330, 82 NE 299, 126 Ill.

of law that a master is not liable for in-

App. 281. Where plug flew out of crown

juries resulting from obvious defects in the

sheet of locomotive on inside of fire box.

simplied appliances furnished by him. St. Burton v. Texas & P. R. Co. \[C. C. A.\] 449

Louis S. R. Co. v. Schuler \[Tex. Civ. App.\] 19

P 838. Question of negligence in manage-

Tex. Ct. Rep. 478, 102 SW 783. Where brake-

ment of steel converter which exploded and

man was injured by breaking of a wooden

killed employee. Koshinski v. Illinois Steel

wood rack when he attempted to board a

Co., 231 Ill. 198, 83 NE 149. Question of

moving car, whether the company was neg-

negligence in making and maintaining a

ligent in not keeping the wood rack reason-

contrivance for keeping windows open.

aby safe. Sturgeon \[Yacoma Eastern R.

Parry Mfg, Co. v. Eaton \[Ind. App.\] 83

## 714 Master and Servant $ 3B.

10 Cur. Law.

injured by a revolving shaft which had no coupling or set screw, held the master was not negligent in the construction and operation of the machinery. Hertet V. Safety, Folding Bed Co., 149 Mich., 223, 14 Det. Leg.,

negligent in knowingly allowing sharg engine N. 418, 112 NW 712. Where motorman was injured by explosion of a controller on a car, and in permitting it to be operated with expert evidence held insufficient to show that the explosion was caused by defective condition of the controller and want of inspect.

119 La. 571, 44 S 802. Evidence sufficient to motion of the controller and want of inspect.

120 May the master liable for not furnishing tion. Beebe v. St. Louis Transit Co., 206 Mo.

10 Cur. Law. MASTER AND SERVANT SS 3B. 715

The master, having provided reasonably safe and suitable machines and appliances, is not liable for injuries resulting from their negligent use by an employe,\[50\] or from failure to use appliances provided,\[51\] or from their use for a purpose for which they were not intended,\[52\] or from the selection by an employe or a third person of such as are defective, others, reasonably safe, having been provided,\[53\] unless reasonable care was used by the person selecting the appliance.\[54\] The liability of the master in supplying a vicious animal for the use of his servants is governed by the same rules as those applying to the use of dangerous machinery and appliances.\[55\]

\\begin{tabular}{l l}

716 MASTER AND SERVANT SS 3B. 10 Cur. Law.

As to foreign cars a railroad company is abolved from liability because of defects therein if ordinary care is exercised in their inspection, and such defects as are found are remedied or the servants notified of their condition.\[56\]

_Temporary appliances; scaffolds.\[56\]_ & c. L. \*\*\*--In respect to temporary appliances, such as scaffolds, built and used by the employees in the ordinary course of their duties, the master fully performs his duty by supplying a sufficient quantity of suitable material,\[57\] and he is not liable for injuries caused by negligent construction or a failure to use the suitable materials provided,\[58\] but if the master undertakes to furnish a completed structure he owes the servant the same degree of care with respect to its safety as with respect to other appliances.\[59\]

In New York a statute requires a person who procures certain work to be done to provide a scaffold, or similar contrivance needed for such work; which is safe.\[60\]

_Places for work.\[56\]_ & c. L. \*\*\*--It is the duty of the master to use ordinary care to provide a place of work which is reasonably safe,\[61\] considering the nature of the

factors Fuel Co. v, White, 228 Ill. 187, 81

gated. Anderson v. Milliken Bros., 108 NYS

NE 841, agf. 130 Ill. App. 29, 60.

61. Whether method of placing and securing

01. Chicago & A. R. Co. v, Neves, 130 Ill.

planks on braces across an elevator bin was

App. 340.

57. See & C. L. \*\*\*66, n. 40.

467, requiring the master to furnish a safe

58. Where a servant was directed to select

sumber for a scaffold from old secondhand

by a foreman to use planks placed across

material, much of which was rotten,

vraces to stand on while fixing an elevator

dence held insufficient to affirmatively show

bin of great depth, but were not instructed

that the master had furnished suitable

maw to place them nor furnished ropes to

terial. Hoveland V. National Blower Work

fasten them, held the master was liable for

\[Wis.\] 114 NW7 795. Master not liable for

danger s arising during the construction of

by Laws 187, p. 467. Id. Subcontractor for

a building, where the constant charges are

created by the progress of the work. McCain

a third person, who was to remove them.

Co. v, Kingsley, 126 Ill. App. 165. Not liable

for act of fellow-servant in placing large

jured by the fall of a blank put up by sub-

column of steel upon an insufficient surface,

contractor, but abandoned by him six days

so that it rolled upon plaintiff and caused in-

before, when third person assumed control.

juries complained of. Id.

60. A scaffold made necessary in course of

Law, 18, 19, Priolo V. Southard, 102 NYS

construction is an appliance as to which the

master is bound to use ordinary care to

make the same safe. Hoveland v. National

be removed when concrete hardened, the box

Blower Works \[Wis.\] 114 NW7 795. Where

scaffold fell with plaintiff while he was

using it in the ordinary way, and in the

were on it was prima facte proof of negili-

exercise of due care, held negligence shown.

Parker v. Fairbanks-Morse Mfg. Co., 130

Co., 105 NYS 131.

Vis. 525, 110 NW 409. Evidence held to warrant

remal recovery where scaffold fell injuring

plaintiff, Ingram v. Covington, etc. R. Co.

S0 Ky., L. R. 713, 98 SW 666. Plaintiff not

negliment in failing to inspect scaffold which

had been built for his use

in his absence. Id.

Pendito's Adm?, 31 Ky., L.

60. Construction of New York starter:

Labor Law, 1 18, makes an employer liable

for unsafe scaffolds, etc., though erected by

\[S. C.\]169 SB 32. Instruction on care required of

fellow-servants of one injured. Held the

act does not create a new cause of action

but makes competent evidence which was

previously incompetent to show negligence.

Hasgblad v, Brooklyn Heights R. Co., 117

App. Dlv. 838, 102 NYS 1039. Fall of a host

(appliance under Labor Law, 18), while be-

ing properly used for intended purpose, held

evidence that it was unsafe. Id. Plank laid

across two wroden horses, used by work-

men in putting casing into window frame

inside building, held not a scaffold within

the meaning of Labor Law, 1 8, Williams v.

First Nat. Bk., 118 App. Div. 555, 102 NYS

1031. The duty to furnish a safe scaffold,

imaged by Laws 1897, p. 467, cannot be dele-

, * 10 Cur. Law. Master and SERVANT $ 3B.

- business and the character of the work \[62\] and the intended uses and purposes of the place provided.\[63\] Whether due care has been exercised by the master in this respect

sonably safe place and exercise ordinary care to keep it in a reasonably safe condition. Haskell & Barker Co., V. Prezedzianian-

track, causing injury to a brakeman. Bradkowski \[Ind.\] $ 3NE 626, Where mill employ was injured because of unsafe condition of a platform on which he was required to work, it was proper to charge that the master was required to furnish a safe place,

- 111 (in contrast to the standard case), and the system was designed to be a _safe_ system. The system was designed to be a _safe_ system.

is usually a question of fact.\[44\] The "place of work" within the meaning of the rule

quired to pass in the discharge of his duties.

showing death of car repairer was caused

Id.

**Question of due care for jury:** Whether

railway company negligent in maintaining

justry submission of question of master's

open culver into which brakeman stepped

and was injured. Ross v. Great Northern R.

**Co., 101 Minn. 122, 111 NW 951. Whether a**

Arlroad company had exercised ordinary

**Algorithm 1**

A simple example of the problem of finding the value being discussed means not only the place, where servants are directed or expected to perform their labors, \[65\] but also such portions of the master's premises as are used by employees for necessary purposes of their own, with the consent or acquiescence of the master. \[66\] The rule does not extend to a place not owned or controlled by the

dence sufficient to warrant recovery where a boy sixteen years old was injured by explosion caused by cone containing molten that occur which a servant was required to though the knew the effect of such contact, he did not know there was water on the floor where he was working and it was so dark that he could not see it. Northport Smelting & Refining Co. v. Twitchell \[C. C. A.\] 165 F 643. The duty to furnish a safe place 10%. Master liable where part of chue used is not discharged where a master left an excavation on his premises in a dangerous place and condition where he knew the servant v. Barcelo Mfg. Co., 118 Apr. Div. 547, 102 ant would probably be engaged at night in the performance of his duties and failed to warn him. King Mfg. Co. y. Wellon, 1 Ga. App. 403, 58 SE 115. Evidence sufficient to shoot negligione show negligione where a street ear conduction will a telegraph pole while standing on the running board of his car collecting fares. Indianapolis Tros. & T. Co. 105. V. Holtoslaw \[Ind. App.\] 82 NE 986. Pa. 279, 65 A 618. Evidence that a master provided a platform 6 feet wide, 14 feet long, miner was injured while throwing a switch. Atoka Coal & Min. Co. v. Miller \[Ind. T.\] 104 SWV 555. A street ear employe may recover where he was struck by a pole in dangerous proximity to the track, unless he had notice of it or it was patent to a reasonably pru- 59 SE 696. Miner injured by piece of ore dent person. Finley V. Louisville R. Co. 31 Ky, L. R. 740, 103 SWV 343. That a mine was not properly ventilated, that the air was bad, and an explosion of gas occurred, 18 evidence of negligence. McHenry Coal Co. v. Render, 31 Ky, L. R. 1374, 104 SWV 986. Dangerous condition of a car door which FeI on a station agent as he was passing in discharge of his duties held sufficient evidence of negligence. Louisville, etc., R. Co. v. Slimrall's Adm?, 31 Ky, L. R. 1269, 104 SWV 1011. Held negligence to direct a servant to tie an electric light wire to an improper insulator where danger might have been averted by having the current turned off. Cumberland Tel. & T. Co. v. Graves' Adm?x, 31 Ky, L. R. 872, 104 SWV 356. Master held negligent where a hole was dug and left uncovered near where a servant had to go in the performance of his duties. Repub- 11 Ice Iron & Steel Co. v. Walsh \[Ky.\] 105 SWV 974. Placing a heavy gate in such position that a slight touch would cause it to fall and injure an employee working near is negil- 59 SWV 465. Mine operator should see that glmbers are properly set and kept in proper 31 Ky, L. R. 1045, 104 SWV 708. It is negil- 59ence to so place a bell, which is a signal by which to start machinery which might result substantially to an employee, in such position that it might be rung by accident. Owensboro Brick & Sewer Pipe Co. v. Glenn \[Ky.\] 106 SWV 1195. Where a day crew reparing premises left them in an unsafe condition and a might engineer while acting in the line of his duty fell into a hote and was injured. Roundy v. United Box, Board & Paper Co. \[Me.\] 68 A 535. Where plank, customarily used by plaintiff to stand on in adjusting a belt on pulleys, slipped, causing his injury, evidence sufficient to show negligence in not providing reasonably safe place.

master," but it does extend to a place used by the master in his business though owned by another." The duty of the master with reference to the place of work is personal and nondelegable so far as his responsibility is concerned."

The rule that it is the master's duty to use ordinary care to provide a reasonably safe place does not apply where the very nature of the work itself renders it dangerous," as where a dangerous place is being made safe,"11 nor where the danger is transitory or temporary and arises during the progress of the work,"12 nor where the

eral years crossed the tracks in going to brakekman includes a safe track, cannot be and from their work, of which fact the company had notice, and went through, under, Co. v. Wlse \[Tex. Civ. App.\] 106 SWV 465, or between cars blocking the tracks, it was negligence to fall to provide precaution a blowoff tank, the master may not escape against accident from moving cars. Beck v. Southern R. Co. \[N. C.\] 59 SE 1015. A correlation, permitting its servants for a num-employed competent workmen to Install it. ber of years habitually to use a building on the premises as a place to deposit their din-ner pails while at work and in which to eat safe place not applicable where plaintiff was not to injure them by its negligence while they are using the building in the cus-tornary manner, and if a servant is injured while eating his dinner there, through the want of ordinary care on the part of the work consisted in drilling rock in a deep cut, corporation, it is liable, although the building is used for other purposes and although the servant would not have been injured had he remained at his usual place of work.

Carmegle Steel Co. y. Rowan, 10 Ohio C. C. \[N. S.\] 329. Instruction that master owes duty of keeping way of access and departure as well as place of work reasonably safe approved in case where employee was injured in passageway while going from work. Nelson v. R. J. Reynolds Tobacco Co., 144 N. C. 418, 67 SE 127.

67. City held not liable to an employee for injuries received on stairway of pumping station where it was found that city did not own or control the stairway and that it was not on a public street nor a part of the city's premises. Johnston v. McKeesport, 216 Pa. 633, 65 A 114.

01. Where one railroad uses the tracks of another, it is liable to its servant for injuries sustained because of a negligently constructed overhead bridge. King v. Sea-board Air Line R., 1 Ga. App. 88, 68 SE 252. Where miner was injured by fall of materials from roof of an entry, which was his only means of access to his place of work, the master was estoped to draw liability on the ground that it had not accepted and did not control the entry. Garard v. Manufactures Coal & Coke Co., 207 Mo. 242, 105 SWV 767. The fact that the master is not the owner of the place of employment does not render him any the less liable for injuries to servant because of defects therein, Illinois Cent. R. Co. v. Fitzpatrick, 125 ILL App. 247.

01. Parry Mfg. Co. v. Eaton \[Ind. App.\] 83 NE 810; Gillespie v. Grand Trunk R. Co. \[Michel.\] 14 Del. Leg. N. 645, 113 NW 1116.

Duty to furnish a safe place cannot be delegated to a servant. Combs v. Rountree Const. Co., 206 Mo. 387, 104 SWV 77. The duty to furnish a safe place and so plan the work as not to expose servants to unneces-sary danger cannot be delegated. Schmin-key y. Schmilar \[Iowa\] 14 NWV 612. The duty to furnish a safe place, which as to a 10 Cur. Law. **MASTER AND SERVANT SS 3B.**

injured servant was engaged at the time in making the place of work, \[78\] nor where the conditions are constantly changing and the safety of the servant must depend upon the exercise of due care by himself. \[74\] In these cases the dangers are incidental to the work and are assumed risks. \[75\] There can be no recovery for failure of the master to maintain the place of work in a reasonably safe condition where that duty devolved on the injured employe, or when the place was made unsafe by negligence of a fellow-servant. \[76\]

\_Inspection, repairs, knowledge of defects.\_See S C. L. 871.--The master's duty is not fully performed by providing reasonably safe tools and appliances and a reasonably safe place of work; he must use ordinary care to maintain them in such condition \[77\] and the duty of maintenance necessarily includes that of reasonable inspection \[78\]

723

Master and Servant $ 3B.

10 Cur. Law.

and repair.79 Whether due care in this respect has been used in a given instance is ordinarily a question of fact 80 to be determined by reference to the nature of the work, the character of the place and appliances, and the use to which they are put.81 The duty of maintenance and inspection is personal and nondelegable.82 The rule relleving the master from liability graph iron on car; question of inspection should have gone to jury. Davis v. Chicago, selected by the servant does not apply whence etc., R. Co. \[C. C. A.\] 151 F 1008. Where the cause of the injury was the act of the vapor of ammonia escaped from a pipe and foreman in ordering a servant into a dan-carous place without inspecting the appliance. McGGuire v. Waterloo & Cedar Falls Union Mill Co. \[Iowa\] 113 NVW 850. A telephone company must inspect its poles' and lines to keep them safe for employees. Combes v. Delaware & Atlantic Tel. & T. Co. \[Pa.\] 67 A 751. Evidence sufficient to show negil-gence where limenna was killed because of defectively insulated wire. Id. An instructional then that it was sufficient if the master used all tests usually applied by similar railroad companies in testing bolters is properly modified by substituting "usually applied by prudent railroad companies." Ultims Thule, etc., R. Co., V. Calhoun \[Ark.\] 103 SWV 726. Where brakeman was injured by breaking of a defective brake chain or bolt, evidence that the bolt was worn nearly through and was so weakened that it would not withstand the turning of the wheel, and that such defect should have been ascertained by proper inspection, shows negligence. Galveston, etc., R. Co. v. Harris \[Tex. Civ. App.10 107 SWV 108. It is no defense to an action for death of an engineer caused by derzhiment that such derzhiment was caused by wreckers, if the company was negligent in inspecting the track. Thompson v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 766, 106 SWV 510. The duty to furnish a safe place is a continuing one to be performed by inspection and repair. Gillespie v. Grand Trunk T. Co. \[Mich.\] 14 Det. Leg. M. 445, 113 NVW 116. Lailing to inspect a chain before ordering The master must provide suitable appliances and see that they are kept in proper repair. Pagan v. Southern R. Co. \[S.\] 69 SE 32. Guire v. Waterloo & Cedar Falls Union Mill Muster has duty to use due to keep appliances and machinery in repair. International Mercantile Marine Co. V. Fleming \[C. A.\] 151 F_208. Railroad company which falls to use ordinary care to discover and re-parr a defect on pilot of its engines is liable to brakeman injured as result thereof. Missouri, etc., R. Co. v. Wise \[Tex. Civ. App.\] 20 Tex, Ct. Rep. 106 SWV 466. Appliances must be kept in a safe condition by inspection, repair, and replacement. Klebe v. Parker Distilling Co., 207 Mo. 480, 105 SWV 1067. 80. Question of negligence in inspecting the track where engineer was killed by derzhiment at a curve alleged to have been caused by wreckers. Thompson v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 20 Tex, Ct. Rep. 106 SWV 910. Whether a five principal negligently performed the duty of inspecting a mine for gas. Western Coal & Min. Co. v. Buchanan \[Ark.\] 102 SWV 694. Whether injury due to defective hatch cover was chargeable to owner's foreman because of failure to inspect and repair. International Mercantile Marine Co. v. Fleming \[C. C. A.\] 161 F 203. Error to instruct for defendant at close of plaintiff's case where action was for death of brakeman caused by defective 10 Cur. Law. MASTER AND SERVANT SS 3B.

A railway company owes to its employees the duty to make a reasonable inspection of foreign cars handled by it and to make repairs or warn employees of defects if any are discovered,\[88\] and is entitled to a reasonable time for such inspection.\[84\] A company not engaged in transportation is not bound to inspect cars received by it to be unloaded.\[85\]

A master is not liable for injuries resulting from defects of which he had no notice,\[88\] or whether in the exercise of ordinary care he should have had notice thereof,\[87\] and which ordinary care and a reasonable inspection would not have disclosed,\[88\] but

330. Proof that smokestack fell while being raised, injuring plaintiff, the fall being caused by the straightening of a book and it they were not. Texas, etc., R. Co. V. Convin the block and tackle, and that no test of the appliance was made except by striking the stack with the bands as it was being raised, warranted finding that due care had not been used. El Paso Foundry & Mach. Co. v. De Gueroque (Tex. Cir. App.) 15 Tex. Ct., Rep. 405, 101 SW 814. Where it appeared that an elevator, the fall of which caused an injury, was regularly inspected by engineer in control of it, and three weeks before a city in inspector had inspected it, evidence insuffinment to show negligence in this respect. Klebe v. Parker Distinguing Co., 207 Mo., 480, 108 SW 1057.

001. Making it the duty of a servant to inspect belts and lacings and change them when necessary and providing materials necessary does not fully discharge master's duty; the representative of the master must perform his full duty in the matter. Gl Glm-more v. American Tube & Stamping Co., 78

83 NE 626; Chicago Hardware Co. v. Ma-more v. American Tube & Stamping Co., 78

84. In the case of cars of a connecting injector had inspected it, evidence insuffinment to make an inspection and ascertain Klebe v. Parker Distinguing Co., 207 Mo., 480, 108 SW 1057.

01. Making it the duty of a servant to inspect belts and lacings and change them when necessary and providing materials increases delay does not fully discharge master's duty; the representative of the master must perform his full duty in the matter. Glm-more v. American Tube & Stamping Co., 78

01. MEX 626; Chicago Hardware Co. v. Ma-more v. Ma-more v.

### 724 Master and Servant $ 3B.

10 Cur. Law.

he is chargeable with notice of defects which ordinary care on his part would have disclosed,89 and in such case absence of actual notice will not relieve him from liability.90" Knowledge of dangers possessed by a vice-principal is knowledge of the master.91

appreciated it and the servant was not at

miners. Antioch Coal Co. v. Rockey \[Ind.\] fault in not doing so. Bennett v. Concord

82 NE 76. Where condition of the premises

Woodworking Co. \[N, H.\] $8 A 450. If the

were under the control of the employer's sub-occurrence resulting in the injury was be-

perintendent, he was chargeable with conditionally the reasonable probable consequences

of ordinary occurrences that reasonably prn-

dennt men would have foreseen, the master

reasonable care. Larimi v. Milford Pink

is not liable because of omission to make

Inspection which extraordinary provision

alone would have dictated. Fulton V. Grieb

Rubber Co. \[N, J. Err. & App.\] $8 A 116. No

duty; to inspect an electric wire carrying

only 110 volts to see it was insulated. The

wire was blown against a machine at which

a. servant was working and the current

transmitted to the machine on which a servant's hand was resting, and as a result his

and aught in the rolls of the machine.

Id. A master not being an insurer of the

servants' safety, he is not liable for defects

in a car which has been inspected, unless the

use of ordinary care would have disclosed

the defects, Clippard V. St. Louis Transit Co.,

202 Mo. 432, 101 SW 44. There is a want of

reasonable care in furnishing a defective ap-

pliance only when the master knew or ought

to have known that the appliance was not

reasonably safe for use. Rogers v. Roe \[N,

d. Err. & App.\] $6 A 408. Where the cause of

the injury is a condition of the master's instrumentalities produced by ordinary wear

or negligence of fellow-servants, the servant must show that the master knew or

onight to have known and that he did not

and could not have known of the defect. Evidence insufficient to show negligence of

after where servant fell and broke her arm because of oil splined on the floor. Klimentie

car years may be sufficient. Id. Whether

v. Nasha Mfg. Co. \[N, H.\] $7 A 573. Em-

ployer held not liable for injuries caused by

passageway in building being blocked unless

he knew, or in the exercise of reasonable

care ought to have known, of the obstruction. Nelson v. R. J. Reynolds Tobacco Co.,

knowledge of structural defects in machin-

144 N. C. 418, 57 SE 127. Master held not

liable where servant step into a hole in

the floor, it not appearing that the master

knew of the hole, and no presumption of

negligence arises from failure to inspect

during two or three hours the danger existed. Acme Box Co. v. Gregory \[Tenn.\] 105

SWY 350."

89. Where examination by master would

have disclosed dangerous character of place

of work, failure to make it or making an

sufficient examination is negligence. Superior Coal & Min. Co. v. Kaiser, 219 III. 29,

82 NE 28. If defects in a rope used in loading a vessel were such as should have been

discovered by ordinary inspection, the master was negligent where an employ was

injured by breaking of the rope. Suderman v. Wodorant ITex, Civ. App.\] 19 Tex. Ct. Rep.

778, 105 SWY 217. The master is liable if the

defect could have been discovered by reasonable inspection. Atoka Coal & Min, Co. v. Miller \[Ind. T.\] 104 SWY 155. Where blasting was a daily occurrence in a mine, the

law imputes knowledge to the operator that

such blasting would tend to loosen overhead

material which would be dangerous to10 Cur. Law. MASTER AND SERVANT SS 3B. 725

Ordinarily, the servant is under no duty to make an inspection of the place or appliances,\[92\] but may rely on the assumption that the master has performed his duty with respect thereto,\[93\] but this is not the rule with respect to simple and common tools used by the servant in the ordinary discharge of his duties,\[94\] nor does the rule apply where the servant injured was one on whom the duty of inspection rested.\[95\] No-recovery can usually be had for an injury resulting from a defect or condition discoverable by the injured employee by the use of ordinary care in the course of his usual duties,\[96\] or which was actually known to him and of which he failed to complain or give notice,\[97\] but the servant is not bound to give notice of defects known to the master.\[98\]

_Status,_ See s C. L. 876. Holdings under particular statutes relating to the master's duty with reference to appliances and places of work are given in the note.\[99\]

known of them by the exercise of ordinary machinist's hammer. Meyer v. Ladewig, 130 care. Stephens v. Elliott \[Mont.\] 92 P 45. Vla, 565, 110 NWV 419. The rule making the Actual knowledge by the master of a de-

master responsible for the selection of safe fect In the place of work is not essential; it

and suitable appliances does not apply to is enough to fix liability if not all the

a simple tool like a ladder, safety of circumstances be ought to have known of it.

which the employe may readily determine. King v. Griffiths & Sprague Stevederino Co. Smith v. Green Fuel Economizer Co., 108 NYS \[Wasall.\] 88 P 159. The mere fact that a

45. The master is not: liable for injuries

foreman was not aware of a defect which
caused by defects in simple tools known to

caused an injury will not relieve the mas-

him and readily observable by the servant.

ter from liability for failure to exercise due

Applied to defective chisel. Vanderpool v. care to keep appliances reasonably safe.

Parridge \[Neb.\] 112 NWV 318.

dustrial Lumber Co. v. Bivens \[Tex. Clv. Appl.\] 20 Tex. Ct. Rep. 117, 105 SWV 831.

spect appliances cannot recover for injuries

91. Knowledge of foreman, directing and caused by defects therein discoverable by

superintending stringing of telephone wires,

the exercise of reasonable care in the per-

that several of the wires are heavily,charged

formance of his duty. Servant could not

and unsimulated, is knowledge of the master,

recover because of defective grab iron car

Postal Tel. Cable Co, v. Likes, 225 Ill. 249,

which it was his duty to inspect and to

80 NEI 136, aff.-124 Ill. App. 459.

92. A servant is not required to inspect ap-

phances for concealed dangers. Southern

Employe acting as mine boss, having super

States Portland Cement Co. v. Helms \[Ga.\]

vision over tools and implements which it

'App.\] 58 SE 524. Common lager need not

was his duty to inspect, could not recover

inspect tools and appliances which he is

for injuries caused by a defect in such tools.

required to use. Nortonville Coal Co. v. Brooks, 30 Ky. L. R. Brooks, 30 Ky. L. R. 671, 99 SWV 357. Where

671, 99 SWV 357.

a master places in the hands of a servant

96. To charge a servant with appreciation

for immediate use an Instrument which he

of managers from known conditions, it need

knows is in a dangerous condition, and the

anye is likely to and does use it, without

have known that injury might result; it need

examination, and is injured, the master is

in table. Gulf, etc., R. Co. v. Griggas \[Tex.\]

the exact injury which in fact resulted. Roy

19 Tex. Ct. Rep. 855, 108 SWV 48. Where it is

v. Hodge \[N. H\] 66 A 123.

not in line of his duty, an employe is not

97. See post, $ 37. Assumption of Risk. An

required to inspect his place of work for

employe injured by falling of pane of glass

defects and dangers. Finley v. Louisville R.

when he closed a window cannot recover

Co., 31 Ky. L. R. 740, 138 SWV 43.

98. A servant may assume that a master

some time, the pane had been broken for

has performed his duty. Not required to ex ex-

several weeks, and he had not notified the

amine and see if a heavy gate left stand-

employer, and it not appearing that the em-

ing near his place of work is likely to fail.

ployer had notice of the fact. Rockstrow v. Webster v. Stewart Iron Works Co., 31 Ky.

Aiorla Marble Co., 105 NYS 601.

L. R. 1045, 104 SWV 708. Where rules of a

88. Servant assumed only incidental risks:

rally road company require that in case of

danger to company's property employee unit to

to protect it, a brakeman who is ordered

\[Ala.\] 43 S 318. Servant need not notify

to stop a car from which danger by im-

master of defect of which master already has cause of a defect in coupling pin chain and it appeared that the defect was one that could be repaired in the yards, and if it had been discovered before the car was detached from the train it would have been likewise handled, held not a violation of safety applicable, and are not. The burden is on the railroad company to bring itself within the exception as to four wheeled cars in the automatic coupler act. Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 51 Law. Ed. 681. A "shovel car" is a car within the automatic coupler act. Id.

**Alabama:** The Alabama statute requiring materials for the relief of injured miners to be kept in store at mines is held valid. Code 1896, $ 2217, Is a valid exercise of police Power (V Wolf. Smith \[Ala\]. $ 824), and a breach of resulting in damage gives rise to a cause of action to the person injured (Id.). Placing of box car on side track does not constitute defect in "ways, works, or machinery." Southern R. Co. v. Shook \[Ala.\] 43 S 579.

**Colorado:** Sess. Laws 1897, p. 258, requiring railroad companies to block frogs and providing that failure to do so is prima facle evidence of negligence, makes such failure prima facle evidence of negligence, but con- "conferences no new right on the employ and does not affect the law of assumption of risk. Denver, etc., R. Co. v. Gannon \[Colo.\] $ 0 P 85.

**Connecticut:** Where a superintendent of construction directed a workman to attach a tackle to certain timber instead of using a gin pole, which was the usual and safe way of raising the machinery, and the workman was injured by the breaking of the timber, held the master was liable for failure to provide safe place and appliances required by Gen. St. 1903, $ 4702, Swain v. O'Loughlin \[Conn.\] $ 480.

**Georgia:** Civ. Code 1895, $ 2611, 2612, relative to the care required in furnishing machinery equal to that in general use and reasonably safe, are not the entire law in that respect but are to be construed in connection with the entire general law. South- "Gas. Poritan Cement Co. v. Helms \[Ga. App.\] $ 8E 524.

**Illinois:** Most hasher held not steam machinery "within $ 11, Child Labor Act. Swift v. Renhard, 128 III. App. 181. A temporary scaffold is a part of the "ways, work, plant tools, and machinery" of a corporation with. in the meaning of the "Employer" Liability Act" of Indiana. Cleveland, etc., R. Co. v. Austin, 127 Ill. App. 281.

**Minings** aet:\*\* One injured by reason of master's failure to safeguard a shaft in process of construction cannot recover under the statute providing for the proper care in the maintenance of a mining shaft. Cox v. Mount Olive & Staunton Coal Co., 127 Ill. App. 24. A demand for propog made in conformity with a custom in general use and of which the mine manager had knowledge is sufficient. Demand made on drivers held sufficient. Pana Coal Co. v. Becker, 130 Ill. App. 40. Where proof shows that demand for propog could properly be made of persons other than mine manager, instruction which limited plaintiff's_rsht to make demand to such as were made of the mine manager held not to prejudice defendant. Donk Bros. Coal & Coke Co. v. Lucas, 226 Ill. 28, 80 NE 560.

\*\*The fact that sufficient propog were delivered by each of the three mainers of the mainers of 10 Cur. Law. Master and Servant $ 3B.

Burns' Ann. St. 1901, $ 10871, an instruction held not a part of ways, works, and ma- that statute requires guardds to be placed over saws whenever practicable, and that a failure to guard a saw when it can be done under employers' liability act, is same as at favorable to defendant, Tucker & Dorsey Mfg. Co. v. Staley \[Ind. App.\] $ 08 NB 975. Where an employee caught his hand in a machine because it was not guarded, as required by Burns' Ann. St. 1901, $ 70871, the factory owners to safeguard regarding and fact that he would not have been caught had his hand not slipped does not relieve the employer; that being an intervening cause which should have been foreseen. Crawford & McCrimmons Co. v. Gose \[Ind. App.\] $ 2N 8934, Whether cow wheels in a machine could have been guarded, as required by Burns' Ann. St. 1901, $ 70871, is a question of fact. Id. A concern engaged in manufacturing engines, pumps, etc. is a manufacturing establishment within Burns' Ann. St. 1901, $ 70871, requiring manufacturer to one side of plaintiff, unconnected with ing establishments to guard machinery. Id. A crane used to lift molten metal in a manufacturing establishment and operated by hand is a machine within Burns' Ann. St. 1901, $ 70871, requiring machinery to be guarded, Id. Conveyor consisting of a long cylindrical rotating rod to which hangs are attached is shafing within Burns' Ann. St. 1901, $ 70871, requiring shafting to be left unguarded, contrary to Rev. St. 1889, guarded. United States Cement Co. v. Cooper \[Ind. App.\] $ 2NE 891. Duty of manufacturer to guard dangerous machinery, imposed by Burns' Ann. St. 1901, $ 70871, is imperative, and failure to do so is negligence yet se. Id. Exmery wheel used to grind tools is not within Burns' Ann. St. 1901, $ 70871, providing that vats, pans, saws, etc., and "machinery of every description," shall be properly guarded. National Drill Co. v. Myers \[Ind. App.\] $ 1NE 1108. Where a servant removed a guard from a machine which he was operating so that he could accomplish more work, he could not recover for injuries sustained owing to absence of the guard, under Burns' Ann. St. 1901, $ 70871, reparing the master to guard machinery. Cincinnati Seating Co. v. Nery \[Ind. App.\] $ 1NE 216. Failure to prevent the falling of a cover of a vat, when off the vat, is not a violation of Burns' Ann. St. 1901, $ 70871, requiring entries to be run parallel, etc. to be guarded, and liability for injuries caused by falling of the cover is controlled by common law. Besseler v. Laughlin, 168 Ind. 38, 79 NNE 1033. Where a line shaft was operated in a factory eight feet above the floor in the usual and generically accepted manner, the owner was not required to further guard it. Grace v. Globe Stove & Range Co. \[Ind. App.\] $ 2NE 99.

Himbois: There can be no recovery under Laws Ill. 1899, p. 203, for failure to properly guarded, but the work
(SS 3) _C. Methods of work, rules and regulations_, See S. C. L. 878.-If a master provides or adopts a mode of work which is not reasonably safe 1 and an injury re-

required by Laws 1902, p. 1748. Wack v. Tobin, 107 NYS 659. Where a servant was injured by fail or a platform supported by an acid tower which the master was razing and the fall was the result of weakening of the tower, the master's liability could be predicated only on negligence in conduct of the work and not on failure to provide a safe place, under Laws 1902, p. 1748, the master not being bound to guard against defects incident to razing structures. Kelly v. Battle Island Raper Co., 106 XYS 78. Evi-dence sufficient to show negligence under Laws 1902, p. 1748, c. 600, where employe was injured by falling of coal. Sienicha v. Townwanda Board & Paper Co., 105 NYS 513. A statutory obligation of the employer to the employee may be waived by the employee. Labor Law, $ 81, requiring machines to be guarded, held waived where operator of mangle did not ask to have guard roller, which had been taken off, replaced, but vultarily operated the machine without it. Travis v. Haan, 103 NTS 973. Washington: Laws 1905, c. 84, requires machines to be so guarded as to prevent injuries which could reasonably have been foreseen and anticipated, and whether a particular injury ought to have been guarded against is ordarified for the jury. Vosberg v. Michigan Lumber Co. \[Wash.\] 89 P 168. Under Laws 1905, c. 84, $ 7, a certificate of inspection by the commissioner of labor is only prima facle evidence of compliance with the statute: burden is on plaintiff to show that machinery was not reasonably safe guarded. Id. Whether cap or shield over cogs and gearing was a reasonable safeguard, whether a guard could have been used which would have been practicable and would have prevented injury, help questions for the jury. Boyle v. Anderson & Middle-

to Lumber Co. \[Wash.\] 90 P 433. In action for injuries caused by failure to guard machine as required by Laws 1905, p. 164, c. 84, whether it was practicable to place an effect. Ive guard upon the machine in question held

for the jury. Campbell v. Whellian-Veli-

dauer Co. \[Wash.\] 89 P 161. Whether set screw in revolving shaft in factory was so located so that it ought to have been guarded. Walker v. Simmons Mfg. Co., 131 Wis. 542, 111 NW 694. Evidence sufficient to show negligence in failing to guard cutter heads of a grooving machine. Adams v. Petermhn Mfg. Co. \[Wash.\] 92 P 339. Whether a master has exercised reasonable care in protecting dangerous machinery, as required by statute, is ordarially a question of fact. Barclay v. Puget Sound Lumber Co. \[Wash.\] 93 P 430. Fall of "trigger-head" in coal mine held to be a "caving-in" within the operator to furnish a sufficient supply of timbering to make the place of work reasonably safe. Pachko v. Wilkeson-Coal & Coke Co. \[Wash.\] 90 P 436. A mill company cannot escape liability for failure to guard machinery on the ground that it furnished a guard and the servant failed to adjust it. it not appearing to have been his duty to adjust it. Johnson v. Far West Lumber Co. \[Vash.\] 92 P 274. In an action for injuries sults_therefrom, he is liable.2 Whether a method adopted or provided is reasonably safe depends upon the nature of the work and the danger to be apprehended,3 and this question is usually one for the jury.4 Failure to supply a sufficient number of employees to do a given piece of work with reasonable safety is negligence.5

Footnote 4: The author is grateful to the anonymous referee for the support of the work.

It is the duty of the master to provide and enforce suitable rules and regulations governing the conduct of employees and the carrying on of the work where the nature of the business is such as to require such precautions.6 The necessity for rules is v. Chicago, etc., R. Co. \[Mo.\] 106 SW 68. Where an employer adopts a dangerous method of doing his work which involves risk greater than the nature of the work calls for, he should take correspondingly appropriate precautions to guard against in-crased dangerous. Smith v. Rock Island, etc., R. Co. \[Del.\] 67 A 148. Evidence I. Co., 119 La. 537, 44 S 290. Employive who directed others to throw a plank out of a clank he albank having struck plaintiff who was passing. Smith v. Ameri-can Car & Foundry Co., 123 Mo. App. 610, 99 SVW 790. No negligence shown where a servant was injured by an explosion while cleaning combustion chambers of a station-ary engine in a method in general use, and which had been employed without accident for twenty years. Kremkowski v. Great Nor-then R. Co. \[Minn.\] 112 NW 1025. Evidence held to show negligence in operation of cars where switchman was run down by unattended cars. Galveston, etc., R. Co. V. Berry 172 Civ. App.1 105 SW 682 693. Where a master has furnished tTex. Civ. App.1 108 EVC. It Rep. 156, 105 SW 1019. 2. Foreman of section crew and men were taking hand car off track. After two wheels were off foreman suddenly raised the other two off the track and the car went down the bank upon two'men, injurring plaintiff. Held to support finding that forman did not follow usual method and was negligent. Hardt 5. Chicago, etc., R. Co., 130 Vis. 612, 110 NW 427. 3. Where an employe was injured while testing a steam cylinder by its explosion, evidence held to show that a safety valve was a safer method of letting off excessive is connected with the operation of danger-steam than the method used, but that it was the known and approved method. Phillips to provide rules for the conduct of his serv-v. Salem Iron Works \[N. C.\] 59 SE 660. Marke. in reference thereto. Moore v. Dublin ing a flying switch is not negligence per se as to the employees engaged in the operation. Allen v. Atlantic Coast Line R. Co. \[N. C.\] 58 SE 1081. 4. Whether foreman was negligent in ordering jack screws under coal mining machine was run-ning, as a result of which it slipped. Ford v. Providence Coal Co., 30 Ky. L. R. 698, 99 SW 608. Whether there was negligence of master in lailing to furnish enough men to raise girders with safety, Bokamp v. Chicago, etc., R. Co., 123 Mo. App. 270, 100 SW 68. Where an employe was injured by an explosion of a cylinder while it was being tested by steam, evidence held for the jury on the question whether a safety valve was a known and approved method in general use for letting off excessive steam. Phillips v. Salem Iron Works \[N. C.\] 59 SE 660. 7. Question of negligence in directing servant to uncap a mould too soon which caused it to render work of his employees reasonably safe applies to operation of a stone quarry, far. Portland Cement Co. \[Kan.\] 83 F 179. It is the master's duty to promulgate reasonable rules, where the safety of one servant depends on the manner in which another does his work. Johnson v. Prince Line, 108 NYS 193. Where a servant was killed while tightening truss rods on a car, to explode. Swiercz v. Illinois Steel Co., 231 III. 466, 83 NE 168. 5. Failure of the master to furnish sufficient help and suitable appliances on request

10. Cur. Law. Master and Servant $ 3D.

731

sistent with it.\[17\] Rules reasonably sufficient to' protect employees, if observed, are sufficient,\[18\] regardless of what rules other employers promulgate under different conditions.\[19\] Ordinarily, employees are entitled to have rules made for the benefit of the public observed.\[20\] Holdings as to the construction and meaning of particular rules are given in the note.\[21\] The duty to prescribe rules cannot be delegated.\[22\]

( 3) _D: Warning and instructing servant._ See 8 s. L. 880--It is the duty of the master to properly warn and instruct young and inexperienced employes \[28\] in regard to and from their work warrants an infer-

required to go over the road at such inter-

ence that a rule that no one but firemen and

vals as made it impossible for him to stop at

others in the necessary discharge of their

curves. Bussey v. Charleston, etc., R. Co.

duties should be permitted to ride on engines

\[S, C.\] 58 SE 1015. Whether a car barn situ-

had been abrogated. Feenef V. Boston, etc.,

acted midway on an electric railway, where

R. Co. \[Mass.\] 82 NE 706. It may be shown

contorators are required to stop for orders

that a rule has been abandoned by universal

from a train dispatcher, is a terminal station

disregard of it with the master's acquies-

within the meaning of a rule of the company

ence. Texas, etc., R. Vo. Conway \[Tex.

which gives a conductor control of the car in

Civ. App.\] 16 Tex. Ct. Rep. 898, 98 SW 1070.

17. Where a railroad train master held a

management of the car "between terminal

school for instruction of employees and train

stations," is a question for the jury under

crews were there directed to take the local

proper instructions from the court. Inter-

operators' word as to movement of trains,

urban R. & T. Co. v. Treuhett, 9 Ohio C. C.

"which direction had been in force for four

years, it was sufficient to constitute a gen-

requires a conductor, upon receiving orders

eral custom superseding a rule that all such

from the train dispatcher, to "verbally

orders should be in writing. McCarthy v.

municate them to the motorman before pro

Pennnsylvania R. Co., 189 N. Y. 170, 81 NE

ceding," will not be construed against a

770.

001. On an issue as to failure to adopt

"bell" signal from the conductor to start,

rules, the question is not whether the rules

namesch as he could have placed no more

are the safest that could be adopted but

reliance upon a "verbal" order to proceed

whether they are reasonably sufficient when

when upon a bell signal, if they both came

observed to protect employees. Pearsall v.

from the same person. Id. A rule that a

New York Cent., etc., R. Co., 189 N. Y. 474, 82

train should not be started until proper sig-

NE 752.

19. Negligence cannot be imputed to a rail-

road company because it fails to adopt the

in motion. Gulf, etc., R. Co. v. Harrison

same rules and methods for operating its

read that other companies have where it

does not appear that conditions are the same.

Pearsall v. New York Cent., etc., R. Co., 189 N. Y. 474, 82 NE 752.

20. Rule requiring hostlers to blow whis-

the and ring bell of locomotive before back-

ing it held for benefit of employees as well

as general public. Northern Alabama R. Co.

v. Key \[Ala.\] 43 S 794.

21. A rule of a railroad company for safety

of yard employees, "a blue flag by day and a

blue light by night displayed at one or both

ends of engine, car or train, indicates that

workmen are under or about it." Held such

rule required signals at both ends of a car

when both ends were exposed to danger of

collision. O'Neill v. Lehigh Valley R. Co.

\[N. J. Law\] 67 A 1019. Where inspection of

cars was confined to car inspectors, a rule

that flying switches should not be made

without testing brakes did not make switch-

men agents for inspection of cars, and the

company was not liable for an injury re-

sulting from violation of such rule. Fogarty

v. Southern Pac. Co. \[Cal.\] 91 P 650. Rules

relative to the riding on engines construed

in connection with yard masters' authority,

and held that he had power to order a brake-

man to ride on an engine while going to and

from his work. Feenef v. Boston, etc., R. Co.

\[Mass.\] 82 NE 705. Conflicting-expert test-

mony as to necessity of hand car crew to

send a flagman ahead at curves does not

raise an issue of fact as to the reasonable

-ness of a rule requiring such action, but

such issue is raised by evidence that he was

\[Mass.\] 82 NE 705. Conflicting-expert test-

by different types of cars, and the

from the other hand.

and the other hand.
to dangers of their employment of ${}^{\\prime}$ which they have no knowledge or appreciation.24 It is also his duty to warn or instinct his employees as to special or unusual risks arising during the course of the employment.28 It is the duty of the master to

v. Wind River Lumber Co. \[Or:\] 91 P 478. \[perience in blasting, held negligence. Bur-Where a boy ten years of age is employed to

rows v, Osark White Lime Co. \[Ark.\] 101 SWV assist in operating a corn cutter, his age and

744. Inexperienced boy of about twelve was

size is notice to the employee that he has not

the capacity of a mature person for the

freight elevator, and was injured by a truck

work in question. Bolton v, Ovitt \[Vt.\] 67

moving while on the elevator. Held putting

A 881. If a minor is old enough to know

and appreciate danger, and is willing to un-

out warning or instruction was actionable

dertake the work, instructions need not be

given: if he is young and inexperienced, the

master owes him the duty of special instructe-

inexperienced employe of danger from fumes

tion though he expresses a willingness to

undertake it. Woodstock Iron Works v.

sciling \[Ala.\] 43 S 362. A youth of tender

years employed to operate a dangerous

was negligence. Houston, etc., R. Co, v. Rut-

chine must be instructed as to how to oper-

land \[Tex. Civ. App.\] 18 Tex. Ct, Rep. 134,

ata it and warned of danger of carelessness,

not only when he commences work but at

of children to instruct them concerning the

other times if necessary. Cheas & Wymond

danger of their employment which from

Co. v. Gohagan's Guardian \[Ky.\] 105 SWV 890.

Evidence sufficient to show negligence in

Chambers v. Woodbury Mfg. Co, \[Md.\] 68

falling to warn youth employed at a danger-

a 290. There is a duty to instruct inexperienced servants to dangers incident to

ployed at hazardous work, the master must

she that the compbrends dangers. It is not

McNamily, 127 Ga., 404, 56 SE 452. Where a

sufficient that he is merely informed. Beck-

with Organ Co. v. Malone \[Ky.\] 106 SWV 800.

from a scow was unfamiliar with the work

Master liable if he puts boy of tender age

and was not instructed or wanted as to

at work at dangerous medicine or in dangerous place without warning. Shirley v.

doney to failure of the employer to warn him

Abbeville Farmitter Co., 178 S. Ct. 52, 57 SE

178. It is the duty of the master to give

164 P 815. Evidence sufficient to warrant re-

suitable instructions to an inexperienced

youth employed about dangerous machin-

ery. &Evidence insuffient to show

random to give wrong. Fleming v. Coving-

ance of this duty. Medis v. Beatty, 216 Pa.

102 M \[Mm.\] 408, 113 NVV 1016. Evidence

234, 65 A T58. Evidence sufficient to show

neglience in permitting an Inexperienced

youth to go to work feeding an edging ma-

cline without proper instinctions. Bodow

Lamber Co. v. Ford \[Ark.\] 102 SWV 896. Fall-

ure to give proper instinctions held negligence

were an inexperienced warrant who

placed his hands on a machine to steady it

in doing so displaced a portion of a ma-

chine and lost his arm. McBailey v. Su-

berbelle \[La.\] 45 S 442. Where an unakilled

servant is employed to perform danger-

ous work, it is the master's duty to warn

and instruct him. Coughlin v. Philadelphia,

etc., R. Co. \[DeL\] 67 A 148. Where a work-

man was injured in operating a dangerous

machine with which he was not familiar,

compilant held to state a cause of action in

falling to warn or instruct him how to oper-

at the machine. Brockmiller v. Industrial

Worka, 148 Mlch. 642, 14 Det. Leg. N. 384, 112

NVV 688.

**24.** Where rapidly revolving grorocket

wheel presented a smooth appearance,

though in fact full of prongs and dangerous

to one coming in contact with it, the master

was under duty to warn an inexperienced

servant whose duties took him near it.

Gains v. Johnson \[Ky.\] 105 SWV 881. It is

neglience to fail to warn and instruct a

youth employed to operate a planing ma-

chine provided with top, bottom, and side

heads, equipped with knives. Tergeson v.

Robinson Mfg. Co. \[Wash.\] 93 P 488. Failure

to warn by of seventen of danger of strike-

ing a drill in a hole from which a blast had

not been removed, boy having had no ex-

10 Cur. Law.

**24.** Where rapidly revolving grorocket

wheel presented a smooth appearance,

though in fact full of prongs and dangerous

to one coming in contact with it, the master 10 Cur. Law. $\\char 102$ Master and Servant $3D. 733

inform servant of new and unusual dangers within the master's knowledge and of which the servant is ignorant \[36\], and as to hidden or latent dangers, known, or which ought to be known, to the master \[27\], and unknown to the servant \[28\]. Proper instruction should also be given an employe who is sent to perform services outside the regular scope of the duties for which he was employed \[29\].

did not know of his danger, It was their duty to warn him and stop if necessary. Lynch v. Chicago, etc., R. Co. \[Md. 106 SW. Where master did not know and had no reason to know that employee was working on a switch sent when directed to move, it he s not lia- \[8\]. Soutment Cotton-Oll Co. v. Gladman, "I Gha. De. Crane Co. v. Hogan, 228 Ill. 388, 81 NE ABp. 255, 58 SE 249. A master is responsi- \[1032. Donk Bros. Coal & Coke Co. v. Thil, 228 Ill. 223, 81 NE 857. Negligence for yard- \[104\].

Disser in directing making up of a train to fail to notify the switch crew that the train would be moved by a road engine. Edington v. St. Louis, etc., R. Co., 204 Mo. 61, 102 SW 481. Where a servant injured was \[105\], to warn the employe that the log one of a gang of trackmen and it appeared that it was customary for the boss to give warning of approach of trains, the injured person had a right to rely on such warning being given and it was negligence to fail to give it. Germanus v. Lehigh Valley R. Co. \[N. J. Err. & App.\] G1 A. Where custom to give a warning by the foreman is proved, it is embraced in a duty owed by the master and the master is liable for his failure to perform it. Id. Where railroad employee was run down by an engine, evidence held to show that no switchman was on the footboard ahead to keep lockout. Galveston, etc., R. Co. v. Wafler \[Tex. Cir. App.\] 20 Tex. Ct. Rep. 831, 106 SW 857. Railway company held negligent toward engineer of a fast train in permitting a preceding train to run partly on the time of the fast train without signals, and no warning given engineer of the fast train. Galveston, etc., R. Co. v. Quinn \[Tex. Cir. App.\] 18 Tex. Ct. Rep. 825, 104 SW 857. \[Hostler of engine who backed it upon an employee without giving required signal negligent, whether he knew of decedent's presence or was charged with notice of his duties and presence there at the time. North- \[105\].

In order to make sure that the master is not a safe place, but to warn the servant of any v. Chicago, etc., R. Co. \[Md. 106 SW 857. Where master did not know and had no reason to know that employee was working on a switch sent when directed to move, it be s not lia- \[8\].

Disser in calling to give notice to a crew of the system. The master must exercise ordinary care to notify servants of danger peculiar. App. 323, 78 N. E. 248, 79 NE 1067. Where submitted in charge of cutting trees and they are Ignrant. Bennett v. Concord directed chopper to cut certain trees and himself cut a tree and failed to warn the \[29\]. Where a common laborer inexperienced chopper of its fall and he was struck, held failure to warn was negligence and the master was liable. Curtin v. Clear Lake Lumber CA. \[79\].

Disser in calling to warn the servant of danger peculiar. App. 323, 78 N. E. 248, 79 NE 1067. Where submitted in charge of cutting trees and their \[29\].

Disser in calling an employee from his regular work \[105\].

734 MASTER AND SERVANT SS 3D. 10 Cur. Law. No instruction is required as to incidental risks assumed by the contract of employment,\[80\] nor as to transitory dangers,\[51\] nor as to obvious dangers\[32\] fully known to the employ,\[83\] or as well known to him as to his employer,\[34\] or which ought to have been known to him by reason of his experience and capacity,\[85\] or by the exercise construction with the processes and appli- for failing to warn servant of danger of ances of which he was unacquainted. Reardeno v. Byrne \[Mass.\] 80 NE 827. Employment as taller at stave boiling machine includes employment as feeder while the employer is temporarily absent, where it-Is the custom and it was once done in the presence of the forman for the taller to take the feeder's place when he is temporarily absent. Arkadelphia Lumber Co. v. Henderson \[Ark.\] 105 SW 882. Where youthful servant was injured because of failure of the master to warn him of defects in a machine, evidence held to show that he was occupied as feeder according to custom while the feeder was temporarily absent. Id. 30. Evidence insufficient to show negligence in falling to warn a servant engaged in the manufacture of explosives of the danger of the occupation. Rogers v. MacBeth, 108 XYS 74. Safe place being furnished master is under no duty to warn as to transitory dangers arising from acts of fellow- servants. Miller v. American Bridge Co., 216 Pa. 559, 65 A 1109. Where freight car equipped with a defective coupling pin chain was nevertheless one which the switchman was required in course of his duties to assist in distributing, the conductor was under no duty to warn him before attempting to uncouple the car. Norman v. Southern R. Co. \[Tenn.\] 104 SWV 1088. 31. Where only thing the servant does not know is the precise time when danger will intervene. Norman v. Southern R. Co. \[Tenn.\] 104 SWV 1088. 32. Sutton v. Des Moines Bakery Co. \[Iowa\] 112 Nv 836; Mattsen v. Chicago, 1999; Bov V. \[Hess.\] 114 Nv 759; Bov V. \[Hess.\] 107 XYS 1001; Vant v. Roelofs, 217 Pa. 535, 66 A 749. Danger resulting from a plate which employ was moving, if was struck by a rapidly moving bucket in a shaft. White v. Owosso Sugar Co., 149 Mich. 473, 14 Det. Legs. N. 505, 112 Nv 1125. Danger of coming in contact with moving machinery. Boyd v. Taylor Mass. 81 NE 277, Defendant under no duty to warn as to obvious danger from moving belt and rollers. Hilex v. Claremont Paper Co. \[N.\] 65 A 1075. Evidence insufficient to show negligence in failing to warn a servant working on a subway of an electric rail. Causullo v. Lenox Const. Co., 107 XYS 481. Where laundry employee's hand was caught in a mangle, evidence held insufficient to show negligence in failing to give warning of the condition of the machine or to instruct as to method of covering machine, or notify of dangers connected therewith. Richards v. Ogden Steam Laundry \[Utah\] 91 P 267. Master is under no duty to warn servants of dangers patent to ordinary intelligence. Held to be immaterial whether a laborer has ever shoveled gravel or not on the question of duty of master to explain danger of working in a gravel plot. Village of Montgomery v. Robertson, 229 Ill. 466, 82 NE 296. Master is under no duty to warn servant against dangers which are obvious. Held not liable v. Ogden Steam Laundry \[Utah\] 91 P 267. 31. Where laundry to warn servants of dangers patent to ordinary intelligence. Held to be immaterial whether a laborer has ever shoveled gravel or not on the question of duty of master to explain danger of working in a gravel plot. Village of Montgomery v. Robertson, 229 Ill. 466, 82 NE 296. Master is under no duty to warn servant against dangers which are obvious. Held not liable v. Ogden Steam Laundry \[Utah\] 91 P 267. 31. Where laundry to warn servants of dangers patent to ordinary intelligence. Held to be immaterial whether a laborer has ever shoveled gravel or not on the question of duty of master to explain danger of working in a gravel plot. Village of Montgomery v. Robertson, 229 Ill. 466, 82 NE 296. Master is under no duty to warn servant against dangers which are obvious. Held not liable v. Ogden Steam Laundry \[Utah\] 91 P 267. 31. Where laundry to warn servants of dangers patent to ordinary intelligence. Held to be immaterial whether a laborer has ever shoveled gravel or not on the question of duty of master to explain danger of working in a gravel plot. Village of Montgomery v. Robertson, 229 Ill. 466, 82 NE 296. Master is under no duty to warn servant against dangers which are obvious. Held not liable v. Ogden Steam Laundry \[Utah\] 91 P 267. 31. Where laundry to warn servant against dangers which are obvious. Held not liable v. Ogden Steam Laundry \[Utah\] 91 P 267. 31. Where laundry to warn servants of dangers patent to ordinary intelligence. Held to be immaterial whether a 10 Cur. Law. Master and SERVANT SS 3D. 735 of ordinary care. \[88\] It is not negligence to fail to give warning of a danger not reasonably to be apprehended. \[97\] Instructions to servant by a vice-principal absolve the master from that duty. \[38\] Whether warnings or instructions should have been given in a particular instance, \[89\] and whether warnings or instructions given were sufficient, \[40\] are usually questions of fact to be determined by reference to the character of the risk or danger in issue, and the age, capacity, and experience of the employee concerned. \[41\] The duty. to properly warn and instruct cannot be delegated. \[42\]

danger from flying splinters. Brown v. J. Whether boy of 14 should have been warned A. Adams & Sons Co. \[La.\] 44 S 1005. Lla. \[and danger of operating electric elevator, blilty of explosion when lime and water are\] Brasnach v. Michigan Stove Co., 147 Mich. mixed is a master of common knowledge, \[67, 14 Det. Leg. N. 18, 111 NW 197.\] In an and hence it is not negligence to fail to action by a minter. for injuries alleged to warn and instruct boy of 19 engaged in mix- have resulted from negligence of the mine ing them. Bollington v. Louisville, etc., R. \[owner in failing to keep its mine in a safe Co., 30 Ky. L. R. 1260, 100 SW 550.\] condition or instruction the injured person who 38. Where labworkers working on a railroad \[\] was inexperienced in receipt to peculiar track were warned of approaching trains by dangers, evidence of negligence held for the foreman when working in groups, but \[C. C. A.\] 152 F 389. Evidence as to negell-from the others for him to look to his own danger of explosion of molten from he was \[\] the master owed him no duty to give warning. Predodnick v. Lelish Valley R. Co. \[N. New Haven r. & Steel Co. (C. A.) 152 F 37.\] Ert. & App.\] 65 A 1047. \[\] 97. Whether an engineer should give \[\] a servantay deviation from instructions and provide means for averning danger due to held for jury. Gulf, etc., R. Co. v. Harrison such deviation. Patterson v. North Carolina \[Tex. Cliv. App.\] 19 Tex. Ct. Rep. 818, 104 Lumber Co. \[N. C.\] 58 SE 47. Railroad company held not liable for failure to give \[\] injured by reason of the raising of the tank. warning of approach of train to a section \[\] Whether it was raised by pumping air into hand in its employ standard at a place where warning is not customarily given. Toledo, etc., K. Co. v. Cross, 127 Ill. App. \[\] 40. Where unusual conditions exist, such as passing of noisy trains which may \[\] 134 Ill. App. 89. \[\] 39. Whether master was negligent in fail- ing to warn 17 year old servant of defects \[\] jury whether customary warnings are sut- in stave bolling machine at which he work- relied. Germanus v. Lelish Valley R. Co. ed. Arkadloha Lumber Co. v. Henderson \[N. J. Err. & App.\] 67 A 79. Whether mas- \[Ark.\] 105 SW 852. Whether foreman was negligent in not keeping lookout for obstruc- \[\] Ovensboro Brick & Sewer Pipe Co. v. Glenn tins on track and other cars, where two \[\] 136 SV 1195. Whether youthful em- hand cars collided. Masstell v. Great \[\] 137. Other was sufficiently warned of dangers of Northern R. Co., 100 Minn. 236, 110 NW 889. \[\] 138. Question of negligence in falling to warn of Portland Mfg. Co. \[O.\] 93 P 450. Whether dangers and in placing a young and inex- \[\] 139.

786. Master and Servant $.3E. 10 Cur. Law.

( 3) \_E. Fellow-servants._See $ C. L. 884_Competency._--The master is charged with the duty of ordinary care 43 to employ and retain in his service only such servants as are reasonably competent to perform the duties for which they are employed.44 He is accordingly liable for injuries to a servant resulting proximatly from the incompetency of a fellow-servant,45 if he had actual or implied knowledge

of an employment which are so visible that a person of ordinary intelligence cannot fail to comprehend them. Magone v. Portland Mfg. Co. \[Or.\] 92 P 450. Warning and in-struction need not be given as to common operations of every day life free from complexity and done in usual way. As to open-ling of wooden packing cases with hammer and hatchet, piece of steel flew off and hit boy servant 17 years of age in eye, Whalen van van Rososky \[Mass.\] 81 NE 282. A master may assume that the experience of a servant and his knowledge of natural forces are adequate for his protection from ordinary results of the operation of such forces incident to his employment. The master may act on this assumption until he has notice to the contrary. Sabere v. Aka \[N. J. Law\] 68 A 102.

42. Duty to give warning of danger is nondelegrable. Roberts & Shafer Co. v. Jones \[Ark.\] 101 SW 165. The duty to warn and instruct an inexperienced youth cannot be delegated. Owensboro Wagon Co. v. Boling \[Ky.\] 107 SW 264. The duty to instruct as to abnormal and extraordinary dangers cannot be delegated. Industrial Lumber Co. v. Bivens \[Tex. Civ, App.\] 20 Tex. Ct. Rep. 117, 105 SW 81. The duty to give warning of latent dangers cannot be delegated. Schminkey v. Sinelair \[Iowa\] 114 NW 812. Master chargeable with negligent instructions given by forearm. Morena v. Winston, 194 Mass. 378.

80 NE 473. It being the master's duty to warn a servant that it is dangerous to attempt to stop cars with a pinch bar, it may not escape liability by delegating that duty to a fell.w-servant of one injured. Gussart v. Greenleaf Stone Co. \[Ny.\] 114 NW 789. The duty to warn and instruct an employee who is set to perform dangerous work with which he is unfamiliar is the absolute duty of the master and he cannot relieve himself from liability for its nonperformance by delegating it to a fellow workman or subordinate. Peters v. George \[C. C. A.\] 154 F 634.

43. Transfer company owes duty to servants moving pianos to exercise ordinary care in selecting a helper. McIntosh v. Jones \[Mont.\] 93 P 557. It is the master's duty to use reasonable diligence in selecting competent fellow-servants. Cooney v. Common-wealth Ave. St. R. Co. \[Mass.\] 81 NE 905. A master does not warrant the competency of fellow-servants. To recover for an injury caused by such incompetency, a servant must show that the master failed to exercise ordinary care in selecting them. Woodward Iron Co. v. Curl \[Ala.\] 44 S 969. A master is not liable for injury resulting because of incompetency or inefficiency of a fellow-servant where he has exercised due care in selecting them. Jackson v. Southern R. Co., 77 S. C. 550, 58 SE 605.

01. The master must exercise due and rea.

sonable care in the selection of his servants with reference to their fitness and competency (First Nat. BK. v. Chandler, 144 Mfg. Co. \[Or.\] 92 P 450. Warning and in-struction need not be given as to common operations of every day life free from complexity and done in usual way. As to open-ling of wooden packing cases with hammer and hatchet, piece of steel flew off and hit boy servant 17 years of age in eye, Whalen van van Rososky \[Mass.\] 81 NE 282. A master may assume that the experience of a servant and his knowledge of natural forces are adequate for his protection from ordinary results of the operation of such forces incident to his employment. The master may act on this assumption until he has notice to the contrary. Sabere v. Aka \[N. J. Law\] 68 A 102.

42. Duty to give warning of danger is nondelegrable. Roberts & Shafer Co. v. Jones \[Ark.\] 101 SW 165. The duty to warn and instruct an inexperienced youth cannot be delegated. Owensboro Wagon Co. v. Boling \[Ky.\] 107 SW 264. The duty to instruct as to abnormal and extraordinary dangers cannot be delegated. Lumber Co. v. Bivens \[Tex. Civ, App.\] 20 Tex. Ct. Rep. 117, 105 SW 81. The duty to give warning of latent dangers cannot be delegated. Schminkey v. Sinelair \[Iowa\] 114 NW 812. Master chargeable with negligent instructions given by forearm. Morena v. Winston, 194 Mass. 378.

80 NE 473. It being the master's duty to warn a servant that it is dangerous to attempt to stop cars with a pinch bar, it may not escape liability by delegating that duty to a fell.w-servant of one injured. Gussart v. Greenleaf Stone Co. \[Ny.\] 114 NW 789. The duty to warn and instruct an employee who is set to perform dangerous work with which he is unfamiliar is the absolute duty of the master and he cannot relieve himself from 10 Cur. Law.\*\*Master and Servant $ 3E. 737 of such incompetency,46 and it was unknown to the servant'injured.47 Notice to a vice-principal is,-of course, notice to the master.48 Negligence such as unfits a person for service-or such as renders it negligent in a master to retain him in his employ must be habitual rather than occasional, or of such a character as to render it imprudent to retain him.49 A single exceptional act will not prove a servant incapable or negligent.50

\_Negligence of fellow-servants,\_See * C. L. 882.--A master who used due care in the selection and retention of employees is not, at common law,51 liable to servants for-injuries resulting from the mere negligence of fellow-servants,52 such negligence 46 To charge an employer with liability \[Ind. T.\] 104 SWV 555. There can be no re-converty for injuries caused by the incompetency of a fellow-servant, It must appear that the fellow-servant, however gross. Louisville, master had actual or constructive notice of \[etc. R. Co. v. Brown \[IX.\] 106 SWV 795. No such incompetency. First Nat. Bk. v. Chand-recovery can be had for injury caused by 144 Ala. 286, 39

- in railway excavation, injured by explosion, could not recover where explosion was due to negligence of a cocomploye who was astighine and who lighted the fuse. Ccoomploye concurred. Haskel & Barker Vito v. West Chester, Kenneth & Wilmington

* Car Co. v. Prezezedziankowski \[Ind.\] $3 NE 62. Co., 217 Pa. 398, 66 A 659. Where an employee of a transfer company was injured by negligence of a fellow-servant in negligently letting go a plano which was being moved down stars, when only ability 793, 99 SSV 413. The master is liable for an required was strength and ordinary intelligible. \[11\] "injury which results from the concurring of the inside. McIntosh v. Jones \[Mon.\] $9 F557." \[12\] "Why one employed by the janitor of a school building to assist had his hands in
* jured by liquid given him to clean water" \[13\] "Why one could observe, held the negligence, if any, was that of a fellow-servant," \[14\] "Why one could observe," \[15\] "Why one could observe," \[16\] "Why one could observe," \[17\] "Why one could observe," \[18\] "Why one could observe," \[19\] "Why
  10 Cur. Law. , Master AND SERVANT SS 3E. 739

ployes is a question of law; the existence of such facts in a particular case is a question for the jury. \[87\]

- It is essential to 'the existence of the fellow-servant relation that the employees have a common master, \[58\] or at least be under one control. \[59\] It is commonly held that employees of a common master, working together in a common enterprise, \[60\] or

87. Whether foreman was fellow-servant

hauled steel plates for defendant as an in- or vice-principal held for jury under proper instructions. Sandusky Portland Cement Co.

was superintending the loading of wagons v. Rice (Ind. App.). SS 2NE 1007. Whether a bystander who is called by a station agent to assist in rolling cars away from a fire

In loading. Ots Steel Co. v. Wingie \[C. C. is fellow-servant held for jury. Jackson A.152 F 914. A master is not relieved from V. Southern R. Co., 77 S. C50, 68 SEE 605. Inhibitory under the fellow-servant rule

Whether servants in the employ of a common master are fellow-servants is generally a

mate result of the negligent act it occurred

question of fact. Chicago, etc., R. Co. v. Reddick, 230 HL. 105, 82 NE 598. If the evidence

some time later, and after the injured per-

is such that reasonable minds would differ.

Hunphreyville \[Tex. Civ. App.\] 19 Tex. Ct.

the question of the relation should be sub-

mitted to the jury. Whether bridge tender

59. The relation of fellow-servant may

and machinist employed to repair bridge are

exist between servants of different masters

fellow-servants held a question for the jury.

where the employees of one master have been

Gathiman v. Chicago, 127 III. App. 150. Where

the evidence is conflicting, the question is for

control of the latter. Pioneer Fire Proding

the jury (Chicago, etc., E. Co. v. Strong, 129

Co. v. Clifford, 125 IL. App. 353.

Ill. App. 156, but where there is no control-

60. A workman and a foreman while mak-'

versy as to the facts and the conclusions to

being repairs held fellow-servants, and no re-

be drawn therefrom, it becomes a question of

every could be had for negligence of fore-

law (Id.). One having authority to direct and

man in failure to discover defects in machin-

control the movements of those employed

red. Reed v. Moore \[C. C. A.\] 153 F 358, Gang

under him is in the exercise of such author-

foreman of mining crew is fellow-servant of

ity a Vice-principal, Chicago, etc., R. Co, v.

miners whom he directs. United Zine Com-

R-dick, 230 IL. 105, 82 NE 588. The question

panies v. Wright \[C. C. A.\] 156 F 571, Where a

as to whether the relation of fellow-servant

gans of men were employed in disemaling

exists becomes one of l's law only when there

billings and heavy machinery, held the lab-

is no dispute as to the facts which clearly

orst and their foreman were fellow-servants

show the relationship within the rule. Illinois

where the foreman by untyzing a guy rope

Terminal R. Co. v. Chapin, 128 Ill. App. 170.

caused injury to a workman: Westinghouse,

One vested with proper authority ordering

Church, Kerr & Co. V. Caltaghan \[C. C. A.\] 155

cars to be moved onto a track with the

F 397. Issue being whether mill

showledge that other cars were standing on

plaintiff was injured was operated by de-

such track, and thereby causing collision

readant or third person as an independent

resulting in death of a servant, is as to such

contractor, held that defendant was plain-

servant a vice-principal, Chicago, etc., R. Co.

if's employer and third person was a fel-

v. Reddick, 230 HL. 105, 82 NE 698.

58. Servants of different masters are not

co. \[CaI. App.\] 89 P 1059. Where foreman,

decomed to be fellow-servants, though work-

negaged in clearing away a landslide from

must be under the direction and control of a

common master. Engineer on one train and

neglence of foreman in inspecting the

employed by one company held not fellow-

space and pronuncing it all right was an

servant of employees of another company

ensumed risk. Maloney v. Florence, etc., R.

gaged on another train. Baker v. Philadelphia

Co. \[Col.\] 89 P 649, Plantiff, a helper on coal

& R. R. Co., 149 F 882. Persons employed by

wagons, was walking along passageway in

different masters are not ordinarily fellow-

servants though engaged in common work.

day's work and after receiving pay. Held

Servants in the employ of a general con-

relation of master and servant still existed,

tractor and servant of a subcontractor are not

fellow-servants unless they have submitted performing duties tending to the accomplishment of the same general end or purpose,61 are fellow-servants, though not at the time in question engaged in the same operation or on the same piece of work.62

by his negligence in colliding with a wagon, bin. Lapre v. Woronoco St. R. Co. \[Mass.\] && Kilduff v. Boston El. R Co. \[Mass.\] 81 NE 191.

Foreman and sawmill employ while moving moving a car of slabs held fellow-servants barring recovery where the servant was injured by a slab falling on him. Younggren v. I. Stephenson Co. \[Milb.\] 14 Det. Leg. N. 783, 114 NW 341. A "working forma", under Illinois law, is the fellow-servant of other employees while engaged as a common labor.

Forcman in the employ of an electric program and sawmill employ while moving a car of slabs held fellow-servants bridges a superintendent is a fellow-serv-sant of electricians, Guest v. Edison Illumi-I. Stephenson Co. \[Milb.\] 14 Det. Leg. N. 712, 114 11 NW 341. A "working forma", under Illinois law, is the fellow-servant of other employees while engaged as a common labor.

Low-servant. Bowl v. Hess, 107 NYS 1001.

App. 270, 100 SWV 689. Persons employed to do blasting in a trench held fellow-servants of plaintiff who was engaged in removing broken rock, for their negligence plaintiff could not recover against common employer.

L. & P. Co., 105 XY85. Where a blower 118 N. Y. 339, 80 NE 1092. Operator of lathe machine and blacksmith who tempered steel portions of the lathes are fellow-servants, Huh v. Hewitt Motor Co., 106 NYS 881. Boss of repair trail held not vice-prin-cipal as to employ engaged in unloading when giving signal to start. Peterson v. Philadeiphia, etc., R. Co., 217 PA. 401, 6& A 660. Term fellow-servants as applied in action for injuries to a switchman through negligence of another switchman and engl-ner implies that all were engaged in a common purpose. Southern Pac. Co. v. Allen \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 202, 106 SWV 441. Where one common day laborer tailored another to assist him in holding a chisel, they were fellow-servants, Vitter Mffg. Co. V. Kent \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 955, 105 SWV 525. Emplyes engaged in moving bales of cotton across a depot platform held fellow-servants engaged in same piece of work (Sayje's Tcv. Civ. St. Art. 4560h, and one on whom a bale was rolled by others could not recover. International, etc., R. Co., V. Still \[Tex.\] 18 Tex. Ct. Rep. 172, 101 SVV 442. Crew of four men and a forcman used a scantling for a brake on a push car by direction of the foreman. While the scantling was being used by another employee it was jerked out of his hand, and fell in front of the car, derailing it. Heid foreman was acting as plaintiff's fellow-servant. Owens v. San Pedro, etc., R. Co. \[Utah\] 89 P 825. Electricalin mill is fellow-servant of a workman injured because of negligence of the electrical in turning off the lights. Miller v. Centrania Pulp & Water Power Co. \[VVis.\] 118 NW 954.

61. Foreman of factory yard who let cars down a track against others, catching plaintiff's intstate between them, held fellow-servant of plaintiff's intstate who started between cars to go across yards. Schwind v. Floriston Pulp & Paper Co. \[Cal. App.\] 89 P 1066. All who enter into the employment of a common master to accomaglish a common undertaking are prima facie fellow-servants, though their grades of service are different and some direct and supervise, while others perform the labor. Westinghouse, Church, Kerr & Co. v. Calaghan \[C. C. A.\] 155 F 897. Superintendent of street car barn held fellow-servant of night watchman in inspecting coal 10 Cur. Law. **MASTER AND SERVANT SS 3E**.

The-rule most frequently applied is that it is not the rank of an employee, nor the authority he exercises over other employes, but the nature of the duty or service he is performing at the time which determines whether he was, at such time, a vice-principal or a fellow-servant.\[43\] The duty of the master to use ordinary care for the safety of his employees being personal and nondelegable,\[64\] any person charged with and engaged in the performance of any part of that duty is a vice-principal for whose negligence in the performance of such duty the master is liable.\[65\] Thus, persons charged with and engaged in the performance of the duty of the master to provide and maintain a reasonably safe place of work,\[66\] or reasonably safe appli ances,67 or to direct the mode of work,68 or to warn69 or properly instruct70 emendence67

Coke Co. \[Mo. App.\] 106 SWV 1069. Superintendent in charge of raising beams in a mill held the Vice-principal and not the fellow-servant of a workman whom he directed to a dangerous place. McGuire v. Waterloo & Cedar Falls Union Mill Co. \[Iowa\] 113 N NV 850. Where a workman was directed by the foreman to dig out holes and was injury-ed by explosion of an unexploded charge of dynamite, held the foreman was a vice-prin- clipal charged with the duty of seeing that employees under him were' provided with a safe place in which to work and the master was liable for his negligence. Carlson v. James Forrestal Co. \[Minn.\] 113 N NV 626. Instructions approved. Id. Where a foreman of a gang moving iron plates ordered a workman to pass over the pile of plates, and while he was in the act of doing so the foreman raised a plate so that it will find from the pile and injured the workman, held the foreman acted as vice-principal, brass, Co. v. Smith, 225 Ill. 74, 80 NE 65. One Dizonno v. Great Northern R. Co. \[Minn.\] 114 N NV 736. A vice-principal who orders a workman into a dangerous place and then switch with warning negligently starts (machinery by an act which under ordinary circum- stances would be performed by him in the capacity of a fellow-servant must be held to be made as vice-principal, as well in starting the machine as in ordering the workman into a dangerous place. Cody v. Lohneysear \[Minn.\] 114 N NV 735. Railroad company which delegated duty of loading car to lumber company held liable for in- dury to its employee caused by negligence of type-principal by him. Currently, he returned the workman to stop that part of the road is kept in reasonably safe condition is not fellow-servant of loco- mottive fireman. Chicago, etc., R. Co. v. Birk \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 72, 99 SWV 75. Servants who stacked flour on top of which another was to work held not his fellow-servants (Commerce Mill. & Grain Co. v. Gowran \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 687, 104 SWV 916), nor was the foreman who orderd him on top of the stack (Id.). Where he had sawyer in mill neglected to use safety device to secure log carriage, as a result of which the carriage moved suddenly, injuring a setter whose place of work was on the carriage, the act of the head sawyer was held a breach of the master's duty to main- stain the place of work in a reasonably safe condition. Eldmer v. Threc Lakes Lumber Co. IVwash. 185 P 326. Duty of master to warn's servant of unusual dangers of which former has or should have knowledge and the latter is ignorant held nondelegable. Donk Bros. Coal & Co. V. Thil, 228 Ill. 233, 81 NB 857. Timbermen whose duty it is to keep roof of mine in safe condition are as to such duties vice-principals. Id., aff. 128 Ill. App. 249. Failure of vice-principal to obey instructions to remedy defect which rendered position of servant hazardous is the wulfulf act of the operator. Willington & Springfield Coal Co. v. Sloan, 225 Ill. 467, 80 NE 265, aff. 127 Ill. App. 218. Where ob-structions in a gangway were placed there by order of a vice-principal, who also ordered plaintiff to carry articles over the gangway, the fact that they were placed there through the workman to be able to use the gamgway.

10 Cur. Law. MASTER AND SERVANT SS 3E. 743

ployes, or to inspect \[11\] and keep in repair,\[72\] have been held vice-principals, for whose failure to perform the duties entrusted to them, or for whose negligence in the performance of those duties, the master has been held responsible. On the other hand, when a master has fully performed his duties, he may properly entrust to the employees themselves the details of the work,\[73\] and if the act or omission complained of does not pertain to any duty of the master but is a mere detail of the work which it is the duty of employees to perform, it is the act or omission of a fellow-servant,\[74\] regardless of the rank or authority of the employe charged therewith.\[75\] :

start an engine the propriotor was liable. V. Grand Trunk Western R. Co., 147 Mich. Tivann v. Keaahon, 117 App. Div. 50, 101 NYS 667, 14 Det. Leg. N. 62, 111 NW 200, Jacking 1076.

**71.** A servant to whom is delegated the pairing the trucks is not a part of the duty duty of inspecting a mine for gas is as to to furnish a safe place to work, but a duty coworkers a vice-principal. Western Coal & of regurants making repairs, and no recovery ?in. Co. v. Buchanan \[Ark.\] 102 SW 694.

**72**_"_

### Master and Servant $ 3E.

10 Cur. Law.

But the authority conferred upon and exercised by employees is often applied as a test by which to determine whether they are vice-principals.\[76\] Thus, employees who are placed in the absolute control or management of an entire business, or of a distinct department of the business,\[77\] or who have charge of a particular piece of work with authority to control and direct the men engaged thereon,\[78\] are held to the duty of the servant to operate them. \[tor, and who ordered servant into a btn of and one to whom the duty of operating ma- oats to correct a defect therein, the servant being smothered to death by a fall of all engaged in carrying out the enterprise. \[acts, was a vice-principal and not a fellow- schwatervant of decedent. Meier v. Wray, John-369. Where plaintful was injured in course on, Lee & Co. \[Iowa\] 111 NWV 420. Shift of operation of derrick, due to premature boss in mime held vice-principal of miner, signal to engineer by foreman, held fore- Laitinen v. Shanngo Furnace Co. \[Minn.\] man was then engaged in a-mere detail of 111 NWV 264. Car dispatcher who has con- the work and a fellow-servant of plaintful. \[Minn.\] 112 NWV 392. As operation of cars is not a fellow-servant Servant employed to strike a steel chise! \[of motormen and conductors. Edge v. South-with a hammer was injured by chip struck Mo. Elec. R. Co., 206 Mo. 471, 104 SWV 90, off in process of hammering. The defect Dispatcher on interurban electric railroad is alleged was deterioration of the chise! due vice-principal of motorman and conductors, to constant use. Held the duty of inspection Id. The nature of the business alone can and repair was incidental to use and the negligence was that of fellow-servants. \[of servants, Westinghouse, Church, Kerr & Derm. v. Hudson County Gas Co., V. Callaghan \[C. C. A.\] 155 F 397. The ed that employees at work in subway tunnel\] fact that a foreman in charge of a single were charged with duty of protecting them- job worked with men under him, had power selves from injury, an injury caused by defect in place of work would be chargeable to members, did not make that single job a-servant but not to master. \[of\] and make the foreman a vice-principal, but \[of\]. One assisting in loading logs on a wagon, though called a manager, held a fei- Co. v. Otte \[C. C. A.\] 157 E 230. Section boss low-servant while engaged in so helping. \[of\] was to oil rollers, and Van Dyke v. Menlo Fruit Co. \[Ga.\] 59 SE 215. \[of\]. A master who intrins authority to control others is responsible for the manner \[of\]. \[of\].

10 Cur. Law. MASTER AND SERVANT SS 3E. 745

represent the master. One who is thus made a representative of the master does not lose his representative character by engaging occasionally in work as an ordinary employe.79 The negligence of an alleged vice-principal will not make the master liable unless such employe was acting at the time within the scope of his employment,80 or was exercising authority in fact conferred upon him by the master.81

Footnote 81: The author is grateful to the anonymous referee for his comments.

In some jurisdictions the test applied is the extent to which employees associate in the performe-ce of their usual duties.82 Thus, it is held that employees engaged in different departments of a business are not fellow-servants.83

Footnote 82: The author is grateful to the anonymous referee for his comments.

_Railway employs.85_ C. L. 892.--Holdings as the relation existing between railroad employees are given in the note.84

order by the foreman in obeying which a

art of the coal mineowner outside his

servant is injured renders the master liable,

dontles prescribed by statute. Ann. Code

McCracken v. Lantry-Sharpe Cont. \[Tex. 1986 $ 410. Id. And such owner is not

Civ. App.\] 17 Tex. Ct. Rep. 955, 101 SWP 520,

responsible for his orders to servants, or

70. A superintendent is not relieved from

his negligence resulting in injury to them.

the duty to use dae care for the safety of

Id. Whether a section hand properly gave

employes under him because the temporarily

orders and had authority to do so to a work-

takes the place of an ordinary employe.

Jordan v. New England Structural Co, \[Mass.\]

for the jury. Sauves v. Stevens Mfg. Co.

83 NE 323.

80. In action for injury alleged to have

01. Persons employed by the same master

been caused by defendants' foreman, an in-

to accomplish one common object and a re-

struction reunirps jury to find that fore-

lated in their labors as ordinarily to be

man was acting within the scope of his

exposed to injuries caused by each other's

employment was proper. Conroy v. G. W.

neglence are follow-servants. In Indian

& F. Smith from Co., 194 Mass, 468, 80 NE

Territory car regular is fellow-servant of

488. A foreman in employ of an electer

threatening company having charge of electe-

where repaired worked. Snellen v. Kansas

tricians and virenrenna has no authority to

City So. R. Co. \[Ark. 102 SW 198.\]

bind the company by an agreement that he

s. S. Bervant employed to the stream shovel

would watch the switch box and see that it

used in constructing road is not fellow-

was not closed, and the company was not

wavenant of employees engaged in operating

Ihable for an injury resulting from his fall-

trains. Oliver v. Roach, 31 Ky. L. R. 284,

ure to do so. Guest v. Elosion Illuminating

102 SW 274.

Co. \[Mich.\] 14 Det. Leg. N. 112, 114 NW

84. Heid vice-principal: Employes load-

01. Where a railroad bridge program

ing coal on the tender not fellow-servants

while in pursuit of his own affairs and not

of brakeman. Louisville, etc., R. Co. v.

engaged in any duty for the company went

Clark \[Ky.\] 106 SW 1184. Engineer, con-

upon the track at night in a hand car and

ductor, and brakeman of a train which they

was killed by colliding with a special train,

negligently permitted to stand on the main

held he did not stand in the relation of serv-

track on another trains time are not fell-

ant at the time and the statute making

low-servants on such other

railroad companies liable for negligence of

train. Louisville, etc., R. Co. v. Brown \[Ky.\]

fellow-servants had no application. Russian

16 SW 785. Trainmaster in charge of train

v. Oregon Short Line R. Co. \[C. L.\] 158

and crew run train negligently and in viola-

F 22. Where chief operator who was

tion of rules, and train colluded with another,

principal for telephone company, for the

injuring engineer thereof. Heid Intlammatory

purpose of maintaining discipline among

wox vice-principal and not fellow-servant of

operators, took hold of the chair of an oper-

engineer. Morrison v. San Pedro, etc., R.

ator and violently whirled it around,

Co. \[TUtah\] 88 P. 1989. Tragman at crossing

juring the operator, the company was liable,

not fellow-servant of them. Ferguson

the act being within scope of his authority,

V. Central R. Co. \[N. J. Err. & App.\] 67 A 802.

Compher v. Missouri & Kansas Tel, Co. \[Mo.\]

Foreman of switching crew vice-principal

Appl. 168 SW 356.

when exercising authority to direct and con-

orborb crew. Chicago, etc., R. Co. v. Strong,

direction and superintendence by a fellow-

228 IL 281, 81 NE 1011

## 743 Master and Servant $ 3e.

10 Cur. Law. MASTER AND SERVANT SS 3E. 747

of a fellow-servant of the negligence of the person injured, the master is not liable. Senatucky Portland Cement Co. v. Rice \[Ind. App.\] 81 NE 215. "Order or direction" as used in the statue means a special order or direction; an injury through negligence of a foreman under whose general directions plaintiff was working is not within the statute. Indianapolis St. R. Co. v. Kane \[Ind.\] 80 NE 841. Complaint held to show a special, as distinguished from a general, order, where it was alleged that plaintiff was ordered to do certain specified work at a certain spot. Id. Complaint held to state cause of action for injuries while conforming to order of conductor. Pittsburg, etc., R. Co. v. Ross \[Ind.\] 80 NE 845. Under Burny Ann. St. 1901, 1 7088, a- liability may arise in favor of a conductor of a railroad train for negligence of the engineer, though the conductor is in some respects superior to the engineer. Pittsburg, etc., R. Co. v. Collins \[Ind.\] 80 NE 415. Switch targets are not "signals" within Burny Ann. St. 1901, 8 7088, making a railroad company liable for negligence of an employee having charge of any signal; such statute applies only to signals complete within themselves. Chincago, etc., R. Co. v. Barker \[Ind.\] 88 NE 369. The Indiana statute is held uncontitutional as applied to other than railroad corporations. Bedford Quarries Co. v. Bough, 168 Ind. 671, 80 NE 529, Burny Ann. St. 1901, 5 1083, sabd. 2, making railroads and other corporations liable for injuries caused by negligence of an employee, having power railroads (Tay v. Willmar, etc., R. Co., 100 to give orders to others, held invalid as applied to other than railroad corporations as violative or 14th amendment to Federal constitution. Id. Iowa: Code SS 2071, imposing liability on railroad companies for negligence of fellow-servants, amended by acts 27th Gen. Assem. p. 33, held the provisions of the amendment were germane to the original act and covered by the title. McGwire v. Chicago, etc., R. Co., 131 Iowa 340, 108 NW 902. Kansas: Laws Kan. 1874, p. 143, providing that a railroad company shall be liable to employees for injury caused by negligence of fellow-servant, while restricted to hazards peculiar to railroads, applies where a track repaired is injured by a collision while being taken from his place of work in a cabulose. Iaraussi v. Missouri P. R. Co., 155 F. Southwest Elec. R. Co., 206 Mo. 471, 104 654. Servant does not assume risk of negligence of fellow-employee under railway emparties liability act. Missouri, etc., R. Co. v. Green, 75 Kan. 504, 89, P 1042. Defendant held liable under railway employer's liability act where an employee was injured by fail of engine which was being repaired, due to negligent selection and adjustment of a block under it by another employee. Id. Keutucky: Laws 1893, p. 294, imposing on railroads liability for injury to employees, applies to all persons operating railroads, whether corporate or natural, and does not impose on corporations burdens not imposed on individuals. Louisville, etc., R. Co. v. Mellon \[Ky.\] 105 SW 366. Not void as to railroad carpenter on the ground that it does not apply to carpenders not in railroad service. Id. Kissachusetts: The fact that a foreman in charge.of a gang of men works the same as the rest of the men does not necessarily exclude him from being one whose prin-1 (i.e., 10 * 748 -

Master and Servant $ 3E. 10 Cur. Law.

danger, to ascertain before climbing a pole -

New York Cont Co., 107 NYS 855. Plumber whether it is weak at'the base and liable

hired to fit and repair pipes in blacksmith to fall when wires are removed. La Duke

shop, without power to hire or discharge v. Hudson River Tel. Co., 108 NYS 139. An

helper, who was employed by master and employe operating a machine with assist-

told to follow directions of the plumber, held

ance of other employees with incidental pow-

a fellow-servant of the helper and not a

or to supervise but without authority to su

superintend, hence master not liable for

perintend is not a superintendent within

injuries to helper caused by selection of

Laws 1902, p. 1748. Bovi v. Hess, 107 NYS

1001. Where a longhoreman was injured by

V. Morse Iron Works & Dry Dec Co., N. Y., the fall of a box negligently placed near the

80 NE 190. Laws 1906, 657, p. 1682, mask-

ganway of the boat under the direction

Ing person in charge of employees or of sig-

of one who, when the superintendent was

nals, switches, engines, etc., vice-principals,

present, was a fellow-servant, held that in

is valid. Schradin v. New York Cent., etc.,

absence of proof that the superintendent was

K. Co., 103 NYS 73. Employe in charge of

absent and that the one who gave the direc-

work of cleaning ashes from engines, in

tion was a superintendent, the master was

absence of regular superintendent, and who

not liable under Laws 1902, p. 1748. Will

land charge of and directed men under hln,

iams v. Citizens' Steamboat Co., 106 NYS

held a superintendent under Laws 1902, c.

95. Where a servant and superintendent

01. Mikos v. New York Cent., etc., R. Co.,

were adjusting a belt and the superintendent

118 App. Div. 366, 102 NYS 995. Superintendent

terlacted held negligent in directing engine

to be caught in a revolving shaft, held his

detr it. Id. Plaintiff cannot sue at common

master was not liable under Laws 1902, p.

law and recover under the employer's liable-

1748, making the master liable for neglig-

gence of a superintendent. Kujava v. Irv-

App. Div. 347, 103 NYS 851. Where

1mg, 108 NYS 837. Act of foreman directing

was injured while holding a drill which an

a ward employee to go between cars at a time

other struck, a chip flying off the bur of the

when cars were being kicked against the

drill, it was held not negligence for a super

cars standing on the track held an act of

independent to direct them to hurry; where

superimentence within Laws 1902, p. 1748,

there was no proof that he directed use of

for which the company was liable. Onest

drill in question or knew that it was defec-

v. Central New England R. Co., 111 App.

Div. 554, 106 NYS 233. Machine shop boss

NYS 398. Foreman of rang of men, in

held a superintendent within Laws 1902, p.

mediate charge of work being done, and

1748, while directing the work of lowering

the men engaged in it, directed that planks

an iron flask by hand after the men had

asked for a crane. Oogar V. Pierce, Burley

was held an act of superintendence under

& Pierce Mg. Co., 106 NYS 1087. Under

Laws 1902, p. 1748, making master liable for

Steel Co., 105 NYS 492. The act being

legligence of a superintendent, such super-

intendent is not the alter ego of the master

when he performs the work of a fellow-

him in giving the order. Id. Person who

servant. Id. Where an injury was caused

by the act of a superintendent in starting

coal company assisted a driver in closing

machinery, it was error to restore to submit

whether the act of the superintendent was

line of his duty rendering the employer

ict of superintendence under the statue.

liable under Laws 1902, p. 1748, Gallagher

v. Newman, 190 N. Y. 444, 53 NE 480. In

struction held insufficient to submit such

such that:

issue. Id. Laws 1902, p. 1748, makes an

ployer liable where injury is caused by

negligence of his superintendent, but not

where the negligent act is subject to per-

formance by subordinate employees and in

cludes no element of superintend. Id. Direct

tion of a foreman who had power to stop

machinery that it be stopped, or failure to

so direct, while a defect is being repaired,

was an act of superintendence within Laws

1902, 10 Cur. Law. MASTER AND SERVANT $ 3F. 749

ployes as are engaged in interstate commerce, provide for liability for negligence of a fellow-servant, \[64\] but an act not limiting its operation to employes so engaged is beyond the Federal power. \[87\]

(SS 3) _F. Risks assumed by servant. Nature of defense,See $ C. L. 86e_As-sumption of risk is a matter of contract, express or implied; contributory negligence is a matter of conduct. \[88\] The defense of assumption of risk is not available where_

ness. United States Leather Co. v. Howell

casioned by freman opening a valve and \[C. C. A.\] 161 F 444.

Ohie. The fellow-servant act ($7 Ohie, Laws, p. 150), providing that negligence of

him to do it. Id. Railroad employee was a fellow-servant is no defense to the masa-

injured while assisting in replacing a tram

ter as to injuries to railroad employees, is

can on an ordinary railroad track, conorcet-

valid under the constitution of Ohio and the

defendants' main line with its erosion-

14th amendment of the Federal constitution.

Erie R. Co. v. Kane \[C. C. A.\] 155 F 118.

sophid, and defendant could not defeat re-

South Carolina: Under Const. 1895, art.

every by proof that fellow-servant caused

9, 15, an engineer is a vice-principal and

not a fellow-servant of his freman. Pagan

Civ. Appl. 17 Tex. Ct. Rep. 843, 99 SV7 743.

v. Southern R. Co. \[E. C.\] 159 E32. Prior to

Acts 25th Legs, approved June 18, 187 (Laws

the adoption of constitution 1895, the fel-

187, p. 14, c, 6), so construed, is not un-

low-servant rule was applicable to railroads,

constitutional. Id.

Under Civic. Code Ga. 1895, p. 2610, a rail.

Vrigliaia: Yard foreman who had no au-

road is liable where an employe is injured

thority over yard engineer except to direct

by negligence of a fellow-servant. Bussey

him where to move his engine, and who had

v. Charlgren, etc., R. Co. \[E. C.\] 88 BE 1015.

no right of employment of discharge, is a

The change in the fellow-servant law made

fellow-servant and not a vice-principal with-

by Constitution of 1895 applies only to rail-

in Const. $ 163, abolishing doctrine of fel-

road employes. Wilson v. Virginia-Carolina

low-servants as to certain railroad

Chemical Co. \[S. C.\] 88 BE 1013.

ployes. Southern R. Co. v. Smith \[Ya.\] 89

Tennessee: Acts Tenn, 1903, p. 520, c. 287,

88E 737. Tard foreman in the discharge of

requiring employment of nine foreman hav-

whose duties it was necessary and custom-

ing certificate of competency and relieving

ary for him to ride on a yard engine is an

the owner from liability for injuries result-

employe "engaged in service requiring his

ing from his negligence, and penalizing fail-

presence" on an engine, within Const. $ 162,

ure to operate a mine for more than 3 days

abolishing fellow-servant doctrine as to rail-

without such foreman, held that provision

road employees. Id.

permitting operation for 30 days without

Wisconsin. Injury caused by negligent

foreman does not give an unlicensed fore-

act of foreman of section crew in causing

man the standing of a lawful foreman dur-

hand car to roll upon plaintiff while it was

ing such period, though he is afterwards

licensed. Cumberland Coal & Coke Co. v.

Gray IC. C. A.\] 152 F 899.

of a railroad operation

Texas: Servant of railroad corporation

many recovery for injuries caused by negill-

v. Chicago, etc., R. Co., 130 Wts, 512, 110 NV

erence of a fellow-servant, Lodwick Lumber

437. Instruction to find railroad company

Co. v. Mounce \[Tex. Civ.\] 18 Tex. Ct. Rep. 516, 102 SV7 142. Evidence held to usa-

liable for death of brakeman, if another em-

tain a verdict for a servant injured on the

between them, as a result of which he was

ground that it was due to negligence of

killed. Hayes V. Chicago, etc., R. Co., 131

other servants, Texas, etc. R. Co., Vid.,

Niss, 1995, till NW 41.

dieton \[Tex. Civ.\] 19 Tex. Ct. Rep. 487,

103 SW7 208. Employe unloading ties from

box car held engaged in work connected

with operation of the road, within Sayley

Ann. Civ. St. 1897, art. 45607, making the

railroad company liable for negligence of

fellow * 750 MASTER AND SERVANT SS 3F. 10 Cur. Law. a person injured was not at the time acting as an employee.\* The assumption of a particular risk will not defeat recovery for injuries caused by another risk which was not assumed.\*

It is usually held that the defense of assumption of risk is not available where the negligence charged is a violation of a positive statutory duty,\* and some statutes expressly exclude the defense.*\[92\] Under some statutes, however, the defense is available.*\[93\] {

- 89 Plaintiff, extra brakeman, was struck by engine while using customary route v. Kane \[Ind.\] 80 NE 841; Pittsburgh, etc., across tracks to employees' club house, main- R. Co. v. Ross \[Ind.\] 80 NE 845. Assumption tamed by road, to be on hand in case he was of risk is not available as a defense in an wanted on a train during the night. Held action by an employee for injuries sustained he was not an employee at the time. Best v. because of failure of the mater to guard New York Cent., etc., R. Co., 117 App. Div. 739, 102 NYS 957. Hence he did not assume the risk. Id. failure \[Kan.\] 90 P 821. Risk arising from 90. Where plaintiff was injured by reason of defects in engine or pilot and in turn- Laws, SS 549, not assumed. Swick v. Acta table, the fact that he knew and assumed Pritland Cement Co., 147 Mich. 454, 111 NWF risk of injury from defect in turnable would not bar recovery. Barachow v. Lake from failure to guard revolving shaft, un- Shorre, etc., R. Co., 147 Mich. 226, 13 Det. Leg. N. 1060, 110 NWV 1057. Track layer in coal minho, whose duty it was to lay and keep in their v. M.

10 Cur. Law MASTER AND SERVANT SS 3F.

Dangers incidental to businessSee S. C. L. 898--The servant assumes the risks ordinarily incident to the employment in which he engages,94 and this is so where the employment is necessarily dangerous.95 Ordinary risks are such as arise from the permanent, open, visible conditions of the master's business,96 and which are

Allen \[Tex. Civ, App.\] 20 Tex. Ct. Rep. 202, 106 SWV 441. Under Reviusal 1905, & 2646, denying defense of assumption of risks, where injury is due to defective machinery, non-suit is properly denied where injury was due to a defective hand can. Boney v. Atlanta-Stevent assumes ordinary risk attendant upon tic, etc., R. Co. \[N. C.\] 58 SE 1082. Gen. Laws 1905, c. 163, provides that in actions against railroad companies the plea of assumed risk, where the ground thereof is knowledge or means of knowledge of the defect by the servant, shall not be available where the servant had an opportunity to inform the master and did so within a reasonable time, or where a person of ordinary care would have continued in the service with knowled-edge of the defect, in which case notice to the master shall not be necessary, is held not unconstitutional as impairing contract obligations, nor as disturbing vessel rights, nor as discriminating in favor of interurban electric railways. El Paso, etc., R. Co. v. Foth \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 610, 100 SWV 171.

93. Failure to guard machinery as required by statute does not relieve the servant of his voluntary assumption of risk. Sutton v. Des Moines Bakery Co. \[Iowa\] 112 NWV 836. Notwithstanding Kirby's Dig. 6 5352, requiring mine operators to keep on hand a supply of timbers for props, where an experienced miner consents to work within a supply of timbers, and though he has demanded timbers, he assumes the risk of so doing. Patterson Coal Co. v. Poe \[Ark.\] 99 SWV 638.

01. Schillinger Bros. Co. v. Smith, 225 Ill.

01. 80 NE6: Mixe. V. Louisville, etc., R. Co. \[Ky.\] 105 SWV 908. Incident and open and obvious risks are assumed. Bowring v. Willington Malabelle Iron Co. \[Den.\] "snap" used to receive blows in riveting. \[Gilangle v. United Iron Works Co. \[Kan.\] R. Co. \[Den.\] 67 A 148; Strong v. Rutland R. Co. \[Den.\] 67 A 148; Strong v. Rutland R. Co. \[Den.\] 687 N 851; James v. Co., 121 App. Div. IVS 852; James v. Cranford, 108 NYS 142. In Missouri the only risks assumed are those incident to the employment. Garacl v. Hill-O'Meara Const. and objects assume incident risks. Id. An Co., 124 Mo. App. 709, 102 SWV 594. A servant assumes risks which he knows are incident to the premises where he works. Bennett v.

Conced Woodworking Co. \[N. H.\] 68 A 460. Risks reasonably and fairly incident are assumed. Indianapolis Trac. & T. Co. v. Hottelav \[Ind. App.\] 82 N 986. All dangers incident to the employment are assumed, whether known or unknown. Id. It is an employee's duty to inform himself of the ordinary risks of his employment, and if he fails to do so he will nevertheless be held to have assumed them. Choctav, etc., R. Co. v. Thompson \[Ark.\] 100 SWV 83.

95. A servant who consented to work in a place which exposes him to known danger assumes the risks. Westman v. Wind River Lumber Co. \[Or.\] 91 P 478. Lincman assumm-Dicycle's duty to inform himself of the ordinary risks of his employment, and if he fails to do so he will nevertheless be held to have assumed them. Choctav, etc., R. Co. v. Thompson \[Ark.\] 100 SWV 83.

01. Danger to brakeman in boarding and dismounting from train In motion assumed. Creola Lumber Co. v. Mills \[Ala.\] 42 N 1019, & 264. Newman assumes ordinary risk attendant upon leaving place of work. Southern Coal & Coke Co. V. Swimmer \[Ala.\] 42 N 808. Experienced brakingmen entering employ of railway company, one of whose duties is to switch cars, has an opportunity to observe whether frogs are blocked or unblocked, and unblocked frogs are an obvious risk which he will presumed to be known to and undertaken by the servant when he enters into the employment.97 The occasional negligence of fellow-servants is an assumed risk within the meaning of this rule,98 but not the risk arising from a servant's incompetency.99 Negligence of the master,1 or of one who is, by virtue of statute or common law, a vice-principal,2 is not an assumed risk. Unusual or extraordinary risks, unknown to the servant,3 or which are encountered, under direction of the master,

be attributed only to the ordinary risks of the employment. Brady v. Kansas City, etc., adopted to avoid injury, and, in the case at bar, from years of experience in such work, and the dangers incident thereto assumed the risk. Hager v. Terminal R: AsS#, 207 Mo. 302, 105 SV 744. Employed clearing debris from pillar and risk of injury from brick falling from scaOf above on which men were engaged in encasing the pillar in brick. Willis v. Thompson-Starrett Co., 54 Mice. 28, 104 NYS 668. Danger of becoming entangled in co wheels in a mill ?s incident Sibbert v. Scotland Cotton Mills \[N. C.\] 59 SE 79. Employo on repair train assumes risk of getting on and off at irregular stops where there are no stations or facilities. Peterson v. Philadelphia, etc., R. Co., 217 Pa. 401, 66 A 660. Flagman held to have assumed risks incident to uncoupling cars. Lyon v. Charleston, etc., R. Co., 77 S. C. 328, 58 SE 12, Risk of sudden jerk of train due to defective coupling pin chain held to have been assumed by switchman. Norman v. Southern R. Co. \[Tenn.\] 104 SW 1088. Plaintiff was injured while assisting in putting a hand car on the track, using unnecessary force to avoid lifting. Held, if this was customary method and plaintiff knew it was, he assumed the risk. St. Louis St. V. R. Co. W. Briscoe (Tex. Civ. App.) 15 Tex. Ct. Rep. 171, 100 SV 898. Risks do defects in a rope used in loading a vessel which could not have been discovered by ordinary inspection are assumed. Suderman V. Woodfurf \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 778, 105 SV 217. Employo in charge of gin stand held to have assumed risk of his hands getting caught in saws. Thompson v. Plant-er# Compress Co. \[Tex. Civ. App.\] 166 SV 470. Express messenger, as to his employer, assumes risks incident to travel on railway trains. Robinson v. St. Johnshury, etc., R. Co. \[Vt.\] 66 A 814. Held thad driver in mine assumed the risk of tail chain loosening and catching on some object, thus stopping car suddenly while it was going down a steep grade. Lumagnhi Coal Co. v. Bartlett, 128 Ill. App. 275. Danger from heavily charged un-insulated feed wires hanging below telephone wires in violation of custom of hanging them above held not one of the ordinary risks. Postail Tel. Cable Co. v. Likes, 225 Ill. 249, 80 NE 136. 97. A servant tacitly agrees to assume the risks ordinarily incident to the service, which are not limited to those ordinarily incident to his work, which an ordinarily prudent person of his experience would have discovered. Instruction limiting risks assumed to those incident to his work is erroneous. Learary v. Anaconda Copper Min. Co. \[Mont.\] 92 P 477. A miner engaged in making an unsafe place secure is in general required to look to his own safety. Antich Coal Co. v. Rockey \[Ind.\] 82 NE 76. One who enters such an employment is presumed to have been made aware of the dangerous outside the service which the servant was hired to perform,\* and which ordinary care in the performance of his duties would not disclose,\* are not assumed. Risks arising from latent defects, not discoverable by the use of ordinary care on the part of the master and unknown to him, are assumed, though no knowledge of the defect or appreciation of the danger by the servant is shown, such risks being classed as incidental.\* Unavoidable accidents are assumed risks.\*

\_Known or obvious dangers._See * C. L. \*01_-Risks which are actually known to the servant,\* or which are so obvious\* that a person of the same age, capacity, and

switch which had been recently moved and * employment. Perrotta v. Richmond Brick

of the position of which he had not been Co., 108 NYS 10.

warned. Held he did not assume the risk.

Boston & M. R. Co. v. Gokey \[C. C. A.\] 149

F 42; Schminkey v. T. M. Sinclair & Co.

(Iowa) 114 NYS 61. An employee wheeling

- wheeling narrow along a narrow runway susx- 473.

pended in the air does not assume risk

- incident to an effort to free his barrow

which caught on an 'obstruction on the

runway. Morrisey v. Dwyer, 105 NYS 821.

An engineer with authority to direct a

- fireman when to open a valve to empty the

- roller does not assume risk of his doing so

- windout directions. Texas, etc., R. Co. v.

Walton \[Tex. Civ. App.\] 19 Tex. C. Rep.

651, 104 SWV 415. Brackeman on logging

train held not to have assumed the risk

- of violent jerking of train. Gulf, etc., K.

Co. v. Harrison \[Tex. Civ. App.\] 19 Tex. C.

- 82 NE 97. A servant assumes the risks from

- heat defects in appliances which the mas-

are not assumed unless known or plainly

- is not made aware of through the exer-

- close reasonable care, and where the mas-

- fire furnishes the appliances in general use

- as the best protection against known dan-

- are, it cannot be said that the was negligent

- in not providing against a hidden danger of

- which he knew nothing. Frank v. Heran-

Co., 79 Vt. 469, 65 A 529. Risk incident

- whether lineman assumed damages created

- by heavily charged uninsulated wires, of

- which he had no knowledge, is for jury.

how to avoid it, or unless it was plainly

- postal Tel. Cable Co. v. Likes, 225 Ill. 249,

observable. Bolton v. Ovitt \[Vt.\] 67 A 881.

- can N 165. A servant assumes such risks as

- reasonable care on the part of the master

- will not obviate. Illinois Steel Co. v. Baylor,

- will not, 73. Servant must be held to as-

- cannot be obviated by any reasonable care.

Drown v. New England Tel. & T. Co. \[Vt.\] 68 A 801. Whether danger was obvious

- be held for jury. Id. The risk by a conductor

- of a train of injury by derailment because

- of unsoundness of ties. Dunbar v. Central

- Ut. R. Co. \[Vt.\] 65 A 528.

- Plaintiff did not assume risk of step-

- plan on roof from which boards had been

removed, and the fact concealed by replacing a covering where he was directed to

- cross the roof and was not warned as to its

- condition. Wilson v. Kansas City So. R.

Co., 152 Mo. App. 667, 98 NW 465. Risks

- encountered outside of the line of work

which the servant is employed to perform,

under the employer's order, are not as-

- aimed. Coilting Stone Co. v. Ridge \[Ind. App.\] 80 NE 441. Under Laws 1902, p. 1750,

- providing that an employe is presumed to

- has knowledge; risk arising from de-

- has a knowledge; risk arising from de-

- to the work outside his employment does

- not assume risks incident to such outside

- while assisting in putting a hand car on the

- 10 Cur. L. --48.

754 .

track, unnecessary force being used in order to avoid lifting the car. Heid, he assumed risk of method used, if it was customary to his knowledge, St. Louis S, W. R. Co. V. (drynico (Tex): 17 Tex. Ct. Rep. 174, 99 SVC).

1020. Dangers known or of which the servant is charged with notice are assumed, to be defective and dangerous held to have Corrigan v. West Division & S. C. \[Wiss\].

112 NW 441. Incident risks and extraordinary hazards of which the servant has knowledge are assumed. Switzer v. Illinois

Steel Co., 231 III. 46, 82 NS 168. Incident

and known risks are assumed. Atoka Coal & Min. Co. v. Miller \[Ind. T.\] 104 SVC 553.

A servant who knows of the absence of safe-fellow-servants, without complaint or promgurds and goes to work assumes the risk.

Id. Servant who had been using a scraper

for two hours, and knew that a latch on it

v. Loesley \[Kan.\] 99 990. Painter painting

occasionally failed to catch, assumed the risk.

International G. R. N. Co. V. Hall \[Tex\].

dinner of touching the iron swab used by Civ, App. 19 Tex. Ct. Rep. 500, 128 SVC 740.

Sharvan whose eye was injured by a rivet

v. Cranford, 108 NYS 142. Dangers incident

thrown from a belt by breaking thereof, to operating push car in railroad yards.

who had needed that belt and others, and, as

knew of the liability of the belt to break

www 759. Where an employee was carrying

and throw brands or hooks, held to have assumed

sumed the risk. Receivers of Kirby Lumber

Co. v. Pollonter \[Tex. Civ. App.\] 19 Tex. Ct.

Rep. 513, 103 SVC 439. Miner, notwithstand

lng objection to mining in a particular man

ter because of his knowledge that it is more

plate. White v. Owosos Sugar Co., 149 Mich.

dangerous than another method, assumes the risk if he proceeds to work. Kirby, v. Hill

23 years of age, of high intelligence, and side Coal Co. V.S.V. 108 SVC 378. V. Voluntary

familiar with machinery, held to have as-continuance of service after knowledge of

the dangerous character of defects in man

machinery in a bakery. Sutton v. Des Montines

chinery precludes recovery by servant, Mor

dden Frog & Crossing Works v. Eriges, 218 III.

elighton years of age held to have assumed

246, 81 NS 862. Cannot recover for injuries

the risk of danger from a revolving shaft

caused by defects in saw and appliances

which were known to him. Erigen J. & E. R. Heid \[F. Safety Folding Bed Co., 149 Mich.

Co. v. Maye, 221 III. 858, 88 WEB 877. It's

23, 14 Pet. Neg. N. 412, 112 NW 712. WOrk

Ill. App. 12. He assumes the risk arising

man at foot of incline, who knows that other

from any defect of which he had knowledge

men are loosening the earth above so that

Illinois Cent. R. Co. V. Fitzpatrick, 227 Ill.

478, 81 NE 629. Servant held to assume risk

cashpath by sliding earth. OrNeil v. Great

arising from defect in floor of which he had

Northern R. Co. \[Mim.\] 112 NW 625. Street

knowledge. Riley v. American Steel & Wire

cor conductor assumes risk of danger from

Co., 129 III. App. 123.

p. Valentine v. Chicago City R. Co., 127 III.

he has been on the run several months and

App. 436; Christiansen v. William Graver

knew that the ends of the ties near the pole

Tank Works, 126 Ill. App. 85, 84, and 233 Ill.

142, 79 NE 97. Employe, who without a light

went into a dark bin connected with a chute,

126, 83 NE 623. Where a servant working

and while attempting to start coal down the

chute a portion on which he was standing

pexics the danger as well as the foreman,

save way and carried him into the chute,

he assumes the risk. Sandsky Portland Ce.

held to have assumed the risk. Kentucky &

Ind. Bridge & Ch. Co. V. Melvin, 31 Ky. L. R.

1959, 148 SVC 334. Risks which are apparent

discovered by the exercise of ordinary care, and obvious are assumed. Brady v. Kansas

City, etc., R. Co. V. \[Holstlaw \[Ind.

1978 Apr.\] 82 NE 986. All open and known risks

Where one moving a heavy truck was in-

jured by a board leaning against a post fall-

lng on him and the situation of the board

was obvious and known to him and danger

could have been avoided, he assumed the

Co. V. Matthews, 124 Ill. App. 89. The fact

ist. Avery road yards for over three years and a brake-man had been in the employ of the company for years and had been accustomed to pass it regularly on his train, held he assumed the risk of the pole in its permanent edition. Bradley v. Central Vt. R. Co. (Mass) 82 NE 44. A night watchman assumes the risk of coal being put in bins, near which he makes his rounds, in such manner and quantities that a piece may fall on him as he is passing. Lapte v. Woronoco St. R. Co. (Mass) 82 NE 9. Employ injured by striking his head on piece of board permitted to hang in shed driveway held to have assumed risk therefrom, where it was there when he entered the employment sixteen months before. Carroll v. Boston Coal Co. \[Mass.\] 81 NE 296. Experienced servant who has been in the place for years held to have assumed risk of danger from set screw on a revolving shaft, where the set screw had been there for years and could be seen when the shaft was at rest. Mutter v. Lawrence Mfg. Co. \[Mass.\] 81 NE 263. An employee repairing the track of a trolley road in a mine, who knows the trolley wire is low and who has once been shocked by coming in contact with it, assumes the risk of injury from it. Burke v. Union Coal & Cooke Co. \[C. C. A.\] 157 F 178. Risks and danggers known of and appreciated are assumed. Id. Defect in machinery and unsafe condition of floor known to the servant held to have been assumed by him. Short v. Cherokee Mfg. Co. \[Ga. App.\] 69 SE 1115. Employe who had worked several days in quarry rock worked, and how device used to carry rock worked, and how it was defective, assumed the risk of a stone being dropped. Day v. Houston de T. \[H. Employe cannot recover for in-C. R. Co. \[Tex. Civ. App.\] 18 Tex. Ct. Rep.\] 102, 101 SW 1044. Miner assumes risk of roof falling, if he knew of the danger or ought to place of work. Toler v. Swan-Day Lumber have known it in the exercise of ordinary Co. \[C. A.\] 80 Ky. L. R. 810, 99 SW 625. Evidence care. Big Hill Coal Co. v. Abney's Adm'r, 30 Ky. L. R. 1804, 101 SW 394. Plaintiff held to have assumed risk of injury from defects well known to him. Lee v. Dobson, 217 Pa. \[H. Employe cannot recover for in-549, 66 A 557. Plaintiff injured while guiding the tongue of a heavyragon over a defect-live alley held to have assumed the risk. Lindemann Box & Veneer Co. v. Thompson, 137 Ill. App. 134. Risk from obvious defects or danggers are assumed, Sparks v. River & Harbor Imp. Co. \[N. J. Err. & App.\] 67 A 600. Obvious risks are assumed. One working on the raillroad track assumes risk of injury from passing trains. Precodnick v. Lehigh Valley R. Co. \[N. J. Err. & App.\] 65 A 1047. Where evars of a house had projected over a railroad track for fifteen years, and a brakeman knew of them and knew that there was room for one standing on a car to pass under them, but he approached the place with his back turned and was struck by the eaves and knocked off, held he assumed the risk. Southern R. Co, v. Carr \[C. C. A.\] 153 F 106. Employe assumed risk of injury from moving an obvious 'bit and rollers. Hicks v. Claremont Paper Co. \[N. H.\] 65 A 1075. Where an employee working on a building placed his hand on the track of a traveling oranet, held he could not recover as the risk of injury from such appliance was an obvious one. Ball v. Ransome Concrete Mach. Co. \[N. J. Err. & App.\] 68 A. Employe, to \[H. Employe without his working and the manner of pulling boxes which fell on him. McCormrick Harvesting Mach. Co. v. Gabris, 130 Ill. App. \[H.\] 624. Held to have assumed risk of injury by reason of the fact that freight elevator used by him had no gate at the shaft opening. Western Union Tel. Co. v. Gilteran, 126 Ill. App. 423. The servant is held to assume the risk arising from defects in simple and ordl-co. \[N. J. Err. & App.\] 68 A. Employe, to \[H.

756 , MASTER AND SERVANT SS 3F. 10 Cur. Law.

experience, exercising due care, would have known of them,10 are also assumed by a servant who continues in the employment with such actual or implied knowledge of the danger.11 But mere knowledge of a defective.condition will not alone charge the servant with the assumption of a risk ; it must also appear that he knew and appreciated the danger arising from the defect.12 Dangers which are as well known

damger. Postal Tel. Cable Co. v. Likes, 225

Co., 233 Ill. 126, SS 3NE 533. An experienced

III. 249, 80 NE 136.

scvant who knows that a certain number

10. Dangers which the servant should dis-

of men are necessary to perform the work

cover by the exercise of ordinary care in

in which he is engaged, who goes to work

assumed. Hardy v. Suphur Min. Co. \[N. J.

with full knowledge of the limited number

Law\] 67 A 177. Experienced railroad man

who knew of defects in turntable led to

for an injury resulting from failure of the

have assumed risk due to its stopping suddenly. Currie v. Missouri, K. & T. R. Co.

Cincinnati Gas & Elec. Co. v. Johnston, 76

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 586, 106 SW

Diho St. 119, 81 NE 155. Barkema injured

1149. The rule that a servant of mature

by reason of defective coupling lever on

years and ordinary intelligence and experi-

caboose had been in company's employ a

ence will be presumed to know and compre-

year, and had frequently used the appliance

hend obvious dangers does not apply where

in the same condition as at time of injury.

the circumstances require a contrary infer-

Eld, he assumed the risk. Trinity & B. V.

ence. Meade v. Ashland Steel Co., 30 Ky. L.

R. 1164, 100 SW 821. Perlis indicate, obvious,

Rep. 245, 701 SW 455. Plaintiff, a carpenter,

or which may be discovered by exercise of

when employed, was told he might be called

ordinary diligence, are assumed. Rumely Co.

on to do other work besides carpentering.

v. Myer \[Ind. App.\] 82 NE 97. An employee

cannot be heard to say that he did not ap-

continuing in the service, he assumed the

preciate risk or danger, where defects were

known risk of his tools chipping off. Denver

obvious and danger would be apparent to an

& R. G. R. Co.'v. Sporleder \[Coi.\] 89 P 65.

ordinarily prudent man. Burke v. Union

A servant who continues his work without

Coal & Coke Co. \[C. C. A.\] 157 P 178. Risk

object after notice of the dangerous

of injuries caused by defects which are ob-

vacues to a person of ordinary intelligence

assumes the risk. Meade v. Ashland Steel

Schillinger Bro. Co., v. Smith, 225 Ill. 74, 80

Co., 235 Ky. L. R114, 100 SW 821. If man

NE 66, aff. 128 Ill. App. 30.

"1A. Risk due to exposed condition of a hole

known to the servant, who with such know-

in the floor assumed by continuing work.

Aeme Box Co. v. Gregory \[Tenn.\] 105 SW 350.

will not be entitled to recover for injury

Master not liable where servant continues to

use machinery with knowledge of defects.

Bowring v. Wilmington Malleholz Iron Co.,

6 Pen. \[Oel.\] 534, 66 A 869. If a servant

knows of the incompetency of a fellow-

servate, or has equal means of knowledge with

the master, and continues in the service

without objection, he assumes the risk. First

Nat. Bk. of Montgomery. v. Chandler, 144 Ala.

Pilece of work. Lavery v. Hammrick, 61 V.

35, 39 S 822. Employee assumed risk of con-

thinning to use defective chisel with knowl-

edge of the defect. Vanderpool v. Patriffe

\[Neb.\] 112 NW 318. Servant held to have assumed risk of burr on drill chipping off

when it was struck, where he used it vol-

untarily, and had used drills enough to

know the danger. Kellogg v. New York Editors

on Co., 105 NYS 398. A servant who con-

tinues in an employment with knowledge of

danger assumes the risk unless he is induced

to remain by a promise by the master to

Immediately repair the defective condition.

Jones v. Burnham, 217 Pa. 286, 66 A 523.

Where servant used ladder in ordinary em-

ployment, he assumed risk of its slipping

because of the iron points upon it becoming

dull. Sheridan v. Gorham Mfg. Co. \[R. I.\]

66 A 576. Risks which arise from defects

which are obvious and which arise by failure

Co. v. Hore \[C. C. A.\] 155 F 62. To charge

asamped by entering and continuing in the

setv to the servant as to the master, or which the servant has equal opportunity with the master to observe, are assumed.13 Risks which are unknown to the servant, and which due care on his part would not have disclosed, and which are not incidental to the employment, are not assumed.14 Whether a particular risk was known or

with the risk unless there is also an appreciation of the danger, Rogers v. Roe \[N. J. Err. & App.\] 68 A 408. On the question of whether a servant assumed risk of falling from a platform not provided with railings or banisters, the fact of his youth held ad-missible. Alicken v. Rhodhins Mfg. Co. \[N. C.\] 59 SE 696, Servant must know or have means of knowing that the defect renders the appliance unsafe. George B. Swift Co. v. Gaylor. 229 III. 330, 82 NE 299. The servant must appreciate both the risk and the danger arising therefrom. Chicago, etc., R. Co. v. Rathnau, 124 III. App. 427. Brackman held not to assume the risk arising from hole in the right of way of which had no knowledge. Illinois Cent. R. Co., V. Heath, 228 III. 312, 81 NE 1022. Held that servant removing molten metal from a converter in obedience to an order did not assume the risk arising from the escape of ore of which he had no knowl-edge and which became ignited by coming into contact with the metal. American Brake Shoe & Foundry Co. v. Hank, 129 III. App. 188. Rule that where servant has equal opportunities with the master discovering dangerous not apply where defects were later and known to the master. Postal Tel. Cable Co. v. Likes, 225 II. 249, 80 NE 186. Servant does not assume risk incident to wrrecking a building where, when he is ordered to remove debris therefrom, he has no knowledge of the nature of the work being done therein. American Car & Foundry Co. v. Hill, 226 II. 287, 80 NE 784.

18. George B. Swift Co. v. Gaylord, 229 III. 330, 82 NE 299; Elgin, J. & E. R. Co. v. Myers, 226 II. 358, 80 NE 897, rvg. 129 III. App. 12. Knowledge of defect implies knowledge of damages arising therefrom. Elgin, J. & E. R. Co. v. Myers, 226 II. 358, 80 NE 897, rvg. 129 III, App. 12.

01. Servant injured by box car door falling on him held not to have assumed the risk. Houston, etc., R. Co. v. McEtale (Tex. Civ. App.) 20 Tex. Ct. Rep. 161, 105 SW 1149. Inexperienced servant loading and manipulate-ing ore cars on gravity track without proper instructions held not to have assumed risk. Granrus v. Croxton Min. Co., 102 Minn. 825, 113 NW 693. Risk of danger from defective electric lamp in basement not assumed by servant whose duties did not take him there but where he was sent on one occasion when he was injured. Sures v. Stevens Mfg. Co. \[Mass.\] 82 NE 694. Complaint alleging that master negligently permitted a barreg's gun-wale along which servant was required to walk to remain defective, that plaintiff did not know of such defect, having entered the employment the day before he was injured, does not show assumption of the risk. Mongnable River Consol. Coal & Coke Co. v. Hradsaw \[Ind. Sup.\] 81 NE 492. Where work-man lost an eye by reason of chips flying from steel because of defective punch and die, held the servant did not assume the risk of danger of chips flying because of the defect, since it was not observable. American Smelting & Refining Co. v. McGee \[C. C. A.\] 157 F 69. Danger from the breaking of a belt is not assumed, though servant knew that it had been used some time and spliced, where it did not appear that the servant knew how long a belt should last or that the splicing was weakened it. Northern Pac. R. Co. v. Wendel \[C. A.\] 165 F 386. A servant in operating a machine by standing at its side instead of behind it, where he should stand, does not assume the risk of breaking of a belt where there was no obvious danger-in the position taken while the position behind the machine was obviously dangerous from other causes. Rathnau, 124 III. App. 427. Brackman held \[I. Risk of injury from a defective machine is not assumed if the danger is not so obvious as to be apparent to a person exercising ordinary care. Bowen, Jewell & Co. v. Adams, 129 Ga. 688, 69 SE 795. Evidence in-sufficient to show assumption of risk by brackman injured while setting defective brake. Gulf, etc., R. Co. v. Griggs \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 251, 101 SW 473. Employe unloading car on sidetrack did not assume risk of sudden and violent jolt by other cars being switched, though he knew that switching operations were in progress on the track. Missouri, etc., R. Co. v. Smith \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 954, 101 SWV 453. Risk of injury from defect in chain conveyor of sawmull not assumed when defect was unknown to servant. Dobsloff v. Nichola-Chisolm Lumber Co. \[Minn.\] 112 NW 218. Operator of lathe did not assume risk arising from faulty tempering of part of lathe which was not observable, he 758 MASTER AND SERVANT SS 3F. 10 Cur. Law.

ought to have bczu known to the servant, within the meaning of these rules, is ordinarily a question of fact \[15\] to be determined by reference to the age, capacity,

15. Schillinger Bros. Co. v. Smith, 225 ILI.

Question whether risk of danger due to ab-74, 80 NE 65. Want of knowledge may be

sence of step from work car was assumed inferred from circumstances. George B.

by street car employe. Flynn v. Connecticut

Swift Co. v. Gaylord, 228 113, 386 128 295.

Valley St. R. Co. \[Mass.\] 82 NE 1085. Whether

Held to present question for jury whether risk was obvious and assumed. Heforeman

defect in scaffolding was patent. Schillinger

v. Fall River Iron Works Co. \[Mass.\] 83 NE

Bros. Co. v. Smith, 225 ILI, 74, 80 NE 65, afg.

S. Where an employ was injured while ad-128 ILI. App. 80. Evidence held to present for

justing a belt which was out of order, and jury question whether servant assumed the

engine was not stopped, held a question for risk in using defective machine with which

the jury whether the work was not inher- to wind wire upon spools. Western Ellec Co.

onity dangerous and involved liability of ac-v. Prochaska, 129 11. App. 855. Whether

editor of some kind. Guilmartian v. Solayay

danger to employe unloading ties from a box

Process Co., 189 N. Y. 490, 82 NE 725. Evi-car was incident or obvious. St. Louis S. R.

dence held sufficient to justify finding that

Co. v. Thornton \[Tex. Civ. App.\] 18 Tex. Ct.

sest, 108 SW 437. Whether telephone

condition of trench in which he was work-employe, who was directed to the an electric

ing nor an equal opportunity to ascertain its

light wire to an insulator, assumed the risk

condition. Dalton v. Ogden Gas Co., 126 IL.

Cumberland Tel. & T. Co. v. Graves' Adm'x,

App. 502. Employers' liability act (Laws

31 Ky. L. R. 97, 104 SW 586. Where servant

1902, p. 1748), expressly provides that the

was killed by giving way of an iron rod

question of assumption of risk by contin-which he held while coasing leg of a build-

vance in the employment with notice of the

risk is one of fact. Guilmartian v. Solayay

danger was so patent that he should have

Process Co., 189 N. Y. 490, 82 NE 725, Whether

known of it held for the jury. Woods' Adm'x

conductor assumed risk of incompenatory of

v. Davless County Distilling Co., 31 Ky. L. R.

mormorman. Cooney v. Com, Ave. St. R. Co.

511, 102 SW 813. Whether risks incident to

(Mass.) 81 NE 905, Where an apprentice was

operation of a rily as wy were assumed. Cox

Killed by an explosion of a steam pipe and it

v. Capitol Box Co. \[Wash.\] 91 P 655. Whether

did not appear that he had any mechanical

dangers were open and obvious held for

knowledge, whether he realized the peril of

jury, where inexperienced awmull employe

his situation held for the jury. Baldwin v.

was injured while performing duties of an

American Writing Paper Co. \[Mass.\] 82 NE L.

olfer. \[Wentman v. Wind River Lumber Co. \[Oo.\] 91 P 478. A notice to a brackeman that

of walls of trench servant was digging held

there, were obstructions dangerously near

for jury. City of Columbus v. Allen \[Ind.

the track that he was required to look

Appl. 31 NE 114. Where one was injured by

for held not to show as a matter of law that

dearimment of a logging engine on a private

he assumed risk of being crushed between

loggma road, after he had accepted employe-

a car and a platform, where he had gone

ment for the day with knowledge of the

line of his duty. Hemmingsen v. Chicago,

character of the road and knew that it

etc. R. Co. \[Wis.\] 114 NW 785. Whether

would be subjected to unusual strain on that

servant assumed risk in taking hold of an

facandescent light charged with a deadly

which injury resulted was for the jury. East-

current. Grimm V. Omaa Ellec. L. & P. Co.

ern & Western Lumber Co. v. asary \[C. O.

\[Nob.\] 114 NW 769. Whether min assumed

A.157 F 852. A workman injured by the

risk of being given a defective fuse by shift

blowing out of a water block from a blast

box. Laltin v. Shenjep furnace Co.

furnace held not chargeable as a matter of

\[Min.\] 114 NW 284. Whether a workman in

law with having assumed the risk. National

a quarry assumed risk of insufficient appl-

Steel Co. v. Hore \[C. C. A.

10 Cur. Law. Master and servant SS 3F. 759

intelligence, and experience of the employe,16 and the facts and circumstances of the case. The question of assumed risk becomes one of law only when the evidence and the inferences to be drawn therefrom are such as to preclude any difference of reasonable minds.17 The fact that a servant is inexperienced does not relieve him from the assumption of obvious risks.18

Footnote 17: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 18: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 19: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 10: The author is grateful to the anonymous referee for the support of the National Science Foundation.

760

MASTER AND SERVANT SS 3F. 10 Cur. Law.

an independent inspection or examination of his appliances or place of work.20 In other words, negligence of the master, or of his representatives, is not one of the ordinary risks which a servant assumes,21 ordinary or incidental risks being only under foreman's instructions, and had a flight to suppose that stones would not be that employee assume all risks is immaterial swung over him without warning. Held, no contributory negligence shown. Morena v. of a city ordinance, as' a company has no Winston, 194 Mass. 878, 88 -NE 473. Longwer to relieve itself by contract from the shoreman, injured by blank which fell from upper hatch while at work below, held not R. Co., V. Lawrence (Ind.) 82 NE 768. In to have assumed the risk as a matter of law, where he was working under foreman's to incur risks from which orders and had no authority to disturb the upper hatch. King v. Ofthink & Sprague

Schedording Co. \[Wash.\] 88 P 75. When

inf to provide a safe place and appliances ordered to work in a designated place, unless the danger is obvious, a servant may as- some that it is reasonably safe. Myreen v.

Que to master's negligence, which are not Smith, 1971, All. App. 426, Railway

so obvious that their presence should be known, not assumed. Chamberland Tel. & T.

nation for hidden defects, Nelson V. Potter-

Co. v. Graves' Adm.'s 31 Ky. L. R. 972, 104

son, 229 Ill. 240, 82 NE 229; Cavanaugh v.

Witte Gas & Gasoline Engine Co., 123 Ill.

of an employer to furnish safe appliances App. 571; George B. Swift C. O. Gaylord, 229

and the results which flow from such fall-

111. 330, 82 NE 299. Servant is not required to examine the braces of a derrick and calic.

are assumed. Roff V. Summit Lumber Co.,

culate whether they are sufficiently strong.

119 La. 571, 44 S 802. Where an electric

Goorge B. Swift Co., Gaylord, 121 M. App. 426, 111 Arp.

121. Servant is not bound to make a careful

001. Inspection of the place where he is to work. Myreen v. Smith, 127 Ill. App. 426, Railway

ing a guy wire and permitting it to lean

employe is not himself bound to inspect

over the track. Bradley v. Central Vermont

track. Chicago, etc., R. Co. v. Birk (Tox.) 82 NE 44. Servant held not

Civ. App.) 18 Tex. Ct. Rep. 72, 99 SW 753.

to assume risk of injury due to defects in

Tracklayer and regnier, temporarily endangered on-

coday road over which he haulet logs.

gaged in driving car, held not negligent in

Goss v. Goss, 102 Minn. 346, 113 NW 690.

failing to inspect track for obstruction as

Brakeman held not to have assumed risk due

he had a right to assume that track was

to defective telltale before a low bridge,

clear. Central Coal & Iron Co. v. Walker,

though he knew of the location of the

30 Ky. L. R. 621, 99 SW 709. An employee

bridge and voluntarily changed the cus-

does not assume a risk by reason of failure

tomary method of inspecting the train.

to discover a defect by an examination

Whitehead v. Wisconsin Cent. H. Co. (Minn.)

which he did not make and could not, under

114 NW 254. Workman in planing mill held

circumstances, have been reasonably ex-

not to have assumed risk of breaking of a

pected to make. Monanghelak Hivor Con-

shock was used in ascending the wall

sol. Coal & Coke Co. v. Hardaw (Ind. App.)

of the building for the purpose of adjusting

79 NE 1062. Employe did not as matter of

a belt tightener. Lee v. Will Rice number

law assume risk of using scaffold (which

Co., 102 Minn. 74, 112 NW 878. Risk of mas-

fully without inspecting it. Parker v. Fair-

ter's negligence is not assumed. Kirby v.

banks-Morse Mg., Co., 130 Wits. 525, 110 NW

Manufacturer' Coal & Coke Co. (Mo. App.)

409. Plaintiff was injured by the fall of

106 SW 1069. Where negligence of the mas-

a barrel from a joint above the floor of the

ter is the producing cause of the injury, the room where she was working. Held she

assumption of the risk by the servant can-

did not assume the risk, being under no

100 be an issue in the case. Mack v. Chi-

duy to inspect to see if the barrel was

cago, etc., R. Co., 123 Mo. App., 531, 101 SW

secured fastened. G. A. Duerler Mfg. Co.

142. Servant employed to deliver cases of

v. Eichhorn (Tex. City, App.) 98 SW 715.

bee held not those which dde care on the part of the master would not have obviated.22 But this rule is usually limited in its application to breaches of the master's duty unknown to the servant.28 If a neglect of duty by the master is known to the servant,24 and he continues the employment without complaint, he assumes the risk of so doing, notwithstanding the want of due care by the master, unless he was justified in believing that he could continue with safety by the exercise of due care,25 the danger not being so obvious and imminent that an ordinarily prudent person would not have encountered it.26

Footnote 28: The author would like to thank the anonymous referee for his constructive comments.

Footnote 29: The author would like to thank the anonymous referee for his constructive comments.

Footnote 30: The author would like to thank the anonymous referee for his constructive comments.

Footnote 31: The author would like to thank the anonymous referee for his constructive comments.

Footnote 32: The author would like to thank the anonymous referee for his constructive comments.

The servant may also assume that work will be done in the customary manner and that rules will not be violated.27

Footnote 27: The author is grateful to the anonymous referee for the support of the National Science Foundation.

\_Reliance on orders or assurances of safety.\_See s C. L. 809.--A servant may rely to a reasonable extent upon the superior knowledge of the master or a superior, and may assume that he will not be exposed to unusual or unnecessary danger.28 Hence, he does not assume the risk of executing an order of a superior,29 or of continuing his work after an assurance of safety by a superior,30 unless the danger is known and appreciated by the servant,31 or is obvious and imminent and sucl. that an ordinarily prudent person would not have encountered it under the circumstances.32

Footnote 28: The author is grateful to the anonymous referee for the support of the National Science Foundation.

\_Reliance on promise to repair, after complaint.\_See s C. L. 811.--Promise of master to remedy defects creates an implied agreement that servant shall not for a reasonable time thereafter be held to have assumed the risk,33 unless the appreciated dan * 10 Cur. Law. Master and Servant $ 3F. 763

ger is so imminent that a man of ordinary prudence would refuse to encounter it.\[34\] The complaint to master must be based on apprehension of injury \[85\] and must be made with intent to quit work unless defect is repaired,\[38\] and the continuance of service must be in reliance upon promise to repair,\[37\] but it is not necessary that such intention be declared in terms,\[38\] and whether it was made with such intent is a question of fact.\[39\] It must also appear that the promise made, or assurance given, indicated that some change would be made for the better.\[40\] A promise to substitute apother appliance for one which is already reasonably safe is not within the rule \[41\] nor to a promise of the master to remove the servant to a safer place of employment,\[42\] nor where the appliance toward which the promise is directed is a simple implement with which the servant is entirely familiar.\[43\] To bring a case within the operation of this rule, it must appear that a promise to repair was in fact made.\[44\] What is a reasonable time depends upon the circumstances of each case

- who had promised to furnish another, there was no assumption of risk. Boney v. Atlantic, etc., R. Co. \[N. C.\] 58 SE 1082. Where employer complained to company that chain justly finding of jury that plaintiff conquest in loading logs on car was defective, and was promised that it would be repaired, and he remained in the service relying on the promise, he did not assume the risk.
- Birk et. Carolina N. R. Co., 144 N. C. 242, 56 SE 910. Servant complained that machine was dangerous, and master told him to continue work and machine would be repaired in two days. Two hours later plaintiff was injured. Held, master assumed the risk.
- Aktiman V. Schwab Mfg. Co., 54 Misc. 243. 104 NYS 349. Where servant complained of an appliance, and his foreman promised to give him something better and requested him to work until the substitute could be made, the master is liable for all injuries resulting from the servants' careful use of such appliance during a reasonable period.
- Shea v. Seattle Lumber Co. \[Wash.\] 91 F 623. 34. Utah Consol. Min. Co. v. Paxton \[C. C.\] 38, 923. 38. 39.

and the time required for repairs.\[45\] Servant has an equal right to rely upon a second promise to repair.\[46\] The rule under discussion applies to dangers arising from incompetence of fellow-servants whom the master has promised to replace with competent employees.\[47\] A promise to repair does not relieve the servant from the duty of exercising ordinary care for his own safety nor deprive the master of the defense of contributory negligence.\[48\]

\_Risks created by servant.\[See 8 C. L. 913--A servant who unnecessarily adopts a dangerous method of doing work,\[49\] or who voluntarily and for purposes of his own undertakes work outside the scope of his own duties,\[50\] assumes the risk of injury 45. One day held a reasonable time where repair of defect required the"placing of new tips in a power engine and defendant did not have them on hand at the time. Czajkowski\[51\] position of bolt and failed to use a guard for the shaft, which he could have used. No re-Min. Co. v. Paxton \[C. C. A.\] 150 F 114. Where a master promises to repair a defective application, risk due to such defect is not assumed for a reasonable time after the promise. Western Coal & Min. Co. v. Burns \[Ark.\] 104 SVV 585. Employe had no right to expect repairs on log carriage in sawmill 1072. Where a miner violated a rule they required an overhauling of the whole mill machinery. Crookston Lumber Co. v. Bontin \[C. C. A.\] 149 F 680. Where workman on de cutter complained to foreman that it was out of order, and foreman told him to go back to work and it would be repaired, and within half an hour thereafter was injured, held question of negligence was for the jury. Fox v. Kinnear Pressed Radiator Co. \[N. J. Err. & App.\] 67 A 1011. Whether two days was an unreasonable time to work with an unsafe appliance after a-safe one had been promised held for the jury. Shea v. Seattle Lumber Co. \[Wash.\] 91 F 623. Does not apply to runway consisting of planks laid on beam. Dausby Iron Works v. Nevin, 130 Ill. App. 475.

46. Czajkowski v. Robinson, 124 Ill. App. 97.

01. Williams v. Kimberly & Clark Co., 131 W1s. 308, 111 NW 481. Where complaint alleged an injury as the result of negligence of a fellow workman, and that plaintiff had "entreated" employer to discharge the negligent man and employ a competent one t edays before the injury, and the employer promised to do so, whereupon plaintiff remained, held complaint did not show on its face that plaintiff remained an unreasonable length of time. Id.

01. Crookston Lumber Co. v. Boutin \[C. C. A.\] 149 F 680.

01. Where two safe ways are provided for doing work and an employee chooses a third method which is dangerous, he assumes the risk. Perry v. Michigan Alkall Co. \[Alch.\] 14 Det. Leg. N, 747, 114 NW 315. An experienced brakeman who unnecessarily assumes a dangerous position on the plot of an engine not equipped with foothard or handohoids assumes the risk of injury. St. Louis, tc. Co. v. Conway \[C. C. A.\] 156 F 234. An employ may not take risks, and in case of ill results following to him charge them to the employer. Such conduct constitutes an assumption of risk barring recovery. McConnell v. Alpha Portland Ce- arising therefrom. Servant assumes any risk arising from his failure to obey orders.\[51\] A specific order to do an act in the usual and customary manner does not relieve the servant from the rule of assumed risk.\[52\]

(SS 3) \_G. Contributory negligence. Nature of defense.\_See * C. L. 918--Contributory negligence is a want of ordinary care on the part of the servant injured, which, concurring and combining with negligence of the master, produced the injury as a proximate cause \[88\] without which the injury would not have occurred.\[54\] When found to exist it bars a recovery in most jurisdictions.\[65\] The defense of contributory negligence is usually available, though the action is based on a violation of a statutory duty of the master.\[56\]

- 51. Servant who in disoedefence of orders climbs a semaphore pole without notifying operator cannot recover for injuries resulting from fall caused by operator turning arm thereof. Illinois Cent. R. Co. v. Braden, 128 Ill. App. 265.
- 52. Linderman Box & Veneer Co. v. Thomp-son, 127 Ill. App. 134.
- 53. Contributory negligence defeats recovery, though not sole proximate cause. Nash-ville, etc., R. V. Hayes, 117 Tenn. 680, 99 SV 862. It is a question of contributory negligence, and not of assumption of risk, where peril of a servant is increased by the master's negligence and the servant with knowledge of such negligence continues in the performance of his duty. Rogers V. Run-dell Mt. App.1 106 SVV 1096. The defense of contributory negligence rests on an omission of duty on the part of the servant, and is available lit proximately caused the injury, though the master was also negligent. Southern Pac. Co. v. Allen \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 202, 106 SV 441. Where act of brakeman in boarding car at the time, in the manner, and under the circumstances, was negligence, and this negligence was a proximate cause of or contributed to produce his injury, he could not recover, Galveston, etc., R. Co. v. Worcester \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 951, 100 SVV 990. Where bucket dropped into mine by reason of breaking of defective cable, deceased was not guilty of contributory negligence by reason of his failure to give signal that there was an obstruction in the shaft. Owen v. Kestof Min. Co., 104 NTYS 37. Contributory negligence on part of motorman injured in collision not shown, where his headlight went out and he put on a red light without informing his conductor, where it did not appear that the conductor could have done anything. Baldwin v. Schenectady R. Co., 118 App. Div. 441, 108 NTYS 514. Riding on a car backwards instead of forwards would not constitute negligence if increased danger was unknown to planting and was caused by defendants negligence. Southern R. Co. v. McGowan \[Ala.\] 48 S 378.
- 54. An instruction that contributor negligence would not bar recovery, unless without it the master's negligence could not have caused the injury, was not erroneous. Northern Pac. R. Co. v. Wendel \[C. C. A.\] 166 F 326.
- 55. Contributory negligence defeats recovery. Instruction approved. Pittsburg, etc., R. Co. v. Collins, 168 Ind. 467, 80 NE 415. If the servant's negligence, whether it consist of a negligent act or an omission to do an act, is the proximate cause of his injury,
      766 MASTER AND SERVANT SS 3G. 10 Cur. Law.

Degree of care required of servant.See $ C. L. 914.--Only ordinary care is required,97 that is, such care as ordinarily prudent persons would exercise under the same circumstances.98 Whether that degree of care was exercised in a particular

there could be no recovery because of failure

and as to which he had objected, a servant of the master to obtain a certificate that he

so doing is guilty of negligence, especially was physically able to perform the work as

if he increases the risk by his method of required by Laws 1897. 446. Fortune v.

using it. St. Louis, etc., R. Co. v. Kern \[Tex. Hall, 106 NYS 787. Defense of contributory

Civ. App.\] 18 Tex. Ct. Rep. 4, 100 SW 97.

negligence is available in action under Facer.

Where a servant with knowledge of the story Act of 1905. Bundy v. Union Iron

Mowrks \[Vash.\] 89 P 545.

to work at, under circumstances such that

Cournta Where a boy under 15 years of

age is injured while employed to oil machinery in a coal mine prohibited by Act

Mead v. Ashland Steel Co., 90 Ky. L. R.

June 2, 1891, the employer cannot set up con-

tributory negligence as defense. Lenahan

is not strictly applicable where a railroad

v. Pitton Coal Min. Co. \[Pa.\] 87 A 642.

employe is injured in the discharge of his

Where act of mine owner, causing injury,

duttes. Masterson v. Southern R. Co. \[Ind.

was willult under the statute, the contributory negligence of the servant is unavailable

as a defense. Kellyville Coal Co. v. String,

and produce, he ought to have discovered

1171. All. App.\] 115.

0001. Employees are under the duty of exer-

celsing ordinary care for their own safety.

Hryant v. Becbe & Ruwan Furniture Co.

In which he was injured. Interurban R. &

\[Neb.\] 110 NW #90. Contract requiring em-

ploye to examine appliances, etc., before

**Plaintiff held guilty of contributory neglige-**

sing them held to require only ordinary

**gence:** Experienced mire held negligent in

care; failure to discover defect in engine

clothing work after the master's failure

plot not negligence. Barschow v. Lake

to promptly furnish times to brace the

Shore, etc., R. Co., 147 Mich. 22, 83 D. Leta. Leg.

mise as work progressed. Manmonth Vein

N. 1063, 110 NW 1057. Whether employee in

Coal Co. v. Bublis \[Ark.\] 104 SW 210. Evci-

car which was being unloaded was guilty of

contributory negligence in remaining there

for a number was injured by falling

during switching on the track, being injured

by other cars striking his, depended on

917 E 855. One who took holt of a live

whether he exercised ordinary care under

the circumstances. Missouri, etc., R. Co. v.

held negligent. Kennedy V. Seovilli M.E. Co.

Smith \[Tex.\], Civ. App.\] 17 Tex. Ct. Rep. 545.

101 SW 453. Orders to motorman to make

certain running time do not relieve him

trubitory negligence. Vinson v. Willingham

from the duty of ordinary care in running

his car. McGahan v. St. Louis Transit Co.,

201 M. 500, 100 SW 604. Instruction that a

servant could not recover if he did anything

which contributed "in any way to his

jury" was erroneous as requiring more than

the exercise of ordinary care. Gage v.

Springston Lumber Co. \[Vash.\] 91 P 558.

Shore street car conductor collided with a

pole while standing on the running board of

his car collecting fares, an instruction per-

mitting recovery, if he did not know or by

102 SW 336. Section had running a hand

the exercise of reasonable diligence could not

cav over the track held negligent where he

discover the dangerous proximity of the pole

to the track, was proper. Indianapolis Trac.

**& T. Co.** **Vol.** **Holtsciv** \[Ind. App.\] 82 N 898.

\*\*SS A servant is not required to exercise

the best judgment possible but only the

degree of care to be expected of persons of

reasonable prudence engaged in the same

occupation. Perrotu v. Richmond Brick Co.,

108 NYS 10. Instruction that brakeman,

crushed between car, could not be held guilty

of contributory negligence, if he went about

hls work as the great mass of men act under the same circumstances, approved. Hayes

v. Chicago, etc., R. Co., 131 Wis. 899, 111

NV 471. The standard car required of

a servant is that which a reasonably cautious

person would exercise under the same cir-

cumstances. Bryant v. Great Northern

per Co. \[Mc.\] 68 A 379. Where an ordinarily

putcher person would not have continued to

use a machine known by him to be defective

Co. \[Mass.\]

## 10. Cur. Law. Master and Servant $ 86

duty it was to discover and give warning of

negligence: Servant not at fault for leaving

approach of trading, held negligent where he

was struck and killed by a train. Zulke v.

Michigan Cent. R. Co. \[Mich.\] 13 Dt. Leg. N.

971, 110 NNF 493. Boy of 15, employed three

months on power printing press, held negligant

sent in getting too close to press to pick up

paper which had fallen. Van Wyck v. Dick-

Inson, 148 Mich. 418, 14 Det. Leg. N. 198, 111

NYW 1033. Where a fireman on a locomotive

failed to call the engineer's attention to

danger signals on the line ahead, he was

new \[Ala.\] 42 B 808. Evidence held to show

cover for injuries sustained by derailment

of the train. Elmgren v. Chicago, etc., R.

Co., 102 Minn. 41, 11 NNF 1067. Switchman

held guilty of contributory negligence in

front end of the engine, the crew having

permitting an engine to come so close to

a

sewitch that he did not have time to turn the

V. Chicago, etc., R. Co. \[Iowa\] 113 NNF 790.

switch before the engine struck his hand.

Elliot v. Kansas City, etc., R. Co., 204 Mo. 1,

negligent. Id. Employe operating unguarded

102 SWV 532. Where trackman sweeping snow

law (required by statute to be guarded) need

from a switch was killed by an engine run

only exercise reasonable care under the cir-

ning three miles an hour backing down onto

chim, held he was negligent as a matter of

trubitory negligence. Tucker & Dorsey Mfg.

law. Cahill v. Chicago, etc., R. Co., 205 Mo.

393, 103 SWV 532. Plaintiff operating iron

was not negligent in failing to tap roof of

drill got glove caught in set screw which

wns in plain sight and the danger apparent.

where its unsafe condition was not obvious.

Held guilty of contributory negligence.

Anticon Coal Co. v. Rockey \[Ind.\] 82 NE 76.

Pohlmann v. American Car & Foundry Co.,

Evidence sufficient to show that a switch

133 Mo. App. 219, 100 SWV 544. Ix Experienced

miner who was head man in drill work and

was handling a drill at the time of an ex-

plosion held negligent. Thornberry Mold

v. Lawrence \[Ind. App.\] 82 NE 768. Where

Judge Min. Co., 128 Mo. App. 660, 105 SWV 659.

switchman was killed by being caught

Servant twenty-three years old, who attempts

to clean rolls of leather pressing machine at

which he works while such rolls are in motion,

tion, is negligent. Bennett v. Busch \[N. J. Law\] 67 A 188. Employe removing shredded

plus from pulp machine held guilty of con-

trubutory negligence as a matter of law. Mc-

Grath v. Fibre Conduit Co., 106 NYS 777.

Where a boy fourteen years of age got his

Wheres a cough in a sausage machine after he

had been sufficiently warned and instructed

thd been sufficiently warned and instructed

he was held guilty of contributory negligence as a matter of law. Fortune v. Hall,

ligence. Missouri, etc., R. Co. v. Green, 76

106 NYS 787. Where an employee fell from

a scaffold not shown to be defective but

where the fall was due to a misstep, and it

circular saw. Roy Lumber Co. v. Donnelly, held, the employe failed to prove cause of

131 Ky. L. R. 601, 103 SWV 255. Workman in

action. Shea v. Hodden Const. Co., 107 NYS 64. Evidence held to show that an employee

who got his hand caught in cog wheels of

machine was negligent. Lonkran v. Jordan L. Mott Iron Works, 122 App. Dlv. 595,

107 NYS 434. Evidence sufficient to show

contributory negligence where a miner in

charge of coal cars in a mine was caught

between a car and the wall of the mine.

Kuhney v. H. C. Frick Co., 216 Pa. 385,

65 A 796. Evidence sufficient to show con-

trubutory negligence of a foreman who was

injured by reason of not paying attention

tact were charged. Reeve v. Colusa Gas &

was working with to become out of order.

Wislinwaik v. Carbon Steel Co., 216 Pa. 486,

65 A 956. Street car conductor killed held

g guilty of contributory negligence. Savage v.

Rhodo Island Co. \[R. L.\] 67 A 638. Evidence

helt to show contributory negligence where

employe's hand was caught in gin saw.

Thompson v. Planters' Compress Co. \[Tex.

Civ. App.\] 106 SWV 470.

Plaintiff held not guilty of contributory

wns not instance is ordinarily a question of fact for the jury, \[59\] to be determined with refer-,

while attempting to tie a band on a spindle negligent for crawling under camp car pro- of a cotton mill. Sibbert v. Scotland Cotton vided for his use, where he had reason to Mils \[IN. C.1 59 SE 79. Evidence insufficient \] believe that it would not be moved without to show contributors negligence where em- Warning. Illinois Cent. R. Co. v. Panzploye while wheeling a wheelbarrow along biango, 227 Ill. 170, 81 NE 53, afg. 129 Ill. a narrow suspended runway, fell. Morrissey yp. 150 NFS 521. Where an employee attempting to couple cars in one of two customary ways is for the jury. Donk Brox, along a runway was followed by others so Coal & Coke Co. v. Retzloff, 229 Ill. 194, 82 %E 214. Where switchman in uncoupling genent in using another runway provided for the purpose. Id. Evidence insufficient to show contributory negligence where a server- anf was drawn into the leg of a grain elevator. Lynch v. American Linsecd Co., 122 App. Div. 428, 107 NYS 458. Brackman on logging train held not negligent in riding on car load Whether plaintiff was guilty of negligence in forgg where there was one or other place to vride. Ragley Lumber Co. v. Parks \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 869, 103 SW 424. Inex. was running into it, held a question for the perjescent servant held not negligent in working on top of improperly plled stack of stacks 502. Whether switchman was guilty of neg- of flour. Commerce Mill. & Grain Co. v. Rigene in falling to see slack and ice on the Gowran \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 87, 104 SW 916. Contributory negligence not work dangerous, held a question for the jury. swift, v. O'Brien, 127 Ill. App. 26. Heeld to kicked down the track at night, untended present a question for jury whether car re- and without signal lights, it not appearing pariser was guilty of contributory negligence that the knew of co could have discovered the approach of the cars. Galveston, etc., R. Co. v. Burning hand car on master's tracks. O'Don- v. Berry \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 156, 111 V. Chicago & A. R. Co., 127 Ill. App. 432, 105 SW 1019. No contributory negligence Evidence insufficient to show contributory shown where servant was injured by falling negligence, as matter of law, where plaintiff of box car door. Houston, etc., R. Co. v. was injured by defective jack. Dahmf Const. MeMeHaTe \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 161, 105 SW 1149. Brakeman riding on bumpers brakeman was negligent in going between in accordance with his custom and duty held cars to couple them, when the might have not negligent where he was thrown off by avolded injury by crossing track and using sudden acceleration of the speed of the train. lever on other side of car, held for jury. Choo- Gulf, etc., R. Co. v. Thompson \[Ark.\] 100 SWP 19 Tex. Ct. Rep. 818, 104 SW 399. Where an employee was kicked by a horse, evidence that sent, as a matter of law, in working near he kicked the horse is not evidence of mis- wires the did not know were charged, without conduct barring recovering for the injury wainty. Reeve V. Colusa Gas & Elec. Co. sustained. Morgan v. Hendricks \[Vt.\] 67 A \[Call.\] 92 P 89. Where plaintiff had hand crushed while trying to couple cars by hand, coupling device being defective, as he dis- for the jury : It is not, as a matter of law, covered on attempting to use it as cars came together, Baltimore, etc., R. Co. v. Davis \[C.\] 149 F 191. Whether conductor killed and mount the engine, though the act be - In er erael collision was guilty of contributory negligence in failing to instruct brake- 43 S 1019. Injury caused by fall of mine man under him as to duties with reference to root. Birmingham Min. & Cont Co. v. Skelton giving warning to following trains held for \[Ala.\] 43 S 110. Field that question whether plaintiff was negligent in failing to see de- Grath \[C. C. A\] 151 F 486. On conflicting feet in ladder was properly presented to the quedenc as to contributory negligence, the jury, Peoria, etc., R. Co. v. Schantz, 226 Ill. question is for the jury. Northern Fac. R. Co. 506, 80 NE 1041. Whether servant was guilty v. Wendel \[C. C. A\] 156 F 386. Plaintiff, or negligence in taking hold of a defectively trained in min. injured in collision; whether insulated and heavily charged electric wire he was negligent in not leaving his car to without knowledge of its being charged, held look for the other. Coal & Coke Co. v. Retzloff, 229 Ill. 194, 82 %E 214. Where switchman in uncoupling v. Hyslop, 227 Ill.

10 Cur. Law. MASTER AND SERVANT SS 3G. 769

negligence, Crawford & McCrimmons Co. v. Where switchman in coupling cars was in-Gose \[Ind. App.\] 82 NE 984. Where an employee is subjected to constant danger by fall- the question of his negligence in going in ute of the master to guard machinery as required by Burns Ann. St. 1901, v 1087, the question of his contributory negligence is for the jury. Id. Where street car conductor coilsted with pole near the track while standing on the running board of his car collecting \[Ind. Hazes, contributors negligence held for jury, \] had been told to avoid, stepped into a hole in a conveyor, of the existence of which he was ignorant, having just gone to work \[Ind.\] 82 NE 986. Question held for jury \[Ind.\] 147 Michel. 178, 13 Del. Leg. N. 966, 110 NWP to lock and listen for approach of a car he thought securely braked. Masterson v. South- \[Ind. App.\] 82 NE 1021; Parry Mfg. Co., v. Eaton \[Ind. App.\] 83 NE 150, Where servant was injured while throwing a switch. Active fuse. Active fuse. Active fuse. Active fuse. Active fuse. Active fuse. Active fuse. Active fuse. Active fuse. Active fuse. Active fuse. Active. Active. Active. Active. Active. Active. Active. Active. . Active. .

770 MASTER AND SERVANT SS 3G. 10 Cur. Law.

ence to all the facts and circumstances of the case,\* including the age, experience, and capacity of the servant.\*11 Mere knowledge of a defective condition will not not

misplaced switch. Pearsall v. New York Cent. | ling cars equipped with defective automatic

etc., R. Co., 189 N. Y. 474, 82 NE 753. Whether

yard employee was negligent in going between

guilty of contributory negligence. Southern

ears when other cars were being kicked

Pac. Co., V. Allen \[Tex. Civ. App.\] 29 Tex. Ct.

against them. Oneest v. Central New England

R. Co., 121 App. Div. 554, 106 NYS 233. Question

twent buffers, Id. Whether an engineer killed

tion of contributory negligence of brakeman

by decallment was negligent in running his

Henson v. Lehigh Valley R. Co., 106 NYS 602.

train too fast. Galveston, etc., R. Co. v.

Worfman not warned that planks had been

removed from the floor of an adjoining room,

where his work required him to go, held not

Trex. Civ. App.\] 29 Tex. Ct. Rep. 410, 106 SW

neglent as a matter of law, in attempting

to cross it at night. Heffron v. Lackawanna

machine in sawmill was injured. Industrial

Steel Co., 105 NYS 429. Where railroad

mumber Co. v. Bivens \[Tex. Civ. App.\] 20 Tex.

ployes had been accustomed for several years

Ct. Rep. 117, 105 SW 31. Where employ was

to pass through, under, or beneath cars

bloeling the tracks on their way to and from

St. Louis S. W. K. Co., Thornton \[Tex. Civ.

work, an employe held not negligent as a

matter of law in passing between cars. Beck

tions of contributory negligence and assumed

v. Southern R. Co. \[N. C.\] 58 SE 1015. Where

risk held for jury, where railroad employe

brakenman was injured. Allen v. Atlantic

Coast Line R. Co., 11. C.\] 58 SE 1081. Where

railroad employe was injured while boarding

the cars place v. Grand Trunk R. Co. \[Vr.\] a

a train in full view of the engineer, evidence

instrilient to show contributory negligence

jured while operating defective machin.

as a matter of law. Daniel V. Atlantic Coast

Line R. Co. \[N. C.\] 58 SE 601. Question where

428; Sturgeon v. Tacoma Eastern R. Co.

minor servant put his hand under knives of a

Vwash.\] 92 F 526. Question of contributory

machine which was not in motion. Magne

neglence in handling a rip saw. Cox v.

v. Portland Mfg. Co. \[Or.\] 98 P 450, Where

an employee's work requires haste and his

servant was negligent in obeying an order

entire energy, he is not conclusively presum-

ed to have a particular danger constantly

in

Quaryary \[Vwash.\] 92 F 900. In action for death

mind, and the degree of care and attention

may depend on circumstances. Id. Servant's

contributory negligence held for jury. Bell v.

moving when he went between them, and the

Bocaupile Portland Cement Co. \[Pa.\] 67 A

question of his contributory negligence held

804. Whether engineer killed by decallment

for the jury. Hayes v. Chicago, etc., Co., 131

of his train was negligent in running at a

Wis. 391, 111 NW 411. Where employe was

speed higher than that prescribed by rules

caught on set screw projecting from a

of the company, held for the jury. Jones

volving shaft. Chophn v. Combined Looks

v. WIcox \[S. C.\] 60 SE 213. Miner injured

Paper Co \[VWs.\] 114 NW 95. As servant held

by piece of one falling on him. Minton v.

not guilty of contributory negligence, as a

La Foliette Coal, Iron & R. Co., 117 Tenn.

matter of law, where he was caught on a set

416, 101 SW 178. Whether switchman was

negigent in going between cars to un-

couple them. Texas Mexican R. Co. v. Bli-

gains \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 585,

Paper Co. \[VWs.\] 114 NW 485. Where brake-

99 SWV 200. Whether brakeman negligent in

attempting to couple cars, couplers being defective. International, etc., R. Co. v.

Elder

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 90, 99 SWV

s565. Whether injured conductor was neglig-

gent in directing a flying switch to be made,

and in not being at the brake of a car at the

time of the attempt to make such switch.

held for jury, Galveston, etc., R. Co. v. Still

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 582, 100 SWV 10 Cur. Law. MASTER AND SERVANT SS 3G. 771

charge a servant with contributory negligence, as a matter of law.62 His conduct may be excusable if it is due to a momentary forgetfulness,68 or to the engrossing character of his work,64 or to a zealous, rather than careless, performance of his duties.65

MASTER AND SERVANT SS 3G. 10 Cur. Law.

Day Lumber Co., 30 Ky. L. R. 810, 99 SWP

be adopted a dangerous method of doing 625. Employee who unnecessarily puts him- ertain work and was injured, a safe set on a railroad track in a dangerous position cannot recover for injuries received. open to him. Bundy v. Union Iron Works Cam v. New York Cent. etc., R. Co., 62 Misc. \[Vwah.\]. 89 P 645. Where plaintiff's instead 700, 102 NYS 633. Plaintiff who knew that that was caught and killed while going below- only a rope netting protected a hatch, and who walked into it, falling into the hold of a vessel, could not recover. Northwestern

be as well held negligent. Schwind v. Floris-S. S. Co. v. Griggs \[C. C. A.J 146 F 472. De- 'edent guilty of contributory negligence as 'Railroad track' employee, who stood in middle of track in a cloud of smoke and was front of saw, in position unnecessarily dan- 'grova', knowing that log carriage was de- 'pace being open to him. Cannon v. New York, etc, R. Co., 194 Mass. 177, 80 NE 450.

which it did causing him to be killed by the 'W' sphere employe was told to cover an old vat, saw. Crookston Lumber Co. v. Bontilm \[C. A.J 149 F 680. Painter on vessel held 'Ilgently used old rotten planks to sup- 'grova', and fell into the vat in con- 'grova', where he fell into an uncovered batch while passing through a dark com- 'grova', 'Jurles', 'Jur * 10 Cur. Law. MASTER AND SERVANT SS 3G. 773

\_Reliance on master's care.\_See * C. L. \*22--A servant is not negligent in relying, to a reasonable extent, on the assumption that the master has performed or will perform his duties with respect to his employees," unless he has actual or implied knowledge to the contrary." He may also reasonably rely on an assurance of safety

Where a servant sacrificed his life to save that of a fellow workman and the servants to inspect it to see whether it was safe. Id. had been supplied with a splinames which would have averted the accident, the failure to use them was negligence. Walker v. Shreveport Gas, Elec. L. & P. Co. \[La.4\] 4 S 925. Where a workman voluntarily selected a dangerous method of attaching the belt which operated his machine to the line shaft, held his negligence in so doing was the cause of his injury and he could not recover. Grace v. Globe Stove & Range Co. \[Ind. App.\] 82 NE 99. Where a employee selected a warped ladder from a number which were not defective, he could not recover for injuries sustained because of such defect Smith v. Green Fuel Economizer Co. of Mateuszwan, 108 NYS 45. Switchman jerked from top of train by sudden jerk caused by his signalling the engineer to stop, unmistaken belief that foreman of the train crew had had time to uncouple, held negligent, it appearing that he could have safely waited before giving the signal. Louisville, etc., R. Co. v. Cox \[Ky.\] 105 SW 165. Section hand walking along railroad tracks with knowledge of the unusual danger attending at that particular point in view of circumference.

Southern Cotton Oil Co. v. Gladman, I 6a. Chicago, etc., R. Co. v. Thomson, 128 Ill. App. 594. Switchman held guilty of neg-ligence in attempting to board switching train going at a rapid rate of speed -when the circumstances did not require him to do so. Murphy v. Chicago & A. R. Co., 127 Ill. App. 446. Car regular working on a car standing on a right of way without placing a signal showing his presence therein or otherwise giving notice is guilty of negligence. Elgin, etc., R. Co. v. Herath, 230 Ill. 109, 82 NE 610. Servant who walks backward, when approaching a runway consisting of one plank across two beams, and making master falls is guilty of negligence. Danuchy Iron Works v. Nevin, 130 Ill. App. 475. Servant held guilty of negligence in following a dangerous route to get to his train, when a safe one was available. Shannon v. Chicago & A. R. Co., 125 Ill. App. 537.

The remainder of this paper is organized as follows. In Section 2, we describe the results of the paper. In Section 3, we describe the results of the paper. In Section 4, we describe the results of the paper. In Section 5, we describe the results of the paper. In Section 6, we describe the results of the paper. In Section 7, we describe the results of the paper. In Section 8, we describe the results of the paper. In Section 9, we describe the results of the paper. In Section 10, we describe the results of the paper.

774 MASTER AND SERVANT SS 3G. 10 Cur. Law.

by a superior,71 and may assume that execution of an order given by a superior will not expose him to any unusual danger,72 unless he has knowledge of the danger

track cannot rely on warning being given

of Montgomery v. Robertson, 229 Ill. 466, 82 him of the approach of trains, where he had

NE 396. A general direction to a servant to

been working alone for some time about 850

perform work with which he is familiar

feet from the foreman and rest of the gang.

leaving him the choice of the manner in

Blute v. New York, etc., R. Co. \[Mass.\] 81

which it is to be done does not relieve him

NE 188.

71. Evidence held to show that a servant

injured while using an unsafe applicinate

When acting under command of the master,

after promise to repair was not negligier

servant does not assume the risk, but may

She v. Seattle Lumber Co. \[Wash.\] 91 P 628.

be guilty of contributory negligence, if the

Where plaintiff was told to do a simple

danger is such that an ordinarily prudent

piece of carpentry in his own way, and pro-

man will not encounter it, Dalton v. Ogden

ceeded on his own responsibility, and fore-

Gas Co., 126 Ill. App. 502. Order jokingly

man, without Inspection, said it was all

given does not justify servant in taking an

right, plaintiff had no right to rely on this

unnecessary risk. "Dare" by foreman of

as an assurance of safety, Lavelle v. Dunn-

switching crew does not justify switchman's

Green Leather Co., 194 Mass. 294, 80 NE

attempt to board it when going at a rapid

475. Where an iron worker with no knu-

rate of speed. Murphy v. Chicago & A. R.

edge of wooden work or experience in as-

Co., 127 Ill. App. 446. The command to re-

certaining the strength of timbers was di-

lease the servant from the assumption of a

reeted by the master's superintendent to

risk incident to carrying it out must

emaxe fast to a certain timber a tackle for

raise from the master or one standing in that

raising trusses instead of using a gin pole

relation. Command by a servant who has

which was the usual and safe method, and

no authority to direct the manner in which

the timber broke and the was injured, held

the work is done does not relieve. Ameri-

the servant was not negligent, the superin-

can Bridge Co., v. Bialk, 129 Ill. App. 202.

tendent having assured him that the timber

Defect in root of mine entry was reported,

was strong enough. Swank v. O'Loughlin

and employer attempted to fix it and as-

\[Conn.\] 67 A 480. Superintendent assured

sured servant it was safe. Heid, servant

servant that certain appliances were safe,

had right to rely reasonably on such assur-

and servant relied on the assurance. Heid,

ance and his going back to work, and fail-

whether he was at fault was for jury,

ure to inspect it thereafter, was not negligi-

though it was his duty to inspect and make

genes as a matter of law. Pioneer Min. &

repairs, where supplies could be purchased

Mfg. Co. V. Smith \[Ala.\] 83 661.

by him only through the superintendent.

72. If a danger is not not illuminated that

Keys v. Winnshore Granite Co., 76 S. C. 284.

injury must almost necessarily result from

56 SSE 949. Where minor servant in

obedience of a master's orders, it is not

once to orders changes his method of doing

neglience to obey. Wwithin V. Pyenino

work from a safe to a dangerous one, the

Stone Quarry \[Wash.\] 92 P 900. Inexperi-

question of his negligence is for the jury.

enced employee held not guilty of contributory

Jefferson Theater Program Co. v. Crejczyk,

tory negligence as a matter of law where

125 Ill. App. 1. Where servant complained of

the enddition of saving board used in workins

furnace, where he acted under an order from

on a smoke stack and was told that it was

his foreman. Malone v. American Smelting

safe, the question whether he is guilty of

neglience is for the jury. Springfield Boller

& Mr. Co. v. Parks, 123 Ill. App. 503. See 222

Wil. 855, 78 NE 809. Whether servant in

obeying order chose that one of two methods

which, with assurance given, was the safer.

was guilty of negligence, is for the jury.

Marquette Cement Mfg. Co. v. Williams, 230

111. 26, 82 NE 424. Defendant held liable

for ordering switchman to cross over mov-

ing cars and uncouple them, and then stop-

pling train before he reached a place of safety.

Last St. Louis connecting R. Co. v.

Meeker, 229 Ill. 98, 82 NE 802. Assurance

of safety by master does not relieve servant

if the danger is obvious. Elgin, etc., R. Co.

v. Myers, 2 10 Cur. Law. MASTER AND SERVANT SS 3G. 775 involved, and such known danger is one which an ordinarily prudent person would not have encountered under the circumstances.\[13\] Similarly, the servant may rely to a reasonable extent on the assumption that work will be done in the customary manner,\[14\] and in accordance with the master's rules.\[15\]

\_Disobedience of orders and violation of rules.\_See * C. L. 824--Failure of the employee to observe and obey reasonable orders, instructions and rules, is usually held to constitute negligence,\[76\] which will bar recovery for injuries proximately caused the work with which he was not familiar, in the yards by bells, whistles, etc., held to and he objected out finally obeyed, the queses.

relieve employees in large measure from tion of master's liability was for the jury.

s strict rule of self protection. Contributory Zearfoss v. Norway Iron & Steel Co. \[Pa.\]

negligence of one struck by switch engine, 67 A 867. Where a servant is injured while without warning, held for jury. Floan v.

obeying general directions of the master Chicago, etc., R. Co., 101 Mlim. 113, 111 NW given through a servant, he must show that 957. A yard brakeman of a railroad com- the directions or order came from the mas-

pany, in the pursuance of his duty in the ter and the servant was authorized to give

making up of a train in the yards of the it. Moore v. Dublin Cotton Mills, 127 Ga.

company, it being desired to reverse the 609, 56 SE 849. A servant who is injured

location of the cars on the track and it

while responding to a request or order from

another to assist in doing a certain part of

the cars to couple them up, has a right to

the master's work is without recourse

expect that the cars will not be moved with-

against the master, unless it appear that

out a warning to him from the conductor, the one who made the request or gave the

where it has been the habit or custom of

order was, in so doing, acting under the

authority of the master or some one stand-

assisting him. Lake Shore & M. S. R. Co. v.

ing in his place, J. B. Foote Foundry Co.

Botterth, 10 Ohio C. C. (N. S.) 281.

75. An employee of a railroad has a right to

01. Obeying orders is not negligence unless

go about his business obeying ordinances

less danger is so glaring that a prudent

and rules established for the -safety of all,

person would not have obeyed, St. Louis, S.

W. R. Co. v. Schuler \[Tex. Civ. App.\] 19 Tex.

wise, and it is only on the particular oc-

Ct. Rep. 478, 102 SW78. The direct and

canction that he knows or should know of the

immediate command of a master will not

negligent conduct of others that he is re-

justify a servant in exposing himself to

quired to exercise reasonable care to avoid

obvious and no known danger. Southern Cot.

http://www.Master.ww.edu/~koc/

ton Oil Co. v. Gladman, I. Ga. App. 259, 58 SE 829.

249. Where a master orders a servant into

not guilty of contributory negligence in re-

a situation of danger, and in obeying the

lying upon the engineer to obey stop

command the servant is injured, he will not

nals, which was partially the cause of his

be charged with contributory negligence or

injury. Pittman v. Chicago, etc., R. Co., 231

assumption of risk, unless the danger was

so apparent that no prudent man would

company required repair men to post a blue

have encountered it. St. Louis, etc., R. Co.

flag as a protecting signal, and it appeared

v. Morris \[KAM\] 83 P 153, Whether danger

that the foreman on the work instructed

was so great that a prudent man would not

have encountered it held for the jury. Id.

man who went to work to post the flag, and

74. Switchman riding from his work on a

passenger engine held not guilty of contributory negligence in

a switch

senti assuming that the flag had been

engine would not attempt to take the right

of way, he knowing that switch engines had

102 Mlim. 355, 113 NW 913. Boy seventen

least rights of any. Fenet v. Boston & M.

R. Co. \[Mass.\] 82 NE 704. Workman on coal

press direction of a sawyer held not guilty

dock directed to cross in front of a sta-

of contributory negligence, where while

tionary car held not negligent as a matter

blocking a leg the sawyer without warning

of law, where the car started without no-

tice or warning, and he had never known a

was crushed. Ball v. Peterman Mfg. Co.

car to be moved without warning being

given. Pelaski v. Pittsburgh Coal Decok Co.

\[VWs.\] 114 NW 437. Plaintiff was in act of

negligence. Zoesch v. Flamabeau Paper Co.

pryming timbers apart, when his foreman

started the horse hitched to them, and plain-

instructed to ask his superior concerning

iff was injured. Heid not guilty of con-

anything he did not understand, and at-

trib

### 776 Master and Servant $ 3G.

10 Cur. Law. thereby. \[7\] A violation of a rule is not usually held to be negligence per se; \[7\] the question must be determined with reference to other circumstances of the case as well. \[8\] Violation of a rule is not held negligence where it appears that the rule

MINI. Co. \[S. C.\] 59 SE 365. Where train

may make reasonable rules for the govern-

crew were ordered to pass another train on

a specified sliding, but on seeing a locomotion-

and an act of one employee in disregarding

tive on such sliding took it for granted that

such rules cannot justify another employee,

it was the locomotive of the other train and

in disregarding an established rule and re-

ran by and collided with the other train

lieve him from charge of contributory nega-

just beyond the sliding. Hayes v. New York,

ligence in so doing. Id. Rules requiring

etc., R. Co., 105 NYS 592. Where brakeman

railroad engineers to keep careful watch

had been told to look out for and report ob-

structions on or near the track, but failed

displayed or understood, and that he "must

to discover a chute near the track in time to

know" on approaching a switch that it is in

avoid being struck by it, he was guilty of

proper condition, precludes recovery of an

contributory negligence. Nashville, etc. R.

on engineer who takes chances on its being

Co. v. Hayes, 1171 Tenn. 680, 99 SW 362. Dis

in proper condition, or knowing that it is

obedience of unanibiguous and reasonable

rules to which the servant has assented and

Louis, etc., R. Co. v. Dewees \[C. C. A.\] 153

with which he is familiar is contributory

reigence. Elmgren v. Chicago, etc., R. Co.

103 Min. 41, 112 NW 1067. It is negligence to

instructions. In going upon an oil tank alone

disobey rules. Western Coal & Min. Co.,

and did what an ordinarily prudent person

Burns \[Ark.\] 104 SW 535. Violation of rule

would not have done, and if his negligence

promulgated for servant's safety is contributory negligence. St. Louis, etc., R. Co. v. Du

myer le \[Ark.\] 105 SW 578. Recovery may not be

had for an injury sustained while violating

Rep. 77, 98 SW 1024. Failure to observe a

a rule. Atoka Coal & Min. Co. v. Miller

\[Ind. T.\] 104 SW 555. Disoledence of rules

tain work in a certain way will not bar

is negligence, though the servant is ordered

outside the course of his duties by one with-

out authority. Id. Rule as to throwing

warning or instruction had no application.

switch while cables were running in a mine

held reasonable, and it was the duty of servant's

ants to obey it. Id. A servant must exercise

reasonable care to ascertain what rules are

In force before entering upon a dangerous

duty. Id. Where a mining company

bade bushing of gas, a miner who swung his

coat to brush out gas, should there be any,

could not recover where he brushed gas

against a free causing an explosion. Central

Cool & Coke Co. v. Wilson \[Ark.\] 104 SW

174. Contributory negligence for car

in-spector to go under a car without notifying

operator of switch engine that he is going

to do so. St. Louis, etc., R. Co. v. Dupree

\[Ark.\] 105 SW 878. Locomotive engineer

held negligent in violating a rule of the

company in proceeding with his train before

ascertaining whether trains due to arrive

from the opposite direction had registered.

endezvous and agrees to be bound by it.

S 683. Where miner, who had been em-

ployed for a number of years in the mine

and knew the rule that employes should not

go into the shaft while loaded cars were

being operated, followed a loaded car into

the shaft and was killed by the car coming

down when it became detached from the

cable (Butteris v. Miffin & Linden Min. Co.

\[VWs.\] 113 NW 642), the fact that the return

of the car had been long delayed did not

justify plaintiff in disobeying the rule (Id.)

Where a fireman on a locomotive observed

absence of signals and disregarded rules of

the company to stop in such cases, and

did not say anything to the engineer, held

he was guilty of contributory negligence and

was not relieved by the fact that an unaula-

thorised signal was given nor by the fact

that it was also the duty of the engineer to

see the signal. Missouri, etc., R. Co. v.

Mier C. C. A.\] 157 F 347. A railroad company

had ben abrogated,84 or that the servant did not know of it,81 or was acting under a special order inconsistent with such rule.82

\_Emergencies.\_See S C. L. 025.--A servant suddenly confronted with an emergency, or with an unexpected danger, is not required to act with some deliberation and foresight that might properly be expected of him under ordinary circumstances.83

\_Discovery of servant's peril; intervening negligence.\_See S C. L. 028.--Negligence of the servant will not defeat recovery if negligence of the master intervenes as the sole proximate cause of his injury.84 But the master is relieved from liability if due care was used to avoid injury to a servant after discovery of his danger.85

80. A section master who was killed by held not negligence, owing to his sudden, collision of train with his handcard held not extreme peril. Southern Coal & Coke Co. v. negligent in disobeying a rule requiring Swinney \[Ala.\] 42 S 808. Whether an em- that flagmen be sent ahead, such rule hay-ploye, killed by being struck by a loaded ing been abrogated. Bussey v. Charleston, car whlle he was standing on the railroad etc., R. Co. \[S.C.\] 58 SE 1015. The fact that track, had been placed in such a sudden emergency by failure to give signals as to graphic orders and under a general rule of excuse him trying to escape on an unsafe the company of which the engineer had no-side of the track, held for the jury. Wilson tice he was required only to run steadily V. Virginia-Carolina Chemical Co. \[S.C.\] 58 SE 1019. Where brakeman only discovered safety permits, held such special orders did not abrogate standing rules that engineers close together, and went between the cars approaching switches must know that they instead of crossing the track to use a lever are in proper position. St. Louis, etc., R. Co. v. Dewees \[C. C. A.\] 15 S 66. Evidence of habitual violation of rules, which viola- toshiva- toshiva is acquessed in by the master is admis- should have done as he did. Choctaw, etc., sible to repel inference of contributory negac- ische. St. Louis, etc., R. Co. v. Dupree \[Ark.\] 105 SW 878.

01. An employe is not bound by a rule ro-band of the 'tender to the station platform quiring employees to examine appliances to used of applying emergency air-brakes see whether they are in good working order, by means within his reach. Brantner v. where such rule is not brought to his know-chicago, etc., R. Co. \[Iowa.\] 115 NW 790. An edge. Adams v. Gulf, etc., R. Co. \[Tex.\], experienced lineman given a general order App.\] 20 Tex. Ct. Rapp. 507, 105 SW 526.

Where a brakeman had no knowledge of a one pole to another, and was informed that rule forbidding him to leave his position on top of the train, and his duties required him exceeding his instructions and proceeding to and it was customary for brakeman to at once to the top of the pole where he was ride in the engine, he was not negligent as a matter of law in leaving his position on top of the train. Strong v. Rutland R. Co., \[J.\] 92 P 89.

The rule of law that one who is placed in a 121 App. Div. 391, 106 NYB 85. Where rules of railroad required enginem to read orders to firemen, who were required to keep and circumspection that prudent persons them in mind and reminden argument if necessary, fireman killed in collision due to disobedience of orders by engineer and con- asw the other car approaching I threw the tributory negligence, unless it was shown that he knew of the orders, he being an inferior servant subject to the orders of the engineer, Sinclair's AdmT v. Illinois

Where sparks of molten lead struck servant Cent. R. Co., 30 Ky. L. R. 1040, 100 SW 236.

82. Where conductor in charge of move-ment of train gave brakeman a special order in conflict with general rules of company for moving trains, obedience of order was not contributory negligence. Crow v. Northern Pac. R. Co. \[Wash.\] 85 P 1022.

Where boy of twelve and one-half was ordered to use an elevator to move goods, and the engine, and good faith and honest in-person s superior to him saw him using it, he was not guilty of negligence by reason of disobedience of warning signs on the elevator, Jenson v. Will & Fink Co., 150 Cal.

83. Where plaintiff in emergency attempted to get out of way of cars in mine, but did not go to safest place, "dog-holes,"

### 778 MASTER AND SERVANT SS 3H1.

10 Cur. Law. (SS 3) _H. Actions._ 1. _In general_," See a C. L. 926--Only questions peculiar to actions to recover for personal injuries to servants are here treated. The general principles which control procedure in actions of this nature are elsewhere discussed."

\_Conditions precedent; notice.\_See e C. L. 887--Notice of the injury is not a condition precedent to the maintenance of an action at common law,"87 and such notice need be given only when required by the statute 88 upon which the action is based."89 When required, the notice given should conform to statutory requirements."00 A de

ligence was warranted. Johnson v. St. Jo-seph T. R. Co., 203 Mo. 381, 101 SW 641. Though a servant at the time he is injured may be performing a duty so dangerous as they have a different act was passed but six-to involve an element of rashness, yet if his rash conduct is not the proximate or natural cause of his injury, but it is due to an independent act of negligence on the part of the master, the mere fact of his being exchanged in the rash conduct mentioned will not preclude recovery. Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 58 SE 249. Where brakeman was injured, evidence as to "last clear chance" held for the jury. Allen V. Atlantic Coast Line R. Co. (IN. C.) 58 SE 1081. An act of a servant within the scope of his employment entirely harmless except in connection with certain physical conditions caused by antecedent negligence of the master of which the servant was ignorant will not, as a matter of law, defeat his right to recover though it may have contributed to his injury. King Mfg. Co. v. Walton, 1 Ga. App. 403, 58 SE 115. Where railroad trackman was killed while sweeping snow from a switch, by an engine backing onto him and it appeared that it was customary for the trackmen to precede engines from the roadhouse, evidence held to show that the presence of the deceased should have been known to servants in charge of the engine. Cahill v. Chi-cago, etc., R. Co., 205 Mo. 393, 103 SW 53. Engineer had right to assume plaintiff would get off the track after giving warning whistle. Brown v. Southern R. Co., 144 N. C. 634, 57 SE 397. No negligence shown where it appeared that after trackman was discovered on the track engineer gave danger signal, applied brakes, and reversed engine. Hoffard v. Illinois Cent. R. Co. (Iowa) 110 NW 446. See Damages, 9 C. L. 869; Evidence, 9 C. L. 1282; Pleading, 8 C. L. 1355; instructions, 10 C. L. 296, and like subjects. 87. A notice of a claim under a statute made a condition precedent to suit, need not be given in order to maintain a common law action. Notice under Laws 1903, 53, not necessary. St. Louis, etc., R. Co. v. Little, 75 Kan. 716, 90 P 447. 88. The statute requiring notice of injuries by defects in streets does not apply to an injury to an employee of the municipality while engaged in the performance of his duties. Gen. Laws 1897, c. 248. Pesek v. New Prague, 97 Minn. 171, 106 N NV 365. Laws isn. 1903, 1059, amending Laws 1874, p. 143, making a railroad company liable for negligence of a fellow-servation, pro-vided notice by given within injury days on behalf of the injured person, does not apply in case of death where action is by the administrator, Iarusal v. Missouri Pac. R. Co., fect in the notice as to a matter as to which there is no dispute is not fatal.\[91\] An objection to the sufficiency of the notice must be seasonally urged \[92\] and must definitely indicate the defect relied upon.\[93\]

(SS 3H) 2. _Parties.See 8 C. L. 927_-Joint action against master and his servant may be maintained when based upon the negligent or other act of the servant for which the master is liable,\[94\] though the master's liability is imposed by statute, and that of the servant rests upon the common law.\[95\] Persons jointly negligent may be joined as defendants.\[96\]\_

(SS 3H) 3. \_Pleading and issues. The complaint or petition See 8 C. L. 927 must show the existence of the relation of master and servant,\[97\] that plaintiff was acting within the scope of his employment when injured,\[98\] and the existence and breach of some duty owed by the master to the servant at the time of the injury.\[99\] A mere allegation of duty is insufficient; facts showing a duty to exist must be insufficient under Laws 1902, p. 1748. Bovi, Louisville & N. R. Co. v. Gollihur \[Ind. App.\] v. Hess, 107 NYS 1001.

Wisconsin: Under Rev. St. 1898, SS 4222, subd. 5, and Laws 1899, c. 207, where original action was brought, and complaint served with one year after injury, and plaintiff.

Finally Ihide though there was no concurrent was granted leave to amend but did not do so, and action was dismissed, and thereafter

82 NE 705.

another action was brought for same cause but on different grounds of negligence, held sufficient notice was given. Odegard v. Norbt Wisconsin Lumber Co., 130 Wis. 659, 110 NW 809. Under Rev. St. 1898, SS 4222, requiring a notice of a claim for damages, the notice need not in terms state that plaintiff claims that defendant caused such injury; service of the notice on defendant is sufficient to appraise him of this fact. Hartd v. Chicago, etc., R. Co., 130 Wis. 512, 110 NW 427. Though notice did not in terms state that band car was precipitated upon plaintiff by defendant's negligence, it was held sufficient, under Rev. St. 1898, SS 4222, where defendant was otherwise fully informed and could not have been misled.

4. Failure to designate place not fatal where there was no controversy regarding it. Heftron v. Lackavanna Steel Co., 105 NYS 429.

1. Objective at close of evidence that negligence relied on was not stated specifically too late where parties tried the case on a certain theory without previous objection. Heftron v. Lackavanna Steel Co., 105 NYS 429.

1. Objective that notice did not show particular negligence resulting in injury held too indefinite. Heftron v. Lackavanna Steel Co., 105 NYS 429.

1. Mayberry V. Northern Pac. R. Co., 100 Minn. 79, 110 NW 356. A railway corporation can be jointly sued with three of its servants when it is sought to make the corpora.

tion liable only by reason of negligent acts of the servants in the operation of a train under their management and control, and where injury was caused by joint negligence of the employees. Southern R. Co. v. Miller, 1 GAp. 616, 57 SE 1090.

95. As where master's liability rests upon fellow-servant statute. Mayberry v. North-ern Pac. R. Co., 100 Minn. 79, 110 NW 356. A train dispatcher whose negligence caused injury to a fellow-servant is liable as a joint tort feasor with the railroad, though his negligence is the negligence of the company under Burns' Annu. St. 1901, SS 7083.

# Master and Servant $ 3H3.

10 Cur. Law. alleged.1

Allegations of negligence must be sufficiently certain and specific to inform the defendant of the nature of plaintiff's claim,3 but a general allegation of

Refeld's Sons Co., 1 Ga. App. 489, 57 SE 925.

safe without alleging facts showing such

A complaint for injuries sustained by falling

duty is bad. - Chicago, I. & L. R. Co. v. from an unralled platform, alleging that the

Barker \[Ind.\] $ 3NE 369. Where an engineer

platform was "constructed", etc., and that

was killed by running into an open switch,

the master had negligently left it without

compliant alleging negligence in permitting

banisters, did not authorize an inference that

the switch to become obstructed held insuffin-

the platform was uncompleted at the time

cient to state facts showing duty violated

of the injury. Aiken v. Rhodness Mfg. Co.

or negligence. Id. Complaint alleging viola-

\[N. C.\] $ 59 SE 696. The declaration must

tion of certain well known customs but not

allegating what the customs were held insuffin-

Delearation held insuffin-

Gibson Co. v.

cient. Chicago, etc., R. Co. v. Cobler, 39 Ind.

Hoidecka, 129 Ill. App. 325. An allegation

App. 506, 80 NE 162. Complaint alleging

that the master was "bound to place a com-

violation of city ordinance, but not alleging

petent person to assist plaintiff with said

substance of ordinance, insuffin-

Id.

log." but without showing any failure of

Complaint alleging violation of rules, with

such duty or injury resulting from such

stu showing substance of rules, held insuffin-

failure, is insuffient. Van Dyke v. Menlo

cient 1d. Where a brakeman was injured

Frut Co., 129 Ga. 532, 59 SE 215. Complaint for injuries sustained by a servant

while coupling an engine to a defective car,

plain for injuries sustained by a servant

allelgation held defective for failure to

di-
while coupling cars held not to state a cause

rectify aver that the engine backed against

of action for negligence on the part of the

the car when plaintiff was engaged in coup-

company. Zipperer v. Seaboard Air Line R.

Ilng. Southern R. Co. v. Elliott \[Ind.\] $ 3NE 3Co., 129 Ga. 387, 58 BS 872. A condition alleg-

1051. Other allegations held also fatally

ing that a machine was not reasonably safe

defective for want of such direct averment

is not denurrable because not also alleging

Id.

that it was not equal to the kind in general

a. A complaint should set forth the facts

use. Southern States Potential Cement Co.

upon which the cause of action is based

v. Helms, 2 Ga. App. 308, 58 SE 524. Regu-

"plainly, fully and distinctly," and with such

visites of compliant for injuries, caused by

certain that they may be understood. Cer

negligence of a locomotive engineer after

tainty required as to allegations by a servant

contributory negligence on the part of the

injured by defective appliance discussed. Ce-

engine, stated. Louisville & N. R. Co. v.

Gurou Cola & Export Co. v. Miles, 2 Ga.

Young \[Ala.\] 45 S 238. The declaration

App. 79, 58 SE 289. Held insuffin-

Id.

must allege a duty upon the master and its

Dominant that while a street car was stand-

breach. Complaint held sufficient as show-

ing arcxis railroad track one or defend-

ing master's failure to see that servant was

not subjected to unknown hazards not ob-

agstant it, causing the injury, held to sun-

vious to him, though not showing that servant

ciently allege negligence. Indianapolis Union

ant was exposed to perils to which a youth

R. Co. v, Waddington \[Ind.\] $ 3NE 1030.

of his age should not have been exposed.

Where switchman was injured because of a

Americian Car & Foundry Co. v. Hill, 226 Ill.

detective foreign car brought into railroad

227, 80 NE 784. Complaint for death of an

employe of an electric company, alleging

New York, etc. R. Co. v. Harlinlin \[Ind.\] $ 3NE 443. Where injuries were 'alleged to

that while a closedent was repairing a wire

the engineer negligently turned on the cur-

rent, but not alleging that the company

gation that the bearings of the car over the

failed to exercise due care in selecting an

engine, or machinery, held not to state a

cause of action. Williams v. Northern

derailed, was sufficient to apprise defendant

Texas Trac. Co. \[Tex. Civ. App.\] 107 SW 125.

Declaration in action by servant against

Transit Co., 202 Mo. 432, 101 SW 44. Complaint alleging negligence resulting in

colatn verdict against the master only where

islation in mine, causing injuries, held not ob-

individualnegligence is usually held sufficient as against a demurrer," if the facts alleged disclose a legal duty and a violation thereof. Evidence should not be pleaded." Knowledge by the master, actual or constructive, of the defective or dangerous condition alleged to have-caused the injury must be made to appear." It must appear from the pleading that the negligence or wrongful act alleged was the proximate cause of the injury." A complaint is demurrable if it shows on its face, conclusively

nite and certain to be understood by the jury a porch floor held not to show that master and court. Blackwood Coal & Coke Co. v. knew of its dangerous condition, or failed James \[Va.\] 60 SE 90. Complaint in action for injuries caused by derailment held suffman part was the cause of the injuries. Fearon client to allege negligence in failing to inspect the track though the wreck was caused by wreckers. Thompson V. Galveston, plant alleging negligence of defendant in etc., H. Co. (Tev. Civ. App.) 20 Tex. Ct. Rep. that he furnished their son an unsafe, willd, T66, 106 SW 910. Complaint for injuries due to fractureous, and runaway team to work with, failure to provide safe place and appliance hold sufficient without alleging knowledge by the master of these unsafe qualities of son \[Ky.\] 105 SW 381. Complaint for injuries, though slightly repetitious, held sufficient. Bo-len-Darnall Coal Co. v. Williams \[Ind. T.\] 104 caused by defects in work car, petition al-SWV 867. Complaint for injuries to a con-ductor because of incompetency of a motor-mann held sufficient. South Covington, etc., Icke condition, held not demurrable for R. Co. v. Brown, 81 KY. L. R. 107, 104 SWV want of express allegation that defects were 705. A complaint for injuries by explosion of an iron casting held sufficiently definite through not alleging what particular liquid was in the cavity which caused the explosion. Lumpkin v. Reiser Mach. Shops \[La.\] 45 S by reason of failure to allege knowledge of 518. Petition held insufflement to allege defects and negligence of the master, as the focusveness of coupling device on cars. Wabash R. Co. v. Kitchart \[C. C. A.\] 148 F \[Ala.\] 43 S 378. Allegation that the master 108. Complaint for injury to a servant held should have known of defective appliance isan efficient for uncertainty. Jarrell v. Amer-lean Pipe Bending Mach. Co., 2 Ga. App. 764, heh sinficient to raise the issue of inspection. Galveston, etc., R. Co. v. Harris \[Tex.\] 58 SE 186.

3. In an action for injuries, legal results from facts alleged may be pleaded in general terms. Southern States Portland Ce- are stated from which an injury might have ment Co. v. Helms, 2 Ga. App. 308, 58 SE 524. The plaintiff need not soft forth evi-ditions alleged and the injury actually re-dence. Cedorum Cotton & Export Co. v. Mises, 2 Ga. App. 79, 58 SE 288. Complaint for injuries to servant held good against demurrer. Sebaopard Air Line R. Co. v. Bosatock, 1 Ga. App. 189, 58 SE 186. Declaration eausal connection between failure to give alleging injuries caused by explosion of cis-signals and injuries by train. Louisville & ternt due to its negligent and faulty conjunction held not demurrable. Atlanta Ice & Coal Co. v. Barnes, 1 Ga. App. 802, 57 SE 955. Complaint alleging injury as result of alleging unsafe place held denurrable be-as he was coupling cars, negligence alleged being unsafe place and appliances, and neglig-been cause of injury. Southern R. Co. v. Hannlin \[Ind.\] 79 NE 1040.

1. Allegation that order was given by fore-man to suffice without showing his authority to give it. American Car & Foundry Co. v. Flletcher, 188 Ind. 348, 80 NE 970. V. Hill, 226 Ill. 27, 80 NE 784.

1. It may be alleged in general terms that the master knew or should have known of defects in appliances. Southern States Port-land Cement Co. v. Helms, 2 Ga. App. 308, 58 SE 524. Complaint based on defect in brake rod held defective because not alleging switch, allegations of negligence in falling knowledge of defect by master for a period long enough for repairs. Kentucky & Indiana Bridge & R. Co. v. Moran \[Ind.\] 80 NE 536. Complaint in action for injuries sustained by domestic falling through a hole in and as a matter of law, that the servant assumed the risk' or was guilty of contributory negligence,8 or that the act of a fellow-servant, caused the injury.9 There is a conflict of authority as to whether the complaint must show affirmatively that the injury was not due to the act or negligence of a fellow-servant,10 and that plaintiff was in the exercise of due care11 and did not assume the risk.12 An allegation by plaintiff that he had no knowledge of the defect alleged negatives constructive as well as actual knowledge,13 and is sufficient to show nonassumption of risk.14 In an action based on the common-law liability of the master for incompetency of a fellow-servant, facts bringing the case within a fellow-servant statute need not be alleged.15 Complaint based on incompetency of fellow-servant need not negative knowledge by plaintiff of such incompetency, this being matter of defense.16 A demurrer for want of facts is properly overruled if the complaint is good either at common law or under an employer's liability act.17 The usual rules of pleading apply as to the statement of different causes of action,18 and the curing of defects by verdict.18

failure to properly instruct employ but falling to show that such failure occasioned the injury held bad. Diamond Glue Co. v. Ruff, 127 Ga. 200, 56 SE 290. Plaintiff must Wierzychowski, 227 Ill. 338, 81 NE 392. Where a servant had his fingers cut off by a shaker, that he was free from fault, while it is not an allegation that the injury was caused by the negligent failure of defendant to pro- from fault," he must allegge facts sufficient to show the same, Id.

ciently alleges that absence of guards was the proximate cause of the injury. United States Furniture Co. v. Taschner \[Ind. App.\] 81 NE 736,

7. Complaint alleging that a servant relying on his master's promise to propp the entry of a mine, in reliance on such promise, continued to work for a reasonable time, and

should show that the servant did not know, within a reasonable time was infired, suff-clently alleges that the servant continued only a reasonable time. Ballou v. Potter \[KS.\] 106 SW 1178.

8. Complaint for Injury to servant by failing into a hole left unguarded near his place of work held to show that he was exercising due care at the time of his injury, Republic Iron & Steel Co. v. Walsh \[KS.\] 105 SW 974.

1. Petition demurrable which showed negligence of fellow-servant as proximate cause of injury. Wilder v, Miller, 128 Ga. 133,

57 SE 309. Complaint held remarkable because showing that injury was caused solely by negligence of a fellow-servant. Turner

7. Seville Gin & Warehouse Co., 127 Ga. 555, 66 SE 739. Where the complaint shows that injuries resulted from the negligence of other servants, it is necessary to allege facts showing that they were not fellow-servants. Schillinger Bros. Co. v. Smith, 225 ill. 74, 80 NE 65.

1. Complaint alleging that foreman in charge of work ordered a guy rope detached, knowing that a pole would fall, held defective for not alleging that foriman was vice-principal and not a fellow-servant of plaintiff. Roberts & Shafer Co. v. Jones \[Ark.\] 101 SW 165. Complaint need not show that injury was not due to negligence of a fellow-servant. Shaw v. Feldman, 121 App. 87 NE 1042.

1. Complaint must show the exercise of due care by the servant. Quinn v. Allen, 1

1. Lack of knowledge of a defect in an appliance must be alleged and proved. South-States Furniture Co. v. Taschner \[Ind. App.\] 81 NE 736,

2 Ga. App. 308, 58 SE 524. The complaint

13. Complaint alleging that a servant relying on his master's promise to propp the entry of a mine, in reliance on such promise, continued to work for a reasonable time, and

01. Complaint alleging that a servant relying on his master's promise to propp the entry of a mine, in reliance on such promise, continued to work for a reasonable time, and

01. Complaint alleging that a servant relying on his master's promise to propp the entry of a mine, in reliance on such promise, continued to work for a reasonable time, and

01. Complaint alleging that a servant relying on his master's promise to propp the entry of a mine, in reliance on such promise, continued to work for a reasonable time, and

01. Complaint alleging that a servant relying on his master's promise to propp the entry of a mine, in reliance on such promise, continued to work for a reasonable time, and

01. Complaint alleging that the servant continued only a reasonable time, and

01. Complaint alleging that a servant relying on his master's promise to propp the entry of a mine, in reliance on such promise, continued to work for a reasonable time, and

- 10 Cur. Law. MASTER AND SERVANT SS 3H3.
- \_Pleading statutory causes of action.\_See
- C. L.
- 930--Where a party relies for recovery upon a special statute creating a liability where none existed before, he must set forth in ordinary and concise language a statement of facts showing a right to recover under such statute.\[20\] Decisions as to pleadings in actions based on various statutes are given in the note.\[21\]
- _Objectionable as setting up two separate_
- Ann, St. 1901, SS 70871, requiring machinery to causes of action. Southern R. Co. v. McGowan \[Ala.\] 43 S 378.
- 10. A complaint defective for failure to alege that the servant did not know of the danger is cured by the verdict where the question was submitted on the proof received causing him to fall into a vat, which was without objection. City of Henderson v. Smith. 31 Ky. L. R. $60, 104 SW 277. Defect to combat him complaint in falling to sufficiently allege that plaintiff continued to work only a reasonable time after promise to repair is cured by a verdict where the question was illigated $78 NE 1038. A complaint under Burns' Ann. Potter \[Ky.\] 106 SW 1178. Failure to allege was necessary to show a cause of action master's knowledge of danger held cured by verdict. Postal Telegraph Cable Co, v. Likes, 215 L1. 249, 80 NB 136.
- 20. Kelly v. Northern Pac. R. Co., 35 Mont.
- 243, 88 PS 1009. A complaint in order to show a statutory liability must clearly allege as a statutory liability must clearly allege as a statutory duty. Reliance Mfg.
- 21. Alabama: In action based on Code 1896,
- 22. Alabama: In action based on Code 1896,
- $ 1749, subd. 1 (defect in ways, works, or machinery, a count alleging that a trestle in use at a particular place was defective and
- 23. full was held not demururable for failure to
- 24. specify the particular part of the ways,
- 25. work, or machinery claimed to be defective.
- 26. West Pratt Coal Co. v. Andrews \[Ala.\] 43 S
- 348. Complaint held not to show a defect in alleging that engineer in charge of a locomotive," part of "ways, works, and
- "mther buggy," part of "ways, works, and
- 27. unchinery," but only a negTigent use there.
- 28. Woodward Iron Co, v. Johnson \[Ala.\] 43 S 186. Complaint for injury because of
- 29. rediscovery of fellow-servant in allowing a car to run down upon harm held insufficient
- 20. DeGree 1896, $ 1749; because not alleging
- 21. that the injured person was employed in or
- 22. about the railway or was discharging any
- 23. duty in connection therewith. Woodward
- 24. Iron Co. v. Corl \[Ala.\] 44 S 969.
- 25. Indians: Complaint based on Burns' Ann.
- 26. St. 1901, SS 70871, requiring machinery to be
- 27. bearded, must show that it would be practicable to guard it without rendering it use-
- 28. United States Cement Co. v. Cooper
- 29.0
  Defenses; the answerSee S C. L. \[931\].There seems to be a conflict of authority as to whether the defenses of negligence of a fellow-servant,\[22\] contributory negligence,\[23\] and assumed risk,\[24\] must be specially pleaded.\[25\] A plea of contributory negligence or assumption of risk is defective which does not set out the act or acts which contributed to the injury as a proximate cause or constituted assumption of risk,\[26\] but a defective plea will be taken as good if it gives notice of the defense tendered, unless the adverse party moves to make it move definite and certain.\[27\]

Issues, proof, and varianceSee S C. L. \[932\].Negligence must be proved as alleged.\[28\] There can be no recovery for negligence other than that alleged,\[29\] and to clean machinery in motion held to state

negligence. Allegation that plaintiff "negligence" cannot cause of action under Code Supp. \[1902, S 4998b\], prohibitting such act though statute

sion. Creole Lumber Co. v. Mills \[Alia.\] 42

was net mentioned. Bromberg v. Evans

S 1019. A plea of contributory negligence, Laundry Co., 134 Iowa, 38, 111 NWV 417.

Alleging that the person injured knew or thought, with the exercise of reasonable care,

hibiting employment of persons under a certain age must be pleaded as negligence, or it

Jones v. Pioneer Min. & Mfg. Co. \[Alia.\] 42

cannot be the basis for a recovery. Van Wyck v. Dickinson, 148 Mich. 418, 14 Det.

because not alleging knowledge of risk and

Leg. N. 198, 111 NWV 1033.

Montanemolami alleging that "defendant company so carelessly and negill-

S 525.

entry managed, operated and ran said atring

of cars" held not sufficient to admit proof of

negligence, of defendants engineer, under

Southern R. Co. v. McGowan \[Alia.\] 43 S 878.

Laws 1903, p. 156, making railroad company

Nonsult proper where plaintiff failed en-

liable for negligence of engineer (in absence

tricky to prove allegations that he was sent

of contributory negligence), and Laws 1805,

to dangerous place and that careless and

p. 1, making company liable for negligence

incompetent events were employed, Holly

of any employ connected with operation of

road. Kelly v. Northern Pac. R. Co., 35

S 75 SE 482. Where complaint alleged appli-

Mont. 243, 88 P 1009.

**New York:** Complaint alleging that plain-

tiff was directed by defendant to enter an

elevator of defendant, that elevator was defective

proof of failure to servant charged with such

fective in certain respects, that it fell,

during plaintiff, and that due notice of the

sufficient. Birmingham Rohling Milli Co. v.

time, place, and cause of the injury was given

Myers \[Alia.\] 43 S 482. Variance immaterial

within 120 days, as provided by employer's

hiablity act (Laws 1902, e, 600), held to state

cause of action under statute for negligence

of superintendent. Harris v. Baltimore Mach.

not in the room but was preparing to prop

& Ell. Works, 148 N, 7, 141, 80 NE 1028.

22. The defense of negligence of a fellow-

servant cannot be proved unless pleaded.

Peeve v. Cousas da Elice. Co. \[Cal.\] 92 P 2

bleck and adjusting it under engine being

89. The defense that a servant's injuries

were caused by negligence of a fellow-serv-

sented may be proved under a general denial

and need not be specially pleaded. Big Hill

Cool Co. v. Abney's Adm'r, 30 Ky. L. R. 1304,

101 SWV 894.

23. Contributory negligence is a matter of

defense provable under a general denial.

Pittsburgh, etc., R. Co. v. Collins, 168 Ind.

467, 80 NE 415.

24. The defense of assumed risk may be

set up in an amended answer without

changing the issue raised by a general denial. Smith v. Rock Island A. & L. R. Co.

119 La. 537, 44 S 290. Complaint alleged that

deceased did not appreciate danger of work

at which he was injured and was not warned,

and answer was general denial. Held as-

sumption of risk was raised and instruction

thereon was proper. Shirley v. Abbeville

Furniture Co., 76 S. C. 452, 57 SE 178.

25. See, also, S C. L. \[932\], for authorities and

ditions.

26. Vings v. Inman Milli, 76 S. C. 550, 57 SE

01. A plea of contributory negligence is in-

sufficient without alleging facts constituting

lision with another car may be amended to

# Vol. X. No. 5. Current Law, September, 1908.

(Copyright, 1908, by The Keefe-Davidson Company.)

MASTER AND SERVANT--Cont'd.

proof of negligence not alleged is inadmissible. \[30\] Where several acts of negligence are alleged, recovery is justified on proof of one or more. \[31\]

(SS 3H) 4. \_Evidence, burden of proof, presumptions.\_See 8 C. L. #22--The burden is upon the plaintiff to prove negligence of the master \[32\] as alleged, \[33\] and that

allege that the motorman jumped when he saw a collision was inevitable. Edge v. I.G. Southwest Missouri Elec. R. Co., 206 Mo. 471, 104 SWP 90. In an action for injuries re-ceived because of a defective machine, there is no variance between allegations that a wheel driving being "was out of plumb and wobbly," and proof that the surface of the wheel was not true to the axle which had gotten out of the true center of the wheel, and that its operation was irregular and un-steady. Receivers of Kirby Lumber Co. v. Polondexter \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 513, 103 SWP 429. Where a servant alleges a specific ground of negligence, he may not recover on proof of another and different act. De La Almatic Coast Line R. Co., Malard \[Pla. Mar v. Herdeley \[C. C. A.\] 157 F 547. Where a servant fell on an unguarded machine and merely alleged negligence in leaving the goal of oil on the platform by which he was a caste to fall, he could not rely on violation of Laws 1897, p 441, c 415, in failing to guard the machine. Martin v. Walker & Williams Mfg. Co., 108 XY 708, Where only depend of negligence asserted was retention \[Iwash\]. 91 P 560. A complaint alleging of incompetency with notice of his incompetency, other claims of negligence may not be considered in determining whether an incompetency without a miseventant was retained. Trend v. Detroit United R. Co., 149 Mich. 33, 14 Del. Leg. N. 429, 112 NWP 977. Declaration alleging improper construction v. Crosble \[Ind.\] 81 NE 474. It is sufficient to of machine is not sustained by proof of defective condition. Latrobe Steel & Coupler Co. v. Shlones, 129 III. App. 215. Allegation that roof swayed down and caught car passing the thermometer, and proof that timbers of \[Foward\] stayed down and ear caught thereon, held not to present a variance. Jones & Adams Co. v. George, 237 Ill. 64, 81 NE 4. Declaration charging that plaintiff was unaware of the fact that wire was charged with electricity is sufficient to carry proof of custom of master to notify servants when current is turned on. Chicago Suburban Water & Light Co. v. Hyslop, 237 Ill. 808, 81 NE 379, afg. 129 III. App. 575. Allegation after servant demanded repair of defects and proof that he was unaware of them presents a variance. Grace Co. v. Larson, 237 Ill. 101, 81 NE 44. Declaration alleging that servant was injured while uncoupling cars and proof that he was injured after uncoupling and while attempting to close the knucke of the coupler does not present a variance. Illinois Cent. R. Co., v. Heath, 228 Ill. 312, 81 NE 1022. Allegation that defendant in the exercise of ordinary care should have known of employe's presence in car at time of moving it held not sustained by evidence by improper order given by foreman, Crane Co., v. Hogan, 228 Ill. 38, 81 NE 1082. Where declaration alleges several duties of the master and their breach, proof of any one of them will sustain recovery. Postal Telegraph-Cable Co. v. Likes, 225 Ill. 349, 80 NE 136. Where negligence of master otherwise appears, failure to prove an allegation of ownership of place 10 Curr. L.--50.

that it should have been known. Carnegie \[tion and test of hook. El Paso Foundry & Steel Co. v. Bygers (C. C. A.) 149 F 667. Where brakeman was killed by a department, this admlnistrator, to prove negligence, was entitled to urge every inference the Jurry might legitimately draw from the facts proved. Hinson v. Lehigh Valley R. Co., 106 NYS 602. In action for death of an employee, a charge that plaintiff must establish negligence on the part of the master, and that intestine was not negligent, and that liability could not be based on sympathy, was proper. Pearce v. Quincy Min. Co., 149 Mich., 112, 14, Det. Leg. N. 367, 112 NWT 739. Where a servant was injured by explosion of a stem pipe, he has the burden to show that a fellow, servant through whose negligence in start-ing the engine the explosion occurred was ordered by the foreman to start it. Baldwin v. American Writing Paper Co. \[Mass.\] 82 NB 1. Where employee sures for injuries alleged to have been caused by negligence of a third person, he must show that such person represented the master and exercised supientenndence. Reardon v. Byrne \[Mass.\] 80 NE 827.

Drakeman, struck by obstruction near track while switching, must prove the existence of the obstruction and also that the company had notice of it or was charged with notice. Nashville, etc., R. Co. v. Hayes, a l17 Tenn. 680, 99 SW 362. Where motorman was injured by explosion of a controller on his car, he had the burden to prove that the controller was defective and that the defect should have been discovered by the exercise of ordinary care. Beebee v. St. Louis Transit Co., 206 Mo. 419, 103 SW 1019. Where failure to warn is negligence relied upon, plaintiff has burden of proving that danger was special and not obvious so that warning was required. No such proof where injury was caused by moving rollers, danger from which was obvious. Hicks v. Claremont Paper Co. \[N. H.\] 65 A 1075. Where injury is caused by alleged defective appliances, the servant has the burden to show that the master was negligent either in furnishing defective appliances or did not exercise ordinary care in keeping them In repair. Southern R. Co. v. Carr IC. C. A.) 153 F 106. Where a defect fn an appliance is such as to injure an employee who operates it in a careful manner, the employer was negligent as a matter of law and the burden was on him to show that he had performed his duty, and inspected as often as ordinary care required. Harrod v. Shannon Packing Co., 125 Mo. App. 357, 102 SW 637. Where it is satisfactorily shown that a machine is defective and dangerous, which fact was known to the master, aerstant injured is not required to show technic- ally wherein the defect existed. Brunger v. Pioneer Roll Paper Co. \[Cal. App.\] 92 P 1042.

Evidence sufficient: In an action for injuries to a servant, evidence held to sustain a verdict for him. King Mfg. Co. v. Walton 1 Ga. App. 403, 58 SE 115. Circumstantial evidence held sufficient to show that engine helper was killed by hostler negligently moving the engine, though the direct testimony of the hostler was to the contrary. Atchison, etc., R. Co. v. Colliat, 76 Scan. 65, 88 SE 634. Where hook of block and tackle used to raise a smoke stack straightened out under the mere weight of the stack, the occurrence was prima facie proof of negligence, and burden was on defendant to show due care in selecc-company had notice of it. Loa V.

30 Cur. Law. **MASTER AND SERVANT SS 3H4.** 787

such negligence was the proximate cause of the injury.34 To recover on the ground pole. Farrell v. B. F. Sturtevant Co., 194 not make out a prima facie case. Atlanta, Mass. 431, 85 NE 469. To show injury to em- tip- ploye of construction train, who was jerkerk. Off, due to company's negligence. Cunningham- hamm v. Pennsylvania R. Co., 217 Pa., 67 & A negligence, but where death is caused in 236. To establish claim of negligence in "peration of a train, either one of these leaving cars unseuered on "hill" side track "to that they ran down upon a "head" track, subsequently causing a collision: Quinn v. Minneapolis & St. Louis R. Co., 100 Minn. 244, in 110 NW 872. To show negligence in action for death of brakeman in railroad yards. Pitard's Admir' v. Southern Jr. Co. \[Ya.\], 87 Brian W. Shankar \[Mass.\], 82 NE 702. Where B8E 61. To show negligence where servant warstwick by a truck placed so laying pipe was injured while at the bottom of a ditch by the slipping of a rope held by other employees. King v. Iowa Cent. R. Co. \[Iowa\] 114 NW 177. Evidence that the injury was caused by a latent defect in the place or appliances is insufficient. Cryter v. Chicago, etc., R. Co. \[C. C. A.\] 152 F 417. Where brakeman was injured in a collision, evidence insufficient to show negligence on the part of the engineer or conductor. Zahl V. Louisville, etc., R. Co., 31 KY. L. R. 853, from a building was struck by a piece of weapons belonging to his employer, which fell led. Where brakeman was injured during switching operations, evidence held insuff- elcint to show negligence on the part of the conductor. Chesapeake & N. R. Co., V. Anderson's Admir, 31 KY. L. R. 665, 103 SW 311. Where mixer was killed by wreck or a leans cycle in which he was being elevated, evidence in which he was being elevated, evidence had insufficient to authoring a finding that the wreck was caused by a jog negill- gently permitted to exist in the guides along which the shoes attached to the cage' ran. Elkton Consol. Min. & Milli, Co. v. Sullivan \[Coo.\] 92 F 679. Employive in subway tunnel was injured by fall of some substance which cut his hand. Cause of the fall or source of the material not shown. Held insufficient to establish cause of action under statute or common law. Oriotano v. Dennon Co., 104. NYES 1044. Evidence that an employee \[v.\] was injured while fixing a defective latch on a scraper is insufficient to show negligence. International, etc., R. Co. v. Hall \[Tex. Cliv. App.\] 13 Tex. Cliv. App.\] 102 SW 740. In action for injuries alleged to have been caused by premature blast in quarry, evidence held insufficient to show that fuse was defective to knowledge of master. Langhorn v. Nelson, 20 Ky. L. R, 482, 95 SW 223. Where brakeman was struck by a chute near the track while engaged in switching, but the evidence did not show by whom the chute was placed there nor when it was put there, negligence nor how long it had been there, negligence of the company was not shown. Nashville, etc., R. Co., V. Hayes, 117 Tem. 680, 99 SW 363. Circummatantial evidence that a switch- man was killed by derallment of car due to defective track cannot stand against over- whelemming testimony that he fell and was dragged 40 to 60 feet before the car was derailed. Cincinnati, etc., R. Co. v. Zachary's Admir' tX.\] 106 SW 842. Where section hand was injured in a yard, evidence held to show that employ in charge of a switching train were not negligent in mot keeping lookup, Ncorfolk & W. R. Co. v. Belchers' Admir' x\[Ya.\] 68 SE 579. Proof that a railroad employee was killed during the operation of trains does not have to be confused with the other way.

788 MASTER AND SERVANT SS 3H4. 10 Cur. Law. of incompetency of a fellow-servant, plaintiff must show that his injury resulted from some act or omission of said servant,\[35\] that said servant was incompetent to perform the duties assigned to him,\[36\] and that the fact of the incompetency of said servant was known to the master or ought to have been known, in the exercise of ordinary care.\[37\] It is generally held that mere proof of the occurrence of an accident does not alone raise a presumption of negligence on the part of the master,\[38\]

sponsible. Id. Where a servant was injured by falling of a blank, but there was no evidence as to what caused it to fall, the servant is not entitled to recover. McGowan v. Nelson \[Mont\] 92 P 40. Where a railroad employee was killed because of negligence of an engineer after his own negligence, the plaintiff has the burden to prove that the engine could have been stopped by the exercise of ordinary care after the danger was discovered. Louisville & N. R. Co. v. Young \[Ala\] 45 S 228. In an action by an employee for damages for the loss of his eyesight from the use of wood alcohol in the varnish supplied to him for the purpose of varnishing the interior of large casks used in the brew-ery of his employers, it is necessary that the proof show that the fumes of wood alcohol would have the effect of destroying eye-wired in the manner alleged, and such proof must be of such a clear and positive character that a basis will be provided which will justify the jury in drawing the inference that the injury was due to the cause alleged. Frank v. Herancourt Brew. Co., 5 Ohio N. P. (N. S.) SSI.

35. In order to recover on ground of incompetency of a fellow-servant specific acts of incompetency, and that the master knew of such incompetency, must be proven. Mc-Dermott v. Daniell, 106 NYS 496.

01. An employee injured because of alleged incompetency of fellow-servant must prove incompetency, and retention of such servant by the master with notice of his incompetency.

The master with notice of his incompetency, and that the injury was occasioned by such incompetency. Cooney v. Common-wealth Ave. St. R. Co. (Mass.) 81 NE 905, and is inapplicable where microman was inapplicable with controller on a car.

37. First Nat. BK. v. Chandler, 144 Ala. 286, 39 S 822. A conductor seeking to recover for Injury sustained because of alleged incompetency of a motorman must prove such incompetency, the master's knowledge of it was and his own ignorance of it. South Coyng- \[R\] 174. Where a brakeman was injured to 1072, 104 SW 708, Where elevator operator was injured by fall of the elevator and there was evidence that the fall might have been due to brake shoe becoming greasy, held where such fire escape was not the only liquutier applicable. Hayhir v Hammond \[M\] 92 NNE 702. Where a servant was injured by a plank which fell from the upper floor of a building, there being no evidence as to what caused it to fail. Mc-Dermott v. Nelson \[Mont\] 92 P 40. Where an employee has killed because of negligence of an engineer after his own negligence, the jury alone due to defective appliances, but running nicely all day as well as for three weeks and had never been out of order, held to authorize an inference that the explosion occurred because of a defect in the machine, the doctrine "res ipsa loquitur" not being applicable. Thompson v. National Fireworks Co. (Mass.) 81 NE 266. Where taken was thrown to the ground while attempting to set a hand brake, which turned suddenly, and cars and equipment were later burned, so that no proof of any defect was available, held mere proof of the accident did not raise a presumption of negligence. Hamilton v. Kananas City So. R. Co., 128 Mo. \[App. 619, 100 SW 671. Where piston rod of engine broke within the crossband, causing injury complained of, doctrine of res ipsa (N. S.) SSI.

01. In order to recover on ground of incompetency of a fellow-servant specific acts of incompetency, and that the master knew of such incompetency, must be proven. Mc-Dermott v. Daniell, 106 NYS 496.

01. An employee injured because of alleged incompetency of fellow-servant must prove incompetency, and retention of such servant by the master with notice of his incompetency, and that the injury was occasioned by such incompetency. Cooney v. Common-wealth Ave. St. R. Co. (Mass.) 81 NE 905, and is inapplicable where microman was inapplicable with controller on a car.

01. First Nat. BK. v. Chandler, 144 Ala. 286, 39 S 822. A conductor seeking to recover for Injury sustained because of alleged incompetency of a motorman must prove such incompetency, the master's knowledge of it was and his own ignorance of it. South Coyng- \[R\] 174. Where a brakeman was injured by the master with notice of his incompetency, the master's knowledge of it was and his own ignorance of it. Galveston, etc., R. Co. v. tency and that the injury was occasioned by such incompetency. Cooney v. Common- \[R\] 107 SW 108. Where airports result from complicated machinery, wealth Ave. St. R. Co. (Mass.) 81 NE 905, and is inapplicable where microman was injured by explosion of controller on a car.

01. First Nat. BK. v. Chandler, 144 Ala. 286, 39 S 822. A conductor seeking to recover for Injury sustained because of alleged incompetency of 10 Cur. Law. MASTER AND SERVANT SS 3H4. 789

and that the doctrine res ipso loquitur does not apply as between master and servant.39 Negligence may, as in other cases, be inferred from the fact of injury, taken in connection with other surrounding facts and circumstances 40 from which failure of the master to exercise due care may be fairly inferred, and this rule is sometimes stated as an application of the rule res ipso loquitur.41 Where an injury may have

92 P 679. No presumption of negligence

erfect as between master and servant where arises from mere fact that a railroad employee

reason for its application exists. Klebe v. has been killed, Jones v. Atlantic, etc., R. Parker Distilling Co., 207 Mo., 480, 105 SW

Co., 144 N. C. 79, 56 SE 556. No presumption of 1057. The doctrine applies if it appears from negligence raised where servant went down a

the facts and circumstances that the accident ladder in a mine shaft to fix a caught bucket

would not have happened had reasonable care

and was later found dead at the bottom of

been exercised, Robinson v. Consolidated Gas

the shaft, the ladder being in good condition,

Co., 106 NYS 1088. The rule res ipsa loquitur

Leonard v. MAIM Min. Go. (C. C. A.) 148 F is

limited to cases where the accident is one

827. Fact of injury by sudden raising of elevator held not to raalse presumption of negligence. Carnegie Steel Co., W. Byers (C. C.)

the master or imperfection in appliance.

A.J 149 P 667. Negligence of railroad com-

pany not inferable from mere fact that

105 SWV 1057. Under Laws Kan. 1874, p. 143 a

equpling between engine and tender broke, it must be proved by plaintiff. St. Louis & S.

F. R. Co. v. Wells \[Ark.\] 401 SWV 738. Fact

that ear started and injured conductor while

the was adjusting trolley held no evidence of negligence, when the cause was left wholly

lision and negligence is presumed. Tarussi v. to conjecture. Curtin v. Boston El. R. Co., 194

Missouri Pae. Co., 155 F 664. It is held

Mass. 260, 80 NE 522. Where a rear register

was injured while repairing trucks which

had been Jacked up by other employees and

rested upon the stacks, there was no pre-

sumption of negligence arising from the accident, in the absence of proof of negligence

Co. v. Stanford \[Ark.\] 99 SWV 81. But where

or what caused the car to fall. Moit v. Illinois

Cent. R. Co. (C. C. A.) 153 F 354.

89. The doctrine res ipsa loquitur is in-

applicable in personal injury actions by a

servant against the master. Reasons why

rule is applicable in actions by passenger,

and not in actions by servant, discussed

Hamilton v. Kansas City So. R. Co., 123

20. App. 619, 100 SWV 671. In such action

there must be affirmative proof of negligence

of the master. Id. The doctrine of res ipsa

loquitur has no application as between owner

injured. Klebe v. Parker Distilling Co., 207

of elevator and servant operating it. Diamond

Glue Co. v. Wietsychowski, 227 IH. 338, 81 NE

892.

001. Proof of the occurrence of an accident

In some cases furnishes such affirmative

proof of negligence. Hamilton v. Kansas City

V. Sebaopard Air Line R., I Ga. App. 85, 85 SE

86. R. Co., 123 Mo. App. 619, 100 SWV 671. It

should be applied only when reason there

ran along from rail of trench machine, slipped

obtains, and in case of injury to a servant

off the bolt on which it was hung, because

It applies only where-facts are not suscep-

tible of direct and positive proof by living

full on plaintiff. Fall of buffer was itself held

witnesses. Held not to apply where injury

evidence of negligence, Sullivan v. Rowe, 194

was caused by fall of an elevator and it did

Mass. 500, 80 NE 459.-Where a lenghsoremnu

not appear that knowledge of the facts was

usually by fall of a box leaned against

peculiarly within knowledge of the master,

the side of a gangway of a boat, the fall of

klebe v. Parker Distilling Co., 207 Mo. 480,

the box raised a presumption that it had been

105 SWV 1057.

105 SWV 1057. Under Laws Kan. 1874, p. 143 a

41. The maximin res ipsa loquitur applies

stream about the accident could not have happened

unless through some negligence of defendant.

would not have happened had reasonable care

that was injured by a germlinement of a car

unless through some negligence of defendant.

In the middle of a train while slowly passing

Maxim applicable where tests which had

been built three years collapsed, injuring

plantiff who was pushing cars thereon.

Kristau v, Frank Cee Co., .790 MASTER AND SERVANT SS 3H4. 10 Cur. Law. resulted from any one of several causes, the burden is upon plaintiff to show that it in fact resulted from a cause for which the master is responsible,\[42\] if the real cause of injury is left a matter of conjecture, there can be no recovery.\[48\] It is usually held that contributory negligence is an affirmative defense which must be alleged and proved by the defendant,\[44\] though some courts hold that the plaintiff must prove that the person injured or killed was in the exercise of due care,\[45\] and did not assume the risk.\[46\] The presumption arising from the instinct of self-preservation is sufficient in the absence of any other evidence to sustain the burden of proof in the first instance that an employ, killed while in the performance of his duties, was at the time in the exercise of due care,\[47\] but such presumption.

**Failure of safety elutech on frelight elevator to work in an emergency, resulting in in-Pittsburgh, etc., R. Co., Volgins, 168 Ind., jury, held to raise presumption of negligence,** 467, 80 NE 415. Master has the burden to National Biscult Co. v. Wilson \[Ind. App.\] 80 PREE 38. Where employee was returning from negligence. Cumberland FeL & T. Co., v. work in the cabage of a frelight train and graves' Adm'x, 31 Ky. L. R. 972, 104 SV 356;\*\*

was injured in a rear-end collision, the fact of the collision was prima facic proof of neg-

\*\*of the collision was prima facic proof of neg-

**trial Lumpe Co. v. Bivens \[Tex. Cir. App.\] 12 Gene. St. Calar V. St. Louis, etc., R. Co., 122 20 Tex. Ct. Rep. 117, 105 SV 831. Where a**

**Mo. App. 519, 99 SVW 775.**

**Where togave togave togave togave detached,**

**causing a runaway and death of driver, and**

\*\*tax having a defective brake, and which it appeared the wagon was under control of

**defendant and was repaired and kept in its**

\*\*such switches being forbidden by rule un-

**slops and under its direction, the fact of such**

\*\*asocident raised a prima facic case of negli-

**that if the company relied on violation of**

**gence. Gorman V. Hand Brew. Co. \[R. L.\] 66 the rule, it should prove that the work**

**could have been done without great delay**

**was injured by the collapse of a temporary**

**platform or shed built over machinery to**

**support workman. Perrick v. Edilitz, 108 NYS 28.**

**28.**

\*\*42. Where an assistant engineer was in-

\*\*jured by explosion of a steam oven and there was no evidence of any defect in the oven, and there was more probability that the accident happened because of plaintiff's negligence than from any neglect of the master or manufacturer, he was not entitled to in-

**voke the doctrine of res 1982 aqulour. Cum.**

\*\*mings v. Masters and Wardens of Massons Grand. Lodge \[Mass.\] 81 NE 183. Where an injury was caused by a derallment and there were two or more possible causes for one or more of which the master was liability, the plaintiff must prove that the injury was

**the result of one or more of such causes.**

**Henson v. Lehigh Valley R. Co., 106 NYS 602.**

**43. Where evidence leaves it uncertain as to whether the master or some unknown person was responsible for the negligent act causing the injury, no recovery can be had Edgar v. Rio Grande Western R. Co. \[Utah\], 90 P 745.**

**44. The master has the burden to prove contributory negligence. Bowring v. Willington Mulachie Iron Co., S. Pen, \[Del.\] 594, 66 A 369; Crawford & McCrimmon Co., Gose \[Ind. App.\] 82 NE 984; Edington v. St. Louis, etc., R. Co., 204 Mo. 61, 102 SVW 491.**

**Burden of showing contributory negligence**

\*\*is on defendant unless plaintiff's evidence affirmatively shows it. Texas & N. O. R. Co., v. Collins, 168 Ind. v. Conway ITex, Civ. App.\] 16 Tex. Ct. Rep. 898, 98 SVW 1070. Burden on defendant to

**show contributory negligence, but all the**

**evidence in the issue must be considered. Galveston, etc., R. Co. v. Worcester \[Tex. App.\] 18 Tex. Ct. Rep. 951, 100 SVW 990.**

\*\*Preporadance of all the evidence, regardar-

**less of its source, to show contributory negligence.**

**and avoidance of injury.**

**45.**

\*\*Dalton v. Ogden Gas Co., 126 III, App. 502. Lineman injured while working on a defective pole has the burden of proving freedom from contributory negligence. La

**Duke v. Hudson River Tel. Co., 108 NYS 189.**

\*\*Evidence insuffient. Id. Where servant was killed by being run over by a car, the plaintiff had the burden to show that at

**the time he was in the exercise of due care.**

\*\*Zigotte v. New York Cent., etc., R. Co. \[Mass.\] tion has no weight where testimony of eye witnesses disclose the circumstances of the accident.\[48\] By some courts it is held that the burden is on the defendant to prove that the employe knew or ought to have known of the danger, and that assumption of risk is an affirmative defense.\[49\] By others it is held that the plaintiff must show want of actual or implied knowledge of the defect which caused the injury.\[50\]

\_Admissibility in general.\_See 8 C. L. \[61\] The evidence introduced must conform to the allegations of the pleadings.\[61\] Holdings as to the relevancy of evidence on the issues of negligence of the master,\[52\] contributory negligence of the employee,\[53\]

Adams v. Bunker Hill & Sullivan Min. Co., safety devices, evidence of lack of repair of safety devices, and not that none was provided, was admissible. National Biscuit Co., A 638. Where in action for death of motor- van Nills by falling of roof of mine that he could see the track for a distance of 700 feet ahead at a certain point, and that the collision occurred 150 feet from that point, the presumption of due care on the part of the motorman was overcome. McGahan v. St. Louis Transit Co., 201 Mo. 504.

49. The master has the burden to prove assumption of risk. Madden V. Snaylor Coal Co., 133 Iowa, 699, 111 NPV 57; Grimm v. Omaha Elce, L & P. Co. \[Neb\] 114 NPV 769; Strong v. Rutland R. Co., 121 App. Div. \[391\], 106 NYS 85. Assumption of risk not conclusively established where brakeman was injured by giving way of roaded embarkament which he was under no duty to inspect. Strong v. Rutland R. Co., 121 App. Div. \[391\], 106 NYS 85.

01. A servant has the burden of proving nonassumption of a risk. Bolton v. Ovitt \[Vt.\] 67 A 881. A conductor who is injured by derailment of a train because of unsound ties has the burden to show that he did not know the danger. Dunbar v. Central Vermont R. Co., 79 Vt. 474, 65 A 528. Where an employee was repairing a reservoir with a walk in it which fell, but move that he did not know that the walk was unsafe and that the defect was not apparent. Hatch v. Reynolds' Estate \[Vt.\] 67 A 816.

01. Where negligence alleged was improper. early guarded swinging saw and no defect in the saw was complained of, evidence as to the reputation of the factory which made the saw is not admissible. Ray Lumber Co., v. Donnelly, 31 Ky. L' R. 601, 103 SV 255. Evidence that it was the custom for the tailer of a stave bolling machine to take the place of a feeder temporarily absent held \[Co. v. Kinder, 126 Ill. App. \[42\]. Where oiler admissible though not pleaded, where it was set up as a defense that the servant was so acting at the time of his injury without authority. Arxadelaphing Lumber Co., Henderson \[Ark.\] 105 SV 882. Under allegations of complaint in action for death of em. ploye in ash pit, evidence held admissible as to depth of ashes in pit to show that place of work was dangerous. Nashtion v. Laedede Gashlich Co., 123 Mo. App. \[132, 100\] SW 1104. But proof by expert that it was not proper management to allow ashes to accumulate under boiler was Inadmissible. no such ground of negligence being alleged. Id. Where complaint alleged general lack of repair of elevator, want of proper inspection, and also failure to provide machines, was within discretion of the court. Boyd v. Taylor \[Mass.\] 81 NNE 277. Where an employee was injured by breaking of a belt, it was held admissible to show that knives of the machine operated by the belt were dull and the guorge inaccurate as affecting the strain on the belt. Northern Pac. R. Co. v. Wendel \[C. C. A.\] 156 F 336. An injured servant held entitled to testify as to how he would have used certain appliances if he had been supplied with them. Shaw v. Highland Park Mfg. Co. \[N. C.\] 89 SE 676. Failure to give statutory signals at a crossing may be considered in determining an issue of negligence where a section aforeman was killed by his hand car colliding with a freight train. Bussey v. Chargiston, etc., R. Co. \[S. C.\] 58 SE 1015. Where an injury resulted from a lever on a log carriage becoming unfastened, statements by the master's agent while con-structure the mill that the fastening was defective are admissible as showing notice of such defect. Trickey v. Clark \[Or.\] 93 and alleging that while riding he failed to servant in repairing motor, order given him by vice-principal to repair all motors that became in such condition be shown, though given in connection with another motor. Marquette Cement Mfg. Co. v. Williams, 230 heads of a growing machine, discussions III, 26, 82 NE 424. Where master's neglitened is based on the fact that he required undue hastage of a minor employee, evidence as to the character of the appliances as cause-lang delay is admissible. Jefferson Theatre Program Co. v. Crejczyk, 125 II. App. I. Where foreman directed a carpenter to move a derrick, and, in course of work, a servant was killed, in the action for his death, testimony of the foreman as to the carpenter's relation to deceased, giving of orders, etc., was admissible. Farrell v. B. F. Sturtevant Co., 194 Mass. 431, 80 NE 469. On Issue whether conductor was guilty of neglitened in directing a flying switch to be made, evidence that it was usual and customary to make flying switches "upon the track in question was admissible, though a rule prohibited such switches except when necessary to save time. Galveston, etc., or fect. Bodeux Lumber Co. v. Ford R. Co. v. Still (Tex. Civ. App.) 18 NEx. Ct. Rep. 582, 100 SW 176. Where employee is injured by fall of roof of mine entry, and must show negligence in manner of use of propps, he may show another practicable and safe way of propping the roof. Madden v. Saylor Coal Co., 138 Towa, 699, 111 NWP 57. Testimony of engineer who had driven engine that it leaked steam so badly that track was obscured held not objectionable as opinion evidence. Stone v. Union Pac. R. Co. \[Utah\] 89 P 715. Fact that other wood was available for handle of hand car which broke could be shown as a circumstance tending to show negligence. Southern R. Co. v. McGowan \[Ala.\] 43 S 878. In action for death caused by cars striking deceased, proof that engine carried no light was admissible to show one of the details, though not all agreed as negligence. Alabama Steel & Wire Co. v. Griffin \[Ala.\] 42 S 1034. Where the fact of employment is denied and it is set up that plaintiff was injured by an apparatus owned and operated by a third person, it was error to refuse evidence that plaintiff was not in defendants' employ and question whether the pole was never the or the object of the bridge was proper. Smith v. New Orleans & Wire Co. v. Griffin \[Ala.\] 43 S 1034. Where the fact of employment is denied and it is set up that plaintiff was injured by an apparatus owned and operated by a third person, it was error to refuse evidence that plaintiff was not in defendants' employ and question whether the pole was never the or the object of the bridge was not in defendants' employ and question whether the pole was never the or the object of the bridge was not in defendants' employ and question whether the pole was never the or the object of the bridge was not in defendants' employ and question whether the pole was never the object of the bridge. Smith v. New Orleans & Wire Co. v. Griffin \[Ala.\] 43 S 1034. Where the object of the bridge was not in defendants' employ and question whether the pole was never the object of the bridge was never the object of the bridge. Smith v. New Orleans & Wire Co. v. Griffin \[Ala.\] 43 S 1034. Where the object of the bridge was not in defendants' employ and question whether the pole was never the object of the bridge was never the object of the bridge. Smith v. New Orleans & Wire Co. v. Griffin \[Ala.\] 43 S 1034. Where the object of the bridge was not in defendants' employ and question whether the pole was never the object of the bridge. Smith v. New Orleans & Wire Co. v. Griffin \[Ala.

10 Cur. Law. Master and Servant SS 3H4. 793

Indianapolis Trac. & T. Co. v. Holticlaw

other parts of the track would become defective. Id.

\[Ind. App.\] 82 NE 986. Where a railroad

employe attempted to board a train in full

53. Held admissibleWhere a workman is

view of the engineer who opened the thrott-

killed by striking his head against an electric wave, while doing work required and

and the employee was thrown beneath the

necessary for the completion of the building

wheels, it was immaterial whether the em

on which he is employed, statements made

ploye was attempting to board the train in

by him to other workmen as to whether

accordance with an established custom of

employes. Daniel v. Atlantic Coast Line R.

are admissible for the sole purpose of show-

Co. \[N. C.\] 88 SB 601. Where a servant was

injured by a lathe trimer and there is

no evidence that saws used in the trimmer

being upon the question of contributory

were larger than necessary, or less safe

than smaller saws, evidence that the master

tried smaller saws is immaterial. Barclay

for injuries received by plaintiff white rid

v. Puget Sound Lumber Co. \[Wash.\] 39 S

ing backwards on a handcar, the existence

430. Proof that after an injury to plaintiff

of a rule forbidding riding in that man

caused by turning of a girder, which was

ner was disputed, proof that others had

being raised by four men with cilben bars,

fidden in that manner was admissible.

it was afterwards safely raised by three

Southern R. Co. v. McGowan \[Ala.\] 43 S 378,

men with a rope and jack, was inadmissible

Evidence that it was the custom of a rail-

tending to show an admission that first

my conductor to give warning to the train-

method was unsafe. Bokamp v. Chicago &

men, assisting him in the making up of a

A. R. Co., 123 Mo. App. 270, 100 SW 689.

train in the yards, is admissible upon the

Where it appeared that a brick was dropped

question whether, knowing the custom, the

by a negligent fellow-servant working on a

conductor exercised ordinary care, and also

scaffold above plaintiff, evidence that the

upon the question. of whether the deceased,

scaffold was improperly constructed. Willis

being aware of the custom and habit of the

v. Thompson-Starrett Co., 54 Misc. 238, 104

conductor, was guilty of contributory neg-

NYS 668. Where injury was caused by

legence. Lake Shore, etc., E. Co. v. Botefthr,

volving shaft, not guarded as required by

10 Ohio, C. C. (N. S.) 251. Where a miner was

Rev. St. 1899, $ 6433, whether factory in-

injured by a timber which was being hoisted

spector had inspected plant was irrelevant.

falling back into the mine because of an

McGinnis, v. R. M. Rigby Print. Co., 122 Mo.

leged defective chute, evidence that it was

App. 227, 99 SW 4. Where a street car

the general custom for the man giving the

ductor was killed by coming in contact with

signals to stand clear. Leary V. Anaconda

an electric light pole near the track,

evidence of the speed of the car which was

engineer was killed by derailment and the

subject to the control of the conductor

company set up excessive speed, the

was not evidence of negligence of the com-

ginery's watch which stopped at time of the

pany. Savage v. Rhode Island Co. \[R. L\] 67

acident was admissible to show average

A 633. Evidence as to appliances in general

speed between the last station and place of

use in unloading one from vessels inamdis-

sible without further proof that appliances

at the time. Galveston, etc., R. Co. v. Gilles-

used were unusual and unsafe. McGeehan

pe \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 747,

v. Hughes, 217 Pa. 121, 66 A 238. Where em

106 SW 707. On issue whether section

pleye on a ladder was seized with dizziness

foreman whose push car was struck by a

and placed-his foot on oxywheels to steady

train was negligent in not sending flagmen

himself and it was drawn into the cogs,

out, proof that he had only four men was

evidence as to a defect in the machine to

admissible, as it was necessary to retain

which the cogs were attached. Lefferr v. enough to

Anheuser Busch Brew. Ass'n \[Mo. App.\] 8

R. Co. v. McCvery \[Tex. Civ. App.\] 18 Tex. Ct.

106 SW 105. Where an employo on a ladder

Rep. 218, 102 SW 172. Whether the

was sealed with dizziness and to steady

duct of an employe is negligence under all

himself rested his foot on cog wheels, his

the circumstances, barring recovery, is dis

testimony that the wheels might have been

tinct from the proximate cause of the

moving at the time cannot be taken as exi-

jury, and the fact that his hand was caught

dence on which to base an inference of

in a machine not guarded, as required by 794 MASTER AND SERVANT SS 3H4. 10 Cur. Law.

and assumption of risk,\[54\] are given in the notes. Evidence that similar accidents had previously occurred is admissible,\[55\] if they occurred under the same conditions.\[50\] Proof of repairs or precautions taken to prevent other accidents, subsequent to the injury, is usually excluded.\[57\] Proof on conditions surrounding the place of

he had grown a good deal during the 18 months since the accident is inadmissible. Bolton v. Ovitt (Vt.) 67 A 818. Where tip an action for death of an engineer killed by derailment the company set up that he was running at excessive speed, it was not admissible to show that he had been previously disciplined for running at high speed. Galveston, etc., R. Co. v. Gillespie (TEx. Civ. App.) 20 Tex. Ct. Rep. 747, 106 SW 707.

54, Knowledge of a defect may be considered either in establishing assumption of risk or contributory negligence, Bush v. West Yellow Pine Co., 2 Ga. App. 256, 58 SE 529. Where employ was killed by engine while at work in cinder pit, it was proper for defendant to show that deceased had been cautioned, that engine gave signals known to deceased, and to show custom and duty of deceased in the premises. Louisville & N. R. Co. v. Anderson (Ala.) 48 S 656. On the question whether or not servant assumed the risk, evidence is admissible to show that he was acting under command of the master, though it was not alleged. Dalton v. Ogden Gas Co., 261 Tll. App. 502. Where rabeman was injured while riding on engine pilot, in performance of his duties, proof of a custom of employees of riding on the pilot was admissible without proof that the company knew of the custom. Atchison, etc., R. Co. v. Sowers (TEx. Civ. App.) 17 Tex. Ct. Rep. 613, 98 SW 190. Where employe was killed by gas while working on oil tank, and there was evidence that he was inexperienced as to the danger from inhaling fumes from the oil, evidence that an inexperienced man would not realize the danger was admissible. Yellow Pine Oil Co. v. Noble (Tex. Civ. App.) 101 SW 276.

Inadmissible: Where a conductor was injured by a derailment caused by nusoundness of ties, evidence that a large percentage of declarments could not be accounted for nor guarded against was not admissible to show that derailments were ordinary riske which were assumed. Dunbar v. Central Vermont R. Co., 79 Vt. 474, 65 A 628. On issue whether a hole in the floor was in the same condition when plaintiff was employed as when (on same day) she stepped into it and was injured, the fact that it had previously been covered was immaterial. McCafferty v. Levande's French Dyeling & Cleaning Co., 194 Mass. 412, 80 NE 460. Testimony of the wife of an employee who was injured that she did not know he was working at a certain place does not lay foundation for an inference that he had never worked there before and hence did not know of the defect. Hatch v. Reynold's Estate (Vt.) 67 A 816.

55. Where girlr's hair was caught while she was at work by a revolving shaft, proof of another similar accident to another employee at the same place was admissible to show that the shaft, unguarded, was dangerous. McGinnis v. R. M. Rigby Print Co., 122 Mo. App. 227, 99 SW 4. That a wit 10 Cur. Law. Master and Servant SS 3H4.

- injury must be confined closely to the time of the accident.\* Where negligence alleged is failure to guard a machine, evidence that such machines are usually guarded may be admissible.\[69\] Proof of the usual manner of conducting business is admissible.\[60\] Want of care in the selection or retention of servants may be shown by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency \[61\] that the master, in the exercise of due care, must have had them brought to his notice.\[62\] But

prove his negligence at the time of the accident. Camp Bird v. Larson \[C. C. A.\] 152

the track that the engineer had to go out on F 160. Where a master is charged with negligence in failing to guard machinery, evidence as to his future intentions relating proof of similarity of conditions necessary to such guards is inadmissible. Adams

v. Peterman Mfg. Co. \[Vash.\] 92 P 329.

P 715. Where engine running backward

Evidence of repairs to machine after an accident held inadmissible. Laughlin v. Brasil \[N. Y.\] 79 NE 854.

- SSW. Where minor was injured by fail of rock from roof of mine, evidence as to the condition of the mine, at other times than that at which the accident occurred is not admissible. Arras v. Standard Paster Co.,

105 NYS 440. Evidence of condition of log carriage at time of trial inadmissible, its condition having been changed but evidence of its condition at a time when it was the same as at time of injury admissible. Ode-

gard. v North Wisconsin Lumber Co., 180

Wis. 659, 110 NWP 809. Where a conductor

was injured by derallment of his train

caused by unsound ties, the condition of

the roadbed 18 months after the accident

was not admissible where it was not the same as at the time of the accident. Dunhar v. Central Vermont R. Co., 78 Vt. 474,

65 A 528. Proof that master had used die

care for 15 years previously in inspecting

belts and belt lacings held not proof that he

had used due care at time in question. Gil-

more v. American Tube & Stamping Co., 79

Conn. 498, 66 A 4.

**Heid admissible:** Where an injury was

caused by alleged defective machinery, the condition of the machinery a reasonable

time before and after the injury may be

shown, but it is admissible only in so far

as it tends to show defective condition at

the time. Byrnger v. Pioneer Roll Paper

Co. \[Cal. App.\] 92 P 1043. Where a servant

was injured because of an alleged defective

bathneau, 225 Ill. 278, 80 NE 119, aff. 124

bell shifter, evidence as to the condition of

the appliance after the injury held inadmissible.

sible. Sibbert v. Scotland Cotton Mills

\[N. C.\] 59 SE 79. Where injuries were

caused by wobbling buzz saw, evidence of

another employ that the saw was out of

repair and wobbly three weeks before, when

he left, was admissible, when it appeared

also that no change in its condition had

occurred. Reich v. Ironclad Mfg. Co., 104

NYS 1069. Defective machinery being

laged as cause of injury, proof of its condition before and after the time of injury

was admissible to show its condition at the

time, and proof of its prior condition was

also admissible to show knowledge of the

condition by the master. Union Pac. R. Co. \[Hudan\] 89

v. Edmondson \[Neb.\] 110 NWP 650, Condition

of bolt which allowed bucket to fall, imme-

of the engine when it reached the station

v. Rowe, 194 Mass, 500, 80 NE 459. Proof

that at a time other than that of the accident

the scene of the accident, taken the day

after, were admissible. Edge v. Southwest

Missouri Elbec. R. Co., 206 M., 471, 48 SW

0. Where street car conductor was killed

by colliding with a trolley pole, and evidence

of measurements of distance of the pole

from the track was taken some time after

v. Rowe, 194 Mass, 500, 80 NE 459. Proof

that at a time other than that of the accident

v urements were taken was also admissible.

the roadbed 18 months after the accident

Kath v. East St. Louis & Suburban R. Co., 282

was not admissible where it was not the

him. 126, 88 NE 583. When action is based on

failure to furnish Props and timbers de

danded by miner, testimony as to what

65 A 528. Proof that master had used die

cross bars were in the room immediately

after the accident is admissible. Springfield

belts and belt lacings held not proof that he

Coal Min. Co. v. Geduis, 227 Ill. 9, 81 NE 9.

had used due care at time in question. Gil-

more v. American Tube & Stamping Co., 79

an unboxed gear in a cotton mil, evidence

Conn. 498, 66 A 4.

that at one other mill the wheels of such

Best admissible: Where an injury was

cases were boxed is inadmissible to show

that it was usual to box such gears. Sib-

condition of the machinery a reasonable

lert v 796 MASTER AND SERVANT SS 3H4. 10 Cur. Law.

such specific acts of alleged incompeteney cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of \[83\]. Proof that employer carried indemnity insurance is inadmissible.\*\*

_Expert and opinion evidence_\[85\] S. C. L. \[40\] is admissible relative to matters requiring special skill and knowledge \[85\], but not on ultimate issues where the facts can be made intelligible to the jury \[60\].

_Questions of law and fact._\[85\] S. C. L. \[40\] Unless the evidence is conclusive or the facts undisputed and such that only one reasonable conclusion can be drawn therefrom, the issues of negligence of the master \[67\], contributory negligence of the servant.

ing the motorman in question, are admission- maintain the particular type used. White-ble to show notice to the company. Trend

head v. Wisconsin Cent. R. Co. \[Minn.\] 114 v. Detroit United R. Co., 149 Mich. 388, 14

NVW 254. Where a switchman was injured

Det Leg. N. 429, 112 NWW 977. Where negili

by a collision between a switch and road

gent act complained of was the employ-engine, evidence of experiment made with a

ment of an incompetent foreman, evidence

different headlight than that on the engine

that he had performed other duties unskillfully, and the general disposition with which

could have seen along the track was

Inconclusive. Brantner v. Chicago, etc., R. Co.

Young v. Milwaukee Gaslight Co. \[Wis.\]

113 NWW 790. Question asked mining

expert, "what effect would the leaving out

\*\*63. First Nat. Bk. v. Chandier, 144 Ala.

286, 89 S 822. Where plaintiff used for in-

timbering a drift," is competent. Rogers v.

juries caused by negligence of engineer in

moving an engine, contrary to his promise,

while plaintiff was engaged in cleaning

it this held qualified to testify that room where

out, evidence that plaintiff was later dis

charged as incompetent was irrelevant,

and to state what precautions should have

Chesapeake & O. R. Co., V. Satterfield, 30 Ky.

L. R. \[1168, 100 SW 844.

**64. Steve v. Bonners Ferrly Lumber Co.**

\[Idaho\] 92 P 363; Virginia Carolina Chemical Co. v. Knight, 108 Va. 744, 56 SE 725.

\*\*65. On the usual method of protecting

miners from the dangers of falling rock.

Spencer v. Bruner, 126 Mo. App. 94, 103 SW SW

578. Expert testimony inadmissible that de.

cayed board in a negligently constructed

scaffolding could not carry a specified weight.

struction of the device was fully explained.

Schillinger Bros, Co. v. Smith, 225 III. 74, 80

NNE 65. On the question as to how many

whole function of a brake equipment is to

nails should be put into a clcat to make it

safe to stand on. Combs v. Rountree Const.

and at a uniform rate down a slight grade

Co., 205 Mo. 307, 104 SWY 77. On question

for a few hundred feet only, expert testiti-

whether die was properly set and whether a

mony as to railway freight train standards

certain splinter came from it. Hocking v.

is inapplicable and its admission would be

Windsor Spring Co., 131 Wins, 522, 111 NW

erroneous. Speiler v. Moerlin Brew, Co.,

685. Whether latones on switch on track

5 Ohio N. P. (N. S) 561. Opinion evidence

on main slope of mine were safe. Southern

inadmissible on safety of snatch block which

Coal & Coke Co. v. Swinney \[Ala.\] 42 808.

caused rope to break and on question where

Where switchman was injured by collision

employe engaged in hosting lumber could

between engine and cars alleged to have

have stood with safety to himself. Virginia-

been caused by a defective switch, an ex-

er could testify as to effect on train if it

156 SE 725.

ran over a split switch having the point of

the rail bent away from its fellow. Place v.

givon for defendant in n action for in-

Grand Trunk R. Co. \[Vt.\] 67 A 464. Where

it was alleged that log carriage was

depying to a youthful and inexperienced em-

forctive because not-readily controllable,

even warned nor instructed. Owensboro

dence by experts showing its workfix, its

make, etc., admissible.

Odegrad v. North

Visconsin Lumber Co., 130 Wis. 659, 110 NW

113 NWW 790. Question

809. Where injuries were caused by un-

garded, revolving shaft, testimony of ex-

perienced multifight that it was practica-

ple to guard shaft was competent. McGinnis

unless, assuming all evidence for the em-

v. R. M. Rigby Printing Co., 122 Mo. App. 227, 99 SW 4. Opinion as to safety and re-

ferences to be drawn, the 10 Cur. Law. MASTER AND SERVANT $ 3H4. 797

able but the most probable cause of injury. incoherent to the knowledge of the master, as shown by evidence, is the charge of neg-

held for jury. Odegard v. North Wisconsin

Iference against defendant, a verdict would humber.

Lumber Co., 120 Wills. 655, 110 NW 809.

be sustained and a nonsuist is improper.

**Questions of negligence and contributory**

Adams v. Bunker Hilli & Sullivan Min. Co.,

**12 Idaho**, 837 B 624. Where there is room

fit cars was injured by switch engine run-

for different conclusions on the question of

ning into such cars on a sliding. Pugmire v.

the master's negligence, the case should be

Oregon Short Line R. Co. \[Utah\] 92 F 762.

submitted to the jury. Crawford & Mo.

Where bretakema, riding on steps of engine,

Crimmon Co. v. Gose \[Ind. App.\] $2 NE 984.

According to custom, was injured by truck,

Conductor killed while adjusting trolley on

left close to edge of platform by station

car. Whether he was negligent and whether

ear, who had received a slight injury, and

car was started by negligence of moorman

had gone to the station, leaving the truck.

Curtin V. Boston El. K. Co., 194 Mass. 260,

held negligence and contributory neglig-

80 NE 522. Where scrvant was killed by

gence for jury. Koepsel v. Minneapolis, etc.,

explosion of water tank, held the evidence

I. Co., 100 Minn. 202, 110 NW 974. Negli-

as to the cause of the explosion presented

gence and contributory negligence for jury

a question for the jury. Castner Electrolyte

where shoveler on track was run into by

Alkali Co. v. Davis \[C. C. A.\] 154 F 983.

sname. Brown v. Southern R. Co., 144 N. C.

Where servant was injured while operating

634, 57 SE 397. Negligence and contributory negligence for jury where

that the accident would not have happened

wheeling materials in building stepped on

if certain efficient and practicable guards

loose plank which tipped up, causing him to

had been used, whether such testimony was

fall. Thompson-Straffer Co. v. Fitzgerald

credible and whether the guards were practicable

ticable were for the jury. Adams v. Peter-

clusions may be drawn from the evidence as

man Mfg. Co. \[Wash\]. 92 W 233. Where em

to master's negligence in furnishing tools

ploye was regularly engaged in replacing

and appliances, or whether the injury was

a belt on a pulley, and was caught on a bolt

the result of an obvious danger or want of

projecting from the pulley, and there was

ordinary care on part of the servant, the

evidence that pulleys could be made without

question is for the jury. Sparks v. River &

projecting bohts and were usually so made,

Harbor Improvement Co. \[N. J. Erf. App.\]

a refusal of a nonsuist was proper. Warner

67 A 600. The questions of negligence of

v. DeArmono \[Or.\] $9 F 378. Where there

the master and contributory negligence of

is evidence from which incompemetency of

the servant are for the jury where opposing

plaintiff's fellow-servants may be inferred,

and that plaintiff did not have equal opportunity

Place v. Grand Trunck R. Co. \[V.H\] $7 A 545.

unity with the master to know of this fact

whether company was negligent, or plain-

and it is doubtful whether the work was

sth lawiest for contributory negligence where

sub as to require strength or skill and

injury resulted from hosdier moving engine

whether negligence or incompetency caused

the injuries, the case should go to the jury.

York Cett., etc., 60, 103 NYS 1083. Bricks in

Corcorns v. Merchants & Miners' Transp.

a wall gave way when plaintiff stepped on

Co., 1 Ga. App. 141, 57 SE 962. Whether bohy

them in course of laying a wall on the bricks.

injured while operating machine was under

Fled, whether laying of bricks was unusual

tweibe, the age allowed by statute. Leathers

and negligent, whether place was unsafe, and

v. Blackwell's Durham Tobacco Co., 144 N.

whether plaintiff was guilty of contributory

C 330, 57 SE 11. Where injuries were

legleglegleg, were all questions for the jury.

legleged to have been received by reason of

Meehan v. Hogan, 54 Misc, 241, 104 NYS 417.

defective machinery and failure to give

Plaintiff's arm broken in attempt to throw

structions, whether machine was defective.

or was properly guarded, and whether

gence, plaintiff's contributory negligence,

proper instructions were given, were held

and whether he assumed the risk, were

for jury. Kenyon v. Sanford Mfg. Co., 103 NYS 1053.

snares for the jury. Hahn v. Plymouth El.

NYS 798 MASTER AND SERVANT SS 3H5. 10 Cur. Law. ant,\[88\] assumption of risk,\[99\] and proximate cause,\[70\] are for the jury. But where evidence is conclusive, such questions become questions of law.\[71\] Whether the relation of fellow-servant exists is a mixed question of law and fact.\[72\] (SS 3H) 5. \_Instructions.\_See 8 C. L. 941--Only a few illustrative holdings are here given, the general rules governing instructions being fully treated elsewhere.\[73\] Instructions should be confined to the issues raised by the pleadings and evidence.\[74\]

along with a hook, and his hook having \[Burns V. Old Sterling Iron & Min. Co., 188 slipped. Negligence of master for jury. \] N. Y. 175, 80 NE 927. Assumption of risk \[Mead V. Ashland Steel Co., 30 Ky. L. R, 1164, and contributory negligence for jury where 100 SWV 821. Contributory negligence and assumption of risk also for jury. Id. \]

68. Under the New York employers \[Mfg. Co., 131 Wis. 542, 111 NWV 64. While \], title of logs fell upon plaintiff, it was held \] ligence and assumption of risk must be submitted to the jury. Laws 1902, c, 600. Travis \] assumed the risk or was negligent, whether \] v. Haan, 103 NYS 973. Under Rev. Laws \] N. C. 1905, 8 488, providing that contributory negligence must be pleaded and proved by defendant, the trial Judge cannot direct \] Minn. 341, 111 NWV 162. Only risks assumed \] by servant as matter of law, under Laws \] the question to the jury. United States \] L. C. v. Howell \[C. C. A.\] 151 F 444. \] after safe place has been furnished, whether \] Questions of assumed risk and contributory negligence are questions of law only when \] jury. Ortalona v. Degnon Con., 104 NYS reasonable minds could not reach different \] 164. \] conclusions from the established facts. \] Clark v. Chicago, etc., R. Co., 231 Ill, 548, 83 NE 286. Under Laws 1902, c, 600, 8 3, questions of contributory negligence and assumption of risk were for jury, where em-\] they was injured by elevator, which was \] the evidence conclusively out of order. Aken v. Barnet & Aufesser \] Kathting Co., 118 App. Dlv. 468, 102 NYS 1078. Whether brakeman was negligent or \] assumed the risk in going between cars to \] master defective couplers, instead or crossing \] material conflict in the evidence, and where \] track to other side to use lever. Chosenv, etc., R. Co., v. Thompson \[Ark.J. 100 SWV 83. \]clusion can be drawn therefrom. Texas Mer-\] On conflicting evidence the master in not entitled to direction of a verdict on the ground that the servant stepped into a passageway into which material was being thrown when it was too dark to see him. Schmilkey v. Sinclair & Co. \[Mead III 14. NWV 612. Main employed as common laborer was put to work on iron work of finding, with which he was not acquainted and was not instructed. Held, whether he used due care \] or assumed the risk was for jury. Reardon \] Warps \[MAss. J 80 NYS 827. Where girls \] hair was caught on set screw of revolving shaft, whether she was negligent or assumed the risk. Van De Bogart v. Marinete \] M. \[Membineer Paper Co. \[Miss.\] 112 NWV 443. \] Prank on which plaintiff was standing to adjust belt slipped and plaintiff was caught in belt. Whether he was negligent or assumed the risk. Samuelson v. Henneniger Paper Co. \[Minn.\] 112 NWV 537. Questions of contributory negligence and assumption of risk are for the jury where evidence is not conclusive. Missouri, etc., R. Co. v. Carter \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 691, 104 SWV 910. \]

01. Plaintiff held not to have assumed \] risk, or been negligent, as matter of law, in \] the evidence of his duties, held a mixed question of law and fact.\[72\]

01. See Instructions, 10 C. L. 296. \] NYS 282. Whether risk was assumed or when shown to have had several years' experience, it was error to submit the issue \] negligence. Perrotta v. Richmond \] Bruck Co., 108 NYS 10. Whether servant went into \] him for injuries, Chicago, etc., R. Co. v. mine under orders from superintendent \] Denton \[Tex. Civ. App.\] 18 Tex. Ct. Rep.

All acts of negligence relied on and having support in the evidence,78 and all de

277, 101 SVW 452. Where there was evidence that some skill was required in carrying a (to properly submit the issues. Flynn v. rail across a ditch, an instruction that no skill was involved other than that supposed to be possessed by any ordinary laborer was held to properly submitted issues. Missouri, properly refused. Galvoston, etc., R. Co. v. Harris \[Tex. Civ. App.\] 18 Tex. Bonn \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 783, 98 SV 418. Error to submit an issue as to running recovery if car and bearings were found to be defective to conform to Louis Transit Co., 202 Mo. 418, 101 SVW 11. Where failure of master to employ a helper (and v. St. Louis Transit Co., 202 Mo. 432, 98) was not the cause of the injury, it was held 101 SVW 44. Where minor was injured by timber failing back into mine chute as it was being holsted, Instruction held erre-neous as imposing too great a burden on the master, Leary v. Anaconda Copper Min. Co. occurred in turning and not in operating a derrick, an instruction based on the theory of operating the derrick properly refused. Garaci v. Hill & O'Meareara Const. Co., 124 Mo. Apr. 109, 102 SV 594. Where a minimum was killed while coupling cars, it was proper to refuse an instruction relative to the custom of coupling cars under such circumstances, which did not hypothesize de-actents knowledge of such custom. Newers (Lamber Co. v. Fields \[Ala.\] 44 S 81. Where there was no evidence that an injury was due to failure to adjust machinery, an instruction on such theory was properly repaired. Brunger v. Pioneer Roll Paper Co. \[CAI. App.\] 92 P 1043. It is error to refuse a charge withdrawing an issue of negil-gence as to which there is no evidence. Tergesson v. Robinson Mfg. Co. \[Vwash.\] 93 P 428. Such error held not cured by other instructions. Id. In action for death of a switchman, instruction that plaintiff could not recover if in response to decedent's signal the engineer stopped his engine in the manner approved as proper by a person skilled in the business, properly refused as presenting an abstract question as to what persons skilled in the business generally do, instead of the question as to the duty of an person under the special circumstances. Houston & T. C. R. Co. v. Oram \[Tex. Civ. App.\] 107 SVW 74. In an action for compensa. tion under a contract providing for 5 per cent. commission on sals, 875 per month to be drawn against commissioners, an instruction allowing 875 per month in ad-defective appliance was a forceable. Peyger v. Western Dry Goods Co. \[Wash.\] 92 P 886. Not cured by another instruction. Id. Where miner was injured by fall on materials from roof of entry, instruction held inapplicable to the evidence. Garaci the master table for negligence a switchman in falling to discover a defect in the 242, 105 SVW 767. Where in an action on a contract for services the instumony of the parties coincided as to the terms of the contract, it was error to charge that the jury must find that the contract constituting the contract was had, but also that by it both parties intended to enter into a contract. Embry v. Harg 800 MASTER AND SERVANT SS 3H5. . 10 Cur. Law. -

fenses sustained by proof,76 should be submitted. Thus, the defendant is entitled to proper instructions on contributory negligence 17 and assumed risk.78 They should

ligence concurring with the negligence of a 125 III. App. 352. Instruction as to liability servant of an independent contractor to be applied, either if it was found that such for acts of vice-principal held not for acts other than those in the capacitated or the servant of an independent contractor. Atchison, etc., R. Co. v. Dickens \[Ind. T.\] 108 SVT 750.

77. Instruction of contributory negligence

2 approved. Hersberger V. Pacific Lumber man was injured while uncoupling cars, instruction held to property submit the queses.

contributory negligence relied upon should tion of negligence of his forearm. Brady v.

Kansas City, etc., R. Co., 206 Mo. 509, 102 SW SW

978. An instruction to find for the master

104 SWT 855, Where there was a some

pliances is equivalent to a charge to find for

113 m "unless he failed to use ordinary care."

1260 under ex wheels, a requested instrucu-

Suderman V. Woodruft (Tex. Civ. App.) 19

1300 that he did so be could not recover

Tex. Ct. Rep. 178, 105 SWT 217. In an action

clearly and specifically present the issues raised,79 and should not be argumenta-.

Harris \[Tex. Civ. App.\] 107 SW 108. A \[Mass.\] 81 NE 905. A charge that the law charge submitting assumed risk using "or-diantly prudent person" is sufficient under nary dillgence to prevent injury to himself a statute providing that the defense is not available where a person "of ordinary care" \[further charged that he could not recover would have continued the service with unless he was free from fault. Macon, etc., knowledge of the defect. Texas & P. R. Co. R. Co. v. Joyner, 129 Ga. 683, 59 SE 902. v. Johnson \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 410, 106 SW 773. An instruction submitting for injuries sustained because of defective the issue of assumed risk in language synctions on the subject is press Co. \[Tex. Civ. App.\] 106 SW 470. This & P. R. Co. v. Johnson \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 410, 106 SW 773. Instruction is not erroneous for either the car, and defendant \[cflared that brakeman purposely loosened where that doctrine is fully covered by instructions given. Postal Tel. Cable Co. v. Likes, 225 Ill. 249, 80 NE 136. 79. Appropert. In an action under Laws 1893, p. 294, making railroad companies like for injuries caused by unsafe appliances, etc., instructions held to conform to the \[Kx. Civ. App.\] 17 Tex. Ct. \[Ky.\] 106 SW 366. Instructions as to burden of proof held to properly submit the issues. Parry Mfg. Co. v. Eaton \[Ind. App.\] 83 NE 610. Where a conductor was killed by derailment of train, an instruction directing verdict but failing to hypothesize his notice of the defective track was not error where the evidence showed that he with the company of ascertaining it. Pitt. Pitt.

tive 80 nor inconsistent." They should not assume the existence of controverted facts,"2 nor intimate an opinion of the court."3 Material facts or issues should not be ignored,"4 nor should undue prominence be given to particular facts."5 Technical terms should be defined."5 Verbal inaccuracies are generally held harmless."67

nary care" held not to render instruction \[the facts upon which the question is to 'be misleading. Deering v. Barzak, 227 Ill. 71, 81 NB 1.

80. Instruction in an action by a miner \[stuech on discovery of defects by master for injuries caused by an explosion of gas \[the rule\] not argumentative. West-

\[the rule\] not argumentative.

10 Cur. Law. Master and Servant $ 4A.

(SS 3H) 6. \_Verdicts and findings.\_See S. C. L. #44--A verdict must respond to the pleadings. \[88\] Where a master and a servant are jointly sued, a verdict for the servant will not release the master where a violation of a statutory duty is charged. \[89\] Findings must be consistent with themselves \[90\] and with the general verdict. \[91\]

SS 4. \_Liability for injuries to third persons. A. In general.\_See S. C. L. #44--The master is liable for the acts of his servant within the general scope of his employment while engaged in the business of the master, \[92\] though the servant exceeds his

held error to refuse to define proximate cause where the collision might have been caused by one of several incidents. Place \[tens. Riordan V. Gas Consumers' Ass'n \[Cal. Where a minor servant was injured, instructive. to cut trees above a certain size on an-neglger, and that if the servant's negil-gence contributed proximately to the injury he could not recover, was erroneous for fall-out appear that the cutting of the smaller one, would constitute negligence on the part of the plaintiff, Gage v, Springston Lumber Co. \[Vasah.\] 91 P 558. Instruction that in negligence of his servant within the scope determining whether a servant had exempted his master from liability, because of contributory negligence or assumption of risk, the circumstances and exigencies of the position should be considered, was bad for failure to explain difference between contributory negligence and assumed risk. Southern R. Co. v. Carr \[C. C. A.\] 153 F 106.

SS7. Instruction that employ will be held to have known whatever a person of ordinary prudence "could" have learned held not erroneous because of use of word "could." Nelson v. Boston & M. Consol. Copper & Silver Min. Co., 23 S Mont, 223, 88 F 785.

SS8. A verdict for an employee injured is not sustainable on a theory not alleged. Grace v. Globe Stove & Range Co. \[Ind. App.\] 82 NE 99.

SS9. Where a mill company and its super-intendent were used for an injury caused by an unguarded saw, a verdict for the superintendent did not release the company, its duty to guard the saw being statutory. Johnson v. Far West Lumber Co. \[Vasah.\] 92 P 214.

90. A finding that a machine is not dangerous is inconsistent with a finding that it is dangerous for a boy fourteen years old to work within the absence of evidence that he was not sun juries. Fortune v. Hall, 106 NYS 787. In action for injuries to switch-nian, answers to special interrogatories held not conflicting. New York, etc., R. Co. v. Hamilin \[Ind.\] 83 NE 443. Statements in special finding that a car was forced up grade and ran back down grade are mere recitals as to the grade of the track and not a direct finding that an employee knew that, the track was not level. Masters v. Southern R. Co. \[Ind. App.\] 82 NE 1021.

01. Pacts shown by special findings held insufficient to overcome general verdict with its attendant presumptions. Masters v. Southern R. Co. \[Ind. App.\] 82 NE 1021.

01. Corporation hired horse and buggy for use of superintendent. Livery stable keeper told superintendent that horse would run away if not hitened. Horse ran away between 12 and 1 o'clock while being fed by superintendent, who had failed to hitch the horse. Noon hour was at superintendent's actual authority or violates express orders or instructions, or is guilty of a willful

the scope of his employment. Mattingly v. -- cause of the nosglence of a servant while Montgomery \[Md.\]. 68 A 205. A master is he was using the machine in his employer's libable for injuries caused by his servants', business and acting within the scope of his carelessness while acting within the scope of his employment. Fenn't V. Boston, etc., -- Website Autonobile Co. \[N. J. Law\] 67 A R. Co. \[Mass.\] 83 NE 705. Employee in 1018. Druggist liable for act of clerk in charge of horse left it standing unattended selling a solution containing 86 per cent. and went into a pool room for purposes of carbonic acid as a wash for a wound. Horst his own and the horse ran away, causing v. Walter, 83 Misc. 591, 103 NYS 760. The damage complained of. Held, employer liable, failure of employ to perform his duty negligent act of the servant was done in the being the cause. Hayes v. Wilkins, 194 Mass. 223, 80 NE 449. Assault by barrender, result-

ing in death of person assaulted, held to Mfg. Co. 105 NYS 1094. Evidence sufficient have been made in the course of his em-

to support a finding that a third person was plorrent and in performance of his duty struck by a piece of iron thrown from de-

to preserve order in the salon; hence em-

fendants factory by a servant acting within

ployer held liable. Merrill v. Coates, 101 the scope of his employment. Hogle v. Mlnn. 43, 111 NYS 386. Where a license was

Franklin Mfg. Co., 105 NYS 1094. Painters injured by the negligence of a servant, the

were allowed to use elevator to stand on master was held liable. Kelly v. Tyra

\[Min.\] 114 NYS 750. Person employed to then went to bottom to paint and elevator

drive automobile is presumvently acting for boy lowered the elevator and killed one of his employer and in the scope of his em-

them. Held, owner of building liable. Per-

ployment while so engaged, and proof that

ry v. Payne, 217 PA. 525, 66 A 563. A master

the machine was not on the direct route is liable for the acts of his servant within

between his employer's house and the place

the scope of his employment." Rochester v.

where he was directed to go is not enough

Bull \[S. C.\] 58 SE 766. Where a superin-

to overcome the presumption. Long v. Nute,

tendent of a cotton mill was intrusted with

123 MO. App. 204, 100 SWV 511. The servants

control of its policies and methods in pre-

of the owner of a building under construc-

verning interference with its operations,

tion hauling material into such building

the company was liable to one who went

must exercise ordinary care to prevent in-

upon the premises to anticoe away operatives

jury to servants of the contractor. Feddeck

and was tied and thrown into a pond under

v. St. Louis Car Co., 125 Mo. App. 24, 102

direction of the superintendent. Fields v.

SWV 675. Railway company liable for in-

Lancaster Cotton Mills, 77 A. C. 46, 58 SE

juries to third person by discharge of pistol

608. Negligence of a switchman, who dis-

with which conductor struck a passenger

wo whom he was electrients, if his act toward

to exercise due care to prevent injury to him

passenger was not warranted. Coleman v.

is negligence of the company. Texas, etc., Yazoo, etc., R. Co. \[Miss.\] 43 S 473. A.

A master is ordinarily liable for tortuous act

of servant, done in the course of his em-

ployment, in his master's service. Whether

the act is so done depends upon particular circumstances. Doran v. Thomsen \[N. J. Law\] 66 A 897. The shipper of a turnthe

103 SWV 229. Railway company held liable

agreed to load the same onto defendant's

car. While plaintiff, a servant of the ship-

per, was securing it in position on the ear

a servant of defendant negligently permitted

an appliance on the derrick to become un-

hooked, and plaintiff was injured. Held the

at railroad company was liable, Urbanek V.

Pennsylvan. R. Co. \[N. J. Law\] 65 A 897.

Facts held to show that the employees of a

corporation when committing the assault

complained of were acting within the scope of their employment. Moore v. Camden, etc.

R. Co. \[N. J. Err. & App.\] 65 A 1021. Act of

credit clerk in instituting criminal prosecution against one who had removed furniture

from the state held binding on defendant

when authorized by manager, and when defendants general counsel conducted criminal

nal proceedings. Staton v. Mason, 104 NYS

155. Driver of defendants team allowed

procedure to drive, contrary to his instructions,

and a collision resulted in which plaintiff

was injured. Held, defendants liable, the

boy and driver being at the time engaged

in their business. Ramberg v. International

R. Co., 53 Misc.

10 Cur. Law. MASTER AND SERVANT SS 4A. 805

tort." The master is not liable for unauthorized acts outside the scope of the servant's employment." Thus, for an act of the servant in the prosecution of some private purpose of his own unconnected with the business of the master the latter is not liable," although the servant may have been using instrumentalities furnished by the master." The master may become liable by ratification of a previously unauthorized act."

The doctrine of respondeat superior is, of course, inapplicable unless the relation of master and servant existed at the time between defendant and the person charged with wrongful act or omission."

The test by which to determine whether

93. A street railway corporation is liable

the scope of employment of persons doing it, for the torts of its servant committed within

Shay V. American Iron & Steel Mfg. Co. \[Pa.\] the scope of this business, whether by neg-

67 A 54. The master is liable for intentional ligence or willfully. Savannah Elec. Co. v. Wheatel, 128 Ga. 550, 68 SE 28. A master is

within the apparent scope of the master's responsibility for torts of a servant within

business. Blomness V. Puget Sound Elec. the scope of his employment. Compher v. R. \[Wash.\] 92 P 414.

Missouri & Kansas Tel. Co. \[Mfg. App.\] 106

sg. Where an automobile became out of

SW 836. A master is liable for wilful torts

order and the owner left it with the driver

of his servant committed in the course of

to repair and bring in, and the driver after

his employment. Killing dog. Columbus R. Co. v. Woolfolk, 128 Ga. 631, 58 SE 152.

was injured because of the driver's negil-

94. Carrier is not liable for an arrest

gence, held the master was not liable. Pat-

made by a special agent without authority.

terson v. Kates, 152 F 481. Plaintiff owned

St. Louis, etc., R. Co. v. Wyatt \[Ark.\] 105

an automobile which he was about to deliver

SW 72. Railroad company is not liable

to defendant to sell on commission when de-

where a switchman who is off duty suddenly

tendants' servant asked that plaintiff's serv.

assaults a person who is about to become a

ant retain it over Sunday so that defend-

passenger. Id. This is especially so where

ants' servant could show it to a buyer. De-

the assault was so sudden that it could not

fendants servant took the machine on a

be anticipated and prevented. Id. Forepe-

pleasure trip of his own and ran into a

man of bridge crew threw a water cooler

street car, destroying the machine. Held,

from a train and struck plantiful walking

defendant not liable. Evans v. Dyke Auto-

beside the track. The cooler belonged to

mobile Supply Co. \[Mfg. App.\] 101 SW 1132,

the foreman, and it was no part of his duty

98. Where a chauffe without authority

to provide such articles on cars on which

took his master's automobile from the

he traveled. Held company not liable. St.

Koulis S. R. Co. v. Bryant \[Ark.\] 98 SW 693.

and of his own collided with a person, he

Where a fire was set by the sub-boss of a

railroad bridge crew while the was sleeping

business and the master was not liable.

in a railroad boarding car while off duty,

hls act was not performed in the business of

97. Where a street railroad conductor

the company and it was not liable for results

situted malicious prosecution against a

thereof. Southern R. Co. v. Power Fuel Co.

passenger and subsequent thereto the man-

\[C. C. A.\] 152 P 917. Where a railroad comma

gary sent a surgeon to a wreck to attend

be could settle the matter if he would come

an injured person who thereafter died and

and see him, such fact was evidence of

the surgeon ordered the body sent to an

ratification by the company of the act of

undertaking establishment and there he and

the conductor. Conklin v. Consolidated R.

the undertaken, without the consent of rela-

Vo. \[Mass.\] $2 NE 23.

tives, mutilated the corpse, held the tort of

sg. Relation of master held to exist: The

the surgeon was not within the scope of the

other responseed superior applies to one

business for which he was employed and

who stands in the relation of master to the

railroad was not liable. Louisville, etc., R.

Co. v. Blackchrom \[Ga. App.\] 59 SE 341. A

servant has been appointed by the master

master is not responsible for the tortibus or

directly or metermatically. Prekker v.

wrongful acts of his servant when such acts

are not directly authorized by him nor done

with a sidewalk is not an independent

in the course or within the scope of the

servant's employment. Younkin V. Roche-

ford \[Neb.\] 110 NW 632. Where sewing maz-

from liability for such contractor's negil-

chine agents were working under a contract

specifying their powers, the master was held

app.\] 107 SW 120. Where an undertaking

not liable for a trespass committed by an

agent in retaking the relation existed at the time may be the degree of control by defendant over the person charged," or it may be the nature of the act and the business in the performance of which the servant was engaged.1 Where a servant negilgently induces a stranger to assist him, and the stranger's negligence in doing the master's work results in injury to a third person, the master would be liable,2 though not upon the theory that the person causing the injury was a servant, unless the employee inducing him to work had authority to employ him.3 In any case negligence of such third person must be shown.4 The owner of vehicle is not liable for an injury caused by negligent driving of a borrower, if it was not used at the time in the owner's business.6

Footnote 1: The author is grateful to the anonymous referee for his comments.

Footnote 2: The author is grateful to the anonymous referee for his comments.

Footnote 3: The author is grateful to the anonymous referee for his comments.

Footnote 4: The author is grateful to the anonymous referee for his comments.

Footnote 5: The author is grateful to the anonymous referee for his comments.

Footnote 6: The author is grateful to the anonymous referee for his comments.

Footnote 7: The author is grateful to the anonymous referee for his comments.

Footnote 806: Master and Servant SS 4A.

Footnote 9: The author is grateful to the anonymous referee for his comments.

10 Cur. Law. MASTER AND SERVANT SS 4A. 807

under exceptions to this general rule, the employer is liable for the acts of negligence of the contractor and his servants where the act contracted to be done is wrong or tortious in itself,8 when the work contracted for is intrinsically dangerous, and the performance will probably result in injury to third persons or the public,9 where the thing to be done or the manner of its execution involves a duty to the public incumbent on the propriator or employer,10 where the injury is the direct and necessary consequence of the work to be done11 and where the employer or propriator interferes with the contractor in the performance of the work.12

\_Damages._See 8 C. L. 147_.\_A master is liable for actual damages caused by the wanton act of his servant,18 but not for exemplary damages unless the act was authorized or ratified.14

\_Liability of servant; liability of master and servant._See 8 C. L. 947_.\_There is a conflict as to the joint liability of master and servant, where the servant alone was guilty of negligence or wrongdoing.18

not his master is liable. Where one was in-

putting up awning on defendants store. McFarley v. Newcomer & Co., 117 Tenn. 595,

pendent contractor who was constructing

a road through a sparsely settled commu-

tractor was constructing a road through a

ily. Houghston, V. Lema Prieta Lumber Co.

sparsely settled district, it was error to ap-

\[CaL\] 93 P 82. Contractor not liable for

ply the doctrine that, though the work was negligence of a subcontractor. Bell v. New

done by an independent contractor, the

York, 114 App. Div., 22, 99 NY84. Owner

master was liable on the theory that blast-

of land is not liable for the acts of an in-

ing was intrinsically dangerous. Houghton

dependent contractor in excavating, where

v. Lema Prieta Lumber Co., \[CaL\] 93 P 82.

contractor is fit and competent person.

10. Duty of store propriators, defendants,

Schulhofer v. Mulhare, 50 Misc. 658, 99 NY8

to public violated where contractor putting

489. Where country road directors gave a

up awning on store front allowed a roller

contract to another to rebuild and repair

to fall upon and injure plaintiff, a pedes-

a part of a road, the contractor to furnish

trian, on the sidewalk. McHarge v. M. M. M.

all materials, men, etc., the county directors

Newcomer & Co., 117 Tenn. 595, 100 S 700.

were not liable for an injury to a third

Electric sign company lowered a sign in

person caused by the servants of the con-

front of a theater, under employment and

tractor while blasting rock for the road.

direction of theater company, and allowed

Symons v. Allegany County Road Directory

sign to fall, injuring pedestrian. Theater

\[Md.\] 65 A 1087. A trained nurse per-

company not relieved by fact that sign com-

forming her usual duties and exercising the

pany was independent contractor. Loch

skill required in her profession does not

v. Columbia Theater Co., 197 Mo. 328, 94 SWV

come within the definition of a servant, but

$47. Where independent contractor made

rather is one who renders personal services

an excavation on depot grounds and failed

in pursuit of an independent calling and

to guard or light it at night, and a prospective

the employer is not liable for her acts.

tive passenger fell into, the railroad com-

Parkes v. Seasongood, 152 F 583. Owner

pany and independent contractors were both

liable. Louisville, etc., R. Co. v. Cheatham,

bullding held not liable to third person for

in jury caused by an appliance used by an

118 Tenn. 160, 100 SW 902. The running of

independent contractor in doing work on the

bullding. Goldstein v. Wolkenberg, 54 Misc.

sing is a business fraught with danger to

545, 104 NY8 738. Occupants of store con-

tracted with awning man 808 808 808 808 808 808 808 808 808 808 808 808 809 810 810 820 830 840 820 840 850 860 870 88 809 88 810 840 88 820 840 860 870 88 840 88 850 870 88 840 88 860 88 88 89 810 840 88 84 10 Cur. Law. MASTER AND SERVANT SS 5. 809

of negligence against the master is sustained by proof of negligence of a servant, \[31\] but a charge of a wanton or willful act is not sustained without proof of actual participation in or ratification of the willful act of the servant. \[22\] The questions of negligence, \[23\] whether the relation of master and servant existed, \[24\] and whether the servant was acting within the scope of his employment at the time, \[25\] are for the jury, unless the facts are undisputed and admit of but one reasonable conclusion. Holdings as to the admissibility of evidence are given in the note. \[26\]

SS 5. _Civil liability for interference with relation by third person._\[See * C. L. #19\] "Boycetting" of business by organized labor to compel unionizing of business and submission to rules of union will be enjoined. \[27\] An employer's liability insurance

Jointly negligent. Western Union Tel. Co. was a servant of the person sued held for v. Olsson (Colo.) 90 P 841. Where a third person was injured by the discharge of a re-vider which fell from a shelf in a telegraph office, it was error to refuse to charge that belongs to the company sold oil to cus-the jury must find that the company knew to the presence of the revolver on the premises or had given instructions that let be paid one cent per gallion for sales made, kept there in order to render it liable. Id. and an injury to a third person was caused A third person who is injured by being whether he was a servant or independent the servant of another has the burden to contractor was for the jury. Standard Oil Co. v. Parkinson (IC. C.) 152 P 681. his negligence caused the injury. Geiselman v. Schmidt (Md.) 68 A 202. One sung tournament by waiters out of personal III will, for injuries caused by automobile music show that driver or person in charge was defend- and annoyance, held a question for the jury.

the scope of his employment. Lotz v. Han-Ion, 217 P8. 339, 66 A 515.

But one who seeks to evade liability for injury to third persons on the ground that the person causing the injury was an inde-

was being used in his service at the time pendent contractor has the burden to prove that, for Kampmann v. Rothwell (Tex. Civ. App.) 107 SW 120.

21. Birmingham R. L. & P. Co. v. Randle (Ala.) 43 S 355. Under a complaint charging

n negligence of a master, recovery may be had

on proof of negligence of the servant. Bes-

semer Coal Iron & Land Co. v. Dokl (Ala.) 44 S 627. Compilation held sufficient. Id.

22. Birmingham R. L. & P. Co. v. Randle (Ala.) 43 S 365. Alleguations of injury to a person leaving a car held insufficient to show a wanton or willful act of the servant

ment and binding on the master. McNicholas in causing the injury. Birmingham R. L. & P. Co. v. Brown (Ala.) 43 S 342.

23. Where a child standing in the street

was struck by an insulator let fall by a

lineman, who was at work on a telegraph

the time the chauffeur was acting against pole, the question of the lineman's negligence was held for the jury. McNicholas v. this claim at the time summons was served

New England Tel. & T. Co. (Mass.) 81 NE

kfs. Questions of negligence and control-

tory negligence held for jury where third

107 NYS 655. Where one was struck by a person was struck in street by wagon driven

vehicle, evidence that the horse and wagon

by servant of another. Geiselman v. Schmidt (Md.) 68 A 202. Whether brakeman

fendant, is evidence from which the jury

was negligent in frightening a youth who

may conclude that the driver was defend-

was riding on a ladder on a freight car,

anus swarm. Geiselman v. Schmidt (Md.) causing him to jump, held for the jury.

78 A 202.

Texas, etc., R. Co. v. Buch (Tex.) 19 Pex.

27. George Jonas Glass Co. v. Glass Bot-

Ct. Rep. 991, 105 SW 987. Question of neg-

legence where servants of a contractor were

liquer organization seeking to compel a injured by falling imphers, which fall was

caused by acts of servants of the owner of

such a competitor in the labor market as to the building. Fedacev. St. Louis Car Co.

125 Mo. App. 24, 102 SW 675.

24. Where a pedestrian was struck by a

petition but not a malicious attempt to in 810

**MASTER AND SERVANT SS 6.** **10** Cur. Law. company, which has procured the discharge of an employee who has sued the insured employer for an injury is liable to such employ.28 Under the Georgia statute prohibiting the employment of a person already under contract with another to perform services,29 an action for damages arises at once, upon violation of the statute,30 in which damages equal to double the amount of wages contracted for may be recovered.31 The relation of employer and employe may exist, a contract having been entered into, though services have not commenced.32 An advance of money by the employer to the employee is a partial performance of an oral contract within the meaning of the statute.33 In Arkansas, one who entices away a laborer under contract is liable to a penalty.34

**SS 6.**\_Crimes and penalties.\_See 8 C. L. 950_An employer is liable for the violation of an ordinance, which is a police regulation, by his employe, though he did not consent thereto, and though the employee violated instructions.35 Holdings under the Georgia 88 and Alabama 37 statutes, making it an offense to procure an advance-

jure another's business. Id. A combination |person v. State, 1 Ga. App. 782, 58 SE 284, or agreement to maintain a system of pick-

Prosceution under Acts 1903, p. 90, will not

eting to prevent an employer from obtain-

Ile for injury to any one except the hirr.

ing labor in order to compel recognition of

Patterson V. State, 1 Ga. App. 782, 58 SE 284, the union, and for no other purpose, will be

**Elements of offense:** There is no offense

enjoined. Id.

**28.** Gibson v. Fidelity & Casualty Co., 222

**21.** 49, 83 NE 598. Evidence sufficient to

show that defendant procured such dis-

when a dispute arose as to the performance

charge. Id.

**29.** Acts 1901, p. 63, and Acts 1903, p. 91.

McBride v. O'Neal, 128 Ga. 473, 57 SE 789,

114.\*\* To constitute an offense under Acts

30.\*\* McBride v. O'Neal, 128 Ga. 473, 57 SE 1903, p. 90, there must be an intent to defen-

789. The employment of a person during

fraud at the time the advance is secured,

the life of a contract with another gives

rise to an action for damages under the

Mukley v. State, 1 Ga. App. 521, 57 SE 1023;

statute. Chambless v. Meiton, 127 Ga. 414,

127 Ga. 414, 56 SE 414.

**31.** The damages are a sum not less than

double the amount of salary or wages for the

term of the contract. McBride v. O'Neal, 128 Ga.

da. 473, 57 SE 789. Instruction to award

sum saved for proper where that sum was

lowest allowed by statute. Chambless v.

Melton. 127 Ga. 414, 56 SE 414.

**32.** Contract made on Dec. 24, in force at

once, though no service was to be performed

until Jan. 1. McBride v. O'Neal, 128 Ga.

473, 57 SE 789.

**33.** Not necessary that employe should

have commenced to work under Laws, 1902,

p. 91. McBride v. O'Neal, 128 Ga. 473, 57 SE 789.

**34.** Evidence held insufflenet to sustain a

verdict for plaintiff in an action under Klir-

by'e Dlg. $ 5030, prescribing a penalty

for interfering with or enticing away a la-

borner under contract with another, etc. Stur.

divant v. Tollette \[Ark.\] 105 SW 1037.

35.\*\* Flring blast within city without cov-

ering the blast. City of Spokane v. Patter-

son \[Vash.\] 89 P 402.

**36.** Construction of statute in general:

Laws 1903, p. 90, was not intended as a remedy for breach of contract or for collection

of debts, but to prescribe a penalty for

fraud. Rickerson v. State \[Ga. App.\] 60 SE

114. The act is not intended as a means of

for labelling a debt or enforcing performance

of a contract but to punish fraud. Heywood

v. State, 1 Ga. App. 53, 57 SE 1025; Mulders

v. State, 1 Ga. App. 53, 57 SE 1022. At

cannot be construed as one to compel pay-

of the work and he abandons the con-

Young v. State \[Ga. App.\] 60 SE 117; Fat-

**37.** 10 Cur. Law. MASTER AND SERVANT SS 6. 811

ment on a contract for services with intent to defraud, under the South Carolina statute making it_a crime for a farm laborer to refuse to carry out his contract after procuring an advance,\[48\] under the Texas act prohibiting payment in tickets or checks redeemable in goods,\[49\] under the Washington factory act,\[50\] under statutes of Ohio prohibiting employment of children,\[51\] and requiring heating devices to be supplied for motormen,\[52\] and under the Federal eight hour law,\[53\] are given in the notes.

4. Acts, 1903. p. 90; creates two distinct professions, and one charged with a violation thereof must be charged so definitely that no bearing allow for a change in the number of tokens he is charged. Patterson v. State, 1 Ga. App. 782, 58 SB 284. An indicentment which fails to who receives advances and refuses to perform charge that the failure to perform labor or repay advances was without good and provision is made to save himself by repay-sufficient cause is fatally defective. Mason mart, while one who receives advances and abandons the contract is not within the state. If not, the state is a firm leader working for a reasonable doubt before conviction can be ments to fall to perform the services required of him under the contract, held an attempt to secure compulsory service in payment of debt and void. Ex parte Drayton, 153 F 189, 58 SB 289. In a prosecution for viola- tion of Laws 1903, p. 90, on proof of facts, raising a presumption of guilt, the accused has the burden to return the same. Barnes or State \[Ga. App.\] SS SSRE 937. Presumption of fraudulent intent arising under Acts \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 247, 103 SW 1903, p. 90; is not rebutted by ray payment of advances unless such payment is made before date for commencement of work. Har- Washington factory act not liable to a well V. State, 2 Ga. App. 163, 88 SB 111. If it appears that accused was a miner and fate failure to perform services under the contract was due to parental interference, the presumption of fraudulent intent is re- employed. Laws 1905, p. 164, c.8, computed. Id. Testimony that a payment was not a consequence of being for a particular payment for labor done. Fuller v. State, 2 Ga. App. 696, 59 SB 1.

Instructions: On trial for violation of Acts 1903, p. 91, by specific acts set forth in the indicent, the judge did not err in helotling the whole of such statute in his charge, though the general words with which the act concludes did not embrace the case on 5 Ghlo N. P. (N. S.) 387.

trial, especially when it is contended that the defendant is not guilty except in the manner alleged. Perry v. State, 1 Ga. App. 543, 88 SB 60.

4. Sections 6986-8, providing that no boy or partial payment for labor done. Fuller v. State, 2 Ga. App. 696, 59 SB 1.

Under eighteen years of age shall be em-

Instructions: On trial for violation of Acts 1903, p. 91, by specific acts set forth in the 7 eclock in the evening or earlier than 6 indicent, the judge did not err in helotling the whole of such statute in his charge, though the general words with which the state and its constitutional. State v. Rodefer, act concludes did not embrace the case on 5 Ghlo N. P. (N. S.) 387.

trial, especially when it is contended that 42. The act of February 19, 1906, (SS 0. L.

the defendant is not guilty except in the 5), amendatory of 1% 444-3, creates a new manner alleged. Perry v. State, 1 Ga. App. 543, 88 SB 60.

67. Where a superintendent of a gang can

any penalty for such offense. It is there-

a public road exceeded his authority in contracting for a servant's services for 11

5 Ghlo N. P. (N. S.) 161. In an indicentman months in advance, the servant could not be

guilty of obtaining advances with intent that it was the duty of the accused to carry to defraud under Cr. Code 1896, 4730.

out the provisions of said sections, it is not Johnson v. State \[Ala.\] 45 S 230.

necessary to aver how or by whose authority

88. Cr. Code 1902, , SSST, making it crime

such duty was imposed. Id.

for a farm laborer to refuse to carry out a

48. Under 27 Stat. 340, prohibiting more contract of labor after he has received ad- than eight hours of work on public works,

vances, is unconstitutional as providing im-

the offense consists in requiring or por-

prisonment for debt. Ex parte Holman

sistance of the crop who has received advance-

8. C.) 60 SB 19. This is so though the act

the employee working more hours. Hence

does not provide for imprisonment for debt

offense may be committed on Ohio side of under civil process. Id. Such suit is also

state line, though most of the work is done

void as in violation of the constitutional

on the Kentucky side. United States v.

813 MASTERS AND COMMISSIONERS $ 1. 10 Cur. Law.

**MASTERS AND COMMISSIONERS.**

**8 1. Office, Eligibility, Appointment, and Compensation, S12.**

**8 2. Powers and Duties in General and Sub-**

**8 5. Powers of Court and Proceedings on Jets of Reference, S12.**

**8 3. Proceedings on Reference and Hearing**

**8 6. Re-reference, S14.**

**by Master, S13.**

_The scope of this topic is noted below.44_

**SS 1.** \_Office, eligibility, appointment, and compensation,_See $ C. L. 051_ --_Irregu-_

\*\*parity in appointing a master before return of process is waived by appearance and participation at the hearing without objection.45 A master is entitled to fair re-

muneration for time necessarily and properly spent.46 When a general rule of court

provides for a stated compensation, and services are performed thereunder, a master

or register cannot be deprived of such compensation by special order.47 Before

alowance can be made statutory provisions requiring the filing of a sworn statement of

the number of days of service must be complied with.48 A master appointed to make

**a** sale at foreclosure is liable in trespass for seizing property not embraced in the

**decree.49**

**SS 2.** \_Powers and duties in general and subjects of reference._See $ C. L. 052_ --\_The

master is a ministerial officer and the exercise of judicial power cannot be delegated

to him.46 Reference should be made only in case of an equitable nature,41 such as

cases involving accounts and the like,42 but upon overling of a motion to transfer

a cause from an equity to a law calendar, a reference is properly made though notice

of appeal is given.58 The smallness of a claim is ground for refusal of reference to

a master to ascertain the amount.54 The court may refer the case to a master without

first hearing the evidence and declaring the rights of the parties.58

Sherdan-Kirk Cont. Co., 149 F 809. Burden

of 'report was very brief and questions involved very simple. Gottschalk v. Noyes,

emergency as a defense to a prosecution

for working mem more than eight hours a

**225 III.** 44, 98 NW 72.\*\*

\*\*day is on the contractor. Id. An extraordin-

nary emergency in connection with building

\*\*8 45, held to authorize promulation of

of dam across Ohio river cannot be a con-

taining emergency extending through the

like of a contract, nor an emergency grow-

ing out of scarcity of labor, nor a flood and

requiring of repairs thereafter; must be

sudden, unforeseen, requiring immediate action, and when occasion is over, emergency

ceases as a privilege. Id. A construction

placed on eight hour law by government

engineers for some years could not be

pleaded as a defense after notice had been

given by the department that such construction

to was no longer followed. Id.

44. It includes all matters relating to

master's in chanery and court commissioners. Analogous matter may be found in

tilles, Reference, $ C. L. 1702; Restoring

Instruments and Records (examiners of

thes under burnt record), $ C. L. 1742;

Notice and Record of Title (refees under

Torrocks Act), $ C. L. 1169, and Partition, $

C. L. 1246, See, also, Arbritation and Award,

$ C. L. 238, and Depostitions, $ C. L. 964. For referees in bankrupty and proceedings

before them, see Bankrupty, $ C. L. 343,

45. McCune v. McCune, 21 Pa. Super. Ct.

01.

01. Charge by master for one and one-

half days examining pleadings, the same

time examining tetsmony, three days pre-

paring findings, and half day hearing ob-

jections, is too much when material part

## 8 Proceedings on reference and hearing by master

See 8 C. L. \[952\]--While a master may consider depositions taken by virtue of a dedimus protestatem in connection with the evidence produced before him,\[96\] he cannot hear cases and decide issues upon evidence taken before another master.\[97\] 'A witness who is apprehensive of injury to his personal or property rights may refuse to answer a question pro-pounded and stand on such refusal until the question has been determined by the court.\[98\]

## 4 Report of master, exceptions and objections

See 8 C. L. \[953\]--A master being purely a ministerial officer may, after expiration of his term, certify to the testimony taken before him,\[99\] but may not reach his conclusions and report them after that time. He is not required on request of a party to report evidence beyond what is necessary to a determination of the questions of law raised.\[66\] In a case involving a claim of credits wherein the evidence is conflicting, a report should show that such claims were passed upon and which claims were allowed and which disallowed.\[61\] A commissioner may authorize any person to write his report at his dictation, it not being essential that it be in his own handwriting.\[62\] A statute requiring auditors to reduce the evidence to writing does not require reduction to narrative form.\[63\] A waiver of retention of a commissioner's report in his office for the usual period for exceptions implies consent to its filing without notice of its completion.\[64\] A report filed after the time limited by order of the court is not a nullity,\[65\] but the delay is merely an irregularity which is waived by failure to make timely objection.\[66\] Exceptions must be specific,\[97\] and matters not raised thereby will not be considered.\[66\] Exceptions involving consideration of evidence must show the evidence necessary to decision thereon or at least contain a reference thereto.\[66\] Failure of a proponent to press a motion to compel a witness to answer a question, refused before the master and certified to the court, waives the right to an answer.\[76\]

## 5 Powers of court and proceedings on review

See 8 C. L. \[953\]--Except in involved matters of account, the master's conclusions of fact are only prima facie or advisory.\[71\] The presiding judge in reaching his decision may draw from the facts

dollars. Giragosian v. Chutylan, 194 Mass.

504, 80 NE 647.

55. Where rights of parties not involved in obscuration or doubts. Gottschalk v. Noyes,

128 Ill. App. 565, aff. 225 Ill. 94, 80 NE 72.

56. Coel v. Gios, 232 Ill. 142, 83 NE 529.

01. Parties entitled to have master hear

01. Exceptions to certain findings of mas-

83 NE 529.

58. Dr. Peter H. Fahrney & Sons Co, v.

Rummer \[C. C. A.\] 153 F 75.

59. Coel v. Gios, 232 Ill. 142, 83 NE 529.

01. Young v. Winkley, 191 Mass. 570, 78 NE 377.

01. Commissioner's report in mechanic's lien case. O'Neill v. Taylor, 59 W. Va. 370,

53 NE 471.

62. O'Neill v. Taylor, 59 W. Va. 370,

01. Questions and answers as transcribed

from stenographic report sufficient. Linder

v. Whitehead, 125 Ga. 115, 53 SE 588.

64. O'Neill v. Taylor, 59 W. Va. 370,

01.

01. Donaldson v. Fain, 127 Ga. 682, 56 SE 1023, distinguishing Pearv v. McDonald, 119

01. A. \[67\] 682 .

01. Objection must be made by exception

or motion within twenty days from filing. Donaldson v. Fain, 127 Ga. 682, 56 SE 1023.

67. Sanford v. Embryy \[C. C. A.\] 151 F 977.

Exceptions of mortgagor to auditor's ac-

813

83. Proceedings on reference and hearing by master.\[66\] 'C. L. \[953\]--While a master may consider depositions taken by virtue of a dedimus protestatem in connection with the evidence produced before him,\[96\] he cannot hear cases and decide issues upon evidence taken before another master.\[97\] 'A witness who is apprehensive of injury to his personal or property rights may refuse to answer a question pro-pounded and stand on such refusal until the question has been determined by the court.\[98\]

SS 4. Report of master, exceptions and objections.\[66\] 'C. L. \[953\]--A master being purely a ministerial officer may, after expiration of his term, certify to the testimony taken before him,\[99\] but may not reach his conclusions and report them after that time. He is not required on request of a party to report evidence beyond what is necessary to a determination of the questions of law raised.\[66\] In a case involving a claim of credits wherein the evidence is conflicting, a report should show that such claims were passed upon and which claims were allowed and which disallowed.\[66\] A commissioner may authorize any person to write his report at his dictation, it not being essential that it be in his own handwriting.\[67\] A statute requiring auditors to reduce the evidence to writing does not require reduction to narrative form.\[68\] A waiver of retention of a commissioner's report in his office for the usual period for exceptions implies 814 MECHANICS' LIENS $ 1. 10 Cur. Law.

reported such inferences of fact as they warrant and which he deems material.\[72\] Testimony made incompetent by statute should be disregarded.\[73\] Examination of a master as to what took place before him is not a violation of the rule against the taking of oral testimony in open court on the hearing of a case which has been referred.\[74\] It is presumed that a commissioner attended to his duties and that the evidence was taken in his presence.\[75\] Greater weight will be given to a master's findings when the reference is by consent of the parties than when made by the court without such consent,\[76\] and where the decree of appointment does not require the master to report the evidence, his findings of fact are generally deemed final on appeal.\[77\] Where the subsequent action of one of the parties has left all the facts confessed, it is proper for the court to set aside the reference to the master and his report.\[78\]

**SS 6.**_Re-reference_. See **s** C. L. 954.--Where a master whose term has expired certifies the evidence as former master, the court may in its discretion hear the case in open court upon the evidence so taken and thus dispense with a re-reference,\[79\] and it is not error to refuse to recommit for failure to take steps which were waived.\[80\] An order recommitting a report to a master for more specific findings, and requiring a statement of or reference to all the evidence, is sufficiently complied with by making a supplemental report reciting that a copy of testimony therewith submitted contains all the evidence from which the facts were found.\[81\]

Masters OF VESSELS, see latest topical index.

**MECHANICS' LIENS.**

**SS 1. Nature of Lien and Right to it in General, SS14.**

**SS 2. Services, Materials and Claims for Which Llens May Be Had, SS15.**

\*\*SS 3. Properties and Eest ally given right of homesetead,\[85\] nor discriminate between classes of persons on whom the constitution confers the right of lien.\[85\] Where the constitution gives a lien right, mere failure to comply with certain statutory regulations regarding the same is not fatal as between the parties,\[97\] though it is otherwise as to third persons,\[89\] and where the right is given by statute every prescribed step must be followed.\[89\] Some courts hold that mechanics' lien laws should be liberally construed in favor of the claimant,\[90\] while others say that they should be strictly construed.\[91\] Mechanics' liens are governed by the law in force when the contract was made.\[92\]

SS 2. _Services, materials, and claims for which liens may be had.\[85\]_ **c. L. \[85\]**

As a general rule a lien may be had for services or materials furnished or delivered on the premises under contract with the owner or his authorized agent.\[83\] Lien is ordinarily allowed only for "labor" done,\[94\] or materials furnished and used \[85\] in and about the construction \[95\] or repair \[97\] of a building or other structure.

SS 3. _Properties and estats therein which may be subjected to the lien.\[85\]_ \*\*c. L. \[85\]--Though the lien against land may be waived and the lien asserted against the building alone,\[96\] a mechanics' lien is ordinarily given against the land on which the building improved or erected stands,\[97\] and all the appurenances thereto,\[1\] and a lien cannot be imposed on a building unless in connection with some estate or inter- or interfere with right to contract. Stinson

Milleuare and commissary supplies furthest to subcontractor and materials furnished to workmen as part payment for servants, is constitutional. Powers Elevector Co., 150 Cal. \[79\], 90 P

v. Pottner \[N. D.\] 113 NW7 703.

SS5. Volker-Seovrott Lumber Co. v. Vance \[Utah\] 88 P86.

**86.** Where constitution elves lien to me-

chanles, materialmen, and labbers, the leg-

islature cannot pass a law giving preference

to one furnishing labor. Stinson v. Nolan

\[Cai. App.\] 91 P 262. Code Civ. Proc. \[8\]

1194, unconstitutional, gives prior lien to

door over materialman. Millimore v. Noft-

sriere Bros. Lumber Co., 150 Cal. \[79\], 90 P

114.

ST. Blakeney v. Nalle de Co. \[Tec. Civ. App.\] 18 P86.

Appl.\] 18 Tex. Ct. Rep. 66, 101 SW 875.

88. Kinsey v. Spurlin \[Tex. Civ. App.\] 18

Test. Ct. Rep. 37, 102 S NW 122.

**89.** Wees' v. Elbon, 61 N. Ya. 880, 56 SE

611.

**90.** McNab & Harlin Mtg. Co. v. Paterson

Bldg. Co. \[N. J. Err. & App.\] 67 A 103; Kerr

win v. Post, 104 NYS 1005; Salzer Lumber

Cov. v. Clarlin N. D.\] 113 NW7 1036; Lutrill

v. Knoxville, etc., R. Co. \[Tenn.\] 105 SW 565.

91. Boylan v. Cameron, 126 Ill. App. 432;

Williams W. Shankar \[Ind. App.\] 83 NE 641.

**92.** Telfoav v. Hamilton, 225 Ill. 10, 80 NE

75; McNicholas v. Thasler, 127 Ill. App. 381.

93. See post, $ 4.

01. "Mervantile clerk" not a "laborer." Howell v. Atkinson \[Ga. App.\] 59 SE 316.

01. Acts 183. p. 257, c. 220, $ 3, as amended

Farm Co. v. Henderson \[Mzd.\] 67 A 228. The

by Acts 1901, p. 215. 0, $ 1, L Explosives

used in grading railroad tunnel and ma-

terial for creation of culverts, bridges, and

other railroad improvements, though not

actually used in the improvements, are lien-

able. Lutrill & Co. v. Knoxville, etc., R. Co.

\[Tenn.\] 105 SW 565. Gasoline, gasoline

torches, coal oil used in lighting railway

'tunnel in course of construction, packing

mattocks, cotton waste, electric light supples, carts, tools, shovels, spades, smith's

tools, wagons, blows, scrapers, machines,

machinery, derriks, crabs, cables, and, re-

pairs for all these, are not lienable. Id.

Tableware and commissary supplies furthest to subcontractor and materials furnished to workmen as part payment for servants, is constitutional. Powers Elevector Co., 150 Cal. \[79\], 90 P

res are not lienable, Id. Materials furnished

railroad subcontractors for shanties for

shelter of workmen on tract adjoining rail-

### 816 Mechanics' Lients SS 3.

10 Cur. Law.

est in land on which it is erected.2 Where several buildings are on contiguous lots, a joint lien may be had a in the absence of contrary provision in the statute.4 The entire tract or so much as shall be necessary to satisfy the lien may be sold in foreclosure of mechanics' liens.5 The proceeding is ordinarily in rem and gives rise to no personal liability,6 the statutes making the contractor agent of the owner and extending his authority so that he can bind the latter in personam.7 The lien will generally attach to a leasehold estate,8 if the building is erected under authority in lease,9 but this applies only where the labor and materials are expended on something affixed to the reality.10 The lien will not attach to an interest acquired in lands by a lessee under an ordinary oil and gas lease, though oil or gas is discovered,11 or to the personal property of the lessee left upon the land.11 The lien will attach to a building on land to which person contracting for the erection has no legal title.18 The rights against the freehold are not affected by the fact that the owner has a reversionary right with no pecuniary interest in it.14 Improvements made with owner's knowledge are held as made by him and liens will accrue.15 Government land is generally exempt from mechanics' liens, but not land leased for term of years from the government.16 Home-stead rights being founded upon public policy, it is usually held unconstitutional for a legislature to allow a mechanics' lien to extend to sale of the homestead for its satisfaction.17 Where a vendee and vendor co-operate to make improvements, the interests of each are bound for the payment of liens for labor and materials.18 Where a mortgage holder has foreclosed and is practically in possession as against the owner, the mortgage holder is the real party in interest.19

Footnote 2: The author is grateful to the anonymous referee for the support of the work.

2 Where plaintiff furnished material to a make improvements. Aetna Elevator Co. v. contractor who built house whose occupant beeses, 107 NYS 63. Where owner of hotel was a tenant at will and put in possession leased it on condition that lessee remodel it to build house, held lien would attach. Wilamson v. Shank \[Ind. App. 183 NE 641.

3 Where work done by taking tin gutters from house and putting on barn, held not objectiomable to place lien on both buildings. Stephens v. Duffy \[Ind. App. 181 NE 1154. Where buildings are on contiguous lots and are built under one general contract, held whole tract Ha Table to lien. Central Lumber Co. v. Bradcock Land & Granite \[Ark.\] 105 SW 583.

4 Some statutes provide for separate liens on each house for work done there, where lots are not contiguous though all work was done under one general contract.

Rev. St. 1899, $ 4227. Work done on various houses on lots not contiguous. Amime Reality Co. v. Haller \[Mo. App.\] 108 SV 588.

5 Section 2, Ch. 116, p. 230, Laws 1905. Where whole tract sale is prayed for and defendant fails to object to it, the whole tract and not a part will be sold. Lee v. Kimball \[Vw.sh.\] 88 P 1121.

6 Field error to enter judgment against owner personally on subcontractor's lien. Builders' Supply Depot v. O'Connor,150 Cal. 265, 88 P 982, and see post, 110D.

7 Act Feb. 7, 1889; Sess. Laws 1889, p. 147. Valley Lumber & Mfg. Co. v. Nickerson \[Idaho\] 93 P 24.

8 Code Civ. Proc. 619 (Wilsons' Rev. & Ann. St. 1903, $ 4817). Although tenant had right to remove his building, fixtures, and machinery. Jarrell V. Block \[Oll.\] 92 P 167. Rights of lessee may be sold to satisfy lien of materialman. Crutcher v. Block \[Oll.\] 91 P 895.

9 Crutcher v. Block \[Okl.\] 91 P 895. Covnetn in a lease obligating lessee to keep premises in repair is no implied consent to 35 Mont. 470, 90 P 355.

- \[10\] Cur. Law. Mechanics' LENS SS 4A.
- \[11\] **SS 4.** \_The contract supporting the lien and the privity of the landowner therein. A. In general.\_See 8 C. L. 958--The work must have been done under a contract with the owner \[20\] or his authorized agent.\[21\] A lien will not usually lie for extras,\[22\] in the absence of a new agreement.\[28\] Consent of the owner to the making of an improvement by a third person will not bind the land.\[24\] If husband and wife are tenants by the entirety, the contract should be signed by both.\[25\] In Illinois the contract must fix the time of completion of the work.\[26\] If the time fixed for completion in the original contract is within the statute, a subcontract not fixing the time for completion will nevertheless support a lien.\[27\] Where the statute provides that contracts must be in writing and an oral agreement is made, a subsequent identical agreement in writing will still give laborers and materialmen a lien as in the oral contract.\[28\] Where there is no fraud in executing the contract, though minor errors were committed, a lien will still lie.\[29\] A surety company on a bond against liens made by a contract may assert any lien the contractor had.\[30\] Where a surety completes the contract, his privity to the original contract is not lost by the cancellation of such contract for failure of his principal to promptly complete it.\[31\]
- \[12\] \*\*Payments and offsets.\*\*See 8 C. L. 950--Where owner completes work after contract abandons it and payments had been made to contractor on account, lien claims must be so reduced that the amount of their liens constitute such a proportion of the amount of their claims as the contract bears to the actual cost.\[32\] The owner may offset any damages he may have sustained, caused by contractor's failure to have building completed in time, if damages are such as were contemplated at time contract was made,\[33\] and this will extend even to an offset against claims of a subcontractor.\[34\] Sometimes an allowance is made the owner as an offset on defective work.\[35\]
- \[13\] **SS 4.** \_The contract supporting the lien and the privity of the landowner therein. A. In general.\_See 8 C. L. 958--The work must have been done under a contract with the owner \[20\] or his authorized agent.\[21\] A lien will not usually lie for extras,\[22\] in the absence of a new agreement.\[28\] Consent of the owner to the making of an improvement by a third person will not bind the land.\[24\] If husband and wife are tenants by the entirety, the contract should be signed by both.\[25\] In Illinois the contract must fix the time of completion of the work.\[26\] If the time fixed for completion in the original contract is within the statute, a subcontract not fixing the time for completion will nevertheless support a lien.\[27\] Where the statute provides that contracts must be in writing and an oral agreement is made, a subsequent identical agreement in writing will still give laborers and materialmen a lien as in the oral contract.\[28\] Where there is no fraud in executing the contract, though minor errors were committed, a lien will still lie.\[29\] A surety company on a bond against liens made by a contract may assert any lien the contractor had.\[30\] Where a surety completes the contract, his privity to the original contract is not lost by the cancellation of such contract for failure of his principal to promptly complete it.\[31\]
- \[14\] \*\*Payments and offsets.\*\*See 8 C. L. 950--Where owner completes work after contract abandons it and payments had been made to contractor on account, lien claims must be so reduced that the amount of their liens constitute such a proportion of the amount of their claims as the contract bears to the actual cost.\[32\] The owner may offset any damages he may have sustained, caused by contractor's failure to have building completed in time, if damages are such as were contemplated at time contract was made,\[33\] and this will extend even to an offset against claims of a subcontractor.\[34\] Sometimes an allowance is made the owner as an offset on defective work.\[35\]
- \[15\] **SS 4.** \_The contract supporting the lien and the privity of the landowner therein. A. In general.\_See 8 C. L. 958--The work must have been done under a contract with the owner \[20\] or his authorized agent.\[21\] A lien will not usually lie for extras,\[22\] in the absence of a new agreement.\[28\] Consent of the owner to the making of an improvement by a third person will not bind the land.\[24\] If husband and wife are tenants by the entirety, the contract should be signed by both.\[25\] In Illinois the contract must fix the time of completion of the work.\[26\] If the time fixed for completion in the original contract is within the statute, a subcontract not fixing the time for completion will nevertheless support a lien.\[27\] Where the statute provides that contracts must be in writing and an oral agreement is made, a subsequent identical agreement in writing will still give laborers and materialmen a lien as in the oral contract.\[28\] Where there is no fraud in executing the contract, though minor errors were committed, a lien will still lie.\[29\] A surety company on a bond against liens made by a contract may assert any lien the contractor had.\[30\] Where a surety completes the contract, his privity to the original contract is not lost by the cancellation of such contract for failure of his principal to promptly complete it.\[31\]
- \[16\] **SS 5.** \_The contract supporting the lien and the privity of the landowner therein. A. In general.\_See 8 C. L. 958--The work must have been done under a contract with the owner \[20\] or his authorized agent.\[21\] A lien will not usually lie for extras,\[22\] in the absence of a new agreement.\[28\] Consent of the owner to the making of an improvement by a third (SS 4) \_B. Contracts by vendors, purchasers, lessons, and lesees,_See * C. L. \[851\]._ The vendor in an executory contract of sale is an "owner." \[86\] Where vendee holds under lease on crop payment plan, it is held a lien will accrue,\[87\] and the fact that the vendor terminates the contract when lien is about to be enforced does not affect the lienholders' rights.\[88\]

(SS 4) \_C. Subcontractors and materialmen.\_See * C. L. \[891\].\_A subcontractor is an undercontractor who takes under the original contract and is to do his duty under terms of original contract.\[89\] The right of a subcontractor to a lien is statutory extending in some states even to persons acting under the subcontractor,\[40\] while other statutes do not extend it beyond the subcontractor.\[41\] This lien holds even where principal contractor has no lien.\[42\] Rights of enforcement are usually the same for subcontractors as for contractors.\[43\] The subcontractor, after notice to owner of his rights, has a lien on all money due and subsequently to become due contractor after the time of the service of the notice.\[44\] The lien of a subcontractor does not extend to damages for loss of profits resulting from refusal to allow contract to be fulfilled.\[45\] The contractor is not bound to pay liens incurred by a subcontractor until a court has passed upon them.\[46\] With knowledge of its terms a subcontractor is bound by the contract made between owner and contractor regarding liens,\[47\] but a settlement made with a contractor does not generally affect the lien rights of the subcontractor.\[48\] The contractor cannot be held to pay more than a contract calls for,\[49\] nor can the owner.\[50\] In some states statutes give materialmen rights which contractors do not possess.\[51\] In these cases the statute usually treats the transaction as a purchase from the ma 10 Cur. Law. MECHANICS' LIENS SS 5A. 819

terialman by the owner on the latter's order.\[52\] A materialman furnishing materials to a subcontractor who has no contractual relation with the owner is not entitled to a lion.\[8\] The materialman's right to a lion is not lost by knowledge that materials are not as required by specifications.\[84\] Where materialman furnishes material to a contractor knowing that contractor alone was liable and had no consent from the owner, the owner cannot be held and no lion accres.\[85\] The materialman can only get a lion where the owner has money due to the contractor.\[87\]

SS 5. \_Acts and proceedings necessary to acquire lion. A. Notices and demand, statement to acquire lion. See * C. L. \[90\]--Under most statutes \[88\] timely notice of the claim of lion \[89\] is essential.\[90\] The notice must set forth that labor or materials claimed for were used in the owner's building,\[61\] the amount due and that payment has been demanded of the contractor and refused,\[88\] and in general must give the exact description of the property upon which the lion is to be placed.\[88\] The question

82 The presumption obtains only to the =r =r =failure to comply with some statutory end that the premises may be subjected to provision does not forfeit lien rights. Blake-lien for payment. Hubbard v. Leo \[Cal.\] ,v. Nalle (T9xx. City. App.) 18 Tex. Ct. App.\] 92 P 744. No defense that entire con- = * 820 Mechanics' LIENS SS 5A. 10 Cur. Law.

of sufficiency of the description is one-for the jury, being a question of fact.\[64\] The name of the owner of the premises is generally required.\[65\] U-'ler most statutes the written agreement to do the work must be set forth in the claim filed.\[66\] Several instruments may be construed together.\[67\] In some states the terms of the'contract, the time given, and the other conditions of the contract, must be fully stated.\[68\] Where contract for a specified sum for work is filed with the lien statement and it is complete in itself, no further statement of account need be filed.\[69\] Under the Louisiana Code, mere statement of amount charged with payments and credits is not sufficient.\[70\] Claims in their nature separate cannot be joined in a mechanic's lien notice,\[71\] and the parties acquire no rights to liens by joining them in a notice.\[72\] A claimant cannot bind any estate or interest other than the one named,\[73\] but where the lien is discharged for want of proper name, it is proper to amend name or begin new action.\[74\] The California statute making a deferred payment solely available in exoneration of material claims is not available to the owner unless its provisions have been strictly complied with.\[75\] Notice to the owner intercepts only the amount due or to become due at the time of the service of notice to the contractor, and the owner's liability is only in this sum.\[76\] Where the law requires filing of notice, failure to do so, though notice has been served on owner, is insufficient to establish a lien.\[77\] Where materials are furnished at various times to one building but one notice is necessary.\[78\] The notice being defective can be remedied by amendment,\[79\] in the discretion of the court,\[80\] which may also amend so as to remedy error in name of party.\[61\] Where no

Sprickerhoff v. Gordon, 105 NYS 586. If but did not state "for labor and materials anfdavit for a mechanics' lien contains suf-

I furnished." Held two instruments construed together were valid notice and created a

with the locality can identify it, held suffin.

Ilen McNab & Harlin Mfg. Co. v. Patter-

client. Guiou v. Ryckman \[Neb.110 NWP

son Bldg. Co. (N. J. Err. & App.) 87 A 103.

759. Where notice described premises as a

barn located at No. - p. stretch in borough of

of Mahnathat. and also on lots on F. st

ditto, held suffineful description in notice.

Hurley v. Tucker, 532 Mote. 461, 105 NYS 162.

Suffineful it interested person is enabled to

recognize and locate property with reason-

able certainty; thus, where correct number of lien

of lot and erroneous number of lbeck but

correct street number is given it is suffin-

client. Doyle v. Wagner, 100 Munn. 380, 111 NWP 275.

Taxon of description will not defeat lien if otherwise all right. Union

Lumpf Co. v. Simon, 150 Cal. 151, 89 P 1077;

Lumpf Co. v. Simon, 150 Cal.

64. Lumpf Co. v. Simon, 150 Cal.

01. Alternate name of owner suffineful

Abelman v. Meyer, 106 NYS 978.

66. Act June 4, 1901 (P. L. 431), where

verbal contract was superseded by a written contract for plastering. Westmoreland

Guarantee Bldg. & Loan Ass'n v. Connor,

216 Pa. 543, & a 1089.

67. Where contractor under contract to

erect buildings gave materialman an order

on the owner and executed an assignment

purporting to transfer to the materialman

sum due from the owner for materials furnished.

The materialman served on owner the

order and assignment and notice, stating that the sum was due from the contractor

68.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.

- 10Cur. Law: Mechanics' LIENS SS 5B.
- 100
  822 MECHANICS' LIENS SS 6. 10 Cur. Law.

a judgment fixing the amount,98 and where there is no priority between owner and materialman to obtain a lien, a judgment against the contractor must be obtained first.98.

SS 6. \_Amount of lien and priority thereof.\_See * C. L. 985.--The owner can only be held liable for the amount due under the contract,98 or as to a subcontractor, only as to the amount due the contractor at the time of notice,98 but where the contract price is sufficient, the persons furnishing materials and labor in constructing a building are entitled to be paid in full.99 The statute creating a lien in favor of a materialman does not create a debt against the owner but appropriates only what is due from money in owner's hands sufficient to satisfy materialman's claim, the owner being liable only as he would be liable to the contractor.1 Where the liens exceed the contract price, each lienholder is entitled to his proportionate share only of the contract price and amounts paid by the owner to laborers or materialmen is considered as unsatisfied liens.2 In some states a specific agreement with a subcontractor to pay contractor's bill by owner is given preference over other subcontractors who file notice of lien after agreement is made.3 Where a materialman's lien exists, the owner having a reserve fund held from contractor's money cannot pay from this fund claims without liens until lienholder is first satisfied.4 Interest is allowable upon the sum due under a mechanics' lien.8 Interest is allowable upon the sum due under a subcontractor's lien.8 Some statutes give lienholders priority over mortgageholders,7 in which cases there must be some notice to the mortgage.8 The burden of proving such notice is on the lien claimant.9 An assignment for the benefit of creditors does not take priority over a lien properly filed within statutory time.10 Where the contractor has no lien because of failure of wife to sign husband's contract,

Footnote 10: http://www.lien.gov/lien/

credits did not defeat. Treloar v. Hamilton, who had no such agreement. The contractor abandoned the contract and the subcontractors without agreement then served tide not alone sufficient. Philip Carey Mfgr Co. v. Viaduct Place, 1 Ga. App. 707, 58 SE 274.

98. Philip Carey Mfg. Co. v. Viaduct Place, 1 Ga. App. 707, 58 SE 274.

01. When notice is served on owner by a subcontractor, he can be held only in the amount due or to become due at that time.

01. 98. Laws 1907, 516, 418, 9.4. Gribben v. Hoare, 54 Misc. 245, 104 NFS 446, Where the owner has paid the contractor in full and subcontractors leave lien, the owner may recover as damage all losses and costs against the contractor. Vandenberg v. P. T., Walton Lunmber Co. \[OKL.\] 92 149, Often he is allowed to recover for loss of rests for noncompletion under time specified in contract. Alberti v. Moore \[OKL.\] 93 P 543. Where owner waived right to complete a building within specified time, is equipped from claiming for loss of rent for noncompletion. Kotcher v. Perriri, 149 Mich. 690, 14 Det. Leg. N. 593, 113 NW 284.

01. Central Lunmber Co. v. Braddock Land & Granite Co. \[Ark.\] 105 SW 583.

01. Operates same as a writ of garnishment. Lonergan v. San Antonio Loan & Trust Co. \[Tex.\] 13 Tea. Ct. Rep. 732, 104 SW 1061.

01. Central Lunmber Co. v. Braddock Land & Granite Co. \[Ark.\] 105 SW 583.

01. L. made a contract with a contractor to rebuild a building. Two of subcontractors had special agreements with L. to receive payment for the work they did. But the contractors also bought from other dealers 10 Cur. Law. MECHANICS' LIENS SS 8. 833 and after another creditor had garnished money due under contract, held lien would not attach because wife signed contract to give contractor preference.\[11\] Where work is done in independent jobs and pay is had for same about once a month, and after mortgagee took possession under foreclosure, the mortgagee took subject only to lien for work done for 90 days prior to date of lien filing.\[12\] In New York fees may be paid before funds due to contractor are applied on liens.\[13\] In Wisconsin the purchaser under mechanics' lien sale took priority over mortgagee who purchased at prior mortgagee foreclosure sale all rights of mortgagor and wife, and such lien sale purchaser acquired mortgagee's interest including mortgagor's wife's right of dower.\[14\] In some states assignments of moneys due can be made by contractors. The effect of the assignment on subsequent liens is usually fixed by statute.\[15\] Discharge from bankruptcy before judgment for mechanics' lien takes priority over the lien.\[16\]

SS 7. \_Assignment and transfer of lien.\_See s c. L. **ee**--As a general rule a lien is assignable. Usually courts require the lien to be perfected before it can be validly assigned.\[17\]

SS 8. \_Waiver, loss, or forfeiture of lien, or right to acquire it.\_See s c. L. **ee**--A lien is of course lost by failure to comply with prescribed steps to perfect it.\[16\] The lienholder may waive his right to a lien by stipulation,\[16\] not only for himself but for subcontractors as well,\[20\] but one who sells goods on contract and retains title in himself until purchase price is paid does not waive his right to a lien.\[21\] A subcontractor can waive his lien by agreement.\[22\] A lien can be waived only by express covenant or a covenant resulting from clear implication.\[23\] An agreement to release claims of third parties for lien does not affect the right of a general contractor to enforce his own lien.\[24\] A contractor can lose his lien by an equitable estoppel.\[25\] A mechanic's subject to lien. American Morris. Co. v. contractor, whereby contractor agreed to assume claim and architect and contractor 11. McMillian v. Schnelder, 147 Mcbla. 258, not thereafter enforce lien. Wyss-Thalman 13 Delt. Leg. N. 1054, 110 NYW 961. 12. Fitspatrick v. Ernst, 102 Minn. 195, 115 NYW 4. 13. Ottman v. Schenectady Co-Operative R. Co. 104 NYN 187. 14. Connecticut Mut. Life Ins. Co. v. Gold- smith, 131 Wis. 116, 111 NYW 208. 15. Laws 1897, p. 52, c. 418, % 15. Must be properly liled and when not filed is in- operative against subsequent liens. Van Kannel Revolving Door Co. vi. Sloane, 104 NYS 653. Subcontractor notified contractors by letter of subletting of work to third parties and authorized retention of certain sums to pay third parties, also for contractors to retain enough to protect themselves against claims arising through third persons. Defendants answered to third persons agreeing to pay them direct sums due. He latter constituted a equitable assignment. Id. But the letters were only a promise to retain the amounts they might earn and not an absolute promise to pay third party subcontractors (Id.), and the letters did not operate as a payment of sums due under original contract so as to defeat subsequent liens (Id.).

16. Philip Carey Mfg. Co. v. Vladuct Place, 1 Ga. App. 707, 58 SE 274. 17. An assignment before lien, properly filed as required by statute, carries with it no right of lien. Fleming v. Greener \[Ind. App.\] 83 NE 354. 18. See ante, % 5. 19. Where architect with right to enforce mechanics' lien against corporation signed con:ract with corporation, bondholder, and 834Mechanics' LIENS SS 9.10Cur. Law.

lien right, although having its inception in a supposed contract with the owner, cannot be impaired by an agreement in the contract between owner and lessee wherein the lessee agrees to do all work of improvements and protect estate of the owner from liens.24Acceptance of security for maturing payments does not affect right to enforce balance unsecured.27

SS 9. _Discharge and satisfaction._ See 8 C. L. 867--A lien may be discharged by court upon filing a bond or undertaking,28 and where so discharged the lienholder may sue on the bond after recovering judgment establishing the validity of his claim.29 The sureties are not liable unless the lien is fully established.30 The sureties should be made parties defendant in lien foreclosure.31 Where sum is deposited with clerk of court in compliance with statute, a complete discharge of lien is made when no suit to foreclose is made or order to continue lien is made within one year after lien was filed.32 The lien is discharged when year is up.33 Some states make discharge of a mechanics' lien on payment obligatory.34

SS 10. \_Remedies and procedure to enforce lien. A. Remedies.\_See 8 C. L. 968--The remedy given by the lien statute is additional and cumulative of other remedies both against persons and property.38Bringing of lien proceedings by a conditional seller of materials is not such an election as precludes him from retaking title.39 That claimant had formerly attempted to subject the interest of another person for the same debt is no defense.37

\_Jurisdiction and venue.\_See 8 C. L. 968--Suits to restrain a sale under judgment foreclosing mechanics' lien are properly brought in the county where levy is made and one of the defendants live.38 In some states a justice court can enforce a mechanics' lien.39 In New York the municipal court of the city is empowered to enforce mechanics' liens only so far as they do not exceed in amount $500 over and above costs and disbursements, and the court may grant a personal judgment for such a lien when established or for a money judgment to be enforced by an execution authorizing sale of property to satisfy it.40

\_Time of bringing action.\_See 8 C. L. 968--A lien must be enforced within the time fixed by statute.41

Suit must be brought within the statue of limitation or forment, contract, contractor is estopped from later demanding money. Where one makes false charges knowingly in a lien statement to improperly burden owner's property, held rights to lien lost. Nanoculas v. Hitzfer \[Towa\] 112 NW 382. Where owner claimed he could reconstruct building after collapse during construction with funds left and due contractor, held no estopped of lien claimant for material furnished. Id.; Union Lumber Co., v. Simon, 150 Cal. 751, 89 P 1077. Where owner was notified and promised to pay on written order of principal contractor, who refused to give order, then subcontractor notified owner to this effect and then de-cided not to press claim. The request was made about time payment on contract was to be made to principal contractor. Field no waiver of rights by subcontractor and not developed from asserting lien. Taylor v. Dall Lead & Zinc Co., 131 Wits. 348, 111 NW 490.

26. Curtin-Clark Hardware Co., v. Church-III, 126 Mo. App. 462, 104 SW 476.

01. Concord Apartment House Co. v. O'Brien, 128 III. App. 437.

01. Pierce, Butler & Pierce Mfg. Co. v. Wilson, 118 App. Div. 662, 103 NYS 678:

01. Pierce, Butler & Pierce Mfg. Co. v. Wilson, 118 App. Div. 662, 103 NYS 678:

01. Casey v. Connors Bros. Const. Co., 53 Misc. 101, 103 NYS 1103.

01. Vitelli V. May, 104 NYS 1082.

01. Laws 1907, p. 523, c. 418, 18. Deposit to be returned when lien discharged. In re Thirty-Firsth St., & Fifth Avc. Reality Co., 121 App. Div. 625, 106 NYS 390.

01. In re Thirty-Firsth St. & Fifth Avc. Reality Co., 121 App. Div. 625, 106 NYS 390.

01. Rev. Codes 1899, 8 4799. Penalty protocol for failure to do so. Sheets v. Pros-ser \[N. D.\] 112 NW 72.

01. Claim for a lien not lumpsted by tak- \[a dug a judgment at l law upon the unpaid ac-count. Sore v. Crandall, 129 Ill. App. 555.

01. William W. Biereo v. Hutchins, 205 U. S. 340, 51 Law. Ed. 828.

01. J. C. Vreeland Bldg. Co. v. Knickker-Dall Lead & Zinc Co., 131 Wits. 348, 111 NW 490.

01. C. Church-Clark Hardware Co. v. Church-III, 126 Mo. App. 462, 104 SW 476.

01. Concord Apartment House Co. v. O'Brien, 128 Ill. App. 437.

01. So far as to attachment 10 Cur. Law. MECHANICS' LIENS SS 10C. 835

feiture of lien rights will follow.\[42\] Under the New York law commencement of foreclosure within one year is not alone sufficient.\[43\]

(SS 10) \_B. Parties.\_See S. C. L. 960.--The subcontractor is a necessary party to a suit involving materials furnished to subcontractor.\[44\] The contractor is a proper but not a necessary party to a lien foreclosure suit.\[45\] In cases where a subcontractor sues, the owner and the contractors should be made parties defendant.\[46\] Although a bond has been substituted for a fund, all liens should be made party defendants in suit to foreclose.\[47\] A person jointly responsible with the owner is a proper party defendant and a judgment may be rendered against him as well as the owner.\[48\] The contractor and the owner are usually sued together.\[49\]

(SS 10) \_C. Pleading, practice and evidence.\_See S. C. L. 960.--In an action to foreclose a lien where sureties finished work, sureties are proper party defendants and not owners.\[50\] One who furnishes materials to a subcontractor is not entitled to foreclose his lien therefor in a suit to which the subcontractor is not a party.\[51\]

\_Pleading.\_See S. C. L. 960.--Statutes usually prescribe methods by which issues are joined in mechanics' lien cases.\[52\] Pleadings must be along a definite theory and state each theory in a separate paragraph.\[53\] A bill in equity to enforce a mechanics' lien must allege every fact essential to the right to such lien with accuracy and clearness.\[54\] The property involved must be accurately described.\[55\] In Indiana the complaint must show for whose immediate use and benefit the materials were furnished.\[56\] In Washington the complaint is sufficient if it contains a cause of action for either the enforcement of a lien or for general delivery.\[57\] A subcontractor's complaint must show a sum due to the contractor.\[58\] Where it is sought to enforce a personal liability, there must be appropriate allegations.\[59\] Amendment \[60\] and supplemental pleading \[61\]

42. Warner v. Yates, 118 Tenn. 548, 102

and that complainant's claim had not been paid. Held demurrer on ground that there was no privity between owner and comma-plainant, and that it was not directly alleged that the owner was indebted to conma-plainant, and that it was not directly alleged that the owner was indebted to conma-plainant.\[4\] Failure to make him party is waived.\[4\] tractor at the time of the fling and after the receipt of the notice, should not be sustained. McDonald V. Erwin, SS F1a. 1079, 43

45. Maneely v. New York, 105 NYS 976. 8

01. Warner v. Yates, 118 Tenn. 548, 102

SWV 92.

47. Maneely v. New York, 105 NYS 976. 4

01. Sears v. Wegeman, 104 NYS 1055. 4

01. Philip Carey Mfg. Co. v. Vladant Place,

1 Ga. App. 107, 88 SE 274. 50. Maneely v. New York, 105 NYS 976. 8

Leave to make party defendants being un-necessary. Id.

51. Maneely v. New York, 105 NYS 976. 52. P. L. 431 (June 4, 1901). provides for joining of issues by using cut wrt seirre facias and provides for affluxd of defense.

Held formal plea before jury sworn not necessary. Vysys-Thallman v. Beaver Valley Brev. Co., 216 P. 435, 85 A 811. 53. Williamson v. Shank \[Ind. App.\] 83 NNE 641. 54. Where bill set forth that complainant furnished material to owner's contractor use in the building, on the owner's land, that a written notice of claiming of lien had been served on owner of land, that the notice was in all respects legal and properly made out as to its contents, that the owner was indebted to the contractor on his contract that the debt was due when the notice was served, in a sum more than suffluent to pay compliant, that the contractor abandoned contract before completion.

are usually allowed as in other cases. The notice and the complaint may be construed together to assist in making the complaint sufficient.62 The proof must not be in variance with the allegations of a complaint.63

_A counterclaim_ for damages for failure to complete contract in time may be set up.64

\_Evidence and burden of proof.\_See 8 C. L. 070--The lienor has the burden to show that there is a sum to which his lien may attach.65 The burden to show compliance with statute in respect to steps to initiate a lien is on the plaintiff.66 The burden to establish set-offs, payment, or recoupment are on the defendant.67 Where lienholder's claim of delivery of goods and use in construction is disputed, the burden of proving nondelivery and nonuse is on the owner.68 General rules of evidence apply as to showing of the nature and extent of the labor or materials,69 that they entered into the building sought to be charged,70 as to amount due and payments thereon,71 and as to the taking of necessary steps to perfect the lien.72

\_Practice.\_See 8 C. L. 970--Statutes usually give the same procedure in enforcement

sufficient to give lien. Brown v. Trimble

value and kind on premises of defendant, is sufficient. Kerwin v. Post, 104 NYS 1008.

61. Code Civ. Proc. $ 544. Van Kannel

01. Evidence not sufficient to hold owner

Revvolving Door Co. v. Sloane, 107 NYS 507.

62. Stewart v. Simmons \[Minn.\] 112 NWW

01. Where allegations were for joint con-

74.0.0.

10 Cur. Law. MECHANICS' LIENS SS 10D. 827

to contractors and subcontractors.73 An action to foreclose a mechanics' lien is an action in equity.74 Where no special provision is made as to practice in enforcement of a.mechanics' lien, the common law is followed as nearly as possible.75 Some statutes provide for separate suits of enforcement on each piece of work done on a single contract.76 Several actions on liens against the same property may be consolidated.77 The method of appeal in mechanics' lien cases is usually established by statute.78 The powers of a court to compel payments into court are not very broad in lien matters.79 In enforcing alien, attachment is not usually necessary.80

_Questions of law and fact.85e S. C. L. 91.--The jury has the sole power to determine questions of fact.81_

(SS 10) \_D. Judgments, costs, and attorneys' fees.See S C. L. 91.--The judgment must be complete in itself and not dependent on other record recials,82 and must contain an accurate description of the property involved.83 Under some statutes a decree may be entered both for a lien against the land and for a personal liability against the owner.84 Where in an action both to recover a money judgment and enforce a mechanics' lien, if the lien fails the other relief may be granted in the absence of fraud.85 Where the statute gives power to a court to adjust equities among all parties, it does not give power to court to award judgment on legal claims of subsequent contractor's surety or claims against sureties of original contractor.86

_Costs and attorneys' fees.See S C. L. 912.--The statutes provide for costs and attorney's fees; usually the sum paid for filing and recording the lien, and a reasonable attorneys' fee.87 Allowance of costs is in the discretion of the court.88 In some states it is held that provisions for allowance of a fixed sum for attorney's fees is unconsitiutional.89 Where fees are agreed upon in advance of lower court trial, the reviewing court will not interfere.80_

73 Right of attachment. Warner v. solid four months preceding filing of lien are Tates, 118 Tenn. 548, 102 SV 92. relied on to validate the claim for materials 74. Trial in court should be had of main Issue before reference to referee is made on:Prelim v. New York Butchers' Dressed Meat Co., 54 Misc. 297, 105 NYS 950, 75. Warner v. Yates, 118 Tenn. 548, 102 Mecum \[N. J. Err. App.\] 68 A 149. Whether SW 92. 76. Rev. St. 1899, $ 427. Aimee Realty Co., V. Haller \[M. App.\] 106 SW 588. 77. Union Lumber Co. v. Simon, 150 Cal., 761, 89 P 1077. 78. In Pennsylvania because the statute provides that procedure in lien cases shall be according to the common law, and the circuit court has only common-law powers, whereas, uncertain and unsufficient. Satter v. Gold-be by Witt of error instead of by territorial. Pive-Mile Beach Lumber Co. v. Friday \[N. J. Law\] 66 A 901. 79. Where subcontractors' complaint had been dismissed and the appealed only as against the contractor, and after time to appeal against owner expired the latter paid amount due to contractor, the court after reversal as to contractor had no right to order him to pay into court an amount to satisfy the plaintiff's claim, where right to the money and the existence of lien are in dispute. Van Kannel Revolving Door Co. v. Sloane, 107 NYS 504. 80. Luttreil v. Knoxville, etc., R. Co. \[Tenn.\] 105 SW 565. 81. Whether there was a waiver of lien where it was a question of sale on credit of contractor or owner held question of fact for jury. Scott Mfg. Co. v. Morgan, 217 Pa. 367, 66 A 566. Where items of material

## 11 Indemification against liens

See 1.1.1.12 A surety on a builder's bond against liens is not estopped from asserting any lien the contractor may have had.11 A court may dismiss a li pendens and discharge a mechanics' lien of record upon the filing of an undertaking,12 or it may be discharged where bond is filed as allowed by statute 93 and where so discharged the lienholder can sue on the bond after judgment establishing his lien claim,14 and this failing the lienholder can always sue to restore the lien.15 The undertaking only holds good during the period provided for beginning action.16 After discharge of lien by filing bond, and suit is brought to establish lien, sureties on the bond should be made party defendant.17 Action on the bond cannot be begun until after entry of judgment in mechanics' lien action.18 Service of notice of justification of sureties on undertaking to release lien must be personal.19

## 1 Public Regulation of the Business of 4. Negligent Homelde by Physical, 833.

Trenting Disease, 82S.

8.2. Malpractice, 831.

8.3. Recovery of Compensation, 832.

## 1 Public regulation of the business of treating disease

See 1.1.

10 Cur. Law. MEDICINE AND SURGERY SS 1. 829

in practice at the time of the passage of the act,\* in which case certain formalities are usually required of those exempted.\* Many states allow practitioners under license in other states to practise on showing license from the other state,\* but only under strict regulations,\* a license giving no extra territorial rights.\* The power of regulation may be delegated to municipalities.\* The state cannot charter a corporation to prectice medicine but it may charter a corporation which contracts for treatment of disease by competent and licensed physicians.\* The prescription * and sale * of intoxants and dangerous drugs under the guise of medical treatment may be prohibited. In some states the license is in the nature of an occupation tax.\* Where statutes provide for licenses without stating what they should contain, a receipt for payment of the occupation tax is a "license."\* Mandamus will not lie to compel a state board of dental examiners to issue a certificate until it is shown that the applicant for the writ was entitled to the certificate,\* nor will the allowance of an examination be compelled except on like conditions,\* but where a state board is required to issue a license to a physician upon his complying with certain acts, and he does

May require both diploma and examination. yearly not unreasonable is not in violation 3 Ballinger's Ann. Codes and St., $ 3025 (Pierce's Code, $ 4467), sustained. State v. **12**. Even though practicing physician was **12**. **13** states require not only satisfaction as to qualifications to practice, but a diploma or license and an examination. St. 1901, p. 86, p. 857. **14**. **15**. **16**. **17**. **18**. **19**.

comply, the board can be compelled by mandamus to issue the license,19 and the exercise of the board's discretion may be reviewed.20 The state board may inquire into right of a petitioner for registry or certificate to practice.21

\_Revocation of license of professional status.\_See * C. L. #74--Suits to revoke a license are suits in equity and hence the trial by jury is not an essential right of the defendant.22 The district court in Oklahoma has exclusive jurisdiction to determine whether or not a physician's license to practice was obtained by fraud.23 The territory or state is generally not only a proper but a necessary party to a suit to annul a license.24 The statute of limitations does not apply to cases of suits by boards to revoke license of a physician.25

\_Expulsion from society.\_See * C. L. #75

\_Prosecution for violation of regulative acts.\_See * C. L. #76--What constitutes the practice of medicine within licensing statutes is usually defined by the statute.26 The prescribing of medicine is usually within such statutes,27 but whether treatment without drugs is included depends on the language of the statute.28 Whether or not there has been a public "practice" of medicine is usually for the jury to determine.29 It is a separate offense in some states to append the title "M. D." to one's name without authority from some medical degree.30 Expert testimony is admissible to show nature of duties to determine whether person is acting as a medical practitioner.21 It is no defense to show a registration after the date prescribed by a law to regulate and license physicians.22 The indictment must contain only necessary allegations to conform to the law under which it is drawn.25 The rules as to sufficiency of the com plaint follow the usual and general rules of practice.34 The burden of showing exception from operation of a registry law is on the defendant.35 That defendant had no license may be proved by the testimony of a clerk that no such license appeared on the records of the medical council.36 The court can only define words of the indictment to a jury where they are technical and easily misunderstood, all other ordinary language being left for the jurymen themselves to define.37

SS 2. Malpractice,38 e C. L. 977--A physician must use that care and skill which is exercised generally by physicians of ordinary care and skill in similar communities,38 or the "same general neighborhood."39 The question of what is negligence is determined by the facts in each case 40 and is ordinarily for the jury.41

Negligence by nurses,38 e C. L. 977

Damages.38 C. L. 978--The measure of damages for injuries sustained by a patient as a result of unskillful or negligent treatment by a physician is a reasonable compensation for the bodily pain and mental suffering endured, and the permanent impairment of ability to earn money, which are the natural and proximate result of such treatment.42

Malpractice by nonmedical practitioners,38 C. L. 978

Remedies and procedure.38 S C. L. 978--The complaint in a malpractice suit should contain a general statement of the facts in the case.44 The result of the treat-

v. State \[M.J. 66 A 635. Where certain care and skill actually brought about death. Red Cross Medical Service Co. v. Green, 126

Indictment charging violation of registry

Ill. App. 216.

law without an allegation that defendant

38. Difference between "same neighborhood" and "same general neighborhood." the registry is sufficient. Revial 1905, **SS 4468**-

later being a much broader term. Test-

447. State v. Hicks, 143 N. C. 689, 57 SE

001.

001. An allegation that defendant prescribed and recommended for a fee drugs

held admissible where no mention of neigh-

and medicines for the care and relief of

borhood was made. Sheldon v. Wright \[VL.\]

both infirmity and disease of another per-

67 A 807.

son is supported by evidence showing that

40. Modification in broken arm set in and defendant administered outward treatment

appuitation followed. Morification may

for cancer to a patient who agreed to pay

have resulted from use of water and cloths

defendant $50 down and $50 when cured, the

by patient but this fact itself held not to

himment prescribed being mentioned as a

remedy for the cancer. State v. Huff, 75

Knowing of infection should have used re-

Kan. 585, 90 P 279.

35. State v. Hicks, 143 N. C. 689, 57 SE 441.

01. Such proof was deemed admissible in

the discretion of the trial court, the original

operation for shock. Staloch v. Holm, 100

records being beyond the county. Common-

wesalth v. Clymer, 217 Pa. 302, 66 A 560.

37. State v. Bresee \[Iowa\] 114 NWV 45.

01. Requirement of "his best skill and

the off operation and not subsequent con-

ability" erroneous. Dorris v. Warford, 30 Key.

L. R. 963, 100 SWV 312. The physician can-

cent solution of corrosive sublimate as

not be held to account for negligence where

we used for ulceration of eyes. Failed to state

he made an honest mistake in a case where

there was reasonable doubt as to existing

patient lost sight of both eyes. Field neg-

conditions. This is an exception to ordinary

ripe that failure in the exercise of best

v. Martin \[Mo. App.\] 106 SWV 535.

judgment is not excuse for negligent act.

41. Where plaintiff claimed innoculation

Staloch v. Holm, 100 Minn. 276, 111 NWV 264,

of syphilis by contact with instruments in

Where surgeon advised amputation saying

course of dental treatment. Bates v. Dr.

there was but slight chance for recovery

King Co., 191 Mass. 585, 77 NE 1154. Where

without amputation and patient took it and

jury found that negligence was present caus

the recovery was bad, held no negligence.

In patients blindness, a verdict of 11,500

Nelfert v. Haskley, 149 Mich. 232, 14 Det. Leg.

did not necessarily, by its smallness, show

N. 425, 112 NWV 705. A practitioner is only

jury was actuated by sympathy. Thompson

required to exercise such reasonable and

v. Martin \[Mo. App.\] 106 SWV 585.

ordinary skill and diligence as are ordinarily

42. Dorris v. Warford, 30 Key. L. R. 963,

exercised by the average of the members of

the profession. Verdict of malpractice held

not justified where patient died of

The overall lack of

43. Allgestion that all directions of physi-

monia, there being no evidence that lack of

831

- 833 MEDICINE AND SURGERY SS 3. 10 Cur. Law.

ment in itself is not conclusive proof of negligence.44 A physician is not ordinarily negligent in relying upon the purity of standard remedies compounded by reputable pharmacists,45 the burden of showing malpractice in general being upon the plaintiff.46 Where it appears that patient departed from the physician's instructions, the burden is upon the former to show that it did not result in the injury complained of.47 Not only expert and defendant's own testimony is admissible, but all relevant evidence on question of defendant's treatment.48 There is no presumption in the nature of evidence that a physician had and exercised requisite care and skill,49 or in any way did his duty in treating the case.50 The plaintiff may prove the ill will of the physician defendant toward him as well as acts of intent to injure plaintiff.51 The jury may examine the injury in a private room.52 The patient who sues a physician for malpractice waives the law making privileged the information of patient to physician,53 but this extends only so far as it relates to the ailment in question and its treatment as disclosed in the action. The same holds true as to consulting physicians but not to a new physician called in to give subsequent treatment.54 In malpractice waits, evidence of a second physician, who was called in after first physician was dismissed, that the second physician abandoned the case on being told that first physician had not been paid, is inadmissible.55 Where there is evidence of malpractice, it is improper to instruct that defendant employed ordinary and recognized treatment as this is a controverted fact.56

SS 3. _Recovery of compensation._ See 8 C. L. 97--In the absence of express contract, a physician may charge the ordinary and reasonable sum usually charged by physicians of like standing in that locality,87 or, as it is sometimes said, the reasonable value of the services rendered.58 The professional standing of the physician in the community is an element to be considered.59 An implied contract of hire for medical services cannot be based upon custom in general,50 but a surgeon called to attend a man in an emergency has a quasi contract with patient for his treatment

unnecessary to minutely describe treatment. | intent to injure plaintiff. | Willard v. Norcross, 79 V. 546, 65 A 755. Where manifestations of ill with did not appear for five month's after alleged injury through malpractice. | Id. |

patient immediately following an operation |

is not prima fade evidence of physician's negligence. |
10 Cur. Law. MEDICINE AND SURGERY SS 5. 833

and can recover.reasonable compensation.${}^{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{ \\text{\\text{\\text{\\text{\\ chinery of regulation of sale of goods.\[79\] In Washington liquors may be sold on prescription by a druggist without a license.\[80\] Some states like that of New York, provide certain drugs can be sold only by licensed druggist, while others can sell other drugs.\[81\] Sale by unlicensed employe under supervision of licensed pharmacist is sometimes permitted.\[82\]

SS 6, \_Tort liability of druggists.\_See * c. L. \*\*\*--A druggist is held to a high degree of care in the sale of drugs,\[83\] and is liable for the negligence of his clerk.\[84\] The purchaser has a right to presume he is receiving a proper and harmless drug,\[85\] and the burden is on the druggist to show error was caused by pure mistake and during exercise of due care,\[86\] but the druggist is not responsible for injuries to third parties from sales of poisons to customer.\[87\] A complaint against a druggist is sufficient if it alleges that act was negligent without reciting facts and circumstances of the alleged negligence.\[88\] The jury in the case of a suit against a druggist for damages for giving patient wrong drug can assess damages only on a basis of testimony relevant to the issue of damages and not on all the facts of the case.\[89\]

MERCANTLE AGENCIES.\[8\] MERGER IN JUDGMENT; MERGER OF CONTRACTIONS; MERGER OF ESTATES, see latest topical index.

## MILITARY AND NAVAL LAW

- 1. Military and Naval Organization, Main-
- 2. Military and Naval Tribunals, S37,
- 3. Military and Naval Tribunals, S37,
- 4. Civil Status, Rights and Liabilities of the Military and Navy and of MIHI-
- 5. Maryland Law, S38,
- 6. Solders' Homes and Indigent Solders, S37.
- 2. Military and Naval Organization, Main-
- 3. Military and Naval Tribunals, S37,
- 4. Civil Status, Rights and Liabilities of the Military and Navy and of MIHI-
- 5. Maryland Law, S38,
- 6. Solders' Homes and Indigent Solders, S38,
- 7. Solders' Homes and Indigent Solders, S38.

_The scope of this topic_ is noted below.\[91\]

- 1. \_Military and naval organization, maintenance, and enlistment. A. Reg-
- 2. Military and Naval arranging, Case
- 3. L. \*\*
     10 Cur. Law. MILITARY AND NAVAL LAW SS 1A. 835

flict as to whether a civilian is liable for receiving in pledge military clothing issued to and paid for by the soldier out of his clothing allowance. \[93\]

A volunteer officer who was allowed two months' extra pay for service outside the United States, under act of January 13, 1899, on muster out and discharge, is not entitled to the one month's extra pay authorized by that act for service within the United States. \[94\] An officer ordered to a command which would have devolved upon him by seniority without any order by reason of the absence of his superior is not entitled to additional pay. \[95\] Refusal of a certificate of honorable discharge to a volunteer officer as of the date when his regiment was unstered out, on the mistaken ground that he had already been dishonorably discharged, is not an active retention of such officer in the service so as to entities him to pay after that date. \[96\] Civil war soldiers relieved of the charge of desertion by act of congress were not given pay, bounty, or allowances while they were absent. \[97\]

The navy personnel act provides for the same pay to officers of the navy as that allowed for officers of corresponding rank in the army. \[98\] While the object of the act was to equalize army and navy pay, it did not operate to reduce the pay of officers in service at the time of its enactment. \[99\] The formalities of one's entry into service are immaterial on the question of right to pay for services actually performed and accepted. \[99\] A passed assistant surgeon in the navy with rank of lieutenant is entitled to the pay of a captain in the army of the mounted class. \[99\] A naval officer appointed for temporary service during the Spanish War, on receiving his extra pay after return home and discharge, is entitled to sea pay, not waiting orders pay. \[99\] An officer assigned to duty on personal staff of a rear Admiral as flag lieutenant is "an aid" and as such entitled to extra pay. \[99\] Longevity pay of a naval officer is computed on the yearly pay of the grade or rank of the officer entitled thereto. \[99\] A retired naval officer ordered to active duty is not entitled to longevity pay. \[99\] A subordinate who without authority is suspended or dismissed from service by another subordinate, \[99\] but restored by superior authority and furlughened without pay, is entitled to compensation

chasing or receiving the property in pledge \[99\] In orders issued by competent authority \[99\] a knew or under the circumstances should command above that pertaining to his have known that vendor or pledger was a grade. United States v. Mitchell, 205 U. S. soldier. United States v. Koplik, 155 F 919. \[99\] 161, 51 Law. Ed. 752. To warrant construction under $ 5438, it must be proven beyond reasonable doubt that de- \[99\] 61 Law. Ed. 1046. \[99\] 97. McClure v. U. S., 42 Ct. Cl. 262. \[100\] from a soldier the property described in the \[99\] 98. It is corresponding "rank", not "du-midemittent with knowledge that seller of \[99\] 99, which is the basis of pay \[99\] 99, \[99\] 836 MILITARY AND NAVAL LAW SS 1B. 10 Cur. Law. from the time of the unauthorized suspension until the time of furlough,8 though not thereafter and before actual restoration to duty. A naval officer detailed for shore duty beyond seas prior to the passage of the act of March 2, 1901, was not entitled to increased pay until he entered upon his new duties.9 That act provides that service under such detail shall be counted from date of departure from the United States to date of return thereto.10 One is not performing shore duty beyond seas while in a hospital not rendering service.11 The basis for computation of the 10 per cent increase for shore duty beyond seas is "pay proper as fixed by law for time of peace."12 An officer of the revenue cutter service, who at his own request was assigned to duties abroad in connection with the Louisiana Purchase Exposition, is not entitled to increased pay as an officer serving beyond the limits of the United States, his services not being of a military character.13 Though the appointing power is in the executive department, congress may provide for retirement of an officer with a rank and pay_higher or lower than that which belongs to the office.14 A midshipman serving as an undergraduate in the naval academy was an officer in the navy within the personnel act allowing officers who served during the Civil War to retire with the rank and three-fourths the pay of the next higher grade,15 and it is not essential that he should have been actually ordered into active service during the war.16 Where employees of the navy department are required to serve on Saturday afternoons, they are not entitled to more than regular pay.17_Traveling expenses and mileage.See 8 C. L. 988--Officers traveling under orders are entitled to mileage.18 Constructive travel is that which is paid for though there was no actual travel.19_Compensation for lost equipment.See 8 C. L. 988--An owner may recover for the fuel for the unauthorized disbursements or other loss.See 8 C. L. 988--The statute providing relief to disbursing officers from liability for loss or capture of funds or papers applies to cases arising in time of peace as well as in time of war,20 but claimant's negligence bars relief.21 Excessive payments made by a disbursing officer in good faith may be allowed him in certain cases where the government has received the benefits therefrom.22_Quarters and commutation thereof.See 8 C. L. 988--An owner may recover for the use and occupation of private property by the United States for military purposes where the country had been reduced by subjection before the taking.23_Quarters and commutation thereof. See 8 C. L. 988--The provision of the Kentucky statute 10 Cur. Law. MILITARY AND NAVAL LAW SS 3. 837

ing persons who desire to organize a company in any county to obtain from the county judge a certificate of character, etc., is directory only, \[34\] and if the governor approves the application without the certificate, the company may be lawfully enrolled. \[28\] The cost of maintenance and care of armory buildings erected at county expense is borne by the county and not by the county jailer. \[36\] A legislative resolution authorizing the bringing of suit against the state for supplies furnished the militia contemplates a judgment against the state payable out of its general funds, \[27\] and hence a defense that the military fund was consumed when the contract was made is not available. An adjustment general may be compelled by mandamus to certify as correct the pay rolls of a company. \[28\]

SS 2. \_Orders, regulations, and discipline; promotion and discharge.\_See * C. L. \*\*53.--A military order of the president as commander in chief, to be enforced in a foreign country under our military control, does not take effect until received and promulgated in that country. \[36\]

SS 3. \_Military and naval tribunals.\_See * C. L. \*\*54.--An officer of the regular army though temporarily attached to a volunteer command is not eligible as a member of a court martial to try a volunteer officer. \[36\] The evidence adduced before a court of inquiry is surrounded by all the solememities of evidence taken in a court of record or before a court martial. \[37\] A naval officer, charges against whom have been investigated by a court of inquiry, is not entitled to further trial by court martial as a matter of right. \[38\] The statutory provision that the proceedings of courts of inquiry shall be evidence before a court martial only when oral evidence cannot be obtained does not go to the jurisdiction of the court martial \[39\] but is merely a procedure regulation securing rights to accused which he may waive. \[39\] One acquitted by a military court of competent jurisdiction cannot be tried in a civil court for the same offense. \[40\] Under the army regulations, a sentence imposed upon a "soldier" for an offense committed while he was either undergoing or awaiting a prior sentence commences to run at the expiration of the first sentence. \[36\] Officers having authority to convene a general court martial may remit or investigate but not commute the sentence of such court. \[39\] Rulings and practices of the war department, though not binding on the judiciary, will not be overthrown except for cogent reasons, \[41\] and civil courts may not set aside or review the proceedings or sentences of courts martial legally constituted and having jurisdiction of the offense charged. \[42\]

\*\*24. Ky. St. 1903, $ 2661. Haley v. Cochran, 30. United States v. Brown, 206 U. S. 240, 31 Ey. L. R. 505, 12 Ey. 855. 51 Law. Ed. 1045. 52. Haley v. Cochran, 31 Ey. L. R. 505, 31. Accused could agree that such evidence 102 SWV 852. 26. Statutes construed. Fiscal Ct. of Jefferson County v. Pfanz, 31 Ky. L. R. 1242, 32, 33. Mullan v. U. S., 42 Ct. Cl. 157. 104 SWV 1002. 34. Where secretary of any granted re- 27. M. C. Lilly Co. v. Com., 29 Ky. L. R. 589, 93 SWV 1039. 28. Duplication of names on pay roll could be corrected on motion in trial court. Haley v. Cochran, 31 Ky. L. R. 505, 12 Ey 855. 51. Petition properly dismissed as to governor. Action of secretary was not dures. Id. he being able only to approve the pay rolls after certification by adjustment general. Id. Pen. Code P. I. aft, 404, precluded subse-Contentions that plaintiffs services were unauthorized because certain persons were not lawful governor and adjustment general. \[105\]

Footnote 31
\_Civil status, rights and liabilities of the military and navy, and of military and naval reservations.\_See 8 C. L. 954.--The Louisiana statute exempts members of the militia from the jurisdiction of the civil courts only when in active service on order of the governor.\[40\] While an enlisted soldier in time of peace may be subjected to arrest and punishment for violation of a municipal ordinance, the same as a civilian,"yet, where any punishment is sought to be inflicted which will interfere with the performance of his duties towards the government, the utmost good faith will be required of the civil authorities," and any unfair discrimination or cruel or unusual punishment may be inquired into by the Federal courts.\[41\] Whether an act charged as a crime against a prisoner held in custody by a state was committed in the performance of his duty as a soldier of the United States may be inquired into by a Federal court or judge on habeas corpus,\[42\] and if such is the case the prisoner will be discharged for want of jurisdiction in the state court.\[43\] That an army officer accepts a small sum of money from the civil government to be used in the performance of military functions does not make him criminally liable as a civil officer.\[44\]

\_Martial law.\_See 8 C. L. 955.--During the Philippine insurrection, civil law was superseded by military law until the civil law and the treaty with Spain could be put in force.\[45\] The power of a military commander is subject only to restrictions imposed by the consent of civilized nations,\[44\] and he may impose and collect import duties to cover expenses of the military government.

## 6. \_Soldiers' homes and indigent soldiers.\_See 8 C. L. 955

\_Civil status, rights and liabilities of the military and navy, and of military and naval reservations.\_See 8 C. L. 955.--The Louisiana statute exempts members of the militia from the jurisdiction of the civil courts only when in active service on order of the governor.\[40\] While an enlisted soldier in time of peace may be subjected to arrest and punishment for violation of a municipal ordinance,ilian,\[41\] yet, where any punishment is sought to be inflicted which will interfere with the performance of his duties towards the government, the utmost good faith will be required of the civil authorities,\[42\] and any unfair discrimination or cruel or unusual punishment may be inquired into by the Federal courts.\[43\] Whether an act charged as a crime against a prisoner held in custody by a state was committed in the performance of his duty as a soldier of the United States may be inquired into by a Federal court or judge on habeas corpus,\[42\] and if such is the case the prisoner will be discharged for want of jurisdiction in the state court.\[43\] That an army officer accepts a small sum of money from the civil government to be used in the performance of military functions does not make him criminally liable as a civil officer.\[44\]

\_Martial law.\_See 8 C. L. 955.--During the Philippine insurrection, civil law was superseded by military law until the civil law and the treaty with Spain could be put in force.\[45\] The power of a military commander is subject only to restrictions imposed by the consent of civilized nations,\[44\] and he may impose and collect import duties to cover expenses of the military government.

## 8. \_Soldiers' homes and indigent soldiers.\_See 8 C. L. 955.

\_Civil status, rights and liabilities of the military and navy, and of military and naval reservations.\_See 8 C. L. 955.--The Louisiana statute exempts members of the militia from the jurisdiction of the civil courts only when in active service on order of the governor.\[40\] While an enlisted soldier in time of peace may be subjected to arrest and punishment for violation of a municipal ordinance,ilian,\[41\] yet, where any punishment is sought to be inflicted which will interfere with the performance of his duties towards the government, the utmost good faith will be required of the civil authorities,\[42\] and any unfair discrimination or cruel or unusual punishment may be inquired into by the Federal courts.\[43\] Whether an act charged as a crime against a prisoner held in custody by a state was committed in the performance of his duty as a soldier of the United States may be inquired into by a Federal court or judge on habeas corpus,\[44\] and if such is the case the prisoner will be discharged for want of jurisdiction in the state court.\[45\] That an army officer accepts a small sum of money from the civil government to be used in the performance of military functions does not make him criminally liable as a civil officer.\[46\]

\_Martial law.\_See 8 C. L. 955.--The Philippine insurrection, civil law was superseded by military law until the civil law and the treaty with Spain could be put in force.\[47\] The power of a military commander is subject only to restrictions imposed by the consent of civilized nations,\[48\] and he may impose and collect import duties to cover expenses of the military government.

\_Martial law.\_See 8 C. L. 955.--During the Philippine insurrection, civil law was superseded by military law until the civil law and the treaty with Spain could be put in force.\[47\] The power of a military commander is subject only to restrictions imposed by the consent of civilized nations,\[48\] and he may impose and collect import duties to cover expenses of the military government.

\_Martial law.\_See 8 C. L. 955.--The Philippine insurrection, civil law was superseded by military law until the civil law and the treaty with Spain could 10 Cur. Law. MINES AND MINERALS $ 3A.

## 10.4 Mines and minerals.

### 1. General Common-Law Principles, S39.

A. Public Ownership, $39.

B. Private Ownership; Rights of ,Free-hold Tenants of Less than Fee, $39.

### 2. Acquisition of Mines Rights in Public Lands, $39.

A. What Lands May Be Located, $39.

B. Who May Locate, $39.

### 3. Mode of Locating and Acquiring Patent, $39.

A. Making and Perfecting Location, $39.

B. Maintaining Location; Forfeiture, Loss, or Abandonment, $40.

B. Mining Torts, $52.

C. Relocation, $41.

D. Proceedings to Obtain Patent; Ad-Verese Claims, $42.

_The scope of this topic_ is noted below.\[50\]

SS 1. \_General common-law principles. A. Public ownership.\_See $ C. L. $55.

(SS 1) \_B. Private ownership; rights of freehold tenants of less than fee.\_See * c. L. $55.

The right to remove coal to the injury of the surface will not be presumed from the mere fact of ownership of the coal.\[51\] Adjoining land cannot be made servient to mining operations as a mere matter of convenience.\[52\] An underlying mineral estate may be lost by adverse possession.\[53\]

SS 2. \_Acquisition of mining rights in public lands. A. What lands may be located.\_See $ C. L. $55.

Only unappropriated government lands are subject to location under the Federal mining laws, but lands once located may become subject to relocation when the former location is forfeited or abandoned.\[54\] Only a valid location, moreover, renders the land appropriated so as to prevent location by others.\[55\]

(SS 2) \_B. Who may locate.\_See $ C. L. $57.

Under the Federal statutes certain employees of the government are prohibited from locating, purchasing, or acquiring public lands, including mining claims.\[56\]

SS 3. \_Mode of locating and acquiring patent. A. Making and perfecting location.\_See $ C. L. $57.

-A discovery is the first essential to the location of a mining claim.\[57\]

The discovery may precede the location, but in the absense of retention of possession

### 49. No case have been found for this sub-

Ject since the last article. See $ C. L. $43.

50. If includes the principles of law ap-

plicable to the acquisition and ownership of mines and minerals, including natural gas, and $ 3C, Relocation.

and estates therein. It also includes the principles applicable peculiarly to the operation of mines. It includes remedies and

procedure only so far as they apply peculiarly to mines and minerals. It excludes the general principles of liability for negligence (see Negligence, $ C. L. $1090), and the principles arising out of the relation of master and servant (see Master and Servant, $10 C. L. $91). It also excludes taxation of mines and minerals, see Taxes, $ C. L. $205.

El. Tischen V. Pennsylvania Coal Coal. (Pa.)

66 A. $88.

52. Where it was not necessary to operation of plaster quarry that refuse therefrom be dumped upon adjoining lands. White v. Lansing, $103 NYS 1040.

01. Alleged mineral estate untouched for more than twenty-five years cannot be as-

### 49. No case have been found for this sub-

Ject since the last article. See $ C. L. $43.

70.

01. See post, $ 3B, Maintaining Location, mines and minerals, including natural gas, and $ 3C, Relocation.

and estates therein. It also includes the principles applicable peculiarly to the operation of mines. It includes remedies and

72. See post, $ 3D, subd. Adverse Claims.

01. See post, $ 3D, subd. Adverse Claims.

01. Deputy United States mineral. sur-

01. See post, appointed under U. S. Rev. St. $ 2334,

01. In not an officer, clerk or employee in the general land office within $ 452, prohibiting

01. See post, $ 452, prohibiting

01. See post, $ 453, prohibiting

01. See post, $ 454, prohibiting

01. See post, $ 455, prohibiting

01. See post, $ 456, prohibiting

01. See post, $ 457, prohibiting

### 840 Mines and minerals $ 3B.

10 Cur. Law. it is absolutely essential either before or after location.54 After discovery the location must be perfected in the manner prescribed by the statutes,59 including the requirements as to markings on the ground,60 posting of notice,61 and the filing of certificates or statements of location.62 Additional requirements not in conflict with the Federal laws may be imposed by local regulations.63 A claim overlapping another by reason of the corners being partly upon the latter is good pro tanto the part outside of the overlap,64 and so also a claim including more than allowed by statute is good pro tanto,65 and the lines may be corrected so as to come within the statutory limit.66

(SS 3) \_B. Maintaining location; forfeiture, loss, or abandonment.\_See * C. L. 990 --As against everyone except the government, one in actual possession of public land is entitled to hold it apart from the sufficiency of his mineral location,67 but where the possession is not retained, a claim to a mineral location can be sustained only as such.68 In order to hold a mining claim, the locator must do the work thereon required by statute.69

58 New England & Coaling Oil Co. 1. \[Laws, $ 210, relating to certificate of location to be recorded. Ford V. Campbell Campbell \[Ca.\]. 92 P 180. \[Nev.\]. 92 P 206. Under Sess. Laws 1901, p. p. 1424\], must be followed in locating claim to asphalum in vein or lodes. Webb v. \[American Asphalum Min. Co. \[C. C. A.\] 167 F 203. Words "other valuable deposits," as used in Rev. St. 5220, includes non-metalliferous, as well as metalliferous, deposits. Id. \[Ashshintum in veins or lode cannot be located by placer claim under Rev. St. 5 \[Ashintum in veins or lode cannot be located by placer claim under Rev.

10 Cur. Law. Mines and minerals $ 3C. 841

_A forfeiture See * C. L. #91_ can be established only by clear and convincing proof of the default constituting the ground thereof.70 One cannot claim a forfeiture against his co-owner for failure to contribute where no work had been done.11 There seems to be some conflict as to whether a forfeiture will be declared for noncompliance with certain local mining regulations.12

_An abandonment_ may occur by relinquishment of the possession, where the mining location has not been perfected.73 The posting of a so-called notice of abandonment does not necessarily constitute an abandonment.74 An abandonment leaves the lands unoccupied the same as before the attempted location,75 and all improvements revert to the government.75

(SS 3) \_C. Belocation._See * C. L. #92_.-An adverse relocation may be made upon an abandoned claim,77 or upon a forfeited claim.78 Indeed, such a relocation can be

tion, subsection A. Making and Perfecting

Consol. Min. Co., 7 Sawvy. 96, 11 F 66. There seems to be a conflict in state decisions

69. Under the evidence the expense of employing a Keeper held proper to be consided.

Montana differs with the supreme court of
ered as part assessment work required by Federal statutes. Kinsley v. New Vulture

241. As does also the supreme court of Ne-

Min. Co. \[Ariz.\] 90 P 438. Upon an issue as

vada. Mallett v. Uncle Sam Gold & S. Min.

to forfeiture for failure to do assessment

Co., 1 New. 188, 90 Am. Dec. 484. Lindley,

work, work upon contiguous claims which

in his work on mines, seems to prefer the

was intended to and did tend to develop

California rule as a "safe and conservative

all of such claims may be considered in de-

rule of decision, tending to the permanancy

termining whether the proper amount of

and security of mining titles." I Lindley,

work was done upon any one of such claims.

Mines \[2nd Ed.\] $ 274. But in view of the

There must, however, be a sufficient basis

facts of this case we do not deem it necces

for appointment of such work between the

sary to decide whether a forfeiture will

several claims. Upton v. Santa Rita Min.

exise simply from a violation of this mining

Co. \[N. M.\] $9 P 275. Cross cut 132 feet

regulation.--See * Yosemite Gold Min. & M.

below surface and accessible only by shaft

Co. v. Emerson, 28 S. Ct. 196.

upon another claim held not equivalent to

73. Oll claim held abandoned. New Eng-

cation shaft or crosscut within Pol. Code, $

land & Coaling Oll Co. v. Congdon \[Cal.\]

$611. Locator cannot extend time for doing

92 P 180.

required work on his location by posting a

new discovery notice or altering old one.

locator, upon discovery that location work

Butte Consol. Min. Co. v. Barker, 35 Mont.

done was on a prior claim, posted notice of

$27, 89 P 302, aff., on rehearing, 90 P 177;

hagemarson v. Coffey \[Colo.\] $2 P 908.

70. Forfeiture for failure to do annual

vork. Upton v. Santa Rita Min. Co. \[N. M.\]

89 P 275.

71. Ex parte proceedings under Rev. St.

v. Campbell \[Nev.\] $2 P 206.

$ 2326, by one co-owner against the other

for forfeiture under $ 2326, for failure to

1001.

contribute to assessment work, are invalid

and ineffective where no such work has

for oil. Wolfskill v. Smith \[Cal. App.\] $9 P

been done. Delmore v. Long, 35 Mont. 139,

101.

88 P 778. New England & Coaling Oll Co. v.

Congdon \[Cal.\] $2 P 180. As to what con-

local rewindings as to notice of location:

The supreme court of California held that

its decision in the present case upon this

question was concluded by the ruling made

upon the first appeal, which decision contained

trained to be the law of the case. Upon the

required by the statute, an instruction that

first appeal (Emerson v. McWhirter, 133

Cal. 510, 65 P 1086) It was held that

the failure to comply with the mining rules

in this respect would not work a forfeiture of title, inasmuch as there was

not erroneous in that it eliminated the possi-
nothing in the rules which made noncompliance a cause of forfeiture, that, unless

billity of the prior locator having done the

the rule so provided, the failure to comply

Coffey \[Colo.\] $2 P 908. Provision of Rev.

with its requirements would not work a forfeiture. The court clted other California

providing that one who has held and worked

cases to the same point and cases from the

supreme court of Arizona (Rush v. French,

1 Aris, 92, 5 P 816; Johnson v. McLaughlin,

1 Aris, 493, 4 P 130), also the decision of made only upon the abandonment or forfeiture of prior valid location," and only after the abandonment or forfeiture is complete," but where the first location is not perfected so as to segregate the claim, a relocation, so-called, may be made without regard to the former attempted location." As in the case of original locations, a relocation must be perfected by compliance with the statutory requirements, including those relating to notice " and work." Notwithstanding the provisions for forfeiture for failure to do the annual assessment work, a claim who has a valid claim may, after such failure, relocate his claim to the exclusion of an adverse claim, and who located while the senior location was subsistent."

(SS 8) _D. Proceedings to obtain patents; adverse claims.See 8 c. L. #2_Priority to the right to a single, broad vein vested in the discoverer is not determined by the dates of the entries or patents," and priority of discovery may be shown by evidence other than the entries and patents."_

_Suits to determine adverse claims.See 8 c. L. #3_--Ordinary form of action may be employed so far as applicable," and the verdict may be in form according to the form of action employed." The declaration or complaint must show that the suit is founded upon an adverse claim," and must allege the proper filing of the adverse claim," and must sufficiently describe the area in controversy so as to sustain the

for statutory period is equivalent to valid Io- or to de certain work. on the old shaft, etc. cation. Upton v. Santa Rita Min, Co. \[N. M.\] & $152, 3155, 3162, requiring $9 P 276. Such possession does not relieve possessor from necessity of doing the annual assessment work required by Rev. St. & 2244 U. St. Comp. St. 1901, p. 1426, and $84. See Comp. Laws, $1208, 209, as the land is subject to relocation, though the original locator may have occupied land for more than the statutory period preceding such relocation. Id. & $123, 222, 2242, 2236. Nash v.

T9. Hence, In element by relocator against original locator, the plaintiff cannot contest the validity of the original location. Zerres v. Vanlina \[C. C. A.\] $10 F 64. & $80. relocation of claim segregated by posting of notice and markings on ground is invalid until after failure to do assessment work by original locator. Nash v. & 224, did not present a Federal question so as to give supreme court of United States jurisdiction to review such decision. Id. & $85, 86. Lawson v. U. S. Min. Co., 28 S. Ct. 15. & 15. & 87. In adverse salts under Rev. St. & 2286 U. S. Comp. St. 1901, $ 1430, an ordinary declaration in electment is sufficient to present all questions between applicant for patent and adverse claimment, Upton v. Santa Rita Min. Co. \[N. M.\] $9 P 275. In such suit rules governing ordinary action of electment are modified by Comp. Laws, $ 2290, providing that mere prior possession shall not constitute basis for recovery, and by Act. Cong. March 3, 1881, c. 140, 21 Stat. & 505. & \[U. S. Comp. St. 1901, $ 1431\], requiring defendation, as well as plaintiff, to recover on strength of own title. Id. & $8. Verdict of "guilty" held sufficient in ejectment by adverse claimment. Upton v. Santa Rita Min. Co. \[N. M.\] $9 P 275. & 89. Declaration in electment must contain allegations suffClient to apprise court that suit is on an adverse claim, so as to enable court to apply the statutory modifications of the rules applicable to ordinary electment. Upton v. Santa Rita Min. Co. \[N. M.\] $9 P 275. & 89 P 275. Complaint held sufficient as compliant in electment based on adverse claim. Id. & $90. Must allege filling within sixty days, 10 Cur. Law. MINES AND MINERALS SS 3D. 843

judgment which must also describe such area.91 Such suits are in the nature of suits in equity, and hence the parties are not entitled to a trial by jury,92 and in a proper case an injunction may issue in such a suit.98 Suit in a state court to quiet title, based upon an adverse claim filed with the Federal government, is governed by the state laws.94

Footnote 98: http://www.stat.ucsd.edu/$\\sim$

Footnote 99: http://www.stat.ucsd.

## 4 Ownership or estate obtained by claim, location, and patent; apex and extralateral rights

See 5 C. L. 994

\_Aper and extralateral rights.\_See 8 C. L. 995--No extralateral rights exist in favor of a location outside of which the apex of a vein is located.\[5\] Where the apex, in its width, is partly within several locations, the senior location takes the entire width of the vein on its dip.\[8\] Seniority of location in such case is not conclusively established by seniority of entry and patent,\[7\] and in the absence of any record of adverse suits, there is no presumption that in the issue of such patent the subterranean rights of the parties were considered.\[8\]

_Boundary lines and monuments_ See 8 C. L. 996 may be proved by parol where they have become uncertain.\[9\]

See 5 C. L. 997

See 6. \_Private conveyances or grants of mineral rights in land.\_See 8 C. L. 997--A grant of mineral lands is sufficient if the land can be identified,\[10\] and in such case the name of the claim is immaterial,\[11\] and the grantor is presumed to have intended to convey the best title he had.\[12\] Mineral rights may be sold separately and apart from the land itself,\[13\] as may also minerals in place,\[14\] while, on the other hand, a grant of the surface may include the minerals underneath the same.\[15\] The grantee of minerals in place takes a fee simple estate,\[18\] and such a grant works a severance,\[17\] and thereafter mere possession of the surface does not carry with it or extend to the possession of the mineral,\[18\] and the owner of the legal title to such mineral need not exercise any acts of ownership over it to perfect or retain his title as against the owner or possessor of the surface.\[19\] Such a sale and severance of estate carries with it the right to remove or use so much of the containing strata, above and

co-owner held admissible to show conceal- purpose of removing coal. Higgins v. Round ment of decedent's fraud in securing patent Bottom Coal & Coke Co. (FW. Va.) 59 SE 1064.

in own name, and as being admissions against interest within Code Civ. Proc. metallic substances, etc. Includes salt, coal, **3125**, 3146, subd. 4. Id.

& McEmilgott v. Krogh \[Cal.\] 80 P 823.

& G, 7, 8, & Lawson v. U. S. Min. Co., 28 S. Ct.

15.

01. Collins-v. McKay \[Mont.\] 92 P 295.

01. Collins v. McKay \[Mont.\] 92 P 295.

Evidence held sufficient to identify property. Id. Declarations of plaintiffs intestine, the grantor, subsequently to the conveyance with reference to the location of the property, held admissible against plaintiff. Id.

11. Collins v. McKay \[Mont.\] 92 P 295.

01. See City. Code, 1511. Collins v. McKay \[Mont.\] 92 P 295.

Kay \[Mont.\] 92 P 295.

Grantor cannot attack his own conveyance on the ground that it was invalid as to strangers. Id.

13. Conveyance held to convey no title to land but only an interest in oil and gas produced. Carter v. Estep, 30 Ky. L. R. 1144.

100 SWV 308. Deed to "all mining right, property, possession, claim and demand whatsoever, and every part and parcel thereof," held to include grantors' extra lateral rights. Riley v. North Star Min. Co. \[Cal.\] 93 P 194.

14. Moore v. Indiana Camp Coal Co.. 75 Ohio St. 493, 80 NE 6. A grant of a small portion of a tract of land, with the privilege of undermining another portion of such tract so far as not to injure the surface of the latter, constitutes a grant of the coal under the latter portion, and by prescribing the mode of removal withholds right to open the surface of such portion for 621.

10 Cur. Law. MINES AND MINERALS SS 6. 845 below, as may be reasonably required for the proper mining of the mineral,\[29\] and, in the absence of restrictions to the contrary, the space left by the removal of the mineral and strata belongs to the owner of the mineral until the mine has been exhausted.\[21\] Rights under a contract of sale of coal in place in consideration of royalties on coal mined may be lost by failure to mine such coal.\[22\] A grant of a lode claim includes a placer claim within the bounds of the former and owned by the grantor.\[23\] Privileges. granted cannot be extended by interpretation,\[24\] but a conveyance of coal in place must be construed in the light of the conditions and circumstances existing at the time of its execution,\[26\] and where the deed is ambiguous, resort may be had to the meaning of the terms used at such time,\[26\] but parol evidence is admissible to show that certain terms, as used, had a special meaning and were so understood by the parties.\[27\] An action to recover for the royalty due upon a sale of coal in place is a personal action and must be brought in the name of the personal representative, and not in the name of the heirs at law, although the estate is otherwise fully settled up.\[28\] Only the actual loss can be recovered upon a penal bond given in connection with a conveyance of mineral rights.\[29\]

_Bights as between surface and subterranean owner_,\[26\] S C. L. 1001--A lessce of mineral rights cannot use portions of the surface excepted for the lessor's use for special purposes,\[30\] and may be liable to the owner of the surface for injuries thereto caused by the operations of the lessee,\[31\] and the failure of the surface owner to exact a statutory security from the owner of the minerals does not relieve the latter from liability,\[32\] but mere knowledge on the part of a lessor that the lessees of the upper level are working their level in a manner dangerous to the lower level will not render the lesser liable to a resulting injury to the lessee of the lower level.\[33\] A lessee of the lower level cannot invoke as against the lessor guaranties given to the latter by the lessee of the higher level,\[34\] nor is a reservation in a conveyance by one having no title to coal of the right to remove it, without liability for injury to the surface, available to the real owner, the latter being a stranger to the former's conveyance.\[35\] The 20. Moore v. Indiana Camp Coal Co., 75 Ohio St. 493, 80 NE 6. 21. Mine owner may use such space as he sees fit, including right to have mineral and parol from net earnings in addition to purdrain water through such space from other mines, provided the surface be not injured. 34. 35 Ohio St. 493, 80 NE 6. 22 Failure for twenty years. Brown v. Wilmore Coal Co. (C. C. A.T 153 F 143. 30. Portion excepted for burial purposes. 23. Collins v. McKay \[Mont.\] 92 P 285. Montgomery v. Economy Fuel Co., 61 W. Va. 24. Right to sink shaft on grantors land to ventilate mines on adjoining lands, held 31. Lesser held liable to owner for injury not given by grant of coal, with privilege to surface from operation of coal vein by ventilation in mining same, and right to 188, where lesser knew surface had been transport the coal from the other mines endangered, but took no steps to prevent the inl injury and received royalties on all coal mining of, the coal granted. Cubbage v. 4. 4. 5. 6. 7. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 11. 19. 21. 22. Whyre it appeared that person who wrote deed was skilled in use of such terms. 4. 5. 6. 17. 18. 19. 23. 19. 24. 25. 26. 27. 28. 29. 30. 11. 20. 21. 23. 24. 26. 28. 31. 29. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 51. 53. 57. 59. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 71. 73. 75. 77. 78. 79. 81. 82. 83. 84. 85. 86. 87. 88. 89. 9. 9.

846 MINES AND MINERALS SS 7 10 Cur. Law. right of the surface owner to support may be released.\[86\] The right of action for injury to the surface by removal of support accrues when the support is so weakened that it may fall.\[37\]

_Lesses.See _S C. L._ 1001_

_Essentials and validity.See _S C. L._ 1001_

Some consideration or covenant on the part of the lessee is essential, otherwise the purported lease will constitute a mere option.\[88\]

_Estate or interest created.See _S C. L._ 1003_

The word lease, as applicable to certain minerals, has a well defined and more or less technical meaning.\[19\] Leases of undivided interests to different lesseees constitute them colessees each of the undivided interest covered by his lease.\[40\] A parol license to mine is revocable at will and conveys no title to ores not mined and reduced to possession,\[41\] and nothing is added to such estate by expenditures under such license.\[42\] Change of the basis of rental from cash to royalty does not enlarge the leasehold estate.\[43\] A mining lease passes no title to the mineral in place,\[44\] though grants of minerals in place are sometimes treated as leases and have more or less in common therewith.\[45\] The title acquired at a judicial sale is ordinarily limited by the terms of the sale.\[46\]

_Interpretation and effect in general.\[See _S C. L._ 1002_

The scope of a lease depends, as in the case of other conveyances, upon the intent of the parties as manifested by the instrument by which the lease is evidenced,\[47\] and such an instrument will be given a reasonable interpretation.\[48\] There is an implied covenant for good title and peaceable and quiet possession in a lease for years for oil and gas,\[49\] and such covenant extends not only to the right to explore for oil and gas, but to the amount stipulated for, when produced.\[40\] Questions as to the interpretation of provisions as to diligence of the lessee in regard to operations, and as to forfeitures for failure to

36. Lease held to give right to remove all coal under land, regardless of effect on surface. Miles v. Pennsylvania Coal Co., 217 Pa. 449, 64 & 74.

01. See ante, & 6, Private Conveyances or grants of Mineral Rights in Land.

\[Pa.\] 66 A 898.

46. While it le true that in the old field the word "lease", when referring to a lease in operation, means the whole plant, that is, the lease in its technical sense, together with the equipment and appurtenances in use in its operation, the title obtained by the purchase of such a lease at a judicial sale would ordinarily be limited to the terms of the decree of sale. Nicev v. Percy, 9 Ohio C. C. C. (N. S.) 233.

01. Exclusive right to bore for and to produce oil on the premises held not to apply, in matter of production, to wells already on the premises. Dodridge County Oil & Gas Co. v. Smith, 154 F 970. Lease of veins of coal, with provision that certain amount of coal of certain size might be mind and removed, gave lessee right to only such amount of such size. Hollenback Coal Co. v. Lelhigh & Wilkes-Barre Coal Co.

\[Pa.\] 67 A 897.

48. A provision that the lease shall continue until all the product is taken out does not require the lessee to continue operations after the limit has been reached beyond which such product cannot be taken out at reasonable expense or with profit.

Wilson v. Big Joe Block Coal Co., 134 Iowa, 594, 112 NWP 83.

49, 60. Kilcoyne v. Southern Oil Co., 61 W. Va., 538, 56 SE 888.

10 Cur. Law. MINES AND MINERALS SS 7. 847

operate or to pay rentals, usually arise in connection with a claim of forfeiture or an asserted right to cancel, and are treated in such connection.\[61\]

\_Rights, duties, and liabilities of the parties.\[See 5 C. L. 1904--A lease of the right to enter land, and to explore and operate, and to procure the subject-matter of the lease, creates only an incorproreal hereditament a license to explore for such matter and to remove it if found,\[52\] and the lessee has no right in or to any specific portion of the mass or strata until such portion has been severed.\[88\] Where a lease provides for the drilling of a certain number of wells, a certain amount of land to be apportioned to each well drilled, the lessee has the right, in the absence of specific directions or \[88\] specifications on the subject, to designate the portions to be reserved for the wells drilled. The lessee is not liable for failure to allow to the lesso's assignee a personal privilege reserved to the lesso, where the lessee has no notice of the assignment.\[56\] A subsequent lessee may be stopped to assert the inability of the prior lease.\[56\] The rights, and duties, and liabilities of the parties in connection with the lessee's failure to begin or continue operations or to pay rentals is treated elsewhere,\[87\] as is also the mutual rights and liabilities of surface and sub-terranean owners.\[68\]

\_Rents and royalties.\[See 5 C. L. 1968--Royalty means the share of the profit reserved by the lessor, and is in the nature of rent,\[59\] and hence an advancement of royalty, pursuant to the lease, cannot be applied exclusively, if at all, to the lessee's liability for excess of royalties earned over and above a stipulated minimum royalty.\[60\] Minimum royalties may be recovered as rent.\[61\] The lessee is sometimes expressly relieved from the payment of minimum royalties where operations are suspended by certain matters,\[42\] and in such case the lessee's liability for such royalties is not merely de 848MINS AND MINERALS SS 710Cur. Law.

ferred, but ceases for the time being to exist.83Such a provision, however, cannot be invoked where operation and production are not in fact prevented.84Royalties payable only upon certain contingencies may depend not only upon the happening of such contingencies, but upon the continuation thereof.85Acceptance of royalties upon a certain basis may preclude the lessor from claiming royalties on any other bases.86In the absence of any provision on the subject, royalties are payable on the premises.87Rents payable in advance constitute a suspensive condition or a condition precedent to the creation or continuation of the lease.88A provision for the application of royalties to improvements is not rendered nugatory by a contract between the lessee and a third party, whereby the former is, for a valuable consideration, reimbursed for his expenditures in such regard.89The rights of one who has entered into a joint lease with another owner, whereby the royalties from their respective properties are thrown into hotchpot, are incident to and dependent upon his ownership of his portion of the property lease.70Forfeiture for nonpayment of rents and royalties is treated elsewhere.71

\_Forfeiture, rescission, cancellation and abandonment.85S C. L. 1010--Where the lease expressly provides for the payment of a minimum royalty, regardless of whether any mineral is mined or not,72 a provision for forfeiture for failure to develop the property or to pay such royalties does not give the lessee the right to terminate the lease by his own default.73Some of the so-called gas and oil leases, however, are really mere options, revocable at the will of the holder, but not of the grantor,74 while other so-called leases are unenforceable, and hence revocable, for want of mutuality.78It is held that where the contract has been violated by not doing what was covenanted to be done within the time stipulated, a putting in default to snpply sufficient cars held within such provision. Id. A provision relieving the lessee from liability for minimum royalties if he were prevented from taking out the product by matters he could not avoid, included impossibility of working mine with profit on account of unexpected and unforechpot. Coolabing v. Lughgh & Wilkes-seen difficulties. Wilson V. Big Joe Block Coa, 134Iowa, 594, 112N W89.

83Where it was provided that liability was to be "suspended." Robinson v. Kistler \[W. Va.\] 89SE 505.

64Breakdex destroyed by fire, but coal was mined and shipped the same as before. Everhart v. Lughigh Valley Coal Coa, \[Pa.\] 67A. 618.

85Under provision that, if gas was found in marketable quantities, a certain yearly rent should be paid, leasee held \[Co., Gil W. Va. 669, 57SE 58.

liable for such rent only so long as the welle produce gas in marketable quantities. Roberts v. Ft. Wayne Gas Coa, \[Ind. App.\] \[KA.\] 99P 803. Such options are not in-$2 NE 558.

66Where lease was susceptible to two constructions, and royalties were accepted for a number of years under one of such constructions. McKeever v. Westmoreland can Coa, \[Pa.\] 68A. 670.

67Drake v. Pennsylvania Coal Coa, 217Pa. 446, 66A 660.

68Jennings-Hevyood Oil Syndicate v. Houssier-Latreille Oil Coa, 119La. 739, 44 S

69. When the lesser was obliggated to al-low deductions from royalties, mutl one-half the cost of a branch road to be constructed by the lessee was paid, such liability was not extingished by an agreement between lessee and railroad company, where-by the latter reimbursed former for costs 10 Cur. Law. MINES AND MINERALS SS 7. 849

is not a prerequisite to a suit to rescid,76 such putting in default being necessary only to the recovery of future damages,77 and that where an oil and gas lessee breaks his contract to begin operations within a certain time, the lessor may thereafter refuse to allow him to perform, and in case of suit by the lessee the lessor may plead such breach by way of exception.78 But the general rule is that, while equity may cancel a mining lease at the lessor's instance for failure of the lessee to operate,79 a lease will be cancelled or declared forfeited only after notice 80 and the expiration of a reasonable time in which to perform.81 The usual remedy of an oil and gas lesser against the lessee for defaults is by an action for damages and not by way of forfeiture,82 forfeitures being abhorred by equity.83 The lessor will be held to a strict exercise of a right of forfeiture,84 and such right, though expressly reserved, is not usually self executing,85 and must be exercised by some positive act.86 Where, however, an oil and gas contract is alternative in requiring operations to begin within a certain time or the payment of a certain sum in advance, it becomes single upon failure to make such payment, and the only useful offer that can thereafter be made is to commence operations,87 and where the lease provides that it shall be void for failure to perform conditions as to operations, the lessor may after a reasonable time, terminate the lease.88 An alternate provision for the payment of rents or minimum royalties in the event of failure to perform conditions as to operation does not give the lessee an absolute option to extend the lease by mere payment of such rents or royalties,89 and even acceptance of such rents or royalties.

76, 77, 78. Jennings-Heywood Oil Syndicate v. Housestore-Latreille Oil Co., 119 La. 793, 44

793, 44 S 481.

78. Coal lease cancelled for two years deagnat loss of product by drainage. Dodraffie County Oil & Gas Co. v. Smith, 154 F

Va.) 59 SE 179. Principles upon which such cancellation will be allowed, stated and discussed. Id.

80. A reasonable demand is necessary as a condition precedent to cancellation. Flanusiger-Latreille Oil Co., 119 La. 793, 44

841; Drake v. Pennsylvania Coal Co., 216

85. Sufficiency of notice: Notice to terminate

01. 44, 65 A 660; In re Murray's Estate, 216

01. 70, 65 A 675.

01. In re Murray's Estate, 216 Pa. 270, 65

01. Notice of election to claim the forfeiture must be given. Drake v. Pennsylvania Coal Co., 217 Pa. 446, 66 A 660. As to

01. Notice of election to claim the forfeiture must be given. Drake v. Pennsylvania Coal Co., 217 Pa. 446, 66 A 660. As to

01. Sufficiency of notice, see ante, this section

01. Jenning-Heywood Oil Syndicate v.

01. Housestore-Latreille Oil Co., 119 La. 793, 44 S

01.

does not necessarily operate as such an extension.90 A fortiori may cancellation be had when such rental is not paid.91 A stipulation for forfeiture for breach of conditions is not a mere covenant, but a condition subsequent upon which the estate of the lessee may be divested,92 and the lessor may reserve an absolute right of forfeiture for breach of conditions as to due diligence in operation,93 and in such case the lessee's inability to operate the mine is immaterial.94 No notice, except as provided in the lease, is necessary to sustain a peaceable re-entry after forfeiture,95 and an option is forfeited if not exercised within the time prescribed 94 without any claim of forfeiture.97 A forfeiture will not be declared for a default caused by the bad faith of the lessee,98 nor for nonpayment of royalties until after demand therefor at the proper place and a refusal of payment.99 What constitutes performance depends, of course, upon the terms of the lease,1 and such terms may be novated by subsequent agreements.2 A commutative contract to exploit for oil and gas is broken by not beginning operations within the term specified, or offering to do so within reasonable time thereafter.3 An assignee of a lease is not affected by the lessee's forfeiture of a collateral option.4 Stipulations as to an amicable suit to declare a forfeiture do not apply where an ordinary suit is resorted to instead of the amicable suit.5 Mining properties which have become a part of the really are forfeited 10 Cur. Law. MINES AND MINERALS SS 9. 851 when the lease is forfeited,9 and cannot thereafter be removed, even though there is a stipulation in the lease for the removal of all properties at any time.7 A lessee may lose his rights by abandonment,8 and may, of course, surrender the lease when so authorized thereby.9

_Reinstatement._ See 8 C. L. 1012.--A renewal may be implied by the continued working of the mine after expiration of the term.10

SS 8. _Working contracts._ See 8 C. L. 1012.--Drilling contracts will be construed according to their ordinary and commonly understood meaning in the absence of any reason for a contrary construction,11 and substantial compliance with provisions as to reports of strata drilled through is all that is required.12 Stipulations as to drilling a well do not include matters relating to its permanent preservation.13

SS 9. _Mining partnerships and corporations._ See 8 C. L. 1013.--Whether there was a partnership is ordinarily a question of fact.14 A "grub-stake" contract does not constitute a partnership where it goes no further than furnishing of supplies.15 Joint working or operation of a mine by joint owner creates a mining partnership without any agreement to that effect,18 and the same is true of two or more holding interests in a lease of mining property 17 but where, by statute, actual participation in the work is essential to constitute persons mining partners,18 cotenancy alone will not constitute the cotenants partners,14 though such a partnership may exist between two or more cotenants without the joinder of other cotenants.20 The scope of the partnership agreement is a matter of construction.21 Where on partner transfers the partnership claims to a corporation, the other party may obtain a decree against him personally without joining the corporation.22 Whether a mining corporation may be organized under a general statute is a question of construction.22

Footnote 21: https://www.

852 MINES AND MINERALS SS 10 10 Cur. Law.

**SS 10.**\_Public mining regulations.\_See 8 C. L. 1012--The term mineral, as used in statutes, is not confined to metalliferous ores,\[24\] nor is the term mines confined to subterraneous excavations or workings.\[25\] Regulatory statutes \[26\] must conform to the usual constitutional limitations \[27\]

SS 11.\_Statutory liens and charges.\_See 8 C. L. 1014--A watchman on an idle oil claim is not entitled, as such, to a laborer's lien.\[28\] Under some of the statutes an owner who has leased his mines may protect himself against liens by recording the lease.\[29\] The lessees of a mine by whom plaintiff was employed, are necessary parties to a suit to establish a laborer's lien against the mine.\[30\] A proceeding to enforce a laborer's lien against a mine involves title to land and is beyond the jurisdiction of a justice of the peace.\[31\]

SS 12.\_Jining torts.\_See 8 C. L. 1016--One has the right to drill for oil on his own land, though he thereby drains wells on the lands of another,\[32\] and a lessee of adjoining lands may do the same thing,\[33\] but such right cannot be exercised by a lessee for the collusive purpose of draining wells on other lands leased by him.\[34\] In West Virginia the sinking of an oil or gas well by a tenant in common is a waste,\[35\] and where such tenant is allowed to sink such an well on the land he must account to his cotenants for their proportionate shares.\[36\] The measure of damages for mining the coal of another under a bona fide claim or right is the value of the coal in place, or after removal less the expense of removal,\[37\] but where a trespasser confuses with

adjudiating any right to stock in the corporation. Costello v. Scott \[Nev.\] 93 P. L. 1046. Watchman on idle oil claim held entitled to laborer's lien under Code Civ. Proc. oral gas to public may be organized under $1183, for pumping off use in boiler, Gen. St. 1901, $1249, Compton v. People's though not entitled to lien for services as was watchman. Id.

\*\*24.\*\*Gypsum is a mineral within the meaning of the word mineral as used in statutes

\*\*25.\*\*Vaub County \[Utah\] 93 P. 53.

\*\*25.\*\*Naphil Paster & Mfg. Co. v. Juab County \[Utah\] 93 P 53.

\*\*26.\*\*Under Rev. St. 1899, $2572, making it a misdemeanor for any miner, etc., to "intentionally" injure any shaft, etc., the word "intentionally" imports merely knowledge of the nature of the act. Koppala v. State \[Vyo.\] 89 P 576. Information under Rev. St. 1899, $2572, for doing certain acts en- dangering life of any person, etc., need not specify names of persons in mine whose lives were endangered. Id. Mineer normal

whose duties were confined to the under-ground portion of the colliery, which con- sittuded the mine proper, held on the super- intendent of the colliery within Act June 2, 1891 (P. L. 176), art. 14, p. 196, requiring such superintendent to give notice to mine

inspection in certain cases, including when pillars are to be removed or robbed, or when safety seems to be affected by squeeze or crush. Corson V. George F. Lee Coal Co. \[Pa.\] 67 A 655.

\*\*27.\*\*Sess Laws 1899-91, 245, 80, $7, Rev. St. 1899, $2572, making it a misdemeanor for any miner, workman, etc., to intentionally infure any shaft, etc., held not unconnutriational as embracing more than one

\*\*37.\*\*Sandy River Cannel Coal Co. v. White House Cannel Coal Co., 30 Ky. L. R. 1308, 101, $39.

\*\*38.\*\*Under Code Civ. Proc. 1183, Donald- sittled the University of Chicago, 1991.

\*\*39.\*\*Under Code Civ. Proc. 1183, 101, $39.

\*\*39.\*\*Under Code Civ. Proc.

10 Cur. Law. MISTAKE AND ACCIDENT $ 1. 853

gas from his own wells gas taken from another's property, and pending litigation takes no steps to facilitate an accounting, every presumption will be indulged against him on such accounting.38 The servitude of lower lands to drainage from upper lands does not extend to waste oil and salt water from oil operations on such upper land.39

SS 13. \_Remedies and procedure peculiar to mining rights.\_See * C. L. 1012.A mining licensee has no legal remedy for injuries to the possession, he having no possessory rights.40 Mineral in place is not susceptible of partition.41

MINISTERS OF STATE; MINUTES; MISJOINDE, see latest topical index.

MISTAKE AND ACCIDENT.

## 2. Effect of Mistake and Relief Against, 854

_The scope of this topic_ is noted below.42

SS 1. \_Definition; elements.\_See * C. L. 1029.\_Mistake generally consists of rirconacious or inadvertent failure of parties to a written instrument to express th; real agreement.43 Where unmixed with fraud it must be mutual,44 but not so where in-mistake, the rule claimed by the plaintiffs susceptible to partition in kind. Partition applied. But the entire current of the lat-ter authorities is against applying it in cases C. A. 151 F 554. In West Virginia the sink-like that before us. In 29 Am. & Eng. Enc. ing of such a well without the consent of cotrans is a waste, and hence under Code the prevailing rule that in an action for 1996, to 8239, it cannot be set off on partition unlawfully working a mine and extracting to party who sunk it as an improvement. coal or ore therefrom, if the taking was Id. not a wilfull trespasas, but was the result of an honest mistake as to the true ownership of the mine, the measure of damages is the mer and sufficiency of proof. It exelades value of the coal or ore as it was in the mine before it was disturbed. The rule is thus stated in * Sedgewick on Damages, * Sedgewick on, or other valuable * Sedgewick on, or other valuable * Sedgewick on, or other valuable * Sedgewick on, or other valuable * Sedgewick on, or other, such * Sedgewick on, or other,
854MISTAKE AND ACCIDENT SS 2.10Cur. Law.

duced by fraud.46It must affect the substance of the contract and not a mere incident or inducement for entering into it.46The surrender of a contract in mutual ignorance of facts under which liabilities have already accrned is ground for relief.47

SS 2. \_Effect of mistake and relief against.\_See S C. L. 1021--Where on account of mistake or accident there is no meeting of the minds as to all the essential elements of a contract, there is no binding obligation.48Relief will not be granted for mistake induced by negligence or inattention.49Failure of an illiterate to have a contract read to him before signing will ordinarily estop him from avoiding it,50 but if induced to sign by false representations, he is not bound to the party making such representations.51Mistake of law alone will not as a rule relieve one of the effect of his contract,52 but if such mistake is occasioned by the fraud, or culpable negligence of another, equity will interpose its aid.53Mutual mistake is ground for rescission 44 or reformation,54 and equity will also rescind, though not reform, a contract for unilateral mistake in certain cases.56It will not reform a mistaken description in a mere voluntary conveyance.57A mutual and innocent mistake as to legal rights cannot be the basis of estopped as between the parties.58

SS 3. \_Procedure to obtain relief or make defense.\_See S C. L. 1021--The remedy for mistake is in equity and not at law,59 but a contract signed by mistake being void, rescission is not necessary to defeat a claim thereon.50Failure to rescind promptly and compliance with the terms of a contract after discovery of mistake constitutes a

tual mistake as to persons liable thereon. \[command={}\] own negligence. Bailey Co. v. West Lum-Smith v. Interior Warehouse Co. \[Or.\] 94P

508. Baldwin v. Postaj Tel. Cable Co. \[S. C.\] 508.

45Leading one to believe that omitted land was covered by deed. Cox v. Beard, 75

51. Held for jury whether plaintiff was Kan. 369, 89 P 171. Vector signing contract

negliment in signing contract granting telegraph right of way or was induced by ange as cash of contracts of sale defendants

Traulent statements. Baldwin v. Postal might make with others held entitled to cancellation where he gave receptions for such and Undue Influence, 9 C. L. 1475.

contracts, relying on defendants' statement

52. Tolley v. Potent \[W. Va.\] 57 SVW 811.

that it was a mere formality and did not den-

53. Fraudulent representations inducing

prive him of cash. Stone v. Moody \[VWash.\] 57 SE 811.

54. Error in addition of figures without special circumstance executing it held insuffin-

551 are estimated to justify cancellation of contract of sale. Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N 2564.

56. See Concentration of Instruments, 9 C. L. 454.

01. Where insured property had burned

01. Wife who executed a quitelaim deed Traders' Ins. Co. v. Aachen & Munich Fire

01. Nothing not come within rule that equity may

01. Cudemar of sale. Charles Holmes

01. Macko. v. Chalkley, 143 N. C. 181, 55 SE

01. Contract signed by mistake and with-

out negligence is utterly void. Eldardoardo

Jewelry Co. v. Darnell \[Towa\] 113 NVE 344.

100 Min. 867, 111 NW 302.

An agreement to establish a boundary line is not binding, where an erroneous line was agreed upon by mistake or accident, there

50. Wife who executed a quitelaim deed

being no dispute between the parties and

51. Wife who executed a quitelaim deed

the intent being merely to ascertain the true

52. Wife \[Towa\] 114 NW 559.

01. Mustake in computation of purchase

01. Wicke. That is, Wife \[Towa\] 115.

01. Failure to read writing before sign-

01. Reed v. Coughran \[S. D.\] 111 NW 559.

01. Y. Coughran \[S. D.\] 111 NW 559.

01. Fulton v. Messenger, 61 W. Va. 477, 56 SE

01. Grieve v. Grieve \[Vvg.\] 89 P 569. In

absence of fraud, party to contract cannot

avoid it because of 'misunderstanding un-

59. less it appears that it was not due to his

01.

10 Cur. Law, MORTGAGES SS 1. 855

waiver. \[61\] Mistake must be proven by clear and satisfactory evidence. \[62\] Proof of mutual mistake will not sustain a bill for rescission of a contract on the ground of fraud. \[63\] Where an instrument is introduced merely as a matter of evidence, parol evidence is admissible to show a mistake therein without plea of fraud or mistake. \[64\] On a bill for specific performance of a written contract, defendant may by parol show that through mistake of both or either of the parties the writing does not express the real agreement, \[65\] or that the agreement itself was entered into through mistake as to its subject-matter or terms. \[66\]

Mistrial; Monkey Counts; Monkey Lent; Monkey Paid; Monkey Renciveld; Monopoles; Horsday Tables, see latest topical index.

## 7 Mortgages

- 1. Nature and Elements of Mortgages. \[67\]
- 2. General Requisites and Validity, \[68\]
- 3. Absolute Decd, \[69\]
- 4. Equitable Mortgages, \[62\]
- 5. Nature and Incidents of Trust Decds as Mortgages, \[62\]
- 6. Construction and Effect of Mortgages in General, \[62\]
- 7. Title and Rights of the Parties, \[63\]
- 8. Licen and Priorities, \[66\]

_Scope of topic.--_ This article is devoted to the mortgage as an instrument and the substantive rights arising therefrom. The procedure by which a mortgage is foreclosed, \[67\] the doctrine of notice and record of title, \[68\] the application of the statute of frauds, \[69\] the effect of a mortgage as an incumbrance, \[70\] and the purchase of land. subject to a mortgage, \[61\] are elsewhere treated. Mortgage as used in this article means only those on land or an interest therein. \[72\]

- 1. Nature and elements of mortgages. \[68\]
- 2. L. 1023--A mortgage is a conveyance as security \[63\] for the payment of a debt, \[64\] or the performance of an obligation. \[65\] The mere absence of a defeasance clause is not conclusive. \[66\]
- 1.
- 2. Creased by Poor of City of Elizabeth v. \[67\]
- 64. Especially where court struck allegations sectioning up written contract. Martin \[68\]
- 64. Defense that employ was not aware of extent to which he had bound himself. \[69\]
- 65. Evidence insulficient to show that Taylor Iron & Steel Co. v. Nichols \[N. J. Eq.\]
- 66. A 695.
- 66. Qualitative in faced. Power, \[67\]
- 67. See Procedure of Mortgages on Land, \[68\]
- 68. Theore preponderance not sufficient. Arkansas Mut. Fire Ins. Co. v. Wittman \[Ark\]
- 69. See Notice and Record of Title, \[69\]
- 60. See Trauds. Statute of, \[69\]
- 61. In suit on benefit certificate, evidence insulficient to impech a settlement pleaded by defendant for fraud or mistake. Steffen v. Supreme Assembly of the Defenders, \[69\]
- 61. See Vendors and Purchasers, \[69\]
- 62. Note that, \[69\]
- 63. Note that, \[69\]
- 64. See, \[69\]
- 65. See, also, post, \[69\]

## 2 General requisites and validity

See 1023. The relation of mortgagor and mortgage being contractual \[17\], the parties must have legal capacity to contract \[78\]. Fraud renders the mortgage voidable \[79\] unless the victim thereof is estopped by his acts from asserting the same \[80\], the party asserting fraud having the burden of establishing it \[81\].

Property subject of mortgage

An equitable title \[82\], after-acquired property \[83\] having a potential existence \[84\], and land owned but in the possession of another \[85\], may be mortgaged in some states, but not the right to redeem from the foreclosure of a prior mortgage \[86\]. The legal lien of a mortgage covering after-acquired property

surance, and then to debt. held a mortgage,

Lebensburger v. Schofield (C. C. A.) 155 F 85.

store, timber carts, and a railroad used in

Where one advancing money to purchasors

connection with business, held not void as

of reault takes title and gives to con-

fraudulent because it empowered mortgage

vey to purchasers upon payment of loan,

for so sell worn out machinery, etc., and re-

held transaction amounts to a mortgage,

place with proceeds, Wylly-Gabbett Co. v.

Oldadun v. Newport \[N.L.\] 68 A 117. Where

owner of sawmill property contracted with

mortgage of personality therein by which

he purported to convey to latter all the

property, who was to sell same, pay

claim debts, and to turn over balance, held

trust deed and not a mortgage,

Brecht v. Law Union & Crown Ins. Co., 153 F 452.

For general treatment of ded, absolute as

a mortgage, see post, $ 3.

74. Can be no mortgage without a debt,

express or implied. Duell v. Leslie, 207

Mo. 658, 106 SWP 489; Lemke v. Lemke

\[Neb.\] 111 NWP 138.

75. Dead conditioned for support of

grantor will be treated as mortgage, and

upon default equity will grant relief by

foreclosure. Abbott v. Sanders \[Vt.\] 66 A

1032. And in action to foreclose same,

grantor need not offer to do equity where

grantee persistently abused her for

purpose of driving her from premises. Id.

76. Instrument must be considered a

mortgage if, taken alone or in connection

with surrounding facts, it appears to have

been given as security. Wylly-Gabbett Co. v. Williams, 53 Fla. 872, 42 S 910.

77. Evidence offered to prove execution of

mortgage not produced nor shown to have

been recorded or otherwise accounted for

held insufficient to show execution. Diamond v. Dennison, 102 Minn. 302, 113 NWP

696.

001. Where mortgagor was of unsound

mind ""that was not entirely without

standing," and "she did not have sufficient

mental capacity to understand the nature,
purpose, and effect of the transaction," held

that case is not within Civ. Code, $ 38,

volving that person "entirely without un-

derstanding" has no power to contract, but

within $ 39, giving right to resend. Jacks

v. Dearing, 150 Cal. 272, 88 P 909

79. Evidence held to support finding that

mortgage was fraudulent. Harrison's

state, 31 Pa. Super. Ct. 485. Tampering with

books containing account to secure which

trust deed was given, held no ground for

holding that trust deed was procured by

fraud. Christian v. Green \[Alms.\] 45 S 425.

Finding that defendant falsely represented

purpose for which he desired plaintiff to

give mortgage, and that defendant prom-

lised to discharge mortgage on doing of certain acts by mortgagor "without" intention

of so doing, held insufficient fraud to avoid

mortgage. McCusker v. Geiger \[Mass.\] 80

NE 648. Mortgage by sawmill company

80. In action on note given for part of

purchase price of land against maker and

one who in a deded of trust had assumed

payment, failure of latter to return

ded not to estop him from repudiating

contract for fraud, no possession having

been taken and notice of recession having

been given. Jockusch, Davison & Co. v.

Lyon \[Tex.\] 18 Tex. Ct. Rep. 492, 102 SWP

356.

SI. Jubert v. Wagner, 147 Mich. 409, 13

Det. Leg. N. 1016, 110 NWP 942. In action to

enforce a judgment, in which third person

intervenes, claiming to hold note and mortgage prior to plaintiff's attachment, plain-

gage prior to plaintiff has

iff has # burden of proving that such note

and mortgage are fraudulent. Day v. Earl-

with surrounding facts, it appears to have

greatly is not presumed, and in action to

cancel trust deed for fraud, proof must be

clear and convincing. Christian v. Green

\[Aliss.\] 45 S 425.

SA. Silent partner had conveyed land 10 Cur. Law. MORTGAGES SS 2. 857

does not attach to such property unless the mortgagee takes possession or enforces his equitable lien by action. \[57\]

\_Description.\_See s C. L. \[1024\].The mortgage must describe the debt \[88\] and property mortgaged \[89\] with sufficient particularity to identify the same, although parol evidence is admissible to identify the description and the land described. \[90\] Where a mortgage is given to indenmify a surety on a bond, misdescription of the bond does not invalidate the mortgage. \[91\]

\_Consideration.\_See s C. L. \[1024\].A mortgage must be supported by a consideration, \[92\] although the consideration need not move from the payee of the mortgage debt to the mortgagor. \[93\] A note and mortgage securing same, \[88\] especially if under seal, \[85\] raises a presumption of consideration, and attacking party has the burden of overcoming the same. \[88\] Where a consideration is partly legal and partly illegal, the mortgage will be sustained to the extent of the legal consideration if it is separable from the illegal. \[97\] Where the consideration is paid to another under the direction of the mortgagor, he cannot recover of the mortgage. \[88\]

\_Execution.\_See s C. L. \[1025\].The joinder of the other spouse in a mortgage by a husband and wife, \[90\] especially if the property is occupied as a homestead, \[1\] is usually required. A mortgage on reality must be executed as a real estate mortgage \[2\] and be duly delivered, \[3\] recordation being presumptive evidence of delivery, \[88\] as is possession by the mortgagee or one standing in his place. \[88\] In many states a mortgage must be duly acknowledged and attested. \[88\] The fact that mistake justifies reformation of a

S7. Medina Gas & Elec. L. Co. v. Buffalo and a demurrer, "no equity on the face of Loin, Trust & Safe Deposit Co., 104 NYS the bill." does not raise point that tender $25. \[88\]. Mortgage to secure future advances, (Id.). \[88\] Which gives sufficient information as to excellent. Thackleberry v. Johnson, 228 III. \[88\] Internal persons by ordinary diligence todd 149. \[88\] IN $28. \[88\].

858 MORTGAGES SS 3.10 Cur. Law.

trust ded so as to convey a different price does not authorize reformation of the trus-tee's ded as to pass the intended piece which was not in fact sold.${}^{\\mbox{\\tiny\\sf{7}}}$

_Recordation.${}^{\\mbox{\\tiny\\sf{See}}}$_ s C. L. 1026--A mortgage is good as between the parties though not recorded.${}^{\\mbox{\\tiny\\sf{8}}}$

**SS 3.** _Absolute dead.${}^{\\mbox{\\tiny\\sf{See}}}$_ s C. L. 1028--An absolute deed intended by both parties ${}^{\\mbox{\\tiny\\sf{9}}}$

thereto as security only is a mortgage,${}^{\\mbox{\\tiny\\sf{10}}}$ and in a court of equity such deed may be shown to be a mortgage ${}^{\\mbox{\\tiny\\sf{11}}}$ by parol evidence.${}^{\\mbox{\\tiny\\sf{12}}}$ While the primary test in determining whether a deed absolute or conditional is in fact a mortgage is the continuance of the debt,${}^{\\mbox{\\tiny\\sf{13}}}$ all the facts and circumstances surrounding the transaction may be con-

such party not being incompetent as a witness (Id.)

- 7. Harper v. Combs, 61 W. Va. 561, 56 SE 902.
- 8. Robertson v. Sebastian, 30 'Ky. L. R.
- 853, 99 SVW 932.
- 9. Smith v. Smith \[Ala.\] 45 S 168, Petiti- tion held insunMicent to show intent on 58 SE 165. Where mortgage given by hus- gramete's part. Id.
- 10. Linkenmann v. Knepper, 228 Ill. 473, 80 NE 1009; Duell v. Leslie, 207 Mo. 658, 106 SWW 489; Eldridge v. Hoefer \[Or.\] 93 P 246. Intention of parties is controlling.
- 11.1 Pullinski v. National Brew Co., 134 Ill. App. 45. Under Rev. Civ. Code, 1 2044, providing that every transfer of interest property, other than a trust, as security for 12. Deed absolute in form may be shown performance of another act, shall be deemed- ed a mortgage, absolute deed to secure loan (S. L. 11) 118 s mortgage. Krug v. Kabutz, 18 (S. L. 11) 118 s Vermers, 19 (S. L. 11) 118 s Vermers, 19 (S.

10 Cur. Law. 859

MORTGAGES SS 3.

sidered,\[14\] especially the inadequacy of the consideration for the dead.\[18\] Where grantor is fraudulently induced to sign a dead believing it to be a mortgage, it will be given the effect as a mortgage.\[16\] A dead intended as a mortgage at its inception cannot be made effective as a dead by a subsequent parol agreement,\[17\] nor can it be extended by a verbal contract to subsequent loans.\[18\] Where a dead is accompanied with an unambiguous agreement to recovery on payment of a stated sum, parol evidence is not admissible to vary such sum.\[19\] A written agreement executed contemporaneously with the dead,\[20\] or subsequently, if supported by a consideration,\[21\] characterizing or affecting the transaction, must be considered with it. In the absence of statute\[22\] or an estoppel, a dead may be shown to be a mortgage as against third persons.\[23\] Where grantee conveys the property to a third person under the direction of the grantor, such person takes an absolute title.\[24\] A grantee may be estopped by his actions from asserting that deed was absolute.\[25\]

\_Mortgage or conditional sale.\_See 8 C. L. 1027.--Whether an instrument is a deed as

indebted to grantee, etc., held to show that

where sale is made in reliance on such indebtedness continued. Francis v. Francis

agreement, no estoppel arises where the rights of the parties can be adjusted in money. If.

great importance in determining whether

ded was intended as mortgage. Powell v.

Crow, 204 Mt. 481, 102 SWV 1024. Where one

advanced part of purchase money for purchaser and took deced from vendor under agreement to convey to vendee upon payment of stated sum, de declared a mortgage where it appears that such sum

in the continuing debt. Blake v. Lowry

\[Tex. Civ. App.\] 15 Tex. Ct. Rep. 728, 93 SWV

521. Where plaintiff conveyed land to defend under parol trust by which he was to hold for plaintiff's benefit and subject to his order, and under plaintiff's directing defendant deeds it to one holding mortgage

on premises to secure indebtedness and save

a foreclosure, creditor held a mortgage

still, although parol trust could not have

been enforced against defendant. Lynch v.

Ryan \[Vri.\] 112 NWV 427.

14. Krug v. Kautz \[S. D.\] 113 NWV 623.

01. Vrage v. Herbert \[Okl.\] 92 P50. Value

510,000. consideration 83,000. Butusch v.

Smith \[Colo.\] 90 P 61. Fact that real estate expert said that land deeded for consideration of $500 was worth $750 at time

of conveyance if purchaser could be found, but that it was difficult to find purchasers,

held not to show that $500 was not its fair

value. Harris v. Hirsch, 121 App. Div. 167, 106 NYS 631. Evidence held to show that

ded to defendant for $9,000, to be paid by

assumption of first mortgage, discharge of

second hold by him payment of taxes due,

and $300 to plaintiff, was based upon a fair

considered and no advantage taken of

plaintiff. Webster v. McDowell, 102 Minn.

445, 113 NWV 1021. Where amount paid by

vendee under ded giving vendor option to

repurchase is practically entire value of

property and no obligation rested on vendor

to repurchase, held that deded was not 'in-

tended as a mortgage. Jeffreys v. Charliton

\[N. J. Eq. 65 A 111.

16. Evidence held to show that petitioners

were fraudulently induced to sign deed be-

lieving it to be a mortgage. Guarantee Gold

Bord. Leon & Sav. Co. v. Edwards \[Ind. T.\] 104 SWV 624.

17. Ullman v. Devereux \[Tex. Civ. App.\]

18 Tex. Ct. Rep. 683, 102 SWV 1163. And

Smith \[Neb.\] 112 NVP 337.

860 Mortgages SS 3. 10 Cur. Law. security or an absolute conveyance with option of repurchase is largely one of intention,26 the former being favored in case of doubt.27 The continuance of the relation of debtor and creditor,28 and the inadequacy of the consideration,29 are essential.

\_Rights of the parties.--\_Where a deed absolute is in fact a mortgage and the grantor has fully performed his obligations, he is entitled to a reconveyance,29 and, if the grantee has conveyed or exchanged the land, the defrauded grantor may require him to account for the value of the land conveyed or received,31 or the proceeds;32 but the grantee is entitled to credit for money expended in protecting the property33 and improvements made in good faith.34 An accounting is usually allowed between the parties.35 A refusal to recognize grantor's right of redemption does not render grantee liable for loss of a sale, unless a tender has been made of the debt.36 In Iowa an absolute deed given as security passes title, and the right of redemption must be exercised within the period of limitations.37

\_The proceeding to establish a mortgage is equitable,See s C. L. 1027 and hence petitioner must be willing to do equity 38 and must timely assert his rights.39 Deed will not be given effect as a mortgage where injustice will result.40 All persons, who will be affected by the granting of the relief sought, must be made parties.41 The petition must allege all facts necessary to show that the deed was in fact intended as a

26. Where deed absolute is accompanied by agreement reciting that grantor was de-

102 Minn. 130, 112 NW 1018.

32. Veach v. Smith \[Ky. App.\] 107 SWV either party had opportunity to sell for not

01. Leger v. Leger, 118 L. 322, 42 S 951.

01. Interest on prior mortgage and taxes.

and out of proceeds grantees should be paid

34. Amule v. O'Toole \[IN. D.\] 112 NW 677. En-

amount expended by him, etc., and surplus

tilled to taxes paid where grantor retained

bey divided, held a conditional sale. Duell

possession. Leger v. Leger, 118 L. 322,

v. Leslie, 207 Mo. 658, 106 SWV 489. Fact

42 S 951.

that collateral agreement accompanying

34. In action to declare ded a mortgage

dead and requiring reconveyance upon pay-

ment of specified sum does not bind grantor

belief that deed was absolute, and that col-

to pay such sum is not conclusive that

t transaction was conditional sale and not

to permit mortgage to repurchase, was

a mortgage. While v. Redenbourgh \[Ind. App.\] 112 NW 671.

35. In action to have dead declared a

01.

01. Lindingre v. Thomas \[Iowa\] 114 NW

01. This f is sufficient if plaintiff express a

01.

01.

01.

01.

01.

01. Hall v. Jennings \[Tex. Civ. App.\] 19

and accounting is asked. Smith v. Jensen

39.

01. Sheffield v. Hurst, $1 Ky. L. R. 890,

01. Sheffield v. Hurst, $1 Ky. L. R. 890,

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

01.

10 Cur. Law. MORTGAGES $ 3. 861

mortgage,42 but it may be amended so long as a new cause of action is not asserted.43

The general rules governing the admission of evidence 44 and cross-examination 45

obtain. An offer of the defendant to reconvey, upon being paid the amount he has in the land, need not be included in the decree unless accepted by the petitioner.46

Footnote 44: The author is grateful to the anonymous referee for the support of the author.

The burden of proving an absolute deal to be in fact a mortgage rests on the party asserting the same,47 and the evidence must be clear and convincing.48

42 Complaint held to allege a cause of

Civ. App.1 19 Tex. Ct. Rep. 602, 104 SVW 489.

action. Krus v. Kautz \[S. D.\], 113 NW 625.

Held question for jury. Hester v. Garfiner,

43 Petitum alleging agreement by defend-

128 Gas. 631, 85 SE165. Contract purporting

ant to reconvey, on payment of 8500, held

to be a venue a remere held a mortgage.

to clearly show that such sum was an in-debtechness owed by petitioner to defendant,

demand for possession was made by pur-

hence amendment specifically so stating

doses not state new cause of action. Askew - V. Thompson, 129 Ga. 325, 68 SE 854.

44 Evidence held admissible Fact that

grantee was obliged to borrow entire con-

gent, that if rent was not paid lease should

sideration for dead and to obtain a surety

to sign note for loan. Butsch v. Smith

\[Col. 30 P 61.

**Declarations of party to possession**

\[W. Chamber's possession, Hubbard v. Cheney

\[Kan.\] 91 P 783. Declarations of defend-
863 MORTGAGES SS 4. 10 Cur. Law.

## 4 Equitable mortgages

See 1.2028--An equitable mortgage is one recognized and enforcible in equity alone \[49\], and usually arises where an instrument intended as a legal mortgage fails as such \[50\], or where legal title passes to one as security only \[51\]. An equitable mortgage cannot be created in Iowa by a deposit of title feeds \[52\].

## 5 Nature and incidents of trust deeds as mortgages

See 1.2028--A trust deed \[53\] rests the title in the trust for the purposes of the trust \[54\], and such title is not affected by the running of the statute of limitations against the debt \[55\]. The trustee has no power to compromise the debt without the consent of the beneficiaries \[56\]. Where the trustee accepts the trust, he is bound by the stipulation for compensation therein \[57\].

## 6 Construction and effect of mortgages in general

See 1.2019--The general rules of construction applicable to written instruments apply to mortgages \[58\]. Note and mortgage securing same when executed at the same time must be construed together \[59\], especially where the latter refers to the former \[60\]. Recitals in a mortgage are conclusive as between the parties in California \[61\], and where by agreement recitals in the trustee's dced are conclusive, such dced is admissible to show compliance

49. Deed absolute as mortgage, see ante,

- 3. Execution and delivery of mortgage
- 40 proceeds of sale. Continental Bldg. & at direction of actual owner creates an
- 41 Loan Ass'n. Lyth \[Cal. App.\] 52 P104.
- 42 Statement in mortgage that it is subject to
- 43 prior one qualifies courants of warranty,
- 44 and gives notice that it covers only equity
- 45 Loan. Wrgage is a 46 10 Cur. Law. $;$MORTGAGES $\\lx@sectionsign$ 7. 863 with the prerequisites of a valid sale. ${}^{\\lx@sectionsign$82 A mortgage and the note secured thereby cannot be varied by evidence of a contemporaneous parol agreement. ${}^{\\lx@sectionsign}$9

\_Property and interests conveyed. ${}^{\\lx@sectionsign$80 e C. L. ${}^{\\lx@sectionsign}$1031--A mortgage upon land covers all things apurtenant thereto, ${}^{\\lx@sectionsign$44 including easements, ${}^{\\lx@sectionsign$85 and a subsequently acquired easem 864

MORTGAGES $ 7. 10 Cur. Law.

exclusively to the mortgaged property for the payment of his debt, while in others the security must be first exhausted before suit can be maintained on the secured debt.\[78\] A stipulation to release part of the premises from the lien of the mortgage upon payment of a specified sum is not available after foreclosure proceedings have been commenced.\[79\] The rights of the parties is largely dependent upon the terms of the mortgage,\[80\] and a provision in a mortgage restricting the mortgagor to the sale of liquors manufactured by the mortgagee is valid,\[81\] as is a provision rendering entire debt due upon non-payment of interest, or maturing installments,\[82\] or taxes within a stated time.\[83\] A payee of a note has an interest in a mortgage given by the maker to a surety thereon, in which "mortgagor agrees to pay all sums," etc.\[84\] Where a.judgment enforcing a mortgage is reversed after sale, parties procuring such decree are not liable in tort,\[85\] but the mortgagor may elect to allow the sale to stand and receive the purchase money or recover the property subject to a lien for taxes and expenditures by purchaser in caring for the property.\[84\]

_Taxes._--In the absence of covenant,\[87\] a mortgagee who has a mere lien is under no duty to pay taxes,\[88\] and hence he may acquire title at tax sale.\[89\] In some states, a mortgage paying " taxes to protect his mortgage has an additional lien for the amount so expended.\[81\]

_Insurance._--Where the mortgagor agrees to insure for mortgage's benefit, equity will give the latter a lien upon a policy effected in the former's name.\[92\] Mortgagee

78. Code Civ. Proc., Mont. 1895, SS 1290, re-quiring that security be resorted to before should pay taxes within 40 days after same suit on the note, does not, in case of note because due, and, upon default, mortgage given in Montana secured on land in California, make foreclosure of security a pre- setup available from an additional lien and requisite to action on note in Washington.

Mantile v. Dabney \[Wash.\] 92 P 134.

79. Brown v. Cleveland Trust Co., 10 Ohio C. C. (N. S.) 430.

01. Plaintiff issued to defendant as trustee a consolidated mortgage providing that operation amount of bonds secured thereby should be reserved to retire outstanding first mortgage bonds and that retired bonds should be retained as additional security, and upon satisfaction of all of first mort-gaged bonds any reserved consolidated bonds not used should be returned to plaintiff. Held that, where plaintiff discharged some first mortgaged bonds out of 862.

01. Plaintiff issued to defendant as trustee a consolidated mortgage providing that operation amount of bonds secured thereby should be reserved to retire outstanding first mortgage bonds and that retired bonds should be retained as additional security, and upon satisfaction of all of first mort-gaged bonds any reserved consolidated bonds not used should be returned to plaintiff. Held that, where plaintiff discharged some first mortgaged bonds out of 862.

01. Finally, it could not demand consolidated bonds in exchange. Havana Elec, R. Co. V. Central Trust Co., 122 App. Div. 829, v. Black, 18 Okl. 344, 88 P 1052,

107 NYTS 680.

83. Held founded upon a valuable consid-eration, not against public policy as in re-instant of trade, and may be enforced by injunction to prevent sale on premises of other brews than that of mortgage. Cleverg- can real estate of J. purchased same at last sale, thereby defeating title of J. and C. C. (N. S.) 130. Fact that mortgage is given to secure performance of covenant to state cause of action. Id.

01. Another mortgage purchased from not authoring injunction to restrain sale of other beer where it would not otherwise be.

01. Hardy v. Allegan Circuit Judge, 147 Mich. 594, 14 Det. Leg. N. 21, 111 NY 166.

01. Hobson, v. Beasley, 118 La. 738, 43 S 291: Equity will not permit mortgage or his assignee to declare for non-payment of interest at prescribed time.

01. Mortgage provided that mortgagor attered reasonable effort and without fault on his part was unable to find mortgage, and assignee had not given notice of assignment. Isaacs v. Baldwin, 105 NYS 38.

01. Held that, where plaintiff discharged some first mortgaged bonds out of 862.

01. Provision authorizing mortgage to pay dates upon mortgagor's failure so to do does not obligate him to pay the same. Jones V. Black, 18 Okl. 344, 88 P 1052,

01. Jones v. Black, 18 Okl. 344, 88 P 1052,

01. Jones v. Black, 18 Okl. 344, 88 P 1052,

01. Jones v. Black, 18 Okl. 344, 88 P 1052,

Action to cancel tax deed and for account-injunction to prevent sale on premises of other brews than that of mortgage. Cleverg-

89. Please can real estate of J. purchased same at last sale, thereby defeating title of J. and

01. Mergage his right of redemption, held not to state cause of action. Id.

01. Where mortgage purchased from others and bid in at tax sale certificates of tax sales, such acts amounted 10 Cur. Law. MORTGAGES SS 7.865

may bind himself to insure for the benefit of the mortgagor."8 In Maine, the mortgagee is given a lien on the insurance upon filing with company a statutory notice,94 but such lien must be enforced within sixty days, unless the mortgagor consents in writing that the insurance be paid to him.95

Footnote 95: http://www.math.wisc.edu/$\\sim$

\_Possession, rents and profits.--\_A mortgagee in rightful "98 possession "7 may ordinarily retain possession until the debt is paid,98 although he may be divested by the appointment of a receiver where it appears that he is irresponsible, is committing. waste, or that the rents and profits will be lost.99 Without forfeiting his right of possession as mortgagee, he may initiate an adverse claim.1 Where mortgagee obtains possession under an unauthorized promise of his agent to pay a stipulated sum for the equity, he will be given option of paying such sum or of an accounting and sale, unless mortgagor shall redeem.2

Footnote 95: http://www.math.wisc.edu/$\\sim$

Footnote 96: http://www.math.wisc.edu/$\\sim$

Footnote 97: http://www.math.wisc.edu/$\\sim$

Footnote 98: http://www.math.wisc.edu/$\\sim$

Footnote 99: http://www.math.wisc.edu/$\\sim$

#### 8.6.1 _Rights and liabilities of mortgagor's sureties_

A wife joining in a mortgage on the homestead to secure the husband's debt is not a surety.8 A surety who joins with his principal in a mortgage covering property of both may insist that principal's property be first exhausted.9 A guarantor 10 or indorser 11 of a note secured by a mortgage may be sued on his obligation before the mortgage security has been exhausted.

Footnote 8: A word of the database is not a single-letter database, but it is not a single-letter database.

#### 8.6.2 _Lien and priorities_

566 8 C. L. 1088.In the absence of express release, the liens of a trust deed continue until payment of the debt.12 Except as affected by the recording acts,13 priority of execution usually determines the rank of liens upon the same property,14 and where they are simultaneously executed, delivered, and recorded, the intention of the parties controls.15 By agreement a mortgage inferior at law may be given priority.16 A renewal mortgage is usually accorded the rank of the original.17 A second mortgage is bound by the terms of the first mortgage in so far as the same is valid.18 A vendor's lien 18 is superior to a subsequent mortgage accepted with knowledge that a part of the purchase price remains unpaid.20 A lien upon an undivided interest does not shift to another distinct, undivided interest of the mortgagor upon a sale of the former interest under a prior lien.21 The giving of a second trust deed upon the same property to the same person, but securing a different debt, does not affect the first.22 The life interest of a husband in the lands of his deceased wife is subject to a lien executed prior to her death upon the land.23 The lien given

8. So as to be entitled to notice of extension of time. Omile v. O'Toole \[N. D.\] 112 may, without consent of maker, postpone NV 677.

1. Grantee of surety may assert right as against trustee in bankruptcy of principal attempting to apply proceeds of principal's property to payment of creditors generally and to collect secured debt out of his property. While v. Rovall, 195 NYS 624.

10, 11. Kinsel v, Ballou \[Cal.\] 91 P 620.

12. Schroeder v. Wolf, 127 III. App. 506.

01. Lien of mortgage executed Oct. 8, 1984, due Dec. 15, 1895; and recorded Oct. 25, 1894, held to expire in 1980 as to third persons, no memorandum payments being indored on record. McCoy v. Robertson \[Ark.\] 102 SVW 386. Priority as dependent upon recordation, see Notice and Record of Title, 8 C. L. 1169.

01. Lease existing at time of execution of mortgage is superior (cross vs. Chittrin \[Tex.

Civ. App.\] 100 SVW 1008), but one subsequently given is inferior, especially if Iessee has notice (Id.). Mortgage executed prior to key of attachment is superior there. Day v. Earlington Iron Works \[Key.\] 107 SVW 301. Where their respective dates appear to result in case question of priority may be determined from record. Id. Where trust ded on personality and timber is void as to former and second trust deed and on same property recites (that part of above property is subject to a prior trust deed, upon foreclosure of latter mortgage must account to first mortgage for value of time), and judgment against grantor in favor of such first mortgage should be only for balance. Fullerton v. McBride \[Miss.\] 48 84.

15. Evidence held to show that one for commissions was intended to be inferior. State Finance Co. v. Hakietson \[N. D.\] 114 NNV 1724. Foreclosure of mortgage, simultaneously recorded with another, by advertisement establishes nothing as to priority. Id.

01. Holders of notes secured by trust deed may, without consent of maker, postpone INV 677.

01. Gradene of surety may assert right as against trustee in bankruptcy of principal's argument.

01. Gradene of surety may assert right as against trustee in bankruptcy of principal's argument.

10 Cur. Law. Mortgages SS 9. 867

for nonpayment of an internal revenue tax is superior to a mortgage executed after a demand for payment,\[34\] but is inferior to one existing at the time the lien attached.\[25\] A construction loan mortgage owes no duty to second mortgage to see that the money is applied to improvements.\[26\] Where prior mortgagee forecloses both as to reality and personality and bids enough for each to satisfy his debt, one holding a second mortgage on the realty acquires priority thereto where the prior mortgagee disposes of the personality.\[27\] As between equitable mortgages, the one having the greater equity is usually given priority.\[28\] A mortgage on after-acquired property attaches as soon as the property is acquired and is superior to a lien of a subsequent judgment against the mortgagor.\[29\] Purchase-money mortgages are payable out of proceeds of a sale of the property in bankruptcy.\[80\] In California a junior mortgagee compelled \[31\] to satisfy \[32\] a superior lien for his own protection may add the amount so expended to his secured debt,\[33\] but the mortgagor is not personally liable therefor.\[34\] Where the owner of mortgaged land conveys the same with a covenant for quiet enjoyment, he cannot insist that the holder of the mortgage who also holds a mortgage given by the grantee applies the proceeds of a foreclosure sale to his mortgage first.\[35\]

SS 9. _Assignments of mortgage_,\[26\] & C. L. \[103\]--An assignment of a debt carries with it the mortgage securing the same,\[36\] though the assignment is not registered,\[37\] leaving the original mortgagee without an interest,\[38\] hence the production of the note duly endorsed raises a presumption of ownership of the mortgage.\[39\] A transfer of a

24. Lien given by Act July 13, 1866. Blacklock. Receiver v. U. S., 41 Ct. Cl. 89. May

LOCK. Receiver v. U. S., 41 Ct. Cl. 89. May

Covert \[Cal.\] 93 P 67. Vindt v. Covert \[Cal.\] protect lien by payment or by redemption

93 P 67. Upon sale of premfses proceeds

25. Tax sale held to convey only debtor's

hould be applied to payment of amount so interest. Blacklock, Receiver v. U. S., 41 Ct.

paid out first and then to discharge of mortg-

C1. 89.

gage's claim. Id.

26. Tripp v. Babcock \[Mass.\] 80 NE 598.

01. Civ. Code, & 2876, does not render mortg-

01. Webster v. Ypsilant Canning Co., 149

gagor personally liable. Windt v. Covert

Mich. 489, 14 Det. Leg. N. 519, 113 NW 7.

\[Cal.\] 93 P 67.

28. S, owner of land, had D, a stranger,

01. Held that covenant obligated him to execute note payable to and indorsed by D

pay his mortgage before it became due. Dur-

sevented by trust deed on S's land. This was

bin v. Shenners \[Vis.\] 113 NW 421.

recorded and note and trust deed were sold

36. Fish v. First Nat. Bk, \[C. C. A.\] 150 P

to R with representations by S that it was

524. Trust deed. Emmons v. Hawk \[V. Va.\] first item. S thereafter sold to J notes pay-

55 SE 619. Transfer of negotiable paper by

able to and indorsed by P, and trust deed executed to S as trustee, securing same, which

Van Valkenburg \[Vis.\] 113 NW 1083. In-

had been executed while P owned land and

dorsement of note, expressely including mortg

had been paid and received, by S after acquiring title. S represented that this was first

title to secure payment of negotiable pur-

lien. Neither R nor J examined records.

chase-money note, transfer of note carries

Held that R and J had only equitable mortgage

and equitable right to charge land with pay-

gages by way of estoppel, but because of R's

ment of note. Aycock Bros. Lumber Co., v.

negligence in not examining records, his lien

First Nat. Bk, \[Fiz.\] 45 851. Where note

was inferior. Rohde v. Botha, 221 Ill. 180, 83 secured by mortgage is paid by conveyance

NE 465.

of land to mortgage, but is not surrendered

29. People's Trust Co. v. Schenck, 121 App.

or canceled, held that, upon assignment of

Div. 604, 106 NYS 782.

30. Mortgage given for money borrowed to

pay purchase price of property mortgaged

assignment has, since, under Revusal 1905, 8:

is in effect a purchase-money mortgage, and

2214, 2215, assignor warranted the knee.

mortgagee is entitled to payment out of pro-

of no fact which would render same invalid

ceeds of sale of property by trustee in bankruptcy.\[80\] Furthermore, notwithstanding a preference in a

since of sale price of land to third person.

part of the secured debt carries a proportionate share of the mortgage security.40 An assignment omitting the name of the assignee but leaving a blank therefor is a nullity until filled,41 but if the name is subsequently inserted with the authority of the assignor and the assignment is thereafter recorded, it is effective.42 Since a mortgage is not a negotiable instrument, an assignee takes it subject to equities existing against it,43 especially if he is not a bona fide holder.44 A certified copy of the record of assignment is admissible to prove assignment.45 Where an assignment is absolute in form but intended only as security, the assignee promising to repay any balance, an assignee of the balance may maintain a bill in equity to compel payment of the balance.46

**SS 10:**\_Transfer of title of mortgagor and assumption of the debt.\_See _s C. L. 1037_--Where land is sold subject to a mortgage, the land remains chargeable therewith,47 and it has been held that the grantee's liability to the grantor is coextensive with the debt and is not limited to the land.48 Where the grantee assumes the debt, he is estopped from asserting its invalidity,49 but where the deed merely excepts it from the covenants, he may assert the bar of limitations to a foreclosure proceeding.50 The holder of one of several notes secured by a single mortgage cannot acquire a tax title to the land and destroy the lien of the other notes.51 Assumption of mortgaged debt is not established as to others by the fact that grantee's executrix included it in the list of debts in petition to sell lands for payment of a tax.52 The validity of an agreement, whereby grantee assumes the debt and the mortgage releases the mortgagor, is tested by the laws of the state where executed.53

Where a grantee assumes a mortgage, he becomes the principal and the mortgagor a surety.54

**SS 11.**\_Transfer of premises to mortgage and merger.\_See _s C. L. 1038_--A mortgagor may sell his equity of redemption to the mortgage, but the transaction must be fair, honest, and without fraud,55 and in case of fraud equity will declare the deed a mortgage,58 unless the grantee is guilty of laches.57

**40.** Mortgage holds mortgage in trust to 1878 (P. L. 205), does not affect liability of extent of such interest (Snyder v. Parmalee \[Vt.\] 68 A 649), and where he cancels title \[Vt.\] 68 A 649), and where he cancels title \[in such manner that it cannot be reinstated, he becomes personally liable (Id.), though \[command={ 10 Cur. Law. MORTGAGES SS 12. 869

whether a mortgage lien merges into the fee upon acquisition of the equity of redemption by the mortgage,6\* but a merger will not be permitted where it would be inequitable.6\* Where mortgagee, owning the equity of redemption, sells the land without mentioning the mortgage, a merger is effected.60 A mortgagee acquiring equity of redemption on execution sale obtains an indefeasible title.61 Where mortgagee purchases at the foreclosure of an inferior lien on a part of the premises, he does not satisfy his mortgage as to the other part.62

SS 12. \_Renewal, payment, release, or satisfaction.\_See * C. L. 1039...In California a renewal of a mortgage must be in writing.63

Payment 64 of the secured debt usually discharges the mortgage 65 and revests title,66 but it does not have such effect where the mortgage has been assigned as security to one advancing the money to pay the debt.67 The parties may contract for payment in a particular manner.64 Payment to an agent 68 authorized to receive the same 70 is good. Payment to the mortgagee without notice of assignment 71 is good

58. Pease v. Doane, SS 29. Super. Ct. 6. | wife to bank to secure indebtedness of hus-Where equity of redemption was conveyed band, which mortgage also covered property to mortgage at suggestion of junior lienor of wife and out of proceeds paid bank and for sole purpose of saving expense of forecook assignment, held payment of mortgage closure, held no merger. Id. Where dead of and it cannot be enforced against wife's equity of redemption to mortgage provides them mortgage should not merge, "but should remain in force. * * for the purpose of 524. Where mortgage conveyed mortgaged proteins and perfecting the title of second premises to mortgage by warranty dead in party," there will be no merger so long as it is advantageous that there be none. Woodgage secured and thereafter paying taxes, ward v. McCollum \[N. D.\] 11 NW787. 582. 58. Weff. Elder \[Ark.\] 105 SW 260. Where tion of mortgage and mortgage, worthgagement to remove upon pay-127 Ill. App. 579. Equitable mortgage takes precedence over statutory mortgage prior in time where former was received with un-derstanding that it was first lien and latter * 1067. Denman v. Hayers \[Ala.\] 44 S 835. was odd after a merger had been effected between it and the equity, no superior equity. Where it was agreed between mortgage, ties appearing in favor of statutory mortgage, and bank that bank should take wage. Id. Where tenant who has mortgaged wisely lessobated for nonpayment signed to it, bank's payment of debt to mortgage of rent and mortgage takes a lease for re-mainder of term from landiord, there was not v. Hackett \[Wis.\] 113 NW7108. * a complete merger, since tenant could redeem under codie Civ. Proc. 5 | 256, and time within under contracts between complianants and year by payment of rent, and hence mortgage could foreclose. Chumar v. Melvin, SS 233. 460, 105 NYS 27. 60. Woodward v. McCollum \[N. D.\] 111 NW7 61. Francis v. Sheats \[Ala.\] 45 S 241. 62. Equitable Sldg. & Loan Ass'n v. Thomas, 216 Eto. 51, 65 A 1100. 63. Instrument recliting that debtor is destroys of extending loan, and declaring that mortgage, together with note and debt secured thereby, is renewed for specific period and signed by debtor, is a renewal within Cliv. Code, & 3922, requiring renewal of mortgage, to be in writing. Moore v. Gould \[Cal.\] 51 P 616. 64. Evidence hold to show that debt had not been paid by including amount in new mortgage. York v. West, 147 Mich. 549, 14 Det. Leg. N. 3, 111 NW7 64. Statement of no set-off, restricting amount due, held to sustain finding that such amount is still due, assume that he has authority to receive pay-proof of alleged tender being insufficient. Wright v. Stone Harbor Imp. Co., & 98 N. J. Ec. 887, 66 A 417. Where assignee in bankruptgg released, debt and deced are discharged, to husband sold land belonging to husband covered by mortgage given by husband and & 870 Mortgages SS 12. 10 Cur. Law. as against an unrecorded assignment." In Wisconsin a mortgagor is not protected by the recording acts in making payment to the recorder, but not the real owner, of a mortgage where such person does not have possession of the secured commercial paper or actual authority to receive payment." Lapse of twenty years after maturity of mortgage without payments thereon raises a presumption of payment," as does nonforeclosure for the same period from execution in Missouri." A mortgagor may estop himself from asserting payment." Where a mortgage is given on a surety's property, an assignment of the mortgage to the principal discharges the same." Where the mortgagor has sold the land subject to the mortgage, he may take an assignment of the mortgage without discharging it."

A tender to be effective must include interest to date," and, while it does not discharge the lien in Arkansas, it prevents foreclosure so long as it is kept good."

The taking of a judgment on the secured debt does not release the lien of the mortgage." The termination of the interest mortgaged extinguishes the lien." Where mortgage, who has acquired the equity of redemption, conveys the land with full warranty against incumbrances, the mortgage is extinguished." Procurement of a release from the last record assignee does not discharge the mortgage in Kansas as against an unrecorded assignment." Whether a particular transaction amounts to a release depends on the intention of the releasor." A fraudulent release does not protect one relying thereon where there is notice or ground for suspicion that it

transferred without notice to maker and ! strength of agreements. Gemkow v. Link, without assignment of trust deed, and transferee permitted trustee to collect interest, etc, as agent, held that payment of note to !ruse who defaulted was payment to holder of note as between parties, especially under Civ. Code, 5 244, declaring that where one of two innocent parties must suffer for act of third person, he whose negligence makes loss possible must bear same. McVay v. Bridgman (S. D.) 112 NW 1138. Fact that interest coupons bore indorsement to transferee when presented for payment held not notice of transfer of note, being transferable apart from note. Id. !ruse mortgage was officer of corporation and chargeable with notice of assignment, held corporation also was charged. Sehumacher v. Wolf, 125 III. App. 81. Rule requiring notice to be given by equitable assignee does not require it to be given to strangers but only to mortgagor. Id. Reordering of assignment of mortgage is not notice to mortgagor in New York, hence fact that bankrupt without actual notice schedules original mortgage a creditor does not render discharge less effective. Mueller v. Goerlitz, 58 Misc. 5, 103 NYS 1037. !ruse Laws 1859, D. 340, D. 168, Incidentally touching upon general statute relating to bonds notes, and bills, and amending it by implication in some particulars, is not with-in Const. art. 2, 16, requiring new act to contain sections amended. First Nat. Bk. v. Pearce (Kan.) 92 p 53. It is also sufficient as to title. Id. !ruse Mauty v. Adams, 31 Wt. 152, 111 NWV 69. !ruse Greenfeld v. Mills, 123 App. Div. 43, 107 NYS 705. !ruse Rev. St. 1899, $ 4277 (Ann. St. 1906, p. 2553). Morgan v. Pott, 124 Mo. App. 571, 101 SWV 717. !ruse Defendant made written extension agreements after alleged payment. Held estopped against assignee purchasing on !ruse to read held not to bar cancellation. Id.

- 10 Cur. Law. MORTGAGES SS 13. 871

is fraudulent." A satisfied trust deed does not again become a lien until it has passed to another party for a new consideration."

While payment renders the power of sale in a mortgage inoperative as between the parties, a bona fide purchaser is protected unless satisfaction is recorded." In Missouri a recorder must require the production and cancellation of the secured notes or an affidavit accounting for the same before entering satisfaction, and one injured by his failure so to do " may recover unless he himself is negligent." Mortgage cannot insist upon preparing the satisfaction piece in New York and charge therfor." A marginal entry of discharge is sufficient in New Jersey."

\_Penalties for failure to release.\_See s C. L. 1040--A mortgage is not liable for refusal to enter record satisfaction " or execute a release," unless the mortgagor has fully performed all his obligations. Fact that satisfied mortgage defectively described the property does not relieve the mortgage from the duty of acknowledging satisfaction on request." A petition to recover the penalty for failure of the mortgage to acknowledge satisfaction of record or execute a release must allege all the statutory facts."

SS 13. \_Redemption.\_See s C. L. 1041. The right to redeem from the mortgage is distinct from the right to redeem from foreclosure." The right of a cotenant to redeem and the effect thereof is elsewhere treated." A court of equity will not reform a foreclosed mortgage so as to include additional land without giving an opportunity to redeem." While the mortgagor may release his equity of redemption,1 it must be

- 86. Abraham Lincoln Bldag. & Homestead

not being exclusive. Manchester Eldg. & Ass'n v. Zuelk, 124 Ill. App. 109.

Losh Ass'n v. Beardsley \[N. J. Eq.\] 66 A.1.

- 87. Lien of trust deed made, recorded, and
- 88. Failed to pay recording fee as provided.

canceled in one transaction and subsequently

- 89. Where payment of taxes are secured by until date of subsequent sale. White v.

mortgage, mortgagor cannot recover until

- 88. Garrett v. Crawford, 128 Ga. 519, 67 SE

- 90. Though mortgage on city property

- 89. Fact that 'vendee had given notes se-

- gave lot number and addition but failed to

- satisfaction does not relieve recorder where

- failure to acknowledge satisfaction on re-

- satisfaction. State v. Green, 124 Mo. App. 80,

- 100 SWT 1115. Nor does vendee's presumptive

- 91. Petition founded upon Rev. St. 1899,

- 92. Petition of record or execute a release, where

- 93. Pe fact that vendee accompanied bene-

- with fee for satisfaction, etc., failing to al-

- to satisfy the record held not such negligence

- as to preclude him from recovering of re-

- 94. Petition of record or execute a release, where

- to apply the same token to the public

### Mortgages $ 14.

10 Cur. Law. based upon a consideration " and be in writing." The parties may extinguish such equity by their acts notwithstanding the statute of frauds." Ordinarily the right to redeem continues until cut off by foreclosure proceedings," but the right to resort to a court of equity to assert the same against a mortgagee in possession " may be lost by laches " or barred by limitations." Where mortgagee refuses to recognize mortgagor's right to redeem, a tender is not necessary before bringing suit to redeem," nor need petitioner offer in his petition to pay judgment, costs, and taxes, where he alleges upon information and-belief that the rents and profits received by defendant and the value of timber converted exceeds the debt.10 To redeem, mortgagor must pay the amount due with interest, less rents and profits received by the mortgagee,11 but is not liable for compound interest.12 Upon redemption from one wrongfully in possession, the court, in its discretion, may refuse credit for improvements.13

14 Subrogation.See $ c. L. 1042--Where property is conveyed under an agreement that grantee will mortgage same and pay off liens thereon, to reconvey to grantor upon payment by him, such grantee is abrogated to a mortgage given by him where he is held personally on his note.14 A grantee of a mortgagee in possession, having notice of mortgagor's right to redeem, is abrogated to all the rights of the mortgagee.13 Where a purchaser of a lot pays a mortgage prior to a vendor's lien of which he has no knowledge, he is abrogated to the mortgage as against the lien.14 Where one of two mortgagors pays the mortgage to save the land owned as tenants in common, he is entitled to contribution from his comortgagor.17 A statute of limitations for foreclosures has no application where owner pays off a mortgage in ignorance of a defect in his title and asserts the mortgage by way of subrogation.18

14 Mortgagor cannot gratuitously release his equity of redemption by agreement contemporaneous with the mortgage or subsequent thereon. Lynch v. Ryan \[Wis.\] 111 NPV 135. NPV 701.

15 G. Grantor in deed absolute but in fact a mortgage stated that he had abandoned idea or those claiming another him have been in L. R. 1146, 104 SV 781.

16 A. Mortgage constructed from deed and writing to reconvey. Mortgages given possession voluntarily. Parol abandonment by mortgagor. Debt equal to value of hand. Disappearance until after years the value has greatly increased. Ferguson v. Boyd \[Ind.\] 11 NVE 71.

17 C. St. $$ 2165, 2169, construed, and held that right of redemption continues until con-firmation of sale. Gerhardt v. Ellis \[Vjs.\] 114 NPV 495. Act 1791 provided that no mortgage should maintain possessory action for estate mortgaged, with proviso that it should not apply where mortgagor was out of possession. Heled where mortgages took possession after repeal of proviso, fact that mortgage was given before does not affect right, if any, of heirs of mortgagor to redeem, Francis \[S.\] 58 SE 804.

18 G. Where foreclosure suit was prosecuted to judgment but no sale was had and thereafter mortgageed premises as part of his adjoining farm, held that he was mortgage in possession. Becker v. McCrea, 119 App. Div. 56, 103 NYS 963.

19 C. Caraway v. Sly, 122 Ill. App. 648. Right to redeem is lost where foreclosure is barred. Rule applied to suit to declare absolute deed mortgage and to redeem, right to foreclosure being barred under Hurds St. $ c. $ 11.

19 C. L. 1042--Where property is conveyed under an agreement that grantee will mortgage same and pay off liens thereon, to reconvey to grantor upon payment by him, such grantee is abrogated to a mortgage given by him where he is held personally on his note.14 A grantee of a mortgage in possession, having notice of mortgagor's right to redeem, is abrogated to all the rights of the mortgage.13 Where a purchaser of a lot pays a mortgage prior to a vendor's lien of which he has no knowledge, he is abrogated to the mortgage as against the lien.14 Where one of two mortgagors pays the mortgage to save the land owned as tenants in common, he is entitled to contribution from his comortgagor.17 A statute of limitations for foreclosures has no application where owner pays off a mortgage in ignorance of a defect in his title and asserts the mortgage by way of subrogation.18

19 C. L. 1043--Where property is conveyed under an agreement that grantee will mortgage same and pay off liens thereon, to reconvey to grantor upon payment by him, such grantee is abrogated to a mortgage given by him where he is held personally on his note.14 A grantee of a mortgage in possession, having notice of mortgagor's right to redeem, is abrogated to all the rights of the mortgage.13 Where a purchaser of a lot pays a mortgage prior to a vendor's lien of which he has no knowledge, he is abrogated to the mortgage as against the lien.14 Where one of two mortgagors pays the mortgage to save the land owned as tenants in common, he is entitled to contribution from his comortgagor.17 A statute of limitations for foreclosures has no application where owner pays off a mortgage in ignorance of a defect in his title and asserts the mortgage by way of subrogation.18

19 C * 10Cur. Law. MOTIONS AND ORDERS SS 1. 873

**ROTOIONS AND ORDERS. 8 1. The Niotlen, ST3. ( 8 2. The Order, 874.**

_The scope of this topic is noted below.19_

SS 1. \_The motion. Making, submitting, and filing.\_2005 C. L. 1948--Motions must be clear and definite both as to object and the grounds upon which they are based.20 A motion touching matters apparent on the face of the pleadings need not be in writing.21 Verification is not always necessary.22 A motion to reinstate a case dismissed for want of prosecution is to be regarded as filed when actually presented to the court for action, though written entry of filing by the clerk is not made until later.23

\_Notice.\_See * C. L. 1948--Unless governed by statute or rule, the necessity for notice will depend upon the character of the motion.24 A rule that where a motion is for irregularity the notice or order to show cause must specify the irregularity complained of does not apply to matters of substance.25 Service of notice on one of several attorneys is sufficient under a statute providing for service on the adverse attorney.26

\_Hearing, rehearing, and relief.\_See * C. L. 1948--Though affidavits are ordinarily the only evidence received on motions, where doubtful and difficult questions of fact are involved, the court may, in the absence of statutory inhibition, require oral testi-mony or order a reference,27 or deny the motion with leave to institute an independent suit,28 no improper conditions being imposed.28 Counter affidavits may be filed without notice.29

\_Renewals.\_31--An ex parte order denying a motion is not a bar to a formal motion on notice.32 Where one justice has refused to confirm the appointment of a

**19. It includes matters relating to motions and orders generally. It excludes the necessity and requisites of motions and orders in the motion of execution held not necessary. Attachment, 9 C. L. 822; Continuance and Postopennent, 9 C. L. 469; New Trial and Arest of Judgment, 8 C. L. 1153, and the Latham, 847; 105 NYS 846. I like), motions and orders in equity (see 26, Rev. St. 1901, part. 1484. Union Iron Equuty, 9 C. L. 1110), deoketting and order of Working v. Vekol'in & Milli, Co. \[Arliz\]. 89 P hearing (see Docket, Calendars and Trial Lists, 53. L. 1085), affidavits and counter affidavits (see 42ndavits, 5 C. L. 56, and topics dealing with particular proceedings), effect Judgment, 14 may order a reference, Jones of ruling as an adjudication (see Former Adjudication, 9 C. L. 142), and necessity of motion in trial court to raise questions for sets. Jackson v. First State Bk. \[S. D.\] 113 review (see 82a Savings of Review, 8 N 786.**

**20. Should clearly and definitely state**

grounds on which based (Jackenson v. First State Bk. \[S. D.\] 113 NW 876), but if no objections are made they will be regarded as waived on appeal (Id.). Motion to strike 'latter part' of answer to a question held too indefinite. Colorado Springs Elec. Co. v. Soper, 38 Colo, 141, 88 P 165. See Savings Questions for Review, 8 C. L. 1822.\*\*

**21. As to sufficiency of affidavit to expase failure to give appeal bond. Livingston v. Kling, 2 G. App. 178, 58 SE 395.**

**22. Written motion under Rev. St. 1901, part. 1516, to dismiss for failure of nonrejectant plaintiff to comply with order to give security for costs, need not be verified. Union Iron Workers v. Vekol'in & Milli. Co. \[Arliz\]. 89 P 539.**

**23. Stracchan V. Wolf, 2 G. App. 254, 58 SB 492.**

\*\*24. Defendant entitled to vacation of order allowing officer's expenses in keeping at-

\*\*25.

874 MOTIONS AND ORDERS SS 3. 10 Cur. Law. trustee and appointed a receiver, another justice will not appoint a trustee on a new application on the same facts.\[33\]

SS 2. \_The order.\_See a C. L. 1044--A statute providing that the written order of the judge entered upon the minutes of the court shall be evidence of a given fact is sufficiently complied with by an order given verbally in open court and entered on the minutes.\[34\]

\_Operation, effect, and conclusiveness.\_See a C. L. 1045--As between the parties,\[35\] an order is conclusive as to all matters upon which the court might have been called to pass had the parties chosen to bring them forward.\[38\]

_Enforcement._--During willful disobedience of an order one may be denied the right to affirmatively move in the action.\[37\]

_Nunc pro tune orders_\[38\] s C. L. 1045 may be made and entered during term to make the record speak the truth.\[38\]

\_Amendment and vacation.\_See a C. L. 1045--Where on resettlement of an order appealed from the afflavits used by one party are recited therein, those of the other party should also be included.\[39\] Final orders cannot ordinarily be set aside after terms,\[40\] though certain orders and judgments resulting solely from the fault of misprision of the clerk may be,\[41\] and where a motion to vacate is filed at term, it may be determined at a subsequent term.\[42\] If an order is filed by mistake after filing of a previous order, the proper course is to move to vacate it and not for the justice to destroy one of the orders.\[43\] An order consented to by the parties cannot be reversed, set aside, or impeached except for fraud or mistake.\[44\]

\_Review.\_See a C. L. 1046--A judge may not review or vacate orders of another judge of co-ordinate powers,\[45\] but the order itself may authorize action by a succeeding judge.\[46\] Erroneous compliance with an order by the clerk is not ground for appeal from the order.\[47\] The fact that a motion is granted is verification of the grounds on which it was based,\[48\] otherwise where it is denied.

MULTIFARIOUSNESS; MULTIPLICITY; MUNICIALIAL AIDS AND REIEFES, see latest topical index.

38. Lee v. Bowling Green Sav. Bk., 55 Mix. 386, 106 NYS 568. 34. Order need be written by judge only when in chambers. Order apointing jury of defendants: State v. Marinoneaux \[Lal.\]

45 S. 389. 35, Plaintiffs in pending suits who were not parties to a proceeding wherein the court declared jury lists void are not precluded from questioning the order in the regular course of judicial procedure. Folk County v. Polle County Dist. Ct., 138 Iowa, 710, 110 NYS 1064, were not entitled to cercernari. Id. 36. Barnes v. Henshaw, 226 Ill. 605, 80 NE 1076. In the absence of exception or apden an order retaking costs is conclusive as between novant and the officer in whose favor the costs were taxed. Sheibley v. Cooper \[Neb.\] 113 NYS 626. 37. Order for counsel fee and alimony. Harney v. Harney, 110 App. Div. 20, 96 NYS 905. 38. Where clerk failed to enter order extending time for filing bill of exceptions. Gormley v. St. Louis Transit Co., 126 Mo. App. 405, 103 SSV 1147. 38. Order denying revocation of letters testamentary. In re Washburn, 105 NYS 615. 40. Order granting motion for new trial. Groenberg v. People, 129 Ill. App. 566. In 10 Cur. Law. MUNICIPAL BONDS SS 1. 875

**MUNICIPAL BONDS.**

**SS 1. Power to Issue, 875. 8 2. Conditions Precedent; Submission to**

**SS 2. Conditions Precedent; Submission to**

**Vote; Provision for Payment, 877. 87. 8 3. Execution, 870. 8 4. Form and Requisites, 879. 8 9. Sealing Overissues, 880. 8 5. Issue and Sale, 879. 8 10. Enforcement of Improvement Bonds**

"Municipal bonds" include all public bonds, but not warrants for the payment of public money. \[40, 50\]

**SS 1.**\_Power to issue,\_See 8 C. L. 1046.\_There must be express legislative authority to authorize the issue of negotiable bonds, and the power cannot be implied from the power to borrow money. \[51\] The power to issue bonds for certain purposes does not obligate a municipality to issue bonds for such purposes if the money can be otherwise raised. \[52\] The bonds must be issued by a legally organized municipality, \[53\] and the ordinance authorizing the issue must be passed in the manner prescribed by statute, and it is frequently provided that it cannot be passed at the same meeting at which it was introduced. \[54\] Acts requiring counties to issue bonds to pay their share of the cost of boundary roads are constitutional, \[55\] as are also acts exempting such bonds from taxation, \[54\] for they are instrumentalities of government and will not be taxable unless the law is clear to that effect. \[57\] Home rule cities may by amendments to their charters authorize the issue of bonds, provided there is nothing inconsistent with the Federal or state constitutions. \[54\] Municipalities may be authorized to issue bonds to provide for waterworks, \[59\] to widen and deepen rivers, \[60\] to improve roads, \[61\] to provide for costs of improvements made outside of their territorial limits and in required by order discharging lines. Dan-

\*\*ELLA v. Paradise, 53 Misc. 662, 102 NYS 807. 48. Strachan v. Wolf, 3 Ga. App. 254, 58 SE 492. 49. 50. See Municipal Corporations, 8 C. L. 1055. Countles, 9 C. L. 877. 51. General law as to bonds not applicable to special charter city authorized to borrow but not to issue bonds. Reed v. Cedar Rapids (Iowa)113 NYS 772. 52. Where municipality may issue bonds to acquire land for park purposes, the failure to do so will not affect the rights of a landowner after condemnation, for the latter may be paid out of the general funds. Bo-

**SS.** In organizing an irrigation district the county commissioners cannot take the decision of the petitleners on requests by property owners to exclude land as final. Ahern v. Hils Line Irr. Dist. Directors (Colo. 89)

**P 963. Warrants issued by town of Blaine**

could not be legally funded by the City of Blaine, as the town had included more than the statutory area. State v. Blaine, 44 Wash. 218, 87 P 124. 54. Held that an adjourned meeting of the Seattle city council was a special meeting, and accordingly the bonds then authorized were valid. State v. Ross \[Wash.\] 89 P 158. 55. Not a deprivation of local self-governement; the county is an involuntary corporation organized as a political subdivision of the state. State v. Marion County Com'rs \[Ind.\] 82 NX 482. 56. That it makes other municipal taxes heavier is no reason for not allowing the exemption. Bust v. Charleston City Council, 77 S. C. 280, 57 SE 862. 57. That taxation shall be uniform on all

**V.** Marian County Com'rs \[Ind.\] 82 NXB 482.

another state,\[42\] or for any purpose for which they are authorized to incur an expense.\[43\] Where a municipality is authorized to issue bonds to pay part of the cost of specific improvements,\[64\] it cannot issue them to provide a fund from which to pay for future improvements.\[65\] It is disputed whether the power to issue is lost because officials announce an intention to use the proceeds for an illegal purpose.\[66\]

\_Refunding bonds.\[See 8 C. L. 1047--An act authorizing refunding bonds is not unconstitutional as an amendment to a charter or as special legislation.\[91\] Bonds issued to refund illegal bonds are illegal,\[98\] but county officials may issue refunding bonds for previous bonds, whose validity was uncertain but which have been compromised.\[91\]

_Railroad aid bonds_ See 8 C. L. 1048 may be issued subject to such conditions as the municipality see fit to impose.\[70\]

\_Limitation of indebiedness.\[See 8 C. L. 1048--The limit may be fixed by statute or constitution.\[71\] Cities operating under special charter may not be subject to the statutory limitations,\[72\] though the legislature may place additional limitations over what the charter imposes.\[73\] The limitation does not generally apply to indebtedness already incurred, or to refunding bonds,\[74\] as they do not increase the debt.\[75\] A limitation may be put on the amount to be issued in any one year.\[76\] In estimating the 10 Cur. Law. MUNICIPAL BONDS SS 3. 877

amount of indebtedness, the debt of another corporation covering the same territory,17 debts contracted for local improvements to be paid by special assessments,7\* contracts for supplies payable out of funds on hand,7\* or bonds payable out of the revenue of the water system, do not constitute a part of the general indebtedness.80 As to these last there is a conflict of authority, some jurisdictions holding that a contract for supplies payable out of- a designated fund creates a debt,81 and that consequently certificates issued for extensions to waterworks payable out of a water fund are part of the general indebtedness.82 Contracts for electric lighting payable monthly,83 or an ordinance authorizing officials to borrow money to buy supplies, both create debts.84 Where the authorized issue exceeds the limitation, the part within the limit may be issued.85 The provision cannot be evaded by issuing bonds in partial payment on a contract in excess of the limit.86

\_Curative acts.86e 8 C. L. 1049--\_The legislature may validate what it could have authorized in advance, and such legislation is not void as being special legislation,87 but bonds cannot be made subject to curative acts by merely antedating the same.88 $ 2. \_Conditions precedent; submission to vote; provision for payment.86e 8 C. L. 1049--\_Sometimes it is required that the auditor shall make his certificate that there are funds before the bonds can be issued.80 From the mere fact of the issuance of bonds a presumption arises that there has been a compliance with conditions precedent.80 A provision that a railway should locate and spend money in a certain county was not a condition precedent.81

\_Ascent of voters or tax players.86e 8 C. L. 1050--\_The submission of the question of

able within any one calendar year. Smith 86. Attempted to vote bonds for $30,000 to v. Rockford, 9 Ohio C. C. (N. S.) 465.

apply on contract to purchase waterworks 77. In determining the debt limit of the ter $32,000, as that was the greatest amount City of Grand Forks, the debt of the indebtedness had made for the other $2,000. Woodward v. to be considered. Valleily V. Grand Forks (M. D.) 111 XW 616.

78. Except one-fifth of the cost of paying which were issued under an act which had for which there is a general liability. Valleily V. Grand Forks Park Com's (N. D.) 111 XW 616.

01. Bonds not authorized nor issued until 79. Contract for a pumping engine. Schnell 87. Rock Island, 222 III. 89, 83 NZ 642.

01. Constitute part of the $ per cent additional allowed for water, light, and sewer curative provisions of $283 as then amend.

purposes, although city at time of issue & not reachable the $ per cent. limit of gen-

for such issue of bonds directed that they be erai indebtedness. Dean v. Walla Walla Walla

dated back to April 1st of that year, and UVash.97 $ 95.

88. With concrete construction company to vided for was an existing, valid, and binding be paid out of water fund when collected.

01. Should of the village. Smith V. Rockford, Schnell v. Rock Island, 222 III. 89, 83 NZ 462.

01. Water fund created by ordinrades from $8. Where a bond issue is required for the proceeds of water rates and out of special payment of the whole cost of a proposed taxes. Schnell v. Rock Island, 222 III. 89, 83 NZ 462.

01. Should of the village. Smith V. Rock Island, 222 III. 89, 83 NZ 462.

issuing bonds to the electors is not an unconstitutional delegation of power." It is not technically an election and the legislature may submit the question to the tax-papers exclusively." The legislature may require the assent of voters even as to bonds already authorized but not sold." Where the scheme submitted to the voters is not the scheme provided by the ordinance, the vote will be ineffectual to authorize the issue," even under terms less onerous than the vote authorized." If the ballot substantially conforms to the statute, it is sufficient; " sometimes it is provided that there shall be separate ballot boxes." The assent of a majority of voters is usually sufficient."

\_Notice of election.\_85e s C. L. 1951--It is sufficient if it states the time, place, and object of the election, and it is posted or published as required by statute.1 A notice which sets out that the bonds are not to bear interest over a certain rate,2 or that the time of maturity shall not exceed a certain limit,3 or that it is not in the customary form, but clearly apprises the voter of the election and its purpose, is good.4 If the ordinance or notice as published contains unnecessary or illegal conditions as to the bonds, it will be treated as surplusage.5

Footnote 1: The author is grateful to the anonymous referee for the support of the paper.

\_Providing for payment of bonds.\_85e s C. L. 1951--The assessment need not be confirmed before bonds are issued.6 Municipalities usually have express authority to levy a tax,7 but even in its absence they have an implied power to provide for the payment of bonds,8 except in some jurisdiction there is a fixed limit on the tax levy.8 A

10 Cur. Law. MUNICIPAL Bonds SS 6. 879

-

levy after issuance of the bonds may be good though it was required to be made before issuance.10

SS 3. \_Execution.\_See 8 C. L. 1051

SS 4. \_Form and requisites.\_See 8 C. L. 1051.--Municipal bonds when in proper form are negotiable instruments and are subject to the provisions of the negotiable instrument act.11 So a coupon bond of a state is negotiable and a bona fide holder of a stolen one is entitled to enforce it against the state by mandamus.12 The council may determine the denomination of the bond notwithstanding an attempted determination by the electors,18 and may alter its determination before the bonds are issued.14 Bonds issued for street or district improvements may be required to have the name of the street or district printed thereon.18

\_Validation proceedings.\_See 8 C. L. 1052.--In some jurisdictions the officers of a municipality may bring special proceedings to test the validity of its organization and bond issue.18 In such proceedings the court is directed to disregard errors not affecting the substantial rights of the parties,17 and the burden is upon an intervener to prove the facts which he sets up.18

SS 5. \_Issue and sale.\_See 8 C. L. 1052.--Bonds may be enforcible in the hands of a holder in due course, though the bonds were fraudulently issued.19 A county may not contract to sell bonds which it is not yet authorized to issue.20 The legislature may prohibit the sale of bonds which have been legally authorized.21 A city may agree with purchaser as to the time the latter shall pay for the bonds.22

SS 6. \_Rights and liabilities arising out of illegal issue.\_See 8 C. L. 1052.--The court will not enjoin a sale of bonds though sufficient taxes to pay interest cannot be legally levied,23 but taxpayers may sue to rescind the sale of illegal bonds.24 So a taxpayer may enjoin the payment of illegal bonds but this right may be lost by laches,25 though

Footnote 23: The author is grateful to the anonymous referee for the 880 MUNICIPAL BONDS SS 7. 10 Cur. Law. .

in such case the municipality of its own initiative may have the right to refuse to pay the same.\[28\] An issue of bonds will not be enjoined because the officials announce their intention to use the proceeds for an illegal purpose,\[27\] but a contrary result was reached in Idaho.\[28\]

SS 7. \_Transfer.\_See * C. L. 1058.--Municipal bonds are negotiable and subject to the negotiable instrument law and a holder in due course is entitled to enforce them,\[28\] but any holder takes subject to all statutory provisions and restrictions.\[80\]

\_Recitals.\_See * C. L. 1058.--A recital that bonds were issued to refund the existing legal obligations of a county estops the county to deny their validity.\[31\] In the absence of recitals, the presumption as to the performance of conditions precedent arising from the mere fact of issuance is not conclusive,\[32\] but the absence of recitals does not deprive bonds of the character of negotiable instruments.\[33\]

\_Estoppel.\_See * C. L. 1058.--Where territory is detached from a municipality, the detached territory is still equitably liable for the bonds of the municipality.\[34\] A bond after being drawn becomes due and payable, the interest ceases to run, and if the interest is paid by mistake it may be set off in a suit on the bond.\[35\] The fact that a bond long after it was due was in possession of township officers justifies a finding that it was paid.\[38\] The statute of limitations begins to run against negotiable bonds and coupons from the dates of their respective maturities.\[37\]

\_Payment from special fund or tax.\_See * C. L. 1058

SS 9. \_Scaling overissue.\_See * C. L. 118

SS 10. \_Enforcement of improvement bonds against abutters.\_See * C. L. 1058.--Where improvement bonds were issued in the name of the municipality the same may be used though the bonds were payable only out of a special fund raised by assessment on abutters,\[38\] but no personal judgment can be obtained against the municipality.\[39\]

26. Schnell v. Rock Island, 232 Ill. 89, 88 NEC 462. 27. If there is any misappropriation there will be an adequate remedy. State v. Clay Center (Kan.) 91 P 91. 28. Council intended to use proceeds of legally voted water bonds to fulfill an illegal contract made by mayor for the purchase of a waterworks system. Woodward v. Grange-ville (Idahl) 92 P 840. 29. Bonds regular on their face were accepted by a bank as collateral before maturity and for value without knowledge that the depositor was not in legal possession of them, and that they had been negotiated by the ma?or without legal authority. Borough of Monvale v. People's Bk. (N. J. Err. & App.) 67 A 67. The fact that the mayor negotiated bonds signed by him was not sufficient to charge the bank with notice, as the mayor might have owned the same. Id. 30. That became due on the Feb. 1st succeedings its drawal, when interest ceased. Packard v. Mobile (Ala.) 43 S 963. 31. On ground that preceding bonds which had been compromised were illegal. Hamilton County v. Montepplier Sav. Bk. & Trust Co. (C. C. A.) 157 F 19. 32. County was authorized to issue bonds to a railroad when it was exonerated from its prior obligation to issue bonds to another railroad. Quinlan v. Green County, 265 U. S. 410, 51 Law. Ed. 660. 33. Ordinary presumptions that conditions 10 Cur. Law. MUNICIPAL CORPORATIONS $ 1. 881

## 1 Introduction

The concept of classes, governmental and private, the distinction being chiefly important in determining liability for tort.\[16\]

SS 2. \_Creation and corporate existence. A. Creation and organization.\_See * C. L. 1057--The creation of municipal corporations by special act being prohibited by the constitutions of most states,\[87\] the usual mode of incorporation is for inhabitants of the locality desiring to incorporate to avail themselves of the provisions of a general law,\[54\] which laws ordinarily provide conditions precedent of population, area, or physical characteristics.\[89\] Acceptance thereof is usually signified by an election.\[90\] A petition for incorporation must be acted upon and the incorporation effected by the proper officials,\[91\] and a map accompanying such petition must comply with the statutory requisites.\[62\] In some states, incorporation may be an order of the court in a special proceeding designed for the purpose,\[93\] founded on petition \*\* of freeholders.\[95\] A general decree incorporating a borough overrules all objection made in any form to the application.\[96\] Rulings on questions of fact will not be disturbed on appeal except for abuse of discretion.\[97\] Corporate capacity may be created by implication.\[98\] An act incorporating a town never having been followed by an organization of the town as a municipal corporation, the legislature is not prevented by the California constitution from repealing such-incorporation act and passing a new act for the incorporation of a city comprising the same territory.\[99\]

(SS 2) _B. Consolidation, succession and dissolution.\[70\]_--Consolidation of municipal corporations is permissible only by legislative authority, and special laws authorizing consolidation are as a rule prohibited by the several state constitutions.\[71\]

56. See post, SS 14. See, also, SS C. L. 1057, 106. Schorr v. Braun, 4 Ohio N. P. (N. S.) 57. See post, SS 3. 68. In Nebraska, towns and villages are incorporated under the provisions of a general statement of facts, the existence county commilances, whose acts in that of which is made a condition precedent to respect are ministerial. Commonwealth the creation of a public corporation. Barnes Real Estate Co. v. South Omaha \[Neb.\] 110 V. Miner \[Neb.\] 114 NWV 146. There is no provision in the Georgia law for making 58. Under the Nebraska statute, every village containing a population of 1,000 becomes a city of the second class without any action being taken on the part of the municipality. State v. Northup \[Neb.\] 113 S. C. 683, neither any provision for 54. To change a village to a city of 1,000 for or otherwise, of the action of the lower is required that the village contain "more than one thousand inhabitants," and that not less than "three-fifths" of the "electors" of the village shall petition for the change. (the number of freeholders in the proposed Boyd v. Bickel, 13 Idaho, 191, 89 P 631. 60. See SS C. L. 1057, 80. 30. 61. If the county commilensors have power to act upon a petition for incorporation, the township trustees are without power, and when a portion of the territory included within the proposed corporation has therefore been plitated, its incorporation must be affected by the county commissioners under the provisions of R. S. S. 1558, and action by township trustees in that behalf is without authority and void. Schorr v. Braun, 4 Ohio N. P. (N. S.) 561. 62. The map which accompanies a petition for the incorporation of a village, whether filed with the county commilessors or township trustees, complies with the requirements of the statute if it accurately exhibits the territory affected and the lines bounding and dividing the properties, there. (the entire territory has been platted into It is usualy effected by a special election initiated and held in a manner similar to those for incorporation.\[12\] The power to divide or dissolve municipalities is likewise a legislative power,\[18\] to which is incident the power to prescribe the rule for the apportionment of debts.\[14\] Incident to the power to consolidate municipalities is the power to prescribe the rule for devolution of office.\[15\]

(SS 2) _C. Classes and classification.\[16\]--Municipalities may be classified for purposes of legislation,\[17\] provided such classification is reasonable and based on real and substantial differences of population or situation.\[18\]_

(SS 2) _D. Attack on corporate existence; quo warranto.\[19\]--The validity of the organization and existence of a municipal corporation cannot be questioned except in a direct proceeding,\[80\] and at the instance of the state,\[81\] but the state may be estopped from attacking the organization and existence of a municipal corporation.\[82\]_

SS 3. _The charter; adoption, amendment, repeal and abrogation.\[83\]--Municipal_

eharters and amendments thereto like all other legislative acts, are subject to constitutional limitations,\[84\] such as the prohibition placed upon the delegation of legislative functions,\[85\] the requirements of uniformity in taxation,\[86\] and those relating to

thorizing, elites contiguous or in close prox-

lams, repeal the local and special provismity to consolidate, is not violative of art.

lons relating to taxation contained in the 3, $ 7 of the Const. forbidding special legislations of taxation upon the city of Harris-

could apply only to the cities of Pittsburgh

pourges of taxation upon the city of Harrisburg

and Allegheny, it being general in form and

pains a city of the third class, the real es-

86 A 248.

72. The electors of the consolidated territory may determine the question of annexax-

much as is taxable for county purposes. Id,

of a smaller city to a larger one, in-

78. State v. Northumb \[Neb.\] 113 NW 540.

stead of leaving the matter to the electors

Classification according to population sus-

of the smaller city. Pennsylvania Act 1906

tained. Bumb v. Evansville, 168 Ind. 272, 80

(P. L. 7), held not violative of the pro-

NE 625. California corporations classification-

vision of the Federal Const. ralating to due

process of law. Pittsburgh's Petition, 217

par. 227, 6A 248.

73. See 8 C. L. 1058, n. 38.

01. A village organized pursuant to Laws

cites and towns organized under the gen

of 1885, p. 148, c. 145, is not, either before

or after its separation from the township,

organized under freembolders' charters. Ex

Ihable to be taxed for indebtedness incurred

parte Johnson \[Cal. App.\] 93 P 199; North-

on account of township roads and bridges.

State v. Petipler \[Minn.\] 114 NW 90, follow-

ing Bradish v. Lucken, 38 Minn. 186, 36 NW

454. Under Act 1894, No. 165, p. 14, abol

lishing the town of Barre, and forming from

its territory the city of Barre and the new

town of Barre, and providing for an enforce-

ment against the city of Barre of all claims

and causes of action then existing against

the town of Barre, and their subsequent apportionment' and adjustment between the

city and the new town, the city is not liable

for the support of a paper who was not a

resident of the city at the time the aid was
required or furnished. East Montpelier v.

Barre, 79 Vt. 542, 66 A 100.

75. Pennsylvania Const. art. 3, $ 13, pro-

hibiting the extension of the term of a

public officer, is not violated by Act 1906 (P.

L. 7), extending the term of councilment in

the city of Allegheny upon its consolidation

with the city of Pittsburgh. Pittsburgh's Petition, 217 Pa. 227, 66 A 348.

76. See 8 C. L. 1058. See, also, Abbott,

Mum. Corp. $ 94.

77. Bumb v. Evansville, 116 Ind. 272, 80 NE

01. The acts of 1874 and 1889 \[P. L. 330, 277\], relating to the classification of

cities and government of cities of the third

class, repeal the local and special provismity to consolidate, is not violative of art.

lons relating to taxation contained in the

3, $ 7 of the Const. forbidding special legislations of taxation upon the city of Harris-

would apply only to the cities of Pittsburgh

pourges of taxation upon the city of Harrisburg

pourges. City of Harrisburg v. Harrisburg Gas

and Allegheny, it being general in form and

50. \[Pa.\] 67 A 904. The city of Harrisburg

substance. Pittsburg's Petition, 217 Pa. 237,

being a city of the third class, the real es-

66 A 248.

72. The electors of the consolidated terri-

to be taxed
884MUNICIPALCORPATIONS SS 4.10Cur.Law: the subjects of titles and acts.87Special charters are now quite generally prohibited by the constitutions of the several states.88Where cities are governed by general act, amendments must be within the constitutional limitation as to special acts.89Statutory provisions with respect to the amendment of charters must be complied with.98By constitutional provision, in some states, the council is empowered to prescribe the manner of amending the city charter.91An amendment of a city charter supersedes all former provisions inconsistent therewith.92The Kentucky general law, adopted on the subject of charters of cities of the first class, in obedience to the constitutional mandate, repealed all special charters theretofore existing,93and, in New Jersey, it is held that a general law relating to municipalities repeals all inconsistent provisions.in city charter,94but, unless otherwise expressly provided, the provisions of a "home rule charter," if subject to municipal regulation, supersede the general laws with reference to the same subject-matter.95As to such matters as the California constitution authorizes to be provided for in frecholders' charters, the provisions of the charter are supreme, superseding all laws inconsistent therewith,'and being exempt from any control by any subsequent act of the legislature.98A municipal corporation created by the legislature does not cease to exist by the nonuser of its charter or a surrender of its franchise.97Judicial notice will be taken of a municipal charter.98884The territory.99The creation of a municipal corporation involves the fixing of its boundaries, the determination of which rests with the legislature in the absence of constitutional restrictions.1 Where the authority has been delegated, a city may change the number and boundaries of the wards.2

Footnote 105 10 Cur. Law. MUNICIPAL CORPORATIONS SS 4. 885

\_Annexations.\_See * C. L. 1060--Under the Georgia statute providing for an election to determine the question of annexation, all questions arising out of such election must be determined solely by the managers of the election in the manner prescribed in the act.3 The territory incorporated into a village is usually required by statute to be contiguous.4 The extent and manner of such annexation is a question of legislative discretion.5 In some states, annexation may be by an order of court in a special proceeding designed for the purpose.4 In Indiana jurisdiction of proceedings for the annexation of territory to the existing boundaries of cities is dependent upon the question whether the land proposed for annexation is platted or unplatted.7 In proceedings to annex territory to a municipality, if the body exercising the power to annex has jurisdiction of the subject matter, its action cannot be collaterally attacked.8 The levy of city taxes upon property outside its boundaries being illegal and void as to such property, their collection may be restrained by injunction.9

\_Severances.\_See * C. L. 1060--In some states courts are authorized by statute to disconnect territory from cities on petition of a majority of the owners of real estate therein,10 and such provisions are not invalid as delegating power to the courts to legislate, when they merely require the court to judicially determine whether facts found by it entitle petitioners to relief for causes determined by the legislature.11 Under the Illinois statute a petition seeking to disconnect territory from a city or village, must be presented by the owner or owners of the land sought to be discontory embraced within the town of Roswell, ers has any jurisdiction. Burns' Ann. St. Ga., as defined by the Acts of 1882-83 and 1801, $ 3659. Ernsperger v. Mishawaka, 168 185, lies exclusively within the limits of Ind. 253, 80 N543. Whether the land is Cobb county. Town of Roswell v. Erasard, plated or unplatted, being a jurisdictional 128 Ga. 43, 57 SE 114. Boundaries of the city (fact, must be both alleged and proved. Id. of Baltimore discussed. Western Maryland) Where petition contains no averment that Tidewater R. Co. V. Baltimore \[Md.\] $ 4 Ga. 2. Under $ 2, art. 1, c. 14, Comp. St. 1903 (Cobbey\* Ann. St. 1903, $ 8601), the council of a city of the second class may change the usual number and boundaries of its wards, subject to the limitation therein contained, that it (tion describing territory sought to be anshall have not less than two nor more than six wards. Tatterasal v. Nevels \[Neb.\] 110 (Nev 708. ) 13 (Nev 708. ) 129 Ga. 286, 58 SE 852. 4 (Nev 4. Neither two tracts cornering nor two tracts joined by a narrow strip merely to in-clude them constitute contiguous territory under Hurd's R. S. 1905, c. 24, $ 182. Wild v. People, 227 III. 1556, 81 NE 707. 5 (Nev 71 does not in any manner depend on the will of a majority or any of the inhabitants living within the territory. Carithers v. Shelbyville, 31 Ky. L. R. 1166, 104 SW 744. Act of 1907 extending the boundaries of and annexing new territory to the city of Memphis held not unconsutriational as to that provision. Malone v. Williams \[Tenn.\] 103 SW 798. 6 (Nev 4. Kentucky statute providing for a protest to the court by the resident voters of the territory sought to be annexed is not violative of the 14th amendment to the U. S. Const. SS 1. by reason of the fact that some of the landholders affected might be women or corporations. Carithers v. Shelbyville, 31 Ky. L. R. 1166, 104 SW 744. 7. If the territory is contiguous and has been platted into town lots as prescribed by law, and the plat recorded, tate city council has exclusive jurisdiction (Burn's Ann. St. 1901, $ 3658), and it is only where the city desires to annex unplatted contiguous territory that the board of county commission- (Nev 744.

needed,12 but the Oklahoma statute makes no provision for the location of a part of a townsite by the owner of the part sought to be vacated.13 Agricultural lands will not be severed from an incorporated town where the effect would be to compress the territory embraced in the town into too narrow limits.14 In a proceeding to sever agricultural lands from an unincorporated town, the fact that there is no immediate demand for the lands in question for business or residence purposes by the inhabitants of the town is not controlling, though it may properly be considered in ascertaining the merits of the application,15 and in such proceedings it cannot be assumed as a ground for severance that the lands will be assessed for taxation at a higher figure in the town than, would be the case if they were not within the town limits.16 Where land has been illegally included within the corporate limits of a city, the courts have the power to grant relief by disconnecting it therefrom.17

\_Plats.\_See & C. L. 1060

_SS 5. Officers and employees.18_.--This subject is fully treated in another topic.19 But speaking generally, the state having power to create municipal corporations, it may designate the various municipal officers,20 fix the number of officers,21 and prescribe the qualifications of officers.22 The Kentucky statute requires aldermen in cities of the fourth class to be residents of the ward from which they are chosen, not only at the time of their election, but during their terms of office,23 and the tenure of office,24 define the powers and duties,25 and fix the compensation 26 of the incumbents.

\*\*12. Laws 1901, p. 96. A petition signed by the general manager of a railroad company, the leasee of the owner, no authority 24, 101 SWV 199. In sections 2410 and 2411, being shown in him to present or sign a petition on behalf of the owner, did not give Bates' Annotated Statutes), the words "trus-the village board jurisdiction to disconnect trees" and "trusects or board" include the the land. People v. Chicago, etc., R. Co., 231 III. 462, 83 NE 219. Action of board in disconnecting land on such petition is a nullity and may be attacked collaterally. Id. 13. Statute does not authorize one owner of a small portion of the plat of a town to haved such part of the plat vacated upon his individual petition, there being other owns- ors of lots in the plat not parties to the proceeding. Scott v. Noble, 18 Okl. 409, 89 P 1122.

**14. Boundaries may extend beyond the plated territory and include more or less lands of an agricultural character. In re Town of Leroy \[Iowa\] 113 NWV 847.**

**15. In re Town of Leroy \[Iowa\] 113 NWV 847.**

**16. Court cannot assume that the assessors either side of the line will do otherwise than assess the property at its fair value in proportion to other like property similarly situated. In re Town of Leroy \[Iowa\] 113 NWV 847.**

**17. Commonwealth Real Estate Co. v. South Omaha (Neb.), 110 N$\\times$ NWV 1007.**

**18. See & C. L. 1060. See, also, Abbott, Num. Corp. 88 590-718.**

**19. See Officers and Public Employes, & C. L. 1191.**

\*\*20. Burns' Ann. St. 1901, $ 3717 et seq., providing for a metropolitan police force in certain cities of the state is not unconstitutional because it places the burden of supporting the police system upon the municipality without giving it any control over the expenditures therefor Arnett v. State, 168 Ind. 180, 80 NE 165. Texas at 1897 (Laws 25th Le.), p. 236, not being applicible to the city of Marshall, it cannot be 10 Cur. Law. Municipal CORPORATIONS SS 6. 887

The office may be filled by election \[37\] or appointment,\[28\] and in proper cases the duties may be performed by a deputy.\[20\] A city council having power under statute to create commissions and boards, possesses the incidental power to determine how its members shall be chosen.\[30\] While the unauthorized acts of official will not estop a municipal corporation,\[31\] yet it may ratify the unauthorized acts and contracts of its officers which are within the scope of the corporate powers,\[32\] and such ratification is equivalent to original authority.\[33\] However, acts beyond the scope of corporate power cannot be ratified and are absolutely void.\[34\] The acts of defacto officers of a city may be binding so far as the interests of the public and third persons are involved.\[35\] An officer judicially ousted for misconduct cannot be reinstated in the office by re-election,\[36\] and the giving of intoxicating liquors to a minor without the consent of the parent or guardian is in Kentucky a sufficient reason for dismissal,\[37\] and under the San Francisco charter an office becomes vacant when the occupant is convicted of a felony.\[38\] A council has power to abolish offices in police force created by it where such abolition is a bona fide effort to enhance the efficiency of the force.\[39\] Mandamus will not issue to compel municipal officer to perform a discretionary duty,\[40\] or where the party seeking the mandamus has failed to comply with a condition precedent.\[41\]

**SS 6.**_Municipal records and their custody and examination.\[42\]_

that, within maximum and minimum limits, \[\] cell in instituting condemnation proceedings it authorizes the governor to determine the halte to have been adopted by the city by re-sularies of the police commissions, and \[\]isting application for certifaural to review also, within fixed limits, authorizes the latter to determine the compensation of the Lawl 67 A 933.

Offects of the police force. Arnett V. State, contract on behalf of city ratified by bring-

**27.**\_Kentucky St. 1903, **15** 3484, **3485**, held to

constitute a proper exercise of the legis-

ester V. Vorecster & L. Consol. St. R. Co.,

lature to authorize the division of cities of

194 Mass, **228**, **80** NE 232.

the fourth class into wards, and to provide

**34.**\_Approximation of money to railroad to

for the election of councilmen from the re-

induce it to enter town. Town of Luxora'v.

spective wards. Moore v. Georgetown \[Ky\].

Jonsenokog Lake City & E. R. Co. \[Ark.\] 103

105 SW 905.

**28.**\_Burns' Ann. St. Supp. 1905, **SS 3469**,

is to cities of the fifth class confers

appointed. Overall, V. Madisonville, 31 Ky.

power upon the city council to appoint a

person to fill a vacancy in that body by the

compositional created by the unconstitutional act of a resolution. State v. Wagner

(Ind.) 82 NE 466. The appointity power

given the mayor by the charter of Portland

does not cover city employees, but only off-

ces whose appointment is not otherwise

provided for. MacDonald v. Lane (Or.) 3P

be compiled by mandamus. Lang v. Bayonne

181. Under the Idaho statute providing that

(N. J. Lawl) 83 A. 90.

upon failure of village treasurer to file his

report within a certain time, the office shall

be declared vacant and the council or board

of trustees shall fill the same by appointment, the board of trustees must first find

that the treasurer has failed to make such

people dying on leave such va-

J. Lawl) 65 A.895.

cancy to exist to be filled by appointment.

Village of Kendrick v. Nelson, 13 Idaho, 244,

89 P 755.

**29.**\_See **S C. L. 1061**, n. 91.

**30.**\_Commission charged with construction

of public hall. Wheelock v. Lowell \[Mass.\]

81 NE 977.

**31.**\_City not estapped -to days validity of

action of council in auditing marshals' sala-

ary. ODwyer v. Monett, 128 Xdo. App. 184,

100 SW 670.

**32.**\_Act of mayor in appointing detectives

rafted by board of aldermen so as to bind

city. ODell v. Scranton, 126 Mo. App. 19.

-103 SW 570. Unauthorized act of city coun-

**33.**\_City not estapped -to days validity of

action of council in auditing marshals' sala-

ary. ODwyer v. Monett, 128 Xdo. App. 184,

lic celebration, no bills or vouchers having

100 SW 670.

**32.**_Act of mayor in appointing detectives_

and how the money was expended. Steg-

ratified by board of aldermen so as to bind

city. ODell v. Scranton, 126 Mo. App. 19.

**42.**\_See \*\*6 C. L. 720. See, also, Abbott, Num.

-103 SW 570. Unauthorized act of city coun-

## 8 7. Authority and powers of municipality

Municipalities being creatures of the state, with powers defined by the legislature of the state,44 they possess and can exercise only such powers as are expressly granted,45 those necessary or fairly implied in or incident to the powers expressly granted,46 and those essential to the declared objects and purposes of the municipality, not simply convenient but indispensable.47 Any fair or reasonable doubt concerning the existence of the power is resolved by the courts against the municipality.48 The power to contract,49 to legislate with reference to streets and sidewalks,50 and subjects within the police power,51 are hereinafter referred to. In addition to the foregoing, municipalities are almost universally invested with power to supply their inhabitants with water,51 and the gas 58 and electric

Footnote 48: Municipal corporations cannot engage

Footnote 49: Municipal corporations cannot engage

Footnote 50: The author is grateful to the Council10 Cur. Law. MUNICIPAL CORPORATIONS $ 7. 889

lighting,${}^{\\text{\\text{\\textregistered}}}$ either through the medium of a system owned and maintained by the municipality,${}^{\\text{\\textregistered}}$ or by contract with third parties.${}^{\\text{\\textregistered}}$ Cities are usually given power

54. Youssen v. St. C:1r, 148 Mich. 68, 14

Counts, 172 Pa. 243; West Chester, etc., Det. Leg. N. 331, 112 _NV_ 746; Lighthipe v. Co. V. Chester County, 182 Pa. 40. The Orange \[N. J. Law\] 68 A 120; Muncy Elec. L. Heat & P. Co. V, People's Elec. L., Heat & P. Co. V, People's Elec. L., Heat & P. Co. \[Pa.\] 67 A 956.

s55. Todd v. Crete \[Nab.\] 113 NV 172; Carren and more efficient system. The second liste Gas & Water Co. V. Carliske Borough \[Pa.\] 67 A 844. Electric lighting plant.

Cities are usually given power

Overall v. Madisonville, 31 Ky. L. R. 278, 102 SW 278. Act of May 20, 1891 (P. L. 90), 12 $N$ 729, and in some cases

empowers boroughs to manufacture elec-

University for commercial purposes for the sup-

County V. Schuylkill Bridge Co., 110 Pa.

ply and use of their inhabitants. Muney Elec. L., Heat & P. Co. V. People's Elec. L.,

Co., 90 F 683. Value is thus determined in

Heat & P. Co. \[Pa.\] 67 A 956. A city owns-

the competitive business field, but this rule

ing and maintaining an electric light plant

has applicable to public service callings

may, after discharging its duty to the pub-

because the capital can generally be less

lic, sell its surplus electricity to private citi-

easily diverted to other channels, and more

sens for lighting. Crouch v. McKinney \[Tex. Cliv. App.\] 104 SW 518, Under Kentucky

ulation and supervision. Here, likewise,

St. 1903, 8058, subd. 4, cities of the second

class have power to provide and maintain a

ered. See Nat'l Water Works Co. v. Kan-

watersworks system. Commonwealth V. Cov-

sas City, 62 F 853. The third and fourth

tion \[Ky.\] 107 SW 231. A city may pur-

tests are very similar and both superficial

chase an existing waterworks system

tudently by private parties under authority

Co. v. Junita County, 144 Pa. 865. Under

from the city. Eau Claire Water Co.. V. Eau

these tests value depends upon the income

Claire \[VWs.\] 112 NW 458.

recived, which is governed by the rates

NOTE. Valualuation of Property of public

service company on acquisition by munel-

lawfully be charged may only be a fair re-

**pility:** When the property of a public serv-

time upon the value of the property, it is

ice company, is taken by a state of municipal

beginging the question to say taut value then

pality under condemnation proceedings (Mat-

depends upon rates. See Brunswick, etc.,

ter Brooklyn, 143 N. Y. 596), or under

Water Dist. v. Maine Water Co.. 98 A 871,

contract leaving the purchase price to be

382. If the rates are assumed reasonable,

subsubsequently determined (Matter of WA-

the results reached by these methods will,

ter Com's, 71 App. Div. \[N. Y.\] 544), the

of course, approximate the valuation upon

problem of ascertaining the fair and just

when the rates are theoretically based.

compensation has, proven to be most vex-

The fact that the plan is a "going con-

tous and one upton which the courts have

shown no little divergence of opinion. Sev-

subject for compensation. Edinburgh, etc.,

eral theories, none of them exclusive, have

Co. v. Edinburgh, 71 L. T. Rep. 301; Glouces-

been advanced: first, the original cost of the

ter, etc., Co. V. Gluoester, 179 Mass. 865,

plant to the company (Montgomery County

838; Newburyport etc. Co. V. Newburyport,

v. Schuylkill Bridge Co., 110 Pa. 64; West

163 Mass. 541. Good will might well be con-

Chester, etc., Co. v. Chester County, 182

sidered if competition exists, but not if the

Pa. 40); second, the present cost of re-

company has a monopoly, for its customers

production (Brunswick, etc., Water Dist. v.

have no choice. Kennebec Water Dist. v.

Maine Water Co.. 99 Me. 371, 882; In re

Waterville, 97 Me. 185, 60 L. R. A 856. For to establish and maintain public schools,\[87\] and provide a sewerage system.\[88\] It has been held, however, that a city cannot engage in a commercial enterprise, thereby entering into competition with private individuals.\[59\] A municipality has the incidental or implied right to alienate or dispose of its property of a private nature held for the emolument and advantage of the municipality, unless restricted by charter or statute.\[90\] A municipality has the power to grant a monopoly for transporting and utilizing dead animals which have not been slaughtered for food.\[61\] In some states cities are prohibited by constitutional provisions from giving money or property to or in aid of any individual, association, or corporation.\[62\] Power to grant an exclusive franchise must be expressly granted.\[63\] The powers of a municipal corporation are restricted in operation to the municipal limits,\[94\] and power once exercised is ex-runous (Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 Law. Ed. 773; Syracuse Water Co. v. Syracuse, 116 N. T. 167, 5 L. R. A. 646). In computing its value, consideration must be taken as to its character, whether it be exclusive or nonexclusive (Brunswick, etc., Water Dist. v. Maine Water Co., 99 Me. 371; Gloucester, etc., Co. v. Gloucester, 179 Mass. 365, 883); the length of time it is to run (Kennebeck Water Dist. v. Waterville, 97 Me. 185; Sunderland Bridge Case, 122 Mass. 459, 466), and whether or not it be subject to forfeitree (see Kennebeck Water Dist. v. Waterville, 97 Me. 185; Bridge Co. v. United States, 105 U. S. 470, 482, 26 Law. E11, 1143). If but part of a franchise is condemned, compensation must be made to the extent to which it has been impaired. United States v. Gettysburg Elec. R. Co., 160 U. S. 668, 40 Law Ed. 567). Franchise valuation is generally measured with reference to rates which the company has charged, in order to compute what its revenue would probably have been Bridge Case, 122 Mass. 459, 466; Montgomery during the unexpired period. Sunderland County v. Schuylkill Bridge Co., 110 Pa. 64. In a recent English case, a municipality entered into a contract to purchase a street railway when it should be constructed. It was held that the price paid should be the value as a structure, including the element of a going concern, but excluding the franchise value. Mayor, etc., of Dudley v. Dudley, etc., R. Co., 97 L. T. Rep. 556. This result was reached upon the interpretation of the contract, but under the Tramways Act of 1870, similar results have been reached in the absence of contract. Stockton, etc., Vater Board v. Kirkciatham Local Board, 69 L. T. Rep. 61; Edinburgh, etc., Co. v. Edinburg, 71 L. T. Rep. 301), though in estimating value for the purpose of taxation, the franchise has been considered (Pimlico, etc., Co. v. Assessment Committee, 29 L. T. Rep. 605: The King v. Lower Mitin, 9 B. & C. 810). This distinction is not illogical, for vetaking without compensation would proceed on the ground that the franchise was granted gratuitously, taxation, on the ground of benefits received.--From 8 Columbia L1, 217.

56. Appleton Water Works Co. v. Appleton \[Vis.\] 113 N. NV 44. Under the acts of 1851 and 1851 (P. L. 320, 90), a borough has the power to contract with a private corporation to supply it and its inhabitants with electric light and may grant to such cooperation the exclusive right of placing poles and wires upon all streets and alleys hausted and may not be invoked again."5 Power delegated to municipalities by the state may be resumed and the municipality deprived of the right to exercise it.64

\_Judicial control over exercise of powers.\_86e & C. L. 1043--The acts of municipal officers in the exercise of administrative or legislative discretion 87 are not subject to judicial review,88 but if the authority which a municipality assumes to exercise is granted in general terms, it seems to be universally conceded that the grant is subject to judicial construction;80 and matters purely ministerial,70 or wherein there has been an abuse of power,71 or in case of collusion or fraud,72 may be judicially controlled. The judicial control over the exercise of municipal powers will be exercised with great care and caution and only in a clear and strong case.73

SS 8. \_Legislative functions of municipalities and their exercise. A. Nature and extent of legislative power.\_74--Inasmuch as a municipal corporation is purely a creature of the state,75 it has only such legislative power as has been granted to it.76 In practice the legislative power is confined chiefly to the enactment of police regulations,77 the functions of the legislative department in the initiation of public contracts and improvements,78 and in the fiscal management of the municipality,79 being

65. See 8 C. L. 1063, n. 19.

01. Act of 1874 deprived cities of powers for inspection of oil. City of Chicago v. (Axes, Morris & Cummings Dredging Co. v. Burke, 226 Ill. 191, 80 NB 720.

01. Where discretion is validly tested in a municipal board, a court will not interfere with its exercise. Goyting v. McAlees, 4 Sen, App. 655, 88 P 91. Ordinance vacating street. Enders v. Friday (Neb.) 111 NW 140.

01. C. C. C. 1063, n. 19.

01. Act of 1874 deprived cities of powers for inspection of oil. City of Chicago v. (Axes, Morris & Cummings Dredging Co. v. Burke, 226 Ill. 191, 80 NB 720.

01. Where discretion is validly tested in a municipal board, a court will not interfere with its exercise. Goyting v. McAlees, 4 Sen, App. 655, 88 P 91. Ordinance vacating street. Enders v. Friday (Neb.) 111 NW 140.

01. C. C. 1063, n. 19.

01. Act of 1874 deprived cities of powers for inspection of oil. City of Chicago v. (Axes, Morris & Cummings Dredging Co. v. Burke, 226 Ill. 191, 80 NB 720.

01. Where discretion is validly tested in a municipal board, a court will not interfere with its exercise. Goyting v. McAlees, 4 Sen, App. 655, 88 P 91. Ordinance vacating street. Enders v. Friday (Neb.) 111 NW 140.

01. C. L. 1043, n. 19.

01. See 8 C. L. 1064, n. 24.

01. Publication of ordinance being a ministrial act merely, may be enjoined. Minne-

01. See 8 C. L. 1063, n. 19.

01. Act of 1874 deprived cities of powers for inspection of oil. City of Chicago v. (Axes, Morris & Cummings Dredging Co. v. Burke, 226 Ill. 191, 80 NB 720.

01. Where discretion is validly tested in a municipal board, a court will not interfere with its exercise. Goyting v. McAlees, 4 Sen, App. 655, 88 P 91. Ordinance vacating street. Enders v. Friday (Neb.) 111 NW 140.

01. Act of 1874 deprived cities of powers for inspection of oil. City of Chicago v. (Axes, Morris & Cummings Dredging Co. v. Burke, 226 Ill. 191, 80 NB 720.

01. Where discretion is validly tested in a municipal board, a court will not interfere with its exercise. Goyting v. McAlees, 4 Sen, App. 655, 88 P 91. Ordinance vacating street. Enders v. Friday (Neb.) 111 NW 140.

01. See 8 C. L. 1063, n. 19.

01. See 8 C. L. 1064, n. 24.

01. See 8 C. L. 1064, n. 31.

01. See 8 C. L. 1064, n. 31.

01. The exercise by a city of a legislative function not delegated to it renders the ordinance void and ineffectual. The city of Milwaukee has no-power to grant rights and privileges and to impose conditions upon telephone companies for the conduct of such a business in the city except such as it may lawfully impose in the exercise of its police powers. State v. Milwaukee Independent Tel. Co. \[Wis.\] 114 NWV 108.

01. See post, $ 10.

01. See post, $ 10; also Public Contracts, $ C. L. 1478, and Public Works and Improvements, $ C. L. 1506.

01. See post, $ 13.

largely of an administrative character. Since the legislative powers exercised by a municipality are derived from the state, it is a general rule that it cannot delegate them to any person or body; * neither may a municipality by contract, ordinance, or by-law, cede away, limit, or control its legislative or governmental powers, nor disable itself from performing its public duties. \[81\]

(SS 8) _B. Meetings, votes, rules, and procedure._\[82\]--A municipal council is a continuous body though its members and officers may change from time to time. \[83\] It has power by c-linance to establish and adopt suitable rules for its government in matters of procedure, \[84\] and such rules when adopted will not be set aside unless directly or by necessary implication in conflict with some charter or statutory provision. \[85\] Meeting of councils must be held at the time and place fixed. \[88\] A quorum must be present. \[87\] The legislative body of a city may act by resolution or motion, unless the charter or statute from which it derives its powers requires it to act by ordinance. \[88\]

(SS 8) _C. Records and journals._\[80\]--Where the proceedings of the council were not properly entered upon the record, parol evidence is admissible to show such proceedings. \[80\] The failure of the clerk to properly enter upon the record the proceedings of the council does not invalidate such proceedings. \[91\] Where a charter provision requiring ordinances to be recorded is directory merely, delay in recording an ordinance

**S0. People v. Clean St. Co., 225 Ill. 470, 80**

parliamentary law as its rules may abolish, NE 298. Ordinance authorizing three city officials to provide for the collection of litter and waste paper Is vold. I. City council

**S5.** Courts will not review action of cooun-may not delegate to city marshal authority

cli in disciplining member for words spoken to grant permits for the construction of telephone. Butler v. Harrison, 124 Ill. App. phone lines in city streets. City of Tex-arkana v. Southwestern Tel. & T. Co. (Tex.)

**S6.** State v. Ross \[Wash.\] 89 P 158. Under City. App.\] 20 Tex. Ct. Rep. 734, 106 SW 915. Ordinance providing that no frame building

the corporate limits at such place as may be shall be erected, etc., without written permission from all persons owning permanent

http://www.pubs.org/.

- 10 Cur. Law. Municipal corporations SS 8E. 893

does not affect its validity."2 A mistake in the date of passage or the title of the chapter in which it is included does not invalidate an ordinance."3

(SS 8) \_D. Titles and ordaining clauses.\_See 8 C. L. 1065--While the constitutional provisions to the titles of statutes have no application to ordinances,"4 similar provisions are usually contained in the charter, and are given the same interpretation, viz., that all parts of an ordinance must be germane to the subject-matter,"5 that there must be but one subject "\* which must be expressed with reasonable certainty in the title."7

(SS 8) \_E. Passage, adoption; amendment, and repeal of ordinances and resolutions.\_See 8 C. L. 1065--Ordinances must be uniform and definite."8 Statutory or charter directions as to procedure to be observed in the enactment of ordinances and resolutions must be followed."9 It is not fatal to an ordinance that it recited that it was passed under an act which was afterward declared unconstitutional, when the council had power under a previous statute to enact the ordinance." It is generally provided that an ordinance shall not be passed at the same meeting at which it was introduced."2 A majority vote of the members elected," or of those present at a council meeting is usually made sufficient," the yeas and nays being taken when required." A mayor has no power to veto the acts of the council done in the exercise of its execu tive authority.6 An ordinance may be repealed where such repeal does not affect the contractual rights of the city nor the rights of third parties or taxpayers.7 An ordinance may be repealed by implication.8 The city council cannot amend, suspend, or repeal an ordinance by mere resolution.9

\_Publication.10--Under the charter of cities of the first class in Kentucky, ordinances do not become effective until they are published.11 Subject to the provisions of the statute, a council has authority to select the newspapers in which its ordinances and resolutions shall be published.12 The setting out of the name of the presiding officer of the council is not an essential part of the publication of an ordinance.18

(SS 8) \_F. Construction and operation of ordinances.\_See S. C. L. 1086--An ordinance void in part may be valid as to the remainder,14 but where the valid and invalid portions of an ordinance are so mingled that a division cannot be made which will carry out the valid portions, the entire ordinance is void.18 An ordinance is presunptively valid.16 The motives of a municipal legislative body are not the subject of judicial inquiry,17 the rule, however, being sometimes relaxed, particularly if fraud can be established.18 An ordinance is void so far as it materially conflicts with the statute.19 The facts being undisputed, the question 'whether an ordinance is void is a question of law for the court,20 but the court will not hold an ordinance void as unreasonable which is not clearly unreasonable upon its face,21 and an ordinance ex post facto or retrospective in its operation is invalid.22 An ordinance is not void because its provisions are all covered by statutes.28 A general ordinance, applicable to all territory within the corporate limits at the time of its passage, becomes effective in additional territory when the same is attached.24 Under the St. Louis charter, a special ordinance in conflict with a prior general ordinance is invalid.28

_Rules of interpretation.--Ordinances in derogation of the common-law must be_

G. Burns' Ann. St. Snpp. 1905, SS 3476, relating to elites of the fifth class does not\_

42.

_Iution appointing a person to fill a vacancy in the city council. State v. Wagner \[Ind.\]_

82 NE 466.

_7. City of Santa Barbara v. Davis \[Cal.\]_

Appl. 192 P 308.

_8. An ordinance imposing a license tax on every kind of business authorized by law, no reference being made to the keeping of_

_dogs, does not by implication repeal a prior ordinance imposing a license tax on the keeping of_

_deceptive of dogs. Ex parte Ackerman \[Cal.\]_

Appl. 19 P 429.

_9. Resolution accepting $12.00 license fee invalid when ordinance requires $25.00._

_Bloomington & Normal R. Elec. & Heating Co., V. Eloomington, 123 Ill. App. 639._

_10. See 8 C. L. 1066. As to what publication is requisite before an ordinance becomes operative in the city of Newark, see Lewis v. Newark \[N. J. Law\]_

65 A 1039.

_11. City of Louisville v. Roberts \[KY.\]_

105 SW 431.

_12. Council of a village has such authority subject to provisions of $1536-619. Davis v. Davis, & Ohio N. P. (N. S.)_

\_13. Clerical error in publication as to name of presiding officer held immaterial. Bumb v. Evansville, 168 Ind. 272, $0 NE 625.

_14. Burkhardt v. Cincinnati, & Ohio N. P. (N. S.)_

_15. Asessment ordinance for improvements where valid and invalid assessments were made in gross. Chicago Consol, Trac._

S 8F.

10 Cur. Law.

_16. City of Belleville v. Pflingsten, 225 Ill._

_293, 80 NE 266; Ringelstein v. Chicago, 128 Ill. App. 483; Cox v. Mignery \[Mo. App.\]_

SWV 67. Where an ordinance is adopted, which would be lawful if intended for one purpose, and unlawful if for another, the presumption is that the purpose was lawful, unless the contrary clearly appears. Schmidt v. Indianapolis, 168 Ind. 631, 80 NE 632.

_17. Especially where subject-matter of ordinance is plainy within authority expressly granted. Schmidt v. Indianapolis, 168 Ind. 631, 80 NE 632._

_18. See 8 C. L. 1067, n. 82._

_19. Ordinance fixing compensation of official invalid where statute fixes different compensation. Burke v. Chicago, 127 Ill. App. 161._

_20. City of Lebanon v. Zanditon, 76 Kan. 273, 89 P 10._

_21. Ringelstein v. Chicago, 128 Ill. App. 483._

_22. Ordinance imposing licenses on certain occupations held to be neither ex post facto nor retrospective. Clty of Louisville v. Roberts \[KY.\]_

Roberts \[KY.\]\_

105 SWV 431.

_22. Schmidt v. Indianapolis, 168 Ind. 631, 80 NE 632._

_24. Ordinance fixing maximum speed of street cars. Denee v. Houghton County St. R. Co. \[Mich.\]_

R. Co. \[Mich.\]\_ strictly construed.20 To determine the meaning of an ordinance, the ordinance as a whole must be considered.27 Where an ordinance is uncertain and open to two constructions, the court will adopt the construction which will uphold the validity.28 In construing an ordinance, the substance of the ordinance, the purpose and intention of the council as they appear in the ordinance, rather than the language of any particular clause or phrase, will be considered.29

(SS 8) \_G. Pleading and proving ordinances and proceedings.\_Soo 8 C. L. 1967--In proceedings in a municipal court it is sufficient to refer in the pleadings to an ordinance by title, number and date of approval, without setting out the ordinance in full or in legal effect.30 State courts cannot take judicial notice of municipal ordinances and regulations; these must be proved as other facts.31 Whether an ordinance is in force is a question of law for the court,32 but this fact may be presumed on appeal.33 Where the validity of an ordinance depends upon its conformity to a statutory condition contained in a clause distinct from the penal provision for its violation, the burden to prove its validity rests upon the person claiming the benefit, as does the burden to show that it has become effective, in conformity to conditions.34 A printed compilation of ordinances purporting to have been issued by authority of the village board is prima facie evidence of the legal passage and publication of an ordinance.34

(SS 8) _H. The remedy against invalid legislation.38--While the courts are without power to review the exercise of legislative discretion,37 certiorari will lie for total invalidity,38 and only in case of irreparable injury,39 or to avoid multiplicity of proceedings 40 is injunction available.341_

26. Inhabitants of Houlton v. Titcomb, 102 Mie. 272, 66 A 733.

01. Northwestern University v. Wilmette, 230 Ill. 80, 82 NE 615; Gage v. Wilmette, 230 Ill. 428, 82 NE 656.

01. Northwestern University v. Wilmette, 230 Ill. 80, 82 NE 615.

01. Chicago Cold Storage Warehouse Co. v. People, 127 Ill. App. 179.

01. Nichols v. Salem \[Or.\] 89 P 804.

01. Cordatos v. Chicago, 129 Ill. App. 471; Sachs v. Lyons, 53 Miles. 640, 103 NYS 149.

01. Ghio v. Metropolitan St. R. Co., 126 Mo. App. 710, 103 SWP 142.

01. On appeal from a judgment of conviction for violation of an ordinance, in the absence of evidence to the contrary, the court will presume that the ordinance was in existence at the time of the trial and convicton. Nichols v. Salem \[Or.\] 89 P 804.

01. People v. Prison Keeper of Seventh Dist., 121 App. Div. 645, 106 NYS 314.

01. Hurd's Rev. St. 1905, 85 C. Chicago & A. R. Co. v. Wilson, 225 Ill. 50, 80 NE 56,

01. Ordinance declaring that buildings afg. 128 Ill. App. 88. Ordinance not proved by introduction of pamphlet not purporting to be published by authority of city council and where no certificate of city clerk is at-tached thereto. Illinois, Iowa & Minnesota R. Co. v. Minnian, 129 Ill. App. 432.

01. See 8 C. L. 724. See, also, Abbot, Munn. Corp. 8 560.

01. See ante, $ 7. Judicial Control over Exercise of Powers.

01. Validity of ordinance granting to a new sewer company the right to take over the plant of an old company; and to lay its pipes beneath the surface of the streets, and fixing higher rental rates, may be questioned by certiforari. Fogg v. Ocean City \[N. J. Law\] 65 A 885. The prosecutor will not be denied the benefit of the writ by reason of the writ by reason of the writ by chance.

## 9 Administrative functions, their scope and exercise

The power of administrative officers is limited to the enforcement of existing laws and ordinances \[49\], and the acts of municipal officers in the administration of public duties does not give rise to liability in tort on the part of the municipality \[44\]. The New Orleans board of liquidation of the city debt is not bound to select an interest paying bank as its agent, but may do so in its discretion \[45\].

## 10 Police power and public regulations

This section deals only with matters peculiar to municipal police power, general rules as to the extent and exercise of police power being treated in topics descriptive of the subjects thereof \[47\].

### 10 $A$. In general

\[86\] $C$. L. 1068--Power to make needful police regulations is a proper legislative delegation \[48\]. In the enactment of ordinances under this power, municipalities are accorded a large discretion, and such ordinances will not be declared void unless unjustly discriminative, oppressive, or unreasonable \[49\]. The re-contract created by an ordinance granting a, SVV 798. The use of property so as to construct railway company a franchise in pep-

stitute a nuisance is within the control of petuity to lay tracks in the streets and to the police power logged by the legislature in operate cars thereon. Des Moines City R.

Co, v. Des Moines, 151 F 854. United States

Janic City v. France \[N. J. Law\] 65 A 894. courts of equity may enjoin the enforcement

Ordinance prohibiting emission of dense of an ordinance which impairs the obliga-

smoke held valid. Id.

tion of a contract in violation of the Federal

49. Ordinance relating to a subject within constitution; ordinance repealing prior ordin-

the corporate jurisdiction presumed reason-

name granting a franchise to a street railway company. Missouri & K. I. R. Co, v.

the ordinance itself or is established by

Olathe, 156 F 624. An ordinance which has

gone through all the steps of its enactment

(Ala.) 44 S 388. In South Carolina an or-

except that of publication is a completed or-

dinance so far as legislative action is con-

cerned, and its publication may be enjoined

in municipality to pass it or for violation

upon proper showing. Minneapolis St. R. Co.

of some constitutional principle. Town of

v. Minneapolis, 155 F 859.

Brunson v. Youmans, 76 S. C. 128, 56 SE 651.

**42. See 8 C. L. 1067. See, also, Abbott, Mun. Corp. SS 508-558.**

**43. The authority of a board of public**

service being purely administrative, its powers are exhausted when it enforces existing

laws and ordinances, and when a different

regulation is provided by such board the

regulation is void. Reese v. Cleveland, 6

Ohio N: P. (N. S.) 193.

**44. City not liable in damages for loss of**

profits by city council's wrongful conduct in

failing to award contract for improvements

to the lowest responsible bidder. Molloy v.

New Rochelle, 108 NYES 120.

45. City of New Orleans v. Board of Liquidation of City Dept, 118 La. 543, 43 S 157.

01. See 8 C. L. 1068. See, also, Abbott, Mun. Corp. SS 115-139.

01. See Buildings and Building Restrictions, 9 C. L. 441; Exhibitions and Shows, 9 C. L. 1441; Health, 9 C. L. 1586; Intoxicating Liquors, 10 C. L. 417; Licenses, 10 C. L. 622, and like topics.

01. Tannenbaum v. Rehm \[Ala.\] 44 S 532.

The fourteenth amendment to the U. S. Const.

does not impair the police power of the

states, and an ordinance, passed under legis-

native authority designed to protect the lives

and health of the people by providing for

the inspection of food products and authority

iling the summary seizure and destruction

of impure and dangerous articles of food,

does not contrurese such amendment. North

American Cold Storage Co. v. City of Chile

ago, 151 F 120. Attempted delegation of

power to city of Memphis to license and reg-

ulate ferries held void under Tennessee

stitution. Malone v. Williams \[Tenn.\] 103 10 Cur. Law. MUNICIPAL CORPORATIONS $ 10B. 897

striction as to reasonableness has no application on an ordinance passed pursuant to a specific power. \[50\] The reasonableness of an ordinance is a question of fact, \[61\] and the burden of proof is upon those who attack an ordinance to show its unreasonableness \[52\] and show the facts from which the unreasonableness appears. \[73\] An ordinance which is a police regulation and not a revenue measure is not an unlawful interference with interstate commerce, in violation of the United States constitution. \[54\] A city, charter authorizing it to exercise police powers within its limits does not repeal or effect the general laws on the same subject or prevent a prosecution for the violation thereof within the city. \[65\] Different municipal departments consistently exercise concurrent jurisdiction over the same subject-matter. \[66\] A municipality cannot by contract debar itself from the exercise of its police power. \[57\]

($ 10) B. For public protection. \[See $ C. L. 1000--If power to legislate on the subject has been granted, a municipality may regulate or prohibit gaming and the keeping of gaming places or implements, \[66\] sale of intoxants, \[50\] the conduct of bil-

306. Ordinance prohibiting the erection of upon the face of its provisions, or by reason any sign which shall extend over any side- of its operation in the circumstances under walk more than eighteen inches from the which it is to take effect, its unreasonable or publicing line or inside the sidewalk held not unreasonable on its face or under the evi-

City \[N. J. Law\] 67 A 1072.

Gence. City of St. Louis v. St. Louis Theatre Co., 202 Mo. 690, 100 SWF 627.

Co., 202 Mo. 690, 100 SWF 627.

quiring abutting owners within a certain time after a snow fall to cause the same to

NE 627.

be removed from the sidewalks adjoining their property sustained. State v. McCrillis

to permit a female under the age of twenty-

\[R. I.\] 66 A 301. Ordinance which prohibited

one years to remain in or about a saloon.

not merely the emission of smoke, but the emission of smoke smoke in Atlantic City,

State v. Baker \[Cor.\] 92 P 1076.

emission of dense smoke in Atlantic City,

56. That Building Code, $ 152, provides for

smoke containing soot, or other substance,

installing perforated pipes in certain build-

and containing it in sufficient quantities to permit a deposit of such soot or other sub-

tain powers on the building department in

stance or may surface, held reasonable and

verfence to them, is not inconsistent with valid. Atlantic City v. France \[N. J. Law\] 65

exercise of like jurisdiction by fire, com-

A 894.

Oppressive regulation: Ordinance prohibiting the keeping of domestic animals within a

present subsequent license tax. Coatesville

town in a certain manner without a permit

Boro v. Coatesville Elec. Light, Heat &

from the mayor and council held yold as

placing unreasonable, arbitrary and oppres-

58. The charter of the city of Portland

sive power in the hands of the mayor and

does not confer exclusive jurisdiction on

council. City of Hagerstrom v. Baltimore

the city to prevent gambling houses, and

& O. R. Co. \[Md.\] $ 490. Ordinance

highting the operation of steam engines,

horse racing is an offense under B. & C.

foundries, etc., without first obtaining the

consent of the council, held invalid as fall-

\[Or.\] $ 150, and the circuit court has

ing to prescribe a uniform rule of action.

\[Or.\] $ 87 B 653. The Nebraska statutes gov-

and also as giving the council the right to

grant or withhold the privilege arbitrarily.

City Council of Montgomery v. West \[Ala.\] 42 S 1000. An ordinance regulating the run-

ning of trolley ears in Jersey. City from

ful to permit card playing under any and all

terminals at the Pennsylvania and Erie sta-

tions during the evening rush hours, not

being at all unreasonable in its application

to the Erie terminal, and not under all circumstances unreasonable in its application

\[Or.\] $ 150, and the circuit court has

to the Pennsylvania terminal, held valid and

enforceable except in particular cases where

circumstances might render its operation un-

reasonable or oppressev. North Jersey St.

R. Co., v. Jersey City \[N. J. Law\] 67 A 1072.

50. Where such power is not in conflict

with a constitutional prohibition. City of

Guercastic V. Thompson, 168 Ind. 493, 81 NE

497.

001. North Jersey St. R. Co. v. Jersey City

\[N. J. Law\] 67 A 1072.

52. The court will not interfere unless it

is clearly shown that the ordinance, either

10 Cur. L-- 57,

10.

### 698 Municipal Corporations & 10c.

10 Cur. Law.

liard and pool rooms,\[60\] use of fire arms,\[61\] provide against danger of fires in theatres,\[62\] regulate the erection of buildings and other structures\[63\] or the materials for the construction of same,\[64\] provide against their becoming a menace to life,\[65\] and forbid structures or practices causing danger of fire\[66\] or explosion,\[67\] forbid the leaving of horses unhitched or hitched in the streets except to the public hitching rack,\[68\] and establish public scales for protection against false weights,\[68\] provided the regulation goes no further than is required by the reasonable necessities of the occasion,\[69\] (SS 10) _C. Health and sanitation.\[70\]_--Anything which from its nature or surrounding is or is liable to become a menace to the public health is a proper subject of police regulation; thus, burial permits may be required, the keeping of hogs,\[71\] cattle,\[72\] or dogs,\[73\] regulated, and the keeping of livery stables supervised;\[74\] the sale of cigarettes,\[75\] and the location of and inspection of dairies, may be regulated,\[76\] the peal to the mayor and alderman, held not for ascertaining such damage. Ex parte invalid as admitting opportunity for the exercise of arbitrary discrimination. Cooke v., 229, 10S SW 395.

Loper\[A14\] 44 & 78. Ordinance prohibiting (#7. Municipal corporations may adopt ordinate forbidding blasting of rock within half mile of the corporate limits and provide. Its limits unless such blasts be properly covered. City of Spokane v. Patterson as in conflict with the state constitutional \[Wash.\] $9 P 402. An ordinance regulating provision relating to the jurisdiction of city (that it shall be unhavful to erect a gas dilances. Earle v. Latonia Agricultural cash or holder without the written consent as: \[Kyr. App.\] 108 SW 312. A city may pass an ordinance prohibiting minors from radius of 1,000 feet from the site of such structure is, as to such proviso, unreasonable therein. City of Lewistown v. Fitch, 130 $80.

60. Ordinance authorizing police commins. L. R. 576, 102 SW 112.

01. Ordinance establishing public scales and requiring certain commodities to be weighed thereon before sale has no application where the commodity sold is weighed on the purchaser's own scales and with his ap-fromation, it being intended to protect pur-chaser from false weights. City of Fulton v.

Sims\[M. App.\] 106 SW 1094.

62. Weshi v. Town of Mt. Olivet, 31 Ky.

01. Wexh v. Town of Mt. Olivet, 31 Ky.

L. R. 576, 102 SW 1128.

64. Ordinance establishing public scales and requiring certain commodities to be weighed thereon before sale has no application where the commodity sold is weighed on the purchaser's own scales and with his ap-fromation, it being intended to protect pur-chaser from false weights. City of Fulton v.

Sims\[M. App.\] 106 SW 1094.

65. See & C. L. 1069, n. 29. While a city may destroy buildings maintained within fire limits in violation of ordinance, it is liable for needless damage. Wheeler v.

Aberdeon\[Wash.\] $9 P 138.

76. See & C. L. 1069. Instruments prohibited within certain limits. Laurel Hill Cemetery V. San Francisco \[Cal.\] $9 P 70. Under ex-press defeated authority, a municipality may prohibit increments altogether within the municipal limits or permit them within whatever area the council may see proper to designate. Carpenter v. Borough of Veadon, 151 F $79.

01. Ordinance prohibiting the keeping of hogs in a pen within the corporate limits and within 200 feet of a street or alley of the town sustained, although it does not formally declare such keeping of hogs to be a nuisance. Miller v. Syracuse, 168 Ind.

230, 80 NE 411. The condition of lots in town in which hogs are kept cannot be considered in determining whether the municipality had power to pass an ordinance pro-hilking keeping of hogs therein. Town of Brunson v. Youmans, 76 S. C. 128, 56 SE 651.

72. Ordinance regulating Keeping and feed-ing of cows is reasonable regulation.

01. Fincher v. Collum, 2 Ga. App. 740, 59 SE 22.

01. City of Billings v. Cook, 35 Mont. 95,

85 P 656.

75. Mandamus awarded to compel issuance emission of dense smoke prohibited," and impure and dangerous articles of food may be seized, condemned, and destroyed." Where the quality of nuisance does not inherce in buildings, an ordinance declaring such buildings per se nuisances, without reference to the uses to which they are put or the manner in which they are maintained, is void."

(SS 10) \_D. Regulation and inspection of business.\_See & C. L. 1076--Regulations restrictive of the conduct of business are justified only by considerations of public comfort, health, or safety." A power usually conferred on municipalities is that of licensing occupations for the purpose of regulation; " but license fees must be reasonable, and not unjustly discriminating." Revocation of permits to conduct a

of license to sell cigarettes manufactured and must be strictly construed in favor of only from pure tobacco and containing no those charged within its violation; and $ $ substances deleterious to health. Illinois of said ordinance is therefore invalid. Id. Laws 1907, D. 265. People v. Busse, 231 III. Section 4 of said ordinance, providing for the creation of a smoke inspectors department consisting of inspectors and prescrib-1093, 44 S 898.

77. People v. Sturgis, 121 App. Div. 407, 106 NYS 61. An ordinance which prohibited

emlination of the clause providing for the protection of ordenders, sufficient to condensation of dense smoke in Atlantic City,

stitute a valid ordinance. Id.

smoke containing soot or other substance and containing it in sufficient quantities to permit a deposit of such soot or other substance on any surface, held * valid enact.

and under the police power. Atlantic City the summary scheme and destruction of v. France IN. J. Lawl 65 A 894. Compilation any putf, decayed, poisoned, and infected

charging violation of such ordinance held

articles of food, is a valid police regulation sufficient. Id. Under such ordinance the

which does not contravene the provisions deposit of soot or other substance raises the

of the fourteenth amendment of the U. S. presumption of an injury, and it is not re-

Const., and any abuse of the power granted
quired that the convictions find that such

by it would not present a Federal question. deposit was injurious to any person. Id. North American Cold Storage Co. v. Chicago. Ordinance making emission of dense smoke

151 F 120.

from any smokestack, etc., a public nuisance.

70. Buildings used for storage of cotton not invalid because it excepts private real-

seed while awaiting shipment. Town of

dences. Bowers v. Indianapolis \[Ind.\] $1 Cuba v. Mississippi Cotton Oll Co. \[Ala.\] $1 NE 1987. In an action to recover penalty

876.

for violation of a smoke ordinance, evidence tending to show that the plant used for

81. The subject of licenses is more fully heating the building was of the most ap-

treated in another topic. See Licenses, 10 proved type, and that the owner had done

C. L. 622. City of Louisville v. Roberts. all that human skill could devise to prevent

\[Ky.\] 104 SSV 1197: Parish of Calcasieu v. smoke from escaping from the stack, is ad-

Avery, 119 La. 143, 43 S 898. Ordinance Immissible in mitigation of the penalty. City

posing license on brewerites, distinctlers, de-

of Chicago v. Knobel, 282 III. 112, 83 NE 459.

pots, or agencies. Schmidt v. Indianapolis, 168

Ordinance declaring the emission of dense

Ind. 631, 80 NE 632. When there is no ex-

smoke from any chimney, etc., within the

press power granted to a city to license or

corporate limits a public nuisance, irrespec-

regulate the business of constructing artifi-

tive of the particular locality, is valid,

cal stone, asphalt, or other composite walks,

Bowers v. Indianapolis \[Ind.\] $1 NE 1897.

it cannot be implied from the grant of au-

Contra: The failure of the legislature to

thority to construct and repair walks of such

include former $ 16927 (1) in the recent

material and in such manner as the mayor

amendment of the municipal code must be

and council deem necessary. Gray v. Omaha construed as withdrawing from municipal

\[Neb.\] 114 NVE 600.

corporations, the authority "to determine

S2. Ordinance requiring a license of $15

what shall be a nuisance and to abuse

for each wagon pedalling milk or butter held

same," and in view thereof it must follow

not unreasonable or discriminative. Miller v. that $ 2 of the ordinance passed by the city

Birmingham \[Ala.\] $4 S 88. A license fee

of $1,000 imposed on brewerties and their

agents held not excessive. Schmidt v. Indianapolis, 168 Ind. 631, 80 Nye 632. Ordinance of city the third class imposing license

tax of $10.00 per day on transient merchants

held reasonable and valid. City of Lebanon

v. Zanditon, 75 Kan. 273, $9 P 10. Ordinance

response an occupation tax of $100 for each

smoke, and prevent injury and annoyance"

sinc months or part thereof upon persons

engaged in the business of selling at fire

offenses described in said ordinance. Such

sale, auction sale, damaged or bankrupt

an ordinance would be penal in its nature

stocks of goods, held not discriminatory in special business must be by ordinance or regulation of the board of aldermen, custom being insufficient,\[83\] and such revocation must be after due notice and a hearing.\[84\] Various cases dealing with the subject of licenses are given in the notes.\[85\] A municipality may require the destruction of garbage though it has some commercial value,\[86\] and may commit the collection of garbage to an official contractor.\[87\]

(SS 10) \_E. Control of streets and public places.\[See * C. L. 1070--Paramount authority over municipal streets resides in the state, which may delegate such powers as it sees fit.\[88\] Under a delegated power to regulate the use of streets, a municipality may regulate the use of automobiles therein,\[89\] regulate the use of streets for the purpose of mere sport,\[89\] regulate railroad street crossings,\[91\] and limit the speed of railway trains,\[92\] require precaution in the operation of street cars,\[88\] limit the speed of teams,\[94\] and prevent the running at large of horned cattle,\[85\] or other animals,\[96\] or prohibit the leaving of horses standing in a public place without being fastened or guarded to prevent their running away.\[97\] No use of streets or public places inconsistent with the public easement therein can be authorized,\[98\] and the use of

favor of merehants selling the same goods

87. Grease rendered from meat held not without advertising them as such. City of

garbage. Nash v. District of Columbia, 28

Emporia v. Endelman, 75 Kan. 428, 89 P 685.

88. So held in revoking permits to carry

01. See * C. L. 1070, n. 45.

01. People v. Prison Keeper of Seventh

viction of selling milk below standard fixed

Dist, Magistrate's Ct., 121 App. Div. 645, 106

by Sanitary Code. People v. New York

NTS 814: Id., 100 N. Y. 313, 83 NE 44; Id., 55

Health Dept, 117 App. Div. 856, 103 NTS 275.

Misc. Glin, 106 NYS 860.

84. The department of public health of a

01. As long as restrictions imposed upon it

city cannot revoke a permit to carry on

are reasonable for a public purpose, and not

the business of selling milk at retail on

arbitrary, the courts ought not to interfere.

viction of selling milk below standard fixed

Billington v. Miller \[N. J. Law\] 67 A 935.

by Sanitary Code, without hearing and notice.

Ordinance prohibitng on portion of a street

People v. New York Health Dept., 117 App. Div. 856, 103 NYS 275.

85. Ordinance prohibiting location and

operation of woodards in certain portions

of city held void for uncertainty. City of

St. Paul v. Schleb \[Minn.\] 112 NV 532.

**Auctiones:** Ordinance prohibiting the sale of jewewdy and watches held reasonable

because of the opportunity for fraud

con-
needed therewith. State v. Bates \[Minn.\] 112 NWF 67. And not invalid as discriminators as against a certain business within a

certain class, Id.

**Construction of walks:** Ordinance to

1-

eense and regulate the business of

structing artifical stone, asphalt and other

composite walks, held unreasonable and void.

Gray v. Omaha \[Neb.\] 114 NWF 600.

**Hawkers and pedders.** Miller v. Birmingham

ham \[Ala.\] 44 S 388.

**Keepers of dogs.** Ex parte Ackerman \[CaL\] App.\] 91 P 429.

**Ment shops:** Ordinance forbidding meat

shops to be kept open or the sale of meat

therein after 9 o'clock in the forenoon on

Sunday held not unconstitutional as class

legislation. City of St. Louis v. De Lassus,

205 Mo. 578, 104 SWV 12.

**Ticket brokers and scalplers.** Ordinance

prohibiting sale of railroad tickets by any

one other than a duly authorized agent of the

company, held invalid for want of power to

enact it. Ex parte Hughes \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 742, 100 SWV 160.

**Soliciting customers for hotels, etc.:** Ordinance prohibiting the soliciting of custom-

ers for hotels, etc., on a depot platform while

passenger trains are stopping, sustained.

Emerson v. McNeil \[Ark.\] 108 SWV 479.

**St. Nash v. District of Columbia, 28 App. D. C. 588.**

\*\*St. Nash v. District of Columbia, 28 App. D.

10 Cur. Law. MUNICIPAL CORPORATIONS SS 10E. 901

streets for any purpose except that for which they are commonly and necessarily used may be prohibited." Though a council has power to enact regulations for the moving of buildings through the public streets,1 that power should not be set in motion in each individual case by resolution.2 A municipality has the right, and it is its duty, in the exercise of its police power, to supervise and control the introduction and maintenance upon and under the surface of the streets, of the various appliances which subserve the several urban uses to which.the highways of a municipality may lawfully be subjected.3 Among such uses may be enumerated the placing of telegraph and telephone lines,4 lighting wires,5 the planting, maintaining, and protection of shade trees,6 and the operation of street 7 and steam railways.8 While a municipality may, by ordinance, grant to individuals and corporations the privilege of occupying the streets and public ways for the uses specified,9 such rights are at all times held in subordination to the superior rights of the public.10 A city may not, however, take

715 Under Greater New York City Charter, the board of estimate and apportionment has no authority to grant to the owners of polis \[MZ.\] $ A $ 461. Ordinance requiring a department store the right to construct and getam railroad company to change the location of its tracks in a street held a reasonable its store with a street railway to be used reevaluation and premonotive of the public weig-readstively for the transportation of its fare and safety. Atlantic, etc., R. Co. v. goods. Hatfield v. Straus, 189 N. Y. 208, 82

Footnote 10: The author is grateful to the author.

XCE 172. Abutting owners suffering special of the use of a street to a street railway com-damages by reason of such occupation of the party street may maintain an action to restrain the same. Id. Erection of electric lighting plant by city in center of a public street and operate a street on campus. City held is an improper use. McIlthmy v. Trenton, 118 Mich. $30, 14 Det. Leg. N. 190, 11 NW

1083.

0001. Exhibition of stallions on public streets

Town authorities may grant franchise for may be prohibited. State v. Jams \[Neb.\] 11

11. NW 604.

01. An ordinance requiring a street railway company to temporarily raise or remove its wires so as to allow a building to pass, pro-vited and the person desiring to remove such building first obtain a license from the city and give 24 hours' notice to the company, is a valid exercise of the police power relieving the party moving such building from any liability to the street railway company. Indiana R. Co. v. Calvert, 168 Ind. 231, 80 NE

01. This does not constitute a technical "taking of property as the term is used under the law of eminent domain. Id.

01. Though a city is authorized by its character to prohibit the use of its streets for the removal of buildings, yet it must do so by a reasonable ordinance only adopted and promulgated. Eliman v. Clarke, 105 NYS

01.

01. See 8 C. L. 1071, n. 57.

01. City of Plattensuth v. Nebraska Tel. Co. \[Neb.\] 114 NW 588; State v. Milwaukee \[Vi.\] 113 NW 40; State v. Milwaukee Independent Tel. Co. \[Vis.\] 114 NW 108.

01. See 8 C. L. 1071, n. 62.

01. Burns' Ann. St. 1901, n. 58 451, 4198. Teague v. Bloomation \[Ind. Appl.\] 81 NE 103. An abutting owner's right to plant and grow trees along the edge of a street in front of his property is subject only to the right of the city, or some one authorized by it, to remove or trim the same when they interfere with a proper use of the street. Telephone company not having been granted a franchise to conduct a telephone business in a city is liable to property owners for multi-Ilation of such trees. Cartwright v. Liberty Tel. Co. 205 Mo, 126, 103 SW 982.

902 MUNICIPAL CORPORATIONS $ 10F. 10 Cur. Law.

away any vested rights without notice and an opportunity to be heard.11 By statutes in some jurisdictions, where streets are abandoned, the property, if not needed for public use, may be disposed of by the municipality, subject to the conditions and provisions of the statute authorizing.11a

($ 10) \_F. Definition of offenses and regulation of criminal procedure.12--Injectant to the power to make police regulations is the power to punish their breach,13 and, in the exercise of such power, acts made penal by the state law may be punished,14 but such ordinances are justifiable only by express legislative authority,15 and the conditions upon which authority granted is exercisable must be strictly complied with.14 Where the manner of enforcing municipal regulations is prescribed by statute, such method is exclusive.17 In defining offenses,18 or prescribing procedure,19 a municipality cannot depart from the established meaning of words and the settled rules of procedure. The extent of punishment may be imposed is usually regulated by the charter.20 The usual constitutional guaranty of a trial by

vold. City of New York v. Knickerbocker Merz, 80 Ky. L. R. 4170, 100 SWY 323). Or-Trust Co., 52 Misc. 222, 102 NYS 900, Ordi-

dinance prohibiting playing at any game of name granting right to erect portico in front

chance for money or its equivalent. City of building on avenue was sold, although

Seattle v. MacDonald \[Vwash\]. 91 P 852. Or-

building department acquessed in it. Id.

distance prescribing the hindering, obstruct-

The fact that municipality has permitted for long

org opposing any officer in the lawful

a consideration the construction and use of

discharge of his official duty sustained,

an unlawful obstruction on a street does not

though the offense described is substantially deprive it of power to have it removed.

in the terms of a state statute stating to offenses

fenses against public Justice. Town of

407.

Deware v. Cool \[VW.\]. 65 EE 15. Contra.

11. A private corporation having acquired

a right in city streets and having made ex-

13. Ordinance providing that all acts pun-

expenditures on the strength of the grant

kishable under state laws, etc. shall be pun-

tended by the city, this right cannot be taken

label as offenses against the town, expressly

away in an arbitrary manner and without

includes refines of every grade, as well as

reasonable cause. City of Platinum v. NEr-

undershaemens, and is for this reason vold

braska TeI. Co. \[Neb\]. 114 NW 588.

13a. People v. Metz, 119 App. Div. 271, 104

of municipalities to miscellaneous. Town of

NYS 645.

13. See S C. L. 1072. Procedure on sum-

may trials, see Inditment and Prosection,

scribute for motor vehicles ex-

10 C. L. 57,

13. See S C. L. 1072, n. 71. Of'Hare v. Chl-

cago, 125 IT. App. 71; City of Seattle v. Mac-

Magistrate's Ct., 121 Ayp. Div. 645, 106 NYS

Donald \[Vwash\]. 91 P 852. When a license

13a. Ias imposed by sn ordinance upon mer-

chants, penalties for the violation of the

ordinance may be imposed, not only upon the

merchants, but also upon all agents and em-

United States v. Macraflan, 28 App. D. C.

ploves of such merchants who transate

unlicensed business and want of knowledge

that the tax had not been paid Is no defense

to such agent or employee. City of Emporia

declare what shall constitute vagrancy.

N. Becker \[Kan\]. 90 P 798.

14. See S C. L. 1072, n. 71. City of St. Louis

v. De Lassus, 206 M 578, 104 SWY 12. But

whenever the penalty in a city ordinance is

upon the common council the right to pro-

in excess of or less than the penalty pres-

video that the amount of the penalty for the

cirbel by the state law, the ordinance is

violation of an ordinance, with certain lim-

19 Tex. Ct. Rep. 232, 103 SWY 390. Ordinance

magazine it unlawful to treensaps upon rall-

Law1 65 A 84. Smoke ordinance giving

road tracks, etc., held not violutes of the

the magistrate discretion in fixing the pen-

constitutional provision that no municipal or

disneve shall disve the minimum and maximum

thereof at less than that imposed by statute

valid. Id.

for the same offense, as no statute described

the offense mentioned in the ordinance

the council power to provide for the pun-

(Tuggles v. Com, 20 Ky, L. R. 1071, 100 SWY 225), nor is such provision applicable to an

Nichols v. Salem \[Or.\] 89 P 804. Town held

ordinance providing a penalty for pediding

not to have power to fix a penalty for carrying

without license, such offense not being

glass without proewring a

classeed with crimes and misdemeanors In-

license therefor, the state 10 Cur. Law. MUNICIPAL CORPORTATIONS SS 11. 903

jury does not apply to a violation of a municipal ordinance.\[21\] In a prosecution for the violation of an ordinance, which does not embrace any offense made criminal by the laws of the state, the same degree of proof is not required as in criminal prosecutions,\[22\] and in a proceeding to recover a fine imposed for a breach of the peace, the ordinance must be strictly construed.\[23\] Equity will not interfere to enjoin the prosecution of a violation of a city ordinance,\[24\] but the validity of an ordinance may be drawn in question by motion to quash the summons.\[25\] Equity will take jurisdiction to enjoin a threatened violation of a municipal ordinance when such violation contemplates an act which is a nuisance in law.\[26\]

SS 11. \_Property and public places.\[27\]--\_The law upon this subject is fully treated elsewhere,\[28\] only a few cases based on the peculiar status of municipalities being here treated. It is competent for the state when creating municipal governments to retain to itself some control over the state's property situated within the territory of the municipality.\[29\] It may exercise this control directly or through the medium of other selected and more suitable instrumentalities.\[30\] Unless otherwise provided, a municipality may acquire property in any lawful manner, as by gift,\[31\] and hold land or other property,\[32\] and may sell the public property\[33\] or devote it to any use consistent with its position as trustee for the benefit of its inhabitants,\[34\] but it cannot sanction a use inconsistent with the public use\[35\] or amounting to a public nuisance.\[36\] However, property, dedicated to public use, is not owned by the city, but held by it in a misdemeanor and fixing the penalty there:

- \[noitemsep,nolistsep\]
  904 MUNICIPAL CORPORATIONS SS 12.10 Cur. Law.

trust to be administered for the use to which it was destined." Property bought by a municipality for a public purpose is corporate property held in trust for all the citizens," 38 and the corporation is bound to administer such property exactly as if it were the representative of a private individual or a corporation." 39 A court of equity will enjoin a corporation from deeding corporate property collusively and fraudulently for less than its value." 40 And such a bill may be maintained by the taxpayers of the municipality where the thing to be done by the city council would affect them financially as taxpayers." 41 Though a city holds land in special trust for street purposes, it may be freed therefrom by statute." 42 A conveyance by the municipality may be ratified by the legislature." 43 Streets being held and controlled by a municipality for the use of the general public, it may not grant an exclusive use of them for private purposes." 44 The general power over streets, which is usually possessed by cities must be considered with reference to, and is limited by, the purposes and uses of public ways." 45 The statute of limitations as to adverse possession does not run against a municipal corporation in respect to public property," 46 nor is the doctrine of equitable estoppel applicable to municipalities in respect to such rights." 47 A court of equity may restrain the illegal use of a street where such use if permitted would constitute a purpresture or public nuisance." 48 A municipality may maintain an action of ejectment against a person unlawfully encroaching upon a public highway under its control." 49 .

SS 12. _Contracts._" 50--Contracts by public governmental bodies are fully treated in a separate article." 61 Practically the only questions arising upon such contracts which are peculiar to municipalities and proper to be treated here are those relating to unauthorized contracts and the implications and estoppels resulting therefrom. It results necessarily from the limited and delegated character of municipal authorization.

**37 Without action by the sovereign, it is | Montery, City of Monterey v. Jacks, 203 U. hors de commerce, Inaltenable, not subject | S. 360, 61 Law. Ed. 220.**

to change, even as to its use. Board of | 44 No power to grant to railroad the ex-liquidation City Delot v. New Orleans, | clusive right to use a public street. Piltst-118 La. 712, 43 S 307. At time of institution | 49, | R. Co., V. Warrum | 49, | R2 | R3 | R4 | R5 | R6 | R7 | R8 | R9 | R10 | R11 | R12 | R13 | R14 | R15 | R16 | R17 | R18 | R19 | R20 | R21 | R22 | R23 | R24 | R25 | R26 | R27 | R28 | R29 | R30 | R31 | R32 | R33 | R34 | R35 | R36 | R37 | R38 | R39 | R40 | R41 | R42 | R43 | R44 | R45 | R46 | R47 | R48 | R49 | R50 | R51 | R52 | R53 | R54 | R55 | R56 | R57 | R58 | R59 | R60 | R61 | R62 | R63 | R64 | R65 | R66 | R67 | R68 | R69 | R70 | R71 | R72 | R73 | R74 | R75 | R76 | R77 | R78 | R79 | R80 | R71 | R73 | R74 | R76 | R78 | R79 | R81 | R82 | R83 | R84 | R85 | R86 | R87 | R88 | R89 | R80 | R81 | R84 | R85 | R86 | R87 | R88 | R89 | R82 | R86 | R87 | R88 | R89 | R80 | R82 | R89 | R83 | R84 | R85 | R86 | R87 | R88 | R89 | R89 | R80 | R81 | R82 | R83 | R84 | R85 | R86 | R87 | R88 | R88 | R89 | R89 | R80 | R89 | R81 | R82 | R83 | R84 | R85 | R86 | R87 | R88 | R88 | R89 | R89 | R80 | R89 | R81 | R82 | R84 | R85 | R86 | R87 | R88 | R88 | R89 | R89 | R80 | R89 | R81 | R82 | R83 | R84 | R85 | R86 | R87 | R88 | R88 | R89 | R89 | R89 | R80 | R 10 Cur. Law. MUNICIPAL CORPORATIONS SS 12. 905

ty that a municipality can contract only to the extent and in the manner expressly authorized, \[92\] and contracts for an unauthorized purpose \[88\] or not executed in the prescribed manner \[54\] are invalid. \[86\] Where benefits have been received under an invalid contract, it has been held, on principles of implied contract or estoppel, \[86\] that the municipality is liable, but on the other hand it has been held that neither implied contract \[57\] nor estoppel will arise. \[88\] A city may recover under an implied contract. \[59\]

**SA.** Where the agents of a city are re- \[ might require during a prescribed period of \] strictly by law as to the method of contract- \[ years., exceeds the authority granted and is \], the city cannot be bound otherwise than \[ invalid. Simson v. Parker, 190 N. Y. 19, 82 by a compliance with the condition pre- \[NE 732. A contract of sale by a member of \] for the exercise of the power. Roem- \[ a town council to the town is contrary to \], \[NE 68, 111 NW 25. Failure of city to \], \[NE 68, 111 NW 25. Failure of city to \], the third class for repairing a street can be \[ low statutory procedure in making contract \], \[NE 68, 111 NW 25. Failure of city to \], \[NE 68, 111 NW 25.

906 MUNICIPAL CORPORTATIONS SS 13. 10 Cur. Law. Persons dealing with a municipal corporation are presumed to know the extent of its powers." In the exercise of legislative powers a city council may make no grant or contract which will bind the municipality beyond its term of office, since they may not lawfully circumscribe the powers of their successors," but in the exercise of business powers so called the municipality and its officers are controlled by no such rule, and they may lawfully exercise these powers in the same way, and in their exercise the city will be governed by the same rules which control an individual or private corporation under like circumstances." A municipality acting through its legislative body has no power to enter into contracts which curtail or prohibit an exercise of its legislative or administrative authority." Power of municipality to contract with reference to certain subject-matters may be limited by statute," and municipal officers are usually prohibited from being interested in contracts made on behalf of the city by boards of which they are members." SS 13. _Fiscal affairs and management."_--Municipal bonds are treated in a separate topic," and such questions as the consent of electors.to an indebtedness, which arise usually with special reference to bonded indebtedness, will be found more fully treated there. As a safeguard against official improvidence, it is frequently provided by charter that no indebtedness shall be incurred unless provision for its payment be then made," or unless there is sufficient money unappropriated to meet the proposed appropriation," or until an appropriation has been made for unpaid liabilities," or to complete its contract with a city for the construction of a bridge, held that the city 68. McGillivery v. Lewiston, 13 Idaho, 388, 90 upon completing the work was entitled to 79.84. But where the city was not prohibited recover the cost thereof from the railway company. North Bradcock Borough v. Moo-for park purposes out of its general funds, nongashela St. R. Co., 217, 27, 68 & 152. 60. Compensation for services beyond contractual powers not recoverable. Burns v., 105 years after which to such payment, notwithstanding-New York, 105 years 605. 61. See ante, SS 8A. 62. A city in contracting for the lease of a boat landing exercises a merely private right, and its liability under the contract is determined as that of any citizen would be. Commercial Vibart Corp. v. Boston, 194 Mass. 460, 80 NE 645. Contract between city and water company for supply of water. Omha Water Co. v. Omha \[C. C. A.\] 156 F 922. 63. Contract giving up control of park. State v. Minneapolis Park Com'rs, 100 Minn. 150, 110 NW 1121. 64. Hours of labor constituting day's work. Burns v. New York, 105 NYS 605. 65. Sale by member of board of aldermen to city held to violate state Const. SS 109, Novabee County Hardware Co. v. Macon \[Miss.\] 43 S 304. The secretary of a city board of health is a city officer within the meaning of 2 Burns' Ann. St. 180, SS 839, and cannot recover on a contract with the city to care for smallbox patients. City of Greenfield v. Black \[Ind. App.\] SS 2NE 797. Evidence held not to establish the existence of such an emergency as to justify the employment of the secretary of the board of health in violation of the statute. Id. Where a member of a borough council was Indirectly interested in furnishing property to the borough, resolutions providing for the purchase and payment theftor will be sent aside as contrary to the policy and intent of the act March 22, 1901 (P. L. p. 393.) Stur. v. Elmer \[N. J. Law\] 67 A 1059. 66. See 8 C. L. 1076. See, also, Abbot, Mun. Corp. SS 410-405. 67. See, in preparation. 68. See 8 C. L. 1076. See, in preparation. 69. See 8 C. L. 1076. See, in preparation. 70. See 8 C. L. 1076. See, in preparation. 71. See 8 C. L. 1076. See, in preparation. 72. See 8 C. L. 1076. See, in preparation. 73. See 8 C. L. 1077. See, in preparation. 74. See 8 C. L. 1077. See, in preparation. 75. See 8 C. L. 1077. See, in preparation. 76. See 8 C. L. 1077. See, in preparation. 77. See 8 C. L. 1077. See, in preparation. 78. See 8 C. L. 1077. See, in preparation. 79. See 8 C. L. 1077. See, in preparation. 70. See 8 C. L. 1077. See, in preparation. 71. See 8 C. L. 1077. See, in preparation. 72. See 8 C. L. 1077. See, in preparation. 73. See 8 C. L. 1077. See, in preparation. 74. See 8 C. L. 1077. See, in preparation. 75. See 8 C. L. 1077. See, in preparation. 76. See 8 C. L. 1077. See, in preparation. 77. See 8 C. L. 1077. See, in preparation. 78. See 8 C. L. 1077. See, in preparation. 79. See 9. See 9. See 10. See, to an amount exceeding the current revenue,\[11\] and to the same end is a common provision that no extraordinary expense shall be incurred unless authorized by popular vote.\[12\] And in some instances statutes provide for the discharge of particular obligations by payment out of a prescribed fund,\[13\] and such modes of discharging an obligation by a municipality must be pursued, a failure to provide the prescribed fund being a condition precedent to suit.\[14\] Proceedings for an examination into fiscal affairs are sometimes provided.\[15\]

_Funds and appropriations.\[25\]_ **c. L. 1978**\_-Public funds can be devoted only to public purposes.\[18\] and must be expended and accounted for according to law,\[17\] and money borrowed\[18\] or appropriated for a specific purpose cannot lawfully be used for\*\*

made on a resolution appropriating money **rule to show cause or other proceedings to**

**where there is sufficient money unappropri-**

**determine the contested facts, held that there**

**act to meet such appropriation, and the**

**was no error in dismissing the latter petition**

**comptroller may be compiled by mandamus**

**and refusing to vacate the order made upon**

**to countersign such report. State v. Bechther**

**the first petition. Id. The constitutionality**

\*\*of the above-re-re-re-redirected act having been chal-

**76. See S. C. L. 1976, n. 19.**

**legend in the supreme court upon a specific**

**71. See S. C. L. 1976, n. 20. Such revenues**

\*\*include collectible delinquent taxes, of prev-

**tive to support the claim, and that the other**

**toys years, and includes not only the levy**

**actually made for any year, but such as**

**could have been legally made. Overall v.**

**New York charter, Laws 1901, pp. 31, 536, c.**

**Madisonville, 31 Ky. L. R. 278, 102 SV 278.**

**31. How to be derived during ensuing year**

**from fines and license fees are too uncertain and indefinite to be considered in**

**the same author of debt that may be incurred. Id. Kentucky Const., & 157, limiting municipal**

**mal indebtedness to its current revenues**

\*\*-vestigations by board of aldermen and jus-

**less two-thirds of its electore consent**

**to**
**greater indebtedness, limits the power of the**

**municiipality only, and not the power of the**

\*\*general assembly in adjusting taxation, Cov-
**ington & C. Bridge Co. v. Davidson, 31 Ky. L. R. 426, 102 SV 339.**

**72. Under Santa Barbara charter**

**propostions to incur bonded indebtedness must be submitted to vote in accordance with the**

**general election laws of the state. City of**

**Santa Barbara v. Davis \[Cal. App.\] 92 F 308. North Carolina Const., art. 7, & 7, prohibits**

**municiipal corporations from contracting**

**debts except for the necessary expenses**

**thereof unless by a vote of a majority of the**

**qualified voters. Wharton v. Greensboro \[N. C.\] 59 SE 1043.**

**73. Davidson v. White Plains, 105 NYS 803.**

**74. Under Laws 1986, p. 1018, c. 769, providing for payment of**

**connection with the construction and operation of city water supply plant from particular**

**that, disburned by special department, such mode of discharge must be pursued, and city can only be**

**of duty to provide fund. Davidson v. White Plains, 105 NYS 803.**

**75. Under the New Jersey Act (P. L. 1879, as amended**

**and municipal affairs, when a judge of the**

\*\*supreme court has made an order for summary investigation upon a petition and affirmative

**davit conferring jurisdiction on him to make**

\*\*such order, he may be required to instigtigtig

**an inquiry as to the facts on which his act has been founded, at least to the extent of discovering whether he has been imposed upon. Borough of Park Ridge v. Reynolds**

**\[N. J. Err. & App.\] 65 A 980. Where the municipality filed a subsequent petition for the**

**vacation of such order and supported it by counter affairs, yet did not apply for a**

**to an amount exceeding the current revenue,\[11\] and to the same end is a common provision that no extraordinary expense shall be incurred unless authorized by popular vote.\[12\] And in some instances statutes provide for the discharge of particular obligations by payment out of a prescribed fund,\[13\] and such modes of discharging an obligation by a municipality must be pursued, a failure to provide the prescribed fund being a condition precedent to suit.\[14\] Proceedings for an examination into fiscal affairs are sometimes provided.\[15\]**

**Funds and appropriations.\[25\]**

**of the**
**following**
**public purposes.\[18\] and must be expended and accounted for according to law,\[17\] and money borrowed\[18\] or appropriated for a specific purpose cannot lawfully be used for**

\*\*made on a resolution appropriating money **rule to show cause or other proceedings to**

**where there is sufficient money unappropri-**

**determine the contested facts, held that there**

**act to meet such appropriation, and the**

**was no error in dismissing the latter petition**

**comptroller may be compiled by mandamus**

**and refusing to vacate the order made upon**

\*\*to countersign such any other purpose," but where it is not specified that a fund given to a city shall be used for any particular purpose, the city may, in its discretion, use it for any lawful purpose." In the absence of express prohibition, a city may by an order, instead of by an ordinance, bill, or resolution, appropriate public funds for a public use." Under the present provisions of the San Francisco freeholders' charter, the officers of the municipality must retain the public money in their custody and cannot deposit in banks." Equity will interfere at the suit of a taxpayer to restrain the misapplication of funds," and a resident taxpayer of a municipality may maintain an action against its officers who have paid out its funds for an unlawful or unauthorized purpose to recover such funds for the benefit of the corporation where its proper law officer neglects and refuses to prosecute such action," but in Massachusetts mandamus does not lie to prevent an illegal expenditure of public money."

_Liens_ to secure moneys due in municipality usually arise only in case of taxes " or assessments for improvements," but are occasionally extended to water rates and the like."

_Warrants._\[85e & C. L. 1077\]-- Municipal warrants possess none of the qualities of commercial paper." A warrant, issued by the proper city authorities in consideration of a valid indebtedness against it, is a written acknowledgement of such indebtedness and promise to pay it, and arrests the running of the statute of limitations."

Warrants issued in consideration of demands which are valid obligations of a city, payable out of its general funds, are not invalidated by a recital not contemplated by statute that they should be payable of special funds." It is sometimes provided that no warrant shall be drawn upon the treasurer of a city unless there is an unexpanded balance in the fund upon which the warrant is drawn," and a judgment creditor of a city may refuse a warrant payable out of a fund not in existence."

\_Limitation of indebtedness.\_See & C. L. 1077 -- Almost without exception, municipal

79. Wolf Chemical Co. v. Philadelphia, 217

capilty and not availling himself of an op-Pa. 215, 66 A 344.

portunity to appeal from such allowance is

80. Firemen's Rellef Ass'n v. Scranton, 217

not entitled to maintain an equitable action

Pa. 585, 66 A 1103.

is. Appropriations for refection of public

allowance. Id.

hall. Wheelock v. Lowell \[Mass.\] 81 NE 977.

82. Rothschild v. Bantel \[Canal.\] 91 P 803.

unite, the only remedy is by petition to the

83. A corporation which is a resident and

supreme judicial court or the superior court,

a taxpayer may maintain a taxpayer's bill

under Rev. Laws, c. 25, & 100. Finlay v.

to restrain the misapplication of funds,

Boston \[Mass.\] 82 NE 85.

though they were raised by a loan authorized

ed by the electors of the city and not by the

taxpayers. Wolf Chemical Co. v. Philadelphia, 217 Pa. 215, 66 A 344. Taxpayers seeking to restrain disuvement of public money

under a void contract are not setapped because they did not begin their action until

the completion of the work done under the contract. Cawker v. Milwaukee \[Vris.\] 113

185.

NWP 417. A bill by taxpayer will lie to

enjoin municipal authorities from misappropriating municipal funds. Taxpayers are

equitable owners of funds. Litz v. West Hammond, 230 III. 310, 82 NE 634. An authorized expenditure of municipal funds may

be restrained though warrants have been issued. Under Hurd's Rev. St. 1905, c. 24, & 91, appropriations not provided for In the

annual appropriation will be restrained. Id.

84. Cathers v. Mooreres \[Neb.\] 113 NV 119,

rvg. former opinion \[Neb.\] 110 NW 688. But

to entitle a taxpayer to maintain such action,

it must appear that the municipality could

have maintained the action in the first instance. Id. A taxpayer having full knowl-

edge of the allowance of a claim by a municipal

85. C. L. 1077 -- Almost without exception, municipal

01. Wolf Chemical Co. v. Philadelphia, 217

capilty and not availling himself of an op-Pa. 215, 66 A 344.

portunity to appeal from such allowance is

80. Firemen's Rellef Ass'n v. Scranton, 217

not entitled to maintain an equitable action

Pa. 585, 66 A 1103.

to recover the money disuversed upon such

allowance. Id.

hall. Wheelock v. Lowell \[Mass.\] 81 NE 977.

83. Where ten or more taxable inhabitants

01. A corporation which is a resident and

supreme judicial court or the superior court,

a taxpayer may maintain a taxpayer's bill

under Rev. Laws, c. 25, & 100. Finlay v.

to restrain the misapplication of funds,

Boston \[Mass.\] 82 NE 85.

though they were raised by a loan authorized

85. See Taxes, 8 C. L. 2058.

01. See Public Works and Improvements,

01. C. L. 1504.

01. Mullenipal lines have no priority over

mergages palities are prohibited from incurring indebtedness above a certain sum usually fixed at a percentage of the assessed valuation.94 But it is sometimes provided that the general limit may be-extended for certain purposes.95 The determination of what are debts depends on the wording of the particular limitation.96

SS 14. _Torts and crimes.97--A_ municipal corporation exercises functions of two classes, private and governmental.98 In respect to matters of the former class, it is liable for the negligent acts of its officers and employees in the due course of duty to the same extent as a private corporation.99 In the exercise of its governmental functions, the municipality possesses the attributes of sovereignty and is not liable in tort in the absence of statute imposing such liability.1 A city directing the depression of

94. Cunningham v. Cleveland \[C. C. A.\] 152

Vallely v. Grand Forks Park Com'rs \[N. D.\] F 907; Reed v. Cedar Rapids \[Iowa113 NW 111 NW 615, Street improvements, a portion of 773; Eau Claire Water Co. v. Eau Claire

of the cost of which is to be defrayed by \[Vis.\] 113 NW 458. The general statutes of

special assessment on abutting property, will

Minnesota limiting the indebtedness of mu-

not create an indebtedness within the mean-

nicipal corporations to five per cent of the

ing of such limitation, Corey v. Ft. Dodge,

assessed valuation of taxable property do not

133 Iowa, 666, 111 NW 6, Bonds issued by an

apply to the city of Vwasca, being superseded

independent school deficit are not to be

by the charter limiting the indebtedness to

computed as debts of the city in ascertaining

ten per cent of the assessed valuation. Amer-

whether the debt limit has been exceeded.

lean Elec, Co. v. Waseeca, 102 Minn. 329, 113 Vallelliy v. Grand Forks Park Com'rs \[N. D.\] NW 899. A city operating under a special

111 NW 615.

charter is not affected by Mississippi Ann.

97. See S. C. L. 1078. See, also, Abbott,

Code 1892, $ 3014, limiting the amount of

John. Corp. 88 050-1068.

bonds a city may issue. Love v. Holmes

98. Evans v. Krankkee, 231 123, 83 NB
    \[Miss.\] 44 $ 836, Taxpayers held precluded

by laches from enjoining the city from paying an indebtedness created by the issuance

89 P 714.

of bonds in excess of the constitutional limit.

Schnell v. Rock Island, 232 111. 89, 83 NE 462.

90. Under the Montana constitution and

status a city can only avail itself of the

privilege of the extension when the financial

condition of the city requires a resort to it,

and cannot arbitrarily declare a debt to be

in the extended limit where the city is not

indebted to the original limit. Butler v. An

drug, 35 Mont. 576, 90 P 785.

96. Heid no part of city indebtedness: City

bonds payable out of the revenue of the wa-

ter system do not constitute a part of the

general indebtedness of the city within the

meaning of such limitation. Dean v. Walla

Vwala \[Vwala\]. 92 P 895. City bonds issued

for the purchase of waterworks and pay-

able out of the general fund cannot be con-

sidered as a part of the indebtedness for

general municipal purposes, but are a portion of the additional indebtedness allowed

for water, light and server purposes. Id.

Where a city purchased waterworks and

agreed to pay therefor a certain sum se-

v. Salt Lake City \[Utah\] 92 P 670. City

cured by "revenues arising from water serv-

lobe to private consumers," such agreement

did not create a debt against the city with.

in the constitutional limitation. State v.

Neosho, 203 Mo. 40, 101 SW 99. Bonds issued

to fund a floating debt contracted for neces-

sary expenses of city government are not

lasued for a special purpose within the mean-

ing of North Carolina Revised 1905, $ 2977,

prohibiting a city from contracting any debt,

etc, for any special purpose to an extent ex-

ceeding ten per cent of the assessed valua-

tion of the property therein. Wharton v.

Personboro \[N. C.\] 69 SE 1048. Debus com-

ructed for paving and a sever purposes are

not to be computed in ascertaining whether

in charge of an elevator therein. Wilcox v.

the limit has been reached, since there is

Rochester, 190 N. Y. 137, 82 NE 1119. Mu-

no general liability against city for such

Indebtedness except for a portion of the cost.

Ilee acting as governmental agency. Clay 910 MUNICIPAL CORPORATIONS SS 14. 10 Cur. Law. railroad tracks for the purpose of abolishing grade crossings acts in the performance of a duty imposed for the general welfare of its citizens and is not liable for injuries resulting therefrom.2 Under this rule a municipality is not liable for negligence connected with the operation of its fire * and police departments,\* nor the control of its parks,\* nor is liability incurred by a city for failure to pass or enforce ordinances,\* or for failure to furnish protection against mob violence,\* for failure to adopt a plan for drainage of surface water.\* Neither is a city liable for destruction of property by fire through failure to furnish adequate water supply.\* With respect to facilities designed for the use and benefit of the public, the municipality is not liable for any matter growing out of the plan of the work,\* but is liable for failure to keep such facilities in repair,\* or for negligence in the actual execution or construction of its public works,\* unless such matters are committed to an independent instrumentality.\* Where a municipality engages in private business without authority, it is man v. New York, 117 App. Div. 565, 102 NYS 661. 107 NYS 1088. 2. Lermann v. Milwaukee \[Wis.\] 113 NW 11. Failure to keep bridge in repair. City 65. Searching a river for dead body is a public service not for benefit of city alone, SE 836. Where by extension of corporate and hence city is not liable for trespans upon and injury to property by its police officers and persons acting under their direct-becomes the duty of the city to keep the tion while omaged in such search. Glimor v, Salt Lake City \[Utah\] 89 P 714. City not liable for destruction by its officers of build- or. Cvander v, Charlsen \[Vv. Va\] 59 g 732. Surface water diverted from its natulation of an ordinance. Wheeler v. Aberden \[Vwash.\] 92 P 135. 3. Furnishing water for fire protection is govevernmentation. Brown v. Salt Lake \[Neb.\] 114 NW 59. City not liable for City \[Utah\] 83 P 570. Negligence of driver of team connected with fire department Higgins v. Superior \[Vwis.\] 114 NW 490. City not liable for negligence of its servants in allowing fire engines or fire clectrons to get out of repair, thereby causing loss of property. Terrell v. Lonisible Water Co., 31 Ky. L. R. 1281, 105 SW 100. Child in fire engine house by invitation fell through un-guarded opening in floor. Brown v. District of Columbia, 29 App. D. C. 273. 4. Glimor v. Salt Lake City \[Utah\] 89 P 714. Municipality not liable for wrongful or negligent acts of its police officers or.

- if without invitation, express or implied. bosard of health in managing a cablooses and detaining therein persons afflicted with smallpox, resulting in the contraction of, v. New York, 190 N. Y. 397, 83 NE 51. Beard nearby. Evans v. Kankakee, 231 III. 223, 83 NE 223. 5. Clity not liable for injuries sustained by negligence of employees in operation of steam roller in park. Louisville Park Com'rs v. Prins \[Ky.\] 105 SW 948. 6. Abaatement of nuisance. City of Mansfield v. Bristor, 76 Ohio St. 270, 81 NE 631. 7. Acts held not to have constituted a riot so as to impose a liability upon a municipality for the destruction of property by mob violence, under the New York General Municipal Law, Laws 1892, p. 1740, c. 685, 821. Adamson v. New York, 188 N. Y. 255, 80 NE 937. 8. Campbell v. Vanceburg, 80 Ky. L. R. 1340, 101 SW 343. 9. See 8 C. L. 1078, n. 59. 10. City not liable for failure to select the best possible route or adopt the best plan of construction in relocating a water main to permit the bulling of a rapid transit station if thoses selected were reasonably 10 Cur. Law. Municipal corporations SS 14. 911

not liable for injuries caused by its acts.14 With respect to street lighting 18 and the construction and operation of sewer systems,16 the cases are not in. unison. A municipality in maintaining and repairing a highway acts as agent of the state, and is not responsible for injuries to persons or property 17 in the absence of a statute creating liability. It has been held that an abutting owner claiming to be injured must resort to an action at law.18 Dangerous places in grounds or ways for public use must be guarded with reasonable prudence.19 To charge a municipality with liability for the defective condition of any of its public places or facilities, it must have

14 Under Hurd's Rev. St. 1905, c. 24, SS 1, city was not liable. Judas v. New York, a city has no power to maintain a hospital 105 NYS 96, for revenue and is not liable for negligence in so doing. Tollefson y. Ottawa, 228 Ill. 134, 81 NW 822, affs. 129 Ill. App. 133. City furnishing electricity for both public and private use without authority to do so not liable for injuries arising from defective wires. Village of Palestine v. Sizer, 225 Ill. 6430, 89 NE 1346, affs. 128 III. App. 309.

15. A city owes no duty to a licensee on private property to keep in a safe condition wires located thereon and connected with the city lighting plant. Policeman injured by coming in contact with improperly insulated wire while on the roof of a building in the nighttime for the purpose of detecting persons violating the law, but without owner's knowledge or consent. City of Greenville v. Pitts (Tex.), 107 SW 50, 16. Labability imposed. Defective sewers, proving inadequate to carry off waters occasioned by ordinary storms. Karfi v. New York, 119 App. Div. 70, 102 NYS 1036.

Substituting for natural drainage a sewer 10, 101 SW 31. City liable for permitting insuffleent to carry off ordinary rainfalls, lending materials to remain in street un-thereby causing overflow onto abutting 10, 11 SW 31. City 11.0
had actual or constructive notice thereof,\[20\] the question of constructive notice being for the jury.\[21\] A municipal corporation is liable for the acts of its officers, servants, or agents, done within the scope of their authority.\[22\] A city is not liable for the acts of an independent contractor engaged in the construction of a public work\[23\] unless the work is intrinsically dangerous or liable to create a nuisance.\[24\] A municipality is not liable when the proximate cause of the injury was the intervening and wrongful act of a stranger,\[25\] and if it be held liable for damages sustained in consequence of the unsafe condition of its streets, there can be a recovery over by the municipality against the person by whose wrongful act or omission the street was rendered unsafe.\[20\]

## 15 Claims and demands.\[27\]

Stattutes usually require that notice be given to municipalities within a limited time of demands for injuries received by reason of defective streets, sidewalks, or otherwise.\[28\] The provisions of these statutes ordinarily do not extend to claims for injuries to reality,\[29\] but do apply to claims arising under contract.\[30\] These notices must be sufficient in point of form\[31\] and contents\[32\]

25. Child injured on drawbridge through act of stranger. Widger v. Philadelphia, 217 Pa. 161, 66 A 249.

01. Trap door in sidewalk allowed to re-main in unsafe condition by abutting owner, resulting in injury to pedestrian. City of Seattle v. Puget Sound Imp. Co. \[Wash.\] 91 P 255.

01. See 8 C. L. 1080. See, also, Abbott, Munn. Corp. 83 484-495.

01. See Highways and Streets, 9 C. L. 1588, for tunings under statutes relating wholly to streets. City of Grand Forks v. Allman \[C. C. A.\] 163 F 832. Provisions in Nigara \[Falls city charter providing that claims against a city shall be presented within thirty days is not a statute of limitations, but a condition precedent, and compliance with it must be alleged and proved. Winter V. Niagara Falls, 190 N. Y. 198, 82 NE 1101.

01. See Highways and Streets, 9 C. L. 1588, for tunings under statutes relating wholly to streets. City of Grand Forks v. Allman \[C. C. A.\] 163 F 832. Provisions in Nigara \[Falls city charter providing that claims against a city shall be presented within thirty days is not a statute of limitations, but a condition precedent, and compliance with it must be alleged and proved. Winter V. Niagara Falls, 190 N. Y. 198, 82 NE 1101.

01. Repetition for mandamus held to show that petitioner had a cause of action against the city and that she had served the notice pre-wrug \[C. A.\] 90 P 855. Todd v. Crete \[Neb.\] 113 NW 172. The doctrine of respondent support applies to municipal corporations. Higbiev. New York Board of Education, 122 App. Div. 483, 107 NYS 168. A municipality is not liable for the tortlous act of a public official where the relation of master and servant does not exist between them. Johnson v. Somerville \[Mass.\] 81 NE 268. City liable for injuries sustained by running into rope stretched across street by order of the mayor. Shinnick v. Marshall-town \[Iowa\] 114 NW 542.

01. Property owners engaged in work on a city street in front of their properties in obedience to the requirements of an ordin-name are not independent contractors over whom the municipal authorities have no control. Meyers v. Philadelphia, 217 Pa. 159, 66 A 251. Where work of resetting curbing was performed by property owner under an ordinance, the city is liable for injuries caused by allowing rejected curbstones to remain in the street after completion of work if it had notice of such obstruction.

01. See 8 C. L. 1080, n. 80. Obstruction of street by contractor incident to the repair of a seaweed held to constitute a nuisance, and city held liable for injuries resulting therefrom. Warden v. New York, 108 NYS 305.

10 Cur. Law. Municipal corporations $\\lx@sectionsign$ 15. 913

and presented to the proper officials \[33\] within the prescribed time,\[34\] but defects therein may be waived by the city,\[35\] and a substantial compliance with statute requiring notice is sufficient.\[38\] Notice by a wife may support an action by the husband.\[37\] In the absence of prohibitive enactments, claims against municipalities are the proper 914 MUNICIPAL CORPARATIONS SS 16. 10 Cur. Law. subject of ass'ignment.\[38\] Injunction lies at the instance of a taxpayer to prevent the payment of an illegal claim.\[39\] Charters sometimes provide that claims which have been rejected by the city or have not been presented within a prescribed time shall not be allowed except through the order of a court of competent jurisdiction.\[40\] An appeal may be taken from the action of a council in disallowing a claim for personal injuries.\[41\]

## 16 Actions by and against.\[42\]

In the absence of statutory limitation, municipal corporations in exercising their general corporate power may sue and be used.\[43\] A tax payer may, under a statute permitting him to sue to recover money due the municipality, apply to a court of equity for other and further relief.\[44\] The corporate name should be used.\[45\] The time within which actions for negligence against a city may be brought is regulated by statute,\[46\] and a statutory provision that no action for negligence is maintainable against a city unless begun within one year after the actual of the right of action does not bar the right of action, of a minor.\[47\] A city's right to enforce a tax lien may be lost by inexcusable laches.\[48\] The rule that the burden is upon the defendant to establish the defense that the loss was caused by the act of God has no application to an action against a city for negligence.\[49\] In the absence of statutory inhibition an execution may issue against a city, and while on the ground of public policy it cannot be levied on any of the general revenues of the city either before or after their collection, or upon any property real or personal reasonably

## 17 See 8 C. L. 1081, n. 92

W wrongful conversion and embezzlement of

Comtra: Assignment to bank of which

public money. Cathers v. Moores \[Neb.\]

mayor is stockholder and president of a

110 NW 688. Under 81 1, 27, Code 1886.

claim of contractor against city for work

personal representative may maintain action which he has, not performed for city and

against municipality to recover for death

which must be inspected and accepted for

resulting from an injury directly attribuable by a board of which the mayor is chair:

table to defect in street. City of Aninston v.

man held contrary to public policy and void

Ivey \[Ala.\] 44 S 48. Under the North Da-

both at common law and under the statute.

kota statuate a fire company may recover

People's Sav. Bank v. Big-Rock Stone &

from a city its proportionate share of the

Const. Co. \[Ark.\] 99 SW SW 836.

premiums received from fire policies issued

39. Injunction granted to restrain payment

on property in the city. Under Rev. Codes

of salary claim of an offer who was not duly

1995, 8 268, plainst must show affirmatively

appointed. Berestford v. Donaldson, 54 Misc.

that it had the management of at least one

138, 108 NYS 600.

40. The character of the city of Omana

which enacts that the mayor and council

shall not allow such claims is a limitation

upon the power and jurisdiction of the body

itself, and a claim so situated is extinguished

od so far as the judicial powers of the mayor

and council are concerned. Redell v. Omana

\[Neb.\] 113 NW 1054.

41. In case of such appeal to the circuit

court the charter of the city of Appleton

requires the execution of a bond for costs

to be approved by the mayor and clerk, and

a bond approved by the clerk alone gives the

circuit court no jurisdiction. Sharp v. Appleton \[Vis.\] 113 NW 1090.

42. See 8 C. L. 1081. See, also, Abbott,

Mun. Corp. 88 1107-1168.

43. Clarke v. School Dist. No. 16 \[Ark.\]

106 SWY 677; Davidson v. White,Plains, 105

NYS 893. The water and light board of the city of Waseca is, under the provisions of the

charter, clothed with the exclusive control

and management of the water and light

plant, and may sue and be sued on contracts

relating thereto. American Ellec. Co. v. Vaseca, 103 Minn. 329, 113 NW 899. But

unofficial citizens cannot maintain an action

on the behalf and in the name of the city.

Action by taxpayer suffering no particular injury to recover of city officials for their

100.

10 Cur. Law. NAMES, SIGNATURES AND SEALS SS 1. 915 necessary for governmental purposes, still, if the city is possessed of any property held for pecuniary benefit, such property may be taken.\[50\] Mandamus lies to compel levy of taxes to satisfy judgment,\[51\] or to pay a warrant,\[52\] or to compel the payment by city officials only of money collected and held for the purpose of paying a judgment against the city.\[53\] Municipal Counts; Murdee; Mutual Accounts; Mutual Insurance, see latest topical index.

NAMES, SIGNATURES, AND SEALS.

NAMES, 915. # 2. SIGNATURES, 917. # 2. SIGNATURES, 916. # 3. SIGNATURES, 917. # 4. _The scope of this topic_ is noted below.\[1\] # 5. 1. _Names.\[56\]_ & C. L. 1082--A middle name or initial is deemed no part of the name,\[2\] hence its omission, or the insertion of a wrong one; will not ordinarily create a misnomer,\[3\] but mistake in the first name * or a transposition of initials may be fatal, especially in special statutory proceedings.\[8\] Where a person is known by more than one name, proceedings may be instituted against him by either or the one by which he is generally known.\[6\] Wrong spelling or improper contraction of a name in a deed or other contract will not vitiate if identity of person is sufficiently shown.\[7\]

- 50. Property owned and held by a mu- nation in indictmente of the accused and the nielual corporation other than for govern- person injured is excluded (see Indictment mental purposes may be levied upon for the payment of debts. Southern R.C. Ov. Harts- cases illustrating the rule of idem sonans are retained.
- While indebted paid the purchase price of lands conveyed to a railroad, intending the same as a gift or donation, it is the same as if the municipality held and owned the land with or to further government purposes, and such voluntary conveyance being fraudulent as to existing creditors of the municipal, such creditors may maintain a creditor's bill under Code 1896, 818. Id.
- SL City of San Antonio V. Routledge \[Tex., City., App.\] 19 Tex. Ct. Rep. 457, 102 SW 766.
- A wirt of mandamus requiring a city to levy taxes for municipal purposes up to the limit of its power to tax under the charter, and to apply the surplus remaining after paying
- a- current expenses chargeable thereon in payment of a judgment against it, is continuous in its operation and the order of the court may be modified from time to time to meet the experiences of the case. Cunningham v. Cleveland \[C. C. A\] 15 2P 976. If that the city of New Orleans could not be combined by mandamus to levy an additional tax in order to make good as failure to turn over to the police board the police tax levied and collected by it. State V. New Orleans, 149 La. 624, 44 S 312.
- SL. Right to enforce by mandamus levy of tax to pay warrants lost by nAMES. Duke v. Turner, 204 U. S. 623, 81 Law. Ed. 652.
- SL. Montpelier Sav. Bank & Trust C. Ov. Quinn, 149 Mich. 701, 14 Det. Leg. N. 651, 113 NV 808.
- I. It excludes trade names (see Trade Marks and Trade Names, 8 C. L. 2137), use of name as incident to good will (see Good Wills, 9 C. L. 1539), and while retaining a few general propositions as to business names, excludes generally corporate (see (Corporations, 9 C. L. 736) and firm, (see Partnership, 8 C. L. 1268) names. The design-
- 50. Property owned and held by a mu- nation in indictmente of the accused and the nielual corporation other than for govern- person injured is excluded (see Indictment and Prosecution, 10 C. L. 57), though some payment of debts. Southern R.C. Ov. Harts- cases illustrating the rule of idem sonans are retained.
- Z. Illinois Cent. R. Co. v. Hasenwinkle, 232 In 224, 38 NE 815: Report v., Dutton \[Ind.\] 83 NE 863. Rule disregarding middle initial or name grew out of former custom having only one Christian name, and since the almost universal custom of having more than one such name, the rule has lost much of the reason on which it was based.
- Wicker v. Jenkins \[Tex., City., App.\] 108 SW 188.
- SL. City of San Antonio V. Routledge \[Tex., City., App.\] 19 Tex. Ct. Rep. 457, 102 SW 766.
- A. y. "W. for J. "W." W. for J. "W." W. in appeal recor. Ord. "H." B. a non-L. ondomination, notice by "H." B. a non-L. on-relation, held sufficient though record owner was Joseph "F." B., nonresident, and there was a Jacob "H." B. in township. Illinois Cent. R. Co. v. Hasenwinkle, 232 Ill. 224.
- S 3N 815. Designation of a defendant as they modified from time to time to meet (Heny T. Brown in notice of publication may be fatal where his real name is Henry. P. P. Brown. Howard v. Brown, 197 Mo. 36, 95 Nov 191. Dropping of middle initial does
  While a letter of the alphabet is not a name, the initial letter of the Christian name is so commonly used that it is to be regarded as an abbreviation of the name of the person intended.8 More identity of name will not after judgment authorize an appellate court to presume for the purpose of reversing the judgment that the officer who served the summons was a party to the suit.9 The words "et al" cannot stand in place of names required by law to be stated in a subpoena or writ of error.10 Whether words following the name of a party in a pleading are descriptio personis is to be determined from the averments of the pleading.11

\_Idem sonans.\_See s C. L. 1082_Absolute accuracy is not essential in the spelling of names in legal documents or proceedings.12

\_Business and corporate names.13--Letter and bill heads are not contemplated by a statue requiring corporations to print the word "incorporated" on advertising matter.14 Violation of a criminal statute against doing business under a partnership name where no actual partner is represented will not bar recovery for goods sold.15 The abbreviation "Co." is proper in the statement of corporate names.16

SS 2. \_Signatures._See s C. L. 1083_--No particular form of signature is required provided it is adopted as the signature of the person intended.17 A mark 18 or type-written signature,19 followed by initials,20 and in some cases the initials of official 10 Cur. Law. Navigable waters. 917

names,\[21\] may be sufficient. Sufixing a word of representation without more still leaves the name individual,\[32\] and words of agency may be overcome by evidence.\[38\] Absence of the name of any officer after the name of a corporation affixed as a signature will not always render the instrument invalid.\[24\]

S 3. \_Seals.\_Soc & C. L. 1083--At common law deeds must be sealed,\[25\] but not notes or indorsements.\[28\] An agent without authority under seal cannot bind his principal by contract under seal,\[27\] nor can the principal ratify by act less solemn than a writing under seal.\[28\] A seal imports consideration,\[29\] but it is provided by statute in some states that it shall be only presumptive evidence.\[30\] Courts do not take judicial notice of the seals of private corporations nor do such seals prove themselves,\[31\] but where it is shown that an instrument was signed for the corporation by its proper officer, the presumption is that it was duly executed and this presumption includes the authenticity of the seal used in its execution.\[32\] Unless otherwise provided by charter or statute, a corporation may bind itself without the use of its corporate seal in all cases in which individuals can bind themselves without using a seal.\[33\]

National Banks; Natural Gas; Naturalization, see latest topical index.

## 1 Navigable waters.

\[\]

- 1. What are Navigable, 918.
- 2. Relative, Public and Private Rights, 918.
- 3. Requilton and Control, 920.
- 4. Remedies for Injuries Relting to, 021.

The rights of riparian owners,\[34\] the ownership of subaqueous lands,\[35\] consuming uses of water,\[36\] and matters relating to navigation\[37\] and wharfage,\[38\] are elsewhere treated.

typewritten and followed by his initials written by himself. Deginger v. Martin \[Wash.\] 92 P 674. * 2. The initials of the official name of an officer taking an acknowledgment are sufficient, especially where his seal is affixed, N. P. for Notary Public, Williams v. Lobban, 206 Mo. 399, 104 SW 58. Addition of letters "T. C." to signature to tax execution "Nfficiently showed that official issued it as tax collector. Vickers v. Hawkins, 128 Ga. 794, 58 SE 44. * 22. "Trustee" after name of person suing. \[Moll v. Chicago Sanitary Dist., 131 Ill. App. 155. * 23. Evidence held to show that defendants were real parties in interest in contract for services and materials, though words. "for S. Trustee" were added to signature of one of defendants Le Grecl v. Solomon, 107 NYS 611. * 24. Signature of name of plaintiff bank to attachment bond without addition of name of officer who signed held smtement. Bridges v. First Nat. Bak T (Tex, City. App.) 20 Tex. Ct. Rep. 62, 105 SWV 1018. * 25. Where attesting clause of certified copy of deed declares that it is under seal of grantor and acknowledgment recites due execution, it is presumed original deed was sealed. Hubbard v. Swofford 3Bros. Dry Goods Co. (Mo.) 108 SWV 15. Seal attached to ded executed by agent under power is seal of grantor though latter's name is not written but only name of agent as "attorney for" grantor. Id. Where certified copy of dead acknowledged before a mayor recites

## 1 What are navigable

See 1. L. 1084.-A navigable stream is one that is subject to public use as a highway for purposes of commerce and travel. \[39\] That one may catch fish, \[40\] or row or pull a boat, \[41\] or that the tide ebbs and flows, \[42\] does not necessarily determine navigability. "Navigable waters of the United States" includes all waters capable of sustaining or being used for interstate or foreign commerce, \[43\] and all waters under the admiralty and maritime jurisdiction of the United States. \[44\]

## 2 Relative, public and private rights

See 1. L. 1084.-The public have equal rights to the reasonable use of navigable waters, \[45\] and any_unreasonable obstruction which prevents or hinders such use is a nuisance. \[46\] The right of navigation for pleasure or recreation is as sacred as the right to navigate for other purposes. \[47\] Public highways or bridges cannot be laid out across navigable waters without legislative authority, \[48\] and power in public service corporations to condemn property for canals and reservoirs may not be exercised when a particular enterprise would interfere with the navigation of the waters of the state unless such interference is expressly authorized by statute. \[49\] A drawbridge constructed and maintained according to proper authority is not an unlawful obstruction to navigation, \[50\] but its owner is liable for negligent injury to shipping resulting from failure to properly operate it. \[51\] Dams, embankments, and the like may be constructed to facilitate the use of floatable streams, \[52\] but not to the extent of retarding the flow of the water or sending it down in increased volume to the injury of riparian propriators, \[53\] or at times when the streams would not be otherwise navigable, \[54\] and in the use of navigable waters the public may not 'tresspash upon private property. \[55\] While the public cannot be excluded from the benefits of improvements of navigable waters by a riparian owner, \[56\] they have no right to navigate waters made navigable solely by private enterprise. \[57\]

## 3 Smart v. Aroostock Lumber Co. \[Me.\]

Id. Temporary obstructions within reason-68 A 527. Capability of use for transporting a table limits are not unlawful (Id.), but if unreasonable in extent or duration, they are stream is navigable and is a question of justifitable (Id.). Mill company may not detect. Id. All streams of sufficient capacity obstruct unreasonably with logs and lumber in their natural condition to float bosta, rafts, or logs, are deemed public highways and as such subject to public use. Id. stream for floating boats and transporting a payloads to their crotages on the stream. Id.

Preduling right to obstruct it with logs. Smart v. Aroostock Lumber Co. \[Me.\] 68 A 527. Rogue river is a navigable stream, and hence it is a public highway where all the people may go of common right, and prima facie they have a common right to fish. Home v. Rogue River Packing Co. \[Or.\] 92 P 1065.

Not navigable: Drainage ditch constructed under private grant, from twelve to fifteen feet wide, some places less than two feet 69.

Gep, and so filled with vegetation that light skiff cannot be rowed. Bolsa Land Co. v. Burdiick \[Call\], 90 P 532. Evidence insuffment cient to show that Big Pass is or ever was navigable. Caddo Levee Dist. Com'rs v. Glassel \[La.\] 45 S 370. Stream in which in natural condition only small logs could be floated only at extreme high water and for only a few hours at a time held not navigable for floatage. Kamm v. Normand \[Or.\] 91 P 448. Evidence held to show such stream. Id. 40, 41, 42. Bolsa Land Co. v. Burdiick \[Call\], 90 P 532.

S 2. Relative, public and private rights. See 1. L. 1084.-The public have equal rights to the reasonable use of navigable waters, \[45\] and any_unreasonable obstruction which prevents or hinders such use is a nuisance. \[46\] The right of navigation for pleasure or recreation is as sacred as the right to navigate for other purposes. \[47\] Public highways or bridges cannot be laid out across navigable waters without legislative authority, \[48\] and power in public service corporations to condemn property for canals and reservoirs may not be exercised when a particular enterprise would interfere with the navigation of the waters of the state unless such interference is expressly authorized by statute. \[49\] A drawbridge constructed and maintained according to proper authority is not an unlawful obstruction to navigation, \[50\] but its owner is liable for negligent injury to shipping resulting from failure to properly operate it. \[51\] Dams, embankments, and the like may be constructed to facilitate the use of floatable streams, \[52\] but not to the extent of retarding the flow of the water or sending it down in increased volume to the injury of riparian propriators, \[53\] or at times when the streams would not be otherwise navigable, \[54\] and in the use of navigable waters the public may not 'tresspash upon private property. \[55\] While the public cannot be excluded from the benefits of improvements of navigable waters by a riparian owner, \[56\] they have no right to navigate waters made navigable solely by private enterprise. \[57\]

## 4 Smart v. Aroostock Lumber Co. \[Me.\]

Id. Temporary obstructions within reason-68 A 527. Capability of use for transporting a table limits are not unlawful (Id.), but if unreasonable in extent or duration, they are stream is navigable and is a question of justifitable (Id.). Mill company may not detect. Id. All streams of sufficient capacity obstruct unreasonably with logs and lumber in their natural condition to float bosta, rafts, or logs, are deemed public 10 Cur. Law. Navigable waters SS 2. 919

The rights of littoral owners in adjacent navigable waters depend on the local laws of the several states subject to the authority of the United States to protect navigation and make improvements.\[58\] An owner of upland abutting on the shore lands of a navigable lake, the shore lands belonging to the state, has no riparian or littoral rights in the waters of the lake.\[59\] Grants of exclusive rights in navigable waters will not be presumed,\[60\] and a private person can have no exclusive statutory right to bar the public from the exercise of common privileges.\[61\]

A patent cannot by implication convey title to soil under a navigable stream embraced within the limits of the grant so as to affect the status of the stream as a navigable waterway,\[62\] and even a grant of the bed of such stream leaves it subject to the public right of navigation and the control of congress.\[63\] But the state may convey into private ownership lands under water between high and low tide,\[64\] and may also so convey lands perpetually covered by tides subject to the paramount control of the general government,\[65\] and it is not required to preserve the navigability of waters because the public may desire to fish or hunt.\[60\]

Where the middle of the channel of a navigable river separates the jurisdictions of two states, both are presumed to have the free use of the whole for purposes of commerce.\[67\] The free navigation of the Mississippi river by citizens of the United States is guaranteed by treaty, Federal acts, and the state and Federal constitutions.\[68\]

_Right of access.\[58\]_ S. C. L. 1045--A riparian owner has the right of access to the navigable water and as incident thereto to do all things reasonably necessary to the enjoyment of such right.\[69\] Each shore owner should have a proportionate share of the deep water frontage,\[60\] and the line of deep water frontage should be adopted as a basis of apportionment where other rules cannot be equitably applied.\[71\] Silence or recognition will not preclude one from proving the true line of division of water frontage where it does not amount to estoppel.\[72\] A statute fixing the boundaries of a city as running with and bounding on a navigable river does not permanently fix the flooded adjacent woodded depression which private company improved by removing trees and dredging. King v. Muller \[N. J. Eq. 67\]

Where alleged navigable waters were not hunt and flash thereon. Bolsa Land Co. v. SSN. Western Pac. R. Co. v. Southern Pac. Co. \[C. C. A.\] 151 F 376. Under common law and colonial ordinance of 1641-47, littoral owners hold the fee between high and low water mark subject to public easemment for navigation, free fishing, and fowling, but there is no public right to use the beach for bathling. Butler v. Attorney General \[Mass.\]

## 69 NEP 688

Could not complain that houseboat interfered with such rights. Van Siclen v. Mufir \[Wash.\] 89 P 188.

Ripparian owner held to have no exclusive right to flash salmon either under statute, feed, prescription, or custom. Hume v. Rogue River Packing Co. \[Or.\] 92 P. 1065.

Act Feb. 17, 189, attempting to confer on riparian owners exclusive right of fishing for salmon in certain rivers, held violative of constitutional inhibition against grant of special privileges. Hume v. Rogue River Packing Co. \[Or.\] 92 P 1065.

### 62 Carver v. San Pedro, etc., R. Co., 151 F 334.

No act of executive_department of United States can affect right of public to navigate nor power of congress to control. Carver v. San Pedro, etc., R. Co., 151 F 334, 64, 65. Bolsa Land Co. v. Burdick \[Cal.\]

### 64, 65. Bolsa Land Co. v. Burdick \[Cal.\]

### 690 P 532. See, also, Ripparlan Owners, 8 C. L. 1744.

Where called navigable waters were included in and wholly inclosed by land held by plaintiff under a patent, defendants could not hunt and flash thereon. Bolsa Land Co. v. Burdick \[Cal.\] 90 P 682. If a dam confining such waters was a purpresture, it could be abated only by state or national government. Id.

### 67 State v. Muncie Pulp Co. \[Tenn.\] 104 SW 487.

### 68 Whether current be in one state or another. State v. Muncie Pulp Co. \[Tenn.\] 104 SW 487.

Ower of upland under crown grant made in 1697, bounded by high water mark, has right to build a pier in order to gain access to navigable waters, though extending over lands under water, feet to which was granted by crown in 166 to a town, pier not being a nuisance. Town of Brookhaven v. Smith, 188 N. Y. 74, 80 NE 665. Common law of slug privutum held inapplicable. Id.

### 70 Columbia Land Co. v. Van Dusen Inv. Co. \[Or.\] 91 P 469.

Where impracticable to make division according to rule where property is situated in a cove or to take current of stream as basis, stream be'ng three or four miles wide and tide rising nine feet. Columbia Land Co. v. Van Dusen Inv. Co. \[Or.\] 91 P 469.

License or use of map recognizing due north line. Columbia Land Co. v. Van Dusen Inv. Co. \[Or.\] 91 P eity limits so as to deprive the'city of the water front when the water line recedes.\[18\] One may not reach navigable waters by passing over private property.\[14\]

\_Rights of wharfage and reclamation._See s C. L. 1086_.\_By the English common law, no right to wharf out to navigable water attached to the ownership of shore lands,\[15\] but this doctrine has been modified or repudiated in many of the American states,\[16\] and the subject is also largely controlled by statute \[17\] or conveyance.\[18\] Littoral propriators on a convex shore having apprutenant rights of wharfage may generally extend their wharves to lines on either side which are at right angles to the general contour of the shore.\[19\] One's rights as to the direction in which he may wharf out are not effected by the establishment of a harbor line and construction of a new channel where these are parallel with the shore.\[20\]

SS 3. \_Regulation and control._See s C. L. 1086_.\_Congress has power to legislate with respect to the navigable waters of the United States.\[21\] This power does not rest exclusively either in its constitutional power to regulate interstate commerce or in its power to legislate on matters necessary to carry into execution the Federal judicial admiralty and maritime jurisdiction but may be sustained under either or both of such powers.\[22\] It cannot be impaired or restricted by the action of any agent or officer of the government,\[23\] and navigable waters within the limits of a state are subject to the same control by the Federal government as those extending through or reaching beyond those limits.\[24\] However, in the absence of the exercise of Federal control over navigable streams within the states, the states have full power over such waters within their jurisdiction,\[25\] and the Federal act requiring the consent of Federal authorities to the construction of public works in waters of the United States does not make Federal authority over waters entirely within the limits of a state exclusive,\[26\] but the right of private persons to erect structures in such waters is dependent upon 73. Rights of city similar to those of deed rights, hence plaintiff was not entitled to holders. Western Maryland Tidewater R. deed never frontage. Grant v. Oregon, R. & Co. v. Baltimore \[Md.\] 68 A 6. \[Md.\] 74. Bolsa Land Co. v. Burdiek \[Cal.\] 90 P 79. Defendant could not be enjoined from 533. 75. Such right must be based on state legislation. Western Pac. R. Co. v. Southern Pac. R. Co. v. Southern Pac. Co. \[C. C. A.\] 151 F 376. Appelelest's right if defendants line were extended it would under ordinance of town of Oakland to whearf on water front of town for term of v. Smith Bros. \[Conn.\] 67 A 558. Where an years held not extended to perpetuity by software, rights of parties were not affected by a dead held by plaintiff giving the western boundary of land below high water mark as such avenue, deed not stating that avenue ran in same direction below as above since line. Id.

## 80. Lane v. Smith Bros. \[Conn.\] 67 A 558.

**81.** Navigable, interstate rivers come with-in the exclusive power of congress to regulate interstate commerce. State statute relating to process and filling of statement with secretary of state held invalid in so far as it affected interstate river traffic. Ryman Steamboat Line Co. v. Comm. 30 Ky. L. R. 1276, 101 SW 403. See Commeree, 9 C. L. 583.

**82.** Acts relating to obstrations to navigation are within such power where such navigation comes within the provisions for regulation of interstate or foreign commerce or within the admiralty and maritime jurisdiction. United States v. Banister Reality 65. 155 F 583.

**83.** Grant of patent. Carver v. San Pedro, etc. R. Co., 151 F 834.

**84.** S8. Minnesota Canal Power Co. v. Pratt (Min.) 112 NW 395.

10 Cur. Law. Navigable waters SS 4. 931

the joint consent of the state and Federal governments.${}^{#7}$ The use and control of waters within the geographical limits of the United States is not restrained by international commity,${}^{#8}$ but state courts cannot declare rights in conflict with treaties,${}^{#9}$ in the absence of Federal approval.${}^{#9}$ The Federal statute condemns to penalties vessels used in depositing refuse in navigable waters of the United States,${}^{#1}$ and makes it unlawful to anchor or tie up a vessel so as to obstruct the passage of other vessels.${}^{#2}$ A dumping scow is subject to penalty though her contents are dumped in violation of orders of her owner,${}^{#8}$ but the towing tug is not liable where the act was committed without the knowledge or consent of any one on board her.${}^{#9}$ Owners of wrecked or sunken vessels are required to mark them with a buoy or beacon and light ${}^{#5}$ immediately.${}^{#8}$ Tugs negligently causing a wreck are not liable for failure to mark it where the owner of the wreck is at hand and can attend to the duty.${}^{#7}$

SS 4. _Remedies for injuries relating to_,${}^{#8}$ a C. L. 1984${}^{#1}$-Obstruction in navigable waters or trespass thereon may be enjoined ${}^{#8}$ at the instance of the state,${}^{#9}$ or of a private person suffering special injury,${}^{#1}$ and the public may be excluded by injunction from navigating on private waters.${}^{#1}$ Where a statute authorizes the damming of a navigable river but provides that the grantee of the right shall be liable for all resulting damages, such damages are recoverable regardless of negligence,${}^{#3}$ and one

87. Public service corporation not entitled to condemn land for canals and reservoirs such duty upon the owner, and negligence of foreign generation of electric power without first a wrecking company, his agent, must be procuring Federal approval. Minnesota Canal & Power Co. v. Pratt \[Minn.\] 112 NY 395. &.

01. Diversion of waters of Birch Lake drainage area which is tributary to Rainy charged within an hour held liable in dam-River and other lakes forming boundary between United States and Canada. Minnesota Canal & Power Co. v. Pratt \[Minn.\] 112 NY 395. &.

01. Diversion of waters forming boundary between United States and Canada would 923

NEGLIGENCE SS 1.10 Cur. Law.

who suffers special injury need not prove negligence in order to recover damages, where a particular obstruction is in law a nuisance.4 In a suit to enjoin the exclusion of an owner from the use of the shore as a means of access to a stream, it is sufficient to allege the wrong of exclusion without setting out the extent of complaintant's improvements on the shore.5

Ne E

## 10 Cur. Law. Negligence & 2a.

In other words it is a failure to exercise ordinary care,\[14\] which is such care as an ordinarily prudent person would exercise under the same circumstances.\[16\] Actionable negligence must be predicated upon failure to discharge a legal duty,\[16\] and the exercise of ordinary care on the part of the person injured,\[17\] and must proximately result in injury.\[18\] Since negligence is the contrary of ordinary care, and such care must necessarily depend upon the circumstances,\[19\] there are, strictly speaking, no degrees of negligence,\[20\] but this strictness of terminology is not always observed.\[21\] Gross negligence, if there be such a thing, as distinguished from negligence, depends upon the circumstances.\[22\]

\_Willfulness or wantness.\_See * C. L. 1901.--Knowledge or present consciousness that the act donc or omitted will result in injury is essential to willfulness or wantness,\[23\] and actual participation in the damnifying act is essential to liability for willful or wanton injury.\[24\]

. .

ment,\[28\] or it may arise solely from the special circumstances of the particular case.\[29\] The occasion for the performance of the duty of care may arise from the negligence of another,\[30\] even though he be the person injured.\[31\] The measure or standard of care required in the performance of the duty of care is ordinary care,\[32\] which has already been defined in general terms,\[33\] and, ex vi termini, no universal rule can be formulated by which to determine what constitutes ordinary care in particular instances.\[34\] It necessarily depends upon the circumstances,\[35\] the relations,\[36\] age,\[37\] and condition\[38\] of the parties, knowledge or notice of the danger,\[39\] and probability of injury,\[40\] and these elements should be considered as of the time of accident, and

\\begin{tabular}{l l} rkk v. Michigan Cent. R. Co., 149 Mich. 194, & ing operation while patient was in shocked 14 Det. Leg. N. 415, 112 NWV 915. & condition. Staloch v. Holm, 100 Minn. 276, 111 NWV 264. \\
28\. Duty of persons in charge of factory & 33. See ante, $ 1, Definitions. \\ c. 415, $ 81. & Poole v. American Linseed Co., & 34. Johnson v. Veneman, 75 Kan, 278, $ \\
119 App. Div. 136, 103 NYS 1047. Failure to & 67.7 \\ perform a statutory duty imposed for the protection of the public ie negligence, en- & 35. Texas & P. R. Co. v. Johnson \[Tex. Civ. \\ tiling one injured to a recovery, in absence of contrutory negligence. Vander- & App.\] 20 Tex. Ct. Rep. 410, 106 SW 773. Apart \\ & & from the situation and surrounding circumstances, no act or omission can be pro- \\ & & \\ 10 Cur. Law. Negligence $ 2A.

not as they appear thereafter.\[41\] The courts often declare that certain acts do not constitute due care \[42\] or negligence,\[43\] or even that certain acts constitute negligence per se.\[44\] Such rulings, however, are not exceptions to the doctrine that negligence depends upon the circumstances, but are mere applications of the doctrine that under certain circumstances the question of negligence will be determined by the court.\[45\] A more distinctive doctrine and one less readily traceable to the doctrine as to when negligence is a question of law and when one of fact, is the doctrine that the violation of a statutory duty or one imposed by municipal ordinance is negligence per se,\[46\] and some of the courts limit this doctrine to the proposition that the violation of such a duty is evidence of negligence.\[47\] The fact that the act charged as negligence was in compliance with a statutory requirement is not conclusive of freedom from negligence.\[48\]

\_Act of God and unavoidable accident._See $ C. L. 1903_--It is negligence to fail to provide against such acts of God as may reasonably be anticipated,\[40\] and though the primary cause is a pure accident, one whose negligence concurs therewith as an efficient cause will nevertheless be liable.\[50\] A pure or unavoidable accident,\[51\] however, is not actionable as such.\[52\]

against finding of negligence in the partici-

N. C. 330, 57 SE 11. Failure to blow whistle

var case. Waters-Pierce Oil Co. v. Snell

or sound bell on locomotive at least sixty

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 190, 108 SW

rods from road crossing. Bowles v. Chesa-

170. Derendant held not liable for injury to

bezo from hot ashes placed on vacant lot ad-

Railroad speed ordinance. Louisville & N. R.

jacent to defendant's premises. In absence of

Co. v. Christian Moerlein Brew, Co. \[Ala.\]

evidence to show that such injury might

143 $ 723; Kunz V. Oregon R. Co. \[Or.\] 93 P

have reasonably been anticipated. Meyer v.

141.

Benton \[N. J. Err. & App.\] 65 A 1023.

47. City ordinance prescribing speed limit

In Iowa "it is not true that to constitute

negligence the act must be such as that

perisons of ordinary prudence would or

should have apprehended or foreseen the ac-

cident." Cutter v. Des Moines \[Iowa\] 113

1313
926 NEGLIGENCE $ 2B. - 10 Cur. Law.

Joint and several liability.See s C. L. 1993.--Joint negligence gives rise to a joint and several liability.\[83\] In such case the negligent acts need not be concerted,\[84\] and it is not necessary that the negligence of the several parties should arise from the same or similar relations towards the persons injured.\[85\]

(SS 2) \_B. Use of property in general.See s C. L. 1993.--A property owner must, in using his property, exercise due care not to injure others,\[66\] and one will be liable for negligence in employing inadequate or defective appliances or machinery,\[67\] or in furnishing defective appliances or machinery to another,\[68\] but mere ownership of property does not necessarily involve liability for injuries caused thereby.\[59\] The owner

\*\*P 182. This doctrine has been directly recognized and applied in this state. Lunden's V. Livingston EL Co., 17 Mont. 32, 41 P. 995; Cannon v. Lewis, 18 Mont. 402, 45 P. 572. In Mensner v. City of Dillon, 29 Mont. 116, 74 P 130, the same rule is stated as follows: "Where two causes contribute to an injury, one of which is directly traceable to the defendant's negligence, and for the other of which neither party is responsible, the defendant will be held liable, provided the injury would not have been sustained but for such negligence." Counsel for appellent cite Elliott v. Allegheny Light Co., 204 Pa. 568, 54 A. 278, which seems to be somewhat in conflict with the rule just stated; but we do not see any reason for departing from the former holdings of this court--From Birsch v. Citizens' Elec. Co. \[Mont.\] 93 P 940. 51. unavoidable accident is one which the reasonable foresight of neither the defendant nor the person injured could have foreseen or anticipated. Brunson v. Southwest-ern Development Co. \[Ind. T.\] 194 SW 593. "An accident is inevitable if the person by whom it occurs neither has, nor is legally bound to have, sufficient power to avoid it or prevent its injuring another. Waters-Pierce Oil Co. v. Snell \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 190, 106 SW 170. 52. Long v. Louisville & N. R. Co. \[Ky.\] 107 SW 203. Injury sustained in jumping from buggy when train passed crossing held due to plaintiff's unfounded flight, and hence no one was to blame, as horses did not run away or become frightened. Chicheb' V. Chicago, etc., R. Co. \[Neb.\] 111 NW 577. 58. Stumbling of horse and plaintiff's fall from carriage held pure accident, and hence city not liable. Elseeck v. Cappell \[R. I.\] 67 A. 421. No question of unavoidable accident was involved where street car render became detached and struck person about to board car. McDonnell V. Chicago City R. Co., 131 III. App., 227. 58. Cincinnati, etc., R. Co., 126 M. 50. V. Area \[Ind. App.\] 82 NE 1009; Haskell & Barker Car Co. v. Prezedziankowski \[Ind.\] 83 NE 626; Drown v. New England Tel. & T. Co. \[Vr.\] 68 A 501. Railroad employ killed in collusion between engine and street car. Indianapolis Union R. Co. v. Waddington \[Ind.\] 82 NE 1020. Injury from concurrent negligence of master and fellow-servant. Daniels v. Johnston \[Coil.\] 89 P 811. Where a voyage itself is negligent, all persons concerned therein are jointly and severally liable, but if the voyage is not negligent and v. Thomsen \[N. J. Law\] 66 A 801. Tailored employ killed in collusion between engine and street car. Indianapolis Union R. Co. v. Waddington \[Ind.\] 82 NE 1020. Injury from concurrent negligence of master and fellow-servant.

10 Cur. Law. NEGLIGENCE SS 2B. 927 of leased machinery is liable only for defects therein at the time the lessee takes possession. \[60\] The only duty owed to licensees is the duty of refraining from positive acts of negligence \[61\] or from reckless, wanton, or willful injury. \[62\]

_Dangerous machinery and substances._\[88\] & C. L. 1994--In the use of intrinsically dangerous articles, the care required is commensurate with the dangerous character of the articles, the circumstances under which it is used, and the seriousness of the dangers to be anticipated, \[63\] and reasonable care may thus under certain circumstances and conditions be the same as the highest degree of care, \[64\] but this doctrine does not apply where the injury is caused by independent agencies, and not by the dangerous character of the articles in question. \[65\] One delivering an article which he knows or ought to have known to be dangerous is bound to give notice of the character of such article. \[66\]

and set up machinery and agreed with plain-

ifif's employer to maintain it for a certain

29 Apr. D. C. 554.

purpose was liable as being in charge of the

Gasoline: Waters-Pierce Oil Co. v. Snell

factory where the machinery was set up.

\[Tex. Cliv. App.\] 20 Tex. Ct. Rep. 190, 106

Poole v. American Linseed Co., 119 App. Div.

136, 108 NYS 1047.

84. Witta v. Interstate Iron Co. \[Minn.\] 115

01. Not liable for defects subsequently

NV1 169, Highest degree of care must be

arising, in absence of request to repair,

exercised in use of electrical apparatus, and

Halign V. Edelmeyer & Morgan Hod E. Co.,

this is equivalent of all possible care. Bice

123 App. Div. 376, 107 NYS 936, Breaking

of headpiece of hod hodisting, elevator held not

85. Where defend's sectionmen, acting

evidence that it was defective when installed,

beyond scope of authority, allowed child to

14. No inference of negligence could be

ride on hand car from which he fell. Dough-

drawn from fact that three years after the

active defendant was unable to produce

902. Owner of elevator operated by his

the broken headpiece upon the trial. Id.

61. Servant, not engaged in master's busi-

falling of brick from hod being hoisted, when

ness, riding by permission, on vehicle not

it appeared that others for whose acts he

intended for his use, held mere licensee.

Was not responsible were engaged-in and

Pigen v. Lane \[Conn.\] 67 A 886.

about the work of using the elevator, and

q2, Child who, without permission, ellmb-

that the accident might have been due to the

ed on wagon and was allowed to ride, held

neglence of some one of them. Laurence

merce licensee. West v. Poor \[Mas.\] 81 NE

960.

\[Minn.\] 115

632. Witta v. Interstate Iron Co. \[Minn.\] 115

001.

NV1 169; Whittaker v. Stangvick, 100 Minn.

NOTE, LIABILITY for Injuries Arising from

386, 111 NY 295. Operation of railroad train

the Use of Dangerous Substances' Solid in the

Along track beside which tooth ram

Missouri, etc., R. Co. v. Brown \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 133, 101 SV 464.

A package of stove polish manufactured by

Care of master in matter of supplying proper

and nondective fuses to be used in ex-

tempted to use the polish, it exploded, injury-

ploding dynamulte. Wiita v. Interstate Iron

to mehr. The declaration proceeded on the

co (Min.) 115 NW 169.

Electricity: Carroll V. Grande Konde Ellec.

the polish was a dangerous substance, and

permitted wire charged with

32,600 volts

of electricity to remain fastened to a picket

fence near public highway for 20 hours. Id.

Placing electric wires where children may

possibly come in contact therewith is not

negligence, unless the possibility amounts to

a reasonable probability. Denver Consol. Elec.

Co. v. Walters \[Colo.\] 89, p. 815. Held negili-

gence for telephone company to leave loose

wires dangling in street, whereby a person

was killed by electric shock communicated

through the wire from a trolley wire. Home

Tel. Co. v. Fields \[Ala.\] 48 S 111. Negligence

in insulation of electric wires may depend

on location of wires. Denver Const. Elec. Co.

v. Walters \[Colo.\] 89 p. 815. Setting out

fire which spread to land of another. Steele

v. Danner, 124 Mo, App. 338, 103 SV 582.

Held negligence for construction company to

allow petroleum residuum to escape into

stream, causing injury to boats below point

of escape. Brennan Const. Co. v. Cumberland,

v. Walters \[Colo.\] 89 p. 815. Setting out

855, 14 Det. Eng. N. 64
NEGLIGENCE SS .2B. 10 Cur. Law.

Liability of manufacturers.See 8 C. L. T005--Manufacturers of dangerous articles are liable for injuries caused by such articles where they are sold without notice of their dangerous character,6 but a manufacturer is not generally liable for persons

it is apparently intended, is liable, in the

what the said was the article called for, but absence of negligence, if it turn out that the

in fact it was a poison. Plaintiff took a

article is not adapted to the use and causes
portion of it and immediately became ill. At

injury. In Clement v. Crosby & Co., 148 Mich.

the trial the court instructed that if the

293, 111 NWV 145, the court overvalued the de-

defendants's clerk sold and delivered to the

murrer, but the declaration was so drawn that

plaintiff a poison instead of a harmless drug,

it was not necessary to decide whether or not

actual knowledge of the dangerous properties

harmless, and was thereby injured, the de-

must be shown to be in the manufacturer, to

rendar was liable for all damages so caused.

render it liable in the circumstances, and the

The Supreme Court ordered a new trial, for

court expressly said that they did not mean

the reason that the trial court erred in the

to determine the necessity of a scienter, al-

above instruction, in that it did not include

though the allegation of deceitful and artful

negligence as an element to be necessarily

vithin. Using of knowledge from the public

considered. The court distinguished the

necessarily implied a knowledge on the part

of the defendant. The court cited the foll-

closure, 6 SeId. \[N. Y.\] 397, saying that in

loving cases to show that one who places

upon the market a dangerous article may be

chargeable for injuries done to third persons,

a confusion of ideas regarding tort actions

but a reading of the cases discloses the fact

that the defendants either knew of the

ers, and actions upon implied warranting, The

dangerous qualities of the goods or else

see of White v. Oakes, 88 Me. 367, 32 L. R.

were guilty or negligence, Barney v. Burs.

A. 592, seems to be in point with the princi-

tenbinder, 7 Lans, \[N. Y.\] 210: Davis V.

Paul Case. The defendants, being dealers in

Guarnieu, 45 Ohio St. 470, 4 Am. St. Rep. 53;

Hault V. Rankin, 87 Iowa, 261: Shubert v. J. R.

ing bed to the plaintiff without any express

Clark Co., 49 Minn. 381, 32 Am. St. Rep. 155;

Carter v. Towne, 98 Mass. 567; Wellington v.

Serva to persons using it, not from defective

Downer Kersome Oil Co., 104 Mass. 64;

Elkins, Bly K. Co., McKean, 97 Pa. 493.

There are cases, however, which upon

The defendants had no knowledge of its

principle would seem to indicate that know-

danger. The mechanism of the bed could be

edge by the manufacturer is not necessary

observed by the plaintiff as well as by the

to charge him with liability. In Randall v.

defendant, but neither, unless skilled in

Newsom, 2 Q. B. Div. 102, the court held that

in the sale of a pole furnished by the de-

from the sale of a pole furnished by the de-

fendant for plaintiff's carriage there was an

wns to liability.--From 6 Mich. L. R. 245.

implied warranty that the pole was free from

47. Clement v. Crosby, 148 Mich. 293, 14

latent as well as discoverable defects. In

Det. Leg. N. 85, 111 NWV 145. The manufacturer

ter of a thing inherently dangerous, or of

held that in a contract for the sale of a

thing which, when applied to its intended

quantity of petroleum of a certain quality,

use, becomes dangerous, is liable to anyone

the contract was not satisfied unless the oil

who, without fault on his part, sustains

was free from latent or hidden defects that

rendered it un merchantable at the time and

sult of the manufacturer's negligence. Keep

place of delivery, and that could have been

v. National Tube Co., 154 F 121. Slanufac-

avoided or guarded against in the process of

turer of explosive stove polish held liable for

refinement, or in the selection of material by

injury to purchaser from explosion, though

reasonable care and skill. See also Kellogg

the purchaser purchased it from a retailer

Bridge Co. v. Hamilton, 110 N. S. 108, 28

Law. Ed. 86; Rodgers v.\_Niles, 11 Ohio St. 48,

the polish and sold it.without warning.

78 Am. Dec. 290. In the principal case the

plaintiff relied on the decisions in Craft v.

N. 85, 111 NWV 745.

Parker, 96 Mich. 245, and Hoover v. Peters,

18 Mich. 51. These cases ruled that in the

the defendant, a gas fitter, was employed by

sale of articles of food by a dealer in such

goods for domestic consumption, there is

upon his premises, and for the
10 Cur. Law. NEGligENCE SS 2B. 929

other than the buyer for negligence in the composition or construction of the article

euit Court of Appeals of this circuit held

ous machine is a degree of negligence ap-

that the defendant, who had manufactured

proaching the grade of crime; it should seem,

and sold to the plaintiff's husband a side-

to be given in such cases to any. one who has

saddle, was not liable for injury sustained by

sustained an injury which a due regard for

the plaintiff because of negligence or want

the lives and property of others would have

of skill in the manufacture. But the court

related:

There are cases which may seem

to

- quality the principle which we have dis-

cussed but which are quite consistent with

it and which as is pointed out in Cur-

- 40, 19 A 475. He said:

no application to such an one as that

with which we are now concerned. They

takes the performance of an act, which, if

decide that one who deals with a thing

which is inherently very dangerous, involv-

- "death or great bodily harm to some

person as the natural and almost inevitable

passo facto, imposes as a public duty the obli-

consecutive" of lack of care, owes to the

public at large the duty of extreme caution.

law hedges round the lives and persons of

Such a case is Thomas v. Winchester, 6 N.

Then with much more care than it employs

Y. 397, 57 Am. Dec. 455, which in Engian

when guarding their property, so that, in this

has been thought to go too far.

In particular, it makes, in a way, every one his

our opinion Thomas v. Winchester was rightly

bother's keeper, and therefore it may well

decided; but that case, and the others which

follow its lead, do not at all conflict with

address should be withheld from an Inon-

our present judgment. The article here in

question is not, like a poisonous drug, which

damage by the neglect of another in doing

was the harmful agent in Thomas v. Winchester, inherently dangerous, but, like the

an act, which, if carelessly done, threatens,

lamp in Longendi v. Holliday, 6 Exch. 761,

death or great bodily harm. Such mis-

not in its nature hazardous."

feasances, if they result fatally, are indict-

In Loese v. Clute, 51 N. Y. 494, 10 Am. Dec.

638, it appears that the defendants manufacta-

damage upon individuals, they should, it is

tured a boiler for the Saratoga Paper Comn-

conceived, be actionable. There are many

pany. The testinomy tended to show that it

was constructed improperly and of poor

A typical case is that of Thomas v. Winches-

iron, and that the defendants knew at

ter, 6 N. Y. 397, 57 Am. Dec. 455. The same

time that it was to be used in the immediate

principle was applied by the highest court

vicinity of and adjacent to dwelling houses

and stores in a village, so that in case of an

ware & All. Tel. Co., 78 N. J. Law, 276, 62

explosion while in use it would be likely to

be destructive to human life and adjacent

83 J88, where a boy was killed by contact

property. The boiler exploded and damaged

with a boy wire of the defendant company.

the adjacent property of the plaintiff. The

Saratoga Paper Company tested the boiler

light wire and charged with a deadly current

to its satisfaction, accepted, and used it

for three months before the explosion. In

Minnesota, in Schnibert v. J. R. Clark Co., 49

the opinion of the court it was said:

"When the boiler was accepted, they (the

fedants) ceased to have any further con-

factured a step-ladder of cross-grained and

trol of it or its management, and all re-

deacyed wood, which the plaintiff could not

sponsibility for what was subsequently done

with it developed upon the company and

those having charge of it."

It was decided that the case came within

C. C. A. 287, 120 p. 865, 61 L. R. A. 203, the

the principle that "at the most an architect

crient Court of Appeals of the Eighth Cir-

or builder of a work is answerable only to

chiu held a declaration to be good on denur-

his employes for any want of care or skill in

ner in which it was averted that the defend-

the execution thereof, and he is not liable

for. accidents or injuries which may occur

after the execution of the contract, and that

of its dangerous defect; but, notwithstanding

the defendants owed to the plaintiff no duty

whatever at the time of the explosion "either

edge of the defect, it was said:

growing out of contract or imposed by law."

But Dr. Thompson, in the first volume of

the rules to which brief reference has been

his work on Negligence (section 825)

smadex Icosce v. Clute, unsound in principle,

a building, a tool, or an article of merchan-

and adds:

"Steam bollers are highly dangerous, even

when properly constructed; but when defec-

tively constructed nothing is more probable

than that they will explode, and that the ex-

gation to exercise such care and skill. The

plosion will kill or injury innocent persons,

and destroy adjacent property.

made and sold unless the article is imminently dangerous,"85 or the manufacturer has notice of the defects and knows that they render the article dangerous to one who has no such notice,"99 and where the purchaser knows the dangerous character of the article and the manufacturer has used the usual methods and precautions, the latter will not be liable."

(SS 2) \_C. Use of lands, buildings, and other structures.\_Soo & C. L. 1095--Negligence cannot be predicated upon one's lawful and ordinary use of his own premises,"1 but one is bound to use his own property so as not to wrongfully injure that of others,"7 or persons on adjoining premises,"3 and the owner or occupier of lands must exercise due care to render his premises reasonably safe for persons thereon by invitation, either express or implied,"4 and is bound to notify such persons of secret or hidden dangers known to him but not known to them,"8 but the owner or occupant is not an insurer of the safety of such persons,"8 and his liability is only coextensive with the invitation." The duty of the owner or occupant arises at the time of the invitation." Ownership of the premises or structure is not essential to liability for injury thereon or thereby," but either ownership or control is essential," and the owner or occupant.

68. Berger v. Standard O11 Co., 31 Ky. L. 613, 103 SW 246.

01. Liability in such case is founded on de- ceit, and the sciente must be laid in order to support the charge of deceit. Berger v.

Higgins v. Ruppert, 108 NYES 919. One owes 245.

70. Leavitt v. Fiberiod Co. \[Mass.\] 82 NE 682.

01. Act of railroad company in piling freight up on its land near highway. Davis v. Pennsylvania R. Co. \[Pa.\] 67 A 777. Railroad company not liable for injury caused by hores being frightened by glare of sun on tin covering to piles of freight on defendants's land which had been thus piled and stored while depot was being repaired. Id.

One may prosecute a lawful business on his own land so long as the does not thereby injure others righthly using the Mishway, or interfere with the comfortable enjoyment of life or property of adjoining owners. FT.

Vayne Cooperage Co. v. Page \[Ind. App.\]

182 NE 83. Election of mannaturements.

Palent close to highway is not per segnigilance. Id. One is not insurer against injury from use of his property. Long v. Louisville & N. R. Co. \[Ky.\] 107 SW 203.

72. Owner liable for invasion of premises of another by debris thrown by blasts, but only liable for injury from coucussions where the blasting is negligently done. Bessemer

Cool, Iron & Land Co. v. Dook \[Ala.\] 44 S 627.

73. Weitzmann v. A. L. Barber Asphalt Co., 190 N. Y. 462, 82 NE 477.

01. Mandeville Mill's V. Dale, 2 Ga. App. 607, 58 SE 1060; Calvert v. Springfield Elec.

L. & Power Co., 281 Ill. 290, 83 NE 184; Pauckner v., Vakem, 281 Ill. 276, 83 NE 202; Hyatt v. Murray \[Minn.\] 112 NW 881; Nolan v. Bridgetton & Millville Trac. Co. \[N. J. Err. & App.\] 65 A. 892; Brown v, Salt Lake City \[Utah\] 93 P 670; Clark v. Fellhaher, 106 Va.

803, 65 SE 817; Meyers v. Syndicate Heat & Power Co. \[Vwash.\] 91 P 549. Duty of ordinary care held owed by riding on top of elevator with knowledge or consent of opera.

tor. Davis' Adm'r v. Ohio Valley Banking & Trust Co. \[Ky.\] 106 SW 845. One who throws his premises open to the public for the purpose of gain implied warrants that they 10 Cur. Law. NEGLIGENCE $ 2C. 931

occupant is not liable where the acts of independent agencies for which he is not responsible intervene. \[81\] The liability of the owner or occupant must be predicated upon some notice or knowledge of the danger, \[82\] and notice may be implied from their publicity and duration, \[83\] but not from any one of such circumstances alone when they all coexist. \[84\] The advice of experts as to the safety of a structure is not conclusive of the question of negligence. \[85\]

\_Liability to trespassers and licensees.\_See $ C. L. 1654.--The duty to refrain from willful or wanton injury is the only obligation owed to trespassers \[86\] and bare licensees, \[87\] the courts usually making no distinction between trespassers and bare licensees in this regard. \[88\] As a general rule there is no duty to anticipate the presence of such persons, \[89\] unless the circumstances are such as to charge the owner or occupant with the probability of the presence of such persons, \[90\] and in this regard a distinction is sometimes recognized between trespassers and licensees. \[91\] After the

for injury to third party from fall of a sign \[131 Ill. App. 211. L4enesee accepts risks in-from the roof. San Filippo v. American Bill

Codent to use of premises. Davis v. Bona-Posting Co., 188 N. Y. 514, 81 NE 463.

parte \[Towa\] 114 NW 896. No active duty

80. Jackson v. Roses, 1 Ga, App. 182, 67 SB

owed to bare licensees by railroad company to 913. Contractor for building of sidewalk for

light or guard a retaining wall. Watson v. property owner held not liable for injury

Mantou & Pikes Peak R. Co. \[Colo.\] 92 P

caused by dirt excavated and left in street, it

11. Owner held not liable to one who, while not being his duty to remove it and not laving

crossing his premises, fell into open ditch ing control thereof. Evans v. Ellerson \[Ark.\]

and was injured. Habina v. Twin City Gen-100 SWV 159. Evidence held insufficient to

oral Elec. Co. \[Mich.\] 14 Det Leg. N. 605, 113

show that defendant was in charge of blast-ling which caused the injury. Bessemer's

vistor went into room in which, to his

Cod, Iron & Land Co. v. Dook \[Ala.\] 44 S

knowledge, be had no business, and fell

621. Occupant of part of storeroom who

through a hole in the wall. Foard v. was mere licensees as to use trap door in

Rath, 33 Pa. Super. Ct. 182.

other part in order to reach goods stored in

85. Packncare v. Wakem, 231 Ill. 276, 83 NE

basement, held not liable to one who fell

702; Davis v. Bonaurate \[Iowa\] 114 NWV

through the trap door. Stone v. Smith-Pre-896; Vitzmann v. A. L. Barber Asphal Co.,

mler Tyepwirter Co. \[Vasah.\] 85 P 209.

81. Owner of house not liable to one who

In Georgia: Owner or propritor is not

fell in cellway left open by another, wheth-free from duty to a mere license, and must

er the cellway was in the street or on owner's premises, where it was not of itself

falling, and things of like character. Rolles-a nuisance. Davis v. Bonaurate \[Iowa\] 114

NVP 896. Where plaintiff, who was defend-an't evern, was pushing a car along a

the circumstances of each case. Id. Pro-track when the car struck a plank, which

someone for whose acts defendant was not

that he is about to come into contact with

responsible had placed on the track, and re-

secret danger known to the propritor. Id.

bounded and crushed plaintiff against a post.

such duty to warn the licensees is more im-

the fact that the plank was on the track

could not be considered. Yunkes v. Latrobe

See $ C. 111 All. App. 292.

82. Notice of defective passageway in

which plaintiff was injured. Jackson v. Ross,

seventy fastened, but which are not, may be

1 Ga. App. 192, 51 SE 913.

83. Obstruction in street. Jones v. Ogden

01. Jones v. Ogden City \[Utah\] 89 P 1006.

01. Where brick wall left by fire fell, ques-

01. Yuleas v. Ogden City \[Utah\] 89 P 1006.

01. Where brick wall left by fire fell, ques-

Trespassers on railroad track in city street,

tion of negligence in allowing it to stand

n absence of special circumstances giving

was for the jury, notwithstanding that owner

move have relied on assurances of architect

trespassers, Birmingham R. L. & P. Co. v.

and city officials that it was safe. Orr v.

Bradley, 126 Mo. App. 146, 108 SWV 1149.

88. Possible v. San Pedro, etc., R. Co. \[Utah\]

01. Southern R. Co. v. Stewart \[Ala.\] 45 S

80 P discovery of the presence of such persons, a positive duty not to willfully or wantonly injure them arises.\[92\] Persons on the private premises of another without invitation, either express or implied, are either trespassers or bare licensees.\[93\] In the absence, therefor, of an express invitation, the question as to whether one is a trespasser or licensee depends upon whether the circumstances are such as to give rise to an implied invitation.\[94\] An invitation to enter a public place of business will ordinarily be implied,\[98\] but it will not be implied when it would involve a violation of the law.\[98\] Mere permission, whether express or by acquiescence in a custom, creates only a bare license.\[97\] The benefit of an invitation may be lost by going outside the scope thereof,\[99\] but such is not necessarily or always the case,\[98\] nor does one necessarily become a bare licensee or trespasser by failure to pursue the safest road or way.\[1\] One is not bound by an invitation extended by a servant where the latter is acting beyond the scope of his authority.\[2\]

\_Liability for injuries to children.\_See * C. L. 1998. The age and capacity of a child may sometimes be considered in determining whether or not a child is a trespasser.\[3\] A property owner owes no duty to anticipate presence of trespassing children except under special circumstances,\[4\] and will not be held liable merely because the person

antiepated and some care is required by

any other character than that of bare license-reason of such anticipation, and ordinary

sees. Habina v. Twin City General Elec. Co. care must be used to avoid injuring him after

\[Mich.\] 14 Det. Leg. N. 605, 118 NUV 586.

his presence becomes known. Mandeville

Where one has merely an easemont of passage over a porch, he is at best a bare licensee

2. Trespasses. Birmingham R., L. & P. Co. v. Jones \[Ala.\] 45 S 177. Engine started

Byrd, 181 Ill. App. 495.

while drunken treapsasser was alighting

therefrom in compliance with command of

engineer. Forest v. Georgia R. & Banking

162. Ga. 71, 57 SE 98.

001. A servant may place himself in the

001. Davis v. Bonaparte \[Iowa\] 114 NUV

001.

001. Girl looking for work who rode on

freight elevator, without express invitation

where there was stairway in plain view

which she could have used, held bare licensee,

though it appeared that other girls looking

for work had ridden on such elevator, Crane

v. Bobkovicx, 131 Ill. App. 211. Wife of one

in charge of antitru cars who did cooking for

men, and when presence on the cars for this

purpose was acquiesced in by defendant

company, held not bare licensee, though the

husband's contract required him to do the

cooking and the wife received no wages

from the company. Pugmire v. Oregon

Street Line R. Co. \[Utah\] 92 P 762. Child in-

vited by defendant's employee, having authority, to visit his father in defendant's mill

at any time, and who availed himself of such

invitation with defendant's knowledge and

consent held a licensee by invitation. Mandeville Mills v. Dale, 2 Ga. App. 607, 58 SE

1660.

0001. Rolestone v. Cassirer \[Ga. App.\] 59 SE

0001. One who lawfully enters a saloon is

at least a licensee, though not Intending to

buy anything. Id.

96. No invitation from saloonkeeper to

drunken man to enter saloon to buy drink

will be presumed, since it is unlawful to sell

liouor to a drunken person. Rolestone v.

Casirer \[Ga. App.\] 59 SE 442.

97. Permission by restaurant kaeger of use

of urinal not kept for guests. Herzog v.

Hemphill \[Cal. App.\] 93 P 89. Where the owner's occupancy of premises is exclusive

and patent, the mere fact that people are allowed to pass over it does not give them

any other character than that of bare licensee.

sees. Habina v. Twin City General Elec. Co.

carne must be used to avoid injuring him after

\[Mich.\] 14 Det. Leg. N. 605, 118 NUV 586.

his presence becomes known. Mandeville

Where one has merely an easemont of passage over a porch, he is at best a bare licensee

2. Trespasses. Birmingham R., L. & P. Co. v. Jones \[Ala.\] 45 S 177. Engine started

Byrd, 181 Ill. App. 495.

while drunken treapsasser was alighting

therefore from compliance with command of

engineer. Forest v. Georgia R. & Banking

162. Ga. 71, 57 SE 98.

001. Davis v. Bonaparte \[Iowa\] 114 NUV

001. Girl looking for work who rode on

freight elevator, without express invitation

where there was stairway in plain view

which she could have used, held bare licensee,

though it appeared that other girls looking

for work had ridden on such elevator, Crane

v. Bobkovicx, 131 Ill. App. 211. Wife of one

in charge of antitru cars who did cooking for

men, and when 10 Cur. Law, NEGLIGENCE SS 2C. 933 injured is a child,s but under the attractive nuisance doctrine, commonly called the turntable doctrine, the owner or occupant must exercise due care to protect children from their inexperience and youthful inclination to play with dangerous and attractive appliances and structures.s This doctrine does not apply to every case of injury

5. Owner of freight piled on what? in

gent in view of the isolated position of the proper manner held not liable for injury to

turntable.

ehild trespassing on the pile of freight. Lynch

South Carolina--Bridger v. A. & S. R. R.

v. Knopop, 118 L4, 611, 43 S 252,

Georgia--Ferguson v. Columbus & Rome

jury to child from explosion of drip tank

R. Co., 76 Ga. 637.

wagon, with open vent hole, left in street

Texas--Evansich v. G. C. & S. F. R. Co.,

affirmed by divided court. Jamurrity v. Saghaw

57 Texa. 126, 44 Am. Rep. 586; G. C. & S. F.

City Gas Co., 148 Mich. 27, 14 Det. Leg. N. 163,

R. Co., v. MeWhirter, 77 Tex. 356, 19 Am. St.

111 NW 884. Applied where children had

Rep. 755, 7t, Worth & Denver City R. Co.

been in habit of stealing oil from defendant's

V. Measasel, 51 Rev. 474. To this should be

open barrel in which it was kept on its lot

added Union Pac. R. Co., v. McDonald, 162 U.

and making fires with it, and on one of

S. Etzs, 81 New. 434. This was not a turntable case, but a case in which a boy was in-

such occasions a child was burned. Peirce v.

Lyden \[C. C. A.\] 157 F 552, citing Railroad

Jured in a slack pit of the railroad company.

Co. v. Stout, 17 Wall. \[U. S.\] 657, 21 Law, Ed.

However, the doctrine of the turntable cases

745. Knowledge of such practice of the chil-

dren imputed to defendant by its long con-

lowing cases, in which the injuries were re-

tuned duration and notorious character, and

eived at a turntable, the doctrine of the

from knowledge of night watchman. Id.

turntable cases is denied.

Held not within rule that landowner owes

New Hampshire--Frost v. Eastern R. R.

no duty of protection to those on his pre-

Co., 64 N. H. 220, 10 Am. St. Rep. 395.

ises without invitation or permission, where

Massachusetts--Daniels v. N. Y. & N. E.

corporation erected dangerous pumping ma-

R. R. Co., 164 Mass. 349, 26 Am. St. Rep. 253,

chinery upon its own lots or close to a path

13 L. R. A. 248.

across its lot. which had been used for several

New York--Valsh v. Pitchburg R. R. Co.,

years, and the machinery being unparated a

148 N. Y. 301, 45 Am. St. Rep. 615, 27 L. R. A.

boy passing along the path in some way came

174.

in contact with such machinery and was

New Jersey--Process v. N. Y., Suso, & West,

killed. Henderson v. Continental Refining

Co., 61 N. Y. Law, 314: Delaware, etc., R.

Co., \[Pa.\] 68 A 968. Where child - was

droped in unparated reservoir in field near

Rep. 721.

highway and in which children were acc-

Vigrain--Walker v. Potomac, etc., R. Co.,

customed to resort for play. Pramks v.

105 Va. 226, 4 L. R. A. (N. S.) 80, 115 Am. St.

Southern Cotton Oil Co. \[S. C.\] 88 EP 860.

Rep. 871.

Pond remote from street or highway not at-

In the following cases, where the injuries

tractive nuisance. Hanna v. Iowa Cent. R.

v were not sustained at a turntable, the doc-

Co., 129 Ill. App. 134.

NOTE, Attractive Nuisance. The turntable

cases: The following are turntable cases in

Co., 71 N. J. Law, 605, 108 Am. St. Rep. 764,

which the doctrine is applied: United States--

Michigan--Ryan v. Tovar, 128 Mich. 463,

Sloux City & Pac. R. Co. v. Stout, 17 Wall.,

657.

Thinnesota--Keffe v. Milwaukee & St. P. R.

R. 143, 26 Am. St. Rep. 786, 60 L. R. A. 183.

Co., 21 Minn. 207, 18 Am. Dec. 3 to children by machinery.7 It is not applicable where an independent, responsible agency intervenes to bring the child into contact with the thing causing the injury,8 or where such agency causes the accident by putting the appliance into operation,9 or by use of the same.10 The doctrine has been expressly repudiated in some jurisdictions.11

the proximate cause of a resulting injury.\[14\] The general rule usually applied is that a proximate cause \[15\] is one from which a result follows as a natural consequence.\[18\]

proximate cause of the injury where such by an explosion of the naptha, caused by violation is merely an accompanying factor -- coming in contact with a lighted switch but not the proximate cause. Id. Violation of speed ordinance. Kune v. Oregon R. Co., \[Or.\] 93 P 141. Car could not have been stopped even if speed ordinance had not been violated. Foreman V. Norfolk, Portmouth & Newport News Co., 106 Va., 770, 65 SE 805. 14. Violation of Laws 1903, p. 819, e. 473, prohibiting child labor in factories, held proximate cause of child injured while operating machine. Leathers V. Blackwell Durham Tobacco Co., 144 N. C. 330, 57 SE 11. 15. The courts will not indulge in refinement and subtleties as to causation that will defeat the claims of natural justice. Indianapolis Union R. Co. v. Waddington \[Ind.\] 82 NE 1030. "Principal" cause is not synonymy: mous with "proximate" cause. Woolsey v. Brooklyn Heights R. Co., 108 NYS 16. 10. 11. 12 Av., etc., R. Co., 108 NYS 16. 11. 12 Av., etc., R. Co., 108 NYS 16. 13 Av., etc., R. Co., 108 NYS 16. 14 Av., etc., R. Co., 108 NYS 16. 15 Av., etc., R. Co., 108 NYS 170. 16 Av., etc., R. Co., 108 NYS 171. 17 Av., etc., R. Co., 108 NYS 172. 17 Av., etc., R. Co., 108 NYS 173. 17 Av., etc., R. Co., 108 NYS 174. 17 Av., etc., R. Co., 108 NYS 175. 18 Av., etc., R. Co., 108 NYS 176. 19 Av., etc., R. Co., 108 NYS 177. 18 Av., etc., R. Co., 108 NYS 177. 18 Av., etc., R. Co., 108 NYS 178. 19 Av., etc., R. Co., 108 NYS 179. 19 Av., etc., R. Co., 108 NYS 170. 19 Av., etc., R. Co., 108 NYS 171. 19 Av., etc., R. Co., 108 NYS 172. 19 Av., etc., R. Co., 108 NYS 173. 19 Av., etc., R. Co., 108 NYS 174. 19 Av., etc., R. Co., 108 NYS 175. 19 Av., etc., R. Co., 108 NYS 176. 19 Av., etc., R. Co., 108 NYS 177. 19 Av., etc., R. Co., 108 NYS 177. 19 Av., etc., R. Co., 108 NYS 178. 19 Av., etc., R. Co., 108 NYS 179.

Without the intervention of any independent, efficient cause," the result being such

wrong and the injury? * * * The inquiry -- course of events. Bradshaw v. Edgar County must, therefore, always be whether there was -- Nat. BK, 130 Ill. App. 87. Any intermediate cause, disconnected from -- if -- Vashington Mills v. Cox \[C. C. A.\] -- 157 the primary fault, and self-operating, which -- F 634; Florida East Coast R. Co. v. Wade, produced the injury.' It is true that in this case the voluntary act of the decedent In- -- for -- for -- for -- the field interviewing cause: Where plaintiff's appellant in setting out the fire and the injury occasion by the burning of decedent. But this act was one of the intervening -- had to unhitch him, and while so doing was causes which the appellant with reasonable -- knowledge down by the horse and had to stand -- difference might have foreseen. It was -- in water to rehitch, whereby he caught cold. -- consequence of the wrongful act of appellant -- Crowley v. West End \[Ala.\] -- 43 S 359; San which it ought to have anticipated. It was -- Antonio & A. P. R. Co. v. Trigo \[Tex. Civ.\] -- not a new and independent cause intervening -- App. J 18 Tex. Ct. Rep. 958, 101 SW 254. Where between the wrong and the injury, or dis- -- or -- on which plaintiff was pushing along a track -- connected from the primary cause and self- -- for -- a planar, rebound and crushed plain- -- operating, but was itself the natural result -- toff against a post near the track, but which of appellants original -- case -- could be passed safely under ordinary circumstances -- toff. Realway Co., 65 Tex. 274, 57 Am. -- cumstances, the situation of the post was -- Rep. 602, has been cited by appellant and -- not the proximate cause of the accident. fully sustain its position. That case holds -- Yerkes V. Latorbe Steel & Coupler Co., 131 that, whether the deceded was negligier or -- in -- App., 292, Proximate cause of injury to not in her attempt to put out the fire, it was -- child from -- toff. This attempt, and not the original negligence -- gate was operated, held to be the act of a -- of the defendant in starting the flame, that -- was the proximate cause of her death. This -- was on the wheels, Widger v. Philadelphia, -- case was followed by the Missouri Court of -- 217 Pa. 161, 64 A 249, Where someone kicked -- Appeals in Logan v. Wabash R. Co., 96 M. -- plaintiff while he was sitting near an open -- App. 461, 70 SW 724. In the case of Chat- -- teamoga Light & Power Co. v. Hodges, 109 -- proximate cause of the fall was the assault -- Tenn, 331, 70 SW 616, 97 Am. St. Rep. 844, -- and not the open cellarray. Miller v. Bahm- -- 60 L. R. A. 459, the injury resulted from an act committed by the injured party so --viously fraught with peril as should be suffi- -- stitute the intervening cause. Washington -- client to detre one of reasonable intelligence. -- The court, while reversing the judgment -- against the defendant, said: -- The rule has -- not the defendant -- toff. The rule has -- not the defendant -- toff.

that it ought to have been foreseen by the exercise of reasonable foresight,18 and the causal connection rendering negligence actionable exists upon the concurrence of all of these elements,19 and only upon such concurrence.20 What the wrongdoer could

pendent, intervening cause between the in- \[Utah\] 89 P 715; Akin v. Bradley Engineer-jury and the negligence of the railroad company \[n failing to announce station, falling to light platform, allowing obstructions on platform, and moving train before passen-gers had had reasonable chance to slight, to foresee what would naturally follow. Aichson, etc., R. Co. v. Calhoun, 18 Okl. 75, $9 P 207. Act of stranger in attempting to assist plaintiff to night from train held follows as the result of the wrong or neglit-between her injury while so alighting and the defendants' negligence in falling to stop although no one would reasonably have ap-the train. Martin V. Southern R. Co., 77 S. C. 370, $5 SE 3. Sale of firearms to minor held proximate cause of injury by reason of the minor's careless shooting, notwithstanding the independent act of the minor. Anderson v. Settergren, 100 Minn. 294, 111 NW 279. Proximate cause of injury from fall into open elevator shaft held negligence of defendant in not providing guard barrier around shaft or not giving warning of the danger, though the door through which plaintiff entered and near which the shaft was situated had been left unlocked by a third person. Gardner V. Waterloo Cream Separator Co., 134 Iowa, 6, 111 NW 316. 18. Williams v. San Francisco, etc., R. Co. \[Cai\]. 83 P 122; Florida East Coast R. \[Cai\]. 84 P 13 P12; Florida East Coast R. \[Cai\]. 85 P14; Raskell d. \[Cai\]. 86 P 133; Raskell d. \[Cai\]. 87 N 626; Bowers v. East Tennessee, etc., R. Co. \[Cai\]. 87 N 627; Neglit-R. Co. 144 N. C 647, $7 SE 453; International & G. N. R. Co. v. Rieden \[Tex. Civ. App.\] 107 SY 661; Kreigh v. Westinghouse, Church, Kerr & Co. \[C. A.\] 152 F 120. Instruction held erroneous when it placed right to recover on whether the injury could have been foreseen, since the injurious, proximate, and natural consequences of a negligent act are always deemed to have been foreseen. Elf Passo S. W. R. Co. v. Barrett \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 418, 101 SW 1025. Neglit-gence of conductor in telling passenger that the next stop was her destination and that it would be reached in twenty minutes held not proximate cause of sickness caused by flight in getting off at next place at which train stopped, without being told that it was her destination and without knowledge of tradition, and there being nothing to indicate that the place was a station. Florida East Coast R. Co. v. Wade, 53 Fla. 620, 43 S 775, Where one visiting defendants' wife knocked at eellar door instead of room in which the wife was, and upon receiving the invitation to "come in" in response to the knocked, opened the door and fell down the cellar stairs. Clark v. Fehlhaber, 106 Va. 803, 66 S 817. Might have been foreseen that horse might become fragmented and back wagon over embankment at bridge approach negligently left unparted. Wallace v. New \[Cai\]. 105 NYS 524. 105 NYS 524. 105. Injury to boats in boat house down ament from point where defendant allowed the reasonably have foreseen is not decisive. If the consequences follow in unbroken sequence from the wrong to the injury without an efficient intervening cause, it is sufficient if the wrongdoer in the exercise of reasonable care could have foreseen that some injury might result.\[21\] The proximate cause is not necessarily the last cause in point of time \[22\] nor the sole cause \[23\] but in cases of joint or concurrent negligence, no liability attaches on account of negligence which is not a concurring, proximate cause.\[24\]

**SS 4**. _Contributory negligence_,See * C. L. 1101--The doctrine of assumed risk has no application where the relation of master and servant does not exist.\[25\] Contributory negligence is the negligence of the plaintiff or the person injured directly contributing to the injury as a concurring, proximate cause thereof.\[26\] Such negligence endeavoring to escape from an enclosure into such accident may be attributed to any or all the street where the other colts were. Loft of the causes, but it cannot be attributed to seau v. Arp \[S. D.\] 114 NW7 701. Removal of a specific cause, unless without its operation rail guard at bridge approach held not prox- the injury would not have happened. Maidante cause of injury by reason of backing den V. Baylor Coal Co., 138 Iowa, 699, 111 NW7 57. When one creates a dangerous condition any guard at such place being the proximate cause. Wallace v. New Albion, 105 XYS 624.

Where quarantine existed only as to pastures in which infected cattle had deep or were reasonably have been anticipated, the origin-then running, negligence in allowing escape of uninfected cattle held not proximate cause. Indianapolis Union R. Co. cause for quarantine against pasture into which they escaped. Reynolds & Galveston, 24. That is unless the accident would not etc., R. Co. \[Tex.\] 18 Tex. Ct. Rep. 540, 102 SWV 724. Owners of property adjoining bank cannot recover from bank for injuries in-flicted on their premises by burglars in dy-namting the vaults of the bank on the ground that the bank was negligent in performing its doors to remain open so that bank was easily entered by burglars. Bradshaw v. Edgar Co. Nat. BK., 139 III. App. 37.

**21**. Illinois Cent. R. Co. v. Sller, 229 III.

**22**. Southern R. Co. v. Tankersley \[Ga. App.\] 60 SE 497. The mere question of priority in time is not determinative, the inquiry being directed to what was the effleent or responsible cause. Cincinnati, etc., R. Co. v. Aereas \[Ind. App.\] 82 N5 1008.

**23**. Rollestone v. Cassier \[Ga. App.\] 59 SE 442; Western Tube Co. v. Pederson, 128 III. App. 637; Miller v. Boston, etc., R. Co. \[Mass.\] 83 N5 299; Holmes v. Missouri Pac. R. Co., 207 Mo. 149, 105 SWV 624. The concurrence of other causes does not relieve the party guilty of the original wrong from liability. Madden v. Baylor Coal Co., 133 Iowa, 699, 111 NW7 57. Sequence is not destroyed by reason of contributory or concurring causes. Schell v. German Flats, 54 Miac. 445, 104 NYS 116. As where inter-veniling act is set in motion or induced by the first negligent act, and the consequence is one that should have been foreseen. Dan-menhower v. Western Union Tel. Co. \[Pa.\] 67 A 207. Causal connection between negligence of telegraph company in allowing wire to fall across electric light wire, and injury to one from the light wire, by fact that the injury was caused immediately by the light wire which was caused to sag or was pulled down by children by means of the telegraph wire. Id.

**Rule stated:** Where several causes proximately contribute to an injury, each being a sufficient cause without the operation of which the accident would not have happened.

- 10 Cur. Law. $ edge of the danger does not change the standard of care \[17\] and will not necessarily charge one with contributory negligence,\[88\] but knowledge or absence thereof should be considered,\[39\] and when one has knowledge of a danger he must exercise care proportionate to such known danger,\[40\] and there is no distinction between knowledge of the existence of a dangerous instrumentality and the recognition of the risk incident thereto.\[41\] More forgetfulness or abstraction of mind is not conclusive of negligence,\[42\] nor is the fact that a different course of conduct would have avoided the injury determinative of such question,\[43\] though it is held to constitute contributory negligence in some cases.\[44\] Contributory negligence may consist either of acts or omissions,\[45\] some of the most common phases of such negligence being failure to take proper precautions against a known danger,\[46\] failure to heed warnings,\[47\]

378, 58 SE 518; Purnell v. Whitford, Bartlett & Co. \[R. I.\] 67 A 421; Galveston, etc., R. Co. v. Berry \[Tex, Civ. App.\] 20 Tex. Ct. Rep. 156, 58 SE 124, 105 SW 1019; Wood v. St. Louis S. W. R. Co. \[Tex, Civ. App.\] 107 SW 563. An act \[40\], Bowman v. Ogden City \[Utah\] 93 P 561. conditions created by the negligence of another, and of which the person so acting is ignorant, is not contributory negligence, though it contributes to the injury. Kling.

Mfg, Co. v. Walton, 1 Ga. App.\] 403, 58 SE 115. Plaintiff not chargeable with negligence contributing to fire set by fraction engine being moved from his place by defendant, m- \[41\], and by the negligence of another, and by the negligence of another, and by the negligence of another, and by the negligence of another, and by the negligence of another, the negligence of another, and by the negligence of another, the negligence of another, and by the negligence of another, the negligence of another, and by the negligence of another, the negligence of another, and by the maining in a position known to have become dangerous,\[48\] or commission of obviously dangerous acts.\[49\] The fact that the injury received is greater than the plaintiff anticipated will not excuse his contributory negligence in not avoiding the risk.\[50\] .Persons with physical disabilities are chargeable with the duty of exercising ordinary care, due consideration, however, being given to the fact of such disabilities.\[61\] Voluntary intoxication will not excuse one from exercising such care as may reasonably be expected of one while sober.\[52\] A bare licensee is bound to exercise such care as is proper, in view of the restricted duty of care owed to him by the propriator of the premises.\[83\] Violation of statutory requirements is not necessarily contributory negligence,\[54\] nor is one necessarily guilty of contributory negligence in risking injury in order to save another from peril.\[55\] Errors of judgment in a position of danger do not constitute negligence,\[56\] and failure to choose safe course in a moment of peril caused by another's negligence is not necessarily negligence.\[57\]

Bartlett & Co. \[R. I\] 67 A 421. Contractor gram Co. v. Crejczyk, 125 Ill. App. 1. A cr-engaged in constructing overhead runways cumstance to be considered. Kansas City for eranes held not liable to painter, em- So. R. Co. v. Davis \[Ark.\] 103 SWF 603. The ployed by subcontractor, who was injured drunkenness of a person injured will not be while attempting to use as a support a rail would shed in determining whether he was which had been put in place but not fastened guilty of contributory negligence. Rollestone when could have discovered the condition of v. Cassifer \[Ga. App.\] 58 SE 442.

\[R. I\] 68 A 544. Stranper cannot hold manufacturer or allurement, attempted to reachufacturer for injury caused by defective commistance to be considered steps position of lubrications oil, where by ordinary care be could have discovered that held guilty of contributory negligence. Mas-such oil was dangerously defective. Berger carry v. Colwell \[R. I\] 68 A 719. Driver ofragon held negligent in attempting to turnragon, without looking at character of across street car track held negligence. Price around, in a private way in which he knew v. Rhode Island Co. \[R. I\] 66 A 200. See Street Railways, 8 C. L. 2004.

\[47\] Warning notices will be construed with reference to the purposes for which they were posted. Notice on door, "Positively no" which happened to be open. Bomberger v. Admittance, Keep Out," held not notice that American Iron & Steel Mfg. Co., 83 Pa. Super. one who might enter might be injured through negligence of owner by reason of the building not being safe for transaction of on left side of road when law required him usual business. Gardner v. Waterloo Cream to pass to right side, and was run into by Separator Co., 134 Iowa, 6, 111 NWF 316. One voluntarily assuming a manifestly dangerous corner on left side of road as required by the position is guilty of negligence per se, whether he could have gotten a safer place or not, as where one stood on running board of summer car outside the lowered bar. Hard-ing v. Philadelphia Rapid Transit Co., 217 Pa. 69, 66 A 151. To unnecessarily lean against railing known to be loose without prejudously examining it. Pamler v. Byrd, 131 Ill. App. 495.

\[48\] Sitting on wheel guard rail of bridge while two teams were about to pass each other at that point. Snow v. Coe Brass Mfg. Co. \[CConn.\] 64 A 831.

\[49\] It is negligence for a parent to send a child of tender years upon an errand which will expose him to danger which he has not capacity to appreciate or avoid. Sullenberger v. Chester Trac. Co., 33 Pa. Super. Ct. 12, Plaintiff was injured by explosion while pouring oil containing gasoline, which defendant had sold to him, upon a fire. Morrison v. Lee \[N. D.\] 138 NW 1025.

\[50\] Johnston v. New Omaha Thompson-Houston Elec. Light Co. \[Neb.\] 113 NW 526.

\[51\] Blind person. Keith v. Worcester, etc., R. Co. \[Mass.\] 82 NE 680.

\[52\] Keeshan v. Elgin, A. & S. Trac. Co., 229

\[53\] Ill. 633, 82 NE 360; Jefferson Theatre Pro-

\[54\]
ChildenSee * C. L. 1164.--A child is required to exercise only such care as could be expected from one of its age, capacity, and experience.68 Accordingly, children of certain ages are sometimes held to be absolutely incapable of contributory negligence.69 Such presumption being sometimes indulged, by analogy to the doctrine of the criminal law, where the child has reached an age of more or less discretion,69 and by the same analogy a prima facie presumption of incapacity is indulged as to children between certain ages,70 and a presumption of capacity is indulged as to children above a certain age,62 and where it appears that a minor has arrived at full discretion, the question as to his negligence is determined by the same rules as in the case of an adult.68 As a general rule, however, the question of capacity is one of fact to be determined by the jury,64 though in some cases children are held guilty of contributory negligence.

exercised ordinarily by a prudent person.

held to show contributory negligence. Reed Chicago & Alton R. Co. v. O'Leary, 126 Ill. V. Manierre, 124 Ill. App. 127. Child four years and four months old. De Amado v. Friedman \[Arlz.\] 89 P 588.

crossing. Sherwood v. New York, etc., R. Co., 60. Child seven years old conclusively presumed to be incapable of appreciating and avoiding danger. Sulenberger v. Chester

on railroad bridge to try to escape by run.

Trac Co., 33 Pa. Super. Ct. 12.

ing, when he could have gotten out on gr.

Gl. Child between seven and fourteen.

der and been safe. St. Louis, etc., R. Co. v. Tukey. Walter. Buffalo Cotton Mills \[S. C.J 57

Stamps \[Ark.\] 104 SVW 1114. One who has

SE 626: Birmingham R. L. & P. Co. v.

placed another in a position of sudden peri

Landrum \[Ala.\] 45 IS 198.

cannot be heard to say that the latter did

not adopt the most prudent course of action.

Hall, 122 App. Div. 250, 106 NYS 787. Child

Indianapolis Union R. Co. v. Waddington

over fourteen held to same standard of care

\[Ind.\] 82 NE 1030. Rule that one who is

as adult, but child under that age is charged

placed in a situation of danger without his

with duty of care commensurate only with

fault is not to be held to exercise of same

mental and physical capacity. See V. Mann and C. McIntosh, 122, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 211, 222, 231, 240, 241, 252, 263, 264, 265, 266, 267, 268, 269, 270, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 300, 311, 323, 334, 341, 350, 361, 371, 382, 383, 392, 393, 401, 41, 422, 433, 444, 455, 466, 477, 488, 490, 500, 515, 523, 534, 549, 556, 561, 572, 573, 586, 587, 593, 601, 594, 502, 503, 504, 515, 505, 539, 514, 523, 549, 557, 524, 558, 525, 536, 549, 560, 562, 563, 574, 564, 575, 576, 577, 588, 595, 596, 587, 597, 598, 599, negligence as a matter of law.\[85\] Capacity to appreciate danger is not alone sufficient to charge a child with contributory negligence. He must also have sufficient discretion to avoid the danger.\[64\] The question of capacity is immaterial where the act of the child is the sole cause of its injury.\[97\] Where a child is held incapable of due care, his negligence is not chargeable to the person who injured him, but such person is merely barred of the defense of contributory negligence which might otherwise be available.\[88\]

\_Comparative negligence.\[89\]_See_ C. L. 1104--In some few jurisdictions degrees of negligence are recognized, and the negligence of the parties will be compared,\[89\] but in most jurisdictions this doctrine has been repudiated.\[70\]

\_Last clear chance doctrine.\[89\]_See_ C. L. 1105--The doctrine of last clear chance is merely a phase of the doctrine of proximate cause, in which the negligence last in point of time is held to be the proximate cause to the exclusion of all prior acts of negligence.\[71\] This doctrine applies only where the defendant's negligence is subsequent to that of the plaintiff,\[72\] or where the peril is not discovered until the injury

old held not guilty of contributory negligence in exploding dynamite caps with an electric battery. Akin v. Bradley Engineer-ing & Mach. Co. \[Vdash.\] 92 P 903. Whether corresponding dimtinution of the recovery, goes to appreciate danger of crossing rail-\[Ga. App.\] 59 SS 442.

70. The law will not attempt to apportion v. Pennsylvania R. Co., 32 P. Super. Ct. 32.

Boy twelve years old killed while riding on each party. Bowring v, Willington Malle-top of elevator and attempting to get off able from Co., 5 Pen. (Del.) 594. 65 A 369.

through hole in shaft. Davis Adm? r. V. Ohio

See ante, this section, first subdivision.

Valley Banking & Trust Co. \[Ky.\] 106 SV 843.

71. Duncan v. St. Louis, etc., R. Co. \[Ala.\]

Boy thirteen years old riding bicycle and run over by horse. Ewing V. Callahan \[Ky.\] 105 SV 893: Houston, etc., R. Co. v.

105 SD 387. Girl fourteen years old injured by fall of door of freight elevator which between street car and vehicle. Zaloutuchin she was entering under direction of superior, v. Metropolitan St. R. Co. Mo. App.\] 106 SV 894: Outside & M. R. R. Co., 202

valence as to her capacity being conflicting.

548; White v. St. Louis & M. R. R. Co., 202

Daniels v. Johnston \[Colo.\] 89 P 811. Girl

Mio. 539, 101 SV 14. Crossing accident. Tus-fourteen years of age, seeing ear the desired calososion Belt F. Co. v. Fuller \[Ala.\] 45 PS 156: to take approaching 156 feet away and slow-in glown for crossing where a number of 838; Zander v. St. Louis Transit Co., 206

intending passengers stood waiting, at-

Mio. 445, 103 SW 1006; Filey v. Northern Pac.

tempted to cross track diagonally to join

R. Co. \[Mon.\] 83 P 948; Carr v. Minneapolis,

the group, when motorman who was behind

etc, R. Co. \[Neb.\] 113 NW 87; Chium v.

time suddenly turned on current with the in-tension of running by the group without

63. Where motorman might have, by due stopping, and girl in her right as the ear

sprang forward stood motionless and was

plaintiff's negligence in driving across track. striuck. Miller V. Cincinnati Trac. Co., 5 Ohio

Dobertry v. Des Moines City R. Co. \[Iowa\] N. P. (N. S.) 489.

65. Ordinary bright boy of twelve years, who lived in city where electricity was gen-street crossing. Grass v. Ft, Wayne & W.

graally and constantly used, who took hold of live wire for purpose of receiving a shock

train could have been stopped after deceased and was injured. Johnston v. New Omah

was struck and his life could thus have been Thomson-Houston Elec. Co. \[Neb.\] 113 NW

516, Boy eleven years old attempted to cross

horse car track five or six feet in front of

for so that brakeman, who saw the peril, horses going three miles an hour. Ramplace

v. Interurban St. R. Co., 188 N. Y. 288, 80

72. Does not apply where plaintiff's negil-upon street railroad track without stopping, etc. Birmingham R., L. & P. Co. v. Lan-drum \[Ala.\] 45 S 198.

01. Where boy of seven years, playing tag

in market shed, ran out and against fender

of passing street car. Meloy v. Philadelphia

Rapid Transit Co., 217 Pa. 189, 66 A 258.

68. Holmes v. Missouri Pac. R. Co., 207 Mo.

01. If the plaintiff's conduct be negligent, it will not defeat the action unless it amounts

01. The law will not attempt to apportion v. Pennsylvania R. Co., 32 P. Super. Ct. 32.

01. Howse v. Missouri Pac. R. Co., 207 Mo.

### 944 NEGligENCE SS 4.

10 Cur. Law. has occurred,\[78\] or where both parties, upon discovering the peril, endeavor to prevent the accident.\[14\] Willful or conscious wrong is not essential to this doctrine.\[78\] This doctrine does not necessarily exclude contributory negligence as a defense,\[78\] but such negligence must be predicated upon some act or omission subsequent to or concurrent with the last negligent act of the other party,\[17\] and upon some knowledge or notice of the peril on the part of the person in peril.\[78\]

\_Imputed negligence.\[86\]_e_s_ C. L. 1106--Where the doctrines of master and servant cannot be invoked, the negligence of the driver of a vehicle will not be imputed to mere passengers therein,\[78\] but one may be guilty of negligence in entrusting his safety to the driver of a vehicle.\[80\] In some jurisdictions it seems to be still unsettled as to whether the negligence of a parent will be imputed to a child in an action for the latter's benefit,\[81\] but in most jurisdictions it is well settled that such an imputation will not be indulged,\[82\] though the fact that the child was with its parent at the time of its injury may be considered as bearing upon the question of the defendant's negligence.\[83\] It is not necessarily negligence for a parent to allow a child to go upon the street unattended.\[84\] In any case the negligence of parents in allowing a child to go into the street unattended cannot be imputed to the child when it appears that the child exercised all the care that could have been required of an adult.\[85\] In determining whether parents were negligent, it is proper to consider their circumstances.\[86\]

The negligence of a bailee may be imputed to the bailor,\[87\] but this is evidently under the doctrine of respondent superior.\[88\]

seen hlm do so. State v. Cumberland & W.

Centre R. Co. \[Md.\] 68 A 197.

Taxas, etc., R. Co. v. Searchorough \[Tex.\] 621. Negligence of husband not Imputable Civ. App.\] 19 Tex. Ct. Rep. 828, 104 SW 408.

To write where buggy driven by him and in 74, Doherty v. Des Moines City R. Co.

\[Iowa\] 114 NW 183.

Tax, Incun v. St. Louis, etc., R. Co. \[Ala.\] 57 SE 687.

4& 418.

& 79, 77, Louisville & N, R. Co. v. Young

\[Ala.\] 45 S 238.

& 78, Southern R. Co. v. Stewart \[Ala.\] 45 S 238.

& 78, Negligence of driver not imputed to his companion where former was not the agent of or controlled by the latter. Donnelly v. Chicago City R. Co., 131 Ill. App.

& 78, Exels v. Muttschail, 230 Ill. 462, 82 NNE 872. Negligence of the driver of a wagon will not be imputed to one who is a gratulous passenger therein. Illinois R. Co. v.

& Hamml, 128 Ill, App. 152. The negligence of the husband in driving a vehicle is not immutable to his wife who is an occupant that it was her.

of. Cleveland, etc., R. Co. v. Dukerman, 120 Ill. App. 105. Automobile accident. Noakes v. New York Cent., etc., R. Co., 121 App. Div.

& 716, 108 NYS 622; Read v. New York Cent., etc., R. Co., 123 App. Div. 228, 107 NYS 1068; Nonn v. Chicago City R. Co., 232 Ill. 378, 83 NE 924; Zalountin V. Metropolitan St. R. Co., 123 Ill. 378, 83 Cr. \[Md. App.\] 168 SW 548. Negligence of driver of automobile not imputable to mere passenger who had no control over machine or the driver. Ward V. Brooklyn Highs R.

Co., 119 App. Dl. 487, 104 NYS 95. Negligence of master not Imputable to servant who was riding on truck with him when col col-183 N. Y. 116, 80 NNE 1025.

& 86, Cornovokl V. St. Louis Transit Co., 207 off v. Metropolitan St. R. Co., 105 NYS 229.

Negligence of driver of hook and ladder

truck which collided with street car not Im-putable to mere

putable to passenger on truck who had no longer

& 87, In action against railroad company for truck which collided with street car not Im-putable to mere

& 88, Ifve, the contributory negligence of vehicle to passenger on truck who had no longer

10 Cur. Law. NEGLIGENCE SS 5. 945

**SS 5.** \_Actions. Pleading. The petition or complaint.\_See 8 C, L. 1108--The sufficiency of the faets alleged to constitute negligence may be tested by a general demurrer. \[99\] The declaration is sufficient if it apprises the defendant of what is intended to be charged, \[99\] and if the defendant cannot escape liability by admitting all the facts charged, \[91\] and a complaint is sufficient on demurrer for want of facts if it contains a sufficient allegation of a single act of negligence. \[92\] The facts may be stated according to their legal effect. \[93\] While, therefore, the act of negligence complained of must be alleged, \[94\] and in some jurisdictions the specific facts must be alleged, \[95\] as a general rule a general allegation of negligence, that is an allegation of the ultimate act of negligence, is sufficient. \[99\] The complaint or petition must show a duty of due care on the part of the defendant, \[97\] and a general allegation of duty is insufficient, \[98\] nor will such duty be implied from a general allegation of negligence in the ultimate act charged as causing the injury. \[99\] The declaration in an action brought under the "attractive nuisance" doctrine must show an actual $e$ implied invitation to the person injured to enter upon the premises. \[1\] A general allegation of willfulness and wanton- to plaintiff. Sven Ins. Co v. Vicksburg, etc., \[Ind. App.\] 82 NE 584: Edwards' Admir v. S8. See Agency, 9 C. L. 58; Ballment, 9 C. L. 323. \[Welsh\] V. Franselli \[Vdash\] 90 P 644, On 88. Harden v. Georgia R. Co.\[Gap. App.\] 89 \[Gemurrer for want of facts. Lake Erte & WE 1122. \[Welsh\] 90. Complaint for injuries caused by horse being frightened on highway by steam from agement of elevator. Davis' Admir v. Ohio defendant's manufacturing plant held not subject to demurrer for want of facts. Yet. \[Welsh\] 948. One injured by an electric wire need to allegate that the wire was improperly in- tohase as to duty of manu- to ness is insufficient,2 but it is not necessary to particularize in what the wantonness or willfulness consisted.3 Wantonness and willfulness may be alleged in the alternative.4 Insufficient allegations of wantonness may constitute sufficient allegation of simple negligence, thus letting in the defense of contributory negligence,8 but such is not necessarily the result.9 In an action for negligence based on the violation of a statute, the statute need not be pleaded.7 Several distinct causes of action arising from separate and distinct acts of negligence need not be stated in separate paragraphs,8 but when the injury and the damages are the same, common-law and statutory negligence may be alleged in a single count.9 Local customs must be pleaded but not so as to general customs.10 In some jurisdictions freedom from contributory negligence must be alleged,11 while in others such an allegation is not necessary,12 contributory negligence being a matter of affirmative defense,13 but in either case a demurrer will lie to a complaint which shows contributory negligence on its face.14 The plaintiff cannot recover upon the last clear chance doctrine unless his petition alleges such negligence as warrants the application of such doctrine.15 A recovery may be had, however, under such doctrine on a count charging simple negligence.16 It is not necessary to negative that plaintiff was a trespasser,17 but in an action by a licensee the negligence charged must be such as will render the defendant liable, in view of the limited liability to licensees.18 The declaration must establish the connection between the wrongful act and the injury,19 and must connect all of the parties defendant with the negligence alleged.10 It must allege that the defendant's negligence

falling to allege how plaintiff came upon premises. Grausils v. Kellyville Coal Coa., 127 Ill. App. 311.

13, Sec post, this section, subdivision The Answer.

14 S 418.

14. Southeron R. Co. v. Rowe, 2 Ga. App. S 1019. Allegations that defendants wanton-ly, etc., exploded powder, etc., well knowing.

159 SEE 1115; Harris v. Southern R. Co., that said acts would probably result in injury to the plaintiff, and with reckless disregard of the consequences, held sufficient.

15. Drown v. Northern Ohio Trac. Co., 76 Bessemer Coal, Iron & Land Co., & Doak (Ala.) 44 6 627.

01. Oshic St. 234, 81 ENE 326. Complanti involving doctrine of last clear chance held sufficient.

01. Southeron R. Co. v. Stewart \[Ala.\] 45 S 51.

01. Allegations of willfulness or wantonness

01. Alicegations that the defendant's head was

01. Alicegations that the defendant

01.

was the proximate cause of the injury complained of.\[21\] Insufficient description of the injury and the damages may be cured by amendment,\[32\] as may also failure to negative contributory negligence,\[28\] but failure of the petition to allege knowledge nor notice on the part of the defendant is not cured by a traverse and a plea of contributory negligence.\[14\] Where the declaration charges common negligence of two defendants and the action is dismissed as to one defendant, the declaration is still good as to the other,\[25\] but the rule is otherwise where the declaration charges concurrent negligence.\[26\]

_The answer._See 8 C. L. 1110__.--The plea of not guilty puts in issue the averments of the declaration.\[27\] An argumentative denial is sufficient on demurrer.\[28\] That the accident was caused by agencies for which defendant was not responsible may be shown under a general denial.\[29\] Contributory negligence must be pleaded,\[30\] unless it is shown by plaintiff's own case \[31\] or by his own evidence.\[32\] Such a plea must allege the acts constituting such negligence.\[38\] Such a plea involves an admission of defendant's negligence.\[34\]

_The replication_ must answer the plea.\[38\] Allegations of mere conclusions are insufficient.\[36\]

_Issues and proof._See 8 C. L. 1110__.--The allegations and the proof must correspond,\[37\] but it is only necessary that the accident be proved substantially as alleged.\[38\] Where negligence is alleged in general terms, any specific act of negligence may be

parties were agents or servants of the inde- 1277, requires answer to state facts constitut- 128 ground of defense. De Amado v. Friedentractor, there being a misjudinder if they 128, 89 P 88.

were the latter. Richards v. O'Brien, 1 Ga. 31. Birsch v. Citizens' Elec. Co. \[Mont.\] 93 App. 107, 87 SE 907.

21. Lake Erie & W. R. Co. v. Moore \[Ind. App.\] 81 NE 85. Where neglect of mine 894. Motion for nonsuill is proper in such owner to perform statutory duty and order of mine manager concurred to produce in- 93 P 185; Brown V. Oregon R. & Nav. Co., 41

Jury, recovery was not precluded because no recovery could be had under the declaration on account of such' order. Willington Star Min. Co., 205 U. S. 60, 51 Law. Ed. 708. De-murrer is proper method of objecting to failure to state facts showing proximate cause. Bolen-Darmstadt Co. v. Williams \[Ind. T.\] 104 SW 867. It is sufficient to allege the facts from which the causal connection may be inferred without a formal charge as to causation, Hammond, etc., Elec., R. Co. v. Antonia \[Ind. App.\] 83 NE 766.

22. Atlantic Coast Line R. Co. v. O'Neill, 127 GA. 585, 56 SE 896.

01. Such amendment does not state new cause of action. Cahill V. Illinois Cent. R. Co. \[Iowa\] 115 NW 216; Ridings v. Marion County \[Or.\] 91 P 22.

01. Louisville & N. R. Co. v. Armstrong \[Ky.\] 105 SW 47.

25, 26. Frank Parmelee Co. v. Wheelock, 127 Ill. App. 500.

27. Smith v. Devlin, 127 Ill. App, 492.

01. Teague v. Bloomington \[Ind. App.\] 81 NE 103.

01. Though answers fled set up other reasons for the accident. Multonomah County v. Willingtone Co. \[Or.\] 89 P 389. Sustaining of demurrer to answer setting up other agencies as cause of the accident held not conclusive of right to prove, under general denial, that one of such agencies caused the accident. Id.

30, Birsch v. Citizens' Elec. Co. \[Mont.\] 93 N 940; Carr v. Minneapolis, etc., R. Co. \[N. D.\] 113 NW 972; Smith v. Ogden & N. W. R. Co. \[Utah\] 93 P 185. Rev. SL 1901, par.

31. Blackv v. Citizens' Elec. Co. \[Mont.\] 93 N 941; Carr v. Minneapolis, etc., R. Co. \[N. D.\] 113 NW 972; Smith v. Ogden & N. W. R. Co. \[Utah\] 93 P 185. Rev. SL 1901, par.

01. Blackv v. Citizens' Elec. Co. \[Mont.\] 93 N 940; Carr v. Milenegolils, etc., R. Co. \[N. D.\] 113 NW 972; Smith v. Ogden & N. W. R. Co. \[Utah\] 93 P 185.

01. Private that plaintiff was guilty of negligence particularly contributing to his injury held insufficient on demurrer. Southern R. Co. v. Hobbs \[Ala.\] 43 S 844. An answer which sets forth an act of omission of the plaintiff characterizes it as negligent, and alleges that is caused or contributed to the injury complained of sufficiently tenders the affirmative issue of contributory negligence. Lincoln

01. Hence is inconsistent with a denial of negligence. Birsch v. Citi 948:

NEGligence $ 5.
10 Cur. Law.

proved,39 and where several acts of negligence are alleged, a recovery may be had upon proof of any one which is sufficient to predicate liability upon,40 but where specific acts are alleged other acts cannot be proved.41 The right to rely on the doctrine of res ipsa loquitur is not lost by particularly alleging the cause of the accident.42 Matters treated by the parties as being in issue will be so treated by the court.43 Where the evidence fails to establish any causal.connection between the negligence alleged in an amendment and the injury, the amendment cannot be considered,44 and especially is this the case where the evidence also fails to establish the negligence alleged in such amendment.45 A custom known to the person injured may be considered though not pleaded.46

\_Evidence. Admissibility.\_See $ C. L. 1111.-Any circumstance or fact may be proved which affects the question of the degree of care required in the particular instance,47 and in an action against several defendants, each has the right to prove any facts which would relieve it from liability.48 Evidence of a general custom is admissible as bearing on the relation of the parties 49 and on contributory negligence,50 but evidence of particular custom is inadmissible.51 Physical conditions at the time of the accident may be proved,52 and so also conditions after the accident where they remain unchanged.53 Evidence of changes after accident is not admissible to prove negligence,54 but is admissible to show conditions at the time of the accident.85 As a general rule evidence of other transactions is inadmissible,56 but such evidence is admissible.

Footnote 48: That construction company was in charge of railway company\* track at time \[Wash.\] 94 P 644.

40. Louisville $ L. S. L. Trac. Co. v. Short

01. Louisville $ L. S. L. Trac. Co. v. Short

01. Louisville $ L. S. L. 245: Spaulding v. Metro-

on track by the employee of a Cuba. com-

politan St. R. Co. \[Mo. App.\] 107 SWV 1049;

pany, all three companies bring suit jointly. Galveston, etc. R. Co. v. Patillo (Tex. Civ.)

Draper v. Interborough Rapid Transit Co.,

App.\] 18 Tex. Ct. Rep. 941, 101 SWV 492.

41. Denver Consol. Elec. Co. v. Walters

01. Custom of carrying passengers on \[Colo.\] 89 P 815; Edwards' Admir v. Chesa-

freight elevator is proper to be considered in peake & O. R. Co. \[Ky.\] 108 SWV 303; Torb V.

determining negligence with reference to a Missouri Pac. R. Co. \[126 Mo. App.\] 846, 105 SWV 671; Tighe v. Atchison, etc., R. Co. \[Mo. App.\] 107 SWV 1034; Gibbons v. Lehigh Valley R.

50. Custom of workman to step out of way Co., 106 NYS 543; Hall v. Northern Pac. R. Co. \[N. D.\] 111 NWV 609. The specific acts of negligence charged must be proved to have proximately caused the accident. Wilming-

ton Star Min. Co. v. Fulton, 205 U. S. 60, 61 Law. Ed. 708. Specific allegations control and limit a general allegation of negligence.

Yoseph v. Metropolitan St. R. Co. \[Mo App.\] 107 SWV 1055. General allegation of joint negligence held controlled and nullified by subsequent allegations of specific acts of negligence. Ramsey v. Cedar Rapids & M.

C. R. Co. \[Iova\] 112 NWV 738.

42. Lobb v. Seattle, etc., R. Co. \[Wash.\] 93 P 420; Walters v. Seattle, etc., R. Co. \[Wash.\] 93 P 418. Contra. Kennedy v. Metropolitan St. R. Co. \[Mo. App.\] 107 SWV 16.

01. Where doctrine of last clear chance is treated by both parties as being in issue, it will be considered by the court as' being in issue, it is issue, though not raised by the plantiffs

01. A custom known to the person injured may be con-
    sidered though not pleaded.46

44.5 Shields v. Georgia R. & Elec. Co., \[Ment.\]

46. Cupaton of street cars to permit funeral

propositions to pass without break. Wilming-

ton City R. Co. v. White \[Del.\] 68 A 109.

47. Location of electric wires may be

proved on issue of negligence in insulation.

Denver Concol, Elec. Co. v. Walters \[Collo.\] 89 P 815.

88. That pole against which car conductor

89 P 815.

10 Cur. Law. NEGLIGENCE SS 5. 949

sible to show a dangerous custom,\[57\] or to show that the defendant recognized the existence of the danger which resulted in the accident,\[58\] or had notice thereof,\[59\] but such evidence is not admissible for any purpose unless the conditions are 'shown to be similar.\[60\] Evidence of other accidents is admissible to show knowledge of the defendant,\[61\] but not to show negligence or character of the thing which caused the accident,\[62\] nor is evidence that no similar accidents had ever occurred admissible.\[63\] Evidence of experiments is admissible in a proper case,\[64\] as is also expert testimony,\[65\] and demonstrative evidence.\[66\] Opinions of witnesses are not admissible.\[67\] A city ordinance in the nature of a police regulation is admissible in an action based on the violation of such ordinance for injury caused by such violation.\[68\] Evidence that the defendant was insured against liability on account of such accidents as the one constituting the basis of the suit is inadmissible.\[69\] The usual rules as to cross-examination of witnesses apply.\[70\]

moved after accident. Kath v. East St. Louis & Shich = different system of sewers pre- & B. R. Co., 232 Ill. 126, 83 NE 633. Vaidel. McKenzie v. New York, 119 App. 56. Testimony that witness had previously \[60\], 103 NTS 855.

told certain employees to place warning light \[63\] on subway track when they put obstructions \[64\], 103 NTS 855.

on it, as they had previously come near \[65\] that no ladder had ever broken with him \[66\], 104 NTS 855.

an employee for injuries caused by obstructive. Adams v. Gulf, etc., R. Co. \[Tex. Clv. Hons on track. Draper v. Interborough & Rabel Transit So., 108 NTS 686,

64. Evidence that steam was escaping from engine to such extent that engineer had to burg, etc., R. Co. v. Warrum \[Ind. App.\] 82 NG 934.

01. In considering whether it was negII- \[66\], 103 NTS 855,

sentence to fall to provide for inspection of \[66\] of the accident. Stone v. Union Pac. R. Co.

water power of a mill at night with regard \[\[41\]\] 89 P 715.

to effect on regularity of flow of water in river, the fact that inspection was provided \[66\], 104 NTS 855.

in the daytime may be considered. Desau- \[66\], 105 NTS 855.

, as to telle v. Nasonville Woolen Co. \[R. I.\] 66 A,

explosive character of gasoline. Waters- \[66\], 103 NTS 857.

59. Evidence of another employee that he \[66\], 109 NTS 107. Opinion of had several times come near being injured \[66\], 104 NTS 855.

while using same machine and that he had \[66\], 104 NTS 855.

, that he had admissible. Houston, etc., R. Co.

notified master. Meade v. Asiland Steel Co.,

30 Ky. L. R. 1164, 100 SW 821.

60. That witness, with one horse, had 134, 101 SW 823. Where, in action for death driven the distance driven by defendant with \[66\], 104 NTS 855.

two horses, one of which died, in less time overdrying and mistreatment, the court than that in which defendant drove it. Welch \[66\], 105 NTS 855.

, by means of \[66\], 105 NTS 855.

950 NEGLIGENCE SS 5. 10 Cur. Law.

Presumptions and burden of proof.See s C. L. 1113.--The burden is on the plaintiff to establish negligence by a preponderance of the evidence,\[11\] and this burden does not shift even where the doctrine of res ipsa loquitur is applicable.\[12\] Negligence will not be presumed in the absence of evidence thereof,\[13\] or from the mere facts of the accident,\[14\] but it may be inferred from facts and circumstances which reasonably impute it,\[15\] and under the doctrine of res ipsa loquitur a prima facie presumption of negligence arises when the accident is such that in the ordinary course of affairs it would not have happened except for the defendant's negligence.\[7\] This doctrine is

insured defendant, if admissible at all, should be confined to bias of witness. Id.

upon which our conclusion rests is firmly established. In the case of Wabash, etc., R.

could have seen everything in the building

for he had looked, and that the saw no posts

St. Rep. 193, this court through Mitchell, C.

at corners of elevator shaft into which he

fall, there was no prejudicial error in re-

servant, said. "Where, however, an action

fusing to allow him to be asked on cross-

is predicated upon an inquiry resulting from

examination whether he could have seen the

a cut or omission which could only become

elevator and whether he saw the posts.

Gardner V. Waterloo Cream Separator Co.,

the parties sustained to each other, and

134 Iowa, 6, 111 NW 316.

"T. Southern R. Co, v. Stewart \[La.\] 45 S

btained of itself was the failure to act with

51: Little V. American T.el. & T. Co. \[Del.\] 46

67 A 169; Siemonsma V. Chicago, etc., R. Co.

\[Iowa\] 115 NW 230; Lucke V. Graham, 123

of the parties as to show the defendant's

Mo., App. 212, 100 SW 505; Grenahaw V. Ashie-

ville & B. St. R. & Transp. Co., 144 N. C. 314,

56 SE 946. In determining whether the bw-

dem has been sustained, all the evidence in

the case should be considered. Dagger V.

North Jersey St. R. Co. \[N. J. Err. & App.\]

68 A 179. Enough to prove facts and cir-

cumstances from which jury might infer that

fall of elevator was due to defects therein

or to negligent operation. Glassman v. Surpless, SS3. State, 586, 103 NYS 789.

72. See post, this section and subdiffusion,

01. Negligence will not be inferred from

the plan on which a fright elevator was con-

structed, in absence of showing that it ought

to have been constructed differently. Rush

V. Thos. D. Murphy Co. \[Iowa\] 112 NW 814.

74. Jones v. Ft. Worth & D. C. R. Co. \[Tex.

Civ. App.\] 20 Tex. Ct. Rep. 83, 105 NW 1007.

Accident on freight elevator, V. Thos.

D. Murphy Co. \[Iowa\] 113 NW 814. Injury

to servant while in discharge of duties.

Elkton Consol. Min. & Mill. Co. V. Sullivan

\[Colo.\] 92 P 678. Employive injured by fall of

everyator caused by breaking of cog wheel

which could not have resulted from mere

use or wear. National Biscult Co. v. Wilson

\[Ind.\] 82 NE 916. Collision between vehicle

caused by running away-of horse attached to

one of them. Leucke v. Graham, 123 Mo.

\[Lip.\] 212, 100 SW 605. As between carrier

and passenger, see Carriers, 9 C. L. 466.

Note: "When an employee is injured while

operating a freight elevator, in mere

bening of an accident raises no presumption,

and cannot serve as proof of the master's

legligence. Hill v. Iver-Johnson, etc., Co.,

188 Mass. 76, 14 NE 303; Moran V. Racine

Vragon Co., 74 T 49u, 454; 26 NYS 882; Kirby

v. Ranler, etc., Co., 28 Wash. 765, 69 P 378;

Tobinson V. Wright, etc. Co., 94 Mich. 283,

53 NW 938; Davidson V. Varoffo, 46 3Him.

117, 48 NW 566; Haynie v. Hammond Packing Co., 126 Mo. App. 88, 103 SW 881, 47 Am.

St. Rep. 633, 27 L. R. A. 401; Rus V. Murphy

\[How\] 112 NW 814. The cases cited involving accidents from defective passenger elevators are but remotely in point upon the ques ques ques 10 Cur. Law. NEGLIGENCE SS 5. 951

most frequently invoked in cases involving the relation of carriers and passengers.\[17\] It does not apply where the surrounding circumstances leave room for a different presumption,\[78\] and the circumstances must, therefore, exclude the operation of all other causes or agencies than defendant's negligence.\[79\] It does not apply to cases involving complicated machinery,\[80\] or where the injury arises from conditions inherently dangerous,\[81\] or where the appliances in question were under the direct control of plaintiff.\[82\] The burden of proof on the whole case is not shifted, but the defendant merely has to meet the presumption arising from the circumstances,\[83\] but a presumption of negligence involving defective conditions retains its force until the defendant has proved affirmative acts of care.\[84\]

The plaintiff must also prove by a preponderance of the evidence that the negligence charged was the proximate cause of the injury.\[88\]

126 Mo. App. 684, 105 SW 671; McGowan v. 588, 46 NYS 357); fall of boom of derrick Nelson (Mont.1) 2 P4; 601, Cunningham V. Dady (Reed V. McCord, 18 App. Div. 381, 46 NYS \[N. Y.\] 88 NE 689; Biee. W. Wheeling Elec. (Graham v. Cochran, 1 N. Y. St. Rep. 583);

952

NEGLIGENCE SS 5.

Contributory negligence will not be presumed in the absence of evidence thereof,\*\* but, on the contrary, freedom from such negligence will be presumed in the absence of any evidence on the subject,\*\* or may be negatived by the circumstances.\*\* While, therefore, in some jurisdictions the burden is on the plaintiff to establish freedom from such negligence,\*\* and in others such burden depends upon the circumstances,\*\* or the question is more or less unsettled,\*\*11 \*\*in the great majority of the states such burden is on the defendant.\*\*12 \*\*The specific acts of negligence must be shown,\*\*13 \*\*but a preponderance of the evidence is all that is necessary,\*\*14 \*\*and the plaintiff's evidence as well as that of the defendant must be considered.\*\*15 **The court furnishes the standard** **"** and determines whether there is any evidence of negligence,\*\*16 \*\*contributory negligence,\*\*17 \*\*or proximate cause,\*\*18 \*\*or defendant's connection with the accident,\*\*19 **but where there is** **19 **G. Galveston, etc., R. Co. v. Berry \[Tex\]**son v. Sumper Valley R. Co. \[Or.\] 93 P 356;** Civ., App.\] 20 Tsc., Ct. Rep. 156, 105 SW 1019.** Norman v. Bellingham \[Vwash.\] 89 P 559. See No presumption of negligence on part of de-**.\*\*190 \*\*C., 144 **N. C., 569, 57 SE 209. Acts 1899, p.** Co., 145 \*\*N. C., 145 \*\*N. C., 146 \*\*N. C., 147 \*\*N. C., 148 \*\*N. C., 149 \*\*N. C., 149 \*\*N. C., 149 \*\*N. C., 149 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 153 \*\*N. C., 154 \*\*N. C., 155 \*\*N. C., 156 \*\*N. C., 157 \*\*N. C., 158 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 153 \*\*N. C., 154 \*\*N. C., 156 \*\*N. C., 157 \*\*N. C., 158 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 153 \*\*N. C., 154 \*\*N. C., 155 \*\*N. C., 156 \*\*N. C., 157 \*\*N. C., 158 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 154 \*\*N. C., 156 \*\*N. C., 157 \*\*N. C., 158 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 151 \*\*N. C., 159 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 153 \*\*N. C., 154 \*\*N. C., 155 \*\*N. C., 156 \*\*N. C., 157 \*\*N. C., 158 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 154 \*\*N. C., 159 \*\*N. C., 151 \*\*N. C., 153 \*\*N. C., 154 \*\*N. C., 155 \*\*N. C., 156 \*\*N. C., 157 \*\*N. C., 158 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 153 \*\*N. C., 154 \*\*N. C., 155 \*\*N. C., 156 \*\*N. C., 157 \*\*N. C., 158 \*\*N. C., 159 \*\*N. C., 159 \*\*N. C., 150 \*\*N. C., 151 \*\*N. C., 159 \*\*N. C., 151 \*\*N. C., 152 \*\*N. C., 153 \*\*N. C any evidence, the questions of negligence,2 contributory negligence,3 and proximate

which defendant was injured by reason of Louisville & N. R. Co. \[Ky.\] 107 SWP 203; a defective passageway, Jackson v, Ross, 1 Ga. App. 192, 57 SE 913,

2. Doyle v. Eschen \[Cal. App.\] 89 P 836; Vlimington City R. Co. \[Pex.\] 68 A 671; Jones v. Wilcox \[S. C.\] 60 SE 231; Puymin v. Oregon Short & A 1009; Southern Cotton Oil Co v. Gladman, 1 La. R. Co. \[Utah\] 82 P 762. Held question of 1 Ga. App. 259, 68 SE 249; Western & A. R. fact, as to what switchman could and should - Co. v. York, 128 A 68A 681, 68 SE 183; John & van vaneman, 76 Kan, 278, 89 P 677; Meade v. Ashland Steel Co., 30 Ky. L. R. \[T.\] 144, 100 SWP 821; Chesapeake & Potomac \[Tex., & T. Co. v. Scarborough \[Tex., Civ., Tel. Co. of Baltimore City Y. Leysher \[Md.\]\] 19 Tex. Ct. Rep. 828, 104 SWP 408. De- 68 A 619; Griselman v. Schmidt \[Md.\] 68 fendant's notice of defects or dangers. Jones & A 203; Baltimore, etc., R. Co. v. Trader \[Md.\] 8 V. Ogden City \[Utah\] 89 P 1006. When steps -88 A 12; Smith v. Twin City Rapid Transit which broke with plaintiff were old and Co., 102 Minn. 4, 112 NW 1001; Merkel v. worn, the question as to whether defendant Jersey City, etc., R. Co. \[N. J. Err. & App.\] 98 A 74; Goforth v. Southern R. Co., 144 N. C. \[S.\] 68, 57 SE 209; Sealey v. Southern R. Co., 108 NYS 937. Negligence of railroad TC. A.\] 151 F 763; Ladeade Gaslight Co. v. Company in furnishing unsafe tools for re-Cottone \[C. C. A.\] 152 F 629,

Collision between wagon and engine at

short Coving. McNamara v. Chicago, etc., R. Co., 126 Mo. App. 152, 103 SWP 1093,

verdict for injuries sustained by reason of

Street car collision. Edge v. Southwest

glaintiff's horse being rightened by automo-

Zo. Elec. R. Co. 206 Mo. 471, 104 SWP 90.

blie. Horak v. Dougherty \[Iowa\] 114 NWP 583. Employing of Independent contractor in-

White v. St. Louis, etc., R. Co., 202 Mo. 539,

lured by ungarded set screw in defendant's

101 SWP 14. Person run over by street car. mll. Columbia Box & Lumber Co. v. Drown

San Antonio Trac. Co. v. Haines \[Tex. Civ. App.\] 116 F 459. Negligence of defend-

Am'ts servants, who were loading logs on

Injury caused by slelekh being eewank in

cars, in causing injury to employe of sur-

switch of street car track. Miller v. Boston,

ververo general engaged in scaling the logs,

etc., R. Co. \[Mass.\] 83 NE 990. Finding of

negligence where barrel fell out window

NVP 881. Where elevater passenger killed

upon child, held sustained. Calcutcuta v. by

bary striking of his head against top of ungur

lovaldi, 123 Mo. App. 347, 100 SWP 675. Action by blacksmith for injury from "kick of

being no gate to elevator car, and doors to

horse brought by defendant to be shod,

sue being whether horse was vicious to

knowledge of defendant who did not notify

plaintiff. Adams v. Simpson, 31 Ky. L. R. \[T.\] 604, 103 SWP 247.

Adjoining over held not guilty, as mat-

In North Carolina under Rev. Laws N. C. \[T.\] 1905, 848, court has no right to direct ver-

to water pipe after notice of defects. Flitz-

dict on plea of contributory negligence.

United States Leather Co. v. Howell \[C. C.\] 151 F 444.

Finding that injury to child by street car at

A.\] 151 F 444.

where the evidence is conflicting, ques-

tion of negligence is for jury. Brunson v. Southwestern Development Co. \[Ind. T.\] 104

SWP 593; Adams v. Bunker Hill & Sullivan

Collision between hock and ladder truck

Min. Co., 12 Idaho, 637, 89 P 624; Parry two feet deep, two feet wide, and six feet long. Purcell v. Chicago, 231 Ill. 164, 83 NE 127. Where passenger went beyond most forward passenger car in his search for smoker, and was struck by express truck. Clark v. American Exp. Co. \[Mass.\] 83 NE 865. Injury to street car passenger while alighting. Maxwell v. Fresno City R. Co. \[Cal. App.\] 89 P 367. Whether visitor became a mere license by not using the safest road, or way, over the premises. Nolan v. Bridgetton & Millville Trac, Co. \[N. J. Err. & App.\] 85 A 992. Evidence held sufficient to take question to jury, as to whether defend-ant's engineer willfully started engine while plaintiff. A trespasser, was alighting therefrom. Forrest v. Georgia R. & Banking Co., 128 Ga. 77, 57 SE 98. Whether injury to resai estate from leakage in city water main was caused by city's negligence, was for jury, where there was evidence that city had notice of leakage and that no repairs had been made for a long time. Herron v. Duquesne Borough, 84 Pa. Super. Ct. 281. Where defendant, though warned, took no precautions to prevent ice from falling from gutter pipe, except to put salt thereon, the question whether he was guilty of negligence is for the jury. Richardson v. Nelson, 221 Ill. 254, 77 NE 583. Where eredILITY witnesses is involved, the question is for the jury. Whitehouse v. Edwards \[C. A.\] 152 F 72. \[N. J. Err. & App.\] 67 A 21. Whether em-66 A 1005; Western & A. H. Co. v. York, 128 Gs. 687, 58 SE 188: Southern Cotton Oil Co. v. Gladman, I. Ga. App.\] 59, 58 SE 249: Geiselman v. Schmidt \[Mid.\] 68 A 202; Smith v. Twin City Rapid Transit Co., 102 Minn. 4, 112 NW 1601; La Follette Coal, Iron & R. Co. v. Minton, 117 Tenn. 4, 115 101 SW 178; Houston, etc., R. Co. v. McHale \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 161, 105 SW 114. Hack driver injured by obstruction in street. City of La Porte v. Henry \[Ind. App.\] 83 NE 655. Contributory negligence is an ultimate fact to be determined by the jury from all the evidence. Indianapolis St. R. Co. v. Demarere \[Ind. App.\] 80 NE 687. Demurrer, on ground. that complaint showed contributory negligence, held properly overculed. Cleveland, etc., R. Co. v. Schneider \[Ind. App.\] 80 NE 985. Servant injured while using machinery. Meade v. Ashland Steel Co., 30 Ky. L. R. 1164, 100 SW 821. Employee fell from hand car. Mack v. Chicago, etc., R. Co., 123 Mo. App.\] 831, 101 SWV 142. Contributory negligence of servant in action against master. Perrotta v. Richmond Brick Co., 108 NYS 10. Injury to passenger from falling of car window sash. Cleveland, etc., R. Co. v. Hadley \[Ind.\] 82 NE 1025. Injury to person crossing street car track. Birmingham K., L. & P. Co. v. Landrum \[Ala.\] 45 S 188. Person run over by street car. San Antonio Trac. Co. v. Haines \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 606, 100 SW 788. Driving on street car track where rest of road was rendered almost impassable by snow. Miller v. Boston, etc., St. R. Co. \[Mass.\] 83 NE 990. Where plaintiff was injured by defective brake on car he was moving. Fassbinder v. Missouri Pac. R. Co., 126 Mo. App.\] 563, 104 SW 114. Collision between wisdom and engine at street crossing. McNamara v. Chicago, etc., R. Co., 126 Mo. App.\] 152, 103 SWV 103. Whether child injured by vehicle bad, at the time. abandoned game of ball which he was playing in street in violation. \[Mass.\] 83 NE 985. \[Mass.\] 83 NE 985. \[Mass.\] 83 NE 986. \[Mass.\] 83 NE 986. \[Mass.\] 83 NE 987. Where eredILITY witnesses were selected by air. Person v. Gabriel \[Mass.\] 83 NE 988.

Suitan \[Kan.\] 93 P 632. Pedestrians killed Premier Typewriter Co. \[Wash.\] 93 P 209. at railroad crossing. Wamsley v. Cleveland, Where plaintiff was injured by reason etc., R. Co. \[Ind. App.\] 82 N 490. Acededent if his horse being frightened by steam from at railroad crossing. Cleveland, etc., R. Co. \[Defendant's cooperative plant near highway. \[Ind. App.\] 80 NE 985. Collision between train and wagon at crossing. Hutson v. Southern California R. \[Fried by an engine standing partly on Co., 150 Cal. 701, 89 P 1093. Whether six-teen year old girl riding with stepfather who negligence in driving across 12 front of the was driving was guilty of negligence contributing to her injury from collision be- etc., R. Co., 131 Wis. 638, 111 NW 683. When tweem vehicle and street car, Zuluothin v. plaintiff plaintiff doesn uncovered hatchway of Metropolitan St. R. Co. \[Moc App.\] 106 SWP - 548. Collision between defendant's street car and plaintiff's buggy, in crowded street. Scott v. San Bernardino Valley Trac. Co. \[Cal.\] 93 P 677. Fireman, riding on hook and ladder truck, injured by collision with street car. \[Fried by an engine standing partly on Burleigh v. St. Louis Transit Co., 124 Mo. \[App.\] 724, 102 SWP 621. Where motorsman injured. City Ft. Collins v. Yetter jumped from ear when it was about to collide with another car. Edge v. Southwest Mo. \[Ziec. R. Co., 208 Mo. 471, 104 SWP. Plaintiff fell into elevator shaft while going along dark passage in defendant's warehouse. \[Fried by an engine standing directly on Burleigh v. \[Fried by an engine standing directly on Burleigh v. \[Fried by an engine standing directly on Burleigh v. \[Fried by an engine standing directly on Burleigh v. \[Fried by an engine directly on Burleigh v.

cause * are ordinarily questions of fact for the jury. There is no question for the jury, however, where the probabilities are equally balanced as to the cause of the accident,\* and where the facts are undisputed and the inferences are undisputable,\* negligence,\* contributory negligence,\* and proximate cause * become question of law for the court. These rules apply, of course, to the particular phases of negligence,

Mich. 401, 103 NVW 829: Judd v. Chesapeake,

Grimm v. Omaha Elec, L & P. Co. \[Neb.\] 112 etc., R. Co., 18 Ky., L. R. 747, 37 SW 842;

Nomstuhl held proper. Vinson y. Willingham Cotton Mflfls, 2 Ga. App. 53, 58 SE 413.

4. Fogarty v. Southern Pac. Co. \[Ca1.\] 91 P

850: United States Cement Co., V. Cooper \[Ind. App.\] 82 NE 881: Mack v. Chicago, etc., R. Co., 123 Mo. App. 531, 101 SW 142; Boucher v. Larochelle \[N. H.\] 68 A 870; Goforth v. Southern R. Co., 144 N. G. 569, 57. SSE 209;

Trickey v. Clark \[Orr.\] 93 P 457; Jones v. Wilcox \[S. C.\] 60 SE 231; Chicago, etc., R. Co., v. Morris \[Wyo.\] 93 P 664. Whether defective brake on car, furnished by defendant to gravel company, was cause of injury to

that evidence strongly preporated against servant of latter, Fassbinder, v. Missouri

Pac. R. Co., 126 Mo. App. 563, 104 SWW 1154.

Where plaintiff slipped on piece of ice and

Co. \[R. I.\] 66 A 200. Where there was no her foot went into a hole in defendants' side-

walk and she was injured. Maywood v. New

Tork. 119 App. Div. 100, 103 NYS 856. As to

whether negligence or foreman was in ca-

pacity of fellow-servant or in failure to tur.

this safe place to work. Bokamp v. Chicago

&. A. R. Co., 123 Mo. App. 270, 100 SW 689.

5. McGouw v. Nelson \[Montl.\] 92 P 40.

Court's duty to nonsuit where plaintiff's evidence is equally consistent with absence of

negligence as with existence thereof. Hummer v. Lehigh Valley R. Co. \[N. J. Err. & App.\] 67 A 1061. As to proximate cause.

Louisville & N. R. Co., v. Guestya Adm'r \[Ky.\] 106 SW 817. When the accident was due to

several possible causes, but the circumstances point particularly to defendants' negligence as the specific cause, the case is for

the jury. Adams v. Bunker Hill & Sullivan

Min. Co., 12 Idaho, 637, 89 P 624.

6. The court may disregard testimony as

physically impossible. Zalotuchin v. Metroplitan St. R. Co. \[Mo. App.\] 106 SW 548.

7. Rimmer v. Wilson \[Col.\] 93 P 1110;

Indianapolis Trac. & T. Co. v. Holtselaw

\[Ind. App.\] 82 NE 896; Baltimore, etc., R. Co.

v. Trader \[M.J.\] 68 A 12; Merkle v. Jersey City,

etc., R. Co. \[N. J. Err. & App.\] 68 A 74; Petersen v. Union Iron Works \[Wash.\] 93 P 1077;

84. Louis, etc., R. Co. \[C. A.\] 153

01. Held no evidence of negligence in

driving hired horse near railroad crossing

when he was frightened, reared, fell, and

was killed. Cumberland Tel. & T. Co. v.

Tally, 30 Ky. L. R. 1328, 101 SV 307. Judgment for defendant non obstante veredic

sustained where it appeared that an employe

on a vessel in course of construction slipped

on a piece of enamel which had fallen on the

deck, and in falling stuck his arm into a

bucket of hot enamel about to be lowered

through the hatch by an employee of defendant,

at, an independent contractor, it not appearing who spilled the enamel or how long

It had been split, or that the bucket of enamel

was improperly where it was. Foster v.

American Bitumasite Enamel Co., 217 Pa.

144, 66 A 331.

Defendant not harmed by submission

question of negligence to jury where evidence showed negligence as matter of law.

In this paper, the author is aware of the fact that the jury is not

of the jury. Adams v. Bunker Hill & Sullivan

Min. Co., 12 Idaho, 637, 89 P 624.

6. The court may disregard testimony as

physically impossible. Zalotuchin v. Metroplitan St. R. Co. \[Mo. App.\] * 10 Cur. Law. NEGligENCE SS 5.

contributory negligence, and proximate cause, such as negligence with regard to

- apolls St. R. Co. v. Coyner, 39 Ind. App. 510, v. United Egminecering & Const. Co., 120 App. 80 NE 168. Held error to refuse directed
- verdict for defendant, where workman who
- was ignorant of working of a "picker" in a
- fire. Morrison v. Lee \[N. D.\] 113 NW 1025. cotton mill thrust his hand into it in en-
- directed verdict for defendant held proper
- deavoring to uncheck it without knowing, where brakeman injured while dislighting from
- according to his own testimony, whether he
- vould get hurt or not. Woolerington Mills
- to track, where he was well acquainted with
- v. Cox \[C. C. A.\] 157 F 64. Affirmative
- charge for defendant held proper where it
- appeared that accident was caused by failure
- of deceased to heed warnings and get off the
- under while cleaning rolls of leather pressing
- track. Wade v. Louisville & N. R. Co. \[Fla.\]
- machine without stopping machine. Best v.
- Williamson Staple Co. \[Pa.\] 67 A 205. Judg-
- metfor plaintiff reversed where it appeared
- which they had been frightened only a little
- what he was hurt while **extreme** on wheel
- while before when they passed it first time.
- guard roll of bridge when two of defendant's
- Louisville & N. R. Co. v. Armstrong \[Ky.\]
- teams were about to pass each other at that
- 165 SWV 473. Where one voluntarily and un-
- point. Snow v. Coe Brass Mfg. Co. \[Conn.\] 66 A 881. Verdict for plaintiff set aside
- southern R. Co. v. Rowe, 2 Ga. pp. 557, 59 where it appeared that plaintiff's heee left
- SHE 462. Where plaintiff ran into side of
- atreent ear just after having run out of way
- nine, became frightened and turned upon car
- v. Ashville & B. St. R., & Transp. Co., 144
- etc., St. R. Co., 102 Me. 186, 64 A 388. Where
- of sight and hearing before crossing street
- vanickel against side of defendants' wurgeon
- \[Iowa\] 114 NW 183. Error to charge that it
- was not negligence per se to drive across
- horses. Henson v. Arthur, 217 Pa. 166, 64 A
- street car track without locking and listen-
- guilty of contributory negligence. Donohue
- no. Price v. Rhode Island Co. \[R. L.\] 66 A
- 200.
- \[Plaintiff injured at railroad crossing. Mis-
- souf Pac. R. Co. v. Trahern \[Kan.\] 91 P 48.
- could have readily been seen. McClellan v.
- Grzrick \[Vwash\] 92 P 1087. Hotei guest who
- had reached hotel by ascending steps over a
- retaining wall maintained by defendant rail-
- road company went out of hotel after dark
- and fell over wall. Watson v. Manitou, etc., etc., R. Co. \[Colo.\] 92 P 17. Servant killed
- while standing on number and cable of train
- car on which he was forbidden to ride. Union
- Coal & Coke Co. v. Sundberg, 36 Co., 85
- 319. Where plaintiff left his barn door open
- towards fire on railroad right of way. Brown
- v. Oregon R. & Nav. Co., 41 Wash. 688, 84 P
- 400. Person twenty-four years old held
- guilty of negligence contributing to his
- death where, though he had been warned not
- to go near a fence on which an electerre wire
- had fallen, placed his hand on the fence and
- pointed to the wire with his finger which
- came within eight inches of the wire, where-
- upon he received a shock which killed him. Carroll v. Grande Ronde Elec. Co., 47 Or. 424,
- 84 P 386.
- \[Telephone Inemann held guilty of negil-
- hence in climbing a pole which was leaning
- and cutting the wires, without first testing
- the pole by tests with which he was familiar.
- though he had seen another climb the pole
- little while before when the wires had not
- been cut. La Duck v. Hudson River Tel. Co.
- \[N. Y.\] 83 NE 583.
- been to the building before the accident, and
- who, in dark hall, mistook cellar door for
- apartment-door and fell, held guilty of con-
- tributory negligence. Van Ness v. Murphy.
- \[Town\] 114 NW 183. Error to charge that it
- was not negligence per se to drive across
- \[Town\] 114 NW 183. Error to charge that it
- was not negligence per se to drive across
- street car track without locking and listen-
- guilty of contributory negligence. Donohue
- v. Braaf, 122 App. Div. 552, 107 NYS 577.
- Plaintiff injured at railroad crossing. Mis-
- souf Pac. R. Co. v. Trahern \[Kan.\] 91 P 48.
- Evidence held not to show freedom of pedes-
- train from negligence contributing to collision
- \[Town\] 958 NEGLIGENCE $ 5. & 10 Cur. Law. children,10 act of God,11 res ipsa loquitur,11 sudden peril,13 contributory negligence of -children,14 last clear chance,15 and risking life to save another.16 Admitted facts should not be submitted to the jury.17

Footnote 14: http://www.

10 Cur. Law. NEGLIGENCE SS 5. 959

tory negligence, \[19\] burden of proof \[20\] as to negligence \[21\] and contributory negligence, \[22\] submission of issues \[23\] as to the relation of the parties, \[24\] negligence, \[25\] contributory

R. Co., 2 Ga. App. 470, 58 SE 688. Defnition expression "burden of proving" was used in of ordinary care held substantially in ac-connection with statement of defendants' coradance with that given by Code 1895, & duty of meeting the presumption of negill- $ 2885. City of Atlanta v. Harper, 129 Ga.,

gence under the doctrine of res ipso loquitur. 415, 59 SE 230. Use of expression what Cleveland, etc., R. Co. v. Hraley \[Ind.\] 82 NE blaintiff"thought was proper and prudent" \[1025. Instruction held not misleading as for her to do held not error when construed trending to lead jury to believe that burden in connection with other parts of instruction.

of proof had shifted to defendant under doctrine v. Southern R. Co., 77 S. C. 370, 58 SE 3.

& L. C. R. Co., 108 NYS 265.

30. Court should not tell jury what facts \*\*22. Charge on contributory negligence constitute contributory negligence. Conkin

which did not place burden on defendant as C. C. Co., V. Walsh, 131 Ill. App. 609. In contributor negligence pleaded as destruction that certain facts constituted con-

fense held properly refused. Solen-Darnall tributory negligence held properly refused.

Coal Co. v., Williams \[Ind. T.\] 104 SW 876. Cleveland, etc., R. Co. v. Schneider \[Ind.\].

Instructation held erroneous as learning ques-
960 NEGLIGENCE SS 5. 10 Cur. Law.

negligence,28 and proximate cause,29 failure to submit issues 28 or to give definitions,29 failure to limit the effect of evidence admitted for a particular purpose.30

building, it was not error to instruct that plaintiff claimed to have assumed that defend would place a spark arrester on the engine. Underwood v. A. W. Stevens co., 149 dieatlich instruction on knowledge as element Mich. 29, 14 Delt. Leg. N. 296, 112 NW 487. Instructon in action against street railroad company and the owners of a coach for injuries sustained by passenger in coach in a collision, instruction held erroneous in fail-ling to define and limit the liability of the strict railroad company with reference to the separate acts of negligence charged Lagan, 106 TX. 268, 106 SWV 51. Failure to give against it, there being no sufficient allegment of joint negligence. Ramsey v. Cedar Rapids, etc., R. Co. \[Iowa\] 112 NW 798. Instruction as to railroad crossing bell being out of order held harmless though not supported by evidence, where it appeared that Pecos & N. T. R. Co. \[Tex. City. App.\] 30 Tex. Ct. Bell did not ring because it was disconnected. Cleveland, etc., R. Co. v. Schneider \[Ind. App.\] 80 NE 985. Error to instruct on negliem.

Footnote 28: The 106 TX. 268, 106 TX. 268, 106 TX.

10 Cur. Law. NEGLIGENCE SS 5. 961

Verdicts and findings. See * C. L. 1119.-It is improper to submit a special interrogatory as to what an ordinarily prudent man would have done under the circum-

Draper v. Interborough Rapid Transit Co., 108 NYS 686. Error in ignoring evidence that

vervning lights had been placed near obstructions on track which caused week in

function falling to advert to doctrine of in-

which employ of construction company was

traveling cause was not erroneous. Clin-

injured, held not cured by subsequent

cinnati, H. & D. R. Co. v. Acreia \[Ind. App.\]

strictions. Id. Substantial conformity between instructions and pleadings as to posl-

of act of God In form of unusual rainfall

tion of one whom deceased sought to rescue

hell properly refused. Galveston, etc., R.

from approaching train held sufficient, the

real issue being the peril of the stranger.

Texas, etc., R. Co. v. Skarbongren \[Tex. Civ. App.\] 107 SWP 588.

Any. 19 Te.-C. Rcp. 288, 104 SWP 48. It

error to charge a jury with reference to the

docting of the last chance where there is no

allegation in the petition which would war-

rant an application to the rule of "last

chance." Cincinnati Trac. Co. v. Kroger, 10

Ohio C. C. (N. S.) 64. Instruction on last

clear chance held not on weight of evidence

where there was no evidence thereof. In-

Houston & T. C. R. Co. v. Franklin

Appl.) 107 SWP 94. Instruction as to last clear

chance held correct. Whit e. St. Louis, etc.

, when no instruction was requested. Zalo-

R. Co., 202 Mo. 539, 101 SWP 14. Where are

of plaintiff alleged to constitute contributory

negligence continued up to very moment of

the accident, an instruction was not erroneus because it failed to state that plaintiff's negligence, in order to preclude a recovery, must have proximately caused or

contributed to the injury. Janson V. South-

ern Pac. Co. \[Cla. App.\] 89 P 616. Instruction as to doctrine of last clear chance held

erronces as not within the issue. Doherty

v. Des Moines City R. Co. \[Tow\] 114 183.

Giving of such instruction held not harmless

since jury might have been led to believe

that they could disregard plaintiff's negligence. Id. Instruction one's duty to

exercise care to avoid the consequences of

another's negligence does not arise until the

danger is impending or the circumstances

are such that an ordinarily prudent man

would have reason to apprend its exisit.

, when no instruction was requested.

, when no instruction was requested. Zalo-

v. Des Moines City R. Co. \[Tow\] 114 183.

Giving of such instruction held not harmless

since jury might have been led to believe

that they could disregard plaintiff's negligence. Id. Instruction that one's duty to

exercise care to avoid the consequences of

another's negligence does not arise until the

anger is impending or the circumstances

are such that an ordinarily prudent man

would have done under the circum-

would have reason to apprend its exisit.

, when no instruction was requested.

, when no instruction was requested. Zalo-

v. Des Moines City R. Co. \[Tow\] 114 183.

Giving of such instruction held not harmless

since jury might have been led to believe

that they could disregard plaintiff's negligence. Id. Instruction that one's duty to

exercise care to avoid the consequences of

another's negligence does not arise until the

anger is impending or the circumstances
969 NEGOTIABLE INSTRUMENTS SS 1. 10 Cur. Law.

stances.\[31\] While special findings and the general verdict are in conflict, the former must control.\[32\]

## Negotiable Instruments

- 1. Elements and Indicia, 952.
- 2. Form, Interpretation, and Effect, 964.
- 3. Anomnions Signatures and Indosements, 968.
- 4. Liability and D'scharge of Primary Parties, 969. Material Alternation, 969. Defenses Between Original Parties, 969.
- 5. Liabilities and Discharge of Smetics, Guarantarcs and Other Anomnions, 972.
- 6. Negotiation and Transfer Generally, 973.
- 7. Acceptance, 973.
- 8. Indorsement, 974.
- 9. Presentment and Demand, 976.
- 10. Protest and Nuclee Thereof, 978.
- 11. New Promise After Discharge and Winiver of Presentment and Demand, 979.

_The scope of this topic_ is noted below.\[33\]

SS 1. \_Elements and indicia.\_See S C. L.\[124\]--A negotiable instrument is an unconditional written promise or order to pay a certain person or his order or to bearer a certain sum of money at a certain time or on demand or at sight.\[34\] An order or

- 31. Ft. Wayne Cooperative Co. v. Page |except so far as it concerns the rights of \[Ind. App.\] SS NE 83.
- 32. Negilarese: Special finding that defendant over operating his mill in usual man.

Mistake and Accident, 10 C. L.\[85\]. Rights mer when defendants' horse was fragmented and powers peculiar to notes of corporations by steam held not in conflict with general (see Corporations, 9 C. L.\[23\]) and firms verdict for plaintiff. Ft. Wayne Cooperage (see Partnership 8 C. L.\[261\]) are elsewhere created, as are the powers and liabilities of finding which does not cover all the cir-

agents with respect to the making and re-

cumstances bearing on contributory negil-

ceipt of negotiolable paper (see Agency, 9 C. L.\[262\]). The law of banking is the subject of a

for the plaintiff. United States Cement Co. v. Cooper \[Ind. App.\] SS NE 81. Where it 9 C. L.\[27\]). was alleged that child was too young to

- 34. A promissory note under the law mer-

"appreclate" danger, a special finding that

chant is an absolute promise in writing, child was 5 years and 10 months old and

signed but not sealed, to pay a certain special-

of average intelligence was not irreconcell-

ded sum at a time therein limited, or on

able with a general verdict for plaintiff.

demand, or at sight, to a person therein

Emmond, etc. R. Co. v. blocker \[Ind. App.\] SS 12. Where it anwer to the

named or to his order, or to

App.\] SS 2NE 541. Where in answer to

the bearer. Harris v. Pate \[Ind. T.\] 104 SW special interrogatory the jury found that

$12. Instrument held a promissory note

plaintiff had no time to get out of his buggy

within this definition. Id. Note in which

after horse became frightened, a special in-

peray for value received unconditionally

terrogatory as to whether an ordinality

promises to pay payee or order a fixed sum

proparent man would have gotten out was

of money at a fixed date is a promissory note

properly refused. Ft. Wayne Cooperative Co.

with purview of Rev. St. c, SS, SS 89 (Murv. Page \[Ind. App.\] SS 2NE 83. Where but

ray, V. Quint, 102 Me. 145, 66 A 315), and

den of showing contributory negligence is

addition of a statement of the consideration,

on defendant, a general finding for plaintiff

and of a stipulation that goods for which negatives contributory negligence. Grass v.

note was given shall remain property of

Ft. Wayne & W. V. Trac, Co. (Ind. App.) SS 1 vendor until payment of note, do not affect

NE 514. Special findings as to contributory

existence of note as a promissory note with-negligence in action for injury caused by

in statute (Id.).

horse being frightened by steam from de-

fendant's cooperative plant near highway held

not in irreconcible conflict with general

verdict for plaintiff. Ft. Wayne Cooperage

with a special of exchange. Woodall

Co. v. Page \[Ind. App.\] SS 2NE 83.

v. Peges' Nat. Bk. LiAla, 45 S 194. In-

- 33. It treats of the law of negotiable in-

struments as a special class of contracts,

and only incidentally discusses cases when

v. Peges' Nat. Bk. LiAla, 45 S 194, 211, 32, as amended. Am-

general principals of contracts are applied.

For a full discussion of the general law of

contracts, see Contracts, 9 C. L.\[654\].

Law a check is a bill of exchange drawn on

law relating to reality of consent is excluded

a bank payable on demand. Visser, F. First 10 Cur. Law. Negotiable Instruments SS 1.

prounise to pay out of a particular fund is not unconditional,\[38\] but such a promise, though not negotiable, is a valid obligation." Negotiability is not affected by the fact that a note is secured.\[37\] An instrument otherwise negotiable is rendered non-negotiable by an express provision therein to that effect.\[38\] The fact that a negotiable instrument is held by school trustees does not affect its negotiability."

_The time of payment.\[See $ C. L. 1125--Whether the time of payment is certain is to be determined from an interpretation of the terms of the contract.\[40\] The fact that the day of maturity may never arrive renders an instrument ineffective as a negotiable note,\[41\] but it does not without evidence aliumde render it illegal as a contract to pay money.\[42\] It is an essential element of a check that it shall be payable instantly on demand.\[43\]_

_The amount.\[See $ C. L. 1125--The negotiability of a note is not affected by the words "with exchange" where it is drawn and payable at the same place,\[44\] but the words "with collection" render it non-negotiable,\[45\] as does a provision for a reasonable attorney's fee.\[46\]_

_Words of negotiability are essential 47 unless dispensed with by statute.\[48\]_

_$ 2. Form, interpretation, and effect.\[See $ C. L. 1125--Proper execution is essential to the validity of a negotiable instrument. Its payment can be enforced only_

_lation void. On grounds of public policy, a_

**40.** _Provision in deed of trust securing limitation on the liability of partners has_

_bonds held only to relate to procedure under been generally looked upon with disfavor trust indenture itself for purpose of enforce(Imperial Co. v. Jewett, 168 N. Y. 143: Hess_

_v. Werts, 4 Segre. & R. \[Pa. 386\], but recog-postpement of time of payment thereof_

_mized if third parties choose to contract on_

_upon authority of certain proportion of such terms and an enforcible right remains_

_(Sank of Topeka, Eaton, 100 P 8), Since_

_(A note containing stipulation whereby sure-against the shareholders, supra, and the_

_stipulation gives the shareholders immunity_

_from suit, the position of the minority which gives effect to the primary intention to make a binding contract seems sound, and_

_that without such notice, is not a nego- it is more logical to base this position, as_

_(Sens. Werner, J., did, upon the ground that the_

_(Bk. v. Bolan \[Idah\] $ P 508. "Sirty days"_

_(A) demand" certain. Beckstrom v. Krone, 125_

\_(Bk.

when executed by or under the authority of the person sought to be charged,49 or when executed without his authority but subsequently ratified by him.50 To bind a corporation the instrument must be executed by its authorized agent, and for a purpose within the scope of his agency.51 Other essentials to the validity of anegotiable instrument are a legal delivery52 and a consideration53 which must be both sufficient54 and legal.55 Under the negotiable instruments law a date is not essential to the validity

49. In action against administrator, evidence held insufficient to show execution of duebill by deceased. Richards v. McLain, 118 La. 424, 43 88.

01. Mere silence of one whose name is purported to be signed to a note, after receiving notice of protest thereof, does not amount to ratification. Ritchie County Bk. Bee \[W. Va.\] 59 SE 181.

01. Presumption that president of business corporation is authorized to execute negotiable instruments in name of corporation arises only when such instruments are apparently made for corporate purposes in ordinary course of corporate business. Capital City Brick Co. v. Jackson, 2 Ga. App. 711, 59 SE 92. If a corporation allows its president and general manager in large measure to control its business transactions, it will be liable on a note executed by them in name of corporation, unless it affirmatively shows that they acted without authority, and this notwithstanding Ballinger's Ann. Codes & St. 5425, providing that powers of corporation shall be exercised by board of trustees. McKinley v. Mineral Hill Consol. Min. Co. \[Wash.\] 89 F 495. Where a note is signed by the president of a corporation and the corporation has received benefit of proceeds, and there was a course of dealing justifying its acceptance, it is a valid legal obligation of the corporation though not countersigned by treasurer as required by by-laws. Bigelow Co. v. Automatic Gas Producer Co., 56 Misc. 389, 107 NYS 894. A note of a corporation issued by its secretary to secure a personal loan to himself, if not authorized or ratified by corporation, is ultra vires and void. El Dorado Em. Co. v. Citizens' Bk. \[Ark.\] 107 SW 676.

01. A promissory note has no legal inception or valid existence until it has been delivered. Pollemnus v. Prudential Reality Corp. \[N. J. Err. & App.\] 67 A 303. Delivery is, normally, to be In accordance with the purpose and intent of the parties, but this is subject to exceptions, of which one obtains when the departure from such intent is one of mode only. T. A check delivered on Sunday is invalid and of no legal effect. Gordon v. Levine \[Mass.\] 83 NE 861. The controlling question in determining the delivery of a note is the intention of the parties. Barber v. McEinry County Hedge Fence Co., 129 Ill. App. 45.

01. No consideration for note. Reynolds v. Nevin, 1 Ga. App. 269, 57 SE 918; McGlin's Estate v. Gallagher \[Ind. App.\] 83 NE 255; Garman v. Gumphier, 23 Pa. Super. Ct. 181. The consideration of a negotiable instrument is open to inquiry. Holmes v. Horn, 120 Ill. App. 589.

01. Consideration held sufficient: A pre-existing debt is sufficient consideration for a note under Nse. Inst. Law (Laws 1897, p. 727, c, 612, $ 51). Bigelow Co. v. Auto- of a note.\[58\] A note made payable to the order of the maker when indorsed and delivered to the indorsee becomes a valid note.\[67\] The original parties to a negotiable instrument can annex any lawful condition to its payment at the time it is given.\[58\] Unless it is otherwise provided by statute,\[59\] a note is not rendered invalid by a provision for reasonable attorney's fees.\[60\] Such a provision is enforcible as part of the debt,\[61\] provided statutory requirements made a prerequisite to its enforcement have been complied with.\[62\] The death of the maker insolvent will not destroy the right to recover such fees as against the administrator.\[63\] The limit of recovery is the fee contracted to be paid,\[64\] or, in the absence of contract, the reasonable value of services rendered.\[65\] A provision that if interest is not paid when due the payee may declare the entire debt due is valid,\[66\] as is provision in a note payable in instalments that the whole amount shall become due upon failure in payment of one instalment.\[67\] Under some statutes it is essential to the validity of a negotiable instrument given for a patented article that it should show that fact on its face.\[68\] The consideration is not illegal as against public policy. Sparks v. Oklahoma Const. Co. \[Okl.\] 91 P $39. B. was convicted of mis-demeanor and fined $40. He agreed with A. that, if A. would pay his fine and clothe and feed him, he would work for him for 10 months. A. paid fine and $10 for clothing. C. proposed to A. that he would take his contract with B. and pay him amount of money which he had advanced to B. If B. would consent to it. Both A. and B. agreed, and C. thereupon gave his note for amount of money which A. had paid out for B. and B. then worked for C. for eight months. Held note was supported by valid consideration. Dorsey v. Redwine, 1 Ga. App. 626, $7 SE 1073. Where purchase price for which a note is given includes transfer of a nontransferable liquor license for purpose of enabling vendees as part of the transaction to continue business of selling intoxating liquors, and valuation placed upon license is inseparable from purchase price, the consideration is entire, and note being tainted with illegality is absolutely void. Kennedy v. Welch \[Mass.\] 83 NE 11L. Under B. & C. Comp. $ 1945, a check the consideration for which is a gambling debt is void as to all parties except holders in good faith without notice of illegality. Mattlock v. Scheuerman \[Or.\] 93 P $23. 56. Laws 1897, p. 728, c. 612, $ 25. Church v. Stevens, 66 Misc. 572, 107 NYS 510. 57. Sherman v. Goodwin \[Ariz.\] 89 P 517. 58. Aden v. Doub \[N. C.\] 59 SE 162. 59. Under a statute in Georgia an obligation_to pay attorney's fees is void except under the circumstances stated in the statute. Acts 1900, p. 53. Circumstances under which it was error to enter judgment relativeing defendant from attorney's fees. Mount Vernon Bank v. Gibbs, 1 Ga. App. 662, $8 SE 269. 60. German-American Bk. v. Martin \[Mo. App.\] 107 SW 1108. 61. In re Edens Co., 151 F 940. Where the maker of a note providing for attorney's fees brings about conditions which in effect mature the note and require services of an attorney to collect it before the face date of its maturity, the attorney's fees is recoverable. Jungbecker v. Huber \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 975, 101 SW 552. 62. Notice held a substantial compliance

### 10 Cur. Law. Negotiable Instruments $ 2.

nature of a negotiable instrument is determined by the law of the place where it is drawn and negotiated." The validity of a note is determined by the law of the country where it is executed and made payable." The rights and obligations of the drawer of a bill of exchange are determined by the law of the place where he draws it." The method of the payment of a draft and matters incident thereto are regulated by the law of the place of payment." In construing negotiable instruments, effect will be given the intention of the parties according to the terms of the instrument," and such intention, clearly expressed cannot be affected by the existence of a usage or custom." Every part of the contract must, so far as possible, be given effect." The court may supply omitted words where the intention of the parties is plainly apparent." The written parts of the instrument control the printed parts." Uncertainty in the language is to be interpreted most strongly against the party who caused the uncertainty to exist, the promisor being presumed to be such party." The drawer of a foreign bill of exchange guaranties its acceptance and payment in the place on which it is drawn, and agrees, in default of payment, to reimburse the holder at the place where the contract was made." The maker of a check guaranties that the bank on which it is drawn is solvent and that it will be paid on presentation." A demand note is payable at the date of its delivery." Where an order is

who sell patented things in the usual course, determine whether he will exercise his option. Knisel v. Ballou \[Cal.\] 91 P 620. Pro-

69. Amininck v. Rogers, 189 N. Y. 252, 82

NE 184.

70. First Nat. Ek. v. Deeden \[S. D.\] 113

NV 81. Where a note providing for attorney's fees was made in another state, evi-

dence of the lex loci contracts, regulating

sum due upon default in payment of inter-

their recovery, must be adduced. Brooks v.

Boyd, 1 Ga. App. 65, 57 SE 1093. Although

a stipulation in a note for attorney's fees is

valid in the state where the notes are executed and payable, it will not be enforced in a state where such a stipulation is void

as an agreement for a penalty. Arden Lumber Co. v. Henderson Iron Works & Supply

Co. \[Ark.\] 103 SW 185.

71., Amsnick v. Rogers, 189 N. Y. 252, 82

NE 134.

72. Hammond, Snyder & Co. v. American

Exp. Co. \[Md.\] 68 A 496. The law of the place of payment of a draft is presumed to

be the same as that of the place where unit

82.

01.

01.

01.

01.

01. One dealing with a negotiable instrument has a right to act upon it as it appears upon the face of it. Citizer's Nat. Ek. v. Burch \[N. C.\] 95 SE 71. Where note provides that it shall bear interest at a certain rate

\[Cal. App.\] 93 P 1046.

tain rate per annum, payable semi-annually,

until maturity, and thereafter at same rate

per annum only, holder after maturity is

entitled only to current interest and not to

40.
01.
01.
01.
01.
01.
01.
01.
01.
01.

payable on demand, interest should be allowed from the date of demand.\*2 A note payable to order which omits to name payee may be enforced by any bona fide holdcr.\*3 A note payable to the order of the agent of a corporation, both being specified by names, is in legal effect payable to the corporation.\*4 At any time before its delivery a check is revocable,\*5 and the debt represented by it subject to garnishment.\*6 The effect of an agreement extending the time for payment of a note is to waive any past default in payment of principal and to postpone maturity until the date to which the extension is made.\*7 Upon the exchange of commercial paper, each instrument is an independent obligation not dependent on the payment of the other.\*8 One is bound by the contract which the law attaches to his signature, unless it was the understanding of all the parties that a different liability attached.\*9 Where one acting in a representative capacity executes his personal note, he will be bound thereby, though it is executed in the interest of his principal.\*0 A bill of exchange is not money nor legal \*9 tender. SS 3. \_Anomalous signatures and indiscrements.\_See * C. L. 1129--At common law, a third person indorsing in blank, before or at the time of delivery, is liable as a surety,\*92 or guarantor,\*93 unless a different understanding is shown.\*94 That a different understanding did exist may be shown by parol.\*95 In West Virginia, the payee of a note may treat indorsees before delivery as joint makers, or as indorsers or guarantors at his election,\*96 unless he agrees, before or on the delivery of the paper, to treat them in a particular one of those characters.\*97 Under the negotiable instruments law,

NYS 210. In New York, as between the suraty only, his liability is that of surety, maker and holder, a note payable on demand is due forthwith. Hyman v. Doyle, 53

the faith of his apparent character of principal.

Misc. 597, 103 NYS 778. Where a note is payable on demand simply, in no qualify-> NYS 544. As against all other persons his true relation to the contract may be shown treated as part of the contract but is used by parol, Id.

to show that the debt is due. Church v. 90. President of bank executing his personal note for money loaned bank is personally bound, though payee was informed at time it loaned money and took note that maker was acting only as agent. Willough-> NYS 778.

should be allowed from date of demand.

Foley v. Hauston Co-Op. Mfg. Co. \[Tex. Civ. App.\] 202 Tex. Ct. Rep. 224, 106 SSV 160.

personally liable thoreon, and this rule is not changed by Civ. Code, $ 2267. Hall v.

Such holder is authorized to bill in name of his indorser as payee, which is done in substance and effect by alleging in action on note execution and delivery to indorser: as payee. Id.

**84.** Civ. Code 1895, $ 3037, par. 2. Young v. Murray \[Ga. App.\] 59 SE 717.

**85.** Vuit-Harley-Holmes Hardware Co. v. Day, 1 Ga. App. 464, 57 SE 1033. Where debtor sends check by mail, title remains in sender until it is received by creditor, unless creditor instructs debtor to send it by mail

In settlement of debt, in which case title

vests in creditor when check is placed in mall according to instructions. Id.

**86.** Watt-Harley-Holmes Hardware Co. v. Day, 1 Ga. App. 646, 57 SE 1033.

**87.** Bell v. San Francisco Savings Union \[Cal.\] 94 P 225.

**88.** Matlock v. Scheberman \[Or.\] 93 P 823, 89. Vanderford v. Farmers & Mechanics\* \[Mad.\] 66 A 47. Rule applied where one signing as joint maker of note sought to show that the signed only as a surety. Id. Citizens' Nat. Bk. v. Burch \[N. C.\] 59 SB 71. Where when one signs a note it is the understanding of all the parties that he signs as 10 Cur. Law. Negotiable Instruments SS 4. 969

one placing his signature upon an instrument, otherwise than as maker, drawer, or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.\*\* Thus, one indorsing_a note in blank before or at the time of delivery is an indorser and cannot be held in any other capacity.\*\* That the name of a third person, indorsed in blank on a note, appears first and above all other names indorsed thereon, is strong presumptive evidence that he indorsed before the others and before the note was delivered.\*\*

SS 4. \_Liability and discharge of primary parties.\_See s. C. L. 1136--A comaker of a joint note is personally liable to the payee for the full amount thereof.\*\* One who signs his name to a blank note as maker and delivers is to another makes the latter his agent to fill it up in any manner not inconsistent with the character of the paper,**3** and an agreement between the signer and the person to whom the paper is delivered that it is to be filled up for a certain amount or in a particular way will not affect the payee who takes the paper without notice of the agreement.**4** An agreement that a note is to be paid in work is not binding so long as it is executory.**5** The maker of a note is liable for interest at the legal rate upon all unpaid annual instalments of interest from the date they become due until they are paid.**6** Where notes given in consideration of a void contract are transferred by the payee to innocent_purchasers, the maker may recover the amount thereof from the payee.**7**

\_Material alteration.\_See s. C. L. 1130--A material alteration * made by the holder after execution and delivery and without the consent of the maker * invalidates the instrument as between the original parties. Where the instrument appears to have been altered, it is for the court to determine whether it shall be admitted in evidence without evidence explaining the alterations,**10** and to the exercise of court's discretion in this matter no exception lies;**11** and where a witness has testified that when the instrument was signed it was in the same condition as when shown him on the witness * stand, the court should permit it to be read.**12**

\_Defenses between the original parties.\_See s. C. L. 1130--In a suit on a negotiable instrument, it is a good defense that the maker was a minor,**13** or was mentally incapable.

**sulfCient to overcome prima facie right of** **3. Stanley v. Davis \[KY.\] 107 SW7 713.**

**election by payee. 1d.**

**98. Laws 1899, p. 235, c. 674, s 71.**

**In such case maker is bound although tional Exch. BK. v. Lubrano \[L. I\] 68 A 944.**

**99. Rev. St. 1086, 85, 3171, 31731, 31731, 31731, 31736, 31736.**

**100.**

**11736.**

**11737.**

**11738.**

**11739.**

**11738.**

**11739.**

**11738.**

**11739.**

**11740.**

**11741.**

**11759.**

**11761.**

**11778.**

**11781.**

**11791.**

**11792.**

**11793.**

**11794.**

**11795.**

**11796.**

**11797.**

**11798.**

**11799.**

**11899.**

**11999.**

**12000.**

**12199.**

**12200.**

**12300.**

**12401.**

**12411.**

**12421.**

**12430.**

**12442.**

**12450.**

**12461.**

**12471.**

**12481.**

\*\*12491.

ble of making a valid contract,14 or that the instrument used on was a forgery,15 or that the consideration therefor has failed,16 or was illegal.17 Fraud is a defense if defendant, exercising ordinary prudence, was influenced thereby,18 and was damaged as a result thereof.19 What constitutes such fraud as will preclude recovery is to be determined by the circumstances of each particular case.20 Misrepresentations as to the conditions and the extent of the liability under the instrument is no defense if it is in plain language and unambiguous in its terms, and there is no proof that the signer is unable to read.21 Where one signs a note which is signed as maker by an agent of payee, he cannot set up such agent's misrepresentations as a defense.22 It is a good defense that the instrument was procured by duress 23 or was given to com * 10 Cur. Law. Negotiable Instruments SS 4. 971

pound a felony,24 or in payment of illegal fees.25 A valid tender is a good defense against a claim for interest acoruing after the date thereof.28 Payment,27 or part payment to the extent of the amount thereof,28 is a good defense, if made to a person authorized to receive it,29 but a separate payment by one of the makers of a joint and several note does not release him from his joint and several liability for the balance due.30 As to whether the acceptance of a renewal note will discharge the maker's liability on the original note, the authorities are in conflict.41 A voluntary release of one of two joint makers of a note will release the other,32 unless there is an express provision to the contrary.33 Res judicata is a good defense,34 as is also a valid set-off or counterclaim.38 Usury is a good defense to the extent of the usurious interest.38

Footnote 37: The author is grateful to the anonymous referee for the support of the 973 Negotiable instruments SS 5. 10 Cur. Law. A contemporaneous written agreement that notes shall be paid out of a particular fund is a good defense,\[37\] but a parol agreement at the time of the execution of the instrument, varying its terms, is no defense.\[48\] In an action on a note the maker cannot contest the plaintiff's title thereto further than is necessary to preclude his future liability thereon.\[39\] It is no defense that the payee had brought a former suit on the note and that it was discontinued without the maker's knowledge or consent.\[40\] A note given as security for a note of like amount executed by a third party is subject to defenses which existed against the note which it was given to secure.\[41\] Defenses may be waived\[42\] or defendant may be precluded by estoppel from setting them up.\[43\]

SS 5. \_Liabilities and discharge of sureties, guarantors, and other anomalous parties.\[50\]\_So s C. L. 1132--A surety on a note is liable to a bona fide holder even though the signature of the maker is a forgery.\[44\] One who agrees to pay the debt of another due on a note is liable for the attorney's fee therein- stipulated for.\[45\] To constitute a surety on an instrument a cosurety with another person signing it, there must have been a mutual understanding between the parties to that effect.\[46\] A surety may defend against the original payee on the ground of absence or failure of consideration.\[47\] An extension of the time of payment granted those primarily liable releases sureties and other anomalous parties who are secondarily liable,\[48\] unless there is a provision in plaintiff, such claims are a valid offset or such defense and cannot set it up to defeat counterexample in suit on notes of defendant owned by plaintiff, although defendant has given plaintiff no statement of the claim nor asked for credit on notes. Rinker v. Lauer, 13 Idaho, 163, SS 7 p 1057.\[49\]

30. Bell v. San Francisco Sav. Union \[Cal.\]

94 P 225. Where notes for which a renewal note is given are invurious, usury is a defense to an action on the renewal note to the extent of the usurious interest. Crabtree's Adm'r v. Sisk, 31 Ky. L. R. 206, 101 SWV 886. Under Civ. Code, SS 1918, provision in note for interest on inslatments of interest falling due before maturity at rate greater than is borne by principal is void in its entirety and not merely is to excess. Bell v. San Francisco Sav. Union \[Cal.\]

94 P 225. Such provision, however, does not render invalid a provision for interest on inslatments of interest falling at after maturity at same rate as principal. Id. Note held not to be usurious. Armijo v. Henry \[N. M.\]

11. X. M.\]

95 P 306.

37. Keller v. Cohen, 217 Pa. 522, 66 A 862.

01. That payee at time note was executed verbally promised to take less than face value in payment is no defense. Bowen v. Waxelbaum, 2 Ga. App. 521, SS 58 TE 784. But maker of a note given to a bank is not liable thereto where by a contemporaneous oral agreement subsequently put in writing he is expressly relieved from liability and whole transaction is a device to deceive bank examiner. National Bk v. Shaw \[Pa.\]

67 A 875.

39. Boline v. Wilson, 75 Kan. 829, 89 P 678.

01. Lindsay v. Dutton, 217 Pa. 148, 66 A 250.

01. Note given as security for note given in purchase of machinery subject to defenses which existed in favor of purchaser by reason of breach of warranty contained in contract of purchase. Northwest Thresher Co. v. Hulburt \[Mln.\]

15.0.

10 Cur. Law. Negotiable Instruments SS 7. 973 the instrument to the contrary.49 A release based on a valid consideration will d's-charge the liability of a surety.60 A guarantor of a note is liable though a mortgago given by the maker to secure it has not been foreclosed.61 Discharge in bankruptcy of the maker of a note does not affect the liability of a surety.62 After a surety has been released from liability, a new promise to pay is not enforcible unless based on a new and sufficient consideration.63

SS 6. _Negotiation and transfer generally._ See S. C. L. 1134--A promissory note may be transferred without endorsement.54 It may be the subject of valid transfer- and delivery by way of pledge or collateral security.55 The title to a note indorsored in blank by the payee may thereafter pass by delivery to subsequent holders.56 The title to a non-negotiable note can only pass by a written assignment.67 A fraudulent assignment of a note is void.58 The assignee of the payee of a note, where the payee's title was not defective, stands in the shoes of the latter.59 A note in the hands of an assignee is only subject to such equities between the original parties as existed prior to notice of the assignment to the maker,69 and if the maker after notice of the assignment expressly promises payment to the assignee, he is estopped from setting up equities existing prior to such notice.61 The assignee of a note given for land cannot recover against the maker personally after cancellation of the deed for fraud.62 Title to a negotiable instrument cannot be transferred by school trustees except in their corporate capacity.63

SS 7. _Acceptance._ See S. C. L. 134--A mere order for the payment of a part of a fund in the hands of the drawee is revocable by the drawer before acceptance.64 A bank is not liable on a check until it accepts or certifies it.65 Uncontrolled by statute, an acceptance of a bill of exchange or check may be implied from the conduct of the drawee.66 Statement by bank that it will take advice and pay check if it can does not

subd. 6), an extension of time of payment or

any be passed by delivery to a third party

a postponent of right to enforce instrument

with intention to pass title. Haines v. ment discharges a person secondary liability

Deahy v. Choquet \[R. J. 67 A 421. Promise,

as long as certain monthly payments are

made, not to press suit on note is a post-

ponement of right to enforce instrument. Id.

Extension of time of payment of note for

one year at original rate of interest releases

sureties. Windhorst v. Bergendahl \[S. D.\]

111 NVE 544. Payment of interest to maturity

by a short time before due and delivery of

new note for same amount payable one year

later is competent evidence of extension for

a consideration sufficient to discharge sure-

ties. Id.

40. Provision in note held an agreement in

advance that time for payment may be extended without discharging sureties, and not

a limitation of their liability. Widrow

Loan & Banking Co. v. Rollins \[Mass.\] 81 NE

204. Where holder of note for valid

aderation agreed to release surry from liability

blility thereon and return to him collateral

notes deposited as security, surety was absolved from liability and entitled to have collateral returned. Oxford Junction Sav.

Bk. v. Cook \[Iowa\] 11 NW 805.

51. Kinsel v. Bailon \[Col.\] 91 P 620.

01. Wolfrow Loan & Banking Co. v. Rollins \[Mass.\] 81 NE 204.

01. Extension of time of payment given to

maker of original note is a sufficient condition. Steger v. Jackson, 31 Ky. L. R.

434, 102 SW 229.

54. O'Connor v. Slatter \[Wash.\] 93 P 1078.

Equitable title to a negotiable instrument

may be passed by delivery to a third party

with intention to pass title. Haines v.

Denny v. Choquet \[R. J. 67 A 421. Promise,

as long as certain monthly payments are

made, not to press suit on note is a post-

ponement of right to enforce instrument. Id.

Extension of time of payment of note for

one year at original rate of interest releases

sureties. Windhorst v. Bergendahl \[S. D.\]

111 NVE 544. Payment of interest to maturity

try a short time before due and delivery of

new note for same amount payable one year

later is competent evidence of extension for

a consideration sufficient to discharge sure-

ties. Id.

40. Provision in note held an agreement in

advance that time for payment may be extended without discharging sureties, and not

a limitation of their liability. Widrow

Loan & Banking Co. v. Rollins \[Mass.\] 81 NE

204. Where holder of note for valid

aderation agreed to release surry from liability

blility thereon and return to him collateral

notes deposited as security, surety was absolved from liability and entitled to have collateral returned. Oxford Junction Sav.

Bk. v. Cook \[Iowa\] 11 NW 805.

51. Kinsel v. Bailon \[Col.\] 91 P 620.

01. Wolfrow Loan & Banking Co. v. Rollins \[Mass.\] 81 NE 204.

01. Extension of time of payment given to

maker of original note is a sufficient condition. Steger v. Jackson, 31 Ky. L. R.

434, 102 SW 229.

54. O
    974NEGOTIABLE INSTRUMENTS SS 8. 10Cur. Law. constitute an acceptance.67Under negotiable instruments law, failure of drawere to return check presented for payment within twenty-four hours after delivery constitutes an acceptance.68One who accepts an order conditionally becomes liable thereon upon the performance of the condition.69While a writing obligating a drawere to honor a draft is to be strictly construed against the writer, the construction must no! be strained or unreasonable.70Where the acceptor of a draft with a forged bill of lading attached pays the amount to a bank that has discounted it in good faith, it cannot on discovery of the forgery recover back the amount so paid.71.

01. \_Indorsement.\_88C. L. 1135--One of the elements of a contract of indorsement is a promise that if the note is not paid upon due presentment, and the necessary proceedings upon its dishonor are taken, to pay the amount thereof to the holder.72Writing and signature are necessary to a formal indorsement,73 but no particular form of signature is required, any form adopted as such being sufficient.74A seal is unnecessary, whether it be that of a private person or of a corporation.78An indorsement must have been made by the person sought to be charged as indorser or by his duly authorized agent.76In the case of a corporation, the indorsement must be made by an officer having authority.77Executors have no power to bind testator's estate by a contract of indorsement.78If several persons not partners are payees or indorsees, the instrument must be indorsed by all of them.79An instrument indorsed by one not having authority may be recovered by payee in an action of conversion, if the right has not been lost by long silence after discovery.80When one who has indorsed a note and parted with it again comes into possession bona fide, he may strike out his own and subsequent indorsements and sue the prior parties.81The 68. In re Gdrive, 151 F 711. 68. Sections 137, 185 (P. L. 213, 219; 3 Purd. Dig. (13th Ed.) pp. 3207, 3214). Wisner v. 93P 606, Evidence Insufficient to show that First Nat. Bk. \[Pa.\] 68 A 955. And this not-whitstanding that by 132 (P. L. 212) implied acceptances are abolished. Id. Protest of domestic checks being unnecessary under this law, delivery of check to notary public for protest within prescribed time does not affect question of acceptance. Id. 69. Conditions attached to acceptance held substantially performed. Foley v. Houston Co-Op Mfg. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 224, 108 SW 160. 70. Writing held not to obligate writer to honor any draft except one for price of stock shipped to it. Stough v. "Healy, 75 Kan. 526, 89 P 838. 71. Varney v. Monroe Nat. Bk., 119 La. 943, 44 S 753. 72. Hopkins v. Merrill, 79 Conn. 636, 66 A 174. A writing on back of note by payee which guarantees payment of note at ma-/triuty and waives notice of nonpayment and demand is an indorsement in a commercial sense and makes person to whom it was transferred an indorsee under the law merchant. Mullen v. Jones, 102 Minn. 72, 112 NWV 1048. 73. Sheffield v. Johnson County Sav. Bk., 2 Ga. App. 221, 58 SE 386. 74. Sheffield v. Johnson County Sav. Bk., 2 Ga. App. 221, 58 SE 386. 75. Sheffield v. Johnson County Sav. Bk., 2 Ga. App. 221, 58 SE 386. 76. An mere special agent is not presumed to have authority to take, in his own name, and negotiate a promissory note for money due his principal. Nickleson v. Dial \[Kan.\] Dig. (13th Ed.) pp. 3207, 3214). Wisner v. 93P 606, Evidence Insufficient to show that daughter had authority to indorse notes in mother's name. Fourteenth St. Bk. V. Gers- tien, 118 App. Div. 905, 103 NYS 11. Defend- tien dontel cheeks being unnecessary under this law, delivery of check to notary public for protest within prescribed time does not affect question of acceptance. Id. 69. Conditions attached to acceptance held substantially performed. Foley v. Houston Co-Op Mfg. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 224, 108 SW 160. 70. Writing held not to obligate writer to honor any draft except one for price of stock shipped to it. Stough v. "Healy, 75 Kan. 526, 89 P 838. 71. Varney v. Monroe Nat. Bk., 119 La. 943, 44 S 753. 72. Hopkins v. Merrill, 79 Conn. 636, 66 A 174. A writing on back of note by payee which guarantees payment of note at ma-/triuty and waives notice of nonpayment and demand is an indorsement in a commercial sense and makes person to whom it was transferred an indorsee under the law merchant. Mullen v. Jones, 102 Minn. 72, 112 NWV 1048. 73. Sheffield v. Johnson County Sav. Bk., 2 Ga. App. 221, 58 SE 38 10 Cur. Law. Negotiable Instruments SS 8. 975

indorsement of a note secured by a mortgage or pledge carries with it the security, enabling the holder to enforce it without a formal assignment.\[82\] Foreclosure of such a mortgage is not an essential prerequisite to the indorser's liability.\[83\] An indorsement made after the making and delivery of a note requires a new consideration to support it.\[84\]

\_Indorser's liability and discharge.\_See, 8 C. L. 1136--An indorser after delivery to payee is bound only as a guarantor.\[85\] Under negotiable instruments law, as respects one another, indorsers are liable prima facie in the order in which they indorse, but evidence is admissible to show that as between themselves they have agreed otherwise.\[86\] Where an indorsement is conditional, performance of the condition is an essential prerequisite to indorser's liability.\[87\] A draft indorsed and delivered to be returned only on a condition specified is, in the absence of forfeiture under the condition, enforible against the indorser.\[88\] In Kentucky, where a note is payable at an incorporated bank and indorsed to and discounted by the bank,\[89\] the indorser of a non-negotiable note is liable to the indorsee to the same extent as the indorser of a negotiable note.\[90\] The only distinction is as to action of indorsee to fasten liability after default by maker.\[91\] It is a good defense to an action against an indorser who received no consideration that he was induced to indorse by the holder's fraudulent representations.\[92\] Payment is a good defense to' an action against an indorser.\[93\] That indorser was drunk at the time of indorsement is no defense if the payee had no knowledge of the fact.\[94\] An extension of the time of payment granted to the parties primarily liable will discharge the liability of an indorser,\[95\] unless there is an ex-

s2, Milwaukee Trust Co, v. Van Valken-

dorsee's failure to pursue legal remedies

burgh \[Wis.\] 112 NVP 1083. Transfer of note

against maker with due diligence. Swope v. by indorsement, expressly including mort-

Boome County Deposit BK., 31 Ky. L. R. 48,

gage security and interest, constitutes a

good written conveyance of mortgage and

interset coupon owned by indorser and at-

A10 976 NEGOTIABLE INSTRUMENTS SS 9. 10 Cur. Law.

press reservation that the rights and remedies against the indorser shall not be affected thereby."

SS 9. \_Presentment and demand._See 8 C. L. 1137_--The holder of a check cannot recover from the drawer or indorser until he has presented it to the drawee bank and payment has been refused." As a general rule, to constitute a valid demand, the person making it must have the instrument with him to produce, if called for." It must be presented within a reasonable time after its delivery or negotiation." In determining what is reasonable, due regard is to be had to the usages of business, and all the facts and circumstances of the particular case.1 If the holder lives in the place where the bank is located, he may present the check during banking hours of the day following the day he received it,2 and if that day falls on Sunday, he may present it during business hours on Monday.3 If the instrument is required to be transmitted to another place, it must be presented with reasonable diligence after time taken in reaching such place.4 The requirement of presentation within a reasonable time is coupled with the requirement, as to maker, that the check shall certainly be paid when presented." What constitutes a "business day" within meaning of negotiable instruments law," requiring presentment to be made "at a reasonable 10 Cur. Law. Negotiable Instruments SS 9.977

hour on a business day," is to be determined by the general custom of the place of presentment." Neglect of payee's agent, to whom he negotiates check," to present it within a reasonable time is chargeable to payee.8 Presentation of a check may be excused by fraud,9 or negligence 10 on the part of the maker. Sending a check by mail directly_to the drawee bank does not constitute a proper presentment, in the absence of proof of usage or custom among banks to do so.11 But such a presentment will not discharge an indorser who suffers no loss by reason thereof.12 In New York, a demand is not essential to fix the liability of the maker on a note payable on demand at a place specified.13 Where the indorser of a negotiable note is sought to be charged, it is necessary that there should be a presentment and demand upon the maker within the time prescribed by statute.14 Failure to make such presentment and demand will discharge the indorser,15 unless there is a sufficient excuse for not making it.16 Presentment should be made at the place specified in the note.17 A note not payable at any particular place should be presented at the residence or place of business of the maker or wherever he may be found, at the option of the presentor,18 on the day of maturity,19 and notice of dishonor must be given before the close of the succeeding day.20 Notice of dishonor duty malied is sufficient though never received by the indorser.21 The law of the place of performance governs as to presentment.22 The fact

Footnote 29: https://www.s that by oversight a note presented to an administrator is improperly described as to the signature does not make the presentation invalid.23 A negotiable instrument indorsed after maturity is treated as one payable on demand, as regards the time for presentment and demand.24 Demand of payment of a foreign bill of exchange must be made in accordance with the law of the place where it is drawn.25 The certificate of a foreign notary is insufficient to.establish presentment and notice of dishonor of a note.26

SS 10. \_Protest and notice thereof._See 8 C. L. 1188_--In some states,27 but not in others,28 protest is, if not waived,29 essential to fix the liability of an indorser. A foreign bill of exchange must be protested.20 But, under the negotiable instruments law, if a bill does not appear on its face to be a foreign bill, protest is unnecessary.51 Due notice of dishon,52 and of protest, where protest is necessary,23 is essential to

sity of demand and protest, as a condition that if the action had been against the indorser the law of New Granada would have terminated by the law of the place where the instrument was drawn or indorsed. Thorp

rawer was unquestioned and that the issue v. Craig, 10 Iowa, 461; Aymar v. Sheldon, 12 Wend. IN. Y.J 439, 27 Am. Dec. 137, Gay v. Rainey, 89 III. 221, 30 Am. Rep. 545. The necessity of suing the acceptor or maker in order to hold the drawer or indorser is

Nat. BK, 91 U. S. 406, 412, 23 Law. Ed. 245, 249, similarly determined. Levy v. Cohen, 4 Ga.

1: Hunt v. Standard, 15 Ind. 38, 77 Am. Dec. 79. But the sufficiency of the demand and protest, including consideration of the time and manner, is determined by the law of the place where the instrument is payable (Donnegan v. Wood, 49 Ala. 242, 20 Am. Rep. 276; Sylvester v. Crohan, 138 N. Y. 494; Pierce v. Indsen, 106 U. S. 546, 27 Law. Ed. 254), together with the maturity of the instrument, involving the question of days of grace .Cribbs v. Adams, 13 Gray 1378; 1997; 2000 v. Newell, 43 N. Y. 290, 64 Am. Dec. 550). No distinction is made, however, between the necessity and the sufficiency of notice, both being determined by the law loci contracts, according to the greater authority (Huse v. Hamblin, 29 Iowa, 501, 4 Am. Rep. 244; Snow v. Perkins, 23 N. Cokok v. Litchfield, 9 N. Y. 279), although the practical objection to this rule, that it compelled the holder to know the law of the place where each indorsement was made in order to be secure in his rights against the respective indorsers, has induced the English courts to make the reasonableness of the notice a possible subject of inquiry (Hirchfeld v. Smith, L. R. I C. P. 340; Horne v. Rouguette, L. R. 3 Q. B. Div, 614). The current of authority indicated is opposed by a unique decision in New York where the court held that the contract of the drawer of a bill or check to pay upon non-acceptance or nonpayment by the drawer, was performable where the drawer resides (Hibernia Nat. BK. V. Lacombe, 84 N. Y. 367, 38 Am. Rep. 518); it would follow that with respect to protest and notice the law of the place upon which the instrument was drawn would govern (Union Nat. Bank v. Chapmon, 169 N. Y. 538, 88 Am. St. Rep. 614, 67 L. R. 613). The court relied on Everett v. Vendryes, 19 N. Y. 436 and Lee v. Selleck, 33 N. Y. 615. The Everitt case held that the form of an indorsement of a bill of exchange drawn and indorsed in New Granada but payable in New York, and its sufficiency to transfer title to the indorsee for the purpose of bringing suit, were to be determined by the law of New York. The court admitted render an indorser liable, if not waived."4 Under negotiable instruments law, except as therein otherwise provided, the drawer of check, to whom notice of dishonor is not given, is discharged."5 To constitute dishonor, there must be a demand and refusal of payment."6 The time within which notice of dishonor and protest must be given is generally prescribed by statute."7 Any notice of protest is sufficient which, by express terms or necessary implication, informs the indorser of the identity of the paper, and that upon presentment, when due, payment has been neglected or refused."8 Mistakes and omissions in a notice, which could not have misled or prejudiced an indorser, are not fatal."8 Protest of a foreign bill must be made, and notice thereof given in accordance with law of the place where it is drawn."9

_The' certificate of protest_ is prima facie evidence of the facts therein recited," but the presumption thereby raised may be rebutted."4 A notarial seal renders a certificate of protest evidence in foreign countries,"4 and in absence of such seal, extraneous evidence must be given of the authority of the officer to take the protest."4

SS 11. _New promise after discharge and waiver of presentment and demand._ See & C. L. 1139--Demand, protest and notice may be waived,"4 and the indorsers of a note may waive legal diligence to enforce its collection."4 A written waiver, without limitation, cannot be limited by parol evidence."4 But such evidence is competent for the purpose of applying the language of the waiver to its subject-matter and showing the circumstances under which it was made."4

SS 12. _Accommodation paper._ See & C. L. 1140--An accommodation party is one who signs an instrument without any consideration moving to him personally."9 Money advanced by the payge of a note to one for whose accommodation it is made is

34. Bank of Lucerne v. Sharpe \[Ala.\] 44 41. Bayless v. Harris, 124 Mo. App. 234, 8 871. See post, SS 11. 101 SW 617. Certificate, showing that instrument was duly presented, raises presumption

01. Laws 1897, p. 739, c. 612, 8 160. Ewald v. Faulhaber Stable Co., 105 NYS 114.

01. Fact that, upon inquiry as to whether check will be honored, cashier of payge bank

01. The presumption of due diligence of sufficient funds, payment will be made, but otherwise not, does not amount to presentation and dishonor, requiring immediate notice to be given indorser. Citans' Bk. v. First Nat. Bk. \[Towa\] 113 NW 481.

43, 44. London & River Plate Bk. v. Carr, honor, where given otherwise when by mail, must be given on the day of dishonor or on the next business day thereafter. Kinsel v. Ballou \[Cal.\] 91 P60. Under Neg. Inst. Law (Laws 1897, p. 741, c. 612, 8 174), if service of notice of protest is made by mail, it must be deposited in post-offlee in time to reach indorser in usual course on day following, where parties reside in same city. Siegel v. Dubinsky, 66 Misc. 681, 107 NYS 678. Under Reg. Inst. Law (Laws 1897, p. 741, c. 612, SS 113, 175, 178), a bank : which a check is deposited by indorser for collection has until day following dishon to give notice, and indorsee has until day following such notice to give payge notice. Jurgens v. Wichmann, 108 NYS 881.

38. Durham v. Donahue \[C, C. A.\] 155 F 385, 39. Derham v. Donahue \[C, C. A.\] 155 F 385. It was held not fatal to a notice of protest of a certificate of deposit that there was a mistake in the date thereof, as well as in the recital of the date of the certificate, and that it omitted to rectify this clause, which was in certificate "No interest after six months." Id.

01. Amsinick v. Rogers, 189 N. Y. 252, 82 NE 124.

980 Negotiable Instruments SS 10. 10 Cur. Law. a sufficient consideration for the note.\[60\] A consideration to the maker of a note is sufficient to bind an accommodation indorser,\[51\] and a consideration passing from the original payee to the maker is not essential to the validity of accommodation paper.\[32\] One taking an accommodation note in payment of an antecedent debt may recover upon it, if its use was unrestricted.\[58\] The transferee of accommodation paper takes it discharged of all defenses that might have existed against the accommodated party,\[54\] and the fact that the holder of accommodation paper was aware of its character will not affect his right to a recovery.\[55\] An agent of a corporation has no implied authority to bind the corporation by an accommodation indorsement.\[60\] Prima facie, the status of accommodation parties is that which is shown by the instrument.\[57\] An accommodation indorser of a raised check is liable to the drawee bank that has paid it for the difference between the original and the altered amount.\[58\] Under the negotiable instruments law, an accommodation party is liable to a holder for value, who took the instrument with knowledge that it was accommodation paper.\[60\] An accommodation maker is not liable on the instrument to the person for whose accommodation it is made.\[60\] More ownership of note blanks, signed by an accommodation maker, does not constitute ownership of the notes as legal obligations.\[61\] One who holds an accommodation note, with the right to use it as collateral only, is not authorized to sell it.\[62\] Payment discharges an accommodation indorser.\[63\] At common law, an accommodation indorser is discharged by an extension of the time of payment of the instrument.\[64\] But, under the negotiable instruments law, an extension of time of payment of a note, without the consent of the accommodation maker, does not relieve him from liability thereon.\[55\] An accommodation indorser is discharged if notice of dishnor is not given him.\[66\] An accommodation indorser may require the creditor to account for the value of any collateral held for his protection and released or misapplied to his prejudice.\[67\]

SS 13. \_The doctrine of bono fides.\_See 1141.-Unless one is a bona fide holder

50. Willoughby v. Ball, 18 Okl. 535, 90 P

01. In re Hopper-Morgan Co., 156 F 535.

01.

01. Smith v. Hightower \[Ga. App.\] 59 SE

01. Naef v. Potter, 127 III. App. 106.

01. English v. Schlesinger, 105 NYS 885.

01. Though taken after maturity. Naef

01. V. Potter, 226 Ill. 628, 80 NE 1084, affy. 127

01. Naef v. Potter, 226 Ill. 628, 80 NE 1084, affy. 127

01. Where accommodation indorser of note, upon its being protested for nonpayment, pays it, and receives not uncanceled, contract of indorsement is terminated. Packard

01. Federal Nat. Bik. v. Cross Creek & Pitts-

v. Dunfee, 119 App. Div. 599, 104 NYS 140.

burc Coal Co. \[Pa.\] 68 A 1018.

57. This applies as to their status, not only as to the holder for value, but inter seose.

01. Tohlemus v. Prudential Reality Corp. IN. J.

01. Err. & App.\] 67 A 303.

01. Smith v. State Ek., 54 Misc. 550, 104 NYS 750.

01. Laws 1857, 728, c 612, 8 85. English v. Schlesinger, 105 NYS 898. Under this

that if latter would pay note within sixty

been raised to enable the unidentified holder to cash it, upon being informed by cashier

that check is good, is liable to bank thereon. Smith v. State Ek., 54 Misc. 550, 104 NYS 750.

0. The mere fact that plaintiff suggested to his debtor that he procure a party to make an accommodation note to enable him to meet

his obligation to plaintiff does not make plaintiff the person for whose accommodation

such note is made. English v. Schlesinger, 105 NYS 885.

68. Pelton v. Spider Lake Sawmill & Lumber Co. \[Wis.\] 112 NW 29,

59 SE 31.

10 Cur. Law. Negotiable Instruments SS 13. 981

he is not entitled to the peculiar rights incidental to such holdership,"8 and it is always competent for one sued on a negotiable instrument, if he has a good defense, to show that-the plaintiff is not a bona fide holder."9

\_Who may be a holder.\_See * C. L. 1141.-A bona fide holder is one who takes the paper when it is complete and regular upon its face,"16 before maturity,"1 in the usual course of business,"1 and without notice of any defense thereto between the original parties,"7 and for value."4 One cannot by having a note, for which he is to furnish the consideration, made payable to another and indorsed by that other to him become a bona fide holder." The doctrine of bona fides does not apply to non-negotiable instruments,"17 nor does it apply where the transfer is otherwise than by indorsement,"17 unless the maker has notice thereof, either actual or constructive."18

\_Once bona fide holdership always bona fide holdership.\_See * C. L. 1141

\_Notice and knowledge.\_See * C. L. 1141

An indorsee before maturity and for value is not affected by any defenses or equities between the original parties of which he had no notice or knowledge * at the time of indorsement."9 But if he takes the instrument with knowledge of an existing defense thereto, he cannot recover thereon."1 As

**68**. Indores of foreign corporation, if no! SWV 867: First Nat. Bak. V. McColuugh \[Or.\] a bona fide holder, cannot enforce note re-,

93 P 366; Fretwell v. Carter \[S. C.\] 59 SE received by corporation as consideration for 638; Martin v. German American Nat. Bak. contract which it was not authorized to make \[Tex. Cir. App.\] 19 Tex. Ct. Rep. 397, 102 because of its failure to comply with law 131.

regulating foreign corporations. Neyens v. 74. Woodall v. Feoples Nat. Bak. of Lees-Worthington \[Mich.\], id Oct. Legs. 794, 114 barge. \[A., 14\] 6 S 194; Oliver v. Miller \[Ga.\] 60 SE 254; Abneyev, First Nat. Bak. received same in dishonor, maker may set off,

(Kan.) 92 P 110; First Nat. Bak. V. McColuugh \[Or.\] 93 P 366; Matlock v. Scheuer-due to him from payee which is in many

man \[Or.\] 93 P 823; Fretwell v. Carter \[S. V.\] 59 SE 451; 59 SE 639; Martin v. German American

action out of which it sprung. Civ. Code

1855, 83 3750, 4944. Butler v. Mitchell, 128

397, 102 SAV 131.

Ga. 451, 87 SE 764. A note maternally altered

75. Empire Mut. Annuity & Life Ins. Co. atter delivery is void in hands of a subsea-,

01. V. Averty \[Ga. App.\] 59 SE 324.

quent purchaser with notice of alteration.

76. Indorser of nonnegotiable note holds it

Mitchell V. Reed's Extr \[Key.\] 106 SW 833.

subject to all defenses and equities that ex-,

If a bank which discounted drafts was not a hiedler for value and had on deposit to in-,

86. Stockards Nat. Bak. of South Omaha, Neb.,

01. Dolan \[Idaho\] 93 P 585; Gilley V. Harrell,

drafts at any time after it learned that con-,

118. Tenn. 115, 101 SWV 424. It is a good de-,

001. rescore from acceptor. Sherill v. Pennsular

001. Etou. 103 SWV 232.

001. This right is not affected by Acts 1897,

001. 82, 83. Lee v. Hightower \[Ga. App.\] 59

001. 856. One to whom a negotiable instrument is delivered without indorsement takes

001. Mattock v. Scheuerman \[Or.\] 93 P 823.

001. The purchaser of a note, rectiling collateral

a general rule the notice which will invalidate an instrument in the hands of an indorsee is actual knowledge of the infirmity or defect or of such facts that his action in taking the paper amounts to bad faith,\[82\] and this rule has been embodied in the statutes of some of the states.\[83\] Mere inferences that might be drawn from the nature of the transaction are not sufficient.\[84\] Active inquiry is not essential to avert the imputation of bad faith.\[85\] Whether an indorsee was put on notice or inquiry must be determined in large measure by the facts peculiar to the particular case.\[86\] If a corporation is not authorized to issue negotiable paper under any circumstances, all holders of such paper issued by it are charged with notice of such lack of authority.\[87\] Proof that holder gave value for the instrument before maturity is insufficient in it:

dorff, 126 Mo. App. 654, 105 SWV 664. One who takes a note for an existing indebtedness under circumstances that put him on in-

http://www.math.wisc.edu/~dowf/126/Mo.App.654.05.05.

self to prove good faith,"s as is the mere denial by him of knowledge at notice of a breach of faith by payee." Knowledge of one acting as agent of indorsee in negotiating the indorsement is not notice to indorsee." A bank is not chargeable with knowledge of its president gained in another relation."

_Taking in due course of business.--See * C. L. 1143--As to what transactions are included in the usual course of business depends largely upon the circumstances of each particular case." A bank which discounts negotiable paper for a depositor and credits the proceeds to his account is not a holder in due course," unless the credit is absorbed by an antecedent indebtedness or exhausted by subsequent withdrawals."_

In Oregon, where an instrument, payable on demand, is negotiated an unreasonable length of time after its issuance, the holder is not a holder in due course." It is out of the usual course of business for a corporation to issue negotiable instruments to its officers."

_Taking before maturity.--See * C. L. 1145--One who takes a note after maturity takes subject to any defense the maker may have against the payee."_

\_Parting with value.--See * C. L. 1145--Value is any consideration sufficient to support a simple contract," and need not be the face value of the instrument." One who takes the instrument as collateral security for a debt created at the time is a holder for value,1 and remains such under renewals thereafter made.2 So one taking

SS, 89. National Bk. of Barre v. Foley, 54

94. McKnight v. Parsons \[Iowa\] 113 N NV Misc. 126, 103 NYS 558,

01. B. & C. Comp. $ 4455. Under this state-

01. Knowledge by such agent of failure of

01. B. & C. Comp. $ 4455. Under this state-

onideration does not charge indorsee with

its execution is not overdue so as to carry

SW 812.

notice to indorsee of its illegality or previous

91. A bank which discounts a note is not

chargeable with knowledge which its presi-

dent has of fraud in inception of note where

hep gained such knowledge in another relation, and neither participated in nor had

knowledge of discount. McCammon v. Lanning \[C. C. A.\] 154 F 353.

92. Generally speaking, commercial paper is received in usual course of business when

in dudersed and delivered under such circumstances that a business man of ordinary intelligence and capacity would give his money,

goods, or credit for it, and it is not so re-

ceived if such a person would at once suspect

the integrity of the paper itself or the credit

and standing of party offering it. Mattock

v. Scheuerman \[Or.\] 93 F 823.

In due course A bank which receives a

note from a debtor, indorsed by him, without

notice of infirmity in instrument or any right

of set-off in connection-there with, is a holder

in due course. Allentown Nat. Bk. V. Clay

Product Supply Co., 217 Pa. 128, 66 A 252,

Evidence held to show plaintiffs holders of

check in due course within Neg. Inst. Law

(Laws 1897, p. 732, c. 612, 18 91, 95, 96).

Siegmaister v. Lispenard Reality Co., 107 NYS

158.

Not in due course: Where a note is signed

in blank and given to another to fill in and

deliver to payee, which is done, payee is

not a holder in due course within meaning

of Code Supp. 1902, $ 3060a-52, and under $ 2060a-14, if instrument is not filled in strictly

in accordance with authority given, he cannot enforce it against makers. Vander Floeg

v. Van Zuuk \[Iowa\] 112 N NV 807.

93. McKnight v. Parsons \[Iowa\] 113 NNV

858; National Bk. of Barre v. Foley, 54 Misc.

126, 103 NYS 553.

94. McKnight v. Parsons \[Iowa\] 113 NNV

01.

01. McKnight v. Parsons \[Iowa\] 113 NPV

01.

01. McKnight v. Parsons \[Iowa\] 113 NPV

01. B. & C. Comp. $ 4455. Under this state-

01. B. & C. Comp. $ 4455. Under this state-

01. McKnight v. Parsons \[Iowa\] 113 NPV

note to indorsee of its illegality or previous

disbonnor. Mattock v. Scheuerman \[Or.\] 93 F 823.

97. C. Capital City Brick Co. v. Jackson, 2 Ga.

Appl. 711, 59 SE 82.

97. Lindsay v. Dutton, 217 Pa. 148, 66 A

01. Takes subject to rights which resulted

from agreement of payee to accept a certain

sum in full payment of note and tender to

him of that amount. Hall v. Coats, 2 Ga.

Appl. 202, $8 SE 865. More transfer without

actual indorsement before maturity insuff-

cient. Dazey v. Jeffers, 127 Ill. App. 807.

98. B.

984NEGOTIBLE INSTRUMENTS SS 13.10Cur. Law. the instrument in payment of $ or as collateral security for $ a pre-existing debt is a holder for value, but one who merely gives a credit on an old account which does not discharge the debt to extend time of payment is not a holder for value.$ A bank which discounts paper for a depositor and places the amount to his credit is not a holder for value,$ but it becomes such a holder if it applies the proceeds of the discount to the payment of a debt due it from the depositor,$ or if it assumes a legal obligation to another on the faith of the deposit,$ or if before receiving notice of infinity in the paper the deposit is withdrawn $ or reduced by payment of checks drawn thereon to an amount less than the proceeds of the discount.10 Brokers who through other brokers sell a negotiable bond for a client and pay to the latter the proceeds of sale are holders for value.11 The holder of a renewal note who has not surrendered the original note is not a holder for value.12 Where the first indorsee takes in good faith before maturity, subsequent indorsees after maturity take free of all defenses.13

Footnote 12: The author is grateful to the anonymous referee for the anonymous referee 10 Cur. Law. Negotiable Instruments SS 13. 985

fense that the consideration failed \[18\] or was illegal,\[19\] nor is it a defense that the instrument was delivered on Sunday,\[17\] stolen,\[18\] procured by fraud,\[19\] transferred without authority,\[20\] or, in the case of a corporation, that its acceptance was unauthorized.\[21\] Where blanks negligently left in an instrument are fraudulently filled, the negligent party is liable to a bona fide holder.\[22\] A bona fide holder is not affected by any agreement or understanding between other parties to the paper.\[23\] In Wisconsin a bona fide holder may recover on a note for lightning rods though it does not contain upon its face the red ink declaration of consideration required.\[24\] In Kentucky a pedder's note, not indorsed "Pedder's note," is unenforcible in the hands of any subsequent holder.\[25\] In Georgia if the consideration of a note, expressed therein, is a patent or patent right, an indorsee takes subject to equities existing between the original parties.\[26\] Where some of the signatures to a joint and several note are forged, the signers whose signatures are genuine are liable to a bona fide holder.\[27\] A bona fide holder may recover from an indorser or surety even though the maker's signature is a forgery.\[29\] Where one guilty of negligence or laches is by fraud induced to sign a negotiable instrument without intending to do so, the instrument is unenforcible in the hands of a bona fide holder.\[19\] This rule has been em-

\*\*18. Note. Jones v. Evans \[Cal. App.\] 91 P 582. Note given by one for a debt which he did not owe. Adams v. Barrell (Tex. City. App.\] 19 Tex. Ct. Rep. 503, 108 SW 776, Fallat. 745, c. 612, 805. Id. Accommodation in-

ure of consideration for acceptance of drafts. Stewart v. Givens \[Mo. App.\] 107 SW 421. Under Civ. Code 1895, 8564, failure of con-

sideration is no defense Against a bona fide holder of acceptance. Bothwell v. Whilev

s2. That one whose name appears as maker

Sros. \[Ga. App.\] 60 SE 571.

16. The bona fide holder of a check orig-

inlay given for a gambling debt is not

bound to sue the indorser rather than the

maker. Matlock v. Scheuerman \[Or.\] 93 P 823.

17. Gordon v. Levine \[Mass.\] 83 NE 861.

01. The title of a bona fide holder of a n-

suitable instrument is good against an owner

v. Sjoblom, 181 Vris. 642, 111 NW 666.

from whom it had been stolen. Ehrlich v.

25. Ky. St. 1903, 14 223. Lawson v. First

Jennings \[S. C.\] 88 NE 922, Where a state

Nat. Ek. 31 Ky. L. R. 818, 102 SW 234; Mc-

coupon bond has been surrended and ex-

cahaged for stock under Laws 1892, p. 24, but

104 SW 281. This statute was not repealed

not canceled as required, and is stolen and

by negotiable instruments, date, to 1904,

again put in circulation, a bona fide holder

18. entitled to have it exchanged for stock

01. That exchannel delivery of note

01.

01. Determine that agent disposing of propo-

01.

01. Determine that agent disposing of propo-

01.

01. The other two is given for patent right

01. To this end, let 1904, 1915, 1927. The answer of

01. To this end, let 1904, 1915, 1927. The answer is yes
    986 NEGOTIABLE INSTRUMENTS SS 13.10 Cur. Law.

bodied in a statute in Minnesota \[20\] and Wisconsin.\[31\] In Kentucky a note which has not, under the statute, been placed on the footing of a bill of exchange is subject in the hands of a bona fide holder to a counterclaim or set-off.\[32\] A contemporaneous written agreement making the payment of a note conditional is a part of the note and the indorsee of both instruments takes the note subject to the condition.\[33\] In foreclosure proceedings in chancery by one to whom a note secured by a trust deed was assigned before maturity, the grantor may make any defense that he could have made against the original owner of the note and deed.\[34\] An innocent holder of drafts fraudulently put in circulation is only entitled to recover the amount he paid for them.\[35\] Estoppel may work against the assertion or rights by a holder.\[36\] In an action against the drawer of a check, lack of a consideration passing from plaintiff to the person to whom the check was originally given is no defense.\[31\] A bona fide holder of a note taken as collateral may collect it, and after applying the proceeds to the payment of his debt, hold the balance in trust for the indorser.\[38\]

_Burden of proof.\[35\]_\*\*C. L. 1145.\*\*One in possession of a negotiable instrument properly indorsed is presumed, prima facie, to be a bona fide holder.\[39\] This rule has the sanction of statute in some states.\[40\] Accordingly, in an action by an indorsee, the burden is upon the defendant to prove that plaintiff is not a bona fide holder,\[31\] but if it is shown that the instrument had its inception in fraud,\[31\] that the considera-

\[Mo. App.\] 108 SV 115. But if the signer of, such as a mortgage securing same on couw was guilty of negligence, the instrument is enforcing in hands of bona fide holder. Id.

\[VW1s\] 112 NVV 1083. The holder of a negotiol- of note. Id.

\[Mo.\] 108, Laws 1882, p. 157, c. 114, s 1. First Nat. BK. v. Doeden \[St. D.\] 113 NVV 81.

\[Mo.\] 108, Under Laws 1889, p. 1707, c. 356, s 1676-25, where one of signatures to note executed by several persons was procured by fraudulently misrepresenting its character, If person so decevolved could not have obtained knowledge of its character by use of ordinary care, instrument is void as to all makers and unenforbible in hands of bona fide holders. Ankland v. Arnold, 131 Wis. 64, 111 NVV 212.

\[M.\] 108, Laws 1882, p. 157, c. 114, s 1. First Nat. BK. v. Doeden \[St. D.\] 113 NVV 81.

\[M.\] 108, Under Laws 1887, p. 1733, c.

\[M.\] 108, Laws 1882, p. 157, c. 114, s 1. First Nat. BK. v. Doeden \[St. D.\] 113 NVV 81.

\[M.\] 108, Laws 1882, p. 157, c. 114, s 1. First Nat. BK.

10 Cur. Law. Negotiable Instruments SS 14. 987

tion therefor was illegal,\[43\] or that, for any reason, the title of the person negotiating it was defective,\[44\] the burden shifts and the indorsee must show the bona fides of his holding. But evidence showing mere failure of consideration, total or partial, does not shift the burden of proof.\[45\] The burden of proving bona fide holdership is met by showing that the indorsee purchased for value in the usual course of business,\[46\] it being presumed therefrom that he took without notice of fraud or other infirmity, if there are no circumstances creating a contrary presumption.\[47\]

SS 14. _Remedies and procedure_,\[See 8 C. L. 1140--One holding commercial paper as a pledge or collateral security may bring either an action to enforce the principal debt or one to collect the pledged paper.\[48\] In Alabama separate drafts may be sued on in the same action.\[49\] Where the right of action depends upon the performance of conditions precedent, the conditions must be performed before the cause of action accrues.\[46\] Where property is pledged to secure the payment of a note, a foreclosure of the pledge is not an essential prerequisite to a suit upon the note.\[51\] Tender of the bond indemnity required by the New York statute, where a note is lost, is not a prerequisite to a right of action on the note.\[52\] Where suit is prematurely brought, the defect may be cured by filing an amended petition.\[83\] In Idaho an attachment may

F 525. If it is shown that the instrument was fraudulent in its inception and was the person under whom he claims acquired fraudently put into circulation, the burden shifts to the indorsee to show a bona fide holding. First Nat. BK, v. Person, 101 Minn. 45. Sheffield v. Johnson County Sav. BK., 30, 111 NIV 730. Evidence insufficient to shift burden. Id. Where to a plee that defendant was induced to sign acceptances by fraudulent representations, plaintiff replies that he was a bona fide purchaser, the burned is upon him to show that the paper was acquired before maturity and for value. Woodall v. Peoples Nat. BK. \[Ala.\] 145 S 194. "Fraud in the procurement of the note" as used in Civ. Code 1895, $ 8269, which declares that holder of note is presumed to be such bona fide and for value, but "such pre-sumption is negatively by proof of any fraud in procurement of the note," means fraud of holder thereof and has no reference to fraud in contract out of which note arose, or, if fraud of an intervening indorser. Harrell v. National Bk., 128 Ga. 504, 57 EE 869. 483. It being admitted check was given in consideration of gambling debt, burden is with plaintiff to prove that he is a bona fide holder. Matieck v. Schewerman \[Cor.\] 93 S 82. 48. Posillemus v. Prudential Reality Corp. 44. Neg. Inst Law (Laws 1897, p. 738, c. 612, $ 83), Engle v. Hyman, 54 Misc. 251, 104 NYS 390. Gen. St. 1902, $ 422, 4229. Parsons v. Vtica Cement Mfg. Co. (Conn.) 64 = 1024. The holder of a negotiable instrument is deemed prima facte to be a holder in due course unless the title of the person negotiating the instrument is shown to be defective, Kerr v. Anderson \[N. D.\] 111 NIV 614. When this is shown the burden shifts to the holder to show that he took the instrument in due course. Id. Under Code Supp. 1902, $ 3060-e55 2060-e55, the title of one who negotiates an instrument in breach of faith or under cir-cumstances amounting to a fraud is defective, and burden is cast upon holder to show that he or some person through whom he claims acquired paper innocentiy. McKnight v. Parsons \[Iowa\] 113 NIV 858. Where the payee negotiated note in bad faith, burden is on plaintiff, under Neg. Inst. Act (Laws 1897, p. 733, c. 612, $ 98), to show that he or the person under whom he claims acquired fraudently put into circulation, the burden shifts to the indorsee to show a bona fide holding. First Nat. BK. v. Person, 101 Minn. 45. Sheffield v. Johnson County Sav. BK., 30, 111 NIV 730. Evidence insufficient to shift burden. Id. Where to a plee that defendant was induced to sign acceptances by fraudulent representations, plaintiff replies that he was a bona fide purchaser, the burned is upon him to show that the paper was acquired before maturity and for value. Woodall v. Peoples Nat. BK. \[Ala.\] 145 S 194. "Fraud in the procurement of the note" as used in Civ. Code 1895, $ 8269, which declares that holder of note is presumed to be such bona fide and for value, but "such pre-sumption is negatively by proof of any fraud in procurement of the note," means fraud of holder thereof and has no reference to fraud in contract out of which note arose, or, if fraud of an intervening indorser. Harrell v. National Bk., 128 Ga. 504, 57 EE 869. 483. It being admitted check was given in consideration of gambling debt, burden is with plaintiff to prove that he is a bona fide holder. Matieck v. Schewerman \[Cor.\] 93 S 82. 48. Posillemus v.

issue against the property of an indorser of a note or guarantor of a bill of exchange when action is brought to enforce payment of the debt.\[54\]

_Limitations._--Suit must be brought within the statutory period after the maturity of the paper,\[54\] unless the running of the statute is postponed.\[56\] A note is not rendered immune from prescription by fact of its having been accepted by way of investment.\[67\] Instruments acknowledging a debt evidenced by a note and renewing the note will take the case out of the operation of the statute.\[58\] Limitations on a demand note run only from the making of demand.\[59\]

_Parties.\[58\]_ & C. L. 1147--An action may be maintained in the name of the payee of a note regardless of who is the owner of it,\[69\] and a payee in possession may sue although his uncanceled indorsement is on the instrument.\[61\] Under the law merchant the transferree of an unindorsed negotiable note must sue in the name of the payee,\[62\] but this rule has, in some states, been changed by statute.\[63\] The assignee of a non-negotiable note can sue in his own name.\[64\] A holder who has no beneficial interest may sue.\[65\] Suit on a note indorsed in blank may be brought by any person.\[76\] In Iowa where a note is executed by one corporation to another and indorsed by the latter, the maker and indorser may be sued in the same action.\[67\] Where a partner is sued as individual indorser of the firm note, if he desires to bring in the maker he must move to have the partnership made a defendant.\[68\]

_Pleading.\[58\]_ & C. L. 1147--A question not put in issue by the pleadings cannot be considered.\[69\]

- 54. Rev. St. 1887, SS 4302. Armstrong v. in name of payee, a foreign corporation, Slick \[Dadb\] 93 P 775.
- 55. The six year limitation does not apply to action on promissory note signed in preset-ence of an attesting witness. Rev. St. 53, SS 89. Murray v. Quint, 103 Me. 145, 66 A.
- 513. Against a demand note the statute begins to run immediately. Church v. Stevens, 66 Mike. 572, 107 NYS 310, Prescription on a demand note runs from date of note and not from demand. Darby v. Darby \[La.\] 45 S 747. In action on note, exercise of power of sale in mortgage given to secure it held not to accelerate the time of maturity of balance on debt remaining unpaid after application of proceeds of sale so as to start the running of the statute prior to date of maturity stated in note. Hall v. Jameson \[CaL\] 91 P 518.
- 56. Where the time of payment is extended, the period of limitations will begin to run from the time to witch it is extended. Dashell v. Moody \[Tex. Civ. App.\] 97 SWS 843. A mortgage given by payee of note secure note which sets out note and retites that time of payment has been extended to a specified date, and promises to pay it accordingly to its terms and conditions, contains a promise to pay note as extended and an action on note within statutory time after date specified is not barred. Moode v. Gould \[CaL\] 91 P 616. Where under provisions of holder's will, accepted by the maker, notes are to be held uncollected during life of maker, running of statute is suspended until his death. In re Church's Estate \[Vt\] 67 A 549. Agreement held not suspend running of prescription against action on note. Darby v. Darby \[La.\] 45 S 747.
- 57. Darby v. Dary \[La.\] 45 S 747.
- 58. Moore v. Gould \[CaL\] 91 P 616.
- 59. Neale v. Morrowy, 150 Can 414, 88 P 815.
- 60. Wolfmore Loan & Banking Co. v. Rollins \[Mass.\] 81 NE 204. Suit may be brought by the manufacturer.\[61\]
- 61. He is presumed to own it and his title cannot be inquired into, unless necessary for protection of defendant or to let in defense which he seeks to make. Carolina Locust \[Ga. App.\] 62 Mike. 572, 107 NYS 310, Prescription on a demand note runs from date of note and not from demand. Darby v. Darby \[La.\] 45 S 747. In action on note, exercise of power of sale in mortgage given to secure it held not to accelerate the time of maturity of balance on debt remaining unpaid after application of proceeds of sale so as to start the running of the statute prior to date of maturity stated in note. Hall v. Jameson \[CaL\] 91 P 518.
- 63. Where the time of payment is extended, the period of limitations will begin to run from the time to witch it is extended. Dashell v. Moody \[Tex. Civ. App.\] 97 SWS 843. A mortgage given by payee of note secure note which sets out note and retites that time of payment has been extended to a specified date, and promises to pay it accordingly to its terms and conditions, contains a promise to pay note as extended and an action on note within statutory time after date specified is not barred. Moode v. Gould \[CaL\] 91 P 616.
- 64. Sunderland v. Cowan \[Md.\] 67 A 141.
- 65. The holder of the naked legal title to a note may sue thereon, even though the money when collected belongs to another. Fisher Mach. York * 10Cur. Law. Negotiable Instruments SS 14.

The complaint.Soo & c. L. 1147--The complaint need only state facts sufficient to make out a cause of action.\[70\] The execution and delivery of the instrument must be alleged,\[71\] and facts showing the jurisdiction of the court.\[72\] In an action on a note the date of the promise need not be stated,\[73\] but in an action by an indorsee an allegation of the time of the transfer to him is essential.\[74\] It is sufficient, however, if it appears from the declaration that the transfer was made before maturity and that the action is not barred by limitations.\[75\] In the case of a demand note, no allegation of demand is required.\[76\] In an action against an indorser, presentment must be alleged or a sufficient excuse for not making it.\[77\] Notice of dishonor or waiver thereof must be alleged in an action against an indorcer,\[78\] or against the drawer of a check.\[79\] If attorney's fees are claimed, facts warranting the recovery thereof should be alleged.\[80\] The statute of limitations need not be anticipated by setting out payments or memorandum relied upon to take the case out of its operation.\[81\] A fact established by the suit itself need not be alleged.\[82\] To entitle plaintiff in the event that a defense to the instrument sued on is sustained to have submitted the issue as to defendant's liability for the sum due independent of his liability on the instrument, he must plead in the alternative that if such defense shall prevail he shall be entitled to

was accepted in discharge and satisfaction

Comp. $ 56, and, therefore, insufficient to show jurisdiction. Fishburn v. Londershau- put in issue by pleadings, Steger v. Jackson, 31 K. L. 434, 102 SWY 329.

73. Failure to give date not ground for dismissal of complaint. Church v. Stevens, 56 Misc. 572, 107 NYS 810. If answer sets up defense which, if true, would destroy that cause of action, plaintiff may meet it by proof in rebuttal or avoidance. Id. The declaration in an action on a note is sufficient if it sets out, generally and in substance, the nature and character of the agreement declared on. Pyle v. Gallagher \[Del.\] 67 A 197. Allagation that maker was indebted to paye and that note was for value received, a sufficient averment of consideration. McKinley v. Mineral Hill Consol. Min. Co. \[Vdash\] 89 P 495. In action upon foreign draft, declaration presents on its face a good cause of action where it avers that defendants directed payment to their order amount therein stated, indifferent to plaintiff with bills of lading attached, presentation, acceptance, dishonor, and notice thereof, and sale of grain covered by bill of lading and failure of proceeds to pay draft in Hull. Hammond, Snyder & Co. v. American Exp. Co. \[Md.\] 68 A 496. In an action on a note which provides that if maker shall pay on note at least one fourth of his interest in net profits of a certain business during the year note has to run the paye will renew it, an averment that defendant did not pay one fourth part, or any part of his interest, in such net profits to plaintiff, is sufficient without setting out amount of such profits, the dividends declared, or interest of defendant in net profits. Pyle v. Gallaber \[Del.\] 67 A 197. Allagations held a sufficient pleading of defendants' breach by nonpayment of contract to pay note at maturity. Dresser v. Mercantile Trust Co., 108 NYS 577.

01. Argument that corporation made and delivered note as its own act sufficient without averment that such acts were done by and through authorized agents of corporation. McKinley v. Mineral Hill Consol. Min. Co. \[Vdash\] 89 P 495.

01. Compiliar not showing sufficient service of process by publication under B. & C. Co. \[Vdash\] 89 C. L. 1147--The complaint need only state facts sufficient to make out a cause of action.\[70\] The execution and delivery of the instrument must be alleged,\[71\] and facts showing the jurisdiction of the court.\[72\] In an action on a note the date of the promise need not be stated,\[73\] but in an action by an indorsee an allegation of the time of the transfer to him is essential.\[74\] It is sufficient, however, if it appears from the declaration that the transfer was made before maturity and that the action is not barred by limitations.\[75\] In the case of a demand note, no allegation of demand is required.\[76\] In an action against an indorser, presentment must be alleged or a sufficient excuse for not making it.\[77\] Notice of dishonor or waiver thereof must be alleged in an action against an indorcer,\[78\] or against the drawer of a check.\[79\] If attorney's fees are claimed, facts warranting the recovery thereof should be alleged.\[80\] The statute of limitations need not be anticipated by setting out payments or memorandum relied upon to take the case out of its operation.\[81\] A fact established by the suit itself need not be alleged.\[82\] To entitle plaintiff in the event that a defense to the instrument sued on is sustained to have submitted the issue as to defendant's liability for the sum due independent of his liability on the instrument, he must plead in the alternative that if such defense shall prevail he shall be entitled to

was accepted in discharge and satisfaction

Comp. $ 56, and, therefore, insufficient to show jurisdiction. Fishburn v. Londershau- put in issue by pleadings, Steger v. Jackson, 31 K. L. 434, 102 SWY 329.

76. Chalveh v. Stevens, 56 Misc. 572, 107 NYS 810.

01. Chalveh to give date not ground for dismissal of complaint. Church v.

recover the amount defendant owes him.\[53\] In Alabama, where separate drafts are sued on in the same action, they may be described in the same count.\[54\] The complaint may be amended,\[85\] but no amendment can be granted which imparts into it a new cause of action.\[86\]

\_The answer.\_See 8 C. L. 1145--An issueable \[87\] defense must be set up and the grounds thereof plainly stated \[88\] without ambiguity or evasion.\[89\] The defenses of absence or failure of consideration,\[90\] fraud,\[91\] or duress,\[92\] when relied on, must be alleged with sufficient particularity. The plea of fraud must be verified.\[93\] Where the declaration alleges a contract to pay money absolutely, the general issue will put in issue the question whether the agreement was conditional.\[94\] Where the complaint in an action against an indorser alleges that notice of default had been given him, the answer must deny such notice.\[95\] In an action by an indorsee, if defendant would rely on infinities in the instrument, he must allege facts showing that plaintiff is not a bona fide

83. Thompson v. Hicks \[Tex. Civ. App.\] 17

failure of consideration pleaded is that payee Tex. Ct. Rep. 669, 100 SWV 357.

84. Code 1386, $ 3292. Woodall v. Peoples'

certain mortgages, judgment for plaintiff will Nat. Bk. \[Aia.\] 45 8194.

85. In action upon renewal note, unless accepted in absolute payment of original by express agreement, plaintiff may, upon the filing of plea of non est factum by defendant, accept such plea and so amend pleaded.

defeat recovery on note, pleas alleging that defendant was induced to purchase properly for which note was given by plaintiff's County Bk. v. Bee \[W. Va.\] 59 SE 181. But if plaintiff does not elect to so amend, appellate court will not reverse judgment joined upon issue on plea of non est factum and remand for new trial on amended pleadings to be filed. Id.

86. Amendment allowed in action on written order drawn against building loan and its acceptance by defendants held to violate this rule. Rockmore v. Kramer, 108 NYS 653.

01. Plea construed as a whole held to set up issuable defense that note sued on was embraced in composition of defendant's debts. Dicks v. Andrews, 129 Ga. 756, 59 SE 782.

Plea held to set up issuable defense as to reasonableness of attorney's fees. Proctor v. Cooke, 129 Ga. 732, 59 SE 781; Thomas v. Siesel, 2 Ga. App. 63, 68 SE 1131. Where in an answer by paragraphs to a petition in suit on promissory notes defendant makes in answer to one of paragraphs a general denial of indebtedness, but nowhere sets up any legal defense, answer is properly strckken on demurrer. Id.

88. Plea held a sufficient plea of non est factum under Saylee' Am. Civ. St. 1897, art.

01. Scott v. Menly \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 865, 105 SWV 65. In action against indorser, affluxuit of defense held sufficiently precise, though not expressly denying that plaintiff was holder in due course of trade, in view of indebtingness of statement of claim. Federal Nat. Bk. v. Cross Creek & Pillsbury Coal Co. \[Pa.\] 88 A 1018.

01. Plea of non est factum is subject to be stricken on demurrer which does not unequivocally deny that notes sued on are the act and deed of defendant. Thomas v. Siesel, 2 Ga. App. 663, 58 SE 1131.

01. Plea alleging that note is "without any valuable consideration, either moral or legal," involves only a reference to a "valuable" consideration and does not mean that note is without a "good" consideration. Dicks v. Andrews, 129 Ga. 756, 59 SE 782. Where only * 10 Cur. Law. Negotiable Instruments SS 14. 991

- 10.06
- 11.07
- 11.08
- 11.09
- 12.08
- 13.08
- 14.09
- 15.09
- 16.09
- 17.09
- 18.09
- 19.10
- 19.11
- 19.12
- 19.13
- 19.14
- 19.15
- 19.16
- 19.17
- 19.18
- 19.19
  \_Evidence.\_See * C. L. \[1140\]--The evidence must be confined to the issues raised by the pleadings \[12\] and must support the allegations thereof.\[13\] In Minnesota a variance between the evidence and the pleadings is not fatal unless the adverse party was misled thereby in his preparation for trial.\[14\] Parol evidence is inadmissible to add to, take from, or vary the terms of a negotiable instrument, except where there has been an omission resulting from fraud or mistake,\[15\] but where a note is ambiguous on its face, extraneous evidence, either written or oral, is admissible to explain it.\[18\] Oral evidence is also admissible to show that defendant did not execute the instrument sued on and that no consideration passed to him,\[17\] or to explain that a note was exe

## 10 Cur. Law. Negotiable Instruments SS 14.

993

cuted for the accommodation of another or to be held as collateral security.\[18\] An oral agreement between maker and payee of note, when fully executed, may change a stipulation as to interest.\[19\] Under the negotiable instrument law, parol evidence is admissible as between several indorsers to show that they agreed to become liable otherwise than in the order in which they indorsed.\[20\] A written agreement executed contemporaneously with a negotiable instrument annezing a condition to its payment is admissible in a suit on the instrument between the original parties.\[21\] A letter written by the maker of a note admitting receipt of consideration is admissible though never received by payee.\[22\] Entries in the books of the maker of a note, made after the note was executed, by one not appearing as a witness, are not admissible to show the invalidity of the note, unless the payee had knowledge of and asserted to them.\[28\] If the instrument sued on has been lost, upon proper foundation being laid therefor secondary evidence of its contents is admissible.\[24\] The fact that certain receipts covered the same payments shown in statements of account will not render such receipts or statements inadmissible to prove payment.\[25\] Checks drawn by the maker of a note prior to the execution thereof are not admissible as evidence of payments on the note.\[26\] The usual rules as to relevancy and materiality,\[27\] admissions of parties to suit,\[28\] and opinion testimony, prevail.\[29\]

## 11. Willoughby v. Bali, 18 Okl. 585, 90 P

held admissible in action to recover balance

1017. But such evidence cannot be received

a alleged one on note. Vollmer Clearwater Co. to defeat recovery on note, where payee, on

v. Rogers, 13 Idaho, 564, 92 P 578. Evidence

strength of execution and delivery thereof,

held admissible as tending to prove that note

and at request of maker, extended credit to

had been materially altered after payment

third party. Id.

19. Agreement that if maker will withhold

Civ. App.\] 19 Tex Ct. Rep. 865, 105 SWP 55. In

payee that will certain proceedings against

ago of market by assagine against dec-

payee are settled no interest would be

charged after maturity. Righetti v. RIBetti \[Cal. App.\] 90 P 50.

20. P. L. 1902, p. 596, 86. Wilson v. Henne.

dee, \[N. J. Err. & App.\] 66 A 413.

by indorsee,

which that is not a good choice for the

21. Aden v. Doub \[N. C.\] 59 SE 162.

01. Austin v. Long, 1 Ga. App. 258, 57 SE

01.

01. Baines v. Coos Bay, etc., R. & Nav. Co.

\[Or.\] 89 P 371.

24. It is largely within discretion of court

to determine when sufficient foundation has

been laid for introduction of such second-

payment by proof of defendants' inability to

ary evidence (Smith v. Hightower \[Ga. App.\] 59 SE 593), and where defendants add

mid that a copy sought to be introduced is a

correct copy of the original instrument, no

other foundation is necessary (Id.).

25. Stone v. Pettus \[Tex. Civ. App.\] 18

Tex. Ct. Rep. 863, 103 SWP 412.

26. In re Roger's Estate, 217 Pa. 626, 66 A

01.

01. Evidence held content and relevant

on issue raised by plea of non est festemm.

and vice. Ins. Act. $ 42 (28th Gen. Assem. Scott v. Menly \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 865, 105 SWP 55. In action on a lost

not payable in instalments, where defense

was non est factum, evidence of receipt of

money by person to whom note was delivered

held irrelevant. Martin v. Jesse French

Piano & Organ Co. \[Ala.\] 44 S 112.

14. where plaintiff's bookkeeper testities that

mony held to have some slight tendency to

c corroborate defendant's denal of execution

try therein as to discount of note. In suit

of instrument, and its admission, therefore,

not erroneous. Ayrhart v. Winheimy \[Lowa\]

before him in usual course of business, such

112 NWW 782. In action on draft by assigine

against acceptors' evidence, held relevant

upon question of failure of consideration.

Johnson County Sav. Bk. v. Rapp \[Wash.\]

91 P 382. Copy of book account and notes

and receipts bearing upon correctness thereof

10 Cur. L. -63.

_Presumptions and burden of proof._ See * C. L. 1149.--The production of a check payable to the order of "Cash" constitutes prima facie evidence of ownership.\[39\] Where execution is denied, the burden is upon the plaintiff to prove it,\[41\] and this only applies in an action on a lost note.\[32\] The burden is upon the defendant to prove that the person executing the instrument was legally incompetent.\[38\] Where a note is executed by an illiterate man making his mark, if the execution is not denied and the maker executed and acknowledged a deed of trust to secure the note which is described in the deed, the presumption arises that he was acquainted with the contents of the note when he made his mark,\[34\] and this presumption cannot be overcome without evidence that imposition or fraud was practiced upon him.\[35\] The burden of proving that the instrument was procured by fraud is upon the defendant.\[36\] When forgery is pleaded as defense, the burden of proof is on plaintiff to show that maker signed the note.\[37\] There is a prima facie presumption that the signatures to a note were affixed in the order in which they appear.\[38\] A negotiable instrument prima facie imports consideration,\[39\] and the burden of proving a failure thereof is upon the defendant.

Rogers v. Rogers \[Del.\] 66 A 374. Evidence

state that such purpose has ended. Stiles v. held irrelevant to issue made by defense of

Shelden, 2 Ga. App. 817, 58 SB 615.

reselusion for fraud, of deed of trust in

30. Cleary v. De Beck Plate Glass Co., 54

which defendant agreed to pay note. Jock-

Misc. 577, 104 NYS 831.

usch, Davison & Co. v. Lyon \[Tex.\] 18 Tex.

31. Plea of non est factum throws burden

Ct. Rep. 492, 102 SWV 396. In action by

upon plaintiff. Memphis Ceffin Co. v. Patton

transferee of note, if there is no offer to

Trex. Giv. App.\] 30 Tex. Ct. Rep. 670, 106 SWV

introduce evidence to show notice to holder

697. Where execution of acceptance seated on

or reasonable ground for suspicion upon his

is denied, burden of proving such execution

part that purpose of payee in negotiating

is upon plaintiff. Carrara Faint Agency Co.

note was to defend readers, evidence that

v. American Nat. Bk., 9 Ohio C. C. (N. S.) 150.

payee had expressed intention to transfer

To entitle plaintiff to recover on note on is-

note in order to avoid payment of debts, is

sue of non est factum, he must prove either irrelevant and properly excluded. Oliver v.

Miller \[Ga.\] 60 SE 254. A. and P. gave

was signed there by a person duly author-

their joint notes for part of purchase price of

ized, or that, having knowledge of fact that

stock and their individual notes for part.

In action against P. on his individual note

facts, the subsequently ratified same. Ritchie

it was held that evidence to show that

Country Ek. v. See \[V., Va.\] 59 SE 181. In

vendor agreed to give a written guaranty

action against several persons whose names

to A that he would never have to pay any

are signed to a note, affixult by one denying

part of principal of note given by him was

as execution of note puts burden upon plaintiff

Inadmissible. Commercial & Saw. BK. v. Pott,

to show execution of note before it can be

150 Cal. 358, 89 P 431. Evidence that purf

chaser of check two months after purchasing

149 Mic. 362, 112 NYP 94.

filed a petitten in bankruptcy is immaterial

and irrelevant upon Issue of Bons flas in

Co., 141,41 S 113. But requested charge

partcase. Siegemeister V. Lepsenand Reality

that unless jury are satisfied by a prepon-

Co., 107 NYS 158. In action by indersec of

derance of evidence that defendant signed

note their must find for defendant requires

defendant's testimony as to what he did in

to high a degree of proof. Id.

reference to stopping payment, that he noti-

33. This he must do by a preponderance

fed banks that note was fraudulent, and had

of evidence. Ireland v. White, 102 Me. 233, 66

notice published in daily papers with refer-

A 477. Evidence held to sustain jury's find-

ence to manner in which it was procured,

where it was not shown that such steps

she executed note. Id. Where it is shown

came to plaintiff's notice, or could reason-

that maker of note was mentally unsound

ably be presumed to be known to them. Mey-

before its execution, jury may presume that

or v. Levdal \[Cal. App.\] 92 N 322.

such unsoundness continued until time of

28. Evidence held admissible to show an

admission by defendant that note in suit was

executed by him. Martin V. Jesse French

34, 35. Dawson v. Wombles, 123 Mo. App.

Piano & Organ Co. \[Ala.\] 44 S 112.

29. In action against administrator

01. But that it was so procured may be

not executed by his intestine, evidence of

physicalians engaged in general ant.40 In Georgia, where the defense to a note given for fertilizers is that the packages of fertilizers did not have tags attached as required by law, the burden is on defendant to prove that fact.41 Where a note is payable on demand, demand is presumed to have been made at the time of its delivery.42 Under the negotiable instruments law the burden of proof lies upon a party who alleges that cancellation of an instrument or signature was made unintentionally or under a mistake or without authority.43 The burden is upon the defendant to prove payment,44 tender,45 or release.46 In an action on a check if defendant alleges damages accruing from failure to present the check while the bank was solvent, the burden rests upon him to show that funds were on hand to meet it from the time of its execution until the bank failed.47 Where one claims as the assignee of an instrument, the burden is upon him to prove the assignment.48 In an action on notes executed by defendant to a corpora-

Kinley v. Mineral Hill Consol. Min. Co. {Wash.} 89 P 495. In a promissory note the seal imports consideration. Youngsk v. Keim, 34 P. Super. Ct. 337. The burden of proving a consideration in action on note is upon the plaintiff and is shown prima facie by production of note in evidence. Gutta Percha & Rubber Mfg. Co. V. Cheung \[Tex. Giv. App.\] 107 SW 157. Under Rev. St. 1899, $ 457 (Ann. St. 1906, p. 516), execution and delivery of a negotiable note imports that it was given for a valuable consideration. Dawson v. Wombles, 123 Mo. App. 340, 100 SW 547. A note under seal imports a consideration. Rogers v. Rogers \[Del.\] 66 A 374; Smith v. Hibthor \[Ga. App.\] 59 SE 539; Webb v. Simmons \[Ga. App.\] 60 SE 334. Imports consideration as to both makers and indorvers or sureties. Smith v. Hightower \[Ga. App.\] 59 SE 593. Where a note bears words "value received" proof of signature of maker imports payment of a consideration. Harris v. Firth \[N. J. Law\] 68 A 1064. In a suit on such a note burden of rebutting consideration is upon maker. Evidence held insulin-client for this purpose. In re Royer's Estate, 217 Pa, 626, 66 A 854. Where claim supported by uncontradicted evidence that note and mortage securing it were given without consideration has in itself inherent elements of improbability, there is, in view of presumption of consideration arising from instrument itself, which is evidence under Code Civ. Proc. $ 2061, a conflict of evidence sufficient to support finding of no consideration. Moore v. Gould \[Co.\] 91 P 616. Where in action on promissory note answer sets up a distinct contract providing for convergence of real estate as consideration for note, and reply denies under cath execution and defuery of such contract, burden of proving execution and delivery is upon defendant, and failure of such proof precludes contract being received in evidence and failure of that ground of defense, Sparks v. Oklahoma Const. Co. \[Okl.\] 91 P 839. 40. Lynds v. Van Valkenburgh \[Kan.\] 93 P 615. Note under seal. Webb v. Simmons \[Ga. App.\] 60 SE 334. Where consideration for note is payment of certain notes and mortgase, and evidence shows they have been paid but not who paid them, the burden of showing failure of consideration is not met. Lynds v. Van Valkenburgh \[Kan.\] 93 P 611. If defendant shows that consideration was promise to do certain things in future, burden is still on him to show that tion and indorsed to plaintiff, plaintiff is not required to prove the indorser's corporate capacity.49 In an action against an indorser of a note, the production of the instrument and proof of demand and notice of dishonor and protest makes out a prima facie case.50 In the absence of evidence it will be presumed that an undated indorsement was made at the date of the note.61 Where a negotiable instrument upon its face puts a purchaser upon inquiry as to its regularity, the burden is upon him to show its validity.52 Where defendant admits plaintiff's right to recover unless it can be defeated upon affirmative grounds set up in the answer, the burden of proof is upon defendant.53 Where a note provides for payment of attorney's fees, plaintiff must prove that the conditions upon which such fees are to be paid have been performed,54 but if the condition of payment is that suit be instituted, the court will take judicial notice that it has been filed.58

\_Province of court and jury.--\_The construction of a negotiable instrument is for the court,66 but all questions of fact, if the evidence is conflicting, must be submitted to the jury. Of this nature are the questions whether defendant executed the instrument in suit.57 Whether one who signed a negotiable instrument without knowing it to be such was guilty of negligence or laches,68 what amounts to such an unreasonable detention of a bill of exchange or check as to be considered an acceptance by implication,69 whether the consideration was sufficient,69 whether the debt has been paid,61 whether presentment was made in reasonable time,62 whether, where the suit is by an indorsee, the plaintiff is a bona fide holder,69 what are reasonable attorney's been transferred to his testatrix, burden is note is a pedider's note within Ky. St. 1992, upon plaintiff to prove property in testatrix. $ 4223. McAfee v. Mercer Nat. Bk., $1 Kr. Proof sufficient in this case. In re Church's L. R. 863, 104 SVW 287.

10 Cur. Law. Negotiable Instruments SS 14. 997

fees,64 and whether prior to suit for attorney's fees the required notice was given.48 But if there is no conflict in the evidence there need be no submission to the jury.69

\_Instructions.--\_The instructions must be confined to the issues raised by the pleadings "7 and must be based upon and supported by the evidence.68 An instruction must not be misleading,"8 but where an instruction considered as a whole is not misleading,"89 or the fact that one paragraph deals with but a part of the proposition presented,71 is not ground for reversal. It is error to refuse instructions presenting an issue made by the pleadings and evidence ont presented in the court's general charge.72 An instruction is erroneous which casts upon plaintiff a burden of proof which the law does not require him to bear.73

Footnote 910: Cur. Law. Negotiable Instruments SS 14. 997

fees,64 and whether prior to suit for attorney's fees the required notice was given.48 But if there is no conflict in the evidence there need be no submission to the jury.69

Footnote 997: The author is grateful to the anonymous referee for his comments.

Footnote 998: The author is grateful to the anonymous referee for his comments.

Footnote 999: The author is grateful to the anonymous referee for his comments.

### 998 Newspapers

10 Cur. Law.

\_Verdict, findings, and judgment.--\_The verdict should be certain, but it is sufficient if it can be made certain by an inspection of the pleadings.74 It must be sustained by evidence fairly and reasonably tending to support it,75 and this rule is not dispensed with by a statute requiring the question of negligence in signing negotiable paper to be submitted to a jury.76 Where there is a substantial conflict in the evidence the verdict will not be disturbed,77 but a verdict which is clearly against the weight of the evidence will be set aside.78 The findings of the court 79 and the judgment 89 must be supported by the evidence. Where a prima facie case is made out, motion for nonsuit is properly denied.81 The action will not be dismissed on the merits where plaintiff's lacking proof is of a character that can be supplied on another trial, or where he might have tested the validity of a conjunctive denial of a negative pregnant in the answer.82 Where defendant fails to prove any defense a demurrer to his evidence should be sustained and judgment rendered in favor of the holder.83 Where it was unnecessary to bring suit on a note, the plaintiff should not be allowed an attorney's fee.84 Judgment for defendant in an action upon a renewal note, not accepted in absolute payment of the original, is not a bar to an action by plaintiff on the original.85 \_Indemnifying maker of lost instrument.85 So & C. L.\_1151

NSUTHALITY: New Promise, see latest topical index.

This topic treats of only the designation and compensation of official newspapers, the necessity and sufficiency of publication of process 88 and other legal notices 87

presumes from the execution and delivery of the note is erroneous. Dawson v. Wombles, 123 Mo. App. 340, 109 SVP 547. Such an instruction is not cured by another instruction 101 SWP 685. Evidence held to sustain finding that note in suit was given in lieu of a facie stated in general terms. Id.

74. Verdict in suit for balance due on note held not void for uncertainty as to amount.

Smith v. Hightower (Ga. App.) 59 SE 595.

75. Evidence insufficient to justify finding that makers of note were not negligent in signing it upon supposition that it was receipt for goods purchased, and court justified in ordering judgment for holder notwithstanding verdict, Johnson County Sav. Bk. v. Hall, 102 Minn. 414, 113 NW 1011. Where the undisputed evidence shows that purchaser of note took it with notice of its invalidity, verdict in his favor will be set aside. Capital City Brick Co. v. Jackson, 2 Gan. App. 717, 59 SE 52. In an action against administrator on note alleged to have been executed by intestine, verdict that note was not intestine's act and ded held sustained by evidence. Collins v. Collins' Adm'r, 31 Ky. L. R. 563, 102 SVP 867. Evidence held sun-client to sustain verdict. Volmer Clearwater Co. v. Rogers, 13 Idaho, 564, 92 P 579.

01. Rey. Lawns 1905, 8 274. Johnson County Sav. Bk. v. Hall, 102 Minn. 414, 113 NW 1011.

01. Vollmer Clearwater Co. v. Rogers, 13 Idaho, 654, 92 P 579.

01. Where all evidence showed that drill for which note was given was of some value, verdict of no cause of action was set aside. American Seeding Mach. Co. v. Slocum, 108 NYS 1042.

being excluded, as are advertising contracts " and liability for improper publication."

_The designation_ See s C. L. 1181 must be made by the proper officer or board." A newspaper may be "designated" though it was not formally selected for the particular year." A "daily newspaper" implies one printed in the English language." The mere selection by a county board of a newspaper to do printing does not constitute a contract binding upon the county or the newspaper," but implies discretion, and includes power to reconsider and redesignate where the interests of the public require it and private rights are not directly impaired."

_The compensation._ See s C. L. 1182--If no time is specified when compensation shall be fixed, the time of selection on the newspaper is intended." Where a county court fixes compensation as required by statute, its decision is final and reviewable only by writ of review." Compensation will not be allowed for publication in excess of the number of times required by statute."

## 11 New Trial and Arrest of Judgment

- 1. Nature of the Remedy by New Trial and Right to It In General, 909. H. Newly-Discovered Evidence, 1006. I. As a Matter of Right in Ejectment, 1008. B. Misconduct of Parties, Counsel, or Afflavoids, 1012. Evidence In Support of Motion, 1012. Order Grant-
- 1002. D. Misconduct of or Affecting Jury, 8. A. Proceedings at New Trial, 1013.
- 1002. E. Irregularities or Defects in Verdict or Findings, 1003.
- 1003. F. Verdict or Findings Contrary to Law or Evidence, 1004.
- 1004. C. Effect, 1014.

_The scope of this topic is noted below."_

- 1. Nature of the remedy by new trial and right to it in general. See s C. L. 1188

A new trial is a re-examination in the same court of an issue of fact, after a verdict

- 1. Nature of the remedy by new trial and right to it in general. See s C. L. 1188
- 1. Nature of the remedy by new trial and right to it in general. See s C. L.

by a jury, report of a referee, or a decision by the court,"99 to be granted whenever it appears that substantial justice was not done.1 The right exists only after an issue of fact has been tried.2 The court may set aside its judgment overruling a motion for new trial and grant a subsequent one during the same term,3 nor is the number of new trials limited by any invariable rule, though the presumption of the legality of the grant weakens upon each concurrent verdict.4 In some cases, however, a party is limited by statute to two new trials.5 Where the evidence develops facts which preclude a recovery by the movant,6 or where the cause is such that the court may make a final order, a new trial will not be granted.7 Ordinarily, the granting or withholding a new trial rests in the sound discretion of the trial court,9 which is limited only by the rule that it must not arbitrarily be exercised but must rest on a reasonable foundation of fact,9 but the court does not act within discretionary powers when it grants the motion solely because of alleged mistake of the jury in rendering its verdict.10 In Georgia, by statute, in the granting or refusal of first new trials, the courts are vested with a sound legal discretion,11 which is applied even where there have been two successive verdicts, one for each party, and a new trial in each instance,12 but not when there have been two verdicts in favor of the same party and two new trials,13 nor when the question presented is one purely of law.14 In the exercise of their discretion, the courts may, as a condition to granting or refusing the new trial, require the payment of premium for extension of bond,15 or the payment of costs,16 or a modi-courts (see Appeal and Review, 9 C. L. 108), 8. Charlton v. Kelly \[C. C. A.\] 156 F 433: the modification and vacation of judgments Owen v. Glies \[C. C. A.\] 157 F 835: Vannico without resort to new trial (see Judgments, v. Dungan \[Ind. App.\] 83 NE 260, 10 C. L 437, the erroneous or prejudicial 9. Ridge v. Johnson \[Mo. App.\] 107 SWV character of particular ruling (see generally 1103, 1108, 111), new trial is not the subject of an assign-and see the tople dealing with the subject on procedure to which the ruling relates), and discretion. McFadden v. McFadden, #21 Pa. the necessity and sufficiency of objections and exceptions (see Saving Questions for \[Ton to grant new trial after a view of pre-Revert, 8 C. L. 1822), 11.554.

fication of the verdict,\[17\] such as a reduction in amount; \[18\] but the judge may not by suggestion or order, cause the reduction of the verdict and make it a condition for the refusal of a new trial.\[19\] This right to new trial may be lost \[20\] or waived,\[21\] but a party is not stepped by accepting costs, and delay in moving to dismiss the motion.\[22\]

SS 2. _Grounds. A. In general._ See * C. L. 1155--New trial should not be granted for other grounds than those provided by statute.\[23\] They are not granted for error of law or procedure, unless it has worked material harm,\[24\] nor for failure of court to find on an immaterial issue,\[25\] nor for discrepancies in testimony not amounting to perjury,\[20\] nor because the litigants were married before judgment,\[27\] nor for inability to procure a transcript of oral evidence when adverse party offers to waive his advantage.\[28\] But unavoidable casualty and misfortune,\[29\] such as the abandonment of the suit by attorney, without notice,\[30\] the unavoidable absence of attorney \[31\] and client, may justify a new trial.\[22\] The motion may be granted, too, where it appears from the record that the verdict was influenced by passion and prejudice,\[33\] where a false or immaterial issue has been intruded in the case,\[34\] or for the disqualification of a juror,\[35\] but not when improperly drawn, if no objection made till after verdict.\[36\]

stantial sum, a new trial will not be con-

\[Mont.\] 94 P 201. Refusing continuance no

ditioned upon plaintiff's payment of costs,

ground if discretion not abused. Schamper

Duffy v. New York, 105 NYS 68.

v. Ulrich, 131 Wis. 524, 111 NV 691. A new

17. Smith v. Ellyson \[Iowa11 115 NV 40;

trial will not be granted to allow a party to

North Michigan Land & Live Stock Co. v.

Introduce evidence on a matter as to which

Kneeland, 149 Mich. 495, 14 Det. Leg. N. 509,

he has been concluded by a former adjudena-

112 NV 1114; Goss v. Goss, 102 Minn. 346, 113

125. Immaterial because herred, Puckhaber

001. Evansville & Princeton Trac. Co. v. Henry \[Cal.\] 93 P 114,

Brocermann \[Ind. Appl.\] 80 NE 972; McGraw

26. Flock v. Kaufman, 107 NYS 672.

v. O'Neill, 123 Mo. App. 691, 101 SW 132.

27. Graves v. Rivers \[Ga. App.\] 60 SE 274.

Where verdict is excessive, the court is

28. In re Wincton's Estate \[Neb.\] 112 NW

amply justified in granting new trial unless

29. A. Robinson In pleading, clearly an inad-

Owen v. Seattle Elec. Co. \[Wash.\] 93 P 618.

Dobule judgment result of oversight, and

in judgment against truth and right of the

error admitted. Costello v. Scott \[New.\] 93 P 1. Excessive verdict through mistake in

104 SW 368.

the basis of calculation. Lewis v. Northern

30. Suit brought and abandoned by at-

Pac. R. Co. \[Mont.\] 92 P 469.

torney, without fault on client's part, or

19. Action for personal injuries. Verdict

notice to her. She lived remote from county

disapproved by judge as excessive, where-

upon plaintiff wrote off amount suggested

coolings. Ray v. Arnett \[Ky.\] 106 SW 328.

voluntarily. Sebaopard Air Line R, Co. v.

Withdrawal of counsel is not ground for

Randolph, 123 Ga. 796, 59 SE 1110,

20. A party may lose his right to new

trial by proceeding jointly with a party not

entitled thereto. Separate notices should be

given if there is doubt as to the identity of

relation or equality of trigl therein, though

they be represented by the same attorney.

Parnell V. Davenport \[Mont.\] 93 P 939,

21. Defendant, claiming nonsuit proper,

may except directly to court's refusal to non-

sult. Rice v. Ware & Harper \[Ga. App.\] 60

GBE 301. Right to new trial is not waived by

application for judgment notwithstanding

verdict, Sallon v. Little Falls, 102 Minn.

358, 113 NV 884.

22. Buffalo Land & Exploration Co. v.

Strong, 101 Minn. 27, 111 NV 278.

28. That movant was unable to get a tran-

script of the evidence of the trial because of

the death of the stenographer, not sufficient.

Butts v. Anderson \[Ockl.\] 91 P 906.

24. Reid v. Rhode Island Co. \[R. I.I 67 A

01. A. defendant who is not prejudiced is

not entitled to a new trial. Gilmore v. Tay-

lor \[Ga. App.\] 59 SE 825;
(SS 2) _B. Misconduct of parties, counsel, or witnesses._\[55, 8 C. L. 1156--The question of granting new trial for improper conduct of litigants rests largely in the discretion of the trial judge \[37\] which is exercised as justice warrants,\[38\] nor need the court inquire whether the rights of the other party have been materially affected.\[39\] The misconduct may be cause for new trial though it occurred long before the trial,\[40\] nor can it be justified by showing that the other party has been guilty of like conduct.\[41\] Whether it has been waived depends on whether or not the misconduct was so flagrant as to make a vacation of the verdict a matter of public policy.\[42\] The granting of the motion for misconduct of counsel, also depends on whether or not such conduct was prejudicial.\[43\]

(SS 2) _C. Rulings and instructions at the trial._\[55, 8 C. L. 1156--The failure to adopt presumptions having judicial sanction,\[44\] or the submission to the jury of a question of law, is ground for new trial where a general verdict is returned.\[45\]

(SS 2) _D. Misconduct of or affecting jury._\[55, 8 C. L. 1157--It must appear that the misconduct complained of unduly \[46\] influenced the jury,\[47\] or might reasonably have done so.\[48\] Yet, conduct of a jury, which, standing alone, might be harmless,

ror. Atlantic Coast Line R. Co. v. Bunn, 2 Ga. App. 305, 58 EE 583. Employers of de-fendant, who was striffer three years before, call for a new trial unless the court would is disqualified. Gilbney v. St. Louis Transit

(SS 2) _D. Misconduct of or affecting jury._\[55, 8 C. L. 1156--It must appear that the misconduct complained of unduly \[46\] influenced the jury,\[47\] or might reasonably have done so.\[48\] Yet, conduct of a jury, which, standing alone, might be harmless,

ror. Atlantic Coast Line R. Co. v. Bunn, 2 Ga. App. 305, 58 EE 583. Employers of de-fendant, who was striffer three years before, call for a new trial unless the court would disqualified. Gilbney v. St. Louis Transit

(SS 2) _D. Misconduct of or affecting jury._\[55, 8 C. L. 1156--It must appear that the misconduct complained of unduly \[46\] influenced the jury,\[47\] or might reasonably have done so.\[48\] Yet, conduct of a jury, which, standing alone, might be harmless,

ror. Atlantic Coast Line R. Co. v. Bunn, 2 Ga. App. 305, 58 EE 583. Employers of de-fendant, who was striffer three years before, call for a new trial unless the court would disqualified. Gilbney v. St. Louis Transit

(SS 2) _D. Misconduct of or affecting jury._\[55, 8 C. L. 1156--The misconduct complained of unduly \[46\] influenced the jury,\[47\] or might reasonably have done so.\[48\] Yet, conduct of a jury, which, standing alone, might be harmless,
may when taken in connection with other misconduct at the trial, be sufficient ground for new trial,\[49\] and it will be presumed prejudicial under some circumstances.\[80\] The court has discretionary power to grant new trial for misconduct,\[81\] which will be exercised as justice dictates, hence the motion will be granted where a juror has investigated on his own account,\[82\] unless the movant could not have been prejudiced thereby,\[83\] or for making up a compromise verdict,\[84\] which the movant must show,\[53\] or for intoxication;\[85\] but not for sending out for refreshments while deliberating,\[87\] or drinking socially and conversing with an outsider,\[88\] nor for making incorrect or untrue answers to special interrogatories,\[89\] nor for remarks made to them by outsiders when harmles,\[80\] or made so by caution from court.\[61\] However, if the verdict is vitiated, it is vitiated as a whole.\[62\]

(SS 2) _E. Irregularities or defects in verdict or findings.\[86\]_ * C. L. 1187\_--That the verdict was received in the absence of counsel is no ground for new trial,\[93\] nor for receiving a general verdict although special interrogatories were put to the jury which it failed to respond to, such interrogatories being immaterial,\[94\] nor for an improper deduction from the verdict for plaintiff when defendant makes the motion,\[88\] but a verdict brought in after being sent back to reconsider a chance verdict is erroneous.\[86\] Where a special finding inconsistent with the verdict is complete and warrants judgment non obstante, it is error to grant a new trial instead.\[87\]

\[command=

\]

Akin v. Lake Superior Consol. Iron Mines \[\] tending to prove a quotient verdict, but not shown to have been written on by the jury.

49. That the jury said to other jurors the parties had no right to a trial in that county,

Alleged appropriation of paper by counsel that they did not pay taxes there, and that defendant before the trial had created hos-

ham R. L. & P. Co. v. Turner \[Ala.\] 45 S 671.

tility for plaintiff and friendship for himself

50. If the intoxication of the juror was not where the case was to be tried, are sufficient

Doyle v. Burns \[Iowa\] 114 N 1 N 1.

50. In action for personal injuries by railroad company in use of its road, juror, with-

44 S 563.

out knowledge of parties or court, visted

57. Long v. Davis \[Iowa\] 114 N 197.

scene of accident, and examined the switch

58. Affluxing showed jurors drank beer that caused accident, and other switches in

with agent of successful party, and one juror

the yard. Floody v. Great Northern R. Co.,

hold private conversation with him. It was

192 Minn. 81, 113 N 877.

61. Gulf, etc., R. Co. v. Blue \[Tex. Civ. App.\] 18 'Tex. Ct. Rep. 377, 102 SW, 128.

Where court had all the jurors before it,

acer and responsible business men. Court's

heard their testimony, the refusal to grant

new trial will not be interfered with. Foley v. Northrup \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 391, 105 SW 219.

52. If a juryman, on his own account, in-

vestigates a fact in issue and communicates

the result to his fellows, it is misconduct

calling for new trial. Hoskovec v. Omaha St. R. Co. \[Neb.\] 118 N 812,

53. If a juror could not get any material

evidence on visiting the premises under consideration, it is not such misconduct as to

justify a new trial, especially when he and

the other jurors were directed to disregard any information he received by such visit.

Brennan V. Seattle \[Vwash\] 10 P 434.

54. Feldman v. Levy, 106 NYS 1092. In action for damages to real estate, that the jurors agreed to write on piece of paper the

amount each was in favor of and divide the

aggregate by 12, which resulted in the sum

of a fraction less than 8215, and that they

agreed to make it $215, is not such mis-

conduct as calls for new trial, the verdict

not having been agreed upon till after the

above result was ascertained. Gulf, etc., R. Co. v. Blue \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 377, 102 SW 128.

55. Slips of paper found in the jury room,
    1004 NEW TRIAL AND ARREST OF JUDGMENT SS 2F. 10 Cur. Law.

(SS 2) F. Verdict or findings contrary to law or evidence. See & C. L. 1158--The court may grant new trial when the verdict is the result of mistake,88 passion, or prejudice,89 contrary to law 70 or evidence,71 or because against the weight of evidence,72 within the court's discretion,73 which is not interfered with unless abused,74

which same verdict, except that amount was

should not be set aside, If there is evidence to changed. Harrington v. Butte, etc., R. Co.

support it, because the court would have
\[Mont.\] 93 P 640.

found otherwise. Lifshitz v. Schwartz, 107

67. House v. Steffy \[Iowa\] 113 NW 311.

excess. When the verdict is manifestly, from

exceeded in refusing to grant new trial on
the pleading and evidence, the result of plain

ground that verdict unsupported by evidence,

mistake in calculation against the movant,

If there is any credible evidence tending to

new trial granted. Gilmore v. Taylor \[Ga.

support it. Balphart v. Reining \[Wis.\] 115 NW

Appl. 58 EE 325.

32. New trial not granted because verdict

01. If the evidence of the defeated party is

contrary to evidence if the credibility of the

so excessively preponderating as to indicate

witness seems to have been doubted by the

that the verdict was the result of passion,

jury. It appeared on trial that there were

prejudice, or mistake, new trial granted. Gra-

discreteness in the testimony and contra-

ham v. New York City R. Co., 54 Misc, 566.

104 NTS 865. Passion or prejudice must be

by. New York City R. Co., 54 Misc, 557, 104 NTS

apparent to warrant a new trial there.

193. If the court has strong reason to be-

Lewis v. Northern Pac. R. Co. \[Mont.\] 92 P

1949.

0001. The record must affirmatively show that

new trial. Revec v. DOE \[Ala.\] 43 S 856. If the

the verdict was contrary to law before it can

jury disregarded, new trial. If the

be set aside. Scribner's Sons v. Mutual Bldg.

evidence disregarded would have entitled

Co., I Ga. App. 527, 58 SE 240. A verdict is

vant to verdict, new trial will be granted.

contrary to law when its clearly established

Sibuser v. Pennington, 31 Kx. L. R. 950, 104

by the evidence that the verdict returned is

80 W 354.

contrary to what the law directs under such

state of facts. Chicago, etc., R. Co, v. Groves

\[Ok\] 93 P 756. Not granted on ground that

v. Toledo, etc., R. Co. \[Mo., App.\] 106 SW

verdict contrary to law when there is no con-

dicting testimony and the finding apparently

1125: James v. Oliver \[Mo. App.\] 107 SWP

proper. Melikham v. Clarke \[R.L.\] 67 A 450.

1012: Whir v. Barling \[Mon.\] 93 P 348. If

A verdict will not be held to be contrary to

the verdict is plainly against the evidence,

the law and evidence and without evidence to

it is the court's duty to grant new trial.

support it, if there was evidence in the case

upon which the verdict could have been

Sibuser v. Pennington \[A\], 106 NTS 865.

104, 107 NTS 865. Howman County

240, 67 SE 318. If the evidence is sufficient

to support the verdict, it is not error to

the evidence very strongly preponderates

overrule the motion, the only ground al-

negged being that the verdict is contrary to

named. Di Stefano v. Rhode Island Co.

law and evidence. Fender v. Valdosta Lunn-

\[R. L\] 68 A 200: St. Amand v. Manville Co.

ber Co., 128 Ga. 622, 58 SE 163: Olddens v.

\[R. L\] 67 A 368. Where reasonable men

might differ as to the inferences to be drawn

contr fails to find on all material issues,

the "decision is against the law." Brown

v. Maxey, 13 Idaho, 451, 90 P 339.

71. Moncaile v. Livingston \[Ala.\] 43 B

840: Leeds v. Cetenkh \[R. L\] 67 A 446. The

parties are entitled to have the case tried and

determined according to the issue, not upon

some fancied theories of the court or jury.

Action on contract and unwarranted compu-

tation of damages. Wheeling Mold & Funn-

dry Co. v. Wheeling Steel & Iron Co. \[W.\] 988,

1949 Ya.\] 57 SE 826. If a material issue is wholly

unsupported by the evidence, new trial

should be granted. Prinz v 10 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 2G. 1005

but the court will not interfere where the case is close 78 and the evidence conflicting.79 The court has this power also,77 where the verdict is so plainly 78 or so grossly excessive that it ought not to be allowed to stand.79 Granting new trial for this cause is also within the discretion of judge,80 hence, though he disapprove the verdict for this reason, he is not obliged to grant a new trial,81 nor will he merely because his finding would have been different,82 nor will he if caused by mistake which may easily be harmonized with an honest and conscientious regard for duty,83 and this power exists too where the verdict is inadequate.84

(SS 2) _G. Surprise, accident, or mistake.85_ See s C. L. 1158_New trial may be granted on the ground of perjury and mistake,85 or surprise, in a proper case,86 but

weight of evidence, and such discretion 16 alive on a mere preponderance of proof, unless not abused if there is substantial evidence 16 is so evident that the jury have erred as against the verdict. Kernes v. Winn, 126 to convince of mistake, prejudice or partialism. Mo. App. 712, 105 SWV 1098,

75. Georgia R. & Banking Co. v. Lloyd, 129

Amount saved for $600 with interest from Ga. 650, 65 SE 801.

76. Jordan v. Dooly, 129 Ga. 392, 58 SE 879;

Kytle v. Kytle, 128 Ga. 387, 57 SE 748. The Early v. Rhode Island (Co. \[R. I\] 67 a 363;

highest estimate being $500, a verdict for Steere v. Page \[R. I\] 67 A 483;

Kenyon \[R. I\] 67 A 431; Curry v. Rhode

grantsed though plainiff offered to remit the Island Co. \[R. I\] 68 A 725. In a conflict of excess. Prosch V. Seattle \[VWAL\]. 90 F 920.

testimony, when the facts found by the jury

verdict for $3,500 in personal injury case will sustain the verdict, the court will not set

held not excessive. Injury about ribs and it aside, although in their opinion the jury

apime: very nervous since accident, and unmight, upon the evidence, have found other:

able to follow any vacation. Connil v. wise. Bennett v. Busch \[N. J. Law\] 67 A 188.

Scattle, etc. R. Co. \[VWash.\] 92 P 371. In

Controlling issue of fact fairly submitted,

action for burning timber, verdict for $900 towit, whether payment made by plaintiff

hold not excessive, the proof being conflict- was penalty, forfeiture, or partial payment

106 SWV 236. New trial not granted where on contract of sale which defendant had failed

excessive verdict reduced by remittittur to to carry out, as well as to show payment on

reasonable amount. Gaiveston, etc., R. Co. different transaction in which defendant had

V. Walling \[Tex. Cyt. App.\] 104 SWV 418. As a

complied with obligations. Motion refused.

general rule, in tort actions, a new trial will

Wilcox v. Sergeent \[Ga. App.\] 60 SE 810. If not be granted on the ground of inadequate

the evidence is conflicting on a material 16-saw,

damage, Bolles v. Bloomington & Normal

sue, new trial will not be granted on the

ground that the verdict is not supported by

g. Morrell v. Lawrence, 203 Mo. 263, 101

the evidence. Webster v. Armstrong \[Iowa\] 871.

113 NWV 649. If there is a substantial con-

flict in evidence as to the essential facts, the

gourts' discretion in refusing a new trial

should not be interfered with. Multimannch

C.J 60 SB 441.

Count y, Willaimette Towing Co. \[Or.\] 88

83. McGraw v. O'Neil, 123 Mo. App. 691, 101

P 388. No error of law assigned. Defendant's

end"s testimony authorized finding. Testimony of plaintiff well supported as to some

seases, while defendant's evidence in conflict

clean's bill $100. Verdict for $200. Tourte-

therewith unsupported. Refusal of new trial

lotte v. Westheester Elec, R. Co., 120 App.

not erroneous. Smith v. Hembre \[Ga. App.\]

10 July. 417, 105 NYS 60. Action for severe per-

60 SE 126. Motion for new trial on ground

sonal injuries, causing intense suffering and

that verdict was contrary to and without

support from evidence held properly denied

dict for $100 inadequate. Anglin v. Column-

where evidence was conflicting. Cohankus

bus, 128 Ga. 469, 67 SE 780.

Mfg. Co. v. Rogers' Guardian, 28 Ky. L. R.

83. If the court is satisfied that perjury and

747, 19 & SWV 437.

77. Boney v. Atlantic, etc 1006 NEW TRIAL AND ARREST OF JUDGMENT SS 2H. 10 Cur. Law. the general rule is that a plaintiff is not entitled to a new trial on the ground of surprise at evidence given for the defendant.\*7 To entitle movant to new trial for this cause he must have exercised proper diligence to avoid it,88 as well as ask for continuance 88 or withdrawal of a juror,99 and the court should be satisfied that a different result will be reached.91

Footnote 8: http://www.juror.org/

Footnote 9: http://www.juror.org/

Footnote 1001: http://www.juror.org/

Footnote 1002: http://www.juror.org/

Footnote 1003: http://www.juror.org/

Footnote 1004: http://www.juror.org/

Footnote 1005: http://www.juror.org/

Footnote 1006: http://www.

10 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 2H. 1007

erring character as to preponderate greatly or have a decisive influence upon the evidence to be overturned by it,1 so as to be likely to change the result 2 upon the crucial question decided by the jury.3 It must not be contradictory or impeaching,4 except under unusual circumstances,5 nor must it be cumulative.6 That the evidence is cumulative is not, however, an insuperable reason for refusing a new trial,' hence, the rule does not apply if it goes to the foundation of movant's defense and is of a decisive character,8 and in some jurisdictions it is no ground for denying the motion.9 Proper diligence on the part of movant must have been exercised,10 especially

Footnote 10: Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 2H. 1007

Smith v. Mutual Cash Guaranty Fire Ins. Co., the part of the trial judge to refuse to grant \[S. D.\] 113 NW 94. Where the materiality of the new evidence is apparent, new trial will 5 Ohio N. P. (N. S.) 444.

be granted. Rosenthal v. Bell Reality Co., 5 Smith v. Mutual Cash Guaranty Fire Ins. 51 Miles. 265, 108 NTS 194. Action for damages for personal injuries. Evidence relied on indicated that origin of trouble antedtedted the accident. Gcer v. Rhode Island Suburban

Burn v. Harraves \[Ga. App.\] 60 SE 223; R. Co. \[R. I.\] 67 A 49. Action for personal injuries. Evidence tended to show plaintiff not in condition claimed and jury took exaggerated view of severity of injuries. Thornton v. Rhode Island Suburban R. Co. \[R. I.\] 687 A 451. New trial not granted where the bearing of the evidence on the case would be slight. Action for damages from false representations in sale of land. Evidence relied on were statements made to movant after his purchase. Long v. Davis \[Iowa\] 114 NW 197. Not granted for newly-discovered evidence not bearing on the main issue but only affecting the credibility of witnesses. Heath v. Cook \[R. I.\] 68 A 427.

Louisville N. R. Co., V. Ueltsch's Exrts, 51 KY, L. R. 931, 104 SW 320; Cahill v. Mulley \[Liv.\] 104 SW 320; Cahill v. Mulley \[Liv.\] 105 NW 336.

Living N 1 Ky., L. R. 931, 104 SW 320; Cahill v. Mulley \[Liv.\] 106 NW 336.

Living N 1 Ky., L. R. 72, 101 SW 336.

Living N 1 Ky., L. R. 73, 101 SW 336.

Living N 1 Ky., L. R. 72, 101 SW 336.

Living N 1 Ky., L. R. 73, 101 SW 336.
1008 NEW TRIAL AND ARREST OF JUDGMENT SS 2I. 10 Cur. Law. where the case on the whole evidence, is a doubtful one at law,\[11\] but the greatest possible diligence is not required in all cases,\[12\] nor does the exercise of reasonable diligence require a party to anticipate the introduction of manufactured evidence.\[12\] In all cases, however, the granting of new trials on this ground rests largely,\[14\] or to some extent\[15\] in the discretion of the trial court,\[16\] and will not be interfered with except when manifestly abused.\[17\] The same rules that influence the granting or refusal of new trials for newly-discovered evidence control the courts while the new trial is asked for newly-obtained evidence.\[18\]

(SS 2) \_I. As a matter of right in ejecment.\_See # C. L. 1169.-A party is not entitled to a new trial as of right in ejecment if any other cause of action is joined therewith and all prosecuted to final judgment,\[19\] nor does the right obtain where the claim is to vacant and unoccupied lands.\[20\]

SS 3. \_Proceedings to procure new trial.\_See # C. L. 1182.-Any motion to set aside Ferguson, 139 Ill. App. 398; Gay v. Mitchell behalf of father. They were continuously to- \[N. C.\] 60 SE 426; Halbert v. Texas The & Lambert Preserving Co. \[Tex. Civ. App.\] 107 (Vt.) 68 A 646. If depositions were on file SV 592. Movant must state fully the fact which would put the party on notice of the disclosing diligence used. General statement evidence desired, and no steps are taken to not sufficient. Proxisevitch v. Chicago & A. Procure the testimony, a lack of diligence is R. Co., 232 Ill. 136, SS 3NE 545; Shirk v. shown. Chew v. Jackson \[Tex. Civ. App.\] Township Rd. of Review of Monmouth (Iowa) 18 Tex. Ct. Rep. 678, 102 SV 427. A defend- 114 NV 854; Calhill v. Mullin, 81 KS. L. R. 94, an who make no effort at the trial to show 101 SBV 384; Burgess v. Grierl, S1 Ky. L. R. 94, an different version to that claimed by plain- 315, 101 SWV 984; Whipple v. McCormick IR. \[Hl., though having the means to do so, lacks I.\] 68 A 448. Forgotten evidence is not new evidence dimension. General of Georgia R. Co. v. Goepp evidence dimensionally produced. Gregory v. Easta. 45 S 66. Attention called to matter by state of Gregory, 129 Ill. App. 65. Case Pendigading and evidence. Trial concluded April . ing four years without effort to get evidence 26 and verdict rendered May 6, within which until last week is not diligence. City of Uligence, v. McNally, 227 Ill. 14, 81 N 28, affe. Reasonable diligence negathed. Talliaferro 128 Ill. App. 375. Where witnesses' knowledge 7, Shepherd \[Va.\] 57 SE 855. Diligence does of ease was known before trial and no effort not appear when the evidence relied on is made to produce him. Nehring v. Ricker, 126 necessary germane to the only issue in the TII. App. 262. Affluxit should state that facts relied on were not within movant's knowl- 135 movant's 13 10 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 3. 1009 a verdict for matters not appearing on the face of the record is, in effect, a motion for a new trial and subject to all the rules of law governing such motions.\[21\] The only question before the court is, shall a new trial be granted as requested or not.\[22\] If addressed to the discretion of the court it should be considered and not dismissed pro forma,\[23\] unless several join, in which case, if not good as to all, it should be denied,\[24\] but not where it has been acted upon on an objection that only one of the defendants was named in the caption.\[20\] The motion may be prosecuted pending an appeal;\[20\] its hearing may be accelerated under the provisions of the order providing for the hearing,\[27\] and a mandamus will lie to compel the court, in a proper case, to act upon it,\[28\] but equity has no jurisdiction to compel a new trial.\[29\] Jurisdiction to hear the motion is fixed by statute.\[30\] The proceedings, the validity of which may be governed by the preliminary rules and orders entered, and the absence of surprise on calling of motion,\[31\] are governed by statute, hence, while in some jurisdictions the motion may be in general terms,\[82\] generally, however, it should not,\[83\] but should

21. Georgia R. & Elec. Co. v. Hanner, 1 Ga. 1999 21. 673. 58 SE 54. 22. It is improper to decide that defenant is entitled to new trial and enter judgment on denumer to evidence against plaintiff for costs, unless it appear that the deficient evidence cannot be supplied by plaintiff and on new trial he cannot make a prima facie case. Thomas v. Kansas City El. R. Co. 1999 19. 816. 1999. 1999.

1010 NEW TRIAL AND ARESST OF JUDGMENT SS 3. 10 Cur. Law:

set out and specify the particular error and matter complained of "*" entitling the party to a new trial, \[38\] and where made on the ground of newly-discovered evidence, the petition should set forth the original case or make it a part of the pleadings. \[36\] When motion has been made in time, the court may permit additional ground to be filed before the motion is disposed of, \[37\] but no amendment will be allowed if new parties are introduced, \[38\] nor will a second petition be entertained which presents no new facts from those presented by a former petition overruled. \[39\] An omission to raise a ground for new trial is a waiver of it, \[40\] and it is not proper for the court to consider other grounds than: those specified in the motion. \[41\] A motion is not necessary in all cases, since the court may grant a new trial on its own volition, \[42\] at the time judgment was rendered, \[43\] unless the appellate court has held it error to direct verdict, \[44\] but where made it must be done within the time limited by statute, \[45\] or some good reason, given for failure to do so, \[46\] as the provision is mandatory; \[47\] and the party will be held to have waived the right "*" by failure to make his application within the statutory period; "\*" and even the effect of statements by counsel may be to withdraw from the court's consideration all else in the motion save the matters argued. \[46\] The party who alleges a waiver, however, has the burden to show it by clear and satisfactory proof. \[41\] The time cannot be extended under the guise of a motion for reappament, \[42\] and, in some jurisdictions, not at all, \[38\] but where there is

time of the trial, is insufflect. King v. Gil- \[90 P 816. The motion is a statutory person, 26 Mo. 264, 104 NW 52. - 54, Chicago, etc., It C. o. v. Morris \[Wyo.\] and in the manner provided. Vreeland v. 93 P 664. That the "'verdict is contrary to the evidence" does not raise the question of \[11\] includes all motions for new trial and amend-excessive damages. Howard v. Bledenville

ments thereto. Scott v. Joffee, 125 Mo. App. Lumber Co. \[Wis.\] 14 NW 114. The motion, 578, 102 SW 1038. Nonsuit April 25, and motion to get aside and grant new trial May 1, contrary to law, should specify the errors to \[11\] to be made within four days. Jones v.Mar- contrary to law. Mongevale v. Livingston

\[Ala.\] 43 S 540. A motion should state what facts movant can prove, and show that a different result will be reached upon another trial. Kruegel v. Balana \[Tex. City, App.\] 18 Tex. Ct. Rep. 886, 103 SW 415.

35. Application for new trial on the ground

of newly-discovered evidence should show the evidence could not by reasonable diligence,

have been discovered and produced at the

because not made within five days after trial. Critzen' Ins. Co. v. Herpischimer

\[Neb.\] 11A NW 606.

\[36.\] Flint v. Illinois Cent. R. Co., 29 Ky. L. R. 1149, 97 SW 736.

\[37.\] Statute requires motion to be made within three days after Judgment. Motion made in time at trial term and undisposed of, additional grounds may be filed at subsequent

term. Million v. Million v. Million v. \[Estra.\] 11S Ky. L. R. 1156, 104 SW 768.

\[38.\] Lunsford v. Sutton \[Go. App.\] 89 SE 34.

\[39.\] Statute v. Bulebeck \[Iowa\] 11A NW 831.

\[40.\] Hensley v. Davidson Bros. Co. \[Iowa\] 11A NW 227.

\[41.\] In rc McDonnell \[Mass.\] 83 NE 675.

\[42.\] Henley v. Davidson Bros. Co. \[Iowa\] 11B NW 227.

\[43.\] Jones v. Marblehead Lime Co. \[No. App.\] 107 SW 420.

\[44.\] Where the appellate court has held it

error to direct verdict for defendant, on the

second trial the court cannot on its own

motion, set aside a verdict for plaintiff on

\[39.\] Corum v. Metropolitan Stat. R. Co. the same grounds as which the verdict was

\[39.\] 107 SW 1093.

directed for defendant on the first trial.

\[40.\] 90 P 816.

\[41.\] Henley v. Davidson Bros. Co. \[Iowa\] 11B NW 227.

\[42.\] Jones v. Marblehead Lime Co. \[No. App.\] 107 SW 420.

\[43.\] The appellate court has held it

\[44.\] The other the appellate court has held it

error to direct verdict for defendant, on the

\[44.\] 90 P 816.

\[45.\] and the same grounds as which the verdict was

\[46.\] 91 A.

\[47.\] 92 A.

\[48.\] 93 P 664.

an extension, the time extended begins to run on the expiration of the regular statutory period.\[64\] If certain preliminary motions are required, such must be made,\[65\] nor need the motion be in writing,\[50\] but it must be made upon a case settled,\[67\] and notice, the filing and service of which is the initiation of the proceeding for a new trial,\[68\] must be made as designated by statute\[59\] and within the time limited thereof,\[66\] unless the judge extends the time,\[64\] or unless waived.\[62\] The notice that the statement would be presented in due time applies to either mode of presentation,\[63\] and is sufficient if it specify that the motion will be made for errors of law occurring at trial and excepted to.\[64\] The notice must be served on the adverse party,\[65\] or if an unauthorized acceptance of service is relied on, it must be shown that the act was ratified by the party.\[68\] After notice is properly served, however, the death of the party does not affect the jurisdiction to hear the motion,\[67\] nor does the fact that the clerk fails to endorse the notice as filed or that the fee is not paid affect it.\[68\] If a brief of evidence or statement is required,\[69\] they must comply with the statute as to contents \[70\] and time of filing,\[71\] unless there is a waiver,\[72\] or unless the time is ex * 1013 NEW TRIAL AND ARREST OF JUDGMENT SS 3. 10 Cur. Law. tended,74 but the court is not bound to allow an amendment.74 A motion made in time suspends the judgment.75

- C. L. 1185--The application must be verified by affidavit78 of the witness77 and petitioner's attorney. The petition for new trial on the ground of after-discovered evidence must be supported by the affidavit of petitioner's attorney,78 the sufficiency of which is determined by the nature of the case in which it is filed,79 but failure to introduce affidavit will be excused when the witness is out of the jurisdiction and unwilling to make it.80 Counter affidavits may also be filed on a motion, the grounds of which is newly-discovered evidence.81 Where the statute does not require the motion to be supported by affidavit, it is not material that the jurat thereto is defective.82
- \_Evidence in support of motion.\_See
- C. L. 1168--The evidence need not be reintroduced,83 but the court may consider the evidence in the original trial as well as the evidence presented to sustain the motion,84 the facts as disclosed by the evidence,85 and all the circumstances of the case,88 even affidavits founded on hearsay in the absence of better evidence,87 all of which, for the purpose of the motion, must be regarded as true.88 The evidence may be sufficient though circumstantial.89 The verdict may be supported 90 but not impeached, as a general rule, by the affidavit of jurors 91 or counsel.92 When proper, however, it may be shown they considered and the clerk for the judge. Douglas v. Southern Pac. Co. \[Cal.\] 90 P 538. The filing of a statement several months after its settlement does not vitiate it Statement bears two dates of petition, knows its contents, and that the settlement, Oct. 7 1902, and Dec. 31, 1902, filed April 22, 1903. Van Camp v. Emery, 13 Idaho, 202, 89 P 752. Under an order combining the motion indefinitely and giving movant leave to file his brief at the hearing, the court has jurisdiction to approve the brief at the next term after the order was passed. Eddy v. Atlantic Coast Line R. Co., 129 Ga. 368, 58 SE 895.
- 72 An agreement, not in writing, to insert in one of theorders postponing the hearing that the motion might thereafter be perfected in any way is not a waiver of the right to object to the brief of evidence, no steps having been taken to insert such provision. Plunebad v. Pinnebad, 129 Ga. 267, 58 SE 879.
- 73 Douglas v. Southern Pac. Co. \[Cal.\] 90 P 538. The court may extend the time for preparation of statement to support motion, notwithstanding the parties had agreed to an extension. Nord v.,Boston & M. M. Consol. Copper & Silver Min. Co., 33 Mont. 464, 84 P 1116.
- 74 Affidavit by attorney that material matter had been left out of his original statement because of "press of business" was not sufficient to entitle him to amend. Freeman v. Brown \[Cal. App.\] 90 P 910.
- 75 Million v. Million's Ex's, 81 Ky. L. R. 1156, 104 SW7 768.
- 76 Houston Lighting Power Co. v. Hooper \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 410, 102 SW 133. In motion for new trial on ground of newly-discovered evidence, its truthfulness must be proved by affidavit. King v. Glison, 206 Mo. 264, 104 SW 52.
- 77 On motion for new trial on ground of newly-discovered evidence, affidavit of lit-gant is not sufficient, no reason being given why witness did not make affidavit. Townsend v. Huntinger \[Ind. App.\] 83 NE 619.
- 78 Reynolds v. Hassam \[Vt.\] 68 A 645.
- 79. Judgment rendered on service by pub-Pac. Co. \[Cal.\] 90 P 538. The filing of a statement. Pettition to set aside, supported by affidavit that affidant "has read foregoing" settlement, Oct. 7 1902, and Dec. 31, 1902, filed April 22, 1903. Van Camp v. Emery, 13 Idaho, 202, 89 P 752. Under an order combining the motion indefinitely and giving movant leave to file his brief at the hearing, the court has jurisdiction to approve the brief at the next term after the order was passed. Eddy v. Atlantic Coast Line R. Co., 129 Ga. 368, 58 SE 895.
- 72. An agreement, not in writing, to insert in one of theorders postponing the hearing that the viti-indention might thereafter be perfected in any way is not a waiver of the right to object to the brief of evidence, no steps having been taken to insert such provision. Plunebad v. Pinnebad, 129 Ga. 267, 58 SE 879.
- 73. Douglas v. Southern Pac. Co. \[Cal.\] 90 P 538. The court may extend the time for preparation of statement to support motion, notwithstanding the parties had agreed to an extension. Nord v.,Boston & M. Consol. Copper & Silver Min. Co., 33 Mont. 464, 84 P 1116.
- 74. Affidavit by attorney that material 10 Cur. Law. NEW TRIAL AND AREST OF JUDGMENT SS 5A. 1013

gave weight to evidence not properly before them,\[98\] but the affladavit must be definite.\[94\]

_Order granting or refusing new trial,\[88e\]_ S C. L. 1166--The object of the statute in requiring trial courts to specify in the order the ground or grounds on which the new trial is granted is for the enlightenment of the losing party and the appellate court,\[96\] but it need not state which ground the motion is granted on, if any of them justified it,\[96\] nor is it vitiated because based on grounds devoid of merit,\[97\] for it will be presumed that it was made upon the exceptions,\[98\] but an order setting aside an erroneous finding and entering a new finding or decree is not an order granting a new trial.\[99\] A general judgment against joint tort fessors, if set aside at all, must be set aside as to both.\[1\] The effect of an order granting new trial is to leave the case where it was before,\[2\] but an order granting a new trial as to one count does not have the effect to disturb the verdict as to the counts of which no complaint has been made.\[3\] A court of purely statutory creation cannot vacate its order granting a new trial and reinstate the verdict.\[4\] While a motion for a new trial may be impliedly abandoned, the intent to do so must be plainly indicated.\[5\] A motion for new trial may be renewed where it has been withdrawn in order to move for judgment of ouster non obstante veredicto, which is afterwards set aside.\[6\]

**SS 4.**_Proceedings at new trial,\[88e\]_ S C. L. 1166--On a new trial the case is before the court for trial de novo,\[7\] and if the parties fail to introduce any additional evidence, after ample opportunity to do so, they cannot object that they have not had a new trial.\[8\]

**SS 5.**_Arrest of judgment. A. Nature and grounds.\[88e\]_ S C. L. 1166--The only questions reached by motion in arrest are those apparent on the face of the record,\[7\]

jurors outside the record of the case not

Lynch v. McGhan \[Cal. App.\] 93 P 1044. An competent. Hoyt v. Hoyt \[Iowa\] 115 NW 222.

order granting'a new trial which states that Affladavit of juror that he maschenceived issue

It is done on the ground that sympathy of the will not be received on motion for new trial.

Jurv caused a failure of justice in effect states

Wimslow v. Smith \[N. H\] 65 A 108. Affladavits by Jurors as to what they considered in

evidence. Kearnes v. Winn, 126 Mo. App. 712,

making up their verdict are not admissible.

Clark v. Van Vleck \[Iowa\] 112 NW 648. Affladavit tended to show that because paper in

88. Pase v. Woodside Heights Land Corp.,

understood it was excluded from considera.

108 NYES 125.

tion. McMahon v. Iowa Ice Co \[Towa\] 114

NW 203. Jaroro's affladavit set out that verdict

was arrived at by gambling operation, by di-

viding the total sum of the amounts each

621.

juror determined to award by the number of jurors. Heid not admissible. Galloway v.

Massee \[Vis.\] 113 NW 1098.

92. The affladavit of counsel, alleging mis-

conduct of the jury, not stating the source

and time of his information, cannot be used to impreach the verdict. Pittsburg, etc., R.

Co. v. Coilins, 168 Ind. 467, 80 NE 415.

93. Brown Land Co. v. Lehman \[Iowa\] 112

NPV 185.

94. Affladavit that juror heard conversation

out of court between witnesses which in-

fluenced his verdict, without stating who the

witnesses were or what was said, is insinf-

ficient. Goss v. Goss, 103 Minn. 346, 113 NW

699.

001. An order specifying that new trial is

granted for "error" in finding as to facts and

law" is too general and vague. Odeldeliev et. 260,

Berger Land Co. \[Mo.\] 108 SW 620.

**96.** Sharp v. Adorn, 121 Mo. App. 566, 97 SW

225: Fink v. McChez, 123 Mo. App. 313, 100 SW

549: White v. Barling \[Mont.\] 93 P 348. "And

the court being fully advised thereupon

grants said motion for a new trial." Sufficient.

1011 Notaries and commissioners of DEEDS. 10 Cur. Law. and the evidence cannot be looked to.10 A motion in arrest will not lie because the counts are not all for the same cause of action,11 nor because the original declaration gives no jurisdiction while the new counts amend into jurisdiction, if any is thereby conferred.12

(SS 5) \_B. Motions and proceedings thereon.\_See 8 C. L. 118X,

(SS 5) \_C. Effect.\_Soo 6 C. L. 812

Next Friends; Next or Kin, see latest topical index.

## Non-negotiable paper.

_The scope of this topic_ is noted below.13a The term "non-negotiable paper" comprehends those contracts for the payment of money which possess the form and other essentials of bills and notes but lack the characteristic of negotiability.14

Footnote 13: The author is grateful to the anonymous referee for the support of the paper.

- The indorsee of non-negotiable paper holds it subject to all the equities, counterclaims, and defenses that. existed between the original parties.15

Footnote 13: The author is grateful to the anonymous referee for the support of the paper.

The maker and assignor of a lost check, non-negotiable for lack of indorsement, is liable thereon to his assignee,15 and a court of equity has jurisdiction to entertain a suit for the recovery of the amount due thereon.17

Footnote 13: The author is grateful to the anonymous referee for the support of the paper.

The assignee of non-transferable checks for merchandise cannot recover thereon from the maker on the common counts.18

10 Cur. Law. NOTICE AND RECOORD OF Tittle $ 1. 1015 of the fact that he may have been appointed to fill an alleged vacancy created by death of a notary,\[22\] since death created no vacancy but terminates the office held by the decedent.\[23\]

On grounds of public policy, partners and stockholders in corporations are disqualified to attest instruments taken in behalf of the partnership or corporation respectively or in which the partnership or corporation respectively has any pecuniary interest.\[24\] The oaths rendered by a notary de facto are valid and binding on the public although he has no valid title to the office and cannot recover the fees thereof.\[25\]

NOTES OF ISSUE; NOTICE, see latest topical index.

NOTICE AND RECOORD OF Tittle.

Bona Fide Purchaser and Doctime of Notice, 1015. Requisites of a Bona Fide Purchaser, 1017. A Valanbble

E. Possession Under Chattel Mortgages; Consideration, 1017. Good Fain.

Refling and Renewal, 1038.

1018. Notice of Knowledge, 1018.

F. Willis and Their Probate and Admin-

$ 2. Statutory Records or Effins as Contractive Notice, 1022.

G. Recording Officers and Administrators

A. In General, 1022.

H. Discharge of Record, 1029.

C. Necessity and Effect of Recording, 1022.

S 3. Registration and Certification of Land

1022.

Tiltes Under the Torerans System,

1092.

_The scope of this topic_ is noted below.\[26\]

SS 1. \_Bona fide purchaser and doctrine of notice.\_See * C. L. 1169--It is a general rule of law that one who acquires an interest in property in good faith for value and without notice of any interests of other persons therein shall be protected against

22. Under $ 791, Pol. Code, appointment ing house situate thereon. Bazelman Lum-

of notary to take place of deceased notary, bed Co. v. Hinton \[Neb.\] 115 NW 603. Equil-

commissions for full noatrial term and not table title. Williams V. Smith, 138 GA. 306, to

to nnexipred term of deceased only. People $7 SE 801. Equities arising from vendor's

v. Edleman \[Cal.\] 92 P 846.

23. Pol. Code, 10183a, providing for filling

S1 Ky. L. K. 1311, 105 SWV 102. Equity of

vacancies in office, inapplicable. People v. Edleman \[Cal.\] 92 P 846.

24. Stockholder disqualified to attest note

evidence conditional sale and reservation of title in payee corporation. Betts-Evans

V. Minden Lumber Co., 118 La. 753, 43 S37.

Trading Co. v. Bass, 5 Ga. Apr. 718, 519 SE 82.

25. Oaths administered by notary with-

in statutory inhibition against government officials holding more than one office

where compensation of one of them amounts to $2,500 per annum. Pack v. U. S., 41 Ct. CL. 414.

26. It ingulates all matters relating to noat-

tice, actuary or constructive, to purchasers or

inacompactness as to previous claims and

equities. The operation of recording actions acts,

the filling of chatel mortgages and condi-

protected from wife's claim of homeset

tiles under the Torerans system. It evaluates

that no being occupied by husband and wife.

the doctrine of his pendens (see Lis Pendens,

Steves v. Smith \[Tex. Civ. App.\] 107 SWV 141.

10 C. L. 654), and the application of the

rule of caveat emptor to judicial sale (see

Judicial Sales, 10 C. L. 507.

27. ILLUSTRATIONS. Innocent purchase-

ers held to take free from: Right of ances-

tor's creditors to subject land in hands of

heirs. Cole v, Hall \[Ark.\] 107 SWV 175, Agreement whereby vendor held iand merely as

44 S 105. Purchaser in reliance on record of

security. White v. McScriley \[Wash.\] 91 P 243.

Lien of existing chattel mortgage on dwell-

bona fide as against holder of second un 1016 Notice $\\Lambda$ND RECRD OF Tittle SS 1. 10 Cur. Law.

the subsequent assertion of such interests.\[27\] A purchaser for value and without notice whose name is inserted in the deed to his grantor left blank as to grantee is as much a bona fide purchaser as if a new and direct conveyance had been executed by his grantor.\[28\] A purchaser for value from an executor under a power in the will who is without actual notice of a prior deed of gift takes titles as against the done not in possession.\[29\] A mortgagec is a purchaser within a statute postponing in favor of bona fide purchasers liens of judgments on which execution is not levied within a prescribed time.\[30\]

The defense of bona fide purchaser is not available in the absence of statute, against the holder of the legal title,\[31\] and one who merely has possession of a deed but no title to the land for want of delivery cannot confer title on an innocent purchaser.\[32\] The doctrine of bona fide purchase will not protect a transferee for value, before maturity of a promissory note signed by one under disability of coverture.\[33\] In order that subsequent purchasers may acquire a greater interest under an ambiguous deed than passed as between the parties, they must show themselves to be innocent purchasers for value and without notice that the parties used the language in a sense other than its commonly accepted meaning.\[34\] Caveat emptor applies in judicial sales.\[32\] A defense of innocent purchaser must be set up by proper pleading.\[36\]

recorded assignment, though first assignee consideration and he having notice. Gantt did not produce note and mortgage. Chris- tenson v. Razgio (T wasn) 92 y 348. Purcl closure proceeding, mere agent of another cheaper of west half of quarter section of creditor appointed to take title on redempund containing more than the supposed 160 acres held innocent purchaser for value with fide purchaser, he having paid nothing and relation to surplus as against subsequent known of all the circumstances. \[26\] Biegow v. purchaser of east half, there being nothing of record to put him on inquiry. \[27\] Deoteman 38. Law of innocent purchaser held not v. Hocoman, 133 Iowa, 632, 111 NW 60. Building erected by a tenant could not be subjected to useable's line for materials sold by gas against subsequent purchaser for value and without notice of tenants claim to billing. Donison Lumber Co. v. Milburn \[Tex. Civ. App.\] 107 SWV 116l.

**Restitution of reality sold at judicial sale** cannot be compelled, after reversal of the judgment, from strangers to the record who were bona fide purchaser at the sale or who acquired bona fide collateral rights. Simms v. Tampa, 52 Fla. 641, 42 S 884. A bona fide \[28\] mortgage for value fakes good title notwithstanding mortgagory's title is voidable as against creditors of this grantor, provided mortgage is duly recorded. Putnam v. South- wortm \[Mass.\] 83 NZ 887.

**Held not bona fide purchasers:** One purclasing for nominal consideration and in re- kinase on invalidity of prior deed held not a bona fide purchaser. Lufkin Land & Lumber Co. v. Beaumont Timber Co. (C. C. A.) 151 Footnote 15: The author is in the following.

**S2. Purclasing** entitled to same rights as if bona fide purchaser. Lufkin Land & Lumber Co. v. Beaumont Timber Co. (C. C. A.) 151 Footnote 15: The author is in the following.

**T40:** Interstate Inv. Co. v. Bailey, 29 Ky. L.

**T6. 44S, 83 SWV 57. A purchaser of mortgage**.

**S1. Where a house while a chatted was grased grain is not protected as an innocent purchaser merely because the mortgage permitted this contract would, however, be a bona fide purchaser to sell and through the against innocent purchaser. Eisenhauer v. gram. Enforsem V. Larson \[Marin\] 112 NW 602. Next fclean of infant complainants in**

\*\*S18. The author is in the 10 Cur. Law. NOTICE AND RECRORD OF Tittle SS 1. 1017

It is generally held that the burden of proving bona fide purchase is on the party who asserts it,37 but proof that one paid value creates a presumption of want of notice to be overcome by the adversary,38 and one who claims only an equity must show that the holder of the legal title was not a bona fide purchaser.39 So, also, under a statute merely declaring that an unrecorded deed shall not take effect as against third persons, a junior grantee has not the burden of showing that he took without notice and for value.40

\_Requisites of bona fide purchaser.\_See 8 C. L. 1170

\_A valuable consideration_See 8 C. L. 1170 is essential,41 but a consideration to be valuable need not be adequate in point of fact.42 A pre-existing debt is not sufficient.42

fide purchaser though prior deed was unrecorded. Matson v. Johnson \[Wash.\] 93 P 224.

Brown Hardware Co. v. Catrett \[Tex. Civ. Sep. 1401 Sures V4.\] See Judicial Sales, 10 C. L. 507.

36. Defense of innocen purchaser must be made either by answer or special plea. Grier showing that purchaser of legal title had v. Canada \[Tenn.\] 107 SW 970. It presadas notice of his equity or did not pay value does not apply where one party claims through of not guilty that he was an innocent purchaser. North v. Coughran \[Tex. Civ. App.\] - der a subsequent deed from heirs of intea. 108 SW 165.

01. Subsequent grantee to prevail over prior one must show that he was bona fide purchaser for value without notice. Lindley v. Blumberg \[Cal.\] 93 P 234; McElan v. Alonzo \[Tex. Civ. App.\] 19 Tex. Ct Rep. 443.

10: SW 475. J. M. Guffey Petroleum Co. v. \[C. Rep.\] 19 C. L. 254.

10: SW 475. J. M. Guffey Petroleum Co. v. \[C. Rep.\] 20 Tex. Ct. Rep. 254.

10: SW 690. Holland v. Ferris \[Tex. Civ. App.\] 19 C. L. 254.

41. Evidence insufficient to show that con-

10: SW 490. Holland v. Ferris \[Tex. Civ. App.\] 197 SW 102. Under B. & C. Comp. \[line of payment of a note. Cambria Sav.

302, making plaintiff in attachment a purchaser in good faith and for value on filing

held without consideration. Chandler v. must prove that the acquired ink line in good of shelf's certificate, an attaching creditor

falth and without notice of outstanding equalities. Jennings v. Lents \[Cor.\] 93 P 237.

38. Evidence insufficient to show notice to

1010, 101 SW 456. Evidence insufficient to show payment of value by purchaser from v. Smith, 128 Ga. 306, 57 SE 801. One claim.

ing to be a bona fide purchaser must prove purchase and payment, and burden is then on

other party that before payment purchase reaction sufficient to protect second grantee had notice. Nolen v. Varrow \[Ala.\] 45 S 183;

Oscelo Land Co. v. Chicago Mill & Lumber Co. \[Ark.\] 108 SW 609. The burden is upon

the holder of an unrecorded deed to show that an execution plantiff had notice of the

43. We protect grantee of homestead from v. Farris \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 101, 101 SW 456. Where in suit to force-

close mechanic's items, preliminary state.

ments for which had not been fied has re-

quired by statute, date and record of mort.

gage was set out in claimants' pleadings,

buprofen was on them to show that mortigger

nearly. Beanomu Rice Millis v. Bridges

provostness of claim. Scheas v. Boston \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 116, 101

89. Where plaintiff proved tile by a regular and legal execution sale against one

holding legal title. Taylor v. Doom \[Tex. Civ. App.\] 16 Tex. Ct. Rep. 172, 98 SV 4;

Where plaintiff purchased the legal and ap-

parently the only tile to a tract of land and

defendants' claim to half was a mere equity.

Administration proceedings and the other un-

Lafare v. Krizhen \[Tex. Civ. App.\] 17 Tex.

Ct. Rep. 960, 101 SW 1034. Burden on plain.

fendants' prima fiede case not rebutted by

iffs claiming an equitable interest as heirs.

mere showing that abstract of judgment had

walls, Landes & Co. v. Dehart \[Tex. Civ.\] 182 New York 180. Where plaintiff claimed

ther consideration for conveyance to plain-

under one who procured deed from defend-

tiff, but it must be shown that debtor owned
Good faithSee & C. L. 815--Good faith is an honest intention not to take any unconsciousicuous advantage of others, coupled with the absence of information which would render the transaction unconsciousicuous \[44\].

Notice or knowledgeSee & C. L. 1171--One must not have had actual or constructive notice of outstanding equities \[45\], though a purchaser with notice from a bona fide

land to which judgment llen had attached. Evidence held to support finding that mortgagee had notice of prior mortgage. Cambrida Sav. Bk. v. Lanier \[Iowa\] 112 NW 774. of that caution and diligence which an honest man of ordinary prudence would gradient to charge grantees with notice of ex-marily exercise In making a purchase content of grantors' interest and that portions of the hand had been previously conveyed to others. Whitaker v. Parris \[Tex. Civ. App.\] double construction, purchaser at succession 117 Tex. C6. Rep. 101, 101 SW 456. Mortgagee could assert priority over landford's lien described and sella same, his taking poessession, either then or thereafter, of another tract as being the land described will be held to be in bad faith as against purchaser who has acquired latter tract by description admitting of but one construction. Rails-back v. Leonard, 118 La. 916, 43 S 846.

45. Phelps v. Nawworthy, 226 IL 54, 80 NE 756. If one buys with notice of outstanding equities, he is not a bona fide purchaser though he had previously taken an option to buy without notice and for value. Storms v. Munday \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 824, 101 SW 256. Evidence held to show that mortgagee had no actual notice of attach-ment proceedings. First Nat. Bk. v. Farmers' & Merchetny' Nat. Bk. \[Ind. App.\] 82 NE 1012.

Held not bona fide. One who did not ex-ercise option to buy or pay price before no-cline of unrecorded deced. Lindley v. Blumberg \[Cal. App.\] 92 P 894. Who bought knowing of agreement to sell to another but believing vendor had forfortified his rights. Booth v. Yenney \[N. J. Eq. 106 A 1092. Who accepted mortgage with notice that one of mortgagor's vendors had not been paid, and who subsequently brought foreclosure. Conclley's Extr. v. Beckett \[N. J. Eq. 105 NW 446.

Purchaser from an herl before the expiration of the time for appeal from a judgment holding a will invalid, where he had notice of the proceedings, though no steps had been taken looking to appeal. Rine v. Wagner

\[Iowa\] 113 NW 471. Purchaser who took when prior lease was recorded and lessee was in possession. Walker v. Johnson, 52 Fla.

\[N. J. Eq. 1076, 43 S 771. Purchaser with notice held to take subject to equitable right of third person to specific performance of contract to convey resulting from distraction of agents ineffective deck. Kirkpatrick v. Pease, 202 Mo. 471, 101 SW 651. Where a grantee purchased in name of herself and minor children but surrendered her unre-corded de to grantor and procured another to be executed to plaintiff, who had full knowledge of the facts, plaintiff was not a bona fide purchaser of interests of the ml-ners. Salyer v. Johnson \[N. J. 107 SW 210.

Where attachment creditor and subsequent purchaser knew the land had been conveyed to debtor's wife, she not having been made a party, her right to recover the land was not affected. Parks v. Worthington \[Tex. App.\] 106 A 1062. A wife who knows of the provision in a contract for the purchase of in his own name. the purchaser had know-edge of the rights of the other cotenants.

\[N. J. Eq. 108 A 1062. A wife who knows of the provision in a contract for the purchase of in his own name. the purchaser had know-edge of the rights of the other cotenants.\]

\[N. J. Eq. 109 A 1062. A 1062.

## 10 Cur. Law. Notice and Record of Title $ 1.

purchaser succeeds to the latter's rights. \[46\] One who buys for value and without notice from a first purchaser is a bona flide purchaser though his vendor was charged with notice. \[47\] Registration or record, \[48\] or knowledge of facts sufficient to put an ordinarily prudent person on inquiry, \[49\] is equivalent to actual knowledge. Hence an intending purchaser who knows that a third person holds a contract adverse to his interests is charged with knowledge of its contents. \[50\] One who acquires an interest in land is bound to take notice of all facts disclosed by the direct chain of conveyances terminating with himself. \[81\] Possession is notice to the world of the title and

v. Lechleiter, 149 Cal. 677, S7 P 194. The \[\]chaser acquires grantor's rights, regardless doctrine of subordination of a legal estate acquired after and with notice of an earlier or price paid. Laffare V. Knight \[Tex. Civ. equity does not apply where there is no pre-existing equity in the vendor. Thompson v. E. I. Dupont Co., 100 Min. 367, 111 N92. 48. See post, S 2.

Nv 302. As where she had an equal opportunity with the vendors to know the extent of the interest in the land and vences did reasonable inquiry would have disclosed. not know of her misapprehension or conceal any knowledge with reference there. Id. \[Vash.\] 32 S 513. One who has Thoeuh guilty with protect a vendor conveyages. \[Tex.\] 32 S 513. One of which one in consideration that vendee shall es- facts or circumstances sufficient to put reatablish a basin on the land, even as against shonaby prudent man on inquiry is not a pur- the vendee's assigns who buy with notice. \[Tex.\] 338, S8 P 584. Purchaser Inform vendor has no edge of reservation of timber which had been remedy where no cesement was created in sold to other held bound to make inquiry favor of land be bought. Id. Purchaser Af as a time for removal of timber, and could land subject to water rights without knowl- not rely on mere recital in their deeds. Peter-edge of extent of such rights held on charge- sous v. Weist \[Vash.\] 33 P 513. Instruction able with notice of greater rights than de- scribed in deed conveying dominant estate. \[Tex.\] 330 inquiry of mortgagors' fraud held correct. \[Tex.\] 331. That one reeded from judicial sale of a dominant estate specifying water rights as per deceds of that estate held not notice to chargeable with such knowledge as the might purchaser of servient estate that redemp- have obtained on inquiry where he knows facts which would lead a man of ordinary: as per deeds conveying servient estate. Id. \[Tex.\] 332. Ordence to make such inquiry, and in such exedence that a purchaser paid full value is, \[Tex.\] 333. P 513. Instruction after the lapse of years and death of the parties, sufficient to authorize a finding that \[Tex.\] 334. Purchaser had no notice of defects in grant, \[Tex.\] 335. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 336. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 337. Etooks \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 254, 108 SV 680. Where grantor had previously envexed a part of the premises by deed was required to show only that later had which was not recorded, and subsequent practice paid a satisfactory price for entire rudent person on inquiry. Vaddington v. \[Tex.\] 338. Purchaser, J. M. Guffey Petroleum put put not included in unrecorded deed was on inquiry as against grantor's wife by re- cital in deed of consideration different from for the whole. Id. \[Tex.\] 338. Purchaser is a one- toile of ownership of note and mortgage at time be paid the debt and took release of certain helve were not purchasers in good mortgage. McVay v. Bridgman \[Tex.\] 339. T. \[Tex.\] 330. T. charge purchaser with notice that record release of trust deced was unand: \[Tex.\] 331. T. \[Tex.\] 332. T. \[Tex.\] 334. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 335. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 336. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 337. Etooks \[Tex.\] 338. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 339. T. \[Tex.\] 339. T. \[Tex.\] 330. T. \[Tex.\] 331. T. \[Tex.\] 332. T. \[Tex.\] 334. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 339. T. \[Tex.\] 330. T. \[Tex.\] 331. T. \[Tex.\] 332. T. \[Tex.\] 333. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 334. Purchaser, J. M. Guffey Petroleum Co. V., \[Tex.\] 1020 Notice and Record of Title $ 1. 10 Cur. Law. rights of the person in possession,\[52\] but this doctrine has no application under statutes making conclusive absolute grants intended only as security, unless instruments of defeasance are recorded,\[58\] and it has been held that if the record shows absolute title in a grantor, possession by his grantor is not notice to the purchaser of a parol reservation in favor of the person in possession.\[54\] So, also, possession by a tenant is the landord's possession,\[52\] and is not notice of rights claimed by the tenant independent of his lease.\[56\] Whether there is a sufficient possession to constitute constructive notice is a question of fact.\[57\] Visible user is also notice.\[58\] There is a conflict as to whether a quitclaim grantee is a bona fide purchaser.\[59\] A purchaser at judicial

tional inhibition against mortgaging home- stead. Brooks v. Sanger Bros. \[Tex.\] 19 Tex. Ct. Rep. 782, 105 SW 37, rvc. \[Tex., Civ. App.\] 18 Tex. Ct. Rep. 49, 100 SW 798. Where a convenant not to use land for a particular purpose is not contained in a deed or in- denture in the chain of title, subsequent pirters.

classers are not bound thereby unless they have such knowledge or notice thereof as to imply that the burden was assumed as part of the consideration. Sjoloph v. Mark \[Min.\] 114 NW 746.

52 Actual possession notice equal to record of ded. Merchants' & Farmers' State Bank building erected during teenacy. Denison v. Dawdy, 230 Ill. 198, 82 NE 66. Is notice of all rights legal or equitable. Garbut v. Mawdy, 128 Ga. 269, 57 EI 249. Field notice to ants directed in gontracts which subsequent purchasers. City Loan & Banking Co. v. Poole \[Ala.\] 43 S 13; Sproll v. Mies \[Ark.\] 102 SW 404; Bartlett v. Smith, 1034.

146 Mich. 188, 13 Det. Leg. N. 713, 109 NW

260; Chandler v. Clark \[Mich.\] 115 NW 65; App. 413.

Squires v. Kimball \[Mio.\] 106 SW 502; At. Suss. Discoverable easement notice. Schmidt lantic City R. Co. v. Johanson (N. J. Eq.) 55 A 719; Hymen v. Gatta, 33 Pa. Super. Ct. 438; rYujea v. Trueheat \[Tex., Civ. App.\] 20

262; Tsc. Ct. Rep. 558, 106 SW 736; Nutall v.

147; Leduc et al. \[Mex.\] 600 SE 251. Immaterlal that locus was a highway and possession was oc- cupancy with steam railway. Atlantic City L. R. 183, 101 SW 980. Purc. Co. v. Johanson \[N. J. Eq.\] 65 A 719. Hold of a block with houses on each side and notice to mortgage. Martin v. Hill, 30 Ky.

263; R. T. Hill, 106 SW 343 Purchaser of opera

posed by vendor who planted block and con-house held charged with notice of rights of vleyed lots with reference to allevyary. Myers leases in possession by agent. Parker v. V. Kenyon \[Cal.\] 93 P 888. Purchaser of Gortatowsky, 127 Ga. 560, 56 SE 846. Posses- land through which railroad was operated sion is sufficient to put a purchaser from an- indel charged with notice of width of right of other on luxury (Smith V. Owr \[W. V.\] 59 SE 762), and such purchaser will be pany's deed of strip was not recorded. South-charged with all information such inquiry \[Ern. Co. v. Howell \[S. C.\] 86 SE 671. To be would have given if diligently pursued (I.).

148, Laws 1885, p. 233, c. 147, $ 1 (Revisal 1805, $ 880), excepting from its provision making invalid conveyances until registered, under-ing-istered deeds executed prior to Dec. 1, 1885.

264 where holder is in actual possession, exc- events a bond for title executed before that date under which one is possession, "un-registered deed" having same scope as "con- veyance of land," etc., used in first part of section. McNeill v. Allen \[N. C.\] 65 SE 689.

305; C. Code 1902, $ 2457, providing that no possession of really described in any writing required by law to be recorded shall be notice of such instrument and that actual notice must be of the instrument or its nature and purport, does not affect the rule that possess- slon by a grantor in a deed intended as a mortgage is notice to a subsequent purchaser from the grante (Mangiault v. Defon \[S.\] 59 SE 534), especially where deed to mortgage was on record and purchaser had ac sale is charged with notice of every fact appearing on the face of the proceedings affecting the title acquired.\[60\] Notice may also be imputed to one from certain representative relations in which he may stand.\[61\]

- While notice of outstanding equities can be shown by circumstances, the circumstances must be of such character as to point with probative force to the existence of the equities.\[62\] A mere rumor that a title is bad, without more, is not sufficient to charge a purchaser. with notice,\[63\] and if no knowledge of a claim is brought home to a purchaser he will not be affected by its assertion to strangers.\[64\] Actual or constructive notice of a deed which does not so describe the land as to enable one to identify it cannot affect the rights of a subsequent purchaser,\[65\] and notice of an invalid or worthless title cannot affect a title acquired for value.\[66\] There is no conclusive presumption that a letter which the-law does not require to be sent is read by the one who receives it.\[67\]

One who takes without notice will be protected,\[68\] if he acts in good faith and pays value.\[60\]

against prior unrecorded deed. Wbody v. nothing appearing of record. Jobling v. Tut-Strong \[Tex. Civ. App.L 18 Tex. Ct. Rep. 65, 100 SV 80L\]

qualified consent to the construction of an eo. Sale held not to include a certain lot, rievated road in front of one's house which, Board of Education of Flatwoods Dist. v. when the road is built, is not compiled with, Berry \[W. Va.\] 59 SE 169. See, also, Judicial

and which is not recorded, will not be bind-Sales, 10 C. L. 507.

Gl. Notice to mortgagee's agent of defect in

title before the road is begun and who has no title held notice to mortgagee. Connelley's

R. Co. (N.Y.) 79 NZ 984. Where defends our employed one to see if an increase in

t look this from surviving member of a com-price of land could not be obtained and

munity under dederporting to convey the notified him thereafter to close the deal did not constitute him such agent as to effect

terest of heirs, defendants acquired entire owner with notice of fraud of owner's

title as against such heirs. Walling Landes

broker in taking title himself. Storms v., & Co. v. Dehart \[Tex. Civ. App.\] 108 SV 180.

Mundy \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 924, 4A. grantes is not bound by a provision in 'a'

101 SVW 258. Rule that knowledge of agent

which it would be unlawful for him, or which

he for a change in dividing lines where he

it is not his duty to, disclose to his principle. Heilin v. Heilin \[W. pal, does not bind the latter, does not apply

Va.\] 59 SE 745. Evidence that purchaser had in the case of one who is the mutual agent

no notice or knowledge of any right as- of both parties to the transaction, as where

sented in the land by a mortgagee held suffh-a chatt mortgage is given by a vendee in

ction to take question of innocent purchaser

fraud of the vendor through one who acted

to try. Hamilton v. Green \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 951, 101 SV 280. Where

Bergenthal Co. v. Security State Bk., 102

agent fraudulently obtained title and leased

Mim. 188, 112 NPV 892. Wife chargeable

to another, principal coul recover only rent

with notice of mortgage, knowledge of which

wald after notice of his rights. Storms v. was obtained by husband negotiating for

Mundy \[Tex. Civ. App.\] 18 Tex. Ct. Rep.

purchase of land for her. Ret Rethorred v. \[J. 924, 101 SW 258. Conversion would not lie

Wright \[Ind. ApJ 83 NE 520. Purehaser of

by holder of unrecorded dicated mortgage

a dominant estate held chargeable with no-

and also of a landlord's lie against pur-

tice of unrecorded deed of which his at-

chaser from mortgage, in absence of proof

torney had knowledge, describing water

rights as in deeds of servient estate. Schmidt

or facts sufficient to arouse inquiry. Alabama

v. Olympla L. & P. Co. \[VWash.\] 90 P 212.

Cotton Products Co. v. Myrick \[Ala.\] 44 S S57.

62, Evidence insufficient. Walling Landes & Co. v. Dehart \[Tex. Civ. App.\] 108 SW 180.

by plaintiff held for jury. Id. Holder of

63, Williams v. Smith, 128 Ga. 306, 57 SE

s Subsequently purchased by the mortgagor

64. Lindley v. Blumberg \[Cal. App.\] 93 P

so as against purchaser from mortgage

894. Merritt v. Bunting \[Va.\] 57 SE 567.

property traded for that \_owned by mortg-

66.Invalid tax title. Osmer v. Sheasley

gagor when mortgage was made, purchaser

\[PaL\] 68 A 965.

67. For jury whether plaintiff in ejectment

gage. Spinney v. Melcon \[N. H.\] 68 A 410.

had notice of unrecorded lease through
1032 NOTICE AND RECOORD OF TITLE SS 2A. 10 Cur. Law.

SS 2. \_Statutory records or filings as constructive notice. A. In general.\_See * c. L. 1174

(SS 2) \_B. Eligibility to record.\_See * c. L. 1174--That its record may give constructive notice, an instrument must be properly executed and acknowledged,70 and the record of instruments of a class not entitled to record is ineffective.71

(SS 2) \_C. Necessity and effect of recording.\_See * c. L. 1174--While the recording of a deed is presumptive evidence of its delivery 17 and also of its acceptance, these presumptions are rebuttable.73

Footnote 73: The _C.L. 1174_--The \_C.

## 10 Cur. Law. Notice and Record of Title $ 2C.

1023

one such instrument did not have until April 1tual notice, Rankin v. Trickett, 75 Kan.

1. 1838, to record as required by $ 40. Id. $08, 89 F 688. Attachment lien takes priority

The ded of a guardian, not recorded until (over unrecorded chatted mortgage of which after the ward has become of age and has attachims creditor had no notice. Bowles' given a deed to the same land, will not con-EXr v. Jones, 29 Ky. L. R. 1022, 96 SW 1121.

voy a good title against purchaser without Unrecorded chatted mortgage not enfordible notice. Phelps v. Nazworthy, 278 Ill. 254, 80 ns as against creditors of corporation relying on stemable ownership. Beston v. People's tested from prior unrecorded conveyance. Bascenser & Parcel Delivery Co's Assignee, Bascett v. Hevesy, 115 App. Div. 509, 101 NYS 30 Ky. L. R. 787, 99 SW 631. Code 1895, $ 413. Innocent purchaser protected where no

1098, making inoperative conveyances of dead transferring standing timer had been recorded. Bowerman v. Taylor \[KY.> 106 SW\]

846. A deed for lands executed by a mort-gasor thereof in 1843, but not filed for reco-ord within six months of its execution, nor self. Couch v. Holmes \[Ala.\] 48 S 858.

until after decores and sale of such lands, in Hence, where wife of mortgager without a suit to foreclose the mortgage wherein the authority sold the chattel while mortgager was the defendant, to bona fide

was in the penittarry, purchaser was not purchaser without knowledge of such deed, is ineffective against the title so acquired at Id. Delivery of chatted mortgage to third such judicial safe. Anderson v. United Realty

co., 9 Ohio C. C. (N. S.) 473. Rights of purchaser at such sale are superior to an unre-held an absolute delivery and failure to file

corded desed though he had knowledge of a prior ded, but before the judicial sale to him v. Siegel-Cooper Co., 55 Misc. 68, 106 NYS 277.

was consummated by deed grantee in such

prior deced -grered for a valuable considera-

filed pursuant to laws of state of New York"

tion not to stand upon the title thereby ac-

held sufficient allegation that neither mortg-quired, and to allow the title under the judicial sale to prevail, Id. Forecclosure pur-

Resalty Co., 115 App. Div, 212, 101 NYS 571.

chaser of servient estate without notice of

Where record was clear when plaintiff filed

unrecorded deal held not chargeable with

nictice of greater water rights in dominant

state than fixed by prior deceds of latter es-

tiff could charge advances made after record date. Schmidt v. Olympia L. & P. Co.

1(Wash.) 90 P 212. Prior unrecorded deceds 46 $ 183, Under Rev. Codes N. D. 1899, $

are void as to creditors acquiring lien on

4732, making vold unrecorded conditional

the land by legal process unless the creditors

sale contracts as against "subsequent creditors without notice and purchasers and in-

and the notice of an execution purchaser

combarnces in good faith,"failure to record

will not affect his title if the execution

does not invalidate as against purchaser's plaintiff was without notice when he ac-

trusted in bankruptge. In re Pierce \[C. C.

quired his execution lien. Whitaker v. Farra. Aris \[Tex. Civ.-Appl.\] 17 Tex. Ct. Rep. 1010,

sale contract renders it voidable by attach-

101 SW 456. Extension of exribed recorded

option, not recorded, being a contract to con-

five land, held void as against one relying on

v. Mercer \[C. C. A.\] 136 F 545. Where there

record, he having right to treat option as

ended. Trogden v. Williams, 144 N. C. 192,

petition in bankruptge was filed, failure to

56 SE 855.

Trust instruments not recorded held invalid

as against trustee in bankruptge. Putnam v.

road equipment without notice of existence

Southworth \[Mass.\] $ 38 NE 887. Vende from

prior grantor and grantee held protected as

against assirgence of vendor's lien notes, trans-

Laws 1897, 8 6326, takes title. Hogan v.

fer of which did not appear of record. Drumm Commission Co. v. Core \[Tex. Civ.\], N. 87, 111 NYS 765. A' court of equity-has

App.\] 140 Tex. Ct. Rep. 111, 106 SW 843. Un-

nothing to do with questions of Milgeme or

der Rev. Laws, c. 137, $ 4, making invalid

unrecorded conveyances except as against

grantor and his heire, and provisions of

bankruptge law, mortgage by wife, not re-

recorded until after husband's bankruptge.

\[Arx.\] 1024 Notice and Record of Title $ 2C. 10 Cur. Law. filed or unrecorded instrument is valid as between the parties," and as against prior creditors and persons who have notice thereof," or who for any other reason are not bona fide purchasers." A statute postponing an unrecorded deed to a subsequent recorded one from "the same vendor" is inapplicable where the junior deed is taken from the heirs or devisees of such vendor." Of two unrecorded deeds the older prevails." Excusable mistake may be ground for equitable intervention." In some states, unless an instrument of defeasance is recorded, an absolute conveyance intended to be defeasible takes effect according to its terms except as .against the grantee, his heirs or devisees, or persons with actual notice." Failure to record a ded or mortgage does not constitute it an unlawful preference under the bankruptcy act." Destruction of the record of title to land does not affect the status of the title but merely renders it more difficult of proof." Under a statute which merely provides that, until recorded judgments affecting title to land shall not be admissible in evidence in support of any claim thereunder a subsequent purchaser will not be protected if a judgment divesting title is in fact recorded, though the record does not give notice that the grant was a party thereto." In Texas recorded instruments

code4 grant of permission to use an alley \[Mich.\] 115 NV 65. To show defendant's held ineffective as against subsequent deed daily registered. Tse v. Whitaker Harvey 1008 SW 1128.

100 SW 1138.

77. Failure to record a ded does not affect the grantee's title except as tocflors and subsequent bona fide purchasers. Board of 1008 SW 1138.

01. When title appears of record in one the grantee's title except as tocflors and subsequent bona fide purchasers. Board of 1008 SW 1128.

01. When title appears of record in one the grantee's title except as tocflors and subsequent bona fide purchasers. Board of 1008 SW 1138.

101.5 NW 265. Block v. Skinner Mfg. Co., 53 Fla. 109, 43 8 919. The quantum of 100 (and carried by a deced purporting to convey an entire tract of which the grantee is then owner is not affected by the appearance or on unexpected record of part of the land.

110.5 NW 265.

are admissible in evidence without proof of execution if filed with the papers of the case three days before trial.\[87\]

(SS 2) \_D. Sufficiency, operation, and effect of record.\_See 8 C. L. 1175--Statutory provisions relative to recording or filing must be at least substantially complied with,\[88\] and to this end the record must be made in the regular registry book \[89\] and in the proper county,\[90\] but mere inadvertent, clerical errors or omissions apparent on the record are not fatal,\[91\] and where the meaning is plain, abbreviations by ditto marks are permissible.\[92\] One who has duly deposited a valid recordable instrument with the proper officer for record will be protected notwithstanding failure of duty on the part of the officer,\[98\] but if a mortgage is in fact indexed or recorded, a purchaser may rely on the record as to the amount of the debt, notwithstanding the mistake is that of the registrar.\[94\] If an instrument is handed to the officer to be filed for record and then taken by him to the office and filed there, it will be considered as filed for record as required by law from the time of its actual deposit and filing in the office.\[95\] Recording of an unacknowledged chatted mortgage with an indorsement

87. Rev. St. 1895, art. 2312, is satisfied as to Mo. App. 229, 100 SW 635. Record of judgments which have been so on file for ment and deeds in county where greater portions, though temporarily withdrawn just before trial. Stark v. Harris \[Tex. Clv. App.\] 18 Tex. Ct. Rep. 469, 102 SW 20 Tex. Ct. Rep. 665, 106 SW 887. While statute applies only to instruments on record prior to filing in the suit so that recording of instrument just before trial would add nothing to its admissibility (Id.), if it conveys other land situated in another county and had there been recorded, such registration, with the three day filing, makes it admissible without proof of execution in any county and as to any land conveyed by it (Id.).

01. Under Kirby's Dig. $ 5407, In order that a chatted mortgage may become a lion as against strangers without being filed for record, the words "this instrument is to be filed but not recorded" must be indorsed in upon it and signed by mortgage or his agent, and it must then be filed with recorder. First Nat. Ek. v. Bedford \[Ark.\] 102 SW 638. Judgment against Alex. Simon entered in judgment docet but not indexed alphabetically therein held not a lien on lands of Simon Alexander as against subse-quent purchaser. Citizens' Bank of Stanton v. Young \[Neb.\] 110 NW 1003. Where ded was properly authenticated so as to entitle it to registration under law in force at its execution and was duly recorded in 1849, its registration in 1894, after destruction of public records, was sufficient for all purposes of notice after that date. Rev. St. 1895, art. 4662. Frujia v. Truchehart \[Tex. Clv. App.\] 1 that the original instrument has been filed for record substantially complies with a statute requiring that the mortgage be either acknowledged and recorded on it or a copy thereof be filed with the recorder.\* Curative acts are common.\*

It is the duty of subsequent purchasers or incumbrancers to examine the records \*" except under special circumstances," and whether one does so or not, he is affected with notice of every fact the knowledge of which might have been obtained from the record,1 or to which the facts there appearing would have led him,2 but a purchaser is not charged with notice of instruments outside his claim of title,3 and

Footnote 102: https://www.cmu.edu/~cmu.

10 Cur. Law. NOTICE AND RECOORD OF TITLE SS 2D. 1037 hence he is not ordinarily required to examine the title to property he does not buy.\* The purchaser of a dominent estate may, however, be required to examine the record of the servient estate to ascertain the extent of the servitude,\* and a grantee from one who had forged and recorded a deed to himself does not acquire title merely because the record shows title in the forger.\* The record of a deed is not notice of subsequent transactions between the grantor and third persons.\* Record of an absolute deed intended as a mortgage protects all the rights of the grantee though his instrument of defeasance is not recorded.\* The record of a mortgage executed by one of two tenant's in common in his own name only and covering an entire crop is not cc 'tructive notice of the cotenant's consent thereto as against a subsequent mortgage of the interest of the cotenant.\* A mortgagor is not chargeable with notice of the record of an assignment of the mortgage.\* The record of instruments which in themselves are inoperative,\* or a record not designed for notice,\* cannot serve as such or bind purchasers.

Subsequent purchasers and incumbrancers ordinarily have the right to rely upon the record,\* and if a mistake exists by which a mortgage's interest is not wholly disclosed, he rather than an innocent purchaser must suffer.\*

"liquidor clauses," not constructive notice of, was thereafter duly acknowledged and re-general scheme restricting rise of all town corroded, Schefer v. Ball, 58 Misc. 448, 104 NYS property so as to make purchaser hiable to 1028.

owners of other property. Judd v. Robinson 12 Record of a marriage license and re-

\[Colo\]. 92 P 724.

- While a purchaser has constructive

third person dealing with either spouse of knowledge of all facts which he would have

his or her relation to the other, nor can learned by inspection of the premises and the public records, he is not bound to examine

such record. Steves v. Smith \[Tex. Civ. App.\]

the title to property he does not buy. Smith \[107 SW 141.

V. Lockwood, 100 Minn. 221, 110 NPV 880.

13. Attemens in a mortgage recorded by

Where landowner who has constructed a

building mostly on one tract and parity on

subsequent purchasers (Stewart v. Walker

another selling second tract, while he is in possession of both, to purchaser without actual

asginst a purchaser relying on the record to

knowledge, vendee takes free from implied

assert that his interest is greater or his liem

easement and is not bound to examine title

more onerous than shown thereby (Id.).

to other tract to ascertain whether owner

Mad mortgage could not in suit against subse-

had mortgaged it. Id.

quent purchaser, with record notice only,

5. Circumstances held to charge purchaser

show that notes secured matured at earlier

with notice of foreclosure proceedings,

about by his pendense, wherein extent of a

had in mortgage. Id. It is the policy of the

water right was adjudged. Schmidt v. Olymp

12. La & P. Co. \[Wash\]. 90 P 212.

01. Gross V. Watts, 206 M. 373, 104 SW 30.

01. Purchaser from vendor after latter's

price absolute deed intended as a mortgage

quiry, he may presume that there is no ad-

had been recorded held-charged with notice of

verse claim. Drumm Commission Co. v. rights of record grantee though instrument

Core \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 111, 105 of defeasance had not been recorded, but not

with notice of intervening assignment by

protected by the record of a discharge of a

vendor of defeasance contract to secure a

poor mortgage by the record over after as-

Joan from a third person, which assignment

segment (Bautus v. Adams, 131 Wils, 152, 111

was not recorded. Lindberg v. Thomas \[Iowa\] 114 NW

NV 69), but the recording act will not pro-

8. Lindberg v. Thomas \[Iowa\] 114 NW

862; Hamilton v. Green \[Tex. Civ. App.\] 17

Tex. Ct. Rep. 951, 104 SW 280.

9. Beaumont Rice Mills v. Bridges \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 116, 101 SW 811.

1. Bankrupt not liability to one whose assignment without his knowledge had been

- recorded before discharge. Mueller v. Goer-

114, S3 Misc. 58, 103 NYS 1037.

11. Record of instrument relative to building restrictions which by its own terms

shows it to be inoperative for each of proper

proof-of signatures, and therefore improperly

recorded, held not to bind purchasers by

terms of the instrument though instrument

10 Cur. Law. NOTICE AND RECOORD OF TITLE SS 2D. 1037 hence he is not ordinarily required to examine the title to property he does not buy.\* The purchaser of a dominent estate may, however, be required to examine the record

of the servient estate to ascertain the extent of the servitude,\* and a grantee from one who had forged and recorded a deed to himself does not acquire title merely because

the record shows title in the forger.\* The record of a deed is not notice of subsequent transactions between the grantor and third persons.\* Record of an absolute

ded intended as a mort 1028 NOTICE AND RECRORD OF TITLE SS 2E. 10 Cur. Law. (SS 3) _E. Possession under chattel mortgages; refiling and renewal.See * c. L._

1177--In most jurisdictions unfiled or unrecorded chattel mortgages are void as against subsequent creditors and purchasers without notice unless the mortgagee takes possession,15 and in some states the question of notice or knowledge is immaterial.16 That the mortgagee takes possession will not protect him as against credit-ors unless the statute recognizes rights accuring therefrom.17 In the absence of statute, removal of the mortgaged chattel to another town, county, or state does not necessitate any new record of refilling,18 but many statutes provide that illness within a stated period the mortgage is filed or recorded in the town or county to which the property is removed, or the mortgagee takes possession, the lion is lost except as between the parties.19 Extensions must be filed in some jurisdictions.20

Footnote 29: https://www.

10 Cur. Law. NOTICE AND RECOORD OF Tittle SS 3. 1029

Congressional and adopted territorial legislation constituted sufficient concurrent action on the part of the Federal and state governments to pass the records of the clerk or deputy clerk of the United States court in the Indian Territory as ex officio recorder at Muskogee, under the jurisdiction of the state of Oklahoma on its admission into the Union,\[28\] and vest their legal custody and right of possession in the-proper elected and qualified register of deeds of Muskogee county,\[26\] but such officer could not by mandamus compel a state judge to surrender the records to him where respondent had received unauthorized possession thereof as an individual and not in his capacity as a state court.\[27\]

(SS 2) \_II. Discharge of record.--\_Mortgage records are often discharged by entry of a minute on the margin of the record.\[28\] Cancellation of a mortgage on the record is only prima facie evidence of its discharge,\[29\] and the owner may prove fraud, accident, or mistake. Failure to discharge of record a mortgage which has been paid does not keep it in force as against a subsequent mortgage in good faith, notwithstanding a statute providing that chattel mortgages shall be valid until canceled of record.\[30\] Penalties are provided in some states for failure of a lienor to discharge the lien of record after payment.\[31\]

SS 3. _Registration and certification of land titles under the Torrens system._ See $ C. L. 1178--\_The Torrens law is not unconstitutional \[32\] as depriving persons of property without due process or withholding from them the equal protection of law,\[33\] nor does it infringe constitutional provisions for the division of governmental powers.\[34\] Evidence showing title in the applicant is necessary to warrant awarding a decree for registration.\[36\] The examiner of title may not consider abstracts not

clude his recovery on recorder's bond for Codes 1899, SS 4799, for failure to discharge entering satisfaction without production of mechanic's lien of record, must indicate notes or afflavit of payment, as required by statute under which penalty is claimed and Rev. St. 1899, SS 4858, Ann. St. 1906, p. 2401.

must state that expenses of discharge had State v. Green, 124 Mo. App. 80, 100 SWP

1115. Doctime that all are presumed to know the law did not apply. Id.

0001. Loss to purchaser from foreclosure of mortgage insufficiently satisfied of record held to have resulted from recorder's negili- 11, 1908 (St. 1897, p. 183, c. 119).

gence and not from that of purchaser where, though latter had already given a mortgage on other property, they was a mistake there- 11 which he refused to have corrected until mortgage on property purchased should be satisfied. State v. Green, 124 Mo. App. 80, 100 SWP

100 SWP 1115.

25. **26, 27**, Eberle v. King \[OkL\] 93 P 748.

01. A mortgage may be discharged under 2 Gen. St. p. 2107, SS 23, providing for clerk's entry on margin of a registered mortgage of a minute or discharge, though SS 25 provides that a mortgage registered or recorded shall be discharged by acknowledged and recorded certificate, latter method not being exclusive.

Manchester Bldg., & Loan Ass'n v. Beardsley

\[N. J. E.J. 86 4 A. 129, Rel. Easy may be canceled in equity.

Taylor v. Godfrey \[Vv. Va.\] 59 SE 681.

30. P. L. 1902, p. 489, SS 8, Longley V. Sperry

\[N. J. E.J. 86 4 A 1062.

31. Penalties cannot be recovered where debt has not been paid in full. Kingston v.

Newell, 125 Mo. App. 385, 102 SWP 604. Petltion under Rev. St. 1899, SS 4863 (Ann. St. 1906, p. 2404, for penalties for mortgage's failure to enter satisfaction of mortgage, held insuffleent for failing to state amount of debt secured, when debt was paid, and amount tendered as fee for entering satisfaction. Id.

Complaint to recover, penalty under Rev.

Notice and Record of Title $ 3. 1029

Congressional and adopted territorial legislation constituted sufficient concurrent action on the part of the Federal and state governments to pass the records of the clerk or deputy clerk of the United States court in the Indian Territory as ex officio recorder at Muskogee, under the jurisdiction of the state of Oklahoma on its admission into the Union,\[28\] and vest their legal custody and right of possession in the-proper elected and qualified register of deeds of Muskogee county,\[26\] but such officer could not by mandamus compel a state judge to surrender the records to him where respondent had received unauthorized possession thereof as an individual and not in his capacity as a state court.\[27\]

(SS 2) \_II. Discharge of record.--\_Mortgage records are often discharged by entry of a minute on the margin of the record.\[28\] Cancellation of a mortgage on the record is only prima facie evidence of its discharge,\[29\] and the owner may prove fraud, accident, or mistake. Failure to discharge of record a mortgage which has been paid does not keep it in force as against a subsequent mortgage in good faith, notwithstanding a statute providing that chattel mortgages shall be valid until canceled of record.\[30\] Penalties are provided in some states for failure of a lienor 1030
**NOVATION.** **10** Cur. Law.

"introduced before him on the hearing or returned by him as part of the evidence.

10 Cur. LAW. NUISAANCE $ 2. 1031

**NUISAANCE.**

**8 1. Distinction Between Private and Public**

**A. Abatement and Injunction, 1036.**

**B. Criminal Prosecution, 1038.**

**S 2. What Constitutes a Nuisance, 1031.**

**C. Action for Damages, 1039.**

**S 3. Right to Mantuini; Defenses, 1035.**

**D. Rights of Private Persons in Re-**

**S 4. Remedies Against Nuisances, 1036.**

**SS 1.** \_Distinction between private and public nuisance._See s C. L. 1180_\*\*--A public nuisance is one that affects the public at large, while a private nuisance affects a limited number only. \[48\]

**SS 2.** \_What constitutes a nuisance._See s C. L. 1180_\*\*--A public nuisance consists of an act or omission which annoys, injures, or endangers the comfort, repose, health, or safety of-any considerable number of persons \[49\] or offends public decency. \[50\] Private nuisance is an act done unlawfully or toriously to the hurt or annoyance of the person or property of another. \[51\] Anything physically discomfiting to persons of ordinary sensibility is a nuisance, \[52\] although it does not jeopardize health. \[53\] Each case must depend on its own facts for classification as a nuisance as a matter of law, or in fact. \[54\] The frequency of recurrence, \[55\] the character of the neighborhood, \[56\] and priority of occupancy therein, \[57\] are to be considered.

cmploye, employer, and third party entered

**N. Y. 481, 83 NE.565), but if the act in its**

**into contract of**
**novation, whereby employe**

**inherent nature is so hazardous as to make**

**released employer and accepted third person**

**the danger extreme and serious injury so**

**as creditor, Lemmon V. Litten \[S. D.\] 114 NW**

**probable as to be almost a certainty, it**

**1001.**

**46. Miles v. Bowers \[Or.\] 90 P 905.**

**47. In re**
**Fuller & Bennett, 152 F 538.**

**Surv whether the discharge of fireworks in a**

**curity Warehousing Co. v. American Exch. Nat. Bk., 118 App. Div. 350, 103 NYS 399.**

**a rule, whether the act constitutes a**

**Agreement to release in consideration of part**

**argument by retiring partner and promise to**

**Pay remainder by continuing partner releases**

**former, Frye v. Phillips \[Wash.\] 89 P 559.**

**48. Melker v. New York, 190 N. Y. 481, 83 NE 565.**

**49. Penn. Code, $ 585. People v. Hoffman,**

**118 App. Div. 862, 103 NYS 1000. A public performance which is debasing in its**

**the chance,**

**decabening in its**
**fluence on public morals, and brutailing in its**

**and brutailing in its**
**effect on spectators, is a public nuisance. State v. Canty, 207 Mo, 439, 105 SWV 1078. An offense against the**

**public order, common good, and public decency and morals, or any public exhibition**

**which tends to corrupt the morals, to disturb**

**the peace or the general good order or wel-**

**fare of society, is a public nuisance, Id.**

**56. Pen. Code, $ 385. Keeping a house in**

**which to practice**
**ocation of an abortionist**

**held to fall within**
**state. People v. Hoff-**

**fanu, 118 App. Div. 862, 103 NYS 1000.**

**51. One may not conduct his business nor**

**where**
**on his premises for so long a**

**time as to create a nuisance, Hogle v. H. H. Franklin Mfg. Co., 205 NYS 1094.**

**Throwing of bits of iron at the**
**the**
**fendant's factory by the defendant's work-**

**men held to constitute a nuisance, Id.**

**52. Only downright discomfort is actionable**

**and the nuisance must be such as is annoying to a person in a normal state of health. Froe-**

**licher v. Southern Marine Works, 118 La. 1077, 43 S 882.**

**53. Permin v. Crescent City Stockyard & Slusughterhouse Co., 119 La. 83, 43 S 938.**

**54. If the natural tendency of the act com-**

\*\*plained of is to create danger and inflict injury, it may properly be found a nuisance as a matter of fact (Melker v. New York, 190
\_Illustrations.--\_The discharge of heated or impure air or air charged with offensive smells,\[58\] noxious gases, smoke and fumes,\[59\] collection of explosive or inflammable substances,\[60\] noise,\[61\] vibration,\[62\] keeping a gaming house,\[63\] sale of intox-

suitable for country houses. McCarty v. Nat-

proximity to a dwelling house. Holman v.

ural Carbonic \_Gas Co., 189 N. Y. 40, 81 NNE

Mineral Point Zinc Co. \[Vis.\] 115 NW 327.

549.

001. This may not be of much importance in

an action for damages but is of importance

where an injunction is sought. Downs v.

Greer Beatty Clay Co., 9 Ohio C. C. (N. S.)

345.

\< 58, Crematory and fertilizer plant. Laird

v. Atlantic Coast Sanitary Co. \[N. J. Eq.\] 67

A 387.

Fertiller, rendering and tailow plants.

Permit v. Crescent City Stockyard & Slaught-

terhouse Co., 119 La. 83, 43 S 938. Use of

shrimp-shell powder or dust as a fertilizer.

Nacemi v. Rappeleti, 119 La. 272, 44 S 13.

City severe Declared to be a public nuisance. Piant Bros. v. Waterbury \[Conn.\] 67

A 508. An open seaweed by turning a stream into a ditch near plaintiff's land.

Desberger v. University Heights Reality & Development Co. \[Mo. App.\] 102 SVW 1060.

Manufacture: Conditions changed at time of

trial. Hale v. Jenkins, 55 Misc., 119, 106 NYS

282.

Slaughterhouse located within 200 feet of a

dwelling house and within 50 feet of barns

of one engaged in raising fine stock enjoined

as a prima facie nuisance. Steiner v. Hennon

5 Ohio N. P. (N. S.) 314. Operation of a

slaughterhouse adjacent to dwelling house.

Wright v. Ulrich \[Colo.\] 91 P 43.

Concentant of the body of a still born

baby in a hotel closet. Parkes v. Season-

good, 152 F 583. Act done by trained nurse

who was held not to be a servant and de-

fendant not liable for act. Id. Evidence

held to show that a fish market as operated

constituted a nuisance. Asia v. Pool \[Wash.\]

92 P 351.

Carpet-beating works held to be a nuisance. McQueen v. Phelan, 4 Cal. App. 695,

88 F 1093.

Discharging acids and waste from an oil

well through a ditch, injuring crops and

emitting unhealthy smells and odors. Exley

v. Southern Cotton Oil Co., 151 F 101. While

not nuisances per se, Nvery stables are of

such an undesirable and hurtful character

as to be properly kept at a proper distance

from residences. Caskey v. Edwards \[Mo. App.\] 107 SWW 37.

Held not to be mismaces: Slaughter house

more than 600 feet away from barns housing

fine stock held not to be a prima facie nuisance. Steiner v. Hennon, 5 Ohio N. P. (N. S.) 314. Evidence held insinfclient to show

that injury was caused by stagnant water

allowed to accumulate by defendant. Gulf,

etc., R. Co. v. Craft \[Tex. Civ. App.\] 18 Tex.

Ct. Rep. 510, 102 SVW 170 Cottr refused to

enjoin creation of a stable 42 feet from the

plaintiff's residence as it was not a nuisance

per se and might never become one in fact.

Hyden v. Terry \[Ky.\] 108 SVW 241.

59. Use of soft coil where not necessary

for running plant. McCarty v. Natural Car-

bontic Gas Co., 189 N. X. 40, 81 NNE 549. Injunction restraining use of soft coil modified

by granting the use of it upon proof of a

charge of facts making its use proper. Id.

Subbarrier acid plant by reason of close

1032

**Figure 10**: The _Hyden v._ (_Hyden v._) \_Hyden v.

10 Cur. Law. , NUISANCE $ 2. 1033

icating liquors, \[64\] blasting, \[65\] obstructing or rendering unsafe a highway, \[66\] sidewalk, \[67\] street, \[68\] easements, \[69\] the obstruction, \[76\] diversion, \[11\] or pollution of a watercourse or spring, \[72\] keeping a house for the purpose of-practicing the vocation of an abortion-

Slot machines. Mullen v. Mosley, 13 Idaho, \[6\] creation of a temporary obstruction in the street does not extend in any.event after the 64.1 Ballinger's Ann. Codes & St. $ 2085, \[7\] immediate necessity has passed and a reag-declares it a public nuisance to maintain a place where intoxicating liquors are on sale \[8\], \[9\] the restriction of a stallon on the pub-in contravention of the law. Town of Kirk-

Ind v. Ferry, 45 Wash, 665, 85 P 1123. The illegal sale of intoxicating liquors is a public nuisance. Lee County Disgemacy Com's V., \[10\] an allergy and entire obstruction thereof is a Hooper, 128 Ga. 9, 56 SE 997. Held not to be a public nuisance under common law or v. Moran \[Ala.\] 44 S 152. Maintenance of a state. Sopher v. State \[Ind.\] 81 NTE 91, and \[11\] use Interoxicating Liquors, 10 C. L. 417. \[12\]. 65. Blasting without reference to the par-ting lesser. Maryland Tel. & T. Co. v. Ruth

tuliar locality in which it is carried on is not lpso facto a nuisance. Houghton v. Loma Pritca Lumber Co. \[Cal.\] 93 P 82

In Improvement on the sidewalk, and street in \[11\] fornt of plaintiff's premises held a nuisance.

81 NTE 1149. To be a nuisance an object need not be actually in a highway. St., \[11\], \[12\], \[13\], \[14\], \[15\], \[16\], \[17\], \[18\], \[19\], \[19\], \[20\], \[21\], \[22\], \[23\], \[24\], \[25\], \[26\], \[27\], \[28\], \[29\], \[30\], \[31\], \[32\], \[33\], \[34\], \[35\], \[36\], \[37\], \[38\], \[39\], \[40\], \[41\], \[42\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[50\], \[51\], \[52\], \[53\], \[54\], \[55\], \[56\], \[57\], \[58\], \[59\], \[60\], \[61\], \[62\], \[63\], \[64\], \[65\], \[66\], \[67\], \[68\], \[69\], \[70\], \[71\], \[72\], \[73\], \[74\], \[75\], \[76\], \[77\], \[78\], \[79\], \[80\], \[81\], \[82\], \[83\], \[84\], \[85\], \[86\], \[87\], \[88\], \[89\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[93\], \[95\], \[97\], \[98\], \[99\], \[99\], \[91\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98 1034 NUISAANCE $ 2. 10 Cur. Law.

ist,${}^{\\tttt{78}}$ keeping a bawdy house,${}^{\\tt{74}}$ creotion of wooden building within the "Fire District," ${}^{\\tt{75}}$ an arena for bullfighting,${}^{\\tt{10}}$ cattle running at large,${}^{\\tt{17}}$ sale of unwholesome food, have been held to be nuisances.${}^{\\tt{78}}$ A lawful business or .creotion properly operated is never a nuisance per se.${}^{\\tt{79}}$ A municipality with power merely to prevent and abate nuisances has not authority to declare that a nuisance which is not one per se.${}^{\\tt{80}}$ The power to define and abate nuisances dangerous to public health is legislative in its nature${}^{\\tt{81}}$ and courts cannot interfere with its exercise except in cases of palpable abuse.${}^{\\tt{82}}$

unless, under the circumstances, a person of ordinary prudence should have anticipated the result. Long v. Louisville, etc., R. Co. A thing is not a nuisance per se merely be-jury. Id.

73. Is a public nuisance. People v. Hoff-man, 118 App. Div. 862, 103 NYS 1000.

01. Is a nuisance and indictable as such at the storage of cotton seed awaiting shipment common law and is an midgemacy b Gen.

St. 1901, $ 243. State v. Coler, 75 Kan. 424,

89 p 693. Keeping of house of protulation is fast that city refused permit to establish a public nuisance. Teodesck v. Berger \[Ala-\]

43 S 960.

75. In violation of ordinance declared to be a nuisance by Rev. St. c. 4, $ 92, par. S. Inhalitants of Houston v. Titoum, 102 Me. 272, 42, 1981, 16740, Ann. St. Supp. 1906,

68 A 733. Permanently enjoined. I. $ 1719, forbids to declare public public

76. An arena erected for the purpose of unduiscances what are not so per se. Bowers conducting a bull fight and in which one is actually carried on is a public and a common council of the city of Cincinnati having nuisance. State v. Canty, 207 Mo. 439, 105 SWV 1078.

01. Coreil v. Welsh \[La.\] 45 S 488.

01. Milk not up to standard is a nuisance by nature. Kaiser v. Walsh, 4 Ohio N. P. (N. S.) 607.

01. Field not to be nuisances per se: A by a legislative body of the functions which theatre, although subject in some measure to the municipal police power. City of Indiana.

v. Cincinnati, 6 Ohio N. P. (N. S.) 17. Actapolis v. Miller, 168 mh, 285, 80 NE 626, The transmission of electricity at a high voltage over a right of way under authority of the law, Mull v. Indianapolis & C. Trac. Co.

(Ind.) 81 NE 657.

89. Alphvalue acid plant. Holman v. Mineral Point Zine Co. \[Vis.\] 115 NW 327, Operation of a railway terminal. Taylor v. Sea-board Air Line R, \[N. C.\] 65 SE 129.

Stable. Hyden v. Terry \[Ky.\] 108 SWV 241;

Caskey v. Edwards \[Mo.\] 107 SWV 37.

Barking dog. Segembeiler v. Pahner, $ 101, Allp., 542.

Ohio C. C. (N. S.) 833.

Slaughterhouse. Steiner v. Hennon, 5 Ohio N. P. (N. S.) 314.

89. Plan. Bradbury Marble Co. V. Lacelete Gas Light Co \[Mo. App.\] 106 SWV 594.

from works. Profehlcher V. Southern Marine Voroks, 118 La. 1077, 43 S 882.

Eurst of the excess of a dead animal on one's own land. Long v. Louisville, etc., R. Co. \[Ky.\] 107 SWV 203.

The manufacture of giaxed brick, hollow ware, and sewer pipe. Downs v. Greer Beatty Cray Cray Cray Cray, $ 345.

Clay Co., $ 0 Ohio C. C. (N. S.) 345.

Discharge of fireworks in the public streets, Jelleker v. New York, 190 N. X, 481, 83 NE 565.

Celtrwary. Davis v. Bonaparte \[Iowa\]

119 NW 895.

80. The decision of the board of street and water commissioners of Newston that street railway tracks are a nuisance is not conclusive and removal of the tracks will be enjoined until the question is passed on by se. City of Indianapolis v. Miller, 168 Ind. 285, 10 Cur. Law. NUSAANCE SS 3. 1035

SS 3. \_Right to maintain; defenses.\_See * c. L. 1188--That the acts complained of necessarily result from the exercise of a franchise is generally held a defense. \[83\] Government authorization as a rule relieves from liability \[84\] for acts authorized thereby, \[85\] but license laws will not ordinarily be construed as allowing the licensing of a nuisance and municipalities have no power to permit by license or otherwise a private use of public ways in derogation of the public easement. \[86\] The possession of the power of eminent domain does not relieve one guilty of the maintenance of a nuisance from liability caused thereby to real property prior to an exercise of the right. \[87\] The right to maintain a private nuisance may be gained by prescription. \[88\] A license to commit a nuisance on leased land by a landlord not in possession or entitled to possession is no defense. \[89\] Reasonable necessity for a structure which causes a nuisance is no defense. \[90\] Questions of motive are immaterial. \[91\] Contributory negligence bars an action to recover damages. \[92\] The fact that other nuisances

80 NFE 626. Ordinance forbidding alley en-authorized by statute cannot be required to trances held unlawful. Id. The exhibition be removed as a nuisance on the ground of of a stallation on the public streets may be illegal location. North Jersey St. R. Co. v. declared a nuisance by ordinance. State v. \[N. J. Eq.1\] Iams \[Neb.\] 111 NWP 604. Smoke nuisance 67 A 691. \[86\] Ofmanabe held authorized under Burns' Ann. St. 1901, SS 3794 (Ann. St. Supp. 1905, SS 3477), park commissioner may authorize on en-giving elites power to declare nuisances (and by Burns' Ann. St. 1901, SS 1709: Ann. streets within 350 feet of a public park. St. Supp. 1905, SS 1719), which were not so \[New York v. Rice, 56 Misc. 360, 107 NYS 641. per se. Bowers v. City of Indianapolis \[Ind.\] Laws 1901, p. 28, c, 466, providing that the $1 NE 1097. Ordinance held valid al-board of aldermerm should not have power to though it excepted private residences. Id. allow obstructions on sidewalk except tem-Town held to have bad sufficient power \[only depending on adjoining lot, held not to au-the impounding of cattle running at large \[the opposite side of the street from their ed charter. Corell V. Walsh \[La.\] 45 438.\] work. Warden v. New York, 108 NYS 305. Act. March 17, 1875 (Acts Sp. Sess. 1875, p. 55, c. 43; Burns' Ann. St. 1901, SS 7276 et se.) and acts supplementary and amendatory \[thero regulating sale of intoxicating liquiors, held constitutional.\]. Sopher v. State \[Ind.\] 81 NE 913. \[N. J.\] 81 NE 913. \[N. J.\] 82. Whether the use of fish refuse as a fertilizer is a nuisance.is a question for the parish boards of health whose actions cannot be revised or reviewed? by police juries or the courts, Naccari v. Rappelet, 119 La. \[27, 44 S 13.\] The same respect should be given to the determination expressed by an ordinance as to a like conclusion expressed by a statute. Bowers v. Indianapolis \[Ind.\] 81 NE 1097. \[N. J.\] 83. Proper use and conduct of a passenger and freight terminal and the injuries and in-conveniences arising to residents in neighborhood are not actionable nuisances. Taylor v. Sebaoard AirLine R. \[N. C.\] 59 SE 129. Under Revival 1905, SS 2613, the running of trains and shifting of cars at the time of regular church service on Sunday at and near a terminal is not an actionable nuisance unless done in an unreasonable and improper way. Id. \[N. J.\] 84. Act Cong. March 1, 1893, c. 183, 27 Stat. 507 \[U. S. Comp. St. 1901, p. 3553\], providing for the appointment of the California debris commission and regulations for restraining debris from mines and the amount thereof and for permits for hydraulic mining, construed and held that it was not intended to excorate the miner from injuries caused by debris or to limit the power of the state to protect private property. Sutter County v. Nicola \[Cal.\] 93 F 872. \[N. J.\] 85. Maintenance of curved street car rails \[N. J.\] 86. \[N. J.\] 87. Platt Bros, & Co. v. Waterbury \[Conn.\] 67 A 598. By adverse and exclusive enjoyment for the length of time prescribed by the statute of limitations for acquisition of title by adverse possession. Bradbury Marble Co. v. Laelede Gas Light Co. \[Mo. App.\] 106 SWV 594. It is a question for the jury. Id \[SB. Maryland Tel. & T. Co. v. Ruth \[Md.\] 68 A 358. \[90\] No. Need of water tank erected on right of way held no defense under Const. art. 1, SS 17, providing that "no person's property shall "\*" be damaged \*" for public use without adequate compensation being made, unless by the consent of such person. \[Texas & Pac. R. Co.

1036 NUISAANCE SS 4A. 10 Cur. Law.

exist in the locality which produce similar effects is no defense, if the nuisance complained of is of such a character and produces such results that standing alone it would be a nuisance.\[93\]

SS 4. \_Remedies against nuisances. A. Abatement and injunction.\_See # C.'L. 1184 --A municipality may, in the exercise of its police power,\[94\] abate a public nuisance,\[95\] and one injured by a private nuisance may lawfully abate the same when the person guilty of maintaining it refuses to abate it.\[96\] The interest of the party menaced by a nuisance should govern in determining the degree of care and expense to be observed in protecting from injury objects constituting the nuisance during their removal by him.\[97\] A public nuisance may be abated by any individual annoyed or injured by it.\[98\] A town with power merely to prevent and remove nuisances has not authority summarily to abate as a nuisance that which it has declared to be such, but which is not a nuisance per se.\[99\] In some states a suit to enjoin a public nuisance may be brought by the solicitor general,\[1\] in others by the county attorney in the name of the state,\[2\] and in others in the name of the state at the relation of the attorney general.\[9\]

no contributory negligence. --Ft. Wayne

Coperage Co. v. Fage (Ind. App.) SS 2NE SS2.

On figures from abating a public nuisance in

3. The fact that it is the principal though

not the sole agent in producing the injury

is sufficient. Perrin v. Crescent City Stock-

Sydr & Slaughterhouse Co., 119 La. SS, 43 S

938.

001. City is not liable, however, for failure

to exercise the power or for the failure of

its agents to enforce regulations prescribed

in the exercise of the power. City of Mansfield v. Bristor, 76 Ohio St. 270, 81 NE 631.

The abatement of a public nuisance for the safety of the public health comes under the police power (Kaiser v. Walsh, 4 Ohio N. P. IN. S.), 507., and a resolution of the board

of health that milk not of a certain quality
be realized and destroyed is not unconstitutional as requiring a taking without due

process of law (Id.). Laws 1859, pp. 389, 390,

$ 4, 15 ("anti-gaming law"), authorizing

seizure and destruction of gambling devices,

held not unconstitutional as being a taking

without due process of law and to be a propo-

er exercise of the police power. Mullin v. Mosley, 13 Idaho, 457, 90 P 986. A city is not

estopped by its contract for street improvement to exercise its police by abating a nuisance created by the contractor in connection with the work. State v. St. Louis, 207 Mo. 354, 105 SWV 748. An order to abate

under penalty of prosecution after a hearing

by the board of health under authority given

by the city charter and ordinances is not unconstitutional as depriving one of his

property without due process or or any constructional rights. 1d. Act March 27, 1907,

art. 3, $ 3, empowering the officers of the city of Memphis to exercise certain police

powers within given limits, and authorizing

the president to abate whatever in his opinion

lon was a nuisance, and art, 3, $ 1, subspace.

17, empowering the municipal council by

ordinance to prohibit pis pens, cow tables, and dalries within a given area, held uncon-

sititional being in violation of Const. arts

1, $, and 11, $ 8, Malone v. Williams, 118

Tenn. 390, 105 SWV 798.

95. City is liable at common law and by

statute for damages for its negligence in

not abating a nuisance on land in its possession and under its control. City of Mansfield v. Bristor, 76 Ohio St. 270, 81 NE 631.

cheaster v. Bristor, 76 Ohio St. 270, 81 NE 631.

Conference Co. v. Fage (Ind. App.) SS 2NE SS2.

An injunction will not issue to restrain city

officers from abating a public nuisance in

not the sole agent in producing the injury

is sufficient. Perrin v. Crescent City Stock-

Sydr & Slaughterhouse Co., 119 La. SS, 43 S

88 P 1093. The public authorities may abate

a fence which obstructs a public highway

and its an indicitable nuisance. State v. God-

win IN. CJ 59 SE 132. In the exercise of

the police power the legislature may authorize the abatement of nuisances by seizure of

instruments and devices adopted and intend-

ed for the commission of nuisance and crime.

Source of slot machines for gambling mpn-

held, Mullin v. Mosley, 13 Idaho, 457, 90 P

886. Town may abate nuisance of cattle

running at large through the streets and

public places by impounding the animals.

Coroll v. Walsh \[La.\] **5** S 483.

94. He must do no wanton or unnecessary

image in doing so, the right be given

morely to prevent future injury. Pyott v.

State \[Ind.\] \*\*83 NE 137. Ralifoad with pre-

scriptive right to conduct surface water

through a 10 Cur. Law. NUISANCE SS 4A. 1037

A city may bring an equitable action to abate a public nuisance.4 A municipality as representative of the equitable rights of the inhabitants may enjoin nuisances affecting matters of which the state has confided to it either control or regulation.\* A court of equity at common law has jurisdiction to restrain nuisances.\* Equity has jurisdiction to enjoin a violation of an ordinance which constitutes a public nuisance,7 and in Maine specific jurisdiction is given by statute.8 As in other cases an injunction will be granted only when there is no adequate remedy at law,9 or in order to prevent a constantly recurring grievance,10 or to prevent multiplicity of suits,11 and where the right threatened thereby is clear and the fact is clearly established, that the proposed structure will infringe such right.12 The remedy may be lost by estoppel 18 and must be sought promptly.14 Injunction will lie to restrain the carrying on of a public nuisance although the act is indicitable and punishable under the criminal law,14 for no one has a right to commit an act which is both a nuisance and a crime in order to enjoy the right to a-trial by jury.16 The rule that property rights must be involved before injunctive relief will be granted has no application to a proceeding to abate a public nuisance.17 Where during the trial of an action to abate a private nuisance the defendant conveys away the premises, judgment directing the abatement cannot be rendered 18 and the doctrine of li pendens does not apply.19

4 Town of Kirkland v. Ferry, 45 Wash. no knowledge of what the effect of the dam would be. Royce v. Carpenter \[Yt.\] 66 A such remedy as exists by law in the form of 888. Evidence insufficient to prove an estop-an arbitrary abatement of a public nuisance 104 NYS 889. but may resort to equity. City of New York 14. Delay of ten and a half months held v. Rice, 66 Misc, 360, 107 NYS 641. Election not to be Labens. Royce v. Carpenter \[Yt.\] 66 A as. Evidence insufficient to show 5. Threatened violation of ordinance forbaches in bringing action to abate. Desbading wooden buildings within the limits of the "Five District." Inhabints of Houlul- 1086. Delay of 1086. Delay of 1086. Delay of 1087.

1038 NUISANCE SS 4B. 10 Cur. Law.

_- Injunction._ See $ C. L. 1185.--An action to abate a nuisance and for relief by damages is not demurrable on the ground of multifariousness.\[20\] In Wisconsin a complaint in an action to abate a nuisance and for damages is not demurrable because on final hearing all the relief prayed for may not be granted.\[21\] The relative effect upon the parties of granting or refusing injunctive relief from a nuisance is a consideration affecting the exercise of the court's discretion.\[22\] In a suit to compel the removal from the sidewalk of so much of a building as encroaches thereon, the owner of the land as well as the lessee who erected the building is a necessary party.\[23\] The doctrine of res adjudicata applies to a nuisance existing at the date of the decision,\[24\] but it has no application to facts that have arisen since which have changed the conditions.\[25\] Where at the trial of an action to enjoin a nuisance it is found that the causes of complaint are removed, the bill must be dismissed but without costs.\[28\]

(SS 4) B. Criminal prosecution.\[See $ C. L. 1187.--The maintenance of a public nuisance was a crime at common law 21 and many specific nuisances are declared by statute and ordinance.\[28\] It is a good defense that the public nuisance is caused by actions and recover damages until such time as a defendant is found who has the title "dual to a nuisance per se at common Id."

19. The doctrine only applies to actions in rem and not to trepspass. Ackermann v. "hore," 120 App. Div. 172, 105 NYS 12. Hence a grantee is not bound by a judgment against the grantor nor compelled to carry out the decree. Id."

01. But several persons cannot maintain such an action successfully on the ground that it is a misplaced or of action for damages, Burshen v. "Erie R. Co., 108 NYS" 211. "Erie R. Co., 108 NYS" 211. "Erie R. 1898, SS 3181, provides that if the plaintiff prevails be shall have judgment for damages and costs and also for an abate- 83 P 683. Under a municipal ordinance merit of the nuisance, unless the court shall certify that such abatement is unnecessary, Burshen v. "Mineral Point Zinc Co. (VWs.) 115 NW 327."

01. If the granting would entail much more injury upon the defendant than benefit to the plaintiff it should be refused, Downs v. "Green Beatty Clay Co., 9 Ohio C., 8. Y. 345."

01. City of Columbus v. Philbrick, 5 Ohio N. P. (X.S.) 449. The decree for the statement of a nuisance of this character where the property owner is served by publication and the structure is erected by the lessee will be directed against the lessee and his sublessees who stand in the position of its pendens purchasers. As to the owner the finding should be that he has no right or interest in that part of the building which extends over the true line of the street. Id."

01. It must entirely abate, Perrin v. Crescent City Stockyard & Slaughterhouse Co., 119 L&A. 873, 44 S 513.

01. Where to prevent the recurrence of the nuisance enjoined ordinates were passed regulating the industry complained of and the defendant again conducted his business in compliance therewith, it was held there was no ground for contempt proceedings.

01. Title v. Crescent City Stockyard & Slaughterhouse Co., 119 L&A. 873, 44 S 512.

01. Neither the sale of intoxicating liquors - maintaining public nuisances fails to define sale was a public offense or nuisance at com- 237, resort must be had to common law to 10 Cur. Law. **NUISAANCE SS 4C.**

the acts of others over whom the defendant has no control.\[29\] An act authorized by the legislature which in the absence of such authority would constitute a public nuisance cannot be considered such unless the legislature exceeded its power.\[30\] Under a charge of maintaining a public or common nuisance, where the thing is a nuisance per se, it is no defense that there was no noise or disturbance or that the community was not disturbed by its presence.\[31\] A landlord may be held guilty of allowing a common nuisance to be operated on his premises, if he let it for the purpose or knew of the purpose or has control over the matter even after renting.\[32\] Two separate and distinct substantive offenses cannot be joined in one count in an indictment.\[33\] The complaint is sufficient if it substantially notes the elements of the offense.\[34\] A joint conviction of innocent and guilty parties for violation of an ordinance is not prejudicial to the latter.\[35\] In Kentucky-after a verdict of guilty in a prosecution for maintaining a common nuisance, a judgment of abatement may enter which operates upon the person of the accused as well as upon the property.\[36\]

(SS 4) _C. Action for damages.\[See SS 5 C. L. 118\] While one is liable only for damages proximately resulting from his acts,\[37\] where several persons acting independtly_

determine if the act complained of was a public nuisance. Sopher V. State \[Ind.\] S1

bidding in general terms the obstruction of his 913. Act March 17, 1875 (Acts Sp. Secs. 1875, p. 55, c. 13; Burns' Ann. St. 1901, $ 7276 et. seq.), regulating and licensing the sale of inoxicating liquors and later acts supplementary and amendatory thereto, held constitutional. Id. See, also, such topics as Bettling and Gamling. $ C. L. 885; Intoxicating Liquors, 10 C. L. 417.

29 Railroad not liable for nuisance caused by an embankment built by a third person for a coal switch connecting a mine with railroad, since by Const. $ 216, "all railway, transfer, belt line and railway bridge companies shall allow the tracks of each other to unite, intersect or cross at any" reasonable or feasible point. Louisville, etc., R. Co. v. Comm., $1 Ky. L. R. 65, 101 SW 382.

30. Sale and keeping places for the sale of intoxicating liquor. Sopher V. State \[Ind.\] S1 NE 913.

01. Pool room for betting on horse races. Ehrlick v. Com., $1 Ky. L. R. 401, 102 SW SW 289.

01. Evidence held to show knowledge and consent of landlord and sniffent to hold him even though there was no evidence against his leseese. Huber v. Com., $1 Ky. L. R. 320, 102 SW 291.

01. Actts 1905, p. 584, c. 169, $ 535, forbidding the conduct of a business of such a character as to emit tohospe smells injurots to health or comfort, and $ 537, forbidding the placing of the carcass of any dead animal, spoiled meat, or putful animal, are intended to cover distinctive different acts. Myers v. State \[Ind.\] S2 NB 763. Indictment held to charge an offense under $ 535, but not under $ 537, and hence was not bad for duplicity.

1d.
34\. Indictment held sufficient under acts in 1905, p. 584, c. 169, $ 535, forbidding business- es causing smells injurious to health. Meyers v. State \[Ind.\] S2 NB 763. Under the rules of criminal pleading, that where the statute defines the crime the indifferent may use of the language of the statute, but where the statute defines the offense in general terms, particulars must be pleaded, the mere averment that the accused obstructed a public by the law 1040 NUISAANCE SS 4C. 10 Cur. Law.

create a nuisance, each is only liable for the results of his own wrong,\[38\] and although they may be jointly enjoined,\[38\] each must be sued separately for damages.\[40\] Several persons injured by a nuisance may not bring a bill praying both for abatement and relief by way of damages.\[41\] One may maintain an action at law for damages caused by a nuisance without seeking an abatement of the nuisance.\[42\] One who wrongfully creates and maintains a nuisance is liable for such damages as naturally flow therefrom\[43\] without notice of the effects or request to abate.\[44\] The rule is otherwise where the land is conveyed with a pre-existing nuisance thereon,\[45\] except where the nuisance consists in the violation of a statute.\[44\] A lessor is liable if he rents the premises for the express purpose of having conducted thereon a business which is a nuisance per se.\[47\] Successive actions may be brought for injury received from an intermittent\[48\] or a continuing nuisance,\[49\] and the statute of limitations begins to run upon the receipt of each injury.\[60\] While a city is liable in damages for main-taining a nuisance,\[51\] it is not liable for damages for failure to abate a nuisance rendering its streets unsafe to one not using the streets.\[52\] Limitations do not begin to run until the nuisance is established,\[63\] and are governed by statute.\[54\] In an action against a corporation for a nuisance, it is immaterial whether its property was ob-

App.\] SS2 NE SS3. Accumulation of water of road held not to be proximate cause of in-

Jury. Crowley v. West End (Ala.) 43 S 359,

38. Sun Co. v. Wyatt (Tex. Civ. App.) 107

01. Sun Co. v. Wyatt (Tex. Civ. App.) 107

01. Sun Co. v. Wyatt \[Tex. Civ. App.) 107

01. Wheare several persons unite in

01. Causing a nuisance by discharge of sewage

01. and flith, they are not jointly liable for dam-

01. and flith that are not jointly liable for dam-

01. and flith that are not jointly liable for dam-

01. and flith. that are not jointly liable for dam-

01. and flith. that are not jointly liable for dam-

01. and flith. that are not jointly liable for dam-
    tained by purchase or by eminent domain."18 If a nuisance is proved, the law of negligence does not apply."40 A public nuisance causes legal injury although the plaintiff fails to prove that he has suffered any specific damages."41 In an action for dantage caused by a nuisance, no specific allegation of breaking and entering vi et armis is necessary."42 The unreasonableness of the use of a ditch need not be alleged in an action for nuisance where it can be deduced naturally from the facts alleged."43 A complaint to be good against demurrer must exhibit enough facts in law to authorize affirmative relief and be sufficiently clear to enable a person of common understanding to know what is intended."44 Where acts complained of are not nuisances per se, the complaint should set out wherein they are nuisances in fact."45 Whether the location of a lawful business is proper or not under all the circumstances may be raised by answer."46

\_Damages.\_45 C. L. 189--The measure of damages for the maintenance of a nuisance is the diminution in the value of the premises affected during the continuance of a nuisance."47 Permanent damage to property by a continuing nuisance cannot be recovered."48 Trustees cannot recover for the physical sufferings of their beneficiaries caused by a nuisance."49 Where in action for damages caused by a nuisance the precise amount of damages is not ascertainable, the court or jury should make such award as under all the circumstances would seem to be just and equitable."49 Where pending an action for abatement the defendant conveys the property and the plaintiff waives damages, and permanent damages instead of those suffered from year to year

the beginning of the time allowed for action.

Ireasonable is a question of law. Exley v. Donahue v. Stockton Gas Elec. Co. \[Cal. App.\]

Southern Cotton Oil Co., 151 F 101.

92 P 196.

60. Burns' Ann. St. 1901, $ 411. Ft Wayne

01. Taylor v. Seaboard Air Line R. Co. \[N. C.\]

C.J 59 SE 129.

56. Where the damage is the necessary consequence of or is incident to the defend-

and's business or the manner of its conduct,

the law of nuisance and not of negligence

expligles. Hoyle v. H. H. Franklin Mfg. Co.,

61. Complaint failed to show operation of

105 NYS 1094. The question of negligence is

railway terminal was improper and illegal so

immaterial in determining whether the cause

as to constitute a nuisance in fact. Taylor

is actionable. Exley v. Southern Cotton Oil

V. Seaboard Air Line R. \[N. C.\]

C., 151 F 101. In an action for the destruction of a drain in violation of Burns' Ann. St. 153, 6456, negligence or lack of con-

62. Holman v. Mineral Point Zinc Co. \[Wis.\]

01. Pollution of a, spring. Long v. Louis-

tributory negligence need not be averred.

Kelsay v. Chicago, etc., R. Co. \[LAp.\]

107 SW 203. The

measure of damages for the obstruction is

81 INE 522. Action charging injury to marble

limited to toss of profits expenses incurred,

by discharge of discoloring ashes containing

carbon, etc., held to be for maintaining a

obstruction. Cashing-Wettmore Co. v. Gray

private nuisance and not based on negligence.

Bradbury Marble Co., v. Lacetle Gas Light Co.

In addition to this for the value of the time

\[Mo. App.\]

108 SW 594. A nuisance does not

rest upon the degree of care used, for that

computation from the defendants' attacks in

presents a question of negligence, but on

the degree of danger existing even with best

tion for trial. Id. The measure of damages

of care. Malker v. New York, 190 N. Y. 481, 83

NE 665. If a structure is a nuisance per se,

way by an adjoining owner is the difference

the owner may be held liable for damages

between the value of the plaintiff property

irrespective of his contractor's negligence.

with the encroachment and without it. Acker-

Stublev v. Allison Reality Co., 108 NYS 759.

man v. True, 120 App. Div. 172, 105 NYS 12.

Notwithstanding a nuisance implies neglig-

The rule obtaining in elevated railway cases

gence, there is a clear distinction under the

Ohio law between ordinary actions for injury

caused to the plaintiff's property by the

to persons or property through negligence

per se and injury to persons or property

of this kind. Id.

caused by nuisance. City of Cincinnati v.

Darby, 5 Ohio N. P. (N. S.) 216.

57. Platt Bros. v. Waterbury \[Conn.\]

67 A

68. Taylor v. Seaboard Air Line R. Co. \[N. C.\]

01. Exley v. Southern Cotton Oil Co., 151 F

01.

01. Whether the use be reasonable or un-

10 Curr. L-- 66.

reasonable is a question of law. Exley v.

Donahue v. Stockton Gas Elec. Co. \[Cal. App.\]

80. Burn's Ann. St. 1901, $ 411. Ft Wayne

Coperage Co. v. Page \[Ind. App.\]

83. Complaint held sufficient as against a

general demurrer. \[Donahue v. Stockton Gas

84. Elec. Co. \[ are found, the court cannot modify the judgment by reversing the injunctions for abatement and awarding damages.\[67\] The right to damages for the maintenance of a private nuisance is given by statute in some states.\[68\] While the proof of the existence of a nuisance for which there is a general averment of damage nominal damages at least are recoverable,\[69\] yet, if special damages are alleged, they should be set out with such precision as to apprise the defendant of the items.\[70\] There can be no damages allowed for injuries not pleaded,\[71\] nor where there is no evidence from which to measure them.\[72\] Evidence of the amount and manner of the use prior to the time of injury,\[73\] and of the physieal discomfort of the plaintiff and his family incident to the maintenance of the nuisance is admissible.\[74\] (SS 4) _D. Rights of private persons in respect to public nuisances_,\[See SS 4. L. 1189\] In order that a private person may maintain an action for relief against a public nuisance, he must sustain special injury therefrom different in kind from and in addition to that sustained by the general public.\[75\] The complaint must set forth the special injury.\[76\] (SS 4) _D._: _Rights of private persons in respect to public nuisances_,\[See SS 4. L. 1189\] In order that a private person may maintain an action for relief against a public nuisance, he must sustain special injury therefrom different in kind from and in addition to that sustained by the general public.

## 10 Cur. Law. OFFICERS AND PUBLIC EMPLOYES. 1043

**OATHS."**

Obsscenity, see latest topical index.

**OSTRUCTING JUSTICE."**

In the absence of any evidence of an attempt to arrest, failure to comply with an officer's request that defendant go to court does not constitute the offense of obstructing an officer.\[79\] A citizen may resist an illegal arrest without a warrant,**"** and resistance to illegal arrest with any amount of force necessary to prevent arrest is -not resisting an officer.\[81\] Ignorance that the person assaulted was an officer constitutes a defense.\[32\]

Information for obstructing an officer in the service of process should recite the process in order that the court may see. if it was of a kind the officer had a right to execute.\[83\] An indictment under the statute punishing one for corruptly endeavoring to influence an officer of the court in the discharge of his duty is not defective because it did not charge that the court was in session, nor because the communication did not comment upon the merits of the case, nor because the act charged may be punishable as contempt of court.\[84\] The ordinary rules as to variance between the charging and reciting clauses,\[85\] verification,\[86\] and the elements of the offense necessary to be charged, apply to information for resisting an officer.\[87\]

**OCCUPATION TAXES; OFFER AND ACCEPTANCE; OFFER OF JUDGEMENT; OFFIC JUDGEMENT, see latest topical index.**

**OFFICERS AND PUBLIC EMPLOYES.**

**S 1. Definition and Dislocations, 1044. To**

**C. Procedure and Practice in Particular**

**Construte a De Facto Officer, 1044.**

**Office and Government Contract**

**S 6. Induction Ieto Office, 1052.**

**Distinguished, 1044.**

**Office and**

**S 7. Nature of Tenore and Duration of Term,**

**Employe Distinguished, 1044.**

**S 2. Creation and Change of Offices, 1045.**

**S 3. Eligibility and Qualifications, 1045.**

**A. In General, 1045.**

**B. Civil Service, 1047.**

**S 4. Choice or Employment, 1047.**

**A. How Chosen or Employived, 1047.**

**B. Filling Vacancies and Promotions,**

**S 5. Right to Office and Remedles to Enforce Same, 1050.**

**A. Indicia and Evidence of Right, 1050.**

**B. What Remedy, 1050.**

**S 6.**

**To appear. Complaint held sufficient under**

**S 4. Under Rev. St. $ 6907, letter to judges it. Cushing-Wettmore Co. v. Gray \[Cal.\] 92**

**P 70; Anderson v. Fry, 123 App. Dlv. 46, 107 NYES 916.**

**P 77. See 8 C. L. 1191. No cases have been found during the period covered for this topic, which includes only the form and sufficiency of oaths generally. See the related topics of Afflavits, 9 C. L. 56; Witnesses, 8 C. L. 2347; Jury, 10 C. L. 541; Perjury 8 C. L. 1344.**

**78. See 8 C. L. 1191.**

**79. Cooksey v. State \[Ark.\] 106 SW 674.**

**80, 81. Ryan v. Chicago, 124 Ill. App. 188.**

**82. Where defendant did not know that person assaulted was constable holding writ of execution against him. State v. Murphy \[Del.\] 66 A 385.**

**83. State v. Ostmann, 123 Mo. App. 114, 100 SW 696.**

**SW 696.** * \[\] B. Powers and Duties, 1060. Effect of Personal Interest, 1061. Ats of a De Practo Officer, 1061. Delegation of $ 11. LIabilities of Public for Acts of Public Powers, 1062. Mode of Official Action, 1062. Judicial Control or Review, 1062. 1064. 1062. 1063. 1064. 1065. 1066. 1066. 1067. 1068. 1068. 1069.

10 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 3A. 1045

performs the duties required of him by persons employing him under an express contract or otherwise, though such persons be themselves public officers and though the employment be in or about a public work or business. \[98\]

**SS 2.**\_Creation and change of offices._See_\*\*C. L. 1194.--If not prohibited by constitution," the legislature may create or abolish offices,1 prescribe their power and duties,,s and may abolish, increase, or diminish the term, or change the manner of filling an office created by statute, and may declare it vacant or abolish the office by leaving it devoid of duties.8 Where the legislature has power to prescribe the duties of an office, it may exercise the power without creating a new office.4 Charter provisions are binding on municipal legislatures.8 While an office may be abolished, yet the officer cannot be legislated out of office without an abolishment thereof.9 A public office cannot be created and its powers, duties, and emoluments prescribed, by concurrent resolution.1

**SS 3.**\_Eligibility and qualifications. A. In General._See_\*\*C. L. 1194.--The legislature may prescribe reasonable qualifications for public offices,s and in the absence of

therity of Act 1907, is a public officer. Lucas stitutional. Hall v. Tarver, 128 Ga. 410, 57 v. Futrall \[Ark.\] 106 SW 667. \[SZ 720.\]

**SS.**_Sanders_**V.**_Beluc_\[\_S. C.\] 58 SE 762. \[S.\] The office of chief engineer of the city

**Fersones held'not to be public officers' Clerk**

\*\* appointed by corner under Greater New\*\*

**York charter, 1571. People v. Cahill, 188**

\*\*104 SW 768. Notwithstanding g, art, 19, of

**N. Y. 489, 81 NE 455. A public administrator.**

\*\*Content, 1874 of Arkansas, forbids the general

\*\*Wootten v. Smith \[N. C.\] 59 SE 649. Super-

**Intendent of a country Infirmary.**_Zegler v._

\*\*provided for in constitution, the legislature

**Palmer, 100 Chlo C. (N. S.) 645. Deputy shev.**

**117 and court constable. State v, Shaffer, 6**

**Quirch**M.\*\*\_P. (N. S.) 219. A grand jurot is not a public officer. Lucas v. Futrall \[Ark.\] 106 SW 667. \[S.\] a public officer within the meaning of the

**S**urvature cursturing the term "public officers"\*\*

\*\*to mean all officers of the state which have

**wheots.**\_7 and 26, the general council of city

**heretofore been commissioned by the governer. State v. Graham \[S. C.\] 60 SE 431.**

\*\*of market master and to prescribe his du-

**The position of bailiff or jainter and assistant**

\*\*and clerk of the municipal court, as provided

\*\*for by ordinance No. 15,283 of the City of

**S**.\*\*\_State v, Huegle \[Iowa\] 112 NWP 234. Ky.

\*\*Portland, is not an office but a clerical posl-

**St. 1903, 8 2810, repeals special charter of**

**tion within civil service regulations**

**Louisville creating and providing for the**

**scribed by city charter $ 306, MacDonald v.**

**Lane \[Or.\] 90 P 181. An employee of a union**

**catation terminal company to police its own**

\*\*property, who is paid by the employing company, and clothed with power to make ar-

\*\*rets and subject to the control of the police

**department of the city, is not a member of**

**the city police force within the meaning of a**

**state providing for the burial of an officer**

**Killed while in the discharge so that duty.**

**Zipperer v, Savannah, 128 Ga. 135, 57 SE 311.**

**Local executive committee of a political**

**party are not public officers, even though**

**of**
**S**.\*\*\_The council of the city of Portland can-

**certain duties are imposed upon them by e.**

\*\*93, p. 510, Laws 1905, N. H., and they are

\*\*required to conduct political campaigns. At-

**torney General V. Barry \[N. H.\] 88 & 192.**

**Offee of democratic board of committee**

**of a city.**_Greenough v. Lacy \[R. L.\] 66 A._

**300.**

\*\*99. So far as Act 1903 (Laws 1903, p. 248,

**e. 133) attempts to create office of county**

**truit inspector, if is in violation of Const.**

**sart, 11, 6, State v. Blumberg \[Vwash.\] 89**

\*\*P 708. Under the constitution of 1868, the general assembly was without power to abolish the office of county treasurer either directly or indirectly, and local act approved

\**Feb. 28, 1876 (Acts 1876, p. 225), consolating offices of clerk of superior court and of constitutional prohibition may alter or change the same,* and where it delegates the power of appointment, it may leave it to such appointing power to prescribe the qualifications for such office.**10**: \*\*Mandamus will not lie to control the exercise of discretion on the part of a board upon which the duty to investigate and determine the qualifications of applicants to offices is cast.**11**: \*\*The necessary qualifications for statutory office must exist either at the time of the election or at the time of entering upon the duties of the office, as the statutes may indicate or direct.**12**: \*\*One holding an incompatible office is disqualified from holding another office,**13**: \*\*and no officer of any corporation of Indiana having any contract with a city shall be eligible to any office in the city.**14**: **It is usually required that an applicant to be eligible to**

**years before date of his election, and to four-** **by of the state. Wootton v. Smith \[N, C,\] 59** **nish bond to state signed by authorized** **SE 649. The position of public administrator** **surety company conditioned for faithful discharge of his duties, is not void. State v.** **surety of the constitution but is a mere admissibility agency. Id. Neither the posil-** **9. Where such qualifications have been fixed pursuant to its authority, electors can-** **a public office as that term is known to the law, and the same person may hold both poserecribed. State v. Huegele \[Iowa\] 112** **NWF 234.** **celve the emoluments peculiar to each, provided the "Veterans' Preference Law," it is** **ee. State v. Shaffer, 6 Ohio N. P. (N. S.) 219.** **It has been held in Arkansas that a sheriff mine whether or not an applicant for appointment has the qualifications required.** **lector of revenue, and though such officer is** **sueded on indicment being filed against good faith, is final. State v. Addison \[Kan.\]** **him, he is still sheriff and upon his failure to** **92 P 581. If an applicant for appointment** **quality to office of collector within certain under such law possess the qualities essential** **time the governor may appoint a person to** **to the prompt, efficient, and honest perform-** **the duties of such office who shall** **ad offee till next general election.** **Remn-** **which application is made, he is entitled to** **key v. Matthews \[Ark.\] 106** **SWV 482. Under appointment (Id.), and as between two such applicants, the appointing board may select** **legislature of Michigan providing for the** **surets constitutional convention are inelligible** **sective qualifications. Under Laws 1904, p.** **s**, c, g, 1, an investigation is only required\*\* **ent County \[Cerk, 149 Mich.\]** **St95, 14 Det. Leg. as between one entitled and one not entitled to such preference. Kitterman v. Wapello County Supra \[Iowa\] 115** **NW 13. Under the** **stuate of Iowa. giving veterans a preference** **right to appointment to municipal positions over other persons of equal qualifications, the city council is** **sested with power to determine upon the qualification of the applicants. Such discretion will not be supervised or controlled when exercised in good faith under acts 80 Gen. Assem. c. 9. Robertson v. Alberson \[Iowa\] 114** **NWF 886:** **Creston \[Iowa\] 113** **NWF 471. In such case it is the duty of the council to investigate in good faith, fairly consider the qualifications of the respective candidates and honestly pass upon the issues presented. Robertson v. Alberson \[Iowa\] 114** **NWF 885.** **11. Under Acts 30th Gen. Assem. p. 8, c, g, a veteran applicant for a municipal office cannot by such remedy cocece the board to appoint him over nonvertan applicants of higher qualifications, but may compel it to** **determine whether his qualifications are** **equal to such other applicants. Ross v. Sloux City Council \[Iowa\] 113** **NWF 474.** **12. Where the words used are "eligible to office" or equivalent, they mean eligibility at the time of entering upon the office and not** **at time of election. State v. Huegele \[Iowa\] 112** **NWF 234.** **13. Under the** **Const. art. 14, 8** 7, no person holding any office under the United States shall hold any other office under the authorl-\*\* **by of the state. Wootton v. Smith \[N, C,\] 59** **nish bond to state signed by authorized** **SE 649. The position of public administrator is not an office or place of trust within pur-** **view of the constitution but is a mere admissibility agency. Id. Neither the posil-** **9. Where such qualifications have been fixed pursuant to its authority, electors can-** **a public office as that term is known to the law, and the same person may hold both poserecribed. State v. Huegele \[Iowa\] 112** **NWF 234.** **edive the** **miluments peculiar to each, provided the "Veterans' Preference Law," it is** **ee. State v. Shaffer, 6 Ohio N. P. (N. S.) 219.** **It has been held in Arkansas that a sheriff mine whether or not an applicant for appointment has the qualifications required.** **lector of revenue, and though such officer is** \*\*suspended on indicment being filed against good faith, is final. State v. Addison \[Kan.\] hold public positions must be a qualified voter15 and a citizen.10 The ineligibility of the incumbent to accept or hold an office does not give a minority candidate any claim to the office.17 By statute in Iowa, the county superintendent must hold a first grade certificate or a state certificate or a lawful diploma.18

(SS 3) \_B. Civil service.\_See S. C. L. 1955. Under the civil service laws, persons in office who attain a place on an eligible list have a prior right to transfer to those seeking original appointment.19 Though the supreme court has the power to review the classification of the civil service commission, and if erroneous to direct a proper classification,20 and though the civil service commission is not vested with arbitrary discretion in applying the provisions of the civil service act,21 examinations will not be set aside for undue influence on the commissioners,22 nor will the commission's discretion as to lists to be applied at examinations be interferred with or controlled by the courts.23 Confidential positions are usually exempt from examination.24 A police officer under the civil service rule may preserve his eligibility from year to year without further examination.25 The commissioner of a tenement department may question the right of an employee to the privileges of an exempt frennan, regardless of a certificate which he offered in proof of such fact.26 Making and swearing to false statements in an application is indicitable.27

Footnote 15: Respondent not having paid his taxes as provided by law, held that he was not a qualified voter and ineligible to office of 56 Misc. 29, 106 NYS 158. Position of chief mayor of Athens, under acts 1900-01, pp. clerk of bureau of engineering of city of 1037-1058. Frost v. State \[Ala.\] 4S 820. Burla help to belong to exempt class and Where officer must be resident voter of town, not in competitive class. Id. he is not disqualified by insufficient residence in precinct. Markeviev v. People, 128 II. App. 203. Where the qualifications of a mayor and council of a municipality are not pre- the bureau of water from the competitive scribed by statute, such officers are not ineligible for the sole reason that they paid his tax 450.

their state and county taxes for a given year after Dec. 20th, but before execution for same had been issued without paying or tendering any interest on the taxes paid. McCWilliams v. Jacobs, 128 Ga. 375, 57 SE 699.

**16.** Facts held not to constitute a change of residence of a successful contestant for office of county superintendent of schools, thus disqualifying him for such office. People v. Wilson \[Cal. App.\] 9 II 661. That one is not a qualified electore does not disqualify him to held office of mayor of - town under a statute requiring bona fide citizens for two years next preceding the election. State v. Matthews \[Ala.\] 4S 870. In Oregon laobers who are not citizens of the United States are required to reside within the city one year previous to their employment. Under Portland city charter, $163, 311, and B. and C. Comp. $ 707. Landswick v. Lane \[Or.\] 90 P 490.

**17.** Hudson v. Conklin \[Kan.\] 93 P 585.

**18.** Under Acts 31, Gen. Assem. p. 87,C. 122, enacted April 5, 1906, taking effect Oct. 1, following expressly repealing Code, $275.

\*\*2737, one holding a two years' certificate issued Aug. 30, 1906, under $278, is not eligible to the office of county superintendent. State v. Huesgle \[Lowal 112 NW 234.

**19.** City employee properly transferred from an exempt class to a competitive class, under Civil Service Law, Laws 1889, pp. 802, 805. c. $70, $13, 15, and rule 26 of Buffalo civil 1048 OFFICERS AND PUBLIC EMPLOYES SS 4B. 10 Cur. Law.

ment of statutory officers. \[29\] When it is the duty of the mayor to appoint an officer and he fails to do so, the council may select one, \[36\] but under a city charter providing that a commissioner of public works shall be appointed by the mayor with the consent of the council, the council has no power to make such appointment. \[41\] Though appointment to office is in its nature an executive act, it does not follow that the ,power to make appointments to city and town offices must be vested in the executive officer of such municipal corporation. \[32\] The office of mayor of New York City is a local office which must be filled by election or appointment from local officers. \[33\] Where by law an office is to be filled by election, it cannot be filled by appointment. \[34\] The question as to whether an officer has been rightfully appointed as provided for by statute cannot be determined in an action for his salary. \[35\] The certificate of the municipal civil service commission, that the persons named therein have been appointed or employed in pursuance of law, must appear upon the pay roll of each department of the city. \[36\] (SS 4) _B. Filling vacancies and promotions._ See 5 C. L. 1998 The word "vacancy" has no technical meaning but must be understood with reference to the context in p. 200, No. 146, three county road commis- \[37\] Ct. Rep. 958, 101 SVP 263), and the city counisoners were appointed, two by county clerk \[38\] and one by mayor of Detroit, such election \[39\] police and fire commission, nor to endeavor or appointed as required by Const. art, 4, to prevent performance of anne, nor to pass \[36\] (SS 49, Wayne County Road Com's v. Wayne County Auditors, 148 Mich. 255, 111 NWP 001.

Antonton V. Tobin \[Tex. Civ. App.\] 18 Tex. Ct. The fact that county supervisors recognize \[37\] such road commisomers as officers does not \[38\] providing for state board of architecture. validate an appointment under an unconsutiutional statute. \[39\] (SS 20). The mayor of Newburyport has power to appoint police officers subject to con- \[38\] formation or rejection by board of aldermen.

Lattme v. Hunt \[Mass.\] 81 NE 1001. Section 165 of charter of city of Portland, providing \[38\] for appointment of officers by mayor, does not apply to coaleses of officers \[39\] not otherwise provided for at the time of the appointment. MacDonald V. Lane \[Or.\] 90 P \[39\] 181. In Massachusetts the manager of a municipal lighting plant has the power of his atmosphere and discharging the employees thereof. After adoption of St. 1881, p. 949, c. 370, as amended by St. 1883, p. 1556, c. 454, and 103 NYP 600.

St. 1805, c. 410, $ 3, amending Rev. Laws, c. 34, $ 20, by the city of Tauton, the mayor could not re-employ engineer discharged by the manager. Capron Y. Paunton \[Mass.\] 82 any other manner, and so long as the official NE 873. Provisions in 97 O. L. 111, and 98 O. L., requiring judges of court of common \[39\] plues to appoint four members of a court house commission, is not uncontitutional.

Mete v. McKensele, 9 Ohio C. C. (N. S.) 105, Mets v. Maddox, 183 V. 460, 82 NE 507.

The legislature of Kentucky may fix the number of policemen in elites of the second be filled by election. Matney v. King \[Okl.\] class by Laws 1006, p. 439, c. 113, amending Ky. St. 1893, $ 3140. Ex parte City of Palocuch, 81 Ky. L. R. 170, 101 SWP 88. Acts \[39\] 1868, p. 156, providing that board of trustees \[39\] of state chartable institutions shall elect \[39\] superintendent of state school for blind was repealed by Act 1807. Lucas v. Futrail \[Ark.\] 106 SWP 667. Ky. St. 1903, $ 312, does not authorize the appointment of a market maker by the board of public works. Potter v.

Bell, 30 Ky. L. R. 1314, 101 SWP 897. Under the charter of San Antonio, the power to ap- \[39\] point policemen and firemen is vested in the board of police and firemen is vested in the board of police and firemen is vested in the not in the mayor and city council (City of San Antonio v. Beck (Tex. Civ. App.) 18 Tex. Civ. App.

10 Cur. Law. OFFICERS AND PUBLIC EMPICES SS 4B. 1049 which it is found.37 Appointment to fill a vacancy cannot be made until the vacancy actually exists.38 One appointed to fill a vacancy holds until the appointment or election of his successor.39 An office may become vacant upon the decision by a competent tribunal declaring the election to such office void,40 or under the charter of San Francisco when the occupant is convicted of felony.41 Acceptance of a resignation is necessary in order to relieve an officer of responsibility and to create a vacancy.42 The power to fill vacancies is usually provided for by statute or constitution.43 Where power is conferred upon a city council to fill vacancies but the manner in which such authority shall be exercised is not prescribed, vacancies may be filled by ballot, vivec vote, or by the adoption of a motion or resolution declaring that the

37. State v. Herring \[Mo.\] 106 SVV 984, chapter, and does not provide for a vacancy 38. Under Port Jervis city charter, Laws \[vuring while senate is in session. Id. 1907, p. 2114, c. 752, $ 20, the death of a su- \]. Cont. art. 7, $ 5, authorizing governor to fill \[vscancies in offices not otherwise provided \]. not create a vacancy, and a common council for by the constitution, applies to vacancies whose life ended on Dec. 31, 1907, had no occurring in offices to which incumbents are \]. power prior to that date to appoint a successor. Palmer v. Stubley, 108 NYS 600, and not to those which are filled by governor 38. Under Rev. St. 1899, $ 927, $247, the term of collector of revenue appointed by the \]. How well a service on first Monday in-March, 1907, filling of vacancies occurring during a session of general assembly, etc., only provides until that time. State v. Herring \[Mo.\] 106 for filling of vacancies by resignation and \]. SVV 984. The words "for the balance of the \]. not those caused by death or some other unexplored term" indicate that the intention \]. The provisions of the general of the legislature was that at the time of fill- \]. In office apply to the office of alderman of \]. Palmer v. Stubley, 108 NYS 600. One appointed to fill a vacancy in the \]. of the act governing ctltes of this class, nor office of alderman of a city of the first class of the ordinances enacted thereunder, are in-having more than 40,000 and less than 100,000 \]. Consistent with Comp. St. 1905, c. 26, $ 105, inhabitants holds only until the next regu- \]. State v. Schroeder \[Neb.\] 113 NW 192. lar municipal election. State v. S. Schroeder \[Neb.\] 113 NW 192. Under Const. art. 5, $ 11, special election by governor to fill vacancies \]. In county offices for unexplored terms, and to fill a vacancy holds office untill his successor has been elected or appointed and qualified the election, held under act Jan. 23, fled. State v. Herring \[Mo.\] 106 SWV 984. 1875, $ 66, and KIrby's Dig. $ 7891, a general \]. Under Pol. Code, $ 986, an office became \]. appointment by governor to fill vacancy in vacant where court declared an election void \]. Office of county and probate judge without \]. on ground that the person elected, but failed to qualify and take possession of the office, \]. The reason why \].

person therein named be appointed,44 and the mayor cannot veto a resolution making such appointment.45 Under the statutes of Mississippi the election of a person to an office not qualified therefor is the same in effect as if there had been no election, and the failure of such person to qualify does not create a vacancy to be filled by a general election in certain instances.46 U'nder the New York City charter, a policeman promoted from patrolman to roundshan for an act of heroism is not entitled on a civil service examination for further promotion to credit for such act.47

## 5 Right to office and remedies to enforce same

\_A. Indicia and evidence of right.\_See s C. L. 1199--There is no such thing as title or property in a public office,48 but one who has been elected to an office and who fails to qualify by filing the bond is the incumbent, although he never was in possession of nor performed any duty in connection with the office.49

Footnote 49: The author is grateful to the anonymous referee for the support of the National Science Foundation.

(SS 5) \_B. What remedy.\_See s C. L. 1199--Quo warranto,50 and not certiorari,51 njunction,52 or mandamus, is the proper remedy to try title to public office.58 A writ of review will be granted to determine the right to an office, where an appeal will probably not be determined before the time for which the office is claimed would expire.54 Injunction may be resorted to by the incumbent of a public office to protect his possession against interference by an adverse claimant until the latter establishes his title,55 and he cannot be dispossessed by the exercise of the power of removal and the appointment of a successor, but only by an intrusion into office suit,"66 In Arkansas where the title to an office is contested, the plaintiff may bring an action at law to recover the possession thereof from defendant."57

(SS 5) \_C. Procedure and practice in particular remedies.\_See S. C. L. 1200_Procedure except as the same is affected by the fact that title to office is involved is elsewhere treated."58 Original jurisdiction in quo warranto is sometimes conferred on appellate courts."59 Quo warranto may be brought to try title to an office by one having a sufficient interest therein,"60 but not persons having no interest in an office differing from other members of the general public,"91 and one in possession of an office though he is a usurper, will not be removed at the suit of one who has no interest therein."62 Relator must allege facts showing present right to possession of the office."68 After the filing of an information in the nature of a quo warranto by the attorney general or prosecuting attorney, the latter officer may, under the statute of Missouri, discontinue the proceeding without the consent of relator."64 Under statute regulating actions to try title to office, the requirements of the statute must be complied with."69 The title to an office within the civil service laws cannot be tried in an action for salary."66 Under the New York statute, in an action by the attorney general against a person unlawfully holding a public office, the party entitled thereto is not a necessary party,"67 but the opposing candidate is,"68 and judgment may be given

himself against an adverse claimant whose term has expired but who threatens and attempts to interfere with him in the discharge of his duties. Palmer v. Zeigler, 76 Ohio St: his right to such writ the information or complaint must allege such fact. State v. charge of his duties as superintendent of Bell \[Int.\] 82 NE 69. A taxpayer may main-tain such action to try title to office of coun-plain filed by defendant, held sufficient. Lucas V. Futrall \[Ark.\] 106 SWV 66. In such action we selected halfweight to show that plaintiff was in possession of office at commencement of action and therefore entitled to recover. Id. But it is not the proper remedy to restrain a poor house superintendent from interfering with his successor only appointed by the county board of commis-ioners. In such case quo warranto is proper proceeding. Sanders v. Belue \[S. C.\] 58 SE 762.

56 Removal by governor of members of a parish school board from office and appointment of new board, held that members of old board were entitled to protect their possess-sion of office by injunction. Jackson v. Powell, 119 La. 882, 44 889.

57. Under Kirby's Plig. # 7891, 7983, 7987, 7988. Suit in equity to restrain interference with plaintiffs possession is improper. Lucas v. Futrall \[Ark.\] 106 SWV 667.

01. See Certiorari # C. L. 542: Injunction, 10 C. L. 246: Mandamus, 10 C. L. 662: Quo warranto, 8 C. L. 1582.

01. jurisdiction is not conferred upon supreme court by Gen. Laws 1896, e. 263, % 2, to try title to such office. Greenough v. Lucey

\[R. L.\] 66 A 300.

60. A person in undisturbed possession of office of police Judge of city of Chanate cannot maintain such action to sund judge of city court holding his office under provisions of act establishing that court, merely because such person suffers a loss of fees incident to the prosecutions of offenders against the city ordinances in the new court. Baughman v. Nation \[Kan.\] 92 P 548. A claimant receiving the next highest number of votes to an ineligible candidate has not such an interest, unless the votes cast for the ineligible candidate were made with full knowledge of his eligibility, and to show his right to such writ the information or complaint must allege such fact. State v. Belief \[Int.\] 82 NE 69. A taxpayer may main-tain such action to try title to office of coun-plain filed by defendant, held sufficient. Lucas v. Futrall \[Ark.\] 106 SWV 66. In such action we selected halfweight to show that plaintiff was in possession of office at commencement of action and therefore entitled to recover. Id. But it is not the proper remedy to restrain a poor house superintendent from interfering with his successor only appointed by the county board of commis-ioners. In such case quo warranto is proper proceeding. Sanders v. Belue \[S. C.\] 58 SE 762.

01. Removal by governor of members of a parish school board from office and appointment of new board, held that members of old board were entitled to protect their possess-sion of office by injunction. Jackson v. Powell, 119 La. 882, 44 889.

01. Under Kirby's Plig. # 7891, 7983, 7987, 7988. Suit in equity to restrain interference with plaintiffs possession is improper. Lucas v. Futrall \[Ark.\] 106 SWV 667.

01. See Certiorari # C. L. 542: Injunction, 10 C. L. 246: Mandamus, 10 C. L. 662: Quo warranto, 8 C. L. 1582.

01. jurisdiction is not conferred upon supreme court by Gen. Laws 1896, e. 263, % 2, to try title to such office. Greenough v. Lucey

\[R. L.\] 66 A 300.

60. A person in undisturbed possession of office of police Judge of on the right of the party alleged to be entitled thereto." The judge of the district court has not power to pass upon the-title of claimants to the office of clerk of such court.70 Where there is a dispute as to who are the regularly elected members of a local executive committee, when the question has been determined by the proper tribunal within the party, the court will enforce the rights of the regularly constituted committee.71

SS 6. \_Induction into office.\_See s c. L. 1201--It is generally required by statute or constitution that an officer before entering upon the duties of his office shall take an oath.72 Oath of office should be filed within a reasonable 73 or specified time.74

SS 7. \_Nature of tenure, and duration of term.\_See s c. L. 1201--An officer who has been elected to a term of office which has a certain date of commencement is not entitled to the office before such date.78 It is usually provided that an officer shall continue in office until his successor is elected or appointed and qualifies.78 Where

to the office and facts showing his rights

74. Pol. Code, $ 907, providing for time

thereto does not make such person a neces-

with which oath of office should be filed,

sary party. People v. McClellan, 54 Misc. 130,

does not apply where a contest le pending for an office. People v. Wilson \[Cai App.\]

105 NYS 844.

68. So held under N. Y. Code Civ. Proc.

91 P 661.

819 1948, 1949, where complaint alleged that

75. State v. Herring \[Mo.\] 106 SW SW 984.

according to vote cast opposing candidate

76. Const. $ 3, art. 10, providing that no

and not defendant was entitled to office, so

person shall be eligible to office of aheriff or

that a judgment declaring one elected must

country treasurer for more than four years in

declare that the other was not. People v. McClellan, 119 App. Div. 416, 104 NYS 447.

76. Hadl that the term "party" as used in

of office of state and county offices to constitu-

N. Y. Code Civ. Proc. 1 1949, means a party

to the action. People v. McClellan, 119 App.

119.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.

10 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 7. 1053

neither the constitution nor the statutes fix the term of office the appointee holds at the pleasure of the appointing.power, though it attempts to fix a definite term, but where a board is empowered by statute to appoint an officer, but fails to fix the term, such term is coextensive with the term of the board." Where two school trustees are elected at the same time to fill a two and a three year term, such officers may agree as to which term each shall fill, where the statute provides no method for such determination." By statute in Kentucky it is made an offense for any person to hold any office after his election thereto has been declared illegal by a court of competent jurisdiction." Where a statute providing for the appointment of an officer makes no distinction between regular appointments and those to fill vacancies occurring during the term, an appointee to fill an unexpired term holds office for the full term from the date on which such term begins." The constitution of Missisippi requires that officers be appointed for a definite period of time." Under the regulations of the civil service commission, temporary appointments shall not continue for a longer period than one month." An incumbent has no title to an office after the expiration of his term," and at that time when a certificate of election has been issued to another who has qualified thereunder, he should surrender the office to his successor." The delegation of power to appoint a subordinate officer, if the length of his term is not fixed, confers upon the appointing power authority to determine its duration."

Err. & App.1 67 A 186. Act Feb. 15, 1805 (P. L. p. 14), changing time for election of off- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or- or or- or- or- or or- or- or or- or or- or or- or or- 8. _Resignation, abandonment, removal, and reinstatement._ A. Resignation. See 8 C. L. 1703.--Acceptance is essential to the effectiveness of an express resignation." Implied resignation may result from acceptance of another office,"8 or, under statute, by unexplained absence from duty.89

(SS 8) \_B. Abandonment.\_See 8 C. L. 1203

(SS 8) \_C. Removal Power to remove.\_See 8 C. L. 1203.--The removal of an officer is not an exercise of judicial power.90 The legislative power to provide for removal being plenary.91 Power to remove one holding for a fixed term exists only by virtue of statute,92 such power not being incidental to the chief executive 83 nor to the power of appointment,94 but the power to suspend is.95 Where the term of an appointive officer is not fixed by law, he may be removed at the pleasure of the appointing power.96 In Massachusetts no person holding office in the classified serv 10 Cur. Law. OFFICERS AND PUBLIC EMPLOYES $ sc.

ice of the commonwealth or in any municipality can be arbitrarily removed during their term." The deputy tenement house commissioner of New York City cannot delegate the power to suspend a tenement house inspector to the chief inspector." The head of a municipal department cannot, at will, by assigning temporarily duties to a position created as an ordinary clerkship, transform it into a position which is excepted by statute from limitation upon the power to remove, and thus acquire the right to remove."

\_What constitutes a removal.\_See $ C. L. 1204.--Under a statute conferring upon a board the power to fix salaries of certain officers and employees, a removal effected by reducing the salary of an officer of one grade to that of another is valid until set aside.1 Where the power to remove at pleasure exists, the appointment of another person operates as a removal of the incumbent from the time he receives notice of the appointment,2 but an order directing an officer to return home, payment to cease on such return, is not a discharge."

\_Grounds of removal.\_See $ C. L. 1204.--"Removal for just cause" implies some misconduct upon the part of the officer or imputes to him some violation of the law,4 and where an officer is subject to removal only for specified charges, such causes must exist before he can be removed." In such case the order of removal must be based and founded upon some one or all of such causes and cannot be made for other causes." Conflicting duties," neglect of duty," causes which tend to unfit one for

Footnote 4: Under such circumstances, it is necessary that the charge against him shall be had done so and had been ordered not to be made.

1056 OFFICERS AND PUBLIC EMPLOYES $ 8C. 10 Cur. Law. office,9 and conduct unbecoming an officer may constitute grounds for removal.10 Whether charges are sufficient to support a removal cannot be raised after the hearing which resulted in the removal.11 Ineligibility existing at the time of the appointment of a police officer is not a ground for removal under statute in New Jersey.12

Footnote 27: http

## 10 Cur. Law. Officers and Public Employees $ 8C.

A police commissioner of the city of New York cannot dismiss a member of his force based upon proceedings had before his predecessor where the charges were pending at the time he entered office, and which, although tried, had not then passed to final judgment \[22\]. Under the municipal service rules providing for transfer of employees from one department to another, an employ cannot be deprived of his office or salary by refusal of the head of the new department to recognize the act of his predecessor \[23\]. By charter of the City of San Diego it is provided that in proceedings for the removal of municipal officers the petition shall contain a statement of the grounds upon which such removal is sought \[24\]. Officers elected or appointed for a definite term, during good behavior, subject to removal for specified causes \[25\], and persons holding civil service positions \[26\], cannot, except by statutory \[28\].

## 11 22. Elder v. Bingham, 118 App. Div. 25, 103

44 1-2 hours' notice only, the action of the police commissioner before whom he was tried, In dismissing him, held to be illegal, Ice rule 14 have been compiled with a Peeople v. Bingham, 123 App. Div. 226, 107

MYS 1063. Chief grain inspector of state of president ofborough of Queens transferred to another department, will not thus be de-prived of position and salary where he

reasonable notice of charges, and' a hearing stands ready at all times to comply with

although notice is not in terms required by

terms of his contract. Aken v. New York,

120 App. Div. 539, 104 NYS 919. Upon the

request of the appointing officer stating the facts with reference to a proposed transfer

accompanied by the written consent of the

from position of courthouse janitor without appointing officer from whose jurisdiction

the transfer is to be made, the commission

will if the transfer be in accordance with

law and the provisions of these rules, issue

its certificate to that effect. Id.

24. Under Chapter 4, $ 4, amending art. 1

of charter as approved by resolution of

legislative Feb. 3, 1905, petition to common

council demanding an election for removal

of one of its members and election of his

successor held off-Micent. Good v. San Diego

charged salios and soldiers in service of

Common Council \[Cal. App.\] 9 P 44. It is

state shall only be removed after notice and

the duty of the council to call an election

hearing, apply only to subordinate positions,

where the petition bears proper number of

names as shown by certificate of clerk. Id.

may be removed from office by state comp-

Under statute requiring certificate of clty

clerk as to the result of his examination,

held that his certificate that he had com-

Givnn, 56 Misc. 35, 106 NYS 956. Under Laws

pared names on petition with great register

1901, D. 636, c. 466, 8 1543, held that a tenc-

and found it sufficient was a sufficient com-

ment house inspector was properly dis-

pliance with statute. Id. Under Greater

New York charter $ 1843 (Laws 1901, p. 636),

notice to typewriter copyright of charges of

incompetency, and an opportunity to appear

held to allow a reasonable time. People v.

Butter, 54 Misc. 18, 103 NYS 883.

25. The cause for removal must be deter-

mined after notice to officer and an opportunity to be heard. Porter v. Murphy \[Ind.

T.\] 104 SWV 658. Attorney employed by chief

of Muskogee Nation under act of council

thereor cannot be removed except after hearing.

1. Id. Where there is no legal proof that

a policeman was discharged without notice

of charges, his dismissal is unlawful. People

v, Bingham, 108 NYS 684. Under Act 1907,

nether the board of trustees of state char-

table institutions, nor the board of control,

can discharge superintendent of state school

for blind except for grounds specified, and

after notice and hearing. Lucas v. Futrail

\[Ark.\] 106 SWV 667. Under a department

quiring that notice of trial shall be served

on defendant not less than 48 hours before

trial, where a police officer was tried upon

10 Curr. L--77.

authority," or unless such rights have been waived, be removed without notice and a hearing." But suspension from office without notice is not a deprivation of property without due process of law," and one holding at the pleasure of the appointing power may be removed without notice and without cause." A claim of exemption from removal must be promptly asserted." It is proper for a police rule to provide that a patrolman shall be suspended, pending hearing of charges against him."

_Nature of Proceeding,"_ See s C. L. 1206.--The proceedings to oust an officer are not criminal."

_Appeal and review of proceeding,"_ See s C. L. 1206.--Where removal proceedings are of a judicial or quasi-judicial nature, they may be reviewed by certiorari." A review must be seasonally pursued or it is lost."\_ The incumbenoy of a public office will not be changed by the decision of an intermediate court while an appeal is being prosecuted to a final hearing in the supreme court."\_ Where a person is given a special remedy by statute to review proceedings against him in case it results in his removal, or attempted removal, he is not entitled to an absolute writ of prohibition."\_ On certiorari to review removal of employ in tenement house department without a hearing, the question must be determined entirely on the return and the opportunity to explain, may be removed 1085.

_Thomas \[Tex.\] 19 Tex. Ct. Rep. 680, 104 SWV upon a substantial charge without judicial 1085._

_Nearing, or right to produce witnesses on his own behalf to testify as to reasons assigned_

_Nature of Proceeding,"_ People v. Butler, 120 App.\_

_Nive is under the control of the board of_

_Nive is 807, 105 NYS 606._

_Held that he had suf_

_Held that he's removal was valid._

_Nive is 807, 105 NYS 606._

_Nive are employee in the public servo_

_Nive becomes aware of the intention of his_

_Nive is 807, 105 NYS 606._

\_Nive is 807, 105 NYS 606.

allegations in the petition cannot be considered.88 The courts have no corrective power with respect to the exercise of the discretion reposed by law in a civil service commission as a quasi-judicial body,89 hence, where9 it has jurisdiction and proceeds according to law, the courts will not review its acts.40

_Effect of illegal removal._--A veteran laborer employed by a city under the civil service, who has been illegally discharged or suspended is entitled to a recovery for damages.41

(SS 8) \_D. Reinstatement.\_See 8 C. L. 1200--Unless an officer has been guilty of unreasonable delay,42 he is entitled to relief by mandamus, if illegally removed.43 The only question determinable in such a proceeding is the prima facie right to possession.44 A petition for mandamus to compel a borough president to reinstate a person excluded from the position of head of the bureau of highways must allege that such bureau was created by charter, or an official given power under the charter to create bureaus.45 Mandamus will not lie to reinstate inspector of police to office, where he has neglected to apply for a new trial before board of police,46 nor at the instance of relator holding prima facie title to the office of register of deeds to com.

38. If return is insufficient, the remedy of relator is to ask court to'require a further ruthen, People v. Butler, 108 NYS 848. The order of the board of railroad and warehouse commissioners removing chief grain inspector without complying with provisions of Rev. St. 1899, 8 7662, is without jurisdiction and void, and is reviewable on certioral. She was unlawfully transferred by the board of State v. Knott, 207 Mo. 167, 105 SW 1040.

01. Refusal of commission to grant new trial sought on grounds of new evidence will not be renewed. People v. Powell, 127 Ill. App. 614. The courts will not review an exercise of executive discretion or judgment in removing an officer. Removal of fire mandrels are executive in its nature and no appeal will lie to the courts. Darst v. Kirk, 230 Ill. 521, 82 NE 852.

01. Feldman v. Chicago, 126 Ill. App. 186. The question of the jurisdiction of the trial board cannot be raised for the first time upon appeal. People v. Powell, 127 Ill. App. 614. Tacts held not to constitute an answer to defendants' liability, Ransom v. Boston \[MAss.\] 81 NE 988.

01. In New York, mandamus proceedings to reinstate one who has been removed from office must be brought in four months' by analogy to certioral proceedings. People v. New York Ahearn, 120 App. Div. 95, 104 NYS 860. Mandamus refused where veteran volunteer fireman, certified from civil service list for appointment as medicine clerk of department of health, did not make application therefor, until six months after dismissal by board of health, and the fact that he was advised by lay acquaintances that he was without legal remedy was no excuse. People v. New York Board of Health, 56 Misc. 56, 108 NYS 823. Delay in making application for mandamus to compel tenement house commissioner to restore typewriting copyist to her position, which was caused by conflicting decisions of court of appeals, resulting in a mistaken application for a writ of certioral to review the removal, held not to constitute laches. People v. Butler, 54 Misc. 18, 103 NYS 583.

01. State v. Baldwin \[Ohlo\] 83 NE 907; People v. Cahill, 198 N. Y. 489, 81 NNE 453. Latting v. Hunt \[MAss.\] 81 NE 1001.

1060 OFFICERS AND PUBLIC EMPLOYES SS 9. 10 Cur. Law.

pel the judge of the district court to enter an order recognizing him as such." Where an alternative writ of mandamus has been issued to restore a person to office from which he has been wrongfully suspended, if it appears that he has not suffered any substantial loss by such suspension, and that the period of suspension expired before the time for hearing the application for a peremptory writ, the court in its discretion may quash the alternative writ and enter judgment for dismissal with costs." Where a person is restored by mandamus to a position in the public service from which he was unlawfully discharged, he is entitled to perform the same duties that he was discharging at the time of his discharge."

SS 9. _Powers and duties._\[See S. C. L. 1209--Only such acts of officers are official as are done under some authority derived from the law or in pursuance of prescribed duties," and a city officer must show that a power which he undertakes to exercise has been conferred by legislative grant." It is presumed that an officer has done his duty," and that the acts of officers are within their authority." It will be presumed that a deputy clerk in whose name a jurat to an afflavit was made was a de jure officer." Where a ministerial officer is not a party to nor has any interest in a proceeding, he is not estopped from disputing the verity of his own official act." Powers and duties of officers and employees are generally prescribed by statute, constitution, and city charters," and in the absence of constitutional restriction the

47. Eberle v. King \[OKl.\] #S P 748. .

01. Hartwig v. Watertown \[VWs.\] 112 NWV 219. The term "pre-

01.

01. People v. Stevenson, 108 XYS 860.

01. Authority given by board of selectem

describing duties of officers mentioned, means to build bridge on premises of plaintiff held

described by some statute of the state and not an official act. Chase v. Cochran, 102 Me.

411, 67 A 320. The civil service commission

may change the duties of an office, abolish

513. These 507, 106 XYS 624. The power and an office, and require a new examination for

dutties of the mayor of New York City in the

promotion. If done in good faith. People v.

Appointment and supervision of commission

Cook County, 127 III. App. 401.

51. People v. Healy, 231 III. 629, 88 NE 453.

Statutes delegating powers to public officers

are to be strictly construed. Diederich v. Rose,

offices of the city, are regulated by Greater

228 III. 610, 81 NE 1140. A state treasure

New York Charter, Laws 1887, 9. 35, 378,

may not retain state monies to refinburse

119. Lawks 1878, 9. 513, 5. 835, amended by

himself for costs paid for state. He has no

Dawes 1882, p. 29, 5. 410, 110, and Laws 1884,

power to incur or pay any expense of his

608. 516, and Laws 1897, 9. 34. 678, 9. 115,

office beyond what had been provided for by

sub. 3. In re Hertig, 120 App. Div. 117, 105

appropriate acts. Whittemore v. People, 227

NYS 765. The right given the commissioners

111. 483, 81 NE 427.

001. Hegan v. Louisville \[KY.\] 107 SWV 809.

001. 25, 878, 119, to determine the extent of

001. Under an ordinance providing funds

for a free department and for such special off-

misisoners. and they may pursue their incers as may be"necessary for fire protection,

"under the orders and appointment of the

the questions propounded to witnesses are

mayor," it will be presumed that the effect of

the latter clause was intended to apply only

inquiry. Id. Examination of such accounts

to such special officers as might be appointed

by mayor. City of San Antonio v. Tobin

{Tex. Civ. App.} 18 Tex. Ct. Rep. 919, 101 SWV

54. Southern R. Co. v. Hundley \[Ala.\] 44 S

01. Held that city engineer may testify

that the date of the filling of plans and specif-

dections for street improvements is incor-

rectly stated by his file marks thereon. Bar-

ber Asphal Paving Co. v. O'Brien \[Mo. App.\]

107 SWV 26.

56. Offers of municipal corporations

ganzled under legislative authority are, in

respect to all general laws having force and

57 operating within their municipality, agents

of the state, and may be charged with the

performance of such duties in the enforce-

1060 OFFICERS AND PUBLIC EMPLOYES SS 9. 10 Cur. Law.

pel the judge of the district court to enter an order recognizing him as such." Where an alternative writ of mandamus has been issued to restore a person to office from which he has been wrongfully suspended, if it appears that he has not suffered any substantial loss by such suspension, and that the period of suspension expired

before the time for hearing the application for a pere 10 Cur. Law. OFFICERS AND PUBLIC EMPICES SS 9. 1061

legislature may clothe an officer created by it with functions involving the exercise of powers which are executive, legislative, and judicial in character.57 The limit of the power of a public officer is the statute conferring the power, and what further power is necessarily implied, in order to effectuate that which is expressly conferred,58 and a statutory commission cannot by rule alter or enlarge the power conferred upon it by statute.59 Officers cannot wholly disregard directory statutes, and they must be substantially complied with.50

\_Effect of personal interest.\_58 ' C. L. 1120--An officer or member of a corporation or public institution cannot make a contract in which he is personally interested with any corporation, municipality, or public institution of which he is a member.61 Where no statute disqualifies a member of a board of town trustees from action in a-levy and assessment for street improvements because of interest, his act is only voidable.62

\_Acts of a de facto officer.\_58 ' C. L. 1211--To justify his own acts, an officer must show himself to be an officer de jure,63 but third persons whose interests are affected thereby need go no further than prove him to be an officer de facto,64 and he is estopped to deny the validity of the law under which he has assumed to act.65 One

92 P 785. Rev. St. 1901, par. 913, does not unnecessary. Evers v. Hudson \[Mont.\] 92

confer power upon a board of supervisors P 462.

to compromise an action for collection of taxes. Territory v. Gaines \[Ariz.\] 93 P 281.

The board of police of city of New Orleans Corporation' had reference to corporation has power to grant new trials. State v. New Orleans Police Com'rs, 119 La. 515, 44 S 283.

which the individual is a member, officer, or Under Code, 5 20, the determination of the secretary of the state of Iowa as to whether state printing and binding has been done. in compliance with law is conclusive and can-not be collaborated. State v. Young, 134 Iowa, 505, 110 NW 292. Under County Law, Laws 1852, 1756, 6.86, 56, the county board of supervisors shall keep books of record of their proceedings, for public indices updated March 14, 1867 (Laws 1867, de-rec. Wallace v. Jones, 122 App. Dlv. 497, 107 NYS 288. Where the board of county supervisors has allowed a member component for unauthorized services, their action cannot be sustained on the ground that what the board had the power to authorize it could ratify after service was rendered, and that the audit of a bill for services actually re-dered and expenses paid was equivalent to original authority. Id.

57. Eckerson v. Des Moines \[Iowa\] 115

01. 177.

01. But in the performance of ministerial duties expressly enjoined, when the mode of performance is prescribed, no further power is implied nor has the officer any discretion.

Ex parte Farrell \[Mont.\] 92 P 785. A county attorney who is required by law and by order of country board to institute actions for benefit of county may bind county to pay the reasonable and necessary expenses incident thereto. Christner v. Hayes County \[Ne.\] 112 NW 347.

59. Where under civil service Laws 1899, p. 807, c. 370, $ 19, the commission is required to certify the pay roll of one who has been duly appointed to the position assigned him even though he has not performed duties appropriate to the position, the board cannot by rule change the effect of the statute. People v. McWilliams, 56 Misc. 296, 106 NYS 459.

01. A strict and technical compliance is 1063 OFFICERS AND PUBLIC EMPLOYES SS 9. 10 Cur. Law. elected to an office created by an unconsutritional statute is a de facto officer and his acts are valid until declared unconsutritional by the courts.\[66\]

_Delegation of powers.--A public officer cannot delegate to others the performance of his official duties.\[67\]_

_Mode of official action.\[See 8 C. L. 1212--Individual members of a public board possessing deliberative functions have no authority to bind the body by individual action.\[88\] By statute in some states creating boards, it is provided what shall constitute a quorum to perform the duties of the office.\[89\] In Illinois it is the duty of the town clerk as clerk of the drainage commissioners to keep in a book a record of their proceedings and to enter therein all findings and orders of the commissioners on the subject of drainage,\[70\] and meetings of such commissioners for the levy of assessments should be held within the boundaries of the drainage district.\[71\] After notice to the commissioners and the clerk,\[72\] but after such notice, a majority of the commissioners may hold a legal meeting.\[73\]_

\_Judicial control or review.\[See 8 C. L. 1212--Mandamus will issue to compel the performance of an act specially enjoined as a duty resulting from an office,\[74\] and the relator must have a clear legal right to have the act performed by the officer or board to whom the writ is directed,\[76\] but mandamus will not issue to compel the performance of an act within the discretion of the officer.\[76\] A county auditor will not be compelled to issue a warrant to a county officer who has been appointed under an unconsutritional statute.\[77\] Where the common couneli which is the auditing board of a city has passed upon a claim, it becomes res adjudicata, and a subsequent council has no power to review such judicial action.\[88\] A board of fire commissioners

under void ordinance estopped to deny lia-

**71, 72, 73. People v. Carr, 231 Ill. 502, 83**

**31**

**32**

**33**

**34**

**35**

**36**

**37**

**38**

**39**

**38**
10 Cur. Law. OFFICERS AND PUBLIC EMPLOYS $ 10B. 1063

ers has no power to rescind the judicial determination of a former board." A municipal body required to keep a history of its proceedings cannot properly be judicially compelled to efface any such history from its records upon the grounds that the proceedings were erroneous." The rule that an action will not lie to enjoin state officers from doing acts required of them by state laws, although such acts when performed will constitute a breach of a contract entered into by the state, does not apply where state officers are proceeding under color of an unconstitutional law to violate a contract with an individual to his irreparable injury."

SS 10. \_Liabilities of public officers. A. Civil liability.\_See $ C. L. 1213--One who is merely de facto a judicial officer is not personally liable for the exercise of judicial functions, even though his acts be corrupt," but one who affects or purports to act by virtue of authority appertaining to an office which does not in fact exist is personally liable for his acts." A public officer is liable to a private individual for any injury he may sustain in consequence of the officer's neglect to properly perform a ministerial duty in which such individual has a special and direct interest," and where such injury is the proximate result of the officer's neglect," but a board of supervisors, in auditing claims against a county, exercise a judicial function, and if they act within their jurisdiction they cannot, in the absence of fraud and collusion, be held personally liable for their audits." A public officer is not responsible for the acts of his subordinates properly employed by him if they are not in his private service, but are themselves servants of the government." In an action for oppression in office, the question of probable cause is not involved though a showing of malice on part of defendant is necessary." The amount of interest recoverable may depend on the circumstances."

(SS 10) \_B. Criminal liability.\_See $ C. L. 1215--Public officers are criminally liable for malfeasance and misfeasance in office." The members of a fiscal court while

\*\*SS. A tax collector held not liable to plain- a fire company without notice or hearing upon recommendation of chief of city fire department, such proceeding may be reviewed by a subsequent board. Uleccht v. Allen, $3

Misc. $30, 105 NYS $84. $86. Before such board can be held respon- sabb for an illegal and collusive audit of their brills under Taxpayer's Act, Laws 1881, p. 709, c. 531, as amended by Laws 1887, p. 885, c. 673, and Laws 1892, p. 620, c. 301, as $28, Vanner v. Thompson \[Ga. App.\] 60

**SS.** A tax collector held not liable to plain- a fire company without notice or hearing upon recommendation of chief of city fire department, such proceeding may be reviewed by a subsequent board. Uleccht v. Allen, $3

Misc. $30, 105 NYS $84. $86. Before such board can be held respon- sabb for an illegal and collusive audit of their brills under Taxpayer's Act, Laws 1881, p. 709, c. 531, as amended by Laws 1887, p. 885, c. 673, and Laws 1892, p. 620, c. 301, as $28, Vanner v. Thompson \[Ga. App.\] 60

**SS.** A tax collector held not liable to plain- a fire company without notice or hearing upon recommendation of chief of city fire department, such proceeding may be reviewed by a subsequent board. Uleccht v. Allen, $3

Misc. $30, 105 NYS $84. $86. Before such board can be held respon- sabb for an illegal and collusive audit of their brills under Taxpayer's Act, Laws 1881, p. 709, c. 531, as amended by Laws 1887, p. 885, c. 673, and Laws 1892, p. 620, c. 301, as $28, Vanner v. Thompson \[Ga. App.\] 60

**SS.** A tax collector held not liable to plain- a fire company without notice or hearing upon recommendation of chief of city fire department, such proceeding may be reviewed by a subsequent board. Uleccht v. Allen, $3

Misc. $30, 105 NYS $84. $80. $86. Before such board can be held respon- sabb for an illegal and collusive audit of their brills under Taxpayer's Act, Laws 1881, p. 709, c. 531, as amended by Laws 1887, p. 885, c. 673, and Laws 1892, p. 620, c. 301, as $28, Vanner v. Thompson \[Ga. App.\] 60

**SS.** A tax collector held not liable to plain- a fire company without notice or hearing upon recommendation of chief of city fire department, such proceeding may be reviewed by a subsequent board. Uleccht v. Allen, $3

Misc. $30, 105 NYS $84.

1064 OFFICERS AND PUBLIC EMPLOYES SS 11. 10 Cur. Law. acting in a judicial or quasi judicial capacity are not criminally liable for error of judgment where they act honestly and with good motives,\[91\] and under the statutes of Kentucky a member of such court upon conviction of malfeasance in office may appeal to the court of appeals.\[92\] The burden is upon the state to prove that a county official has committed an act contrary to law.\[93\] On prosecution for misappropriating public funds, evidence to show guilty knowledge is admissible.\[94\] Under an act of congress it is an offense for officers and employees of the United States to solicit or receive contributions for any political purpose from any of its officers, clerks, or employees, nor can any person solicit such contributions in any room or building occupied in the discharge of official duties by any officer or employe of the United States mentioned in the civil service act, or in any navy yard, fort, or arsenal.\[95\]

SS 11. _Liability of public for acts of public officers.\[See 8 C. L. 1217.--A state 96\] or city, in the absence of special statute, will be held liable for the tortious acts of public officers,\[97\] and the approval of a claim against a city by an officer without authority to do so is ineffective,\[98\] but such an act may be confirmed and ratified by the city.\[99\]_

SS 12. \_Official bonds and liabilities thereon.\[See 8 C. L. 1218.--An official bond is one prescribed by public law,\[1\] its approval may be compelled,\[2\] and its validity is not affected by giving it to commissioners by their official title instead of to the county in its corporate name.\[9\] Statutes giving a remedy on the bond will be construed, if the words permit, so as to advance the remedy and cure the misheif,\[4\] hence, an officer and his bondsmen are liable upon breach or neglect of duty constituting a breach of his official bond,\[5\] or where he defrauds the government,\[5\] or misappropriation.

10 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 12. 1065

ates public moneys, though he subsequently uses the money for the benefit of the government,7 and the bond may stand for the protection of several municipal divisions of the county.8 In an action by the United States on the bond of a disbursing agent, it is necessary to allege ' and prove facts sufficient to show a breach of the contract and damage in consequence thereof.10 Where such action is based upon a delinquency arising in his account after the execution of the renewal bond, the United States government may join in the same count an action upon the breach of the original and the renewal bonds.11 Any person damaged through the misconduct of an officer may maintain an action upon his official bond.12 Where after a county officer has given his official bond, his term of office is extended for a year by a statute changing the date of the election, the sureties on his official bond will not be held liable for any misconduct on his part occurring after the expiration of the time for which he was elected.13 Where written notice is required to be given the surety upon default of an officer, such notice may be waived by the conduct of the surety.14 Upon refusal of attorney, the state treasurer may maintain an action upon an official

incapable of rational construction. Id. Under St. 1898, $ 881, providing for accounting of reagardless of care used by such clerk. Lanvillage treasurer, his failure to pay over money in his hands as treasurer to his successor though without demand, constitutes a breach of his bond. Village of Prentice v. Nelson \[Wis.\] 114 NW 830. Complaint in action on such bond held to suffichellently allege v. U. S. \[Aris.\] 89 P 893.

a demand as against general demurrer where there was no application for greater specification as to how, and by what person, such demand was made. Id. Where the gross amount of the sum deposited in a bank selected as a state depository is within the penalties and terms of the bond, the sureties on such bond are liable for such sum and this even though a larger sum was deposited by state treasurer than was prescribed by state board of de-positors. State v. Pedersen \[Wis.\] 114 NW 828. In absence of bad faith, a county treasurer is not liable on his official bond for de-positing county funds in a legal repository in excess of depository bank's prior data share of such funds, is provided by $ 18, art 3, e. 18, Comp. St. 1903, unless amount of deposit exceeds sum which might lawfully be deposited under provisions of $ 20 of same chapter. Holt County v. Cronin \[Neb.\] 112 NW 861. Under $ 18, art. 3, e. 18, Comp. St. 1903, providing for deposit of public money held by county treasurer, in absence of bad faith, the latter is not liable on his bond for deposits such funds in excess of depository bank's prior data share, unless amount of such deposit exceeds sum which might lawfully be deposited under provisions of $ 20 of same chapter. Id. Under St. 1903, $ 2690, of Kentucky, the widow of a person killed by a town marshal while under arrest for a mis-demeanor may maintain an action on the bond of such marshal and his sureties. Growharger v. U. S. Eldily & Guarantamly Co., 31 Ky., L. R. 655, 102 SW 873. Under Ky. St. 1903, $ 3752, the amount of plaintiff's recovery is not limited to the penalty of the bond. Id. While punitive damages may be recovered of the marshal, only compensatory damages may be recovered of surety on his official bond. Id. Under Sayles' Ann. St. 1897, art. 1462, the sureties on official bond of clerk of court are liable for a deposit in court, which was placed in the county treasurer's bond given by a bank selected as a state depositary.\[15\] Sureties on an official bond are presumed to know that the state is not estopped by acts of misfeasance on part of its officers, and that it does not contract with such sureties given to it that other public officers shall perform their public duties faithfully.\[16\] The bond of a county treasurer elected to serve a second term should be approved by the board of county commissioners when he has accounted or stands ready to account for monies collected by him during his first term.\[17\] A contract to apply the unearned fees of a public office to the payment of the joint debt of the promise and the sureties on his official bond is against public policy and void.\[18\] In an action upon an official bond, a variance between the conditions relied upon in the declaration and in the bond is demurrable.\[19\] Prior to 1905, a citizen could not maintain an action upon the bond of a patrolman of the city of Omaha, there being no privity between the plaintiff and surety.\[10\] Where a county treasurer proceeds by notice and motion to recover of his predecessor money alleged to be due the county, the surety of such predecessor may enjoin such proceeding and the surety be permitted to make his defense in a court of equity.\[21\] Under the Virginia statute providing for settlement of accounts by the county treasurer with the board of supervisors, such settlement is only prima facie evidence of the balance in his hands at the date of settlement against a surety on his bond, conditioned upon the faithful discharge of his duties, but containing no contract of indemnity.\[22\] An action will not lie on an official bond to recover the statutory penalty for taking, charging, or demanding illegal or excessive fees.\[23\] In order to subject one to such penalty it must appear that he was an officer at the time of taking, charging, or demanding such fees,\[24\] and such action is barred if not brought within one year from the date of its accrual.\[25\]

SS 13. _Compensation.\[See S C. L. 1219--A salary is a determined and stipulated sum to be paid for a fixed period.\[26\] It is incident to the title to the office and not to the exercise of its functions.\[27\] The compensation of public officers and employees is usually fixed by law,\[28\] and they are entitled for the performance of their official -_

**15. St. 1898, SS 131, 152, 163, 984, construed.**

State v. Pederson \[Vhis.\] 114 N NV 828.\*\*

**16. State v. Pederson \[Vhis.\] 114 N NV 828.**

**17. Certain irregularities in disburning**

\*\*founds in his hands during his first term held not to constitute valid objection to his proposed settlement or approval of his bond for a fixed period.\[26\] It is incident to the title to the office and not to the exercise of its functions.\[27\] The compensation of public officers and employees is usually fixed by law,\[28\] and they are entitled for the performance of their official -\_

**15. St. 1898, SS 131, 152, 163, 984, construed.**

**State v. Pederson \[Vhis.\] 114 NPV 828.**

**16. State v. Pederson \[Vhis.\] 114 NPV 828.**

**17. Certain irregularities in disburning**

\*\*founds in his hands during his first term held not to constitute valid objection to his proposed settlement or approval of his bond for a fixed period.\[26\] The compensation of public officers and employees is usually fixed by law,\[28\] and they are entitled for the performance of their official -\_

**18. St. 1898, SS 131, 152, 163, 984, construed.**

**State v. Pederson \[Vhis.\] 114 NPV 828.**

**16. State v. Pederson \[Vhis.\] 114 NPV 828.**

**17. Certain irregularities in disburning**

\*\*founds in his hands during his first term held not to constitute valid objection to his proposed settlement or approval of his bond for a fixed period.\[26\] The compensation of public officers and employees is usually fixed by law,\[28\] and they are entitled for the performance of their official -\_

**18. St. 1898, SS 131, 152, 163, 984, construed.**

**State v. Pederson \[Vhis.\] 114 NPV 828.**

**18. State v. Pederson \[Vhis.\] 114 NPV 828.**

**19. State v. Pederson \[V.\] 115 NPV 828.**

**17. State v. Pederson \[V.\] 116 NPV 828.**

**18. Central irregularities in disburning**

\*\*founds in his hands during his first term held not to constitute valid objection to his proposed settlement or approval of his bond for a fixed period.\[26\] The compensation of public officers and employees is usually fixed by law,\[28\] and they are entitled for the performance of their official -\_

**19. State v. Pederson \[V.\] 117 NPV 828.**

**18. State v. Pederson \[V.\] 118 NPV 828.**
d duties to such compensation only as is fixed for that office,29 but not to any additional

\_and vehicles. State v. Mahoning County

Div. 477, 107 NYS 150. Provisions of amendCom'rs, 10 Ohio C. C. (N. S.) 398. A county

ment to special chater of Janesville, St.

surveyor is entitled to payment at the rate

1893, $ 925-80, authorizing payment of sal-

of four dollars per day for all the days of service of his deputies, though he may not

other officers of city, supersede all former

have been required to pay deputies at that

portions of such chater inconsistent there-

rate, or for all their days of service. Spafford v. State, 10 Ohio C. C. (N. S.) 185. Under

453.

charter of City of Rochester, providing that

20. A solicitor appointed by county com-

corporation counsel shall receive to his own

missengers under act May 22, 1895, at a cer-

use costs collected from adverse party in

atan salary, cannot claim compensation for

actions in which city shall be successful,

services rendered in proceedings to condemn

such counsel is entitled to taxable costs

1893, $ 925-80, authorizing payment of

where city was successful in foreclosing tax

68 A $ 482; Jacobs v. U. S., 41 Ct. C1. 452. Be-

Ilens, though the city became purchaser.

cause a taxpayer has knowledge that the

Sutherland v. Rochester, 189 N. T. 198, 82

mayor and aldemen have allowed a greater

NE 171. The salaries of the officers and em-

playes of the City of San Antonio, as fixed by

law, he is not estopped from requiring such

city council in March, 1983, was not changed

by city chater providing that all ordinances

Grimh \[Ala.\] 4S $ 785. Burns' Ann. St. 1894,

of city "now in force, not contrary to the

$ 6834, St. 1901, $ 6521, and 6522, do not au-

providions" thereof, "shall continue in force

thurize a county auditor to tax and collect

until repeated." City of San Antonio v.

Beck \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 953,

road taxes to township trustees. Jay County

101 SWV 263. The word "debt" as used in

Cam's V. Fike Civil Tp., 168 Ind. 558, $1 NR

charter of San Antonio, has no reference to

$ 489. Under Burns' Ann. St. 1901, $ 6525, 6527,

salaries of officers and employee, provision

Salary Law 1891, 2. 52, $ 125, incorporated

for the appointment of which is made in the

hnt act 1895, p. 355, as $ 124, demand fees, col-

chater, and the pay of policemen and fremen

lected by a county treasure from delinquent

is not a debt created by any officer of the

city but is one that arises from their ap-

appointment in the legal way and the per-

formance on their part of the duties and

positions to which they had been appointed.

Id. Under County Law, Laws 1892, $ 1750,

to $66, $ 28, and $ 10, p. 1745, providing for

the regular and special meetings of board of

county supervisors and their compensation

and mileage, the terms "annual meeting"

and "special session" are synonymous, and

"regular" or "special" session is to be meas-

ured, by its actual duration, and each day of

its duration is not a session within meaning

of law so as to entitle board to mileage for

his own use perquisites of office or other

each days actual attendance at its meetings.

Wallace v. Jones, 122 App. Div. 497, 107 NYS

288. Under County Laws, Laws 1892, p. 1750, c.

686, $ 23, members of the county board of

supervisors will not be allowed compensation for

services pursuant to a general understanding

that each shall look after the business in his

own town and report from time to time to

the board. Id. A county is not liable to the

county treasurer for commissions upon a

fund which he never handled but which was

raised by private donation and deposited

with ordinary, with the conditions imposed

that the ordinary should personally disburse

it in buying lot and in paying other expenses

in erection of public buildings for county

and that he should not pay if into county

treasury. Worth County v. Sykes, 2 Ga. App.

175, $ 8E.380. The act of March 2, 1875 (acts

1875, p. 286), fixing the compensation of the

transuer of Houston County at $400, held

constitutional at date of passage and was not

repaled by constitution of 1877. Moore v. Houston County, 128 Ga. 187, $7 SE 286. Section 1396a, fixing salaries of police vlarks in

first division and bor personal compensation,"90 nor to any increase allowed army officers in certain cases."81 A messenger in the bureau of buildings in the city of New York, who is also commissioner of deeds, is entitled to recover for his official services as commissioner in taking affidavits made by other messengers, unless the services were performed with the understanding that they should be a part of his duty as a messenger in the department for which he received a salary."82 An agreement by a public officer to serve for less than the compensation fixed by law is contrary to public policy and void." but where an officer performs services outside of his official duties, not interfering therewith, he is entitled to compensation therefor,"84 unless the services are prohibited."85 It is frequently provided that salaries of officers shall not be increased " or changed after his election or during his term of office,"87 and under such a constitutional provision the legislature may increase the duties incidental to an office without additional compensation therefor."88 None but a de jure officer can successfully claim compensation for his official services,"89 and by the common law he may recover the fees of the office received by a de facto officer,"90 and a judgment in quo warranto declaring the right of the de jure officer to such office is conclusive in an action for the recovery of the fees."11 The legislature may prescribe the number of hours which shall constitute a day's work for employees of a municipality and prohibit it from making contracts for services for a greater number of hours."42 Officers and 10 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 13. 1069

employes are entitled to compensation for their services only for the time they hold office or for actual service,\[43\] and an officer cannot recover for time during which he was lawfully suspended,\[44\] but is entitled to full compensation for the time he serves notwithstanding his removal.\[45\] Township trustees cannot bind the township by paying unlawful claims,\[46\] and may recover such payments collected of the trustees.\[47\] The acceptance of the services of a municipal officer, by the controlling board creates an implied contract on the part of the city to pay him for his services,\[48\] but a city will not be held liable for the services of an officer which it neither accepts nor rifies.\[49\] Power to fix the compensation of subordinate officers and employees is frequently conferred upon certain officers and official boards.\[60\] A city in making ap- tion to his regular per diem. Spafford v. for his salary during a period in which he State, 10 Ohio C. C. (N. S.) 185. 43. Under KIRby's Dig. $ 7468, a judge of a county and probate appointed to fill a va- cancy, but who had only served a month and two days, cannot draw a salary for a whole quarter. Cobb v. Hammock \[Ark.\] 102 SW SW sets suspension, and that during two winters of his service he was given continuous should be computed on the basis of a thirty- day month. Jacobs v. U. S., 41 Ct. C1. 452. 43. Government officer is entitled to compensate. (Ransom v. Boston \[Mass.\] 81 NE 998), and actually or constructively employed, or when a falloff to render services in the belief they was illegally discharged and entitled to reserve necessary and proper, or required to hold himself in readiness. Permission to make amplitid propriations to support a fire department cannot defeat the rights of the members to their salaries.\[51\] The right to an office must be shown to have been determined in favor of the plaintiff before he can sue for the incidental salary.\[52\] By statute contrary to the common-law rule, the successful contestant of an election cannot recover the salary paid to one holding the office pending the contest under a certificate of election.\[83\] The termination of a term of office implies the cessation of the salary of its occupant.\[64\] Under the charter of Portland, to entitle a person employed in the classified civil service to a warrant for his salary, he must show that he was appointed under the civil service rule,\[65\] and one who has not been regularly appointed according to the provisions of a city charter cannot recover for services while pretending to act as such.\[66\] Each county of an irrigation division, is liable for its pro rata share of the indebtedness to the superintendent of such division for his services.\[67\] The inspector of police of New York City, after reinstatement, is entitled to the salary attached to the position from the Gate of the order of reinstatement to the date on which he resumed his duties.\[68\] One who has been discharged from a position to which he=was not entitled under the civil service laws cannot recover on quantum merit for his services.\[69\] The allowance and payment of salaries of public officers fixed by law may be enforced by mandamus,\[90\] but does not issue except where upon both the facts and the law it clearly appears there cannot be a defense to the claim.\[61\] A member of the street cleaning department of the City of New York is not an incumbent of an office within the principle that his compensation is incident to and attached to it by law, irrespective of any service rendered to the city.\[62\] An employee may waive his right to higher compensation.\[83\] A

v. Blumberg \[Wash.\] SS P 708. It is compe- \[Denver upon consolidation of city and county, tent for the legislature to fix the salaries of county officers, leaving it to the county commissomers of the several counties to fix the bus elected had not expired. Orahood v. sum to be paid to deputies, assistants, book- \[Denver \[Colo.\] 91 P 1116. \[Keepers, clerks, and other employees. Theo-bal v. State, 10 Ohio C. C. (N. S.) 175, Un- \[Lane (Dor.) 90 P 181. \[C\] 96, Field under charter of City of Mt. Version of public employees which is not fixed by law must be approved by the board of exammer. \[Inters. The claim of istographer appointed by district judge under Laws 1899, pp. 111, 112, c. 72, SS 1, 2, for mileage, being a claim for compensation fixed by contract, the state auditor will not be required under Rev. St. \[Iss.\] 898, SS 946, enacted pursuant to Const. art. \[Iss.\] 899, SS 104, to draw a warrant for same until passed upon by such board. State v. Edwards \[Utah\] 93 P 720. Such board may in a proper case be subject to mzadamus. Id. \[Iss.\] 89. And this is true even though it may, thus been intended to give the mayor the au- \[the counties in such division.\] 89. Monterens parment appointed by him. City of Sand Antonio v. Tobin \[Tex. Civ. App.\] 18 Tex. Ct. \[Iss.\] 89. \[Iss.\] 90. \[Iss.\] 919, 101 SW 269. \[Iss.\] 92. The rule does not only exist when there has been an incumbent de facto, but may be invoked where plaintiff's salary has been re- \[Iss.\] 89. Cross v. New York, 123 App. Div. 917, duced from a higher to a lower grade and he \[Iss.\] 89. Deering v. New York, 107 NYS 934. \[Iss.\] 89. \[Iss.\] 93 P 720. \[Iss.\] 89. \[Iss.\] 94. \[Iss.\] 95. \[Iss.\] 96. \[Iss.\] 97. \[Iss.\] 98. \[Iss.\] 98. \[Iss.\] 99. \[Iss.\] 98. \[Iss.\] 99. \[Iss.\] 98. \[Iss.\] 99. \[Iss.

10 Cur. Law. PARDONS AND PAROLES. 1071

- police officer unjustly deprived of office must bring a suit at law to recover arrears of salary to which he is justly entitled. \[64\] The disbursing officer is required to account to the government for allowances made to officers in excess of their prescribed salary. \[65\] An act providing that the salaries of county officers shall be fixed under a rule based on population does not fail of uniform operation throughout the state. \[66\]
- Official Bonds; Opening and Closing; Opening Judaments; Opinions of Court; Options; Order of Proof; Orders for Payment; Orders of Court; Ordinances; Orstubs and Claims, see latest topical index.

## 1.2 FARDONS AND PAROLES."

There can be a pardon only after conviction, \[68\] but the power to pardon exists after conviction and pending appeal. \[69\] The pardoning power granted to the governor by constitution is not exclusive; \[70\] amnesty laws in no way conflict with such provisions. \[71\] A statute prohibiting the court from fixing or limiting the duration of a sentence is constitutional. \[72\] A constitution empowering the governor to grant pardons, after convictions, for all "offenses," does not authorize him to release one imprisoned for failure to perform a civil obligation required by order of court. \[73\] A pardon is a mere act of grace to which may be attached any condition not illegal, immoral, or impossible of performance, \[74\] and an acceptance of the pardon binds the prisoner to the conditions therein imposed. \[75\] A violation of a conditional pardon renders the same null and void and the convict liable to reimprisonment, \[76\] on determination of the fact of violation in the manner prescribed by the pardon itself, \[77\] or fixed by the pardoning power. \[78\] Detection of a prisoner reimprisoned on breach of parol beyond the expiration of the original sentence for the period which he has spent on parol is illegal where the parol is unauthorized by law. \[79\] The effect of a pardon pending an appeal is to absolve the prisoner from all

appointment performs duties of foreman but

scribed or released at the discretion of the continues to receive laborer's wages without

prison authorities, it is not different in prim-compliant, except to say that he should have

ciple from a statute which requires the immore, waives his right to salary of a fore-

position of a maximum and minimum sentence. Farrell v. Buffalo, 118 App. Div. 597,

103 NYS 340.

64 Lattime v. Hunt \[Mass.\] 81 NE 1001.

73 Ex parte Campion \[Neb.\] 112 NW 585.

65 Allowance made to Indian commis-

somers in excess of salary prescribed by contract. United States v. Hoyt, 158 F 162.

66 Theobald v. State, 10 Ohio C. C. (N. S.)

74, 75. Ex parte Houghton \[Or.\] 89 P 801.

175.

001. See $ C. L. 1224.

001. Ex parte Campion \[Neb.\] 112 NW 585.

The verdict of a jury is not such a conviction

as is subject to pardon under the convention

item. Id.

69. Cole v. State \[Ark.\] 106 SW 673.

01. State v. Boumann \[N. C.\] 59 SE 74.

01. State v. Boumann \[N. C.\] 59 SE 74.

Where the statute provides that no person shall be excused from testifying in regard to

a crime on the ground that his testimony might tend to incriminate him, and that he

shall be fully pardoned of any crime con-

cernling which he is required to testify, he is

entitled to immunity from prosecution for

such crime regardless of whether his testi-

mony was incriminating or not. Id.

72. This is not an unlawful invasion of

judicial or executive power. People v. Warden of City Prison, 105 NYS 651. The effect of such a statute is that the prisoners may

be retained for the maximum period pre-

scribed or released at the discretion of the

criminate. People v. Madden, 120 App. Div. 388,

105 NYS 564.

73. Ex parte Campion \[Neb.\] 112 NW 585.

01. Allowance made to Indian commis-

basters in excess of salary prescribed by contract. United States v. Hoyt, 158 F 162.

66. Theobald v. State, 10 Ohio C. C. (N. S.)

01. See $ C. L. 1224.

01. Ex parte Campion \[Neb.\] 112 NW 585.

The verdict of a jury is not such a conviction

as is subject to pardon under the convention

item. Id.

69. Cole v. State \[Ark.\] 106 SW 673.

01. State v. Boumann \[N. C.\] 59 SE 74.

01. State v. Boumann \[N. C.\] 59 SE 74.

Where the statute provides that no person

shall be excused from testifying in regard to

a crime on the ground that his testimony

might tend to incriminate him, and that he

shall be fully pardoned of any crime con-

cernling which he is required to testify, he is 1072 PARENT AND CHILD SS 1. 10 Cur. Law.

fines and punishment but leaves in force the judgment for costs of both courts, which, however, may be collected by civil suit only.\[80\]

An application for a rehearing before a pardon board must set forth relator's case.\[81\] The discharge of a prisoner by the warden of the penitentiary and the restoration to citizenship by the certificate of the governor, are ministerial acts and, to be effective, must be in compliance with law.\[82\]

PARENT AND CHILD.

**8 L. Custody and Control of CHILD. 1072. 8 4. Property Rights and Deeilings Between**

**8 Z. Snport and Necessary, 1074. 9 5. Services, Earnings and Injuries to CHILD. 8 5. Liability for Child's Terts, 1078. 1075.**

_The scope of this topic_ is noted below.\[83\]

**SS 1.**\_Custody and control of child.\[ See 8 C. L. 1225.--The parents,\[84\] the mother of an illegitimate child,\[88\] and, by statute, the adopter of a child by a deed of adoption, are the natural guardians,\[88\] the father if alive, the mother if he is dead, ordinarily having the primary right.\[88\] The death or disqualification of either parent devolves the guardianship upon the other.\[88\] This right of guardianship is not an absolute and uncontrollable one\[88\] but subject to judicial power in the interest of the happiness and well-being of the child.\[80\] Guardianship may be transferred to another by the consent of the parents if living in the manner provided by law.\[81\] It may be surrendered by voluntary abandonment of offspring,\[82\] and forfeited by such misconduct as renders them unfit guardians for the morals of the child.\[83\] In the latter case the general

\*\*80.\*\*Cole v. State \[Ark.\] 106 SW 673. 81. State v. Mehojcviek, 11g La. 791, 44 S 655, 101 SW 139. 481. It is not the mandatory duty of the board to set a day for hearing relator's wit-neases upon filling of the application. Id. 88, Rev. St. 87388. In re Application of Baltus, S Ohio C. C. (N. S.) 454. 83, It includes all rights of disabilities growing generally out of the relation. It excludes parentage by adoption (see Adoption of Children, 9 C. L. 34), rights and liabilities of parents of illegitimate children (see Bastards, 9 C. L. 383), presumptions of fraud and undue influence growing out of the relationship (see Fraud and Undue Influence, 9 C. L. 1475; Fraudulent Convenances, 9 C. L. 1508), rights and liabilities of infants generally (see Infants, 10 C. L. 238), rights of inheritance (see Descent and Distribution, 9 C. L. 760), and rights in respect to test-mentary disposition (see Willis, 8 C. L. 2305). 88 Custody is treated slightly in this topic, but more fully in Infants, 10 C. L. 238, and as to proceedure on habega corpus to determine custody, the topic Habens Corpus (and Reheigand), 9 C. L. 1559, should be consulted. Award of custody on grant of divorce is specifically treated in the topic Divorce, 9 C. L. 997. 84. Parinton v. Jamrock \[Mass.\] 80 NE 502. Section 5376, Cobos's Ann. St. 1903. In re Wright \[Neb.\] 112 NW 511. 112 NW 512. 85. Mother of illegitimate child has all rights of other parents, Parinton v. Jamrock \[Mass.\] 80 NE 802. Entitled to custody of illegitimate child under Civil Code 1895. 8 2509. Moore v. Dozier, 12S Ga. 90, 57 SE 110. 86. Rev. St. 1899, 8 5245 (Ann. St. 1906, p. 3728), gives adopted child same rights for support and proper treatment as any child (as by law. State v. Koonse, 123 Mo. App. 865, 101 SW 139. 481. It is not the mandatory duty of the board to set a day for hearing relator's wit-neases upon filling of the application. Id. 88, Dev. 817, Cobos's Ann. St. 1903, Bahlus, 8 Ohio C. C. (N. S.) 454. 83, It includes all rights of disabilities growing generally out of the relation. It excludes parentage by adoption (see Adoption of Children, 9 C. L. 34), rights and liabilities of parents of illegitimate children (see Bastards, 9 C. L. 383), presumptions of fraud and undue influence growing out of the relationship (see Fraud and Undue Influence, 9 C. L. 1475; Fraudulent Convenances, 9 C. L. 1508), rights and liabilities of infants generally (see Infants, 10 C. L. 238), rights of inheritance (see Descent and Distribution, 9 C. L. 760), and rights in respect to test-mentary disposition (see Willis, 8 C. L. 2 10 Cur. Law. PARENT AND CHILD SS 1. 1073

reputation of the place and persons dwelling where the child is being reared is admissible in evidence,94 but opinion evidence as to the fitness of the parent to rear her child is inadmissible.95 Except in extreme cases, poverty alone furnishes no reason for depriving a parent of her children,98 and the fact of poverty cannot be proved by mere hearsay.97 A reformation or change of circumstances may render it proper to restore children to parents' custody.98

In determining controversies over the possession of a child, the court is clothed with a sound discretion.99 In the exercise of this discretion while the relation of parent and child should not be lightly disregarded,1 the best interest of the child is the supreme consideration.2 Where the child is possessed of sufficient judgment to express and manifest a desire to remain where it is, that fact should be considered by the court.3

Footnote 10: Cur. Law. PARENT AND CHILD SS 1. 1073

In New Jersey where the custody of children is sought, the statute authorizes the filing of a petition for habeas corpus,4 expressly permits the granting of the writ where advisable in the discretion of the court,5 and also provides for modifications and changes in the court's orders from time to time where necessary.6

The parent's religion is prima facie the infant's religion,\[12\] but the first and paramount duty is to consult the welfare of the child.\[13\]

SS 2. Support and necessaries.See s C. L. \[122\]--A parent is bound to provide for the support of his children,\[14\] including necessary medical and hospital attendance furnished at the instance of himself or his duly authorized agent.\[15\] A father cannot relieve himself of this obligation by agreeing with his wife for a separation and giving her custody of the child,\[16\] or by obtaining a divorce, leaving the wife the custody of child,\[17\] nor does the fact that the wife has removed from the state, taken the child with her,\[18\] obtained a divorce \[19\] and remarried, relieve him of liability.\[20\] It is no defense to an action for failure to provide for its support that his child is an alien living in a foreign country,\[21\] or that no demand was made upon the parent for such support.\[22\]

Abandonment of a child either before\[23\] or after birth is generally punishable by statute,\[24\] where it can be shown that the child is in a destitute and dependent condition.\[25\] In such a case the instructions need not specifically call attention to the fact that the child is within the statutory age limit where no question as to the age has arisen.\[26\] It is no defense for prosecution for abandonment of a child\[27\] that the mother has deserted the father,\[28\] or been guilty of the greatest immorality or unwifely conduct,\[29\] but that others are providing for the child's support is a defense.\[20\]

The court having jurisdiction over the place where the parent resides when the failure to support occurs may take jurisdiction of the offense.\[31\] Since the duty to support runs to the children, they are proper parties plaintiff when within the statutory and not under SS 1857, which applies to mas-father was domileiled in Massachusetts and ter and apprentice. State v. Koonse, 123 child in Nova Scotia. Commonwealth v. K. Mc. App. 655, 101 SWV 139.

12. Where nothing to put in balance against them, parent's wishes ordinarily deculition, instruction requiring-demand errocub. State v. Teal \[Ohid\] SS NEE 304.

NEE 802. Policy of commonwealth is to secure to its wards right to be brought up, where reasonably practicable, in religion of parents. St. 1906, p. 411, c. 464, SS 1. Id. 1.

13. Where child had been four years in familly suitable to educate and have custody for divorce before birth of child. Jackson mother's demand as to religious teaching. Purinton v. Jamrock \[Mass.\] 80 NE 802.

01. Under SS 5723 (Baltinger's Ann. Code and St.), may appoint and require father to compensate divorced mother as grandian of children. Claibborne v. Claibborne \[Wash.\] 91 P 765.

01. Where wife acted as agent and gave consent to removal to hospital and performance of operation. Howell v. Digal \[Okl.\] 91 P 893. Where necessary medical services are rendered for child at instance of father and on his credit, no subsequent recovery can be had against estate of child acquired subsequent to rendering services, although father was insolvent. Gaston v. Thompson, 129 Ga. 754, 59 SE 799.

16, 17, 18. Maxwell v. Boyd, 123 Mo. App. 334, 100 SWV 540.

19, 10 Cur. Law. PARENT AND CHILD SS 3. 1075

tory provisions entitling them to such support. \[32\] Where such a statute provides for no procedure for its enforcement, it is enforcible by a suit in equity. \[38\] In such a suit the court has power to make preliminary orders requiring the parents to pay suit money, counsel fees, and maintenance pendente lite, \[54\] and the court may also reserve the power to alter the decree as the subsequent change in the circumstances of the parties may require. \[38\] Evidence that one in whose custody the child is, but who is not bound to support child, is able to do so, is immaterial in a suit against the father for abandonment. \[36\]

In Maryland, as to third persons and as between husband and wife, the father's responsibility to support his children is primary and the mother's secondary, \[37\] and the mother can compel the father to provide for his children to the relief of herself. \[38\]

The affection and sense of duty of a child towards an aged and dependent parent is a good consideration to support a contract making provision for her support. \[39\] Contracts between separating husband and wife for the support of the child will be sustained only when to the child's interest. \[40\]

SS 3. _Services, earnings, and injuries to child._ See & C. L. \[123\]--The parent's right to the services and earnings of a minor child \[41\] is founded upon the theory of compensation to him for the child's maintenance. \[42\] A father suing upon an implied contract for the value of his minor son's services cannot recover the gross value thereof when the defendant has supported the minor while in his employ, but only what the services were reasonably worth when employed and supported by the defendant. \[43\] Presumptively the right to the wages of a deceased child belongs to the father and not to the administrator, \[44\] and recovery by the administrator is no bar to recovery by the parent. \[45\] Failure to give the statutory notice of claim \[46\] or an express or an implied relinquishment of claim are defenses to the parent's right to recover for the services of the minor. \[47\] The fact that a father has relinquished his claims to the son's wages may be established by direct evidence or implied from the circumstances. \[48\]

32 Under & 206, Civil Code, in suit brought by adult blind child. Paxton v. Paxton, 150 Cal. 667, 89 P 1083.

33, **34**, **35**, Paxton v. Paxton, 150 Cal. 667, 89 P 1083.

36, Evidence that grandmother was able to support immaterial. Jackson v. State, 1 Ga. App. 723, 58 SE 272.

37, Fact that wife obtained divorce no defense where defendant was served by publication and decree was silent as to maintenance of children. Alvey v. Hartwig \[Md.\] 67 A 132.

38, Alvey v. Hartwig \[Md.\] 67 A 132.

39, Under Civil Code 1895, 3658, contract by children to mutually pay for mother's support. Worth v. Daniel, 1 Ga. App. 15, 57 SE 398.

40. Not enforced where father intended to place child in home of aged father and mother in poor health. Carpenter v. Carpenter, 149 Mich. 138, 14 Dot. Leg. N. 366, 112 NW 748. That portion of contract of separation which binds father to pay $50 annually to mother enforced, regardless of invalidity of contract of separation. Maxwell V. Boyd, 123 Mo. App. 334, 100 SW 54.

01. Woodward Iron Co. V. Curl \[Ala.\] 44 S 974; Doyle v. Carney, 190 N. Y. 386, 32 NB 37; Culberson v. Alabama Con., 137 Ga. 595.

56 SE 765; Purton v. Jamrock \[Mass.\] 80

38. Where mother made definite contract of hiring of services of bastard. Sapp v. Parrish \[Ga. App.\] 59 SE 821. Mother enriched to earnings during minority. Tuite v. Tuite \[N. J.\] 66 A 1090. Father entitled to earnings of minor children. Jackson v. Citizens' Bk. & Trust Co., 53 Ala. 265, 44 S 516.

01. Doyle v. Carney, 190 N. Y. 386, 83 NE 37.

01. Charge that father is entitled to proceeds of labor reduced by the necessary expenses of maintenance not error. Culberson v. Alabama Const. Co., 127 Ga. 599, 56 SE 765.

01. Where father sues as administrator, he cannot amend complaint so as tosue individually, under $ 733, code of civil procedure, as amendment brings in another party. Doyle v. Carney, 190 N. Y. 386, 83 NE 37.

01. Even where parent recovers as admin-structor. Doyle v. Carney, 190 N. Y. 386, 83 NE 37.

01. Domestic Relations Law, $ 42. Doyle

01. Carney, 190 N. Y. 386, 83 NE 37.

01. Doyle v. Carney, 190 N. Y. 386, 83 NE 37.

01. Instruction that father may relinquish the right to son's earnings by his conduct not erroneous. Jackson v. Citizens' Bk. & Trust Co., 53 The general rule is that parents may recover damages for any interference with their rights by a wrongdoer "a" and for wrongfully causing the death of the child." One employing a minor child without the parent's consent, in a dangerous place or upon dangerous work, is liable to the parent for any injury suffered by the minor as a result of being placed at the work,\[61\] but consent of the parent to the employment of the minor at the particular work \[52\] or in violation of the law bars the right to recover "a" in the absence of notice of revocation of the consent.\[54\] Contributory negligence of the child "5" or parents,\[56\] or want of ordinary care, also bars the right to recover.\[57\] But, in order for the father's negligence to be a defense, it must be at least a concurring proximate cause.\[58\]

The right of the parent to maintain an action depends in every case upon the incurring of some direct pecuniary injury therefrom,\[59\] in consequence of loss of services "o" or expense necessarily consequent thereon,\[61\] and the recovery is limited to the actual loss of services resulting from the injury,\[62\] excluding, however, recovery for mental pain and suffering.\[63\]

But, on the other hand, a minor cannot sue his parent for a tort "4" unless he has been emancipated.\[65\]

The father holds the amount recovered for injuries to a minor child in trust for him.\[66\] While settlements of suits brought by a parent under the statute for injury

services, when father knows of employment, may constitute Implied assent to child re-

Mo. 692, 104 SWV 109.

celying own wages. Culberson v. Alabama

Constr. Co., 127 Ga. 599, 56 SE 765.

40. Purington v. Jamrock \[Mass.\] 80 NE

\[Neb.\] 112 NW 581.

58. Not proximate cause for father to permit child to work at dangerous employment

etc., R. Co. v. Leazer \[Tenn.\] 107 SWV 684.

51. Count alleging, only, that minor was

employed without consent of father, Insuffment

\[Alia.\] 45 S 702.

59. Sorrells v. Matthews, 129 Ga. 319, 58

\[Alia.\] 44 S 974. Since it is not the mere employment that gives rise to the liability.

a charge, that, if son was minor employed

\[Alia.\] 44 S 974. Since it is not the mere employment that gives rise to the liability.

a charge, that, if son was minor employed

without father's consent, not necessary to

find that father objected to employment be-

cause of dangerous character but might re-

cover if minor was injured as proximate

result of employment, erroneous, Id. In-

struction failing to hypothesize that son was

employed by defendant, and ignoring dan-

\[Alia.\] 44 S 974.

52. Fact that father visited son at work,

although not consenting to original employment, and said nothing by way of objection,

and received or let son receive wages, until

after injury, shows consent. Louisville, etc.,

K. Co., v. Darvis \[Key.\] 105 SWV 445. Written

consent bars right to recover, Woodward

\[Alia.\] 44 S 974.

From Co. v. Curl \[Alia.\] 44 S 974.

53. Father permitting child under ten to work in violation of Gen. Acts 1908, p. 68,

child being injured at work. Reaves v. An-

niston Knitting Millis \[Alia.\] 45 S 702; Brink

54. Mere letter to son that father wanted

him to come with him and get better job

without specifying any time, insufficient.

Woodward Iron Co. v. Curl \[Alia.\] 44 S 974.

Laying off one week, no such quitting employment as calls for new consent. Id.

55. Where infant, though told to keep off,

climbed upon wagon crossing tracks and

was killed by train demolishing wagon. Bracken v. Pennsylvania R. Co., 32 Pa. Super.

Cl. 22.

56. Cytron v. St. Louis Transit Co., 205

May 692, 104 SWV 109.

57. Contributory negligence, and want of

ordinary care, bars. Vanderveer v. Moran

\[Neb.\] 112 NW 581.

58. Not proximate cause for father to permit

mit child to work at dangerous employment

\[Alia.\] 44 S 102.

where defendant fails to instruct child as

to danger. Reaves v. Anniston Knitting

Millis \[Alia.\] 45 S 702.

59. Sorrells v. Matthews, 129 Ga. 319, 58

SE 819. Cannot maintain action to recover

damage for expulsion of children from

school. Id.

60. Sorrells v. Matthews, 129 Ga. 319, 58

SE 819.

58. Not proximate cause for father to permit

mit child to work at dangerous employment

\[Alia.\] 44 S 102.

70.

01. Civil Code 1895, 1 3816, merely declara-

tory of common law. Sorrells v. Matthews,

129 Ga. 319, 58 SE 819. Father entitled to

recover expenditures caused by injury to

son, such as physician's b to a minor child are not necessarily void, although not confirmed by the court, \[97\] the court will set aside a settlement of the claim and an order for dismissal entered without adequate knowledge or investigation of the facts, where there is a good cause therefor. \[68\] A release by the parents is no bar to a recovery by the child for injuries. \[68\] The bringing of suit for injury \[70\] or death of minor is generally governed by statute. \[71\] Where the statute reserves the right to sue to the legitimate father and mother, \[72\] the child must be legitimate or legitimated in the manner prescribed by statute in order for the parents to stand in judgment. \[73\] Under the employer's liability act, the father cannot recover for loss of services or expenses. \[74\] The statute giving the right only to the employee, his legal representatives, and in case of death to the widow or next of kin. \[75\] Failure to join mother in suit by father for death of child may be cured by amendment after trial and verdict, \[76\] even though the period of limitations has run against her right. \[77\] It is not necessary to aver in the complaint that the child was a member of the family, \[78\] but the fact that the employment was not with father's consent or knowledge must be pleaded. \[79\] A parent suing for a loss of services resulting from an injury to a minor child need only prove the fair value of the services, \[80\] and need not prove that he could or would have earned the same. \[81\] The defendant in such a suit may show recovery had by plaintiff in a former suit as the minor's next friend. \[82\]

_Emancipation._ See a C. L. 1982--Emancipation of a minor child entitles him thereafter to his own earnings. \[83\] To constitute an emancipation, there must be both a waiver of the minor's services \[84\] and a surrender of parental control over him. \[85\] Parental control over a minor son is lost by voluntary contract, releasing the right to a third person by consent to the adoption of the child by a third person, by failure

Suit brought under Rev. St. 1905, 75. Rev Laws 1906, 5 106, 85 71-73. Jordan & 4060, Picciano v. Duluth, etc., R. Co., 102 & 102 & 102 & 103 & 104 & 105 & 106 & 107 & 108 & 108 & 109 & 109 & 110 & 111 & 110 & 111 & 111 & 112 & 113 & 114 & 115 & 116 & 117 & 118 & 119 & 119 & 120 & 121 & 122 & 123 & 124 & 125 & 126 & 127 & 128 & 129 & 120 & 121 & 124 & 126 & 127 & 129 & 121 & 128 & 129 & 120 & 121 & 121 & 122 & 123 & 124 & 125 & 126 & 127 & 128 & 129 & 121 & 129 & 120 & 121 & 121 & 123 & 124 & 126 & 127 & 128 & 129 & 120 & 121 & 121 & 122 & 123 & 124 & 125 & 126 & 127 & 128 & 129 & 121 & 129 & 120 & 121 & 121 & 123 & 125 & 126 & 127 & 128 & 129 & 121 & 129 & 120 & 121 & 121 & 124 & 126 & 127 & 129 & 121 & 128 & 129 & 120 & 121 & 121 & 123 & 124 & 126 & 127 & 128 & 129 & 121 & 129 & 120 & 121 & 121 & 122 & 123 & 124 & 126 & 127 & 128 & 129 & 120 & 121 & 121 & 123 & 125 & 126 & 127 & 129 & 121 & 128 & 129 & 120 & 121 & 121 & 123 & 126 & 127 & 129 & 121 & 128 & 129 & 120 & 121 & 121 & 124 & 127 & 129 & 121 & 126 & 128 1073 PARENT AND CHILD SS 4. 10 Cur. Law.

to provide necessaries for the child or abandonmnet of his family, by consent to the child's securing the proceeds of his own labor (revocable at any time), by cruel treatment of the child, and by consent to the marriage of the minor.86 The fact of emanation need not by proclaimed openly and notoriously 87 nor need the son cease to be a member of the family.88 It may be proved by oral, written or circumstantial evidence or it may be implied.88 .After emancipation, the claim of the child for wages subsequently accruing can in no legal sense be said to be derived from, through, or under his father by assignment or otherwise.89 In West Virginia, an agreement between a father and his infant child that the latter may have his earnings is irrev6cable.91

SS 4. _Property rights and dealings between parent and child._See S. C. L. 1228__

The relation of parent and child, where business relations are carried on between them, is the source of the very highest considerations of trust and confidence,92 and where the child, dealing with his parent with regard to the latter's property, gains an advantage or obtains title to property without adequate or any consideration the transaction should be scanned with strictest scrutiny.98 However, as there is no presumption of the invalidity of a voluntary gift,94 the burden is not on the donec or grantee 98 but on parent to show undue influence,99 unless there is evidence of undue influence or circumstances that give rise to a suspicion.97 A dead from parent to child in consideration of love and affection,98 or better support of the grantee as recited therein, is not invalid or fraudulent.99 The fact that the children have an interest with the mother in a business descending from the father, and that they are employed by the mother therein after the father's death, gives rise to no presumption of partnership between them and the mother.1

SS 5. _Liability for child's torts._See S. C. L. 1223__

One is not liable for the tort of an infant solely upon the ground that he is his father,9 but liability arises from the

86. Civil Code 1895, SS 2502. Culberson v. Alabama Const. Co., 127 Ga. 59, 56 SE SE

Srander after the discussion with neighbors. 765. Marriage of minor son enamelates

Sanders v. Gurley \[Ala.\] 44 8 1922. Volumn-

hm. Vanatta v. Carr. 229 Ill. 47, 82 NE 267.

tary deed from mother to son. though stripping. 87, 88 Jackson V. Citiens' Bank & Trust Co., 53 Pla. 265, 44 8 516.

89. Emancipation held established by rather testifying that he told minor's emancip.

01. Vasshuh r. Vaughn, 217 Pa. 496, 66 A

01. Where conveyed to only child by: Veese v. Yokum \[V. Va.\] 89 52 SE 514. May

01. Vasshu n. Vaughn, 217 Pa. 496, 66 A

01. Where conveyed to only child by: Veese v. Yokum \[V. Va.\] 89 52 SE 514. May

01. Theore, father not incor-petent under: Veese v. Yokum \[V. Va.\] 89 52 SE 514. May

01. Vasshu n. Vaughn, 217 Pa. 496, 66 A

01. Veese v. Yokum \[V. Va.\] 98 52 SE 514. May

01. Nobles v. Zhutton \[Cen.\]. 92 7 280.

01. Where son holding power of attorney and position as mother's agent secures title to property for no consideration. Becker v. Schwerdtle \[Cen.\].p 2 P 398.

01. Assignment of note shortly before death where no confidential relation or evidence of undue influence. Vaughn v. Vaughn, 217 Pa. 496, 66 A 745. More fact

conveyance is from parent to child does not render presumptive invalid. Becker v. Schwerdtle \[Cen.\].p 2 P 398. No

95. Vasshu n. Vaughn, 217 Pa. 496, 66 A

01. Vasshu n. Vaughn, 217 Pa. 496, 66 A

01. Where son holding power of attorney and position as mother's agent secures title to property for no consideration. Becker v. Schwerdtle \[Cen.\].p 2 P 398.

01. Assignment of note shortly before death where no confidential relation or evidence of undue influence. Vaughn v. Vaughn, 217 Pa. 496, 66 A 745. More fact

conveyance is from parent to child does not render presumptive invalid. Becker v. Schwerdtle \[Cen.\].p 2 P 398. No

99. Vasshu n. Vaughn, 217 Pa. 496, 66 A

01. Veese v. Yokum \[V. Va.\] 98 52 SE 514. May

01. Nobles v. Zhutton \[Cen.\].p 2 P 280.

01. Where son holding power of attorney and position as mother's agent secures title to property for no consideration. Becker v. Schwerdtle \[Cen.\].p 2 P 398.

01.

relationship of master and servant and it must be determined at the time whether the act was authorized by the master \[3\] in execution of his orders \[4\] or in the doing of his work.\[5\]

## 8 Parks and Public Grounds

The scope of this topic is noted below.\[6\]

Acquisition and creation.\[See 5\] C. L. 1233--The enlargement of municipal powers in recent years with reference to the acquiring of land for parks permits the direct purchase as well as the appropriation of land outside the city limits for that purpose.\[7\] As in other cases, the intent of the landowner to dedicate property for parks must be proved beyond a reasonable doubt.\[8\] In Nebraska the taking of property for park purposes may precede the payment of compensation.\[9\] Though a charter defers payment for property condemned until thirty days after completion of proceedings, the landowner's right to compensation rests on such completion,\[10\] and the city has no power to rescind its action and divest that right,\[11\] nor is the right to compensation affected by city's failure to issue bonds, there being no charter prohibition of payment from general fund,\[12\] and a charter amendment requiring approval of a majority, instead of a majority of those present, of the board of appropriation and apportionment in the case of condemnation for park purposes, does not exclude the mayor, as ex officio chairman, from voting in case of tie, all the members being present.\[13\] An act authorizing the acquisition of parks does not necessarily exclude such acquisition under another statute,\[14\] and a provision that the question of assuming indebtedness for park purposes shall be submitted to the voters does not require a vote on each parcel when several widely separated parcels of land are included in one scheme of park improvement.\[15\]

The public title.\[See 5\] C. L. 1231--A city taking land for park purposes acquires the same easements as a private purchaser.\[16\] A municipality has no power or right to tax its parks for special benefits.\[17\]

Rights of individuals in or to parks.\[See 5\] C. L. 1234 --\_

Adverse possession, abandonment, and diversion; actions.\[See 5\] C. L. 1234 --\_Though mere nonuser is insufficient, when coupled with adverse possession for a prescriptive period, it may extinguish an easement for park purposes.18 Objection to the condemnation of public park property for railway purposes cannot be raised by private parties whose interests are not affected.19 Property originally acquired for park purposes may, it has been held, be lost by disuse and subsequent declaration that it is unnecessary for such purpose.20

Park bonds.See e. C. L. 886.-Authority to incur bonded indebtedness for park purposes implies authority to make provision for payment of the same.21

Government, control, and officers of parks.See e. C. L. 1985.-A board of park commissioners, having the power to sue and be sued, is a mere agency of the city and its liabilities are the same as would be the city's liabilities if no such board existed.22 An act conferring upon a board the authority over parks previously exercised by the city council is valid, as is a further provision that the council may elect whether the law shall be locally operative.22 Park commissioners have no authority to permit the maintenance of a nuisance within territory subject to their jurisdiction.24 An unconstitutional provision for tenure of office in an act creating a park board will not invalidate the whole act, and term of office will be as if not declared.25 By weight of authority, power to levy taxes for park purposes may be vested in an appointive board,26 but some states hold that such authority can only be exercised by a body selected by the person whose property is to be taxed.27

Injuries in parks.See e. C. L. 1936.-By weight of authority the management and control of public parks, supported by taxation, is an exclusively public function and municipal or other corporations exercising it are not liable for torts of servants 28 or of licensees if the thing licensed is not dangerous per se.26

## 18 Parliamentary Law.

Formalities and procedure in the passage of ordinances 21 and statutes 22 are elsewhere treated. A record showing only the number of affirmative votes is not fatally defective if it appears that the vote was in fact unanimous.22

PAROLEvidence, see latest topical index.

28. Louisville Park Com'rs - v. Prinz \[Ky.\] 105 SW 948.

01. Pivrate owner of property condemned in the same action sought to overthrow the proceedings on ground of illegal taking of park. New York Cent., etc., R. Co. v. Yonkers, 103 NYS 252.

01. Cincinnati, etc., R. Co. v. Cincinnati.

01. Vailleily v. Grand Forks Park Com'rs of Park Dist. \[N. D.\] 111 NW 615.

01. Louisville Park Com'rs v. Prinz \[Ky.\] 105 SW 948.

01. Ch. 143, p. 256, Laws 1905. Valleily v. Grand Forks Park Com'rs of Park Dist. \[N. D.\] 111 NW 615.

01. Encoachment on porch line within 350 feet of parkway. City of New York v. Rice, 166 Misc. 380, 107 NYS 641.

01. Chap. 115, p. 166, Laws 1907, providing six year term, violates Const. art. 15, & 2.

Vuit V. Kansas City \[Kan.\] 94 P 207.

26. Chap. 115, p. 166, Laws 1907, held. constitutional to that extent. Vuit V. Kansas City \[Kan.\] 94 P 207.

01. Ch. 143, p. 256, Laws 1905, authorizing tax levy by park board appointed by city council held unconstitutional. Valleily v. Grand Forks Park Com'rs of Park Dist \[N. D.\] 111 NW 615.

01. Louisville Park Com'rs - v. Prinz \[Ky.\] 105 SW 948.

01. July found that spot selected for discharge of fireworks was not dangerous to passers on adjacent street, De Agramonte v. Mit. Vernon,l08 NYS 236.

01. See 8 C. L. 1936.

01. See Municipal Corporations, 10 C. L. 881.

01. See Statutes, 8 C. L. 1976.

01. Where the record discloses that at the meeting of the city council at which there were proceedings with reference to a street improvement and the assessment therefor certain members of council were present just prior to the taking of the vote, and does not disclose that any of the members of the room before voting, and it is definitely stated that the particular resolution and ordinance was passed by a certain number of votes being "yeas," and the number of "yeas" is the same as the number of members previously recorded as present, there is a substantial record of compliance with the statutory provisions requiring the vote of the council for street improvements to be by "yeas" and "nays," although the court does not approve of the form of the record. McMaken v. Hayes, 10 Ohio C. C. (N. S.) 38.

- \[8\] **1. Definition and Classes, 108I,**
- \[9\] **2. Who May or Must See, 108I.**
- \[10\] **3. Who May or Must Be Sued. 1082.**
- \[11\] **4. Designing and Describing Parties,**

\_Scope of topic.--\_This topic is devoted to a general treatment of parties to civil actions * at common law * \[12\] and under the codes. It excludes parties to particular actions * and proceedings, * parties as dependent upon the subject-matter of the action, * the relief sought, * or the relations of the parties. * \[13\] It also excludes parties to actions by or against particular persons, * and parties as affecting jurisdiction * and venue. * \[14\] **SS 1. _Definition and classes._ See * c. T. 188**

_Who may or must sue._ * \[15\] **5.** \_C. L. 1286--\_The real party in interest is ordinarily the proper party to bring an action, * \[16\] and some interest, either general or special, is absolutely essential. * A constituent or cestui que trust may sue, making his representative or trustee a party defendant, when the latter refuses after reasonable demand to commence a suit or take a proceeding which it is his duty to institute for the benefit of the former. * \[17\] An action in the court of claims will not be * \[18\] **34.** As to parties to criminal prosecutions, * C. L. 827; **Estates of Decedents,**

_Who may or must sue._ * \[19\] **5.** **C. L. 1144; Foreign Corporations,**

_Who may or must sue._ * \[18\] **5.** \*\*C. L. 1286--\*\*The real party in interest is ordinarily the proper party to bring an action, * \[19\] and some interest, either general or special, is absolutely essential. * A constituent or cestui que trust may sue, making his representative or trustee a party defendant, when the latter refuses after reasonable demand to commence a suit or take a proceeding which it is his duty to institute for the benefit of the former. * \[20\] **6.** An action in the court of claims will not be * \[21\] **7.**

_Who may or must sue._ * \[22\] **7.** **5.** \*\*C. L. 1287;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[19\] **5.** \*\*C. L. 1288;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[23\] **7.** **5.** \*\*C. L. 1289;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[24\] **7.** **5.** \*\*C. L. 1289;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[25\] **7.** **5.** \*\*C. L. 1289;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[26\] **7.** **5.** \*\*C. L. 1289;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[27\] **7.** **5.** \*\*C. L. 1289;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[28\] **7.** **5.** \*\*C. L. 1289;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[29\] **7.** **5.** \*\*C. L. 1289;\*\*The real party in interest is ordinarily the proper party to bring an action, * \[29\] \*\*7.

defeated by the absence of the plaintiff's assignee as a nominal plaintiff.47 One acting in one capacity cannot sue himself in another capacity.48

Footnote 47: Federal Mfg. & Printing Co. v. U. S., Western, etc., R. Co. v. Tate, 129 Ga. 526, f

Footnote 48: Medlin v. Simpson, 144 N. C. 397, 57 SE 24.

Footnote 49: Where husband and wife gave _money_ to son-in-law, on condition that it was to be returned on demand when they needed it, and that if they died without demanding it the son-in-law should have it absolutely, the wife could sue alone to recover such money after the husband's death. Welltech v. Straub, 74 Kan. 292, 8& P 148. Parties whose interests will not be affected by the decision are not necessary parties, and hence an agent of real party in interest not necessary party when his interests will not be affected and no relief is asked against him. Golden Cross Min. & Mill. Co. v. Free Gold Min. Co. \[C. C. A. 154 F 441. State and county need not be joined in suit on undertaking given in suit to enjoin prosecuting attorney from enforcing criminal statute. Littleton v. Burgess \[Wyo.J 91 P 832.

50. Under Code Civ. Proc. $ 381, two or more persons claiming any estate or interest in land under a common source of title may unite in an action against one claiming an adverse title therein for purpose of determining such claim. Gillespie v. Gousley \[Cal.\] 93 P 856.

01. Moppar v. Wiltchik, 56 -Misc. 676, 107 NYS 594.

01. See Equity, 9 C. L. 1110.

01. Code Civ. Proc. $ 448. Climax Specialty Co. v. Seneca Button Co., 54 Misc. 152, 103 NYS 822. Four or more constitute "many" persons under this rule. Id. Held proper under Civ. Code Proc. $ 25, to allow some if many beneficiaries of will living in many states to sue for enforcement of provisions of will. Crane v. Crane \[Ky.\] 105 SW 370. Life tenant and remainderism held entitled to join in action for injury to property.

- 10 Cur. Law. PARTIES SS 3.
- 22 Conversely all persons interested in the subject-matter and necessarily affected by the judgment are necessary. \[65\] In the code states the joiner of parties defendant depends, as under the old equity practice, upon the question of unity of interest \[64\] or joint liability. \[65\] Persons jointly and severally liable may be sued either jointly or severally, \[66\] but a joint liability is essential to a joint action. \[67\] These rules, however, have been considerably modified by the codes and statutes, \[68\] and in this regard the lex fori controls. \[69\] The necessity of election as to which of several defendants the action will be continued has also been considerably modified by statute, \[69\] and the question of joiner of defendants is rendered of less importance than formerly by the statutes providing for judgment against one or more of several defendants and for the determination of the ultimate rights of the parties. \[71\] The cases are not in harmony as to the effect of statutes authorizing a recovery against one or more of several joint defendants. \[72\] Where the plaintiff has a single cause of action against several defendants, his right to join them is not affected by the fact that they have plaintiff and defendant in suit for specific performance of contract of sale held cured by finding that intermediary was not content. Diamond State Tel. Co., v. Blake \[Md.\] needed with contract and never acquired in- \[65\] a 6A 6B 4B different defenses." Necessary or proper parties may be joined as defendants when they cannot be joined as plaintiffs or refuse to so join."4 Where it is alleged that a joint contractor is absent from the state and without the jurisdiction of the court, it is not necessary to make him a party in order to recover a personal judgment against the other parties."5 The plaintiff may strike the name of a party defendant who pays no relief against any of the parties to the suit."6 A misjoinder may arise out of the joinder of one individual in several representative capacities,"7 and one cannot be joined as a defendant in one capacity in a suit by him in another capacity."8 The joinder of parties as affecting Federal jurisdiction is treated elsewhere."9

SS 4. \_Designating and describing parties.\_See * c. L. 1242--One designated as a party in one capacity is not therefore a party in another capacity."0 In West Virginia, the defendant may be designated by a fictitious name with a statement that his real name is unknown."1 Errors in description of parties may, under statutory provisions, be corrected by amendment "2 and as in other cases of amendment, the lex fori controls."3

SS 5. \_Additional and substituted parties.\_See * c. L. 1242--The question as to the bringing in of new parties in equity is treated elsewhere;"4 but many of the codes and statutes have preserved and extended to a greater or less degree the old equity rule that any party may be brought in who is necessary to a complete determination of the controversy,"8 and the common-law rule that additional defendants could not and defendants attorney being attorney for latter and appearing therefor. Id. Under Code Civ. Proc. $ 144, Comp. St. 1903, $ 6715, amendment by changing name of plaintiff from company name of business, of which he was sole proprietor, to his in-dividual name, held proper. Omaha Furmufucamento & Carpet Co. v. Meyer \[Web.\] 115 NW the reason for such refusal being shown by the complaint, in which case they may be made parties defendant, a joined of such persona cannot be sustained where the reason therefor does not appear. Baron v. Lakow, 121 App. Div. 544, 108 NYS 243. 75. Tally v. Ganball \[CaL.\] 90 P 1049. 76. May strike name of such party as matter of right. Pearson v. Courson, 129 Ga. 856, 59 SE 907. 77. Merrill v. Suffix \[Colo.\] 93 P 1098. 78. Administrator of testor's widow joined as defendant in suit by him against executors of testor, he being one of such executors. Medlin v. Simpson, 144 N. C. 397. 87 SE 24. In such case he should be transferred to plaintiff's side of the case in both capacities. Id. 79. See Removal of Causes, $ C. L. 1722; Courts, $ C. L. 839. 80. Trustees as such not parties as executors or administrators of deceased defendant. Ball v. Ward \[N. J. EGJ 68 A 345. 81. Code 1899, $ 28; Code 1906, $ 1979, relating to justices' courts. Coal & Coke Co. v. Taylor \[TW. Va.\] 69 SE 241. Under this statute any description which designates the defendant may be used. "Italian number 37," held sufficient. Id. 82. Code, $ 17. Solmonovich v. Denver Consol. Tramway Co., 39 Colo. 282, 89 P 57. Consistent corporation sued for Injury Inited by consolidated corporation. Amendment by consent held authorized under Code, $ 75, process having been served on president of constituent corporation, who was also president of consolidated corporation, and defendants attorney being attorney for latter and appearing therefor. Id. Under Code Civ. Proc. $ 144, Comp. St. 1903, $ 6715, amendment by changing name of plaintiff from company name of business, of which he was sole proprietor, to his in-dividual name, held proper. Omaha Furmufucamento & Carpet Co. v. Meyer \[Web.\] 115 NW 310. Edel proper to allow plaintiff to change capacity from administtratrix to personal capacity as widow. In action for death of husband. See * Si06, $ 5106, $ 5106, $ 5106, $ 5106, $ 5361. Atlanta, etc., R. Co. v. Smith, 1 Ga. App. 162, $ 85 SE 106. Such an amendment does not change cause of action so as to let in plea of statute of limitations. Id. 85. Atlanta etc., R. Co. v. Smith, 1 Ga. App. 162, $ 85 SE 106. 84. See Equity, $ C. L. 1110. 85. Civ. Code, $ 18, provides that such parties shall be brought in. Day v. McPhee \[Colo.\] 93 P 870. Such rule cannot be invoked by a defendant on account of equtites between him and another person, unless the plaintiff was in some way responsible for such equities, or by affirma-tive action destroyed them, or when the plaintiff's rights will not be affected or postponed thereby. Id. The equtity rule, that all parties necessary to the rendering of complete justice must be brought in, has been retained by St. 1898, $ 2604, $10. Hagan v. McDeermott \[TW.s\] 115 NW 138. A defect of parties under this rule is jurisdictional. Id. Code City. Proc. $ 452, applies only be brought in on the plaintiff's motion has been practically abrogated by statute in many of the states.\[86\] The authority to allow new parties to be brought in will not be exercised needlessly," nor can such authority be invoked to inject into the case a new issue which alone renders such new parties necessary,\[88\] nor where the addition of such parties would cause a misjoinder of causes of action \[89\] or of parties,\[90\] or will amount to substitution of parties,\[91\] or will work an injustice.\[92\] The bringing in of new parties is sometimes made a matter of discretion for the court.\[88\] New parties must be brought in the manner provided by statute,\[94\] and a motion to bring in new parties must be made in proper time,\[95\] but as a general rule, the right to bring in new parties may be exercised at any time during the pendency of the action between the original parties."6 An order, not excepted to, bringing in a new party and ordering the case to proceed in behalf of such party and of the original parties, is an adjudication that there were originally sufficient parties to authorize the amendment and that the party added is a proper party."7 Under the common-law practice a variance as to the cause of action cannot be cured by bringing in new parties."8 It is not incumbent upon the plaintiff to make parties in order to assist the defendant to perfect his equities, and if defendant needs such parties it is incumbent upon him to bring them in."9

\_Intervention.\_See 4 C. L. 1245.--The right of intervention is governed by the general rules of equity.1 Any person having such an interest in the subject-matter in litigation between others that he may gain or lose by the judgment therein may intervene and become a party.2 The intervener need not be a necessary party,3 but must show his interest in the action,4 and where he fails to establish his claim, his petition will be dismissed.5 An intervention comes too late after trial, especially if it adds new grounds.6 An order of court granting leave to intervene is a determination that the intervener is interested in the subject-matter of the litigation,7 and entitles the intervener to all the remedies available to the defendant in defeating the action.8 Where the claim of the intervener to the subject-matter is adverse to both the plaintiff and the defendant but the only relief sought is that the plaintiff take nothing and that interveners recover costs, the intervener occupies the position of uniting with the defendant in resisting the plaintiff's claim.9 The default of the defendant in such case does not preclude the intervener from obtaining relief.10 Where an intervention has been allowed, the court cannot determine the issues of fact thereby tendered in the absence of the parties, without the notice required by law,11 unless such notice is waived.12 The intervener takes case as he finds it,18 and his rights are not necessarily cut off because they would be barred by limitations if asserted in an independent action.14 The plaintiff, however, may dismiss the action where the intervener seeks only to defeat his claim,15 but otherwise the plaintiff cannot dismiss where the court has allowed the intervention,16 and even the court after allowing the 10 Cur. Law. PARTIES SS 6. 1087

intervention cannot dismiss the case except as authorized by statute.17 Where judgment in favor of the plaintiff will not prejudically affect the intervener's rights, the plaintiff does not admit the allegations of the petition of intervention by failure to plead thereto.18

\_Substitution.\_Sou & C. L. 1244--Substitution is proper where the interests of a party have become vested in another,19 as when, pendente lite, the whole beneficial interest in the cause of action is assigned or transferred.20 So, also, a plaintiff, where it becomes necessary for the enforcement of his rights, may amend his petition by substituting the name of another person suing for the original plaintiff's use.21 Prompt application is essential.22 A minor suing by next friend may, upon coming of age, have himself substituted as plaintiff in his own right instead of through the next friend.23 It is proper to allow a severance on death of one of several defendants in tort, so as to allow separate action against the executor of the deceased party.24

SS 6. \_Objections to capacity and defects of parties.\_Sou & C. L. 1245--Defects of parties may be raised by demurrer 25 or answer.26 Such defects, however, may be waived,27 and while the court may, of its own motion, recognize a jurisdictional defect of parties,28 otherwise a complete waiver arises from failure to make proper objection,29 as by demurrer or answer,30 by demurrer when the defect appears on the

17. Except as authorized by Code, Civ. | demurrer, such a defect appearing on the Proc., $ 581. Townsend v. Driver '\[Cal.\] trial may be reached by amended answer. App.1 90 P 1071. 18. Mansf. Dig. $ 5072 (Ann. St. 1893, $ 594. 3277), providing that material allegations not denied are admitted, does not apply. | \_S. C. 416, $7 SB 283. Where defendant in | _S. C. 416, $7 SB 283._ Where defendant in | \_S. C. 416, $7 SB 283.

face of the complaint or petition,\[81\] or otherwise by answer.\[82\] Answering, after demurrer for defect of parties is overruled, waives the objection.\[33\] Objections for defects of parties must specifically point out the defects and name the proper parties.\[34\] Demurrer will not lie where parties properly joined originally, are rendered improper parties by a supplemental complaint based on matters occurring pendente lite.\[35\] Objections to misjoinder cannot be taken in answer to merits.\[36\] Defect of parties having been waived by failure to object by answer, it is not an abuse of discretion to deny leave to object thereto by amendment.\[37\] One may also be estopped to raise objections for defects of parties.\[38\] Where the real defendant, named in the pleadings, appears and answers and the real issues are tried between the proper parties, such defendant cannot complain of the joinder of other parties.\[39\] Error may be predicated upon nonjoinder of necessary parties,\[40\] but joinder of unnecessary parties is material only as affecting costs.\[41\] Where the defendant has filed a disclaimer, he cannot object to an order bringing in a new party defendant.\[43\]

1893, $ 602 (Ann. St. 1906, p. 628). Bonsor v. Madison County, 204 Mo. 84, 102 SW 494. Misjoinder of plaintiff. Clark v. Boltz, 10 Onlo C. C. (N. S.) 1. That defendants were improperly made parties. Bonsor v. Madison County, 204 Mo. 84, 102 SW 494. Nonjoinder is wavled if not raised by deny-murrer or answer. Bauman v. Kuhn, 108 TXS 773. Objection in action for death that plaintiffs are not sole heirs of decedent. Salmon v. Ratiens \[Cal.\] 92 F 738. Capacity of plaintiff. Mazelzer v. Swan, 75 Kan. 498, 89 F 1037. Nonjoinder waived. Baker v. Lambert \[Cal. App.\] 91 F 340. Objection that plaintiff was not proper party to bring the suit. Mazelzer v. Swan, 75 Kan. 496, 89 F 1037. Capacity of board of health of town to sue, except in name of town. Morton v. St. Patrick's Roman Catholic Church Soc., 105 NYS 1100, Capacity of foreign corporation to sue, as dependent upon compliance with statutes. Valley Lambert & Mfg. Co. v. Driessel, 13 Idaho, 662, 93 P 765. 31, People v. McClellan, 119 App. Div. 416, 104 NYS 447; Lee v. Unkker, 77 S. C. 460, 58 SE 343; Littchen v. Burgess \[Vyo.\] 91 F 832. An objection for defect of parties cannot be taken by answer when it could have been taken by demurrer, under Rev. St. 1899, $ 602, providing that such objection may be raised by answer when not apparent in face of petition. Hudson v. Wright, 204 Mo. 412, 103 SW 8. Nonjoinder. Dixon v. Roessler, 76 S. C. 415, 57 SE 203. Misjoinder. Golden v. Moore, 126 Mo. App. 518, 104 SW 481. Misjoinder of defendant's can be objected to only by demurrer. Allen-Fleming Co. v. Southern R. Co. \[N. C.\] 58 SE 753. Lee v. Unkefer, 77 S. C. 460, 58 SE 343. Misjoinder not apparent on face of complaint, waived if not raised by answer. Code Civ. Proc., $ 488, 498, 499. Wojtoru v. Rogers, 123 App. Div. 45, 107 NYS 883. Where petition alleged that defendant informed petitioner that defendant and others, whose names petitioner did not know, were partners, the nonjoinder of such parties could be raised only by plea in abatement, giving names of such parties. Holman v. Vickery \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 416, 104 SW 430. 33. Continiani Zlinc Co. v. Amaden, Leon-ard & Co., 125 Mo. App. 512, 102 SW 1087.

10 Cur. Law. PARTITION SS 1.1089.

Objection for the purpose of saving questions as to parties for review is treated elsewhere.\[48\]

**PARTITION.**

**8 1. Nature, Right, and Propriety, 1089. The 8 5. Commissioners or References and Their Right, and Parties Entitled, 1089.** **Proceedings, 1090.** **Statutory Sale for Partition, 1090.** **8** **G. Mode of Partition and Distribution of What May be Partitioned, 1089.** **Partition of Estates of Decedents, 1091.** **8** **7. Sale and Subsequent Proceedings, 1007.** **8** **2. Jarnstiction and Venne, 1002.** **8** **S. Appeal and Review; Vacation of Sale, 1009.** **9** **4. Seope of Relief in Partition, 1095.** **8** **9. Voluntary Partition, 1009.** **8** **1.** **8** **1.** **8** **1.** **8** **1.** \*\*_Nature, right, and propriety._See a C. L. 1246._\*\*The remedy is equitable in its nature, though generally provided for by statute.\[44\]_

\_The right, and parties entitled._See a C. L. 1247._\*\*At common law, partition could be compelled only at a suit of a coparcener, either against a coparcener or one who had succeeded in the interest of a coparcener.\[45\] By St. 31 and 32, Henry VIII, the remedy was extended to joint tenants and tenants in common, whether of estates of inheritance or for life or years.\[46\] In this country the scope of the remedy is largely prescribed by statute,\[47\] but generally only joint tenants or tenants in common having a legal estate in the land can have partition,\[48\] and such procedure cannot be maintained apart from statute where there is no present right to possession,\[49\] nor can partition be compelled between a tenant in possession and mere remaindermen,\[50\] but tenants in common in possession having less than a fee simple estate may have partition.\[51\] In New-York and Illinois, present right of possession is not required,\[52\] but there must be present interest in the title.\[53\]

Partition may be had between the life tenant of an undivided part and the Co. \[N. C.\] SS 1090 PARTITION SS 1.10 Cur. Law. owner in fee of the other part at the suit of either.\[64\] In the absence of statute, partition cannot be awarded in equity any more than at law of an estate in reversion or remainder.\[65\] Partition will not lie between cotenants in the absence of actual ouster or disseisin.\[66\] Partition of the life estate may be had between life tenants.\[57\] The right of partition may be waived or suspended for a limited period of time,\[58\] and equity will not award a partition at the suit of one in violation of his own agreement \[59\] or a condition or restriction imposed upon the estate by one from whom he claims.\[60\] It is the general rule, subject to exception that partition among cotenants must embrace the entire common estate and not parcel by parcel,\[61\] and, where the estate consists of several tracts, it is not necessary that there should be assigned to each cotenant a share in each parcel.\[62\] If defendants are in adverse possession of land claiming it against plaintiffs, partition will not lie but plaintiff's rights must first be adjudicated in ejecent.\[63\] The rights of the parties in an action for partition are determined by the order which finds them to be tenants in common, ascertains and adjudges the respective shares and orders a partition thereof.\[64\] Where one of the co-owners of land is a minor, a family meeting's approval or disapproval could not control the right of the others to partition.\[65\] _Statutory sale for partition.\[66\]_ C. L. 1248--\_The statutes of nearly every state provide that in case a fair division of land cannot be made it shall be sold and the proceeds divided. Before sale can be had against objections, it must appear that the lands are so situated that partition thereof cannot be made and are of such description that it would be manifestly to the advantage of all interested that there be a sale instead of a partition.\[66\] The exercise of its discretion by the court in ordering land sold will not be disturbed except for an abuse thereof.\[67\]_What may be partitioned.\[68\]_ C. L. 1248--\_A cemetery lot is not subject to partition.\[69\] Where the restrictions, under which one takes title, prohibit partition, it cannot be granted by the court.\[69\] The grantee of rights to oil and gas does not become a coparener with the owner of the land and is not entitled to partition,\[60\] and such interest can only be partitioned by sale thereof and division of the proceeds among the parties entitled therto.\[71\] A homestead, if occupied by survivor entitled to use, is not subject to partition,\[72\] but if the widow conveys away her interest, and the guardian of a minor child is not, as provided by statute, given a right to occupy by 63. Shepperd v. Fisher, 206 Mo. 208, 103 SWV 56. Stern v. Telicek \[Iowa111 NWV 451. 67. Under the Wisconsin statute, a life tenant can only have partition of the life estate. Where reversioners are made parties fromemented so, 119 La. 692, 44 S 434. 68. McKnight v. McKnight \[Ten.\] 107 SVV 682. 67. Evidence showed a proper exercise of discretion in refusing to allot to one of the parties a part of the tract in specie. Cooper with power of disposal of othe half of land, balance t be sold and proceeds divided. McKnight v. McKnight \[Ten.\] 107 SVV 682. 68. Contract that there should be no partition action brought under the statute for five years. Roberts v. Wallace, 100 Minn. 359, 111 NWV 889. 69. Wicker v. Moore \[Neb.\] 113 NWV 148. 69. Whether plaintiffs made an agreement that widow might enjoy land during widowhood, they cannot abrogate their agreement by an action for partition. Henderson v. Henderson 88 1033. 80. Wicker v. Moore \[Neb.\] 113 NWV 148. 69. Z Ferguson v. Stringfellow \[Tex. Civ. App.\] App.\] 20 Tex. Ct. Rep. 718, 106 SWV 762. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 71. 78. 79. 81. 79. 82. 83. 84. 85. 86. 87. 88. 89. 80. 81. 82. 84. 86. 88. 89. 81. 83. 84. 87. 88. 89. 80. 82. 84. 89. 81. 84. 88. 89. 82. 85. 86. 87. 88. 89. 80. 83. 88. 89. 81. 84. 89. 82. 85. 87. 89. 81. 88. 89. 82. 86. 89. 83. 88. 89. 80. 84. 89. 81. 85. 87. 89. 81. 86. 88. 89. 82. 87. 89. 83. 89. 84. 89. 85. 86. 87. 88. 89. 88. 89. 89. 80. 89. 81. 89. 80. 81. 89.

10 Cur. Law. **PARTITION SS 1.** 1091

the court, the homestead may be partitioned." Where property is subject to lease to a lessee in possession, it cannot be partitioned as a general rule," but, if partition should be granted, it must be subject to the rights of the lessee." Co-owners of a water right have a legal right to have the water divided and their share assigned in severalty in the same manner as cotenants of real property, such partition being possible without injury to either party."

\_Partition of estates of decedents.\_See * C. L. 1248--A bill for partition by heirs, alleging the death of the father intestine, his seisin of an individied interest in land and remainder in the defendant, locating and describing the land, making parties and praying for partition, is sufficient upon which to found a decree." An executor as such cannot sue to partition real estate of the estate," but where executors take real estate under a will to sell and pay legacies and are made the residuary legatees, and where the widow renonunces under the will and elects to take her legal half of the estate, the executors became tenants in common with the widow and were entitled to sue for partition of the estate." Where the will shows that the testator did not contemplate a division of the trust property, it will not be divided." The heirs can legally proceed to partition before the settlement of the estate." Partition cannot be had until expiration of the time for filing claims, unless it is shown that all debts are paid or secured," and pendency of a partition does not prevent a sale by the administrator to pay debts." Heirs may consent to the sale of particular properties therein or to a partial partition thereof." Where dower has not been assigned, the widow is not a necessary party in an action by the children for partition of their father's estate." Where a widow was devised certain property to hold until the children became of age and then to be divided, and the children died before reaching majority, the widow, when the children would have attained majority, is entitled to partition." Where land has been set aside as a year's support to a widow and minor child, and the child marries and removes from the premises so set apart, she has no right to demand as tenant in common with her mother a partition of said lands." Under Kentucky statutes where an arbitration agreement among heirs is repudiated by one of the infant parties on coming of age, resulting in depriving the plaintiff of his land, he may have his loss equalized by contribution between the distributes." Under Missouri statutes, advancements made by an intestine to a son may be stated and adjudicated." In South Carolina, if it appears that there are outstanding debts against the estate of one to whose interest the defendant succeeded as devisee, it is proper in the decree of sale to provide for payment of such debts." The possession of parties claiming under a will is not adverse to the testator's other heirs preventing partition among them, for it must be sufficient if continued for certain time to ripen into perfect title under limitations."

**74, TS, Henderson v. Henderson \[Iowa\] 114**: he may appear in said partition suit and, on his cross-petitlon, obtain such order of sale without waiting for the expiration of the year from the ancestor's death. Myers v. Myers, 9 Ohio C. C. (N. S.) 449.

**75**: **76**: **77**: **78**: **79**: **70**: **71**: **71**: **72**: **73**: **74**: **75**: **76**: **77**: **78**: **79**: **70**: **71**: **75**: **76**: **77**: **78**: **79**: **70**: **71**: **78**: **70**: **71**: **72**: **74**: **75**: **76**: **77**: **78**: **79**: **70**: **71**: **78**: **70**: **71**: **72**: **73**: **74**: **75**: **76**: **77**: **78**: **79**: **71**: **78**: **79**: **71**: **78**: **79**: **71**: **78**: **79**: **71**: **79**: **72**: **73**: **74**: **75**: **76**: **77**: **78**: **79**: **71**: **78**: **79**: **70**: **71**: **79**: **71**: **78**: **79**: **71**: **79**: **72**: **74**: **75**: **76**: **78**: **79**: **71**: **79**: **70**: **71**: **78**: **79**: **71**: **79**: **72**: **73**: **74**: **75**: **76**: **77**: **78**: **79**: **70**: **71**: **78**: **79**: **71**: **79**: **70**: **71**: **79**: **71**: **79**: **72**: **74**: **75**: **76**: **78**:

## 2 Jurisdiction and venue

See * C. L. 1248. The proceeding to compel partition at common law was by writ of partition, \[92\] but at an early period concurrent jurisdiction was entertained in equity to enforce partition where courts of law were incapable of granting relief, but only in cases of estates entitled to partition at law, \[98\] and the jurisdiction has been vested by statute in some states in courts of law, in others in courts of equity, and in others the remedy may be pursued in either law or equity. \[94\] The district court has jurisdiction in an action of partition to construe a clause in a will determining the rights of the parties to land under a will. \[95\] The circuit court of Missouri has jurisdiction of a suit involving a resulting trust and a partition, the subject-matter being an equitable partition. \[96\] A court of equity has jurisdiction to partition land under some circumstances, although defendant claims title to the entire tract. \[97\] Where, in injunction proceedings to prevent the removal of timber, it is discovered that both parties own jointly part of the timber, it is proper, although no partition was originally prayed, to allow while the case is pending an application for partition and to appoint partitioners \[98\] despite the fact that there was a remedy at law by partition. \[99\] The chancery court having jurisdiction to make partition of land, and a petition for partition of land of a deceded having been filed before the probate of his will, it is proper for that court to retain jurisdiction and adjudge the question of the validity and amount of a claim against decedent's estate and asserted to be a lion thereon. \[1\] The party applying for the partition had the right to have the suit instituted in the division of the district court whose judge had appointed the tutor of a minor co-owner despite the fact that the property was inherited by the minor from a grandmother and her succession was opened in another division of the court. \[2\] The district court has jurisdiction in an action of partition to construe a clause in a will determining the rights of the parties to land under a will. \[9\] _Service of process_. See * C. L. 1249 _Venue_. \[98\] C. L. 890 $S$. _Procedure to obtain partition_. _Limitations_. \[98\] C. L. 1249. The suit must be commenced within the period limited by law for the recovery of reality or the possession thereof. \[9\] Delay, however, in bringing an ordinary partition suit is no bar, \[9\] yet, where neglect and abandonment were shown the court is entitled in its discretion to deny recovery. \[9\] _Parties_. \[98\] C. L. 1249. Every person having an interest in the property is a necessary party, and any one so interested is entitled to intervene. \[98\] A judgment \[98\] \[98\] \[98\] \[98\] \[98\] \[ 10 Cur. Law. PARTITION SS 3. 1093

rendered without all the persons in interest being made parties is an absolute nullity," but in the case of proper parties the action may proceed to judgment without them but will not be binding upon their interest.10 In Wisconsin by statute every person having an interest in the premises may be made a party defendant.11 Parties having no vested interest in the lands are not proper parties to be joined as plaintiffs or defendants.12 A cetenant, who has not assented to a sale by the other cotenant of one of several lots owned in common is not bound to seek partition of that lot only with the purchaser, but may join him and the other cotenant in a suit to partition all of the lots.13 The owners of some of the undivided interests in land are entitled to have their parts considered as one moiety and to unite in an application for a partition thereof.14 Trustees and devisees under a will disposing of the testator's undivided interest in land may, pending a settlement of the estate, maintain a suit for partition against the owner of the other undivided interest where the exectors under a statute having possession sufficient to maintain a suit for partition consent thereto,15 Where two of the parties holding property in division with a minor file a petition for a partition, the minor occupies the position of a defendant though he be a coplaintiff in the petition and though his tutor expresses his consent to partition.16 A defect of parties plaintiff or defendant is a ground of demurrer if the defect appears upon the face of the petition,17 otherwise the objection may be taken by answer.18

\_Pleading and evidence.\_See * C. L. 1250.It is incumbent on a plaintiff unless suit * is brought by one or more tenants in common of a vested remainder or reversion to allege and prove if denied that he and the defendant were in possession of the property as tenants in common at the time of the commencement of the suit.19 Where the statute requires a particular description of premises sought to be divided and

Ferguson v. Stringfellow & Hume \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 718, 106 SW 762. Where 889.

a testator appoints one of his sons as trusts * to be told his property during the minority of his other sons in partition proceedings in which the sons parties but not the son claiming title publicly forbade sale under the q party as trustes, court had no jurisdiction to make an order for partition as affecting interest in the land. Gunter v. Fallaw \[S. C.\] the interests of the minors. Franklin v. Doggett \[Iowa\] 112 NW 189. Where a widow's * is 11. Interest in reversion. Plano Mfg. Co. v. Gowers has not been assigned, she is not a necessary party in an action by the children for partition of their father's estate. Francis v. Tandlin \[Ala.\] 43 S 829.

Parties held not necessary: One holding a future contingent remainder interest in land is not a necessary party. Legal title in trustee with power of disposal. Collins v. Crawford \[Mo.\] 103 SW 587. One claiming an un-divided interest in lands under a conveyance executed by devisees thereof may, on the devisees becoming entitled to the possession and ownership of the estate on the death of a life beneficiary, maintain partition against the devisees without joining a lesese of the electator authorized to take charge of the estate during the beneficiary's life. Van Norden Trust Co. v. O'Donchue, 106 NYS 948.

8 The statutes as to divorce do not pre-vent a third party who,is a joint owner in lands that might be in controversy between between the estate, maintain a suit for outcome a party by intervention to a proceed-in common and now in possession of husband such land. Weaver v. Manley (Tex. Civ. App.\] 18 Tex. Ct. Rep. 200, 101 SW 848.

1094 PARTITION SS 3. 10 Cur. Law. that the interest of parties shall appear a description by street and number only and failure to state the interest of any of the parties, is a fatal defect.\[29\] After judgment for partition, but before final judgment of distribution, the trial court may amend its records and judgments to conform to the facts.\[21\] Under the Wyoming code an action to compel partition is a civil action.\[22\] Where the defendant set up a right to possession under certain tax leases and plaintiff in reply denied their existence, plaintiff was entitled to show that the leases were void on their face.\[28\] The fact that plaintiff's title is being litigated between himself and a third party is no ground for a plea in abatement in an action for partition.\[24\] An answer alleging that one of the defendants paid a portion of the purchase money is without merit in the absence of an allegation that by such payment he acquired an interest in the land.\[28\] In a partition suit where the plaintiff claims an interest by purchase at a foreclosure sale, it is no defense to his claim of title that no notice of the sale was given the mortgagor where none was provided for and there is no evidence of fraud.\[28\] A defect of parties plaintiff or defendant is a ground of demurrer if the defect appears upon the face of the petition,\[27\] otherwise the objection may be taken.by answer,\[28\] and if the objection is not raised by either demurrer or answer it is deemed waived unless it goes to the jurisdiction of the court.\[29\] Where defendants have been properly summoned in a partition suit, it is not necessary to notify them of an application for nunc pro tunc record entries after final judgment.\[30\] Under the Rev. Civil Code of Louisiana, no authorization by the judge on the advice of a family meeting is needed by the tutor of a minor in order to answer a suit for a partition brought against him.\[31\] On appeal evidence held sufficient to support a finding that defendant in a partnership accounting had surrendered all interest in the property which was to remain as a partnership asset subject to a mortgage thereon to defendant.\[32\] Where in injunction proceedings to prevent the removal of timber it is discovered that both parties jointly own part of the timber, it is proper although no partition was originally prayed for to allow, while the case is still pending, an application for partition and to appoint partition.\[33\]

\_Mode and time of trial.\_See # C. L. 002--When defendant's answer raises an issue of paramount title such as would defeat the plaintiff's action, the issue should be submitted to a jury,\[34\] but where there are no issues requiring a trial by jury, the court may refer all issues of law and fact to a master without consent.\[38\] Under the Florida statute whenever all parties to a bona fide partition are the owners in common, then all questions of the title should be settled by the chancellor.\[30\] In an action of partition where the defendant answers claiming title and waives a jury and participates in a trial of all the issues without objection, he will be held to have waived any right he may have had to have the first title determined.\[37\]

\_Costs and attorney's fees.\_See # C. L. 1252--Under the Kentucky Code, where commissioners report a fair and equal division of land, costs are correctly apportioned equally between the parties.\[38\] Under Code Civ. Proc. SS 1022 of New York providing for awarding of costs, it is error after a decision awarding costs to the plaintiff to amend by order the interlocutory judgment entered so as to award costs to the defendants.\[39\] Where a decree gives a widow certain reality as part of her share and orders the remainder sold, the proceeds to be brought into court for further orders as to distribution, the widow's share of costs and fees will be based on her whole share in the real estate and deducted from the amount still owing to her.\[40\] Where the validity of a mortgage is attacked and the issue is found in favor of the mortgage, he is entitled to the proceeds of the partition sale after payment of necessary expenses of sale and taxes constituting a lien upon the property before the deduction of costs of suit.\[41\] Many states by statute provide that a reasonable attorney's fee may be taxed as costs\[42\] except for services rendered on contested issues against the interest of the defendants.\[43\] One who purchases the rights of other parties pending a partition suit was properly required to pay that part of the lawyer's fee which would have fallen on those bought out.\[44\] Where there is no substantial contest as to the rights and interests of the parties, fees of complainant's solicitors should not be apportioned among the parties and taxed as costs.\[45\]

SS 4. \_Scope of relief in partition.\[see 8\] C. L.\[251\]--All questions of title of property sought to be partitioned may be litigated and decided in favor of the plaintiff although in the same action he obtains partition.\[46\] Where the evidence shows that partition in kind is impracticable, the court has power to decree a sale without issuing a writ for partition in kind.\[47\] Even where partition has been fully executed between coparceners, there is an implied warranty in favor of each against the others as long as the relation of priority exists among them which compels them to'make good any loss by failure of title to the part assigned to him, and he may call for and obtain repartition.\[48\] A suit for partition under the Virginia Code cannot be made a

- 3S. Mead v. Mead, 31 Ky. L. R. 70, 101 SWP
- 3S. Smith v. Smith, 121 App. Div. 480, 106
- 40. Piper v. Piper, 221 Ill. 75, 83 NE 100.
- 41. Goebbles v. Morrissey, 53 Misc. 421, 103
- 42. Since it ls the court's duty to pass upon charges of commissioners and approval must be had prior to their taxation, the failure of the plaintiff's attorney to call the courts attention to the fact that they are excessive does not constitute such negligence as deprived the attorney of the right to an allowance of fees for services rendered. Liles v. Liles \[Mo. App.\] 107 SWP 111. When an action had been commenced in partition, but afterwards the administrator of the common ancestor filed a cross-petition asking the sale of the real estate described to pay the ancestor's debts, and the property was sold on such cross-petition, no attorney fee can be allowed counsel for the plaintiff under section 5778, 832.
- Revised Statutes. Myers v. Myers, 5 Ohio N. P. (N. S.) 85. May allow as part of costs a reasonable attorney's fee under the Missouri statute. Padgett v. Smith, 206 Mo. 303, 103
- 43. Attorneys may receive a reasonable fee to be taxed as costs for services rendered other than on contested issues against the interest of the defendants. Liles v. Liles \[Mo. App.\] 107 SWP 111. In a contested action for partition and accounting between cotemants, it is error to tax one of the defendant co-tenants with solicitor's fees to go to the com- substitute for an action of ejectment.49 Where in partition proceedings one of the coparceners acquires a lien on the land allotted to the others in case of a failure of title to land allotted to him, a court of equity will enforce such lien.50 An accounting of rents may be had.51

Operation and effect of decree.See * C. L. 1253 - A decree of partition does not create new rights or estates but merely apportions and divides the pre-existing rights and estates.52 A judgment of partition and order of sale is but an interlocutory judgment,53 the order of distribution being the final judgment,54 and so where a report of sale in a partition action was filed and the cause continued for distribution, the action is still pending.55 Where there is a doubt as to whether or not a decree is final, the construction given it by the judge rendering it will be upheld.56 A judgment rendered without all the persons in interest being made parties is an absolute nullity and any sale thereunder is void.57 A standing final decree is binding as to all parties who had due notice.58

SS 5. \_Commissioners or referees and their proceedings.See * C. L. 1254 - It is within the discretion of the court to appoint commissioners to value lands and improvements,59 and under the Georgia Code a judge may appoint partitioners during vacation without a jury trial.60 In chancery proceedings for partition, the court may follow the statutory method of appointing commissioners.61 The report of commissioners will not be set aside unless for a mistake in quantity or a decided error in judgment.62 The report of referees may be confirmed although it is merely a ma 10 Cur. Law.

PARTITION SS 7.

1097

jority report.\[63\] A report of commissioners made without notice to defendants of the time when action was to be taken under the decree should not be accepted.\[64\] Omission in the report of facts concerning the character and situation of the premises where statute is silent respecting contents of report does not invalidate it.\[65\]

SS 6. _Mode of partition and distribution of property or proceeds.\[86e\]_ & C. L. 1255 --The statutory sale for partition is generally not authorized unless the land cannot be equitably divided in kind.\[66\]

_Distribution._ See * C. L. 1256--Where the defendant has received a benefit from his use of the plaintiff's share \[67\] or has committed waste thereon, he is bound to account to the plaintiff for the same.\[68\] Payment by one of the remaindermen of the taxes imposed on the land during a life tenancy may be under such circumstances that the interest of the others may be charged with their proportion thereof on partition.\[68\] Distribution must be subject to all liens with which the land was charged,\[69\] and subject to all proper charges not waived or barred by laches.\[71\]

_Owelly._ See * C. L. 1257--It is generally provided that a decree of sale and distribution of proceeds cannot be entered without there has been an averment and proof of facts showing that the lands cannot fairly be divided or equitably partitioned,\[72\] and it is the adjudication and not the sheriff's deed that conveys the ownership.\[73\] A certified copy of an order of sale not recorded is not invalid as the sheriff's authority to sell land, this making the sale void.\[74\] A judgment rendered without all the persons in interest being made parties is an absolute nullity and any sale thereunder is void.\[75\]

_Notice._ See * C. L. 1257 --The _Terms of sale of minor's interests.\[86e\]_ & C. L. 1257--The _print_ or _commission_ directed by the court to the sheriff to sell certain property constitutes his sole guide.\[76\] A sheriff has no au-

231 Ill. 285, SS 3NE 158. Evidence of amount of rent allowed by commissioner in partition proceedings between cotenants examined and allowance held excessive. Bowies V. Wood \[Miss.\] 44 S 169.

63. Bowisby v. Gregory \[Iowa\] 114 NWV 1066.

01. Robertson Consol. Land Co. v. Pauli \[W. Va.\] 59 S 1085.

01. Field v. Letter \[Vy.o\] 90 P 378.

01. Oneal v. Stimson, 61 V. Va. 551, 56 SE 859. See supra 1, Statutory Sale for Partition.

01. Defendant received a benefit of 5500 a year from his use of a part of the plaintiff's share in water rights. Roberts V. Claremont R. & L. Co. \[N. H.\] 66 A 485.

01. Under the law of West Virginia as found by the courts, the sinking of a gas or oil well on land by one tenant in common is a waste gor which Code W. Va. 1889, a 92, 5, 2, renders him liable in damages to his cotenants, and hence the sinking of such well does not give him any right or equity to have the same set off to him as an improvement made by him on a partition of the land. Danger-field v. Caldwell \[C. C.\] 151 F 554.

01. Mater v. Jones \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 438, 102 SSV 734.

01. Evidence held to show that lien against the premises had not been so paid as to allow distribution of receipts free from lien. Mathieu-son v. Magnusson, 226 Ill. 368, 80 NE 855.

01. Where the testator died in 1894, and his 1098

PARTITION SS 8.

' 10 Cur. Law.

thority to advertise property for sale before the commission to sell has been placed in his hands.\[17\] It is no ground for postponing a sale in partition brought by a trustee in bankruptcy in which it is found that he is the owner of an undivided half interest, that an appeal by the bankrupt is pending from the judgment for the trustee in an action against the bankrupt to recover such interest.\[8\]

_Confirmation of sale_,\[See 8 C. L. 1256--\] If the price realized was so low as to justify the court in concluding that a sale had not been fair to all parties concerned, confirmation as required by code would be refused and a resale ordered.\[9\] Where a judgment confirming a partition sale was collaterally attached in a suit for specific performance on the ground of lack of jurisdiction, it must be alleged that the absence of the jurisdictional fact affirmatively appeared from the record.\[80\]

\_Rights and liabilities of purchasers or bidders.\[See 8 C. L. 1256--\]Purchaser at a partition sale of an intestate's estate where the widow was not made a party to the partition acquires title to two-thirds of the tract and may maintain eigcment to cust the widow if she is in exclusive possession claiming the whole.\[81\] Where in partition proceedings one of the co-owners is a minor and the tutor and undertutor concur in opinion with the family meeting and the court approves and homologues the proceedings on petition of the tutor and orders a sale recommended by all parties, and the sale is made to a third person from which the tutor received the minor's share of the price, such purchaser is protected by the proceedings had.\[82\] Where a family meeting approved by the court reports that property is not divisible in kind, and a sale is had that question is closed as to the purchaser.\[83\] Where the wife of an intestate was not made a party defendant to partition proceedings and claiming title publicly forbade sale under the judgment, she has not lost her third interest in the land.\[84\]

_A misdescription_,\[See 8 C. L. 807--\] The intention of the parties and the direction of the court controls a misdescription in referees' deceds.\[85\] Where from all the circumstances of the case it is the evident intention to sell the entire real estate of the succession, the whole will be held to have been conveyed although the sheriff, in describing the land according to the maps of the government has omitted a, part,\[86\] and sheriff's deed in Louisiana may be corrected even by parole.\[87\]

_The omission of property_,\[See 8 C. L. 807\]

_Land_sold at a void sale_,\[See 8 C. L. 1259\]

SS 8. _Appeal and review_; _vacation of sale_,\[See 8 C. L. 1259--\] A partition decree fixing the rights and interests of the respective parties is final and appealable.\[88\] On an appeal from an order of sale entered after a final decree, the finding under the decree cannot be reviewed.\[89\] A decree will not be disturbed except for illegal or inequitable action on the part of lower court.\[90\] Where the defendant is present and without objection to the proceeding argues the case at the final hearing, he cannot successfully assign as error a failure to set the cause down for final hearing or failure to give notice of final hearing.\[91\] The fact that on actual partition of land some of 10 Cur. Law. PARTITION SS 9. 1099 the parties would be willing to pay cash for an exchange for some other tract is not ground for setting aside the partition or ordering an exchange." Under California Code providing for appeals from interlocutory judgments within sixty days after the order is made and entered an appeal taken March 18, 1906, from a judgment entered on the minutes Dec. 23, 1905, and filed with the clerk Jan. 9, 1906, is too late." A decree finding title and interest of parties and that partition be had in the proportion defined in it and leaving nothing to be done except for the commissioners appointed to divide the land if possible or if not to report the fact to the court for a decree of sale adjudicates the principles of the cause and is appealable." A decree in partition settling all the rights of the parties except as to the mere matter of detail as to whether the property was susceptible of partition is a final and appealable decree."

\_Laches.\_See * C. L. #11...Laches may bar the right to question irregularities in partition proceedings."

\_Vacation of sale.\_See * C. L. #290...Fraud in the conduct of a sale is sufficient reason for setting it aside," but the fraud cannot affect one who buys from a fraudulent purchaser in good faith." The remedy of tenants in common to set aside a partition sale on the ground of fraud and to charge the purchaser as trustee is by civil action against the cotenant and purchaser and not by motion, in the partition suit, the purchaser not being a party thereto." An application to set aside a partition sale held to contain sufficient allegations to render it an equitable petition, good as against a general demurrer, to set aside the sale for fraud.1

SS 9. \_Voluntary partition.\_See * C. L. #290...Cotenants may partition property among themselves by mutual agreement." An agreement in writing for a partition will have the same effect as an actual partition." Parol partitions which have been executed by taking possession will be enforced in equity especially where acquieseed in for a considerable period." The mutual agreement to partition is a sufficient consideration." The parties may be required to execute conveyances to carry out the terms of a voluntary partition." Where partition is made by mutual deceds between

92. Mulloy v. Mulloy, 231 11. 285, SS 83 NE 98. The fraud by which an administrator 158. * Bloom v. Gordan, 150 Cal. 762, 90 P * the succession under his administration can- 115. * Richmond v. Richmond {W. Va.} 57 SE 786. * Interests of the parties found and ordered partition and appointed commission- * The mutual agreement to partition is a sufficient condition. * The parties may be required to execute conveyances to carry out the terms of a voluntary partition." Where partition is made by mutual deceds between

01. Mulloy v. Mulloy, 231 11. 285, SS 83 NE 98. The fraud by which an administrator 158. * Bloom v. Gordan, 150 Cal. 762, 90 P * the succession under his administration can- 115. * Richmond v. Richmond {W. Va.} 57 SE 786. * Interests of the parties found and ordered partition and appointed commission- * The mutual agreement to partition is a sufficient condition. * The parties may be required to execute conveyances to carry out the terms of a voluntary partition." Where partition is made by mutual deceds between

01. Moltov v. Mulloy, 231 11. 285, SS 83 NE 98. The fraud by which an administrator 158. * Bloom v. Gordan, 150 Cal. 762, 90 P * the succession under his administration can- 115. * Richmond v. Richmond {W. Va.} 57 SE 786. * Interests of the parties found and ordered partition and appointed commission- * The mutual agreement to partition is a sufficient condition. * The parties may be required to execute conveyances to carry out the terms of a voluntary partition." Where partition is made by mutual deceds between

01. Moltov v. Mulloy, 231 11. 285, SS 83 NE 98. The fraud by which an administrator 158. * Bloom v. Gordan, 150 Cal. 762, 90 P * the succession under his administration can- 115. * Richmond v. Richmond {W. Va.} 57 SE 786. * Interests of the parties found and ordered partition and appointed commission- * The mutual agreement to partition is a sufficient condition. * The parties may be required to execute conveyances to carry out the terms of a voluntary partition." Where partition is made by mutual deceds between

01. Moltov v. Mulloy, 231 11. 285, SS 83 NE 98. The fraud by which an administrator 158. * Bloom v. Gordan, 150 Cal. 762, 90 P * the succession under his administration can- 115. * Richmond v. Richmond {W. Va.} 57 SE 786. * Interests of the parties found and ordered partition and appointed commission- * The mutual agreement to partition is a sufficient condition. * The parties may be required to execute conveyances to carry out the terms of a voluntary partition." Where partition is made by mutual deceds between

01. Moltov v. Mulloy, 231 11. 285, SS 83 NE 98. The fraud by which an administrator 158. * Bloom v. Gordan, 150 Cal. 762, 90 P * the succession under his administration can- 115. * Richmond v. Richmond {W. Va.} 57 SE 786. * Interests of the parties found and ordered partition and appointed commission- * The mutual agreement to partition is a sufficient condition. * The parties may be required to the cotenants, the deeds should be read and construed so as to carry into effect the true intent of the parties.7 In a voluntary partition by deed one cotenant does not derive such title or interest from the other that either case be said to hold under the other.8 Where defendants obtained title to an undivided half of certain land and took possession of the north half, making improvements thereon and it appeared that the difference in value was in favor of the south half, defendants would be entitled to have the north half set off to them in partition.9 A conveyance by one tenant in common of a part of the common property is an election to take this as his share and is binding on all the cotenants if enough is left for their full share and they acquiesce in or ratify such partition.10 An informal partition not binding on minors and married women but treated as a settlement for many years is effective evidence of the discharge of a resulting trust in favor of the heirs of one brother where the other upon death of the first brother took title to the land under a bond for a deed running to both.11 Where a family who had inherited certain real estate agreed to an amicable partition, the heirs joining in quit-claim deeds to each other in which deeds the names of their husbands were inserted, the heirs took title by inheritance and the quit-claim deeds will be regarded as merely the means adopted to sever the tenancy in common.12 Parties by agreement express or implied may bar themselves of a right to partition.14

**PARTNERSHIP.**

**SS 1. What Consultutes, 1104. Essential Elements, 1103. Intent as Test, 1108.**

Concrete Illustrations, 1104. Who May Become Partners, 1104. For. 8. A. By Firm or Partner, 1112.\*\*

**ship, 1104. Stockholders in Illegal or Defective Corporations, 1105.**

**Evidence, 1105. Partnership is a 8. Mixed Question of Law and Fact, 1106. Partnership as to Third Persons, 1106.**

**SS 2. Firm Name, Trade Mark, and Good Wills, 1106.**

**SS 3. Firm Capital and Property, 1108. How Title is Held, 1107. Partner's Interest, 1107.**

**4. Rights and Lababilities as to Third Persons, 1107.**

**A. Power of Partner to Blind Firm, 1107.**

**B. Effect of Note Given by Partner for**

**Firm Debt. 1110.**

**?C. Commencement and Termination of Liability, 1110.**

**tition is made by heirs and an award is made by parties selected to make the division fairly and justify, the chancellor will require the parties to carry the award into effect by executing conveyances. Bryson's Adm'r v. Biggs \[Key.\] 104 SVW 982.**

**7. Competent to show that only intention was partition and no other consideration passed. Cassetvens v. Cassetvens, 227 Ill. 647, 81 NE 709.**

**8. Each party transfers or releases his interest in all the land for exclusive fixed possession in a part. Cassetvens v. Cassetvens, 227 Ill. 647, 81 NE 709.**

**9. Raker v. Hamblen \[Tex. Civ. App.\] 107 SV 577.**

**10. Berryman v. Biddle \[Tex. Civ. App.\] 107 SVW 922: Berryman v. McDonald \[Tex. Civ. App.\] 107 SVW 944.**

**11. Scranton v. Campbell \[Tex. Civ. App.\] 117 Tex. Ct. Rep. 1014, 101 SVW 285.**

**12. The Insertion of names of the husbands of the heirs in quitclaim deeds executed on amicable partition did not invest the husbands with title to any part of the prop. party, but was a mistake of the servencer, the husbands holding an undivided one-half of the property in trust for their wives, which upon the death of the wives descends to their heirs. Under such circumstances the occupation of the property by the husband of one of the heirs during her lifetime was not adverse. Waterman v. Waterman, 10 Ohio C. C. (N. S) 605.**

**13. Henderson v. Henderson \[Iowa\] 114 N NV 178.** 10 Cur. Law. PARTNERSHIP SS 1.1101 1101

Incorporated \[14\] and unincorporated \[18\] associations not dependent on the personality of their members, as is the joint or common ownership of property.\[19\] Matters peculiar to partnerships of attorneys at law are treated in an appropriate topic.\[17\]

SS 1. \_What constitutes. Definition and kinds.\_Soe S C. L. 1261--Partnership is the relation which subsists between persons carrying on a business in common, with a view of profit.\[18\] Though resting in contract, it is in itself a status rather than a contract.\[19\] In Idaho a mining partnership is defined by statute.\[26\] United working of

14. See Corporations, 9 C. L. 733.

01. See Associations and Societies, 9 C. L. 874; Joint Stock Companies, 10 C. L. 462.

01. See "Tenants in Common and Joint Tennis, 8 C. L. 2114.

01. See Attorneys and Counselors, 9 C. L. 815.

01. Manson v. Williams \[C. C. A.\] 153 F 525. Where several persons engage in a commercial enterprise under a firm name, (Vacaro v. Security Bk., 108 F 436, pracceed contributing his credit and services to business upon an agreement to divide net 1 (19) of the Act, and the fact that a person profits, a partnership exists. Hand Trading Co. v. Jones, 129 G. 853, 60 SE 164. A contact involving mutual consent of the parties, entered into between two or more persons for the purpose of carrying on a trade or business, with right to 'participate in profits thereof, constitutes a partnership, unless there are other facts and circumstances which show that some other relation exists. Bryant v. Fitzsimmons \[Md.\] 67 A 366.

01. See Shummker, Part. p. 3.

NOTE. The Entity Theory of Partnership Under the Bankruptcy Act of 1808: It is now settled that when congress enacted in a 1898 that "persons shall include partner-ships," 8 1 (19), and that "a partnership may be adjudicated a bankrupt," 8 5a, it thereby made a partnership legal entity. In re Meyer, 98 F 976; In re Mercur, 116 F 658, 658, 681. 122 F 984. Thus, a firm may be declared bankrupt though one member be a minor (In re Dunhrsan, 95 F 428), or in-sane (In re Stein & Co., 127 F 447), and it has even been held that the partnership proceedings and the partners' proceedings are distinct cases, requiring payment of separate fees in each (In re Barden, 101 F 555; contra, In re Gay, 98 F 870). Acts of bankruptcy by the firm and by the individual partners are clearly distinguished (Hartman v. Peters & Co., 146 F 82),and the adjudil-cation is made accordingly (In re Hale, 107 F 432). In at least one reported case, the issue of the firm's solvency was confined to partnership assets and partnership debts (In re McMurtrey & Smith, 142 F 853; Burdick, Part. 12d Ed. 306). Merechants have always regarded the firm as something distinct from its members (Burdick, Part. \[2d Ed.\] 166), but the Federal judges, schooled in the common-law conception of a partner-shlp as merely an aggregation of individual-ais (Id. 81), the doctrine recognized in the Bamruptcy Act of 1867 by 8 &, found it difficult, especially at first, to apply the entity theory to all circumstances. This led to the view that a partnership ought not to be adjudicated bankrupt apart from any of its members (In re Forbes, 128 F 137, 139), and to theories whereby at least one partner might also be declared bankrupt (Chemical Nat. Bk. v. Meyer, 93 F 836). Further to avoid the bankruptcy of merely the partner- partners may have jurisdiction of an 1103 PARTNERSHIP SS 1. 10 Cur. Law.

a mine by several owners or several holders of leasehold interests creates a mining partnership.\[21\] A partnership may be formed for a single transaction.\[22\] It is for most legal purposes a distinct entity, separate in estate, in rights, and in obligations from the partners who compose it.\[23\] Its existence may be dependent on the performance of a condition.\[24\]

partners and of the administration of the partnership and individual property," but

the other members may liquidate ($ 5h), and partnership and individual property," but

flrm creditors can be paid so far as possible

this ought to be read with $ 2 (1) and 32

in the liquidation proceedings. They may

and General Order VI, and its purpose is
also prove their claims against the bank-

apparently to have the cases of the partner

rupt (In re Bates, 100 F 283), although they

ship and all the partners administered for

cannot receive any dividend until after the

the sake of convenience in one district. Col-

individual creditors have been paid in full

ller, Bank. (6th Ed.) SS2. As to partners not

($ 5f: In re Wilcox, 94 F 84: In re Janes, 133

adjudicated, the power of the court certainly

F 912). The disclosure is, according to the

ought to go no further than jurisdiction of

best authority, a valid bar to partnership and

their persons to compel compliance with 7

Individual obligations. N. Y. Institution v.

(Duties of Bankrupts). The statute, although

Crockett, 117 Apr. Div. LN. Y.J. 269: 7 Column-

considering the firm an entity for bank-

his Law Review, 273. On the other hand, if

rupt purposes even after dissolution ($ 5a), the firm commits an act of bankruptgy, the

nevertheless recognizes the common-law rule

partnership entity is adjudicated "a bankrupt" ($ 5a); the partnership creditors elect

all other purposes a dissolution of the firm

the trustee ($ 5b, for $ 5h seems applicable

(Burdick, Part. \[Ed.) 343), and provides

only to the bankruptgy of a partner when the

for the trustee's receiving the bankrupt's

firm is not declared a bankrupt. In re Harris,

interest in the firm after liquidation and

4 Am. B. R. 133; Collier, Bank, (6th Ed.), 87);

accounting by the nonbankrupt partner or

the partnership assets are collected and the

partners ($ 6h); but this does not by any

partnership debts are paid. The discharge of

implication give the trustee of the bank-

the partnership entity would be nullity

rupt partner the power to take the firm's

(Chemical Nat. Bk. V. Meyer, 92 F 896, 899;

property (In re Mercur, 122 F 384), nor that

In re. Forbes, 128 F 137, 139, 140), for the

of the other partners (cf. Amnsick V. Bean,

partners, whether regarded as oddobtors with

23 Wall. \[U. S.\] 395). Similarly, there is no

their firm, or is usual-superties for its debts,

reason in allowing the property of a non-

bankrupt partner to be taken upon an ad-

result would be much like the bankruptcy

judication of the partnership entity.

On the other hand, wherever In re Meyer,

der a statutory liability for its debts. See

$ 5f: 976, is followed, the distinction between

- duty. The net result of a partnership bank-

acts of bankrupt by the partnership and

such acts by the partners, while still

it estate; the partners must then either pay

portant upon the question of adjudication

(Hartman V. Peters & Co., 146 F 82),

enable to do so become voluntary bank-

comes practically immaterial as to admin-

rupts; or the partnership creditors, who are

iteration and discharge (Dickex v. Barnes, 140

F 849, 6 L. R. A. \[N. S.\] 654). Although both

them to be adjudicated involuntary bank-

firm and individual property is thus taken

rules. Matter of Hee, 13 Am. B. R. 8,...From

and administered in the firm proceeding, the

discharge, despite some dicts, seems never

to have been granted to the firm only, but

lev. St. 1887, $ 3300, 3309, co-owners must

invarably to the individual partners. In re

actually engage in working mine or in busi-

Farley, 116 F 359. Because of these decli-

ness of operating it. Octangency of persons

sions, and since in practice a firm is not

likely to get into bankruptgy if any part-

that the partners. Madar v. Norman, 13

ner is solvent, it has become the most usual

tradec to adjudicate the firm and all the

tion may be established among such co-

individual partners (In re Forbes, 128 F

137, 139; In re Grant Bros., 106 F 496, 489;

Collier, Bank. \[6th Ed.) 80, to marshall

the same as to all and distribute them as provided

by $ 6f of the act, * 10 Cur. Law PARTNERSHIP SS 1. 1103

\_Essential elements.\_See * C. L. 1262--The essential elements of a partnership are an agreement between the parties,\[25\] supported by a consideration,\[26\] to carry on some lawful business or adventure \[27\] in which they are to have a community of interest,\[28\] each to contribute property or services,\[29\] and each to share in the profits \[30\] and losses.\[31\] But a mere participation in profits and losses does not necessarily constitute a partnership between the parties so participating.\[32\] One who is only interested in profits as compensation for services rendered or money advanced is not a partner.\[33\] But participation in the profits raises a presumption of the existence of a partnership.\[34\]

\_Intent as test.\_See * C. L. 1264--Intention is controlling in determining whether a partnership exists.\[35\] The intention is to be determined by the contract itself and the surrounding circumstances.\[36\]

members composing it. In accordance with this rule, what is called the property of the individual used, the contract is one of partnership, partners, and what are called the debts of the partners. The right to share profits is an elements. * * Notwithstanding the non-recognition of the firm as a distinct legal \[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[ & 1104 PARTNERSHIP SS 1. 10 Cur. Law.

_Concrete illustrations_ of the principles that have been stated will be found in the appended note.${}^{\\text{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{S1}{}{}\]}}}}$

_Who may become partners.${}^{\\text{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{S1}{}{}\]}}}}$_ \*\*C. L. 1268--\*\*That one is a member of a general partnership engaged in the real estate business does not preclude his entering into a particular partnership with a third person relating to a particular tract of land.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{S1}{}{}\]}}}$

_Formalities of contract of partnership.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{S1}{}{}\]}}}$_ \*\*See S. L. 1268--**Although there is some conflict of authority upon the question,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{S1}{}{}\]}}}$** the weight thereof supports the rule that a

Min. Co. v. Swope, 204 Mo. 48, 102 SW 561;

Nugent v. Armour Packing Co. \[Mo. App.\]

location of business concerns, formed for 106 SW 648; Frankel v. Hillier \[N. D.\] 113 NW 1067. As between parties there can be

dealing between the members thereof and no partnership unless one was intended.

Miller, DuBrul & Peters Mfg. Co., 7, Laidwin-

Jostment of questions arising between them, Dun-Gordon Co., 4 Ohlo N. P. (N. S) 654.

18 not a partnership. Webster v. Tapplin,

36. Diamond Creek Consol. Gold & Silver

Rice & Co., 9 Ohio C. C. (N. S) 567; Miller,

Min. Co. v. Swope, 204 Mo. 48, 102 SW 561.

DuBrul & Peters Mfg. Co. v. Ladiav-Dunn-

Gordon Co., 4 Ohlo N. P. (N. S) 564. A

termined by the terms of the agreement and

contract by which A agrees that if within the nature of the transaction rather than by

ten years 28 shall sell certain lands for him

what the parties call themselves. Sain v.

he shall have half the profits in excess of

Rooney, 125 Mo. App. 176, 101 SW 1127.

the sum A paid for the lands and interest

tenton is to be determined not by partnership

thereon at ten per cent, but that if at expira-

expressions, but by the nature and effect of

tion of five years no sale has been made,

the whole contract. Nugent v. Armour

contract shall terminate, and if at expiration

Packing Co. \[Mo. App.\] 108 SW 648. Partial-

of ten years enough has not been realized to

pation in the profits and losses of a going

pay purchase money and interest, B shall be

business or undertaking affords the usual

allowed five per cent on sales made, is not a

test of the existence of an intention to form

contract of partnership. Corbin v. Holmes

a partnership. Id. But an agreement for

\[C. C. A.\] 154 F 69. A, B and C leased land,

such participation is not conclusive but only

A taking a half interest and B and C the

prima facie proof of such intention, which

other half. A treated her interest as a

may be rebutted by evidence of other facts

arate entity by causing her interest in

and circumstances. Id.

My. \[Parnership created: An agreement by

bennet. Heid that leases did not constitute

A and B that l had a shall be purchased on

\[Isesses a partnership. Kershaw v. Simpson

joint account and title taken by S and held

\[Wash.\] 89 P 88. Where W and B made a

for their joint benefit, and that each shall

contract to raise rice, W to furnish land,

pay one-half purchase price and each own

teams, tools, seed rice, and to pay for

an undivided one-half interest, makes A and

Hreshing, and B to furnish labor, shelter,

B partners in enterprise. Koyer, Wills-

and feed teams, make necessary repairs to

mon, 150 Ca1. 786, 90 P 135. Pastets

tools, and furnish water for irrigation, gross

held to show an agreement for a partnership

proceeds to be equally divided, no partner-

to deal in real estate. Langley, V. Sanborn

ship was created, but parties were merely

\[Wis.\] 114 NW 787. An agreement between

S and M by which the latter is to care for

Mills V. Bridges \[Tex. City, App.\] 18 Tex. Ct.

and dispose of certain horses purchasher by

former and after turning over to 10 Cur. Law. PARTNERSHIP SS 1.105

partnership for the purchase and sale of land for speculation, the profits to be divided among the partners, is valid where verbally made,40 and the existence of the partnership and the extent of the interest of the partners may be shown by parol.41

\_Stockholders in illegal or defective corporations.\_See * C. L. 1265--Incorporators will not be held liable as partners merely because the organization of the corporation is defective.42 But to exempt them from such liability there must be at least a colorable compliance with the requirements of the charter or law under which they assume to act and a user of the rights claimed thereunder.43 In the absence of fraud a creditor who has dealt with a de facto corporation in its corporate capacity is estopped to charge the stockholders as partners with the corporate debt.44

\_Evidence.\_See * C. L. 1266--Evidence of distinctest witnesses is admissible to prove that at the date of the contract sued on the defendants, were not copartners.45 A statement or admission by a partner of a fact concerning partnership transactions is admissible against all the partners.46 But the mere declaration of a partner, whether written or spoken, is not admissible to prove the existence of a partnership.47 But where there is independent prima facie proof of a partnership, the declarations of an alleged partner are admissible in corroboration.48 That one held himself out as a partner cannot be shown by the declaration of a person who subsequently became his partner, made before the partnership was formed.49 Where the admissions of a defendant who has filed a plea of no partnership are offered in evidence against him, they should be scanned with care.50 The usual rules prevail as to the materiality of the evidence 51 and as to the admissibility of impeaching evidence.52 The relation may be established by the testimony of the employees of the partnership.58 Declarations or admissions of a partner are admissible to prove partnership.54 Partnership acts may be proved to show the relation.55

_Partnership is a mixed question of-law and fact.50--If there is evidence thereof it is for the jury.57_

\_Pamership as to third persons.\_See * C. L. 1267--An estopped may arise against one

40. Miller v. Ferguson \[Ya.\] $7 SE 649. Partnership for the purpose of buying, holding, and selling lands may be formed by a parol agreement. Koyer v. Willmon, 150 Cal. 785, 90 P 135.

01. Miller v. Ferguson \[Ya.\] $7 SE 649.

42, 43. Brooke v. Day, 129 Ga. 694, 59 SE 159.

44. Western Inv. Co. v. Davis \[Ind. T.\] 104 SWV 573.

01. American Oileloth Co. v. Alper, 104 NYS

01. Declaration that he did a specific act, which act was clearly within actual or apparent scope of partnership business, is such a statement or admission and not a declaration.

01. Davidson v. Waxelbaum, 2 Ga. App. 432, 58 SE 687.

01. Davidson v. Waxelbaum, 2 Ga. App. 432, 58 SE 687.

01. Davidson v. Waxelbaum, 2 Ga. App. 432, 58 SE 687. In an action against alleged partners in a firm which had succeeded to the rights of a bank, a resolution of board of directors of bank is admissible to show that one of defendants is a partner where such defendant voted upon resolution as a director and made no objection to its reetals.

01. Declaration by L that G "was to become"" this partner. James Reilly Repair & Supply Co. v. Gallagher, 108 NYS 655.

10 Curr. L--70.

-

1106 PARTNERSHIP SS 2.10 Cur. Law. to deny his liability as a partner, either by reason of admissions acted on,\[58\] by the parties holding themselves out as partners,\[59\] by the prior existence of a partnership of the dissolution of which proper notice was not given,\[60\] or by any other sufficient state of facts to create such an estoppel\[61\] if the party seeking to hold him was misled by the putative status and acted thereon.\[52\]

SS 2. \_Firm name, trade mark, and good will.\[See * C. L. 1268--When dissolution is caused by the death of a partner, the same general principles apply to the disposal of the good will as in other cases of dissolution where no agreement has been made concerning it.\[63\]

SS 3. \_Firm capital and property. In general.\[See * C. L. 1269--The effects of a partnership are vested, in solido, in the partnership, and not in the constitutent members in severalty.\[64\] Whether property belongs to a firm or to the members thereof individually is a question of intention.\[65\] The intention that really shall become partnership property must be distinctly manifested.\[65\] Evidence to be admissible upon the question whether property belongs to a firm or to the members individually must be material.\[67\] The same formalities are required in the conveyance of partnership real estate as that of individuals.\[68\] An assignment by a partnership of all its profits and assets carries with it an indebtedness of a partner who has made an overdraft of profits.\[69\]

SSs. Mims v. Brook \[Ga. App.\] 59 SE 711.1 A declaration of one person that another is his partner is not admissible to charge latter unless made in his presence and hearing, or under such circumstances as make it reasonable, but not as possible.\[68\] The same formalities are required in the conveyance of partnership real estate as that of individuals.\[68\] An assignment by a partnership of all its profits and assets carries with it an indebtedness of a partner who has made an overdraft of profits.\[69\]

SSs. Mims v. Brook \[Ga. App.\] 59 SE 711.

10 Cur. Law. PARTNERSHIP SS 4A. 1107

\_How title is held.\_See s C. L. 1260.--In relation to property which is the subject of the partnership agreement, each partner occupies the position of a trustee to the other.70 The legal title to an interest in land created by a mechanic's lien vests, not in the partnership, but in its individual members, the partnership acquiring only an equitable interest.71 Upon the dissolution of the partnership, no formal or written assignment is necessary to convey such equitable title from the partnership to the individual members.72

\_Partner's interest.\_See s C. L. 1270.--A partner has a lien on the partnership assets for his portion thereof after payment of the firm debts.73 A partner may dispose of his interest in the partnership property 74 subject to the rights, liabilities, and equities of the partnership.75 But he cannot transfer an individual interest in any specific article belonging to the firm.76 A transfer of the partner's interest merely entitles the transefree to receive such partner's share of what may remain after a settlement of the partnership affairs and the payment of the partnership debts.77 What passes by an assignment of a partnership agreement must be determined by an interpretation of the language of the agreement.78 A verbal agreement to purchase an interest in a partnership involving title to lands is invalid under the statute of frauds.79

SS 4. \_Rights, and liabilities as to third persons.\_See s C. L. 1270.--Partners are jointly 80 and severally liable, and payment by one partner of his part of the liability and his consequent release does not discharge the other partner.81 The liability of partners is not to be determined by the extent or variety of the business affairs in which they are engaged.82 Where a partner individually contracts for services to be performed for the firm, he is individually liable therefor.83 A note made for the accommodation of a partnership by one not a partner and indorsed by the firm is a partnership debt.84

(SS 4) \_A. Power of partner to bind firm. In general; contracts.\_See s C. L. 1270.--Of course no power rests in a partner to bind his copartner's until the formation of the partnership.85 A partnership is bound by the acts and contracts of a partner who

by him was an overdraft of profits. Hoey v. undivided interest in corpus of firm property Fechtenberg, 106 NYS 1090. Where, at time owned by vendor. Day v. Stafford \[Mo. App.\] of transfer of assets of partnership to corporation, partner who had made an overdraft of profits entered on firm's books the sum withdrawn as a debt due from him to firm, he is estopped from asserting as against corporation that the money was withdrawn by him under claim of right. Id. 70. Kayer v. Willmon, 150 Cal. 78, 90 P 135. Where a partner purchases with his own money property that it was agreed should be purchased upon joint account of partners, he is a trustee for partnership. Id. 71. Soule v. Borelli \[Conn.\] 68 A 97. 72. The "equitable title passes with the transfer of the debt secured. Soule v. Borelli \[Conn.\] 68 A 97. 73. Harlan v. Bennett, Robbins \[Ky.\] 106 SW 287. 74. Day v. Stafford \[Mo. App.\] 107 SW 483; Carlisle Gas & Water Co. v. Carlisle Borough \[Pa.\] 67 A 844. 75. Carlisle Gas & Water Co. v. Carlisle \[Pa.\] 67 A 844. 76. Simmons v. Rowe, 4 Cal. App. 752, 89 P 621. 77. Simmons v. Rowe, 4 Cal. App. 752, 89 P 621; Day_v. Stafford \[Mo. App.\] 107 SW 483. And this whether transfer is by voluntary act or by legal process. Simmons v. Rowe, 4 Cal. App. 752, 89 P 621. A sale of a partner's interest does not invested wedge with 1108 PARTNERSHIP SS 4A. 10 Cur. Law. acts within the scope of his authority as such,\[88\] unless the transaction is tainted with fraud.\[87\] But the power of a partner over the property of the partnership is confined to the scope of the partnership business.\[88\] The scope of such business is to be determined from its nature and from the terms of the partnership agreement.\[89\] After a partnership has been dissolved by operation of law, it is without the scope of a new partnership to bind such partnership for payment of debts of the dissolved partnership.\[90\] If the authority and duties of each member of a trading partnership be expressly defined or limited, any act in excess of such limitations is not binding upon the firm\[91\] except as to third persons who without knowledge of the limitations rely upon the implied authority of the individual members.\[92\] Where a partnership agreement provides that a partner shall manage the business, he has authority to pledge the credit of the firm.\[93\] A partner may execute a chattel mortgage on partnership goods to secure a partnership debt.\[94\] Partners may confer upon a co-partner by power of attorney authority to sign an instrument in their names.\[95\] Where such a power is a continuing one, revocation by act of the partners will not be presumed during the existence of the partnership.\[96\] In North Dakota a partner has no implied power to sell the good will of the partnership business.\[97\] A partnership is not liable for goods furnished a partner on his personal account.\[98\] Whether the act of a partner is within the scope of his authority is a question of fact.\[99\] Although a partner exceeded his authority in contracting in behalf of the firm, if the contract is not entire and indivisible it will be upheld so far as the authority extended.\[1\] In Michigan one partner cannot bind the firm to a liability in excess of $500.\[2\] A part-

SG. Costello v. Scott \[Nev.\] 93 P. L. One cannot avoid liability for the acts of his by any such contract without their consent, partner in the ordinary business of the firm \[11\]. Where partnership business is keeping on the ground that he did not know of such a. Jerry stable, a partner has no implied acts. Priddy v. MacKenzie, 205 Mo. 151, authority, without consent of his copartner. 103 SVP 868.

SG. Evidence held not to show fraud in the world of the firm, if the contract transaction. Costello v. Scott \[Nev.\] 93 P. L. 88, Langlev v. Sperry \[N. J. Eq.\] 66 A 1062. In such case 1062. But so far as third persons who deal with a partner without notice are concerned, the copartners are bound if the \[11\].

R0. Meinhard Schaul & Co. v. Folsom transaction be such as the public may re-

R0. Meinhard Schaul & Co. v. Folsom sonably conclude is directly and necessarily

P1, 92. First Nat. Ek. of Brawerville v. embraced within the partnership business

Sudden \[IMin.\] 115 NWF 198. as being incident and appropriate to such

Busmess according to the course and usage

120. And our dealing with him is not of conducting it. Merrill v. Ofryran \[Vash.\], effected by an oral change in the agree-

93 P. 91. Under Wilson's Rev. & Ann.

Tl. St. 1903, a partnership obligation executed by one partner without knowledge or

95. So held under Rev. St. 1859, $ 280, consent of other binds firm and each general partner if it is within reasonable con-

property to be signed by each partner.

duct of partnership business. Shapev.

Oak Creek Valley Bk, \[OK1\] 91 P. L19.

89. Acts within scope of partnership business.

ness: Prochase of lumber for construction

endoses confers authority to include im of warehouse at a terminal point is within

Indebetness covered by mortgage a note-

scope of partnership business of a firm

made for accommodation of firm and en-

operating river steamers and handling

forgend by it. Id.

freight. Merrill v. O'Bryan \[Vash.\] 93 P

91. Member of mining partnership help

01. Another to contract for location work

upon certain claims and to transfer surface

Pierce \[N. J.\] 112 NWF 1995.

rights upon such claims in payment there-

95. Hanrahan v. Freeman, 35 Mont. 584,

for. Costello v. Scott \[Nev.\] 93 P. L.

Acts not within scope of partnership business: A contract of surestrophy, nonparty

inness: A contract of surestrophy, nonparty

or accommodation that is not with-

in the legitimate business of an ordinary partnership. Durden v. Dekle \[Ga. App.\]

69 SB 315. Hence one partner has not

100.

10 Cur. Law. PARTNERSHIP SS 4A. 1109

ner will be bound by an act of his copartner in excess of his authority if he ratifies it."

\_Partnership bills and notes.\_Sees & C. L. 1271.--A partner may bind his copartners by the execution of a negotiable instrument where his authority extends to the execution of such instruments.4 Members of trading partnerships have implied authority to pledge the credit of the firm by the issuance of negotiable instruments in furtherance of the partnership business.5 But such authority is only an inference or presumption arising from the relationship of the parties, and is not conclusive.6 To make an instrument executed by a partner binding on the firm, the partner must have been acting for the firm in executing it.7 Where no firm name has been adopted, a note in the name of one of the partners will bind the firm if made for firm purposes, and such is the understanding of the parties.8 An acceptance of a draft by a partner in the name of the firm will bind the partnership as against a bona fide holder, although such acceptance was not within the scope of the partnership authority conferred upon such partner and was without the knowledge or consent of his copartner.9 A firm note executed by a partner without authority may become binding on his copartners by ratification.10 A note under seal, executed by a partner in the firm name, is the simple contract of the firm.11 Under the negotiable instruments law a partner who individually indorses a firm note is individually liable as an indorser.12

\_Notice to a partner is notice to the firm.\_18

\_Liability for torts and crimes.\_Sees & C. L. 1271.--Where a partner's negligence in the

ment involving a liability of more than

5500 is not binding upon a partnership

Combilant in action upon hill of exchange
unless reduced to writing and signed by

as caused by one member upon another of a
at least two managers. Rhoades v. Malta

trading partnership held to show issuance

Vita Pure Food Co., 149 Mich. 285, 14 Det.

Leger. N. 434, 112 NVP 940.

1.2.

1110 PARTNERSHIP SS 4B. 10 Cur. Law.

performance of the business of the firm results in damage to one dealing with the firm, the other partners are liable therefor.14 If a partner in conducting the business of a firm causes a libel to be published, the firm will be liable as well as the individual partner.15 Where a partnership commits a breach of municipal ordinance, each partner is individually liable.16

(SS 4) \_B. Effect of note given by partner for firm debt.--A note given by a partner for a firm debt does not release his copartner unless the creditor agrees that it shall have that effect.17

(SS 4) \_C. Commencement and termination of liability.\_See S. C. L. 1172

_Work done before partnership contract became operative.--Parties to a partnership contract may become liable for work done for their benefit before the contract became operative.18_

_Notice of dissolution and right of third parties dealing with firm after apparent dissolution.See S. C. L. 1172--To relieve a retiring partner from further liability as a partner, proper notice of dissolution must be given.19 Dissolution must be made known to creditors and to the world.20 Actual notice must be given to creditors.21 As to others, notice by publication is sufficient.22 The burden is upon the defendant to show that plaintiff received notice,22 and this he must show by competent evidence.24_

_Creditor, after dissolution, taking partner's note.--After dissolution a partner's liability for a partnership indebtedness may be terminated by the creditor's taking from his copartner a note in renewal and extension of such indebtedness.25_

Footnote 25: http://www.cid.com 10 Cur. Law. PARTINRESHIP SS 5. 1111

\_Discharge in bankruptcy.--\_The discharge of the partnership in bankruptcy proceedings where the partners are not adjudicated bankrupt does not discharge the 'partners from their liability for the partnership debts.28

\_Novation.\_See * C. L. 927.--\_Where a partnership creditor agrees in consideration of the payment of a part of the debt by the retiring partner and the promise of the continuing partner to pay the remainder to release the retiring partner, there is a novation and the retiring partner is released.27

(SS 4) _D. Application of assets_, \_to liabilities.\_See * C. L. 1275.--\_Partnership property must be applied first to the payment of partnership debts.28 Only the balance due each partner after settlement between them is subject to the satisfaction of individual debts.29 Partners cannot claim exemptions out of partnership property as against partnership creditors.20 Where all the creditors are on the same plane in the order in which assets are to be marshalled for distribution among them, any agreement favoring a few at the expense of the others will not be upheld unless made with the assent of all.21 Partnership creditors may attach the firm property though one of the firm is a bankrupt.32

SS 5. \_Rights of partners inter se. Duty to observe good faith.\_See * C. L. 1278.--\_Partners must observe the utmost good faith towards each other in all their transactions,33 and one will not be permitted by the exercise of bad faith to acquire an unfair advantage over the other.34 A sale by one partner to another of his partnership interest will be sustained only when it is made for a fair consideration and upon a full disclosure of all important information as to value.35 Concealment of a material fact is sufficient to annul the compact.38 In the case of such a sale if the parties have not equal means of information respecting the firm's indebtedness, the maxim caveat emptor will not apply.37 Where the sale of a partner's interest is induced by the fraud of his copartners, he is entitled to a cancellation of the conveyance and to recover the profits which would have accreted to him if it had not been made.38

consent of partner. Mims v. Brook \[Ga. 32, Pelzer Mfg. Co. v. Pitts, 76 S. C. 349, App.\] 59 SE 711. 20. In re Bertenshaw \[C. C. A.\] 157 F. 33. 77. 77.

Participation in management and share in profits and losses.--Each partner, in the absence of an agreement to the contrary, has the right to share in the management of the firm affairs and to participate in the profits.\[39\] The measure in which the profits and losses shall be shared by the partners respectively is to be determined by the terms of the partnership agreement.\[40\] But in the absence of any evidence showing a different intention, an equal distribution of profits and losses will be presumed to have been intended.\[41\] The fact that in some years a partner for the benefit of employees, orally waives his claim to the percentage of profits to which he is entitled does not preclude him from thereafter claiming that percentage.\[42\] One partner may give his time and attention to private affairs if the firm's business does not suffer thereby.\[43\] A surviving partner may in one action recover demands due him individually and as a surviving partner.\[44\] Unless done in bad faith, the withdrawal of partnership assets by one partner and the use thereof in the improvement of his wife's separate property gives the remaining partners no lien thereon.\[45\] In absence of a contract, partners are entitled to no salary from the partnership assets.\[46\]

Division of profits.--One of the ordinary incidents of an equal partnership is the division of profits at short intervals.\[47\]

SS 6. _Actions. A. By firm or partner._ See 8 C. L. 1174

Right of action.--Where a partnership is injured by a libel, each partner may maintain an action to recover the damage caused thereby to his interest.\[48\] A partner cannot maintain replevin against a third person to recover possession of partnership property.\[40\] But after insolvency of a partner and settlement of partnership affairs, the solvent partner may recover from a third person partnership funds received from the insolvent partner without consideration and with notice.\[40\]

Parties.--The common-law rule that a partnership cannot sne in the partnership name has been changed by statute in some states.\[51\] A statute so changing the 10 Cur. Law. PARTNERSHIP SS 6B.rule must be strictly construed.53 In New York an action to recover partnership funds which a partner has wrongfully paid to his individual creditor must be brought in the name of the partnership.54 Where upon the dissolution of a partnership a debt secured by mechanic's lien is transferred to the individual members, they may sue in their individual names to foreclose the lien.55 Where pending action brought by partners one of them dies, the survivor may continue the cause in his own name without qualifying as administrator of the partnership estate.55 A bill of intervention in the firm name is not so fatally defective as not to admit of amendment showing the individual names of the partners.55

\_Statutory prerequisites to suit.--\_Before suit is brought by a partnership, all requirements that are by statute made a prerequisite thereto must be complied with.56

\_Pleading.--\_In an action for the price of goods sold if it does not appear from the petition that plaintiff had a partner in the transaction, the issue of partnership is properly raised by the answer.57 Where by statute the performance of certain prerequisites are essential to the right of partners to maintain an action, failure to perform is matter of defense and must be set up in the answer by way of abatement.58 In proper cases the pleadings may be amended.59

\_Evidence.--\_The usual rules as to admissibility of evidence prevail.57

(SS 6) B. Against firm or partner,59e * c. L. 1274

\_Venue.--\_A suit against partners on a firm obligation may be maintained in the county of the domicile of either,53 and this rule is not changed by the fact that one of the partners has been discharged in bankruptcy.59

\_Service of process and attachment.--\_Service on a partner is good service on the

iness in this state." Wyler, Ackerland & Co. v. Louisvilla & N. R. Co., & Ohio N. P. partners is not a fictitious name, nor a designation not showing names of partners within meaning of 3901, Wilson's Statutes, 411.

53. The bringing of such suit in name of contract by partnership transacting business partner is not authorized by Code City. Proc. under fictitious name, or designation not # 448, though partner alleged to have mis-approprised funds is joined as defendant, if no effort was made to obtain his consent names in full and places of residence of to be joined as plaintiff, Baron V. Lakow, 89 P 1114. 54. Boule v. Borrell \[Conn.\] 68 A 978. 55. But 1f he falls to qualify within pre-scribed time, administrator of deceased partner may deleg holm by qualifying as ad-

ministor of partnership estate. Merl. withether v. Quincev, etc., R. Co. \[Mo., App.\] 107 SW 434. Unless it is shown that all the 89 P 651. Such re-administator qualified, it will be presumed that the surviving partner's right and au-

quirm sufficiently compiled with, though theority as such continued intact. Id.

56. Klement v. Knop, 147 MNR. 387, 13 Det. Leg. N. 1059, 100 NW 941.

01. In Colorado a partnership doing busl-

ness in the name of a company must, before

complaint contacts & partnership. An it can sue to collect it debts, file an affirmable

davit of copartnership. Sess. Laws 1897,

is permissible, though not necessary. Dub-

pp. 248, 249, 4. C65. Elgin Jewelry Co. v. Alkerman, 2 Ga. App. 746, Wilson \[Colo.\] 93 P 1107. In California

59 BE 10.partners doing business under a designation

61. Where plaintiff firm had dissolved and

not showing the persons interested cannot

evidence of partners was conflicting as to

sue upon contracts made under such deagles-

extistence of certain agreement alleged by

nation until they have filed and published

defendant, evidence held admissible which

the statutory certificate of partnership.

funded to throw light on probability of state-

Meyer v. Lovdal \[Cal. App.\] 92 P 322. Ac-

ments of partners, respectvely. Mitchem

knowledgment of certificate need not be

v. Allen, 128 Ga. 407, 57 SE 72L published, a statement showing that it was

62, 63. Efocklins v. Velasco Nat. Bk. \[Tex.

properly acknowledged being sufficient. Id. Clv. App.\] 107 SW 598.

1114 PARTNERSHIP SS 6B. 10 Cur. Law.

frm.\[64\] In Nebraska, where members of a partnership reside in another state, service of summons upon the firm cannot be made in a county where it has no usual place of doing business.\[65\] The summons may be amended in a proper case.\[66\] In Texas actual seizure is not essential in levying on the interest of a partner, it being sufficient to leave with his copartner notice of the levy.\[67\]

_Parties._--Where a suit is brought on a partnership obligation, all the partners are proper parties.\[68\] A mere stranger cannot sue upon a contract made between partners.\[69\] Any member of a partnership may appear and defend a suit in the firm name,\[70\] and for that purpose may execute a statutory dissolving bond in the name of the partnership.\[71\] In an action against a partner individually as indorser of a firm note, if defendant desires to bring in the maker he must move to have the firm summed in.\[72\]

_Pleading._--Where it is sought to hold one liable as a partner by estoppel, the petition need not state the facts showing the estoppel. A direct allegation of partnership is sufficient.\[73\] Where a partnership has been dissolved by bankruptcy, a new promise to pay a creditor must be pleaded fully and in detail.\[74\]

_Burden of proof._--In Georgia it is unnecessary to prove a partnership unless it be specifically denied on oath.\[75\] But in New York where the existence of the partnership is put in issue by a general denial, no recovery can be had against defendants jointly unless the proof shows such liability.\[76\] Less proof is requisite to establish a partnership in actions against alleged partners than is necessary in actions between the parties themselves.\[77\] Where a partner admits an original indebtedness and pleads an affirmative defense, the burden is upon him to prove it.\[78\]

\_Abatement.\_See * C. L. 1975.--Where in a suit against a partnership only one partner is served and a plea of privilege is sustained as to him and he is dismissed from

64. Ferry v. Mattox, 2 Ga. App. 104, 58 SE 169. Where partnership agreement provides 291. Under Code Civ. Proc. 1909, 1 157, that partner upon electing to dissolve part-service on a partner gives court jurisdiction --nership may repay direct to third person tion to render a judgment enforceible against money produced from latter by copartner partnership property and separate property and pur to business, such stranger cannot, of defendant servced. Pierce v. Varn, Byrd upon partners electing to dissolve, sue him --& Co., 78 E. C. 559, 57 SE 184. In order that for the money so furnished. Jarmlowsky v. service of original process upon one member -- Susskind, 53 Misc. 603, 102 NYS 763. of a firm shall be as valid as if served upon --To. Taylor v. Federler (Ga. App.) 19 SE 328. each individual member thereof, so as to settle plaintiff to proceed to judgment, and But's a judgment entered upon such bond --is against them all, as provided in --In finds only partnership assets and property --Gen. St. 1906, 1 1404, such process must show --of partner or partners by whom or through upon its face to have been used out against --whose authority it was executed, and does persons composing a mercantile or other --not bind individual property of a nonresil-frm. Hayman v. --Weil, 53 Fla. 127, 44 S --den partner who was not served in original --176. --Co. Cote Civ. Proc. 25. Stelling v. Peddi- cotok no part in execution of bond. Id. --coord --\[Neb.\] III New 793. --To have other partner brought --60. Where suit is brought against a part- in --in improper in such case. National Exch. marshp as a corporation upon proof of the --Blx. V. Laburno (R.L.) 68 A 944. partnership, the summons may be amended to conform therewith. Pierce v. Varn, Byrd --& Co., 78 E. C. 559, 57 SE 184. --Cr. Rev. 185, 957, 2552, Seal v. Holcomb --Tex. Civ. App.) 107 SW 916. --Gross. Hopkins v. Veisasco Nat. Hk. (Tex. Civ. App.) 107 SW 98. Statute declaring Joint obligations to be joint and several does not apply to partnership. Hurv6 Rev. St. --, 68 SE 215. --To. Schneider v. Fuchs 107 NYS 83. All the ostensible numbers of the copartnership must be joined. Id. In an action on an attachment bond given in a suit --frm where a partner introduced defense that brought by a partnership, but executed by --in. had paid plaintiff one-half of firm in-only three of the five partners, the other deductness under agreement that it would partners are proper parties defendant. State --v. Allen, 124 Mo. App. 465, 103 SW 1090. --V. Allen, 124 Mo. App. 465, 103 SW 1090. --V. Allen, 124 Mo. App. 465, 103 SW 1090. --V. Allen, 124 Mo. App. 475, 103 SW 1090. --V. Allen, 124 Mo. App. 485, 104 SW 1090. --V. Allen, 124 Mo. App. 495, 105 SW the suit, the court is without jurisdiction to render judgment against the firm." It is not ground for abatement of a suit against a partnership that plaintiff had previously brought suit against a partner as an individual, upon the same account, which had been dismissed, although plaintiff failed to pay costs."

\_Judgment.--\_In an action against a partnership, the fact that the judgment is against the firm alone does not render it void." Where two are sued as partners, plaintiff may strike one and obtain a judgment against the remaining sole defendant provided the evidence shows a several liability upon his part." In Alabama, where partners are sued both as individuals and as partners, judgment may be recovered against one and not against the other." Where plaintiff has failed to prove a partnership, his motion at the close of the case to discontinue the action should be granted." Judgment against a partnership binds not only the firm property, but, when it is exhausted, the individual assets of the partners served." Recovery of judgment against one of several copartners discharges the others not used."

(SS 6) \_C. Between partners.\_See S. C. L. 1275--Where a partnership agreement is void under the statue of frauds, no action will lie for its breach." The right of action which accrues to a partner for loss resulting from the fraud of his copartners is ex delicto, and the tort may be treated as several or joint, and the defendants have no right of contribution as between themselves." Prior to an accounting and settlement, no action at law will lie between partners founded solely upon partnership dealing." Suit can only be brought for the admitted balance shown by accounting." But the rule is otherwise where the cause of action is distinct from the partnership accounts and does not involve their consideration or require their examination." In a proper case, the defendant is entitled to have a third person made a party." The complaint or petition must allege all facts essential to warrant a recovery." In an 1116 PARTNERSHIP SS 7. 10 Cur. Law.

action for damages resulting from the misrepresentations of a selling partner, the usual rules as to measure of damages in actions founded on misrepresentation apply." In an action for a breach of a partnership agreement, the burden is upon plaintiff to prove damages." If plaintiff alleges that he was induced to purchase defendant's interest in the partnership by material misrepresentations as to the amount of the partnership indebtedness, the burden is upon him to prove such allegation." A receiver will not be appointed unless grounds for his appointment are shown." The statute of limitations is a defense to an action between partners."

SS 7. \_Dissolution, settlement, and accounting. A. Dissolution by operation of law.\_See 8 C. L. 1278--A partnership is dissolved by a discharge in bankruptcy," by the death of a partner,1 or by the completion of the common enterprise for which the partnership was formed.2

(SS 7) \_B. Dissolution by act of partners.\_See 8 C. L. 1277--A partnership may be dissolved by mutual agreement." A sale by a partner of his partnership interest operates as a dissolution of the partnership.4 There is no cessation of the partnership relation during the temporary absence of a partner.5 That a partner's mind is slightly weak will not preclude his making a settlement with his copartner."

(SS 7) \_C. Dissolution by order of court.\_See 8 C. L. 1277--It is sufficient ground for dissolution that a partner applying therefor has been excluded from the management or a participation in the profits." A contract of partnership will be rescinded at the suit of one who was induced to enter into it by false representations," although thereby he suffered no pecuniary loss."

(SS 7) \_D. Effect of dissolution. I. In general.\_See 8 C. L. 1278--After dissolution, if there are no outstanding debts, real estate held by the partnership "as a basis of credit" is to be regarded as the real estate of the partner who holds the equitable title." All the partners are still bound after dissolution by a contract made during the partnership,11 but the power of a partner to bind his copartners generally ceases upon the dissolution.12

nership agreement, plaintiff cannot recover for damages not alleged in his petition. Edwards v. Hale, 129 Ga. 302, 58 SE 817.

2. Such completion ipso facto dissolves the partnership. Goodfellow v. Kelsey IS.

3.11 INV 555.

4. Correspondence held not to constitute a chased, the measure of damages is the difference in value of such interest as repre- sented and as it was in fact. Seal v. Holcomb \[Tex. Civ. App.\] 107 SVV 916.

5.5. Edwards v. Hale, 129 Ga. 302, 58 SE 817.

96. Seal v. Holcomb \[Tex. Civ. App.\] 107 SVV 916.

01. Where the purpose of an action is to continue the partnership but to cost defend- ant from the management secured to him by the partnership agreement and to make plaintiff manager, the appointment of a receiver pending the action is improper. Shubert v. Laughlin, 122 App. Div. 701, 107 NYS 708.

01. In an action by heirs of a deceased partner against surviving partner to recover money which he owes the firm on his private account and money collected on claims due the firm, the claim is one arising between partners, and the four year statute of limitations applies. Wyille v. Langhorne \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 144, 101 SVV 627.

01. Methanol, Schaul & Co. v. Foison Bros. \[Ga. App.\] 69 SE 830.

01. Cur. Law.

11.6
10 Cur. Law. PARTNERSHIP SS 7D2. (SS 7D) 2. _As to surviving partner and estate of deceased partner._ See * C. L. 1278 --The surviving partner is exclusively entitled to the possession, management and control of the partnership properties and can be called to account only by the personal representative of his deceased partner,11 unless special circumstances are shown that will justify the intervention of a court of equity to protect and enforce the rights of persons interested in the partnership assets.14 In New Jersey it is held that the surviving partner holds the property in trust for the personal representatives of the deceased partner.15 But in Indiana it has been held that the surviving

a partner, after dissolution finding a debt $41, 80 Stat. 551 (U. S. Comp. St. 1901, p. 3428). Id. does not bind latter, and is not admissible $428. The rights of the hef of a deceased in evidence against him. Id. After dis-partner in firm ready: It is fundamental solution by discharge in bankruptcy and $40. In confirmation of a composition with creditors, $40. In interest therein being mere-a partner cannot by a promise made to a $1y an equity to share in the final residual condition blind his copartner. Meinhard, $40. In $41. In $42. In $43. The legal title $44. In $44.

establish clearly but two results, though sales should be at least on order of court. Without adequate development of the reasons; first, any surplus of reality in specel

In dover cases. A widow has dover in the after adjustment of the firm obligations

land left over in specel, supra, or if this be

6ees to the heir (Foster's Appe Appeal, 74 Pa.

sold, to an equivalent im the surplus pro

291, 15 Am. Rep. 553; Buchan V. Summer, 2

Sarb. Ch. \[N. Y.\] 165, 201), subject to dover

Though these cases are authoritative, they

(Lenow v. Fones, 48 Ark. 557); second, if

present a difficulty not found in the inheritance must be sold to meet firm obligations, Equity will compel the heir to convey

ttice, Burdick, Partn. \[2d. Ed.\] 98, 146, 148,

whatever legal title vested in him (Burnside

precludes any conception of individual bene-

v. Merrick, 4 Mete. Glass.) 537; Shanks v.

ficial seismic like that of an ordinary land

Klein, 104 U. S. 18, 26 Law. Ed. 638). The precise nature of the heir's rights between

Burdick, Partn. \[2d. Ed.\] 81, it is evident

the ancestor's death and the distribution

partners in some individual capacity. What

share is strictly a right merely in the ultimate balance of the firm property, what

not the orthodox seismic necessary to sustain

ever its form (Clagett v. Kilbourne, 1

Black \[U. S.\] 346, 17 Law. Ed. 213), the moment determinative of the shares of

living partners in the distribution point. Dis-

Saulton, 241 mL. App. 316. See Burdick,

solution of the firm by the death of a mem-

bert introduces the derivative, conflicting

difficulties is relieved by a recent decision

fights of either class of the decedent's rep-

resonatives, and also a second controlling

B and C, bought in the partnership plant at

point of time, the instant of death. The

English doctrine meets this situation logic.

Befefore the confirmation of the sale A's ad-

ally, for at the partner's death the right

administrator is a right to cash on final account

of such a purchase by surviving partners.

'ing, Lindley, Partn. \[7th Ed.\] 377, or if a contrary intention appears, a right in reality

then owned. If the American doctrine differ-

been served. It was held that they were

ed from the English only in that the pre-

sumption of intention was reversed, it would

\[Ark.\] 104 SW 141. This result would of

be equally logical. Dicate to the effect that the

course be reached in England (see cases

surving partner must exhaust the per-

sonalty in payment of debts before recourse

party and the personality had been insuff-

to the reality. Stroud v. Stroud, Phil. L. R.

cient to meet firm obligations, the decision

\[N. C.\] 525, 526\* Eastern v. Courtwright. 84

would be sustained by the American cases

Mo. 27, 89: Walling v. Burgess, 122 Ind.

generally. Under the rule earlier submitted

299, 305, 7 L. R. A. 481, and decisions giving

the heir the surplus proceeds of the neces-

wrong. As the heir's rights had attached at

sary sale of indivisible reality. Walling v.

Burgess, 122 Ind. 299, 305, 7 L. R. A. 481,

seem to indicate that the heir's rights are in

this country also fixed as of the date of the

partner's death, though not ascertained until

the distribution point. But the in specel

rule, group 1, supra, is either non-commitral,

because enunciated where the reality was

owned during the life of the firm. Haeber-

ley's Appeal, 191 Pa. 239, or it determines the

heir's rights, by the fortuitous condition of

assets at the distribution point, as where

personality is exchanged for really by the

surviving partner during the winding-up

process. Coolidge v. Burke, 69 Ark. 237, 195, the heirs were parties to the sale pro-

It is submitted that the measure of the heir's

erights should be the land existing in specel

at the time of the partner's death, or if

sold, the proceeds remaining after payment of firm debts, plus the value of per-

sonalty which might properly have been

used. This rule logically fixes the heir's

rights as of the date of the ancestor's death,

without necessarily negativing power in the

surviving partner to sell the land, though

the personal assets exceed liabilities. It

might be argued that such power should

exist in certain cases, as where a sale of

ttice, Burdick, Partn. \[2d. Ed.\] 98, 146, 148,

really would serve to swell the totality of

assets, or an immediate liquidation of per-

sonalty would be ruinous, see Rossum v.

Sinker, 12 Cent. L. J. 202, inasmuch as a

partnership is primarily an association for

profit. That the courts would go so far is

doubtful, and it would seem that such 10 Cur. Law. PARTNERSHIP SS 7D3. 1119

partner is not a trustee in the usual sense of that term.10 The duties of a surviving partner are to reduce the assets to money, and apply same, less expenses, on the partnership debts,11 and to pay the surplus to the estate of decedent.18 He may, before settlement, sell partnership property where the purposes of the partnership require it19 but he cannot give it away.20 A sale at the suit of surviving partners of partnership for the purpose of winding up the partnership converts such reality into personality.21 As between the lien and personal representative of a deceased partner, a conversion of partnership really into personalty will be regarded as having been worked if such was the intent of the partners.22 Where at all times after a dissolution caused by the death of a partner, the firm, the surviving partner and the estate of the deceased partner, were insolvent, the partnership creditors have no claim on the individual property of the partners.23

(SS 7D) 3. \_As to continuing or liquidating partner.\_\_Betiring partner.\_See 8 c. L. 1179--An agreement by a continuing partner to indemnify the retiring partner against liabilities, which include a suit for alleged false representation, is not illegal.24 A partner who purchases his copartner's interest does not obtain the character of an innocent purchaser so as to escape liability on a firm indebtedness of which he had no knowledge.25 The sale of a partner's interest to his copartner converts the partnership property into individual property,26 and a covenant by the purchaser to pay the firm debts does not create a trust 27 or impose a lien on the property.28 But where a partnership is insolvent, a dissolution and a transfer by one partner to the other of his interest for a nominal sum and the assumption by the purchaser of the partnership liabilities is not bona fide and is not binding upon the firm creditors.29 Some of the peculiar provisions of contracts between continuing and retiring partners have been interpreted by the courts.30 A retiring partner is entitled to an injunction restraining his copartner who has purchased his interest from using the firm name without complying with statutory requirements in relation thereto.31 Where continuing partners require the retiring partner to leave in their hands a sum to

16. American Bonding Co. v. State \[Ind. App.\] 82 NE 548. A compiling of partner. \[App.\] 82 NE 548. \[App.\] 83 NE 548. \[App.\] 83 NE 548. \[App.\] 82 NE 548. \[App.

meet a contingent liability of the firm and such liability becomes barred by limitations, the retiring partner is entitled to recover the amount so deposited with interest from the time the liability was barred.\[32\] Where a partner who upon dissolution took the firm assets and agreed to pay its debts uses such assets to pay his individual debt, the firm is subrogated to the rights of the creditor.\[33\]

(SS 7) _E. Accounting. Right to._\[See * C. L. 1280--Upon dissolution of a partnership, a partner is entitled to an accounting,\[34\] as is also a purchaser of a partner's interest.\[35\] The amount of a partner's interest is immaterial in determining his right to an accounting.\[38\] It is a good defense to an action for an accounting that there has been a prior settlement,\[37\] or that the action is barred by the statute of limitations \[38\] or by lache.\[39\]

_Procedure, pleading, and evidence._\[See * C. L. 1281--A party adjudged to account should file a verified account.\[40\] It is not essential that an allegation of partnership should give the details thereof.\[41\] It is improper to order a bill of particulars as to allegations of the complaint which are mere surplusage.\[42\] The burden of proving the existence of a partnership, where it is denied, is upon complainant.\[43\] The burden of showing what allowance should be made for a certain element of expense is upon the partner in charge of the bookkeeper and his books.\[44\] The course of dealing among the partners is controlling evidence of the status and interest of each in the absence of any other evidence.\[45\] A letter from defendant to plaintiff's attorney, written when no litigation was pending or threatened, admitting his willingness to account, is admissible to show the existence of an unsettled account between the parties.\[46\] A statement made by a partner to a commercial agency not adopted by his copartners is not admissible to prove the assets and liabilities of the partnership.\[47\]

_Receivers._\[See * C. L. 1282--When a dissolution is intended or has already taken the running of the statute. Doncourt v. Denton, 105 NYS 906.

33. Where assets are used to pay note secured by collateral, firm becomes entitled to possession of note and collateral. Pelzer Mfg. Co. v. Pitts, 76 S. C. 84, 597 SE 29.

01. Miller V. Simpson (V.J. 159 SE 78.). partner who has assigned his interest to his copartner as security for the latter's do-vances to the firm still has an interest in the surplus assets after payment of such advances, and is entitled to an accounting. Donnelly V. McArdle, 105 NYS 381, Evvidence held to show that assignment was as security for such advances and not absolute. Id. Bill for an accounting held not demurrable for want of equity. Stevens v. Duckett (V.J. 57 SE 601. Bill by distribute of estate of deceased partner against surviving partner, who is also administrator of interest's estate, for an accounting, held not without equity. Dickens v. Dickens (Ala.) 45 S 630. Answer held to admit facts entilling plaintiff to an accounting. Child v. O'Rourke, 106 NYS 884.

01. Such purchaser is entitled to demand an accounting, make settlement with the remaining partners, and receive the seller's share of the surplus. Day v. Stafford (Mo. App.) 107 SW 43.

01. Rische v. Rische (Tex. Civ. App.) 19 Tex. Ct. Rep. 383. 101 SW 849.

01. It is incumbent upon defendant to prove such settlement. Doncourt v. Denton, 105 NYS 906. Evidence held insufficient to prove settlement. Id.

01. Defenant's admission of plaintiff's right to an accounting is sufficient to stop place, a receiver will be appointed if there is some breach of duty of a partner or of the contract of partnership.\[48\] To warrant the appointment, it need not appear conclusively that the plaintiff is entitled to recover.\[49\] But it must appear that the matters alleged will ultimately entitle complainant to a dissolution of the partnership.\[50\] The due existence of the partnership must be established as a prerequisite to the appointment.\[51\] But when this is shown a denial of its existence is not sufficient to prevent the appointment.\[52\] Upon. an application for a receiver, the court will not pass upon the question of rights between the partners.\[53\] Upon the appointment of a receiver, an injunction follows as a matter of course.\[54\] Claims of third parties, if any, should be adjudiated and settled before the final discharge of the receiver.\[55\]

_Credits and charges.\[See 8\]_ S. C. L. \[128\] The credits to which a partner is entitled and the charges to which he is liable upon an accounting are to be determined from the nature of the partnership agreement and a construction of its terms.\[86\] In the absence of an express agreement, or of such facts and circumstances as imply an 48. Jones v. Weir, 217 Pa. 331, 66 A 550. Contract Induced by fraudulent representations of copartner. Id. Partnership composed of A and B held contract with company controlled by B to purchase from it (Greenwell v. Negley, 31 Ky. L. R. 144, 107 Iand and pay for same with proceeds of sale thereof. B conspired with company to exclude A from interest in land and partner-smmission. After selling part of lands in ship. Hold proper case for appointment of the (themselves, the commissions being (nership interests, Whipple v. Lee \[Wash.\]) applied on purchase price, Subsequently 89 P 713. A receiver will be appointed at south of a partner who shows that he has been wrongfully excluded from participants in management of partnership property, though there is no evidence of insol- or (there v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v. Hickse v.se v. Hickse v. Hickse v.se v. Hickse v.se v. Hickse v.se v. Hickse v.se v. Hickse v.se v.se v. Hickse v.se v.

agreement, a partner is not entitled to pay for his services. \[97\] But the course of dealing between partners may be such or the services rendered so extraordinary that the law will imply a contract to pay one partner for extra services. \[58\] Where plaintiff was induced by fraudulent misrepresentations to enter into the partnership, he is entitled to damages therefor. \[59\] A deceased partner's estate is chargeable with a sum which,he for a valid consideration contracted to pay. \[60\] Where an insolvent surviving partner has applied private funds to the payment of partnership debts, he is entitled to credit therefor in accounting for assets in a suit on his bond. \[61\] In an action for an accounting after dissolution, a claim founded on errors occurring in the settlement of the partnership affairs, if outlawed, cannot be considered. \[62\]

_Interest._ See * C. L. 1284--There is no fixed rule in respect to interest. Its allowance depends upon the circumstances of each case. \[63\] If a partner by inadvertance draws from funds of firm more than his proper share, he is chargeable with interest on the overdraft from the time he drew it to the time of settlement. \[64\] Where the continuing partners use money of the retiring partners in the business, the latter is entitled to interest. \[65\]

_Lien._--A partner's lien extends to all the partnership assets, \[65\] but it does not extend to the payment of the individual debts of one partner by the others. \[67\]

_Reference._\[58\] * C. L. 1284--It is not error to refuse a reference where motion therefor is not made until after the chancellor has made a detailed statement of the account and transactions between the parties and reported his special findings therefrom. \[68\] The referee's report should find the character of the partnership assets, \[69\] and his findings must be supported by the evidence. \[70\]

_Arbitration._--Where, pending suit for dissolution and accounting, partners submit their differences to arbitration, property used but not owned by the partner. \[57\] Peck v. Alexander \[Colo.\] 91 P 38; 780. The amount upon which interest is Cadwell v. Lang, 31 Ky. L. R. 237, 101 SWV 572. No such agreement show in this case. \[60\] dissolution of partnerships. Id. A partner-Caldwell v. Lang, 31 Ky. L. R. 237, 101 SWV 972. No such agreement show in this case. \[61\] disjunction of partnerships. Id. A partner-Caldwell v. Lang, 31 Ky. L. R. 237, 101 SWV 972. No such agreement show in this case. \[62\] disjunction of partnerships. Id. A partner-Caldwell v. Lang, 31 Ky. L. R. 237, 101 SWV 972. No such agreement would find the character of the partnership assets, \[63\] and his findings must be supported by the evidence. \[64\]

_Arbitration._--Where, pending suit for dissolution and accounting, partners submit their differences to arbitration, property used but not owned by the partner. \[65\]

_Arbitration._--Where, pending suit for dissolution and accounting, partners submit their differences to arbitration, property used but not owned by the partner. \[66\]

_Arbitration._--Where, pending suit for dissolution and accounting, partners submit their differences to arbitration, property used but not owned by the partner. \[67\]

_Arbitration._--Where, pending suit for dissolution and accounting, partners submit their differences to arbitration, property used but not owned by the partner. \[68\]

_Arbitration._--Where, pending suit for dissolution and accounting, partners submit their differences to arbitration, property used but not owned by the partner.

10 Cur. Law. PARTNERSHIP SS 8. 1133

ship cannot be subjected to the arbitration."11 An award of arbitrators upon a submission to settle partnership accounts, if the arbitrators do not exceed their jurisdiction, is not subject to review unless corruption found or like misconduct is shown."2

\_Findings and judgment or decree.--\_The court must find upon all material issues made by the pleadings."3 The findings must not be conflicting."4 All are to be considered together, and, if possible, reconciled, so as to prevent any conflict on material points."13 They will be sustained unless clearly contrary to the weight of the evidence."4 No personal decree should be rendered against individual partners until the assets have been converted into money."5 The judgment must not be double."6 It must be supported by the evidence."5 A judgment finding the existence of a partnership and ordering a dissolution- and settling the proportions of interest of the partners is a final judgment for the purposes of appeal,"6 though the right to make a supplemental decree is reserved by the court."6 A final decree need not find in whom title to certain land rests where the report of the referee shows that such land is not a partnership asset."8 Where both parties admit an error in the amount of the judgment, it is proper to deny a motion for a new trial on condition that plaintiff remit the excess."8 The judgment is not binding upon a grantee of defendants who was not allowed to intervene."9

\_Apportionment of costs.See 8 C. L. 1284.--\_Costs are discretionary both in the trial court 84 and on appeal."9

\_Opening and correcting settlement.See 8 C. L. 1284.--\_Assumpsit will not lie to review and revise a partnership settlement."11 In an action to reopen a settlement, the burden is upon the complainant to show error therein,"9 and this notwithstanding a provision in the settlement for the correction of errors."9

(SS 7) \_F. Contribution and indemainty.See 8 C. L. 1284.--\_The capital stock of a limited partnership association cannot be made fully paid and nonassensable by the mere declarations.

71. Property purchased by wife of partner

allerged in answer, and not to be Inconsistent with her own money and used by partner-

ent with finding of a partial settlement. ship. Wainzer v. Wainzer, 15 Wyg. 420, 88

F 850. Land embraced in a partner's desert

76. East v. Key \[Ark.\] 108 SW 201. Spe-

and homestested entries made under Federal

cial findings held not contrary to weight of land laws. Id.

77. No misconduct shown. warranting set-

01. Stower v. Kemphefner \[Cal. App.\] 91

ting aside award. Ehrlich v. Pike, 53 Misc.

79. Judgment In suit for accounting of

01. Durby V. Pearsal \[Cal. App.\] 91 P 424.

01. The plaintiff is entitled to a complete

Cotstello v. Scott \[Nev.\] 93 P 1.

accounting if there is a prayer there in

79. Evidence held not to support judgment. the complaint. Id. The reason for the rule

Callowell v. Long, 31 Ky. L. R. 237, 101 SWV

demanding an accounting is that until all 91

the partnership concerns are ascertained

80. Costello v. Scott \[Nev.\] 94 P 222.

and adjusted it is impossible to know whether.

81. Judgment held Mental. Costello v. Scott

er a particular partner be a debtor or a

(Nev.) 94 P 222.

-creiditor of the firm. Id. The findings need

82. Land upon which buildings belonging not particularly describe real estate conditions.

to firm were erected not included in report

stituting part of the partnership assets,

of referee which purported to cover all as-

83. Summerburger V. Kemphefner \[Cal. App.\] 91 P 424.

01. A finding that property was transfer-

01. S8,4 Costello v. Scott \[Nev.\] 93 P L.

partnership purposes is not inconsistent with

83. Forsyth v. Butler \[Cal.\] 93 P 80. The

-a finding that a consideration was given to

allowance of the fees of the receiver as

grantor by other partner. Hajiat v. Knight

costs in the proceeding is a matter in the

\[Cal.\] 90 P 197. Finding of jury and addi-

legal discretion of the trial court. Costello

tional finding of court on question whether

V. Scott \[Nev.\] 94 P 222. But if an intent-

decoased partner had owned property in

tion to impose such fees on one party is not

his individual right purchased with partner-

definitely expressed, they should be borne

ship funds held not conflicting. Id.

78. Knight \[Cal.\] 90 P 197.

01. Forsyth v. Bautter \[Cal.\] 93 P 90.

Finding that "there was no settlement"

87. Pfeiffer v. Bauer, 122 Till. App. 625.

when considered in connection with other

88, s8. Sandford v. Embry \[C. C. A.\] 161

findings held to refer to complete settlement F 97.

1194 PARTY WALLS. 10 Cur. Law.

tion of the original associates as to the value of the property of the association, made for the sole purpose of enabling them to sell at a nominal price stock represented to be fully paid."

**PARTY WALLS."**

_This topic includes_ only rights between the parties, public regulation being elsewhere treated."

A party wall ordinarily means a wall built partly on the land of one and partly on that of another for the common benefit of both in supporting timbers used in the construction of contiguous building." A division wall may become a party wall by agreement, either actual or presumed even though such wall may have been built exclusively on the land of another." By usage the words "party wall" and "partition wall" have come to mean a solid wall." Generally party walls are erected under an agreement as to their use, and in many states are regulated by statute." Although such statutes will be strictly construed," they have repeatedly been held to be a constitutional exercise of the police power " and will be upheld unless plainly without substantial relation to the public interest and safety or a palpable invasion of rights secured by the fundamental law." The statute may confer on adjoining property owners the right to enter upon and appropriate one another's property to an extent sufficient to erect a party wall." The erection of a party wall by one party or his assignor and the subsequent use thereof by the other creates a legal liability in favor of the former against the latter," even though there be no express or implied contract creating such liability," and where an owner of a lot constructs a building so that the wall projects over on an adjoining lot, he cannot deny the adjoining owner the right to use it unless the projection does not prevent the free use of the adjoining property." The value of the user in such cases is to be estimated as of the time when the user occurred, and not as that of the time when the wall was erected." Where the covenants of a party wall agreement are binding on the heirs and assigns of the respective parties, they run with the land." A party wall agreement signed

90. So held in action by trustee in bank-

ruptcy of such association against members,

to charge them with debts of association.

Wood v. Sloman, 150 Mich. 177, 14 Det. Leg.

Pa. 1, 6 & 108. Covenant in deed that if

N. 675, 114 SW SW 317.

91. See 8 C. L. 1284.

01. See Buildings and Building Restrictions, 8 C. L. 441.

01. Coggins v. Carey \[Md.\] 66 A 673.

01. Where land wall already erected, and

right to build extension of wall was purchased,

chased, evidence held sufficient that it was

intended as party wall. Coggins v. Carey

\[Md.\] 66 A 673.

95. Injunction will lie to compel closing of

opening. Coggins v. Carey \[Md.\] 66 A 673.

96. Spaulding v. Grundy, 31 Ky. L. R. 951,

104 SW 235.

97. Heron v. Houston, 217 Pa. 1, 66 A 108.

01. Act June 7, 1895, $ 9 (P. L. 135),

constitutional. Heron v. Houston, 217 Pa. 1,

66 A 108.

99. Evidence sufficient to show $ 57, building regulations Dist. Col., reasonable in

quiring party walls to be at least thirteen inches thick. United States v. Ashford,

28 App. D. C. 550.

1. Under Act June 7, 1895, $ 9 (P. L. 125),

conforming on municipalities power to require

late party walls, every lot owner has right

to make party wall and may enter on adding

joining lot for such purpose regardless of

fact that adjoining owner has built wm

relatively on his own lot, either to or short

to charge them with debts of association.

Mood v. Sloman, 150 Mich. 177, 14 Det. Leg.

Pa. 1, 6 & 108. Covenant in deed that if

N. 675, 114 SW 317.

91. See 8 C. L. 1284.

01. See Buildings and Building Restrictions, 8 C. L. 441.

01. Coggins v. Carey \[Md.\] 66 A 673.

01. Where land wall already erected, and

right to build extension of wall was purchased,

based, evidence held sufficient that it was

methoded as party wall. Coggins v. Carey

\[Md.\] 66 A 673.

95. Injunction will lie to compel closing of

opening. Coggins v. Carey \[Md.\] 66 A 673.

96. Spaulding v. Grundy, 31 Ky. L. R. 951,

104 SW 235.

97. Heron v. Houston, 217 Pa. 1, 66 A 108.

01. Act June 7, 1895, $ 9 (P. L. 135),

constitutional. Heron v. Houston, 217 Pa. 1,

66 A 108.

99. Evidence sufficient to show $ 57, building regulations Dist. Col., reasonable in

quiring party walls to be at least thirteen inches thick. United States v. Ashford,

28 App. D. C. 550.

1. Under Act June 7, 1895, $ 9 (P. L. 12 half cost on using wall, held covenant run- ing with land. Ferguson v. Worrall, 81 (Ky. L. R. 219, 101 SWP 966. * \[1\] Note: This rule ecems in accordance with what is now the judicial tendency. Southworth v. Perring, 71 Kan.-155, 14 Am. St. Rep. 527, 2 L. R. A. (N. S.) 87. The usual agreement provides that A shall build the wall and B shall have the right to use it upon payment of one-half the original cost; the agreement to bind the heirs and assigns of both parties. Normally the wall when built is owned by A and B in severalty, sub-ject to cross easements. Sometimes, how- would it affect its nature or quality or the ever, A is held to own the entire wall, half mode of enjoying it (see Congleton v. Pattos with rets on B's land. Brown v. Penta \[N. Y.\] 1 Abb. App. Dec. 227; National Life (N. Co. v. Lee, 75 Minn. 157, 71 NWP 794. * \[1\] Concevably the parties might affect such a result to which the law of fixtures would present no obstacles (Brown v. McKee, 57 N. Y. 684, 2 City R. 820, but this is hardly a fair interpretation of their intention (Riche). * \[1\] The contract seems purely collateral. Cole ardson v. Tobey, 121 Mass. 457, 28 Am. Rep. 611; 283; Maine v. Cunston, 98 Mass. 317). As-Gibson v. Holden, 115 Ill. 199, 56 Am. Rep. 146. That the benefit of these covenants one for the purchase of land (Mickel v. York, 175 Ill. 62), the law of running cov- to the pantants has evidently no application, and B's grantee is not liable on the covenant, since he has made no contract (Comstock v. Hitt, 37 Ill. 542). Bvcon on the hypothesis that 17 Ind assigned the contract with his land, A or his grantee could acquire only the right to a specific performance of the contract by foreclosure of the assignee's equal- table interest in the wall; a proceeding which would seem offensive to the rule against perpetuities. London, etc. R. Co. v. Gomm, L. R. 20 Ch. Div. 562. If A and his successors get title only until payment is made (Standish v. Lawrence, 11 Mass, 11; First Nat. BK. v. Security Bk., 61 Minn. 25), the intention of the parties's prob-ably to vest an absolute fee in A, with a contract for lte purchase upon user, although in the decisions no covenance of the wall appears. If A acquires merely a defeasible fee, his interest would pass upon user, without the need of a conveyance; but the agree- mean would not operate as a contract at all. B's grantee might be held on the ground of an implied promise to pay for the use he has made of another's property, but the recovery would be based on the value of the use, not on the cost of the wall. Whether A has title to the wall or not, the land of B may be held liable in the hands of purchasers with notice, even when the agreement is only parrol, on the ground of equitable charge. (Keating v. Korthbase, 88 Mo. 524; Butt v. Lamaster, 30 Neb. 688, 27 Am. St. Rep. 428, 2 L. R. A. 637), or more accurately, Ilen (Arnold v. Chamberlain, 14 Pers. Tex. City. App. 34), enforceble by A or his grantee even in jurisdictions where covenants for party walls do not run at law; but the parties must so have intended (Mott v. Oppenheimer, 135 N. Y. 312, 17 L. R. A. 409). The recovery is not upon the covenant relative in any way to B's land. It has been suggested, however, that B also acquires an easement of support of the wall, for which the performance of his covenant operates as a recomeurs. Roche v. Ulman, 104 Ill. 11; King v. Wright, 155 Mass. 444. A covenant by the dominant as well as the servient tenant may bind his land (Mildal R. Co. v. Fisher, 125 Ind. 19, 21 Am. St. Rep. 189, 8 L. R. A. 604; Carr v. Lowry, 27 Pa. 257), although no interest of the covenante in the covenan-nant but includes a decree establishing the then, and if necessary providing for a sale of the land (Fresno Canal Co. v. Dunbar, 80 Cal. 530), a distinction sometimes over- tooked (Garmlre v. Willy, 36 Neb. 240). The occasional intimation that party wall covenants are restrictive in character (Sharp v. Chatham, 88 Mo. 498, 67 Am. Rep. 435).

1126

PARTY WALLS. 10 Cur. Law.

only by the party sought to be charged is binding on such party,' but not in the absence of consideration for the right to use such wall.\* The mere grant of a right to use a wall as the enclosure of a building will be interpreted to intend a building of such size as the wall will inclose, and not imply the right to enlarge the wall on the grantor's premises so as to employ it to enclose a large building.\* The right to use a wall as a party wall may be acquired by prescription, and where so acquired the rights are to be measured by the use actually made and carry no right to place any further burden thereon.\* One suing for contribution for erecting a party wall must plead and prove that he has erected the wall or caused it to be erected and that the defendant has made use of it without contributing his part of the cost of its erection.\[14\] It is no defense to an action for contribution for the cost of erecting a party wall that the party meeting the wall has not actually paid the cost thereof.\[12\] The right to use for the use of a wall by an adjacent owner may be barred by limitation,\[13\] and, where there is no special limitation, the general statutory limitation for suits for unwritten contracts for injury to property applies.\[14\] The right of action in such cases accrues when the person sued first makes use of the wall as a party wall.\[15\] It is well settled that a mandatory injunction is the proper remedy for preventing an adjacent owner from opening or using windows through a party wall,\[16\] and is available though there is neither allegation nor proof that the other owner intends to use the wall.\[17\] Where the windows are already opened up, the injunction may be made broad enough to compel not only the closing of the opening but the making of the wall solid as it should be.\[18\] An injunction is also the proper remedy against attempted encroachment on an alleged party wall as and for using a party wall as to injure the rights of the adjacent owner.\[19\] The burden of showing an error in the appraisal agreed upon between the parties rests on the person setting it

ready acquired, or to be acquired. If the former, failure to perform it could not re-

Allegation of erection by plaintiff, appraisal

sult in the destruction or impairment of the

of value by architect agreed upon by

easement, as it might in the case of a cove-

partless, notification to defendant of ap-

nant by a dominant owner to contribute to

prasement, use of wall by defendant and

the cost of repairs to his easement, which

halve to pay therefore, sufficient, Id.

has been held to run. Wooliconfort, Norton,

12. Watkins v. Glass \[Cal. App.\] 89 P 840.

15 Weis. 183; Mason v. Lane, 102 Ind. 564.

Unnecessary to allege actual payment of

If the latter, the burden could not run,

as there would be no interest with which it

setted with bullerer for labor or materials.

might run until payment of user. Moreover

14.

such a construction should fall within the

13. Right to recover for use of wall as

rule against perpetuities. Gray, Perp, \[2d\] 8 314. Upon every theory, except that

15.

of equitable Hen, applicable in but few

16.

New 898.

cases, a construction of these covements as

personal, as in New York (Sebald v. Mullol 10 Cur. Law PATENTS SS 1. 1127 up. \[21\] In New York where the agreement does not contemplate the present construction of a party wall, but authorizes its construction in the future, a covenant that the party, his heirs or assigns, using such a wall after its construction at the expense of the other party, shall be bound to pay a fixed sum for such use, creates a priority of estate and runs with the land; \[22\] but this rule does not apply where the agreement contemplates a present construction of the wall by the payee of the agreement who later disposes of all his interest in the property on which the wall is built. \[23\]

PASSENGERS, see latest topical index.

## 1 1. Necessity and Kinds, I127

$ 8. Titles in Patent Rights and License, Conveyance, or Transfer Thereof, 1135. $ 3. Who May Acquire Patents, 1132: $ 4. Mode of Outlining and Claiming Pa- $ 9. Interference Suits, 1136, $ 10. Inrefinement, 1130, $ 5. Letters Patent, 1133. $ 6. Duration of Patent Right, 1134. $ 7. Disclaimer and Abandonument, 1135. $ 8. Telles in Patent Rights and License, Conveyance, or Transfer Thereof, 1135. $ 4. Mode of Outlining and Claiming Pa- $ 10. Inrefinement, 1130, $ 5. Letters Patent, 1133. $ 6. Duration of Patent Right, 1134. $ 7. Disclaimer and Abandonument, 1135. $ 8. Telles in Patent Rights and License, Conveyance, or Transfer Thereof, 1135. $ 1. Necessity and kinds. \[See S C. L. 1135. -- The patent laws being designed to stimulate invention give the patentee an exclusive right of manufacture and sale. \[24\] They charge the patentee with no duty to maintain free competition with other like articles that does not arise with respect to manufactures not protected by patent. \[25\] Independent of his letters patent, an inventor has by common law an exclusive property in his invention until by publication it becomes public property. \[26\] More omission of slight legal formalities in an application will not invalidate it. \[27\] The state statutes cannot interfere with the monopoly granted to a patentee and his assignees under the Federal laws, \[28\] yet patentees and their assignees are subject to the police power rights of the states, the state under such power having a right to decide what should be injurious to public welfare. \[29\] The state can prescribe regulations for registering the licensing of patents. \[30\] The state has the power to pass a general law prohibiting licensees and owners of patents from leasing patented machines by a contract prohibiting the lessee from obtaining from any other person similar machines to perform the same operation as that performed by the leased machines during term of the lease. \[31\] --

Where parties agreed upon appraiser and defendar after setting up errors introduced no evidence in proof thereof. Watkins v. Glass \[Cal. App.\] $ 840. -- 22. Crayard v. Krolpfleiffer, 122 App -- 23. Agreement that heirs, etc., of respective parties be bound thereby, that it be considered covenant running with land without conveying any part of fee of pream- $ 115. -- 23. In the following, we will use a recate more easememment in each other's favor, and that Pavee in agreement could not re- $ 115. -- 23. If not, the state and conveyance by other party of the other lot sought to be charged. Craw- $ 10. -- 23. Agreement that heirs, etc., of respective parties be bound thereby, that it be considered covenant running with land without conveying any part of fee of pream- $ 115. -- 23. In the following, we will use a recate more easemment in each other's favor, and that Pavee in agreement could not re- $ 115. -- 23. If not, the state and conveyance by other party of the other lot sought to be charged.

1128 PATENTS $ 2. 10 Cur. Law.

$ 2. \_Patentability. Subjects of an invention.\_See * C. L. 1288--The patent must involve actual invention.\[22\] A result is not patentable, but the means of producing licenseee of one forbids use of it with that cleaner. Liberty Mfg. Co., Avn. Brew. Co., of another patent for second step (In re 155 F 900. No. 644,456, bowling alley pin opinion of the Justices \[Mass.\] $1 NE 142), setter. Brunswick-Balke-Collender Co., v. and applies where lease provides that lessee Backus Automatic Pin Setter Co., 153 F 288. must buy raw unpatpatented material to use In 30. 655,420, alloy for friction bearing, machine exclusively from lesser during term Ajara Metal Co., v. Brady Bras Co., 165 F of lease (Id.).

32. \_ILLUSTRATIONS. Patents held to disclose Inventions: Reissue No. 11,282 (orig. No. 44,438,35). American Subluble Pimbul Koles Switchboard & Supply Co. V. Inter-Co., v. DeGrassue Paper Co. (C. C. A.) 157 F and 660. Reissue No. 12,037 (orig. No. 589,168) 688,739, sound recorder. American Grapho-claims 1 and 2. Kinetoscope camera. Edl-phone Co., V. Universal Talking Mach. Co., edn v. American Mutoscope & Biograph Co., \[C. C. A.\] 151 F 955. No. 71,112, pressure \[C. C. A.\] 151 F 761. Reissue No. 12,263 governor. Nowars & Roesch Temperature (orig. No. 153,577), spinning machine thread Controlling Co., Roesch \[C. C. A.\] 154 F guide. Houghton v. Whilting Machine Works 952. No. 740,982, electric or lighting. Con-C. C. A.\] 155 F 740. No. 30,478, grass cut-illidated R. Elec. Lighting & Equipment Co. Ing blade and No. 32,377, grass hook. H. S., Azarine Mfg. Co., V. Clark & Parsons Co., 154 795,059, street flusher. St. Louis Street F 851. No. 37,649, bedspring. J. E. Tomp-Fishing Mach. Co., v. American Street Flush-kins Co., v. N. Y. Vwoen Wire Matrices Co., 156 F 574. No. 851,188, phonon-154 F 669. No. 436,916, claims 4 and 5 type-, or graphic tone regulator. R. Wurlitzer Co., writer tabulator. Wagner Tyropwitter Co., v. Sheppy, 156 F 858. V. Wykoff, Seamans & Benedict \[C. C. A.\] 151 F 855. Nos. 450,360 and 492,951, metal --.

151 F 855. Nos. 450,360 and 492,951, metal --.

plate carriers. Altschv. Nat. Tubbe Co., 157 --.

157 F 91. No. 460,937, stocking. Shaw Stock-Rigorse & Warehouse Co. \[C. C. A.\] 153 F ing Co. v. Welerman, 154 F 67. No. 463,704 --.

1581. No. 260,063, waterproof fabric. Street electric motor and dynamo. General Elect. V. Finch, 154 F 978. No. 423,998, brake shoe. Co. V. Bulicket Stic. Mfg. Co. \[C. C. A.\] 152 --.

152 American Brake Sho & Foundry Co. v. F 427. No. 467,476, straw stacker. Indiana --.

159. --.

154 F 96. No. 476,230, hot air --.

155 F 285. No. 627,242, process of ex-supports. Breuchand V. Mut. Life Ins. Co., 157 F 344. No. 578,576, with wheel --.

157 F 944. No. 578,576, fifth wheel --.

158. --.

10 Cur. Law. PATENTS SS 2. 1129

the desired result is. \[83\] If a patentee shows a new result to be attained and means which are new and novel for attaining that result and the device indicated is operative, his patent is good even if in subsequently applying it he varies the means by substituting equivalents. \[44\] Devices used, though old, if performing each its original function, when so combined that by their co-operative action a greatly improved result is produced, become an invention and patentable. \[85\] A principle is not patentable, and while there may be a valid patent for means or methods of putting principles into operation so as to produce useful results, there cannot be for nature's means or methods. \[86\] Here substitution of one material for another in a structure, while it does not constitute invention, is to be considered on that issue where it makes possible changes in other elements of a combination to produce improved operation. \[37\] Mere imperfection of operation where there is a novel device does not deprive the idea of patentability if all that is lacking to perfection is a mere change in the mechanical adjustment of parts. \[88\] Where patent is for mere function in a machine for the manufacture of an old product, it is void for lack of invention. \[89\] Where the idea of a machine is conceived and carried out and a machine made and could be used for the purposes intended, it is an invention, not an experiment. \[90\] Where a patent is not for a product, the result of a method or process, but for an article of special mechanical structure, the method of manufacture cannot enter into it as a patentable element. \[41\] In all patents, invention as distinguishable from mechanical skill is essential. \[42\] Mere improvement of form with no element of a pioneer invention does not allow a patent, \[43\] nor. does the application of a somewhat new method to produce the same general result bestow a right to a pioneer invention, \[44\] nor does a new combination of old elements welded into an improvement allow more than a narrow range of equivalents, \[43\] but in cases of commercial success, where the new invention supplants and supersedes one in common, general, former use, for the same purpose, it is evidence of patentable invention, and in many cases persuasive evidence of a most valuable conception. \[46\] Mere splitting up of parts or multiplication of them, the functions remaining the same, gives no right to a patent. \[47\] Where there is in-

motors. Leonard v. Cutler-Hammer Mffe: remedied. Western Tube Co. v. Rainear, 156 Co., 156 F. 791. No. 689,906, toy torpedo. Potter v. Lake Shore Novelty Co. (C. C. A.) 155 F 278. No. 705,228, type block. Kuhn v. Lock Stub Check Co., 157 F 283. No. 714,259, electrical receptal. Fielding v. Crouse-Hinds Elec. Co. (C. C. A.) 154 F 271. No. 723,139, ornamental glass, Conroy v. Penn. Elec. & Mffe. Co., 155 F 421. No. 78,827, locking device for pedestal tables, Claim No. 1. Tyder v. Ohio Table Co. \[C. C. A.\] 152 F 183. No. 752,903, salt dredge. Hogan v. Westmoreland Specialty Co. (C. C. A.) 154 F. 66. No. 801,281, bottle stopper of sheet metal. Weissenthanner v. Dodge Metalle Camp., 156 F 285. 38, 94. Hilliard v. Fisher Book TypeWriter Co., 151 F 34. 35. Barnes v. Lingo, 151 F 59: Blake & Knowles Steam Pump Works v. Warren Steam Pump Co., 155 F 285. 38. Sewage disposal by three systems, two were old and one was a process of nature, held yold for prior act and lack of invention. Cameron Septic Tank Co. v. Village of Stranga Springs, 151 F 242. 37. Hough v. Within Mach. Works \[C. C. A.\] 153 F 740. Alloy mixture composite patentable. Ajax Metal Co. v. Brady Brass Co., 155 F 409. Where by new mixture of metals former imperfect results are 1130

PATENTS SS 2.

10 Cur. Law.

ventive advance shown with patent office approval, patentability will be upheld.48

Slavish copying of a complete set of features of a patent even to name gives clearly no patentability,49 but where there is no invention at all-to be found, extent of sales and use is immaterial to sustain patent.50 It is when the term "process" is used to represent the means or method of producing a result that it is patentable, and it will include all methods or means not natures which are not effected by mechanism or mechanical combinations.51 The relation between the mechanical and electrical arts is not so close that the adoption of a known mechanical device to a new use in an electric motor may not involve invention where the result is an improvement over prior constructions of great utility and success.52 No patent right accrues where mere adoption of mechanical devices, of general knowledge and use, are made, the devices being simply transformed for one special purpose, the transformation requiring no more than engineering skill.53 The fact that there existed a mechanical requirement for a machine to do a certain thing for a long time which was first supplied by the machine of a patent is high evidence of inventive application and genius.54 An equivalent part is one which does not vary in any manner the idea of means, and, while it may perform new functions, it must perform all the functions of the element for which it was substituted.55 The inventor himself may change or substitute equivalent parts at will if he does not change their functions.56 If a substituted part or element not only performs the functions of the element for which it is substituted but introduces into the combination a new idea or a much more extended development of the idea of means, it is not an equivalent, but a patentable improvement.57

It is unnecessary that each part coact upon another. It is sufficient that the desired end be simply attained to imply a combination.58

_Novelty_ See & C. L. 120 is essential to patent ability.59

Mere use of a formula

48, 49. Kelsey Heating Co. v. James Spear

Stove & Heating Co., 155 F 976.

50. Hotel Security Checking Co. v. Lor-

01. Cameron Septic Tank Co. v. Saratoga

01. Example of evidence and use necessary.

Springs, 151 F 248. The rule which permits

a less liberal construction of the claims of

Parents possessing novelty No. 37,649,

itons of previously known processes or con-

delying. James E. Tompkins Co. v. New

trivanes than is required in the case of a

York 'Woven Wire Matrices Co., 154 F 669.

pioneer patent relieves the wood paying

No. 578,576, fifth wheel for vehicle. Dayton

contemplated in this case from the claim

that it is an infringement of the Bevier pat-

No. 655,402, alloy for bearings. Ajax Metal

enti; and the specifications are open and

C. v. Brady Brass Co., 155 F 409.

broad enough to admit competition from

Parents void for lack of novelty: No. 460,-

others than the owners of that patent

037, stocking. Shaw Stocking Co. v. Weeter-

Preuer v. Bardes, 6 Ohio N. P. (N. S.) 65.

man & Sarfer, 154 F 67.

. No. 483,646, mica

The specifications as to wood blocks to be

sheets process. Mica Insulator Co. v. Commer-

used in the street improvement involved in

this case are not an infringement of the

system for accounting, Hotel Security Check-

Bevier patent, but refer to a different pro-

65. to: Yoramie Co., 155 F 288.

01. for the preservation of wood, which is

not new. State v. Miller, 10 Ohio C. C. (N.

83.46.

52. General Elec. Co. v. Bullock Elec.

Mfg. Co. v. Pullock Elec.

Mfg. Co. I.C. C. A.) 132 F 437.

53. Dodge Coal Storage Co. v. New York.

Sackett Co. v. Stottis \[C. C. A.) 157 F 383.

etc., R. Co. \[C. C. A.) 150 F 738.

54. Maunula v. Sunell, 155 F 85. In such

case a wide range of equivalents is allowed

by courts. Id.

55. Devy Time Register Co. v. Syracuse

Time Recorder Co., 152 F 440.

56. Maunula v. Sunell, 155 F 535.

01. Devy Time Register Co. v. Syracuse

Time Recorder Co., 152 F 440. Example of no

equivalent use. Heywood Bros. & Wakefield

58. to: Yoramie Co., 155 F 409.

01. to: Yoramie Co., 155 F 409.

01. to: Yoramie Co., 155 F 409.

01. to: Yoramie Co., 155 F 409.

01. to: Yoramie Co., 155 F 409.

01. to: Yoramie Co., 155 F 409.

01. to: Yoramie Co., 155 F 409.

01. to: Yoramie Co., 10 Cur. Law. PATENTS $ 2. 1131

somewhat changed from the one regularly employed in mixing ingredients for manufacture of certain lines of goods entitles the user to no patent, as the patent would be void for lack of novelty.60

_Anticipation_ See $ C. L. 1201 in a prior patent is fatal to the valididty of a patent.61

Anticipation of device is not lost by abandonment of actual use of a device.62 A model filed in the patent office is not an anticipation which will invalidate a subsequent patent to another; the word "model" must be understood to mean simply a pattern or representation, and not the actual device or machine of the invention.63 A patent is not anticipated by prior patents in different acts which were not intended to accomplish, and did not in fact accomplish, the objects and purposes of the invention of the patent in suit. Prior patents which refer to features which take practical form in a later patent do not anticipate such later patent where it is the only one which solved the problem.64 Anticipation is not made out where fact of prior existing device is shown, which might be easily changed to present patent form, and prior device was in common use, where it did not occur to anyone to make the change until it was suggested by the present machine.65 Six years' delay after perfection of patent does not estop perfect from claiming priority over one subsequently issued

'Weisenthanner v. Dodge Metallic Cap. Co., $ine. Blake & Knowles Steam Pump Works 156 F 365. $ 528,225, claims 1, 4, 5, 7 and 10, time reorder. New England Enametling Co. \[C. C. A.\] 151 International Time Recording Co. , W. H. $ 19. $ 428,432, $ 152,517, No. 358,445, $ 614,587, and $ 727,238, concrete curbing, Steel v. Wayne Mfg. Co. $ 157 F 589. No. 568,130, Protected Concrete Co. V. Central Imp. & wall supports. Brechaud V. Mutual Life Cont. Co., 155 F 278. No. 450,698, types/writer bus. Inc., 157 F 844. No. 582,481, core plates. tabulator, claim $ 2 American Writing Mach. Westinney Elec. & Mfg. Co. V. Prudential Li (C. C. A.) 151 F 494. Original No. 859,186 (re-F 576. No. 550,823, electric meters, claims 1 Issue No. 12,037), kinetoscope camera. Edison 1 and 8. General Elec. Co. V. Latham, 155 F 293. No. 569,191, dynamic matraure. Gen. A.1, 151 F 767. No. 583,414, lighter bath. Equeral Elec. Co. V. Bullock Elec. & Mfg. Co., Feka Blatter Bath Co. V. Nicholas, 157 F 556. $ 740. No. 577,890, and refuse No. 11,178 F 30,178, No. 618,428, candy machine. Elec. Candy (original No. 620,070), tufing machine. Mach. Co. V. Morris, 156 F 972. No. 625,155, Buser V. Novelty Tufting Mach. Co. (C. C. A.) 151 F 478. No. 587,833, faster for stair v. J. Dressel (C. C. A.) 151 F 908. No. 625,900, carpets. Sloane v. Dobson (C. C. A.) 151 heldite making machine, claim 15. Gibbs v 497. No. 589,342, claims 1, 2, and a. acetyl. & Loom Hermes A Reed Co. V. Howard Bros. line burner. American Lava Co. V. Steward, Mfg. Co., 153 F 291. No. 633,941, dreger. 155 F 731. No. 658,906, torpedo. Potter Standard Sanitary Mfg. Co. V. J. L. Mott v. Lake Shore Novelty Co. (C. C. A.) 155 F 17on Works, 152 F 638. No. 638,540 and 278. Nos. 704,089 and 721,25, regulators for 29,777, those supporter. Foster Hose Sup-electric motors. Pieper V. Elec. Dental Mfg. $ 157 F 585. No. 640,157, Co., 156 F 672. No. 743,153, resulting machine pipe coupling. Western Tube Co. V. Rainer, needle. Dodge Needle Co. V. Jones, 153 F 156 F 49. No. 641,092, rotary boiler tube 156. No. 801,281, sheet metal stopper. cleaner. Liberty Mfg. Co. V. American Brew. Weisenthanner v. Dodge Metallic Cap. Co., 155 F 900. No. 655,402, alloy for bear- $ 365. $ 158. Aix Metal Co. V. Brady Brass Co., 155 F 490. No 1132

PATENTS SS 3.

10 Cur. Law.

to another who had in the meantime conceived the same invention, but who took no steps to file application for a patent until after first perfect had filed and also introduced his invention to the public.\*\*

\_Prior public use.\_See s C. L. 1283--Two years' prior use by the public is a bar to the right to a patent.\* Prior knowledge and use which will anticipate a later patent is not to be made out by a chance combination made without appreciation of the principle upon which the patent is based.\*\*

\_Abandonment.\_See s C. L. 1284--Where the idea of a machine has been conceived and carried into effect by the construction of the machine which is used or could be used for the purpose for which it was designed, it is no longer an experiment but a real invention, and subsequent abandonment of use does not render it an abandoned experiment nor lessen its effect as an anticipation which will invalidate a subsequent patent to another for substantially the same machine.\*\*

SS 3. \_Who may acquire patents.\_See s C. L. 1284--When a claim covers a series of steps or a number of elements in a combination, the invention may well be joint, though some of the steps or some of the elements may have come as the thoughts of one,\*\*

but joint owners can only recover for damages and profits accruing after the partnership in the patent was formed in suits on infringements.\*\*

SS 4. \_Mode of obtaining and claiming patents.\_See s C. L. 1285\*\*\*\*

\_Specification and description.\_See s C. L. 1285--Specifications may be used to explain an ambiguity in a claim, but not to expand or change the claim.\*\*

It is immaterial whether or not the means of accomplishing a result covered by a patent are illustrated therein, if they are sufficiently described in the specification.\*\*

Where the specification is so clear that any intelligent mechanic can follow it readily, it is sufficient.\*\*

If a specification, describing the invention, describes a device in fact entirely useless so far as contributing to the result is concerned, it does not restrict the claims to a combination including such device where it is not mentioned therein.\*\*

If in a specification the patentee in appropriate language described a real invention and properly sets forth a claim to the invention, he cannot be deprived of his invention because he erred in a reference to the prior act.\*\*

Peculiarities should be distinctly specified.\*\*

Any subsequent amendment of any consequence should be verified by the oath of the inventor.\*\*

The patentee must point out everything that cannot readily be discovered where the patent is on a process.\*\*

\_The drawings.\_See s C. L. 1286\*\*\*\*

\_The cancellation of claim.\_See s C. L. 1286\*\*\*\*

\_Interference.\_See s C. L. 1286--On proper showing in interference cases, an injunction may be granted pending decision on merits.\*\*

68 Kellogg Switchboard & Supply Co. v. invention nevertheless. United Shoe Mach. International Tel. Mfg. Co., 158 F 104. Co. v. Greenman \[C. C. A.\] 158 F 283.

67, Dodge Needle Co. v. Jones, 158 F 186. Mo., Quincey Min. Co, v. Krause \[C. C. A.\] No. 839.41, dreager. Standard Sanitary Mfg. Co. v. J. L. Mott Iron Works, 152 F 635. No. 71. Canda Bros. v. Michigan Malleable 79,059, street Misher. St. Louis Street Iron Co. v. American Street Fiushing Mach. Co. v. American Street Fiushing Mach. Co. \[C. C. A.\] 156 F 674. Example of evidence and use necessary to show prior public use. Ajax Metal Co. v. Brady Brass Co., 155 F 409. No. 655,402, alloy for bearings. Id. No. 75,949, glass edge chopper. Conroy Y. Penn. Electrical Mfg. Co., 155 F 411. No. 740,982, electric car lighting. solidated R. Co. v. Adams, 153 F 198.

68 Western Tube Co. v. Ranzer, 156 F 49. Buser v. Novelty Tutting Mach. Co. \[C. C. A.\] 151 F 479. abandoned because product had no market, but was a successful 10 Cur. Law. PATENTS SS 5. 1133

\_Appeal and review.\_See a C. L. 1802

\_Suit in equity to secure patent.\_See a C. L. 1805.--Federal statutes allow suits to compel issuance of patents." This act was not limited by subsequent acts." The government is treated as a party to all suits where the validity of a patent is in question." A suit under Federal statutes to compel issuance of a patent is not revisory but an original suit in equity." In such suits testimony taken before the patent of-fice, although between the same parties, is inadmissible unless a foundation is laid for its introduction as secondary evidence." In such suits, evidence is admissible that defendant's patent is void for anticipation, although no issue is made by the pleadings and although such evidence may defeat the action."

SS 5. \_Letters patent.\_See a C. L. 1805

\_Construction and limitation of claims.\_See a C. L. 1806.--The claim in a patent is the measure of the invention." The patentee must claim in his patent the exact invention." Where claims are so construable that intent can easily be read from them, they should be construed under the general rule that language in a patent should be construed to save rather than destroy it." The omission of a patentee to point out or refer in his specifications or claims to a special feature which he subsequently maintains is the most important part of his invention, is very significant, and should be carefully scrutinized." Specifications may be resorted to to explain an ambiguity, in a claim, but cannot be used to change or expand it." A patentee is entitled to every function his device will perform, though he was ignorant of it when he procured his patent," but he secures no patent on the function, and the discovery of the new one in the patented device does not operate to enlarge or broaden the letter of his claim, which is the measure of his rights," though they may be considered by a court." In some cases courts hold failure to contemplate function or possibilities of any nature as persuasive evidence that it was not within the scope of the invention." Where invention of a high order is indicated, the claims are entitled to a broad con-struction as limited by the prior act, and a liberal application of the doctrine of equivalents as covering a pioneer invention." The claiming of a result is not invalidated by the fact that a specification may describe something which does not exist." In construing improvement claims of a patent, consideration should be given to the character of the improvements introduced by the patentee and the change in the art attributable to them," and the same is true of a patent which has had great commercial success and supplants or supercedes something of the same kind in for 113i

PATENTS SS 6. 10 Cur. Law.

mer general use.99 If they change imperfection into completeness and thus produce a practical machine out of a raw experiment, however simple the change appears, the invention is entitled to liberal treatment by the courts.1 Courts look with favor upon primary improvements which are novel and a manifest departure from the principles of prior structures and which are a final step in creating success out of failure.2 A strict construction of the claims should not be resorted to if the result would be a limitation on the actual invention, unless it is required by the language of the claim.' Where patentee agreed to rejection of certain claims made for patent, and substituted new claims in patent office, the limited new claims can be interpreted in the light of all circumstances surrounding the issuance of the patent as shown by reference to rejected claims and the prior state of the act,4 nor does it debar the inventor from a liberal construction of the claim as granted nor from the benefit of the doctrine of equivalents.5 But some courts hold the inventor strictly to the final claims in such patents,6 and where an inventor limits his claim by certain words and at the same time another patent is pending on a broader term for a similar device, the patentee in the first instance can only claim his limited rights.7 In case, however, an inventor lays claim to a device in one form, and by interference suit he is compelled to change its form, he is estopped from asserting any rights to anything but his final device,8 even where the winner of interference proceedings is found to have an invalid patent because of prior public use.9 An inventor may specify and claim the subject-matter of what he believes himself to be the inventor of and can persist in his claims until the patent office rejects them, then the inventor can resist or acquiesee in the rejection and must choose the course to follow. If he acquiesees, the public is entitled to the benftit of the limitations on his patent.10 If there was no amendment narrowing a claim of a patent in respect to an essential feature of the invention disclosed therein, amendments made in reference to an incidental matter intended to perfect the claim or device impose no restriction on the rights of the patentee in respect to equivalents.11

\_Pioneer invention.\_See * C. L. 1904--A machine for making on a commercial scale more cheaply an article formerly made by hand is a pioneer invention, and a patent thereto is entitled to liberal construction.12

Footnote 99: Heywood Bros. & Wakefield Co. v. Syr-

Acuse Rapid Transit Co., 152 F 453.

1, 2, 3, Wagner Tyepveriter Co., Wyckonf,

Searman's & Benedict \[C. C. A.\] 151 F 585.

4. Victor Talking Mach. Co. v. American

Grapbonphone Co. \[C. C. A.\] 151 F 601.

11. Heywood Bros. & Wakefield Co. v. Syr-

S. Heywood Bros. & Wakefield Co. v. Syr-

12. No. 618, 428, candy machine. Electric

01. Dodge Neede Co. v. Jones, 153 F 186;

St. Louis Street Flushing Mach. Co. v. Amer-

156 F 574. Where assignece was made

as to lock of patentable novelty, the patent

applicant must abide by it. Mica Insulator

6. Yu. Commercial Mica Co., 157 F 90; Good Form Mfg. Co. v. White, 158 F 759.

1. Ajax Forge Co. v. Morden Frog &

Acuse Rapid Transit Co., 152 F 453.

1, 2, 3, Wagner Tyepveriter Co. v. Wyckonf,

8, 9, Dodge Neede Co. v. Jones, 153 F 186.

10. Victor Talking Mach. Co. v. American

01. Victor Talking Mach. Co. v. American

Grapbonphone Co. \[C. C. A.\] 151 F 601.

11. Heywood Bros. & Wakefield Co. v. Syr-

S. Heywood Bros. & Wakefield Co. v. Syr-

12. No. 618, 428, candy machine. Electric

01. Condy Mach. Co. v. Morris, 156 F 972, Ex-

01. Double Street Flushing Mach. Co. v. Amer-

156 F 574. Where assignece was made

158. No. 448,94, electric meter expired

001. No. 448,94, electric meter expired

with British patent for same invention.

Thomson-Houston, Elec. Co. v. McLean \[C. A.\] 153 F 883.

10 Cur. Law. PATENTS SS 8. 1135 sustained.14 The last international treaty in regard to patents did not effect the term of existing United States patents.15

SS 7. \_Disclaimer and abandonment.\_See s C. L. 1308_The burden of proving abandonment is on the person seeking to invalidate it.16

SS 8. \_Tilles in patent rights and license, conveyance, or transfer thereof. In general.\_See s C. L. 1308

\_Patent rights as between employer and employee._See s C. L. 1309_

\_Royalties.\_See s C. L. 1309_Where right to manufacture was based on agreement to pay royalties, no presumption arises that goods manufactured by defendants were subject to royalty.17 The burden is on plaintiff to establish that goods manufactured were within scope of patent for which royalty should have been paid.18 An agreement to terminate a contract for royalty unless minimum of stated royalties was paid, where this clause is acted upon by patent holder, does not deprive him of right to collect minimum royalty during time contract was in force.19 An action for accounting and specific performance cannot be maintained by one to whom royalties are due because plaintiff does not know the amount due and defendants have failed to render statements, and a complaint alleging plaintiff's ignorance of amount due and demanding judgment for no definite sum is demurable.20 An agreement to pay royalty on a certain article made is not based upon the fact that there is a patent for it.21

\_Transfer._See s C. L. 1310_--An assignment of a patent is sufficiently proved in a suit by the assignee for its infringement by the testimony of one of the subscribing witnesses unless there is special reason for more.22 That an assignment was recorded, produced, and put in evidence by subsequent assignee in suit for infringement, is sufficient evidence of its delivery.23 A corporation can assign its rights in a patent by the ordinary transfer.24 Contracts of sale of patents are generally strictly construed.25 An acknowledgment is not essential to the validity of an assignment of rights in a patent if the genuineness of the assignor's signature can be proved.25 Usually where a patent is assigned under contract which includes "improvement patents," any subsequent improvement patent obtained by one not patented will follow and become the property of the assignee.27 Where a party is under contract to assign all future inventions to another, it is his duty to make full disclosures to such other of all inventions made and developed by him.28 Where the assignor of an invention fraudulently assigns it to another, he is liable in an action for the sum re 1136

PATENTS $ 9.

ceived by him for the invention wrongfully conveyed with interest from the date of the receipt thereof. \[29\]

\_Licenses.\_See $ C. L. 1311.--A parol license under a patent may be sustained and specifically enforced as between the parties, \[30\] but where the terms of a parol license are violated, the damaged party has a right to redress. \[31\] Where a machine is sold which can only be used in connection with another device, the sale carries with it an implied license to use the device. \[22\] More agreement among various licensees of patent to have each one join a pool to control prices and output is not a violation of the Sherman anti-trust act, \[33\] and a system of contracts between the owner of a patent and its licensees for a combine to hold up prices and avoid competition is valid. \[34\] The same is true where various patents are used in a pool under a similar arrangement. \[35\] License to manufacture a patented article does not deprive licensee of the right, also - to manufacture unpatented articles of same nature. \[36\] A license once accepted after an opportunity to investigate patent for which it is given will not be rescinded when licensee sues in equity to rescind on the ground of fraud in any respect. \[37\]

SS 9. \_Interference suits.\_See $ C. L. 975.--Interference suits are provided for by statute. \[38\] Before a patent can take advantage of Rev. St. $ 4916 \[U. S. Comp. St. 1901, p. 3393\], the original patent must be invalid for insufficient description or claims and the reissue must seek to cover the identical invention named. \[39\] A party to an interference proceeding in patent office who testified in his own behalf and then continued to postpone cross-examination beyond time for enforcement of his subpoena because time for closing testimony was past, and then refused to testify, can be compelled to do so on application by the circuit court who can enforce attendance in contempt proceedings. \[40\]

SS 10. \_Infringement. A. What is.\_See $ C. L. 1312.--One may imitate a perfected article of another already on the market where patents thereon have expired. \[41\] In- 29. Bates v. Bates Mach. Co., 120 71. App. steel of another patent, held proper and no violation. Clancy v. Troy Belling & Supply v1. Colony Co., \[C. C. A.\] 157 F 554; Cortelyou V, Johnson, 28 S. Ct. 105. \[37\]. Landon v. Tucker \[Mo. App.\] 107 SWT metal in making infringed device, and fedemat broke agreement by using other metal, held no protection after breach. Clancy $ 4918 \[U. S. Comp. St. 1901, p. 339-41\]. \[38\]. \[39\]. \[40\]. \[41\]. \[42\]. \[43\]. \[44\]. \[45\]. \[46\]. \[47\]. \[48\]. \[49\]. \[50\]. \[51\]. \[52\]. \[53\]. \[54\]. \[55\]. \[56\]. \[57\]. \[58\]. \[59\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[70\]. \[60\]. \[61\]. \[67\]. \[68\]. \[69\]. \[71\]. \[72\]. \[73\]. \[74\]. \[75\]. \[76\]. \[77\]. \[78\]. \[79\]. \[80\]. \[70\]. \[71\]. \[70\]. \[71\]. \[72\]. \[74\]. \[76\]. \[78\]. \[79\]. \[81\]. \[82\]. \[83\]. \[84\]. \[85\]. \[86\]. \[87\]. \[88\]. \[89\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[90\]. \[91\]. \[90\]. \[91\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[91\]. \[92\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[ 527, stamp canceling machine (decision in 157 F 556. No. 609,928, thin coquling. 84 F 1014 and 61 F 284 followed). Inter-national Postal Supply Co. v. American Post- 618,428, candy machine, claim 1. Electric & 13,629, 13, 14, 157 F 98. No. 618,428, 157 F 100. & 158,428, 157 F 101. & 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 222, 233, 240, 209, 224, 201, 225, 202, 203, 204, 206, 207, 209, 211, 226, 227, 238, 241, 242, 243, 244, 255, 256, 257, 268, 279, 280, 291, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 211, 222, 233, 241, 242, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 279, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 309, 320, 309, 331, 300, 332, 333, 344, 345, 346, 347, 348, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 39
fringed articles made during life of a patent cannot be sold after patent expires.\[43\] Aequiescence in infringement may bar right to a preliminary injunction, but will not prevent granting of equitable relief.\[43\] More making of duplicate sets of con-, trivances under patent is not in itself an infringement.\[44\] Where by a new system somewhat similar results are produced unintentionally, there is no infringement \[45\] unless the functions of some parts of the machine are restricted so that it does not perform its entire work.\[44\] Where there is a patent for a combination and one element is removed and used with an entirely new combination, it is no infringement.\[47\]

468,03', automatte switch. Cutler-Hammer, disposal of sewage. Cameron Sepite Tank Mfg. Co. v. Automatic Switch Co., 153 F 197.

Co. v. Saratoga Springs, 151 F 242. No. Nos. 454,115; 466,565; 558,356, and 523,314,

644,456, adjustable switch rod, claims 1 s and wheel tires. Gormley A. Jefferer Circ. v. A. Jax Forge Co. v. Morden Frog & Cross-Pennsylvania Rubber Co., 155 F 982. No. 468,102, rotary 677, wheel tires. Boston Woven Hoos & Rub-,

Bolter tube cleaner. Librty Mrs. Co. v. her Co. v. Pennsylvania Rubber Co., 155 F 781. American Brev. Co., 155 F 900. Nos. 650,818 No. 470,61, served cutting lathes. Hendey and 686,91, automatic casings. Hardison V. Mach. Co. v. Prentice Bros. Co., 155 F 133.

Brinkman \[C. C. A.\] 155 F 962. No. 670,893, No. 477,884, can heedding machine. American team heating apparatus. Warren Webster Can Co. v. McGinnis, 156 F 784. No. 480,29,

Co. v. National Vacuum Steam Heating conveying apparatus. Lambert Moisture Enn. Co. v. Liddgerwood Mfg. Co. 1C C. A. J. 151 F 920. No. 662,488, water

Bolter regulators. McAalley v. Chaplin-Ful-154 F 372. No. 483,435, claim 2, atomizer.

Donley v. Wilbrandt Surgical Mrfg. Co. 1C 68,071, claims No. 2, 3, 6 and 11 water

C. A.\] 161 F 223. No 483,646, process for mica

tube steambolter. Stirling Co. v. Rust Boller sheets. Mica Insulator Co. v. Commercial

Oct. 14 F 842. No. 656,617, ball retainer. Mica Co., 157 F 90. No. 480,682, electric

Star Ball Retainer Co. v. Strauss, 157 F 930.

rocket lamp. Edison General Elec. Co. v. No. 688,783, phonographic records. American

Crowse-Hinds Elec. Co. 1C C. A.\] 162 F 437. Graphophone Co. v. Leeds & Catlin Co., 155

No. 603,334. Improvement in throttle valve.

Fe 427. No. 700,740, elevator valve. Flunger Consolidated Engine Stop Co. v. Landers,

21, Co. v. Standard Plunger El. Co., 153 F

Frary & Clark, 161 F 775. No. 624,102, time

741. No. 711,04, brush making process,

recorder. Dev Time Register Co. v. Syracuse

Universal Brush Co. v. Bonn \[C. C. A.\] 154

Time Receptor Co., 152 F 440. No. 526,947,

of 568. No. 717,122, pressure governor. Davis steam boiler (Selbeeper patent). Sterling Co. v. v. Rust Boller Co., 144 F 849. No. 527,361.

Roesch \[C. C. A.\] 154 F 952. No. 721,276,

anameling process. National Enameling &

Gyrospich numbering machine. Bates Mach. Stamping Co. v. New England Enameling Co., 151 F 19. No. 627,361, claims 9, 10, 11

173, mask. Merrell-Soule Co. v. Star Co., and 12 National Enameling & Stamping Co.,

163 F 762. No. 731,667 and 735,949, glass

v. New England Enameling Co. 1C C. A.\] 163 F 184. No. 528,223, claims no. 6, 7, and

164. International Time Recording Co. v. v. Bandy Recording Co., 152 F 717. No. 832,-

Table Co. \[C. C. A.

10 Cur. Law. PATENTS $ 100. 1139 There is generally no infringement where the new patent is an improvement differing both in form and function.\[48\] Unless form is of the essence of the invention, any mere variation of form in a patented device while retaining the principle and mode of operation is an infringement,\[49\] but where parts of a machine are taken off and put onto another machine slightly different, but by the change recreated into the identical machine from which the part is taken, it becomes an infringement.\[50\] The test of an infringement of ordinary goods is "would the ordinary purchaser be easily deceived by a resemblance."\[51\] The mere fact that a patent has never been put into commercial use does not preclude the owner of the patent from maintaining a suit in equity to enjoin its infringement.\[62\] The general tendency of courts is to uphold rather than defeat patents especially where they have won an unchallenged supremacy in the world of business.\[83\] Changing parts around or transferring functions among parts without affecting a general principle or mode is an infringement.\[54\] Mere splitting up of parts or multiplication of them, the functions remaining the same, gives no defense for infringement.\[85\] Where three elements in a device performing separate functions are supplanted by one new device which performs work of all three the new device is not an equivalent of the three separate elements.\[85\] A patent for a specific improvement on a prior machine is not infringed by a machine which does not contain such improvement on the theory that an equivalent device is used.\[87\] The range of equivalents in case of a new combination of old elements is restricted to those elements which perform similar functions.\[86\]

\_Contributory infringement.\[85\] C. L. 1315--A manufacturer of an article only adopted to be practically used in a patented device made and sold by another, who sells the same to owners of the patented device, for use therein is a contributory infringer of the patent.\[89\] As is one who having a license to use a machine with certain attachments places on the licensed machine a new attachment, and an injunction to restrain such acts will lie.\[90\]

(SS 10) B. Defenses.\[89\] S. C. L. 1317--It is no defense in infringement proceedings to show that the infringing device was made in accordance with a later patent.\[91\] Notice of the alleged infringement must be given to infringer by patent holder before infringement suit can be begun.\[82\]

(SS 10) C. Damages, profits and penalties.\[89\] S. C. L. 1318--A court has no power to award an arbitrary sum as profits or damages for an infringement not based upon any finding made by the master on the accounting nor upon the evidence."11 In some cases a court may, however, grant triple damages under the Federal statute."12 A master appointed to hear evidence in an accounting, where evidence of both profits and damages are introduced, should file findings upon each kind of evidence separable."13 In an accounting, royalty contracts with licensee where they were made in good faith and upon a uniform basis are admissible in evidence to allow a basis for the measure of damages even though the contracts were, made during pendency of suit."14 On an accounting of profits by an infringer where infringed machine was practically the same as are generally used it was proper to compare the cost of the machine with its nearest approach in the market."15 The reasonableness of a fee in estimating the measure of damages may be based upon agreements with licensees."16 Where there is no established market value or license fee, general evidence is admissible to show extent of damage and the utility and advantages of patent over old devices as a basis from which a jury may estimate loss."17 Where joint owners use to recover damages for infringement, the profits accruing before the joint ownership, while one partner was sole owner, cannot be recovered."18 Interest can only be collected from date of obligation to pay damages and not from date license fee became payable."19 In an accounting the infringer is not entitled to deduct from profits derived from the infringed patent for a fixed period of time any losses subsequently incurred in a separate transaction, but losses occurring at same time that profits were being made can be deducted."19 In an accounting under the Federal statutes, the defendant's profits and complainant's damages are independent of each other and are governed by different principles, and one cannot be said to be the measure of the other, nor the allowance of one to preclude recovery on the other."20 Where an infringement of one claim only of a patent is adjudged, the infringer cannot be held to account for profits arising from the sale of a part of the device which was not an element of such claim although it may have been an element of other claims."21 The complainant in such case must show where the separation of profit exists, but before this rule is applicable the burden is on the defendant to show the existence of such extraneous elements and the probability that they affected the value of the machine. This is not done by showing that elements of the combination of plaintiff's patent and of the infringing machine were also elements of a prior patented combination and were therefore open to use by complainant as parts of his own combination and invention."22 The (SS 10) \_D. Remedies and procedure.\_15 C. L. 1218--Power to declare a patent void after it is once granted lies only in the courts."22 The use of a patented device under contract with the alleged inventor does not render the United States liable on an implied contract to one whose patent is thereby infringed his remedy being 10 Cur. Law. PATENTS $ 10D. 1141

against patentee." Before infringement proceedings are begun, the alleged infringer must be notified by the patent holder." The notice may be simply in marking on the patent." The burden of proving such notice is on the complainant." This proof must be made whether notice is denied specifically or not mentioned in the answer. The date must be proved to afford a basis for an accounting." On default in a suit under Rev. St. $ 4915 \[U. S. Comp. St. 1901, p. 3393\], to obtain a patent, application for which has been denied by the patent office, the claimant must prove his right to a patent including proof of patentability," and though defendant is in default for want of pleading he is entitled to notice before final decree is entered." After an accounting subsequent to a suit for infringement any new infringements should be set up by supplemental bill." After a decree declaring an infringement by one device, it is improper for complainant to refer to the prior act to limit the scope of the invention to less than was found by the court on the original hearing." Where defendant was privy to a prior suit brought by complainant, depositions in prior suit may be read in new suit if evidence of privity is clear." A patent should be declared void on demurrer for lack of patentable invention apparent on its face only when question is free from doubt in exceptional cases." Suit by patent owner against licensee to enjoin violation of terms of licensed use of patent is not one of specific performance of contract, but one to enjoin infringement, and is maintainable in a Federal court regardless of the validity of the contract." Procedures in a patent office, even when there is a direct issue, operate as estoppel in subsequent litigation only to a very limited extent, and can have no effect as estoppel even on a motion for a preliminary injunction as against one who was not a formal party thereto." One of the patentees of a device who joined in an assignment of the patent is estoppel to deny the validity of any of its claims when sued by the assignee for its infringment, and the estoppel extends to a corporation which he was instrumental in forming and in which he is a stockholder." After a patent is declared valid by a court of equity and a master has made an accounting, the court will not permit complainant in a supplementary bill to bring in officers of the defendant to hold them as individuals on the same judgment." In a suit under Federal statutes in interference upon its establishment, the court should investigate and decide any questions concerning the validity of either patent raised in the pleadings." Where licensor of a patent notifies licensee of an assignment of license and that license must hereafter be paid to the assignee, plaintiff in execution against the licensor must show that the assignment of the royalties was in fraud of creditor's rights."

\_Jurisdiction.\_See $ C. L. 1819--Objection to jurisdiction is waived by filing a general demurrer or any other act of general appearance." Where a number of suits are of like nature and could if joined be tried together, the court does not lose equity jurisdiction by the fact that in some of the cases there is also a remedy at law."

87. Beach v. U. S., 41 Ct. C. 110. 88. 'Indiana Arge. Co. v. J. I. Case Thresh-78. Rev. St., $ 4800 U. S. Comp. St. 1901, p. 192 Mach. Co. C. A. 154 F 365. 3383. 'Lorain Steel Co. v. New York Switch $ 89. 'Hildreth v. Curtis & Son Co., 157 F 394. 'Crossing Co., 153 F 205. 'Matherows Gravity Carrier Co. v. Lister, 79, 89, 89, 89. 'Lorain Steel Co. v. New York Switch & Crossing Co., 153 F 205. 'Matherows' 89. 'The remedy there is in a plenary suit. '89, 89, 89, 89, 89, 90, 89, 89, 89, 89, 89, 91, 89, 89, 89, 92, 89, 89, 93, 89, 94, 89, 95, 89, 96, 97, 98, 98, 99, 99, 98, 99, 99, 90, 99, 91, 92, 93, 94, 95, 96, 97, 98, 99, 99, 98, 99, 99, 99, 90, 99, 91, 92, 93, 94, 95, 96, 97, 98, 99, 99, 99, 98, 99, Where suit is brought under statutes for the recovery of profits, the jurisdiction at law is not lost by the statutory provision for a trial in equity where it can be held in a law court on other grounds." Diversity of citizenship is not essential to jurisdiction of circuit courts of United States in patent cases." Equity jurisdiction will extend to license contract infringements," to establish jurisdiction the words "regular and established" in regard to defendant's place of business are not essential." Where a corporation and an individual are jointly sued, it is unnecessary to allege that the individual is an inhabitant of the district or has an office there to obtain jurisdiction over him.1 State courts can try cases involving more breach of license contract matters.2 A state court of equity has jurisdiction to restrain one from ascertaining names of competitor's customers and wrongfully intimidating by threats of suit for infringements of a patent against customers if they bought and used competitor's goods."

_Parties_," See 8 C. L. 1319

_Questions of law and fact_," See 8 C. L. 1310

_Injunctions_," See 8 C. L. 1320--Where an infringement is shown an injunction to restrain further infringement will lie.4 An injunction pendente lite may issue if patentable invention appears on the face of the patent and the presumptions arising from the grant have been reinforced by the decisions of a competent court upholding the invention upon issues raised and fairly litigated.5 On an appeal from an order so predicated, the only inquiry is whether the discretion of the court was improperly exercised under the circumstances." An injunction will lie to prevent a licensee using any attachment to instrument licensed except one authorized." In some jurisdictions preliminary injunctions are refused unless courts are convinced with reasonable certainty that complainant must succeed at final hearing," and where such prima facie case is made out a court of equity may order a Federal marshal to take possession of the infringing goods in the hands of the alleged infringer and hold them until final decree is entered." The granting of a preliminary restraining order ex parte is so perfunctory in character as to be of little weight when defendants appear and show cause against further continuance.10 Preparations or threats to infringe a patent shown by afflavits ex parte only are not sufficient to warrant the granting of a preliminary injunction.11 A Federal court of equity has power to enjoin either

97. Rev. St. $ 711 \[U. S. Comp. St. 1901, p. solidated R. Elec. Lighting & Equipment Co. 577\] gives exclusive jurisdiction to circuit v. Adams & Westlike Co., 158 F 193,

courts. Thomson-Houston Elec, Co. v. Elec-

rose Mfg, Co., 155 F 543.

98. Where patentee sold legal title on a royalty basis maintaining equitable title and Co. (C. C. A.) 155 F 119,

legal title holder made similar goods under 8. (Second circuit) Hall Signal Co. v. another patent alleged to be infringement of General R. Signal Co. (C. A.) 155 F 907,

equity holder patent held court had juris.

Ekample of doubt. Id. Evidence in doubt,

diction. Leslie v. William Mann Co., 157 F

sufficient to deny injunction. Marconi Wire-

236. The circuit court of appeals has jurisdiction where citizens of same state had a pat-

test. Co. v. Elec-

ent matter Hitigated and decided in circuit court even where on appeal the question on one of the defenses went to the construction of a contract of license. Clancy v. Troy

Belting Supply Co. (C. C. A.) 157 F 554.

99, L Thomson-Houston Elec. Co. v. Elec-

rose Mfg, Co., 155 F 543.

2. Evidence held insufficient to show breach. Sullivan v. Compressed Air Reno-

vator & Sweeper Mfg. Co., 131 Wils. 134, 111

NW 73.

3. Schwanbeck Broa, v. Backus, Jr., 148

1. Continental Paper Bag Co. v. Eastern

Paper Bag Co. (C. C. A.) 150 F 741; Con 10 Cur. Law. PATENTS SS 10D.

party to a suit before it from prosecuting other suits subsequently brought before it relating to the same subject-matter where it would be contrary to equity and good conscience although such suits may be in foreign jurisdictions.\[12\] Where a complainant is unsuccessful in an infringement suit and sues various customers of the successful defendant, a court of equity can assume jurisdiction to enjoin the further interference with defendant's customers.\[13\] On proper showing an injunction may issue in cases of interference pending a decision on the merits.\[14\] Courts usually are careful in granting temporary injunctions where claims in a patent are still unadjudicated and usually special circumstances must be shown. It is better practice to permit defendants to give security for any damages which might be awarded to plaintiff and where so furnished to refuse the injunction.\[18\] In fixing such bond the only basis the court can ge on to establish the proper amount of the bond is to compute the amount of profits made by defendants from the alleged infringements,\[16\] also where general issues and merits are in issue in an infringement suit, an injunction will lie to prevent multiplicity of suits and further litigation in various parts of the country, but this does not affect suits begun before the action mentioned.\[17\] A decree adjudging the validity and infringement of a patent signed by the judge without reading or hearing evidence and on consent of parties, it is not such an adjudication as constitutes a proper foundation for the granting of a preliminary injunction in a suit against a different defendant.\[18\] In contempt proceedings subsequent to the granting of an injunction, the courts will consider the gravity of the alleged contempt.\[19\] An appeal from an order granting a preliminary injunction brings up for review the propriety of the action of the circuit court in granting the injunction only and the case will not be considered on its merits.\[20\]

_Retading.\[56\]_ & C. L. 1321--Answers must be full, unequivocal, and responsive to the bill.\[21\] Here denial of rights to make machine in patent infringement suit and admission of having parts of alleged infringed machine on hand, with statement that defendant has ceased to sell the alleged infringed machine not supported by any clear proof, is not such a disclaimer as will deny right of injunction to complainant.\[22\] The complaint in a suit for infringement must allege that the article made under the patent in question was marked with notice of patent or that otherwise notice of the patent was given to defendant.\[23\] Where a patent is invalid on its face, a court may go declare it sua sponte, although the question is not raised by the pleadings and may dismiss a bill for its infringement.\[24\] Where a bill for infringement of a patent

Catlin Co., 155 F 42T. The presumption in favor of the validity of a patent created by a decision of the circuit court of appeals sustaining it cannot be overcome by ex parte afflavits filed on a motion for a preliminary injunction in a subsequent case and relating to matters occurring several years before. Id. 12. Commercial Acetylene Co. v. Avery Portable Lightning Co., 152 F 644. 13. The assumption by the defendant of his customers' suits does not deprive him of his right to such injunction. Kessler v. El-dred, 206 U. S. 285, 51 Law. Ed. 1065. 14. Scott v. Laas (C. C. A.) 150 F 764. 15. Karfiol v. Rotnner, 151 P 777. Patent not long acquessed in and not adjudicated. Hildreth v. Norton, 154 F 82: Earnl v. Rochester, S. & E. R. Co., 157 F 24I. A showing that two devices are not materially different after a patent has been declared valid by the circuit court of appeals will allow a temporary restraining order from the circuit court. Consolidated Rubber Tire Co., house Co. \[C. C. A.\] 163 F 181.

1144

PATENTS $ 10D.

10 Cur. Law,

in which patentee and licensee are joint complainants, and the bill does not set up the instrument of license nor allege that it is recorded, and where the bill is challenged by demurrer, the instrument should be produced that the court may determine its legal effect.\[28\] A bill for infringement need not allege specifically that complaint was diligent where specific acts of infringement are alleged.\[29\] A bill for infringement is not demurrable because material facts are alleged on information and belief,\[30\] and where corporation and officers are charged with certain specific acts of infringement in a bill of complaint, it is not demurrable for multifariousness but alleges a sufficient case of joint infringement.\[28\]

_Evidence_,\[28\] S C. L. 1822.--The burden of proving an infringement, actual existence, not mere possibility or probability, is on the complaint.\[31\] Where an existing process or device discloses what appears to be insuperable objections to practical operation, it is persuasive evidence of invention that an improver has the foresight and courage to break away from such disclosure and conceive some new method involving a different principle, but it is also evidence of invention if one by taking a step forward sees that what appeared to be barriers of progress are mere obstructions to side paths and byways and that the road to a practical invention lies straight ahead.\[32\] Where neither pleadings nor proof bring into record the prior act the court cannot take judicial notice of it on question of the validity of the patent except as to matters of general knowledge.\[33\] Where the question of invention is in doubt after usual negative tests, evidence of successful results where others had tried and failed especially where the results were both operatively and commercially successful will tend to strengthen the case of the new patentee.\[34\] Delay of unreasonable length in bringing a suit for infringement with knowledge of the infringement bars infringement suit for laches.\[35\]

_Prior decisions_,\[28\] S C. L. 1828

_Variance_,\[28\] S C. L. 1823

_Stay_,\[28\] S C. L. 1823

_Accounting_,\[29\]

_Saving questions for review_,\[28\] S C. L. 1824

_Costs_,\[28\] S C. L. 1824

_Judgment and decree_,\[28\] S C. L. 1824.--A suit for infringement is not a proceeding in rem and a decree of the circuit court of appeals adjudging a patent void is binding only on the parties and does not affect the validity of a license contract subsequently made between the owner of the patent and others which is enforcible not only in the circuit where the decree was issued, but in every other circuit in the United States.\[29\] A final decree of a federal circuit court in favor of a defendant in a patent infringement suit entitles the defendant freely to sell the alleged infringed articles anywhere in the United States.\[36\] While pending an appeal from an interlocutory order granting a preliminary injunction, final decree is entered for complainant which is * 10 Cur. Law. PAUPERS. 1145

affirmed on appeal, the appeal from the order becomes a moot case and should be disposed of by a judgment that the order has been superseded.\[37\]

**PAUPERS.**

**Definition and Status, 1145.**

**Definition and Removal of Paupers, 1145.**

**Equivalent by Indigent or Relatives, 1146.**

**Algorithm of Municputties for Support and Administration of Poor Laws; OMCers and Aid, 1145.**

**Definition and status.See 8 C. L. 1324.**

Whether a person is in need of assistance. is to be determined from his present condition.\[88\]

_Settlement and removal of pauppers.See 8 C. L. 1325._

Settlement is regulated by statute,\[88\] and being ordinarily made to depend on domicile, the general rules thereof 40

apply, thus, intention on the part of the pauper to choose the place as a home is essential to a settlement.\[41\]

Imprisonment will not interrupt the term necessary to gain a settlement,\[42\]

nor will annexation of territory affect change of residence unless the person is then dwelling upon the land.\[43\]

A widow though having a married daughter living elsewhere may acquire settlement as an "unmarried person not having a child."\[44\]

Dependents derive their settlement from the head of the family\[45\]

unless abandoned by him,\[46\]

the matter of loss of settlement by the head of a family being

- _Liability of municipalities for support and aid See 8 C. L. 1325_

is statutory,\[48\]

states generally charging the support of pauppers on the town in which they are settled,\[49\]

which town is ordinarily liable to any other which render aid to the pauper during his absence from the place of settlement,\[50\]

unless such absence shall have

**37.** Howard Bros, Mfg. Co, V. Gibb Loom, Code, # 2234. Washington County v. Polk Harness & Reed Co. \[C. C. A.\] 157 F 676.

County \[Iowa\] 113 NW 833.

**38.** Regardless of the value of property held by him. \[Town of Rippon v. Brandon \]

abandoned by her husband, who removes \[V.I\] 67 A 641. In action by one town against

from the county, the county of their previous another for aid furnished a pauper, evidence

sentiment cannot recover for her support as that he was to pay a note on real estate

against the county in which the husband owned by him and his son as detonants if

setled. Washington County v. Polk County he kept the place, otherwise the son was to

\[Iowa\] 113 NW 833.

have the property. held admissible. Id.

**47.** The person under whom a pauper de-

Guadrennial appraisal of the taxable real es-

erstate held admissible in such action to show

settlement within ten years preceding the value of the property. Id.

**39.** Washington County v. Polk County to hold the town Itable \[Laws 1903, p. 100, \[Iowa\] 113 NW 833.

**40.** See Dornllele, 9 C. L. 1010.

**41.** More presence is not sufficient. In-

habitants of Whately v. Hatfield \[Mass.\] 82

as redoscope in the town and taxation of the

NE 48.\*\* Payment of rent in advance and resi-

dence for one year held to show settlement.

taxes legally assessed during such term \[Pub. Shrewsbury Township Poor Dist. v. Penn \]

St. 1901, e. S3, # 1, c, # 1 (d.). Evidence of

Township Poor Dist., 33 Pa. Super. Ct. 378.

**42.** Sentence to house of correction. In-

than ten years previous is immaterial. Id.

habitants of Whately v. Hatfield \[Mass.\] 82

**43.** Rock County v. Holt County \[Neb.\]

NE 48.

**43.** Where a pauper resided in a town at

the time of his removal to plaintiff city,

residence is liable for the support of his

changing the boundary after his removal so

as to include his house within defendant

habitants of Whately v. Hatfield \[Mass.\] 82

city does not change his residence to the

NE 48. A county seeking to recover for

city. East Montpelier v. Barre, 79 Vt 542,

support of a pauper whose husband had

66 A.100.

**44.** Act June 12, 1836. Turbulent Township

Diverse of the Poor, 7 Port Royal Borough

band. Evidence tending to rebut such show-

Overseers of the Poor, 33 Pa. Super. Ct. 520.

ing is competent without being pleaded.

45. The wife and legitimate children have

the settlement of the husband and father.

113 NW 833.

Rev. Laws, c. 8, 1, cls. 1, 2. Inhabitants

**50.** A county furnishing aid to a nonresi-

of Whately v. Hatfield \[Mass.\] 82 NE 48.

dent pauper may recover therefor from the 1146 PAUPERS. 10 Cur. Law. brought about a new settlement \[81\]. A town wherein a nonresident panper is imprisoned for crime cannot, however, recover from the town of his settlement \[82\]. It is competent for the legislature to classify paupers accordingly as they have or have not a settlement and make different provision \[53\]. In Pennsylvania the quarter sessions has power to order the return of the panper to his place of settlement \[44\]. In Minnesota the liability for support of paupers is on the county, which is liable even without the statutory notice \[85\] to any other municipality furnishing aid \[66\]. The determination by an overseer of the poor of a town, in which the person seeking relief is not a resident that he was in need of assistance is not a final adjudication as against the town of his residence \[67\]. The county is bound to support a bastard child whose parents neglect or are unable to support it \[88\], and such a child once admitted to the almshouse must be supported until properly discharged \[89\].

_Liability of relatives_ See 8 C. L. 1337 to support pauper relations is statutory \[90\]. In Oregon a city may on order of the county court \[91\] recover from the relatives for support furnished a pauper \[92\], but in New York a city may not recover from a decedent's estate for care in the poor house unless such care was fraudulently procured \[93\].

_Repayment by indigent or relatives._ See 8 C. L. 986

county of his legal settlement. Cobbey's Am. 54. Nicholson Township Poor Dist. v. Nicholson Borough Poor Dist., 83 Pa. Super. Ct. v. Holt County \[Neb.\] 111 NW 366. Including 358.

countes having township organization and 55. Service of the notice required by stat-which have not established a poor house. Id.

_tute is not a condition precedent to recover U. S. 3171, 8174. Town of Rlepton v._

_Rand furnished a nonresident pauper. Brandon \[Vt.\] 67 A 541. The town must Laws 193, 529, c. 298. Town of Highland_

_I look to the person assisted if he is able before_

_Grove v. Clay County, 101 Minn. 11, 11 NWW_

_fore applying to the town of his residence_

\_R1. The notice being for the purpose of for reimbursement. Id. Recovery may be giving the county authorities opportunity had it notice he fgiven to the resident town, which we have for him to the poor farm or other-although he had property, where the assist-

$R$. A municipality furnishing medical at-becoming a pauper in a county other than that of his residence is charseable as a pauper to the county in which he resides.

$R$. A town is not liable for aid furnished 529, 105. Village of\_

$R$. A town moves to another part of the town where he is continuously supported until that part of the town is in-

$R$. A new municipality, the old town is still liable for his support. Peter-

$R$. A nonresident. Town of Rlepton v. Brandon\_

$R$. A town is not liable for aid furnished 529, Laws 1896, c. 235, **82**, 66\*\*. People v. Chanm-

$R$. A child was admitted with its mother, who left, and the child was returned to her by the supervisor.\_

$R$.

10 Cur. Law. PAWNBROKERS AND SECOND HAND DELERS. 1147

\_Administration of poor laws; officers and districts.See * C. L. 1227--The superintendent of the poor house appointed by the board of county commissioners is a public officer,\* but the board of managers for the relief and employment of the poor are not township officers.\* The superintendent of the poor house may be removed at will.\* The accounting of managers of the poor in the township of Germantown, Pennsylvania, is governed on the act of June 20, 1839,\* and there is no appeal to the common pleas from their order settling accounts.\* In Ohio the county commissioners are "the proper authorities" to order transferred to some other county fund where it is needed any surplus in the poor fund arising from Aiken law collections.\* Under some circumstances matters relating to paupers may fall within the jurisdiction of officers charged with administration of health regulations.\*

**PAWNBROKERS AND SECOND HAND DELERS.**\*

_The scope of this topic_ is noted below.\* Regulation of junk dealers by statute is a reasonable exercise of police power.\* The year covered by a pawnbroker's license begins when the application for the license is made and the fee paid and runs until the corresponding day of the following year.\* The transactions of pawnbrokers reported according to statute are not public records.\* The Massachusetts license act regulates the occupation of pawnbroking,\* and one may be engaged therein without having ever completed a contract in the course thereof, while one or more actual contracts are not conclusive as to the occupation.\* A pawnbroker who becomes purchaser of a pledged article, at his own sale, must show that the sale was made according to law,\* and with the utmost fair dealing and good faith.\* Omission to report sale of pledged article as required by statute does not render sale void.\* A pawnbroker who in good faith loans money to an unauthorized pledgor has no lien against the true owner.\*

**Fayment and Tender.**

**8 1. Mode and Sufficiency of Fayment or Tender, 1152. Tender, 1148. To and By Whom, 1148. Time and Place of Payment or Tender, 1149. Sufficiency of Payment or Tender, 1149. Medium; B. Evidence, 1155. Checks, Notes, Drafts, Bills of Exchange, etc., 1151.**

\*\*64. Act 1901 (23 St. at Large), p. 754; Ctrill Code 1902, 8 785, 186. Sanders v. Belue \[S. C.\] 58 SEI 762. 65. Hence Act Jan. 20, 1839 (P. L. 337), providing for their election, is not repeated or affected by Act March 10, 1875 (P. L. 6), providing when township officers shall be elected and when their term shall commence. Commonwealth v. Bowditch, 217 Pa. 627, 66 A 867. 66. Custom of a retriing board of county commissioners to appoint a superintendent of the poor house for a period extending beyond their term of office does not prevent the incoming board from at once replacing him. Sanders v. Belue \[S. C.\] 58 SEI 762. 67. Act of March 11, 1809, repealed. Reeves Appeal, 33 Pa. Super. Ct. 196. 68. Act May 1, 1861. Reeves Appeal, 33 Pa. Super. Ct. 196. 69. Franklin County Inframary Directors v. Franklin County Comm'rs., 6 Ohio N. P. \[N. S.\] 347. 70. School board may bind district for cost of burying panper dying of smallpox. Marlatt v. Aleppo Township School Dist., 34 Pa. Super. Ct. 323. 71. See * C. L. 1237. 8. C. L. 1237. 8. C. L. 1237. 8. C. L. 1238. 8. C. L. 1238. 8. C. L. 1239. 8. C. L. 1239. 8. C. L. 1239. 8. C. L. 1239. 8. C. L. 1239. 8. C. L. 1240. 8. C. L. 1241. 8. C. L. 1242. 8. C. L. 1250. 8. C. L. 1251. 8. C. L. 1261. 8. C. L. 1272. 8. C. L. 1262. 8. C. L. 1273. 8. C. L. 128. 8. C. L. 128. 8. C. L. 129. 8. C. L. 129. 8. C. L. 129. 8. C. L. 129. 9. 10. C. L. 129. 13. 14. 15. 16. 17. 18. C. L. 129. 14. 17. 19. 18. C. L. 130. 19. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41
\_Scope of articles.--\_This article does not include discharge by novation,\[62\] release,\[83\] or accord and satisfaction,\[84\] nor does it include payment into court,\[85\] nor matters peculiar to negotiable paper,\[86\] nor the recovery back of involuntary and mistaken payments.\[87\] Tender of payment only is included, tender of other performance being elsewhere treated.\[88\] Effect of tender to stop running of interest,\[88\] or to avoid the payment of costs if a greater sum be not recovered " are elsewhere treated.

**SS 1.**\_Mode and sufficiency of payment or tender.\[91\] To and by whom.\[See S c. L.

\*\*1228--\*\*Payment made under a justifiable belief that its receipt is authorized is valid,\[82\] but when made with notice of a lack of authority to receive, it is invalid,\[83\] and payment to an agent on a contract outside his authority to make is not absolute.\[84\] Payment made to an attorney employed to sue for the amount discharges the debt.\[85\] In an action on a note, the real party in interest and not the maker is the party entitled to recover.\[86\] An independent executrix of an estate, though a married woman, has power while the administration continues to accept payment on a note given to decedent,\[97\] but after administration has been closed, if the husband has an interest in the obligation, tender to the wife alone is not authorized.\[88\] Where payment of an indebtedness would work an injury to an estate the administrator should not compel it.\[98\] Payment of an obligation of another by a third party does not discharge it as between the original parties unless the payment is made and received with the intention that it shall do so,\[1\] and payment of a note without suing it is made at the payer's risk.\[2\] Tender or payment by a stranger may be made valid, however, if duly ratified by the debt.\[8\] A payment by one joint obloge is a payment by all, each is the agent of the other.\[4\] Payment in escerv becomes absolute upon performance of

**SS2.** See Novation, 10 C. L. 1030,

executrix who is a married woman must be

S3.\*\* See Release, 8 C. L. 1714,

joined by her husband in all matters per-

S4.\*\* See Accord and Satisfaction, 9 C. L. 11,

taining to her representative capacity was

S3.\*\* See Payment into Court, 8 C. L. 1337.

so.\*\* See Negotiable Instruments, 10 C. L. 98. Community of right in the interest due

9612.

on an obligation of which wife is devisse.

S7.\*\* See Implied Contracts, 10 C. L. 26.

S8.\*\* See Contracts, 9 C. L. 1654, and title

Ct. Rep. 428, 102 S77 191.

dealing with particular contracts.

S9.\*\* In the New Jersey Jersey Trust & Safe Deposit

S9.\*\* See Interest, 10 C. L. 408.

So. \[N. J. Eq.\] 68 A 811. Where the col-

90.\*\* See Costs, 9 C. L. 812.

lection of a debt due an estate would render

91.\*\* See 8 C. L. 1329.\*\* See, also, Hammon,

possible the performance of an agreement

S8.\*\* 429, 4353.

between all parties interested in the estate

92.\*\* Whether the actual creditor might have

corrected such belief.\[McAvg v.\]. Bridgman

more benefit to the estate than is the col-

\[S. D.\] 112 NEV 1138. As payment to one who

negotiated loan though not the real creditor.

I.\*\* Payment of Insurance does not relieve

I.\*\* Tender of redemption money to one

carrier from liability to shipper for lass of

who thereafter purchases the land. John v.

goods shipped under agreement subrogating

Anchor (Ala.) 45 S 118. Proper party. Id.

garrier to rights of shipper against insurer.

S9.\*\* Payment to an assignor of a note.

S9.\*\* Bradley v. Lehlin Valley R. Co., I.C. C. A.J

S153 F 550. A note given by an agent in

menti to assignor of contract for goods fur-

nished thermometer. Good v. Central Coal &

once Co. (Ind.) 7,140 S76 613.

94.\*\* It amounts merely to an offer to pay.

Brown v. Grady (VwJo) 92 P 622.

95.\*\* A compromise by an attorney is valid

only to the extent of the payment under it.

Liquidators of Joseph David Co. v. Berthelot

Bros., 118 L., 280, 42 S 971.

96.\*\* Wellborn v. Johnson, 118 L. 741, 43 S 92. Where the maker of a note for the benefit of another has been reimbursed, the lat-

ter only is entitled to recover for its unauth-

orised use by payee. Id.

97.\*\* Joinder of husband in release of liability

100.\*\* A comprehensive survey of TEx.

114.\*\* A.A.B. 102 NIV 791.

The provisions of Pasch. Dig. Laws that an

114.\*\* the stipulated condition,5 but the payee may impliedly waive his right to a portion of the amount due him under the escrow agreement.6 For an overpayment made a receiver by an administrator, the former is not accountable to the latter, when the obligation is due assigners of certain interests of the estate.7

\_Time and place of payment or tender.\_See 5 C. L. 1834.--Payment must be seasonally made,8 and so must presentment for payment,9 but only reasonable diligence in making presentment is required.10 When payment is to be made on demand, provisions inconsistent therewith may operate to extend the time.11 Payment of a check relates back so far as extinguishment of the indebtedness is concerned, to the time it was given.11 An express money order wherein no time of payment is stated is payable on demand.18 When land is leased at a yearly rental but there is no provision as to when it shall be due, it is generally payable at the end of each rent year.14 Though a mortgage provides that the principal shall become due on nonpayment of interest, the option to thereupon foreclose is lost if the mortgage pays the interest before it is exercised,18 or makes a valid tender of it.16 When in a land contract the stipulations are mutual, an actual tender and demand by one party is ordinarily necessary to put the other in default.17 This rule, however, does not apply where time of performance has been made the essence of the contract.18

\_Sufficiency of payment or tender.\_See 5 C. L. 1834.--Payment is made by the debtor delivering to his creditor money, or some other valuable thing, for the purpose of extinguishing the debt which is received by the creditor for the same purpose.19 A conditional delivery is not a payment,20 unless it amounts to an executed agreement,21

5. Hunt v. Capital State Bk., 12 Idaho, 588, operates to extend for a reasonable time, at least, the time of payment. Id.

1. Hunt v. Capital State Bk., 12 Idaho, 588, 12 Lazingle v. Datenhauer \[La\] 45 S

87 P 1129. By acceptance of and refusal to

387. Under the primary election law re-refund purchase price of mining claim, plain-

quiring candidates for office to pay assess-

tiff waived right to costs of procuring patent

ments against them within a certain time,

which was to be paid therewith. Id.

7. In re New Jersey Trust & Safe Deposit

time, but not collected until thereafter, is

Co. \[N. J. Ed.\] 68 A 811.

8. In an action of repelvin, a payment into

soo faut of the drawer. Id.

court of the amount due on the goods made

38. Rosenberger v. Pacific Exp. Co. \[Mo. after Mings the complaint, but before ser-

01. J17 SW 459. Refusal of a tender made

vice of summons, is made in time. Andrews

v. Hoeslich \[Twash.\] 31 P 712. Where the ass-

signed of mortgaged chattela tenders the full

smount due thereon on the day of sale but

before the sale actually occurred, the tender

14. Parker v. Gortatowsky, 129 Ga. 623, 59

is sufflect and need not be kept good therewith.

after where the jury is fully instructed as to

the relations of the parties and the rights of

of the relations of the parties and the rights of

upon nonpayment of rent when due, is not a

the assignence. Thomas v. Seattle Brew, &

Mailing Co., \[Wash.\] 94 P 116.

9. Negligence in falling to present a bond

for payment at the time stipulated, which

bond contains a provision that after that

time the bond should not draw interest, bars

s right to recover interest after said time.

Packard v. Mobile \[Ala.\] 43 S 963.

10. Where a note is payable in a certain city and the maker appends thereto his ad-

dress in that city, presentation of the note at

that address 18 sufficient in the absence of

notice of any change, although the maker

is absent from the city at the time of pre-

sentation. Hipp v. Fidelity Mut. Ins. Co., 128

Ga. 491, 67 SE 829.

11. Muir v. Greene \[N. Y\] 83 NE 685. A

bond for the payment of a certain sum on

demand, and for such "money" as shall here-

inafter be advanced, and which recties that

the maker had requested the payee to ex-

tend the time of payment of a sum then due, 1150 PAYMENT AND TENDER SS 1. & 10 Cur. Law.

nor is a deposit in escrow,\[21\] and tender also must be unconditional.\[13\] The requirement of an express agreement that payment shall be made in certain species of coin may be impliedly waived.\[24\] Payment or tender otherwise insufficient may be made good by the laches of the creditor.\[25\] Purchase of a note by a third party does not operate as a payment of the debt so as to release collateral security.\[26\] A bona fide holder of a note is not bound by a transaction entered into without its knowledge, whereby the note is to be paid.\[27\] A tender at the place of payment of a note is sufficient although there was no one there authorized to receive the money tendered.\[28\] A tender must be made in good faith and coupled with an ability to perform,\[29\] but an offer to perform may be equivalent to an actual tender and production,\[30\] and knowledge that a tender will be refused renders it unnecessary to make it.\[31\] Tender must

tor, equal to the amount of the judgment, to be repaid in the event that an appeal from the judgment is decided in appealant's favor.

App. 337.

29, Doak v. Bruson \[Ca1.\] 91 P 1001.

Persons v. Gardner, 122 App. Div. 167, 106

Where a tender of a mortgage for purchase money is required, it is not necessary for the

21. As an acceptance by a lien creditor of an amount less than his full claim on condition that he shall receive the money. Id. Taylor v. Mathews, 53 Fla. 776,

false if he establishes the lien which he

44 S 146.

Colorado Fuel & Iron Co. \[CoLo.\] 91 P 1114.

22. A deposit in a bank of the balance due

on a note to be paid to the holder of the note

one by the agreement, provided the other

is not a deposit, within the meaning of Civ.

Code 8 1500, providing a debt is extinguished

by a due offer of payment if the amount is

immediately deposited in the name of the

creitor in some bank of deposit. Rispetti \[Ca1. App.\] 80 P 60.

23. A check sent to a bank to be delivered

to the creditor provided the gives a receipt in

full of all his demands on the debtor is con-

ditional and not a good tender. Towles v.

Offers to pay what the court may determine

Carpenter, Wright & Co. \[IV. Va.\] 87 SE 365.

24. Where a note requires payment in gold,

paying the money into court, since he has

-90 tours e&ed up \['oird up?? = 37 two\]

effect that a tender of the amount due was not

Civ. App.\] 18 Tex. Ct. Rep. 700, 103 SW 242.

good because made by draft where the tender

Under City, Code Proc. 2 074, but the offer

was not refused for that reason and where

must be in good faith ($ 1493), and accomod

this requirement of the note has not been

sisted on in the case of any previous payment. Hidden v. German Sav. & Loan Soc.

formance of a concurrent condition by the
\[Vwash.\] 93 P 668.

25. Tipton v. Roberts \[Wash.\] 93 P 906.

less that such other party is unable and un-

Where defendants sent plaintiff checks and

willing to perform. Doak v. Bruson \[Ca1.\]

recelpted bills for repairs on a house

amounting in the aggregate to the amount

suffinency of the amount offered in court can

due as rent for the house, and such checks

not afterwards object that the money was

and bills were, received and retained by

plaintiff for nearly two months when they

land v. Clements \[Ark.\] 104 SVV 175. An

were returned and an action of outser for

present to be cashed, an amount due it out

delay in returning the checks and bills

amounts to an acceptance, or at least affects

those funds being sufficient, is a good ten-

a tender so as to prevent forfeiture for non-

payment of rent. Id.

26. Hyatt v. Bell \[Ark.\] 103 SVV 748.

01. Acceptance by endorser of a deed in

payment and agreement to cancel notes held

by indices not binding on latter. Citizens'

San, Blk v. Marr \[Mo. App.\] 107 SVV 1009.

Ratification of such a transaction will not

be implied unless accompanied with a full

knowledge of all the facts. Citizens' Sav.

'Bk v. Marr \[Mo. App.\] 107 SVV 1009.

28. When made in the coin stipulated in

the obligation. Harmann v. Rose, 129 IL.

to be repaid in the event that an appeal from

App. 337.

29. Doak v. Bruson \[Ca1.\] 91 P 1001.

Persons v. Gardner, 122 App. Div. 167, 106

When a tender of a mortgage for purchase money is required, it is not necessary for the

money is required, it is not necessary for the

wife to execute such mortgage in order to

make the tender valid, since she has no in-

claim on condition that he shall receive the lien for the purchase

balance if he establishes the lien which he

dancy. Id. Taylor v 10 Cur. Law. PAYMENT AND TENDER SS 1.1151

be kept good when equity requires it,"2 but in other cases it may be unnecessary."32 A promise for a consideration may constitute a payment.34 A valid tender may be kept good by a deposit in a bank of the amount due with instructions to pay unconditionally to the creditor.35

\_Medium; checks, notes, drafts, bills of exchange, etc._See 3 C. L. 1880_--What may be received in payment of a debt is a matter of contract between the parties interested, with which, if made in good faith, courts will not interfere.36 But a check is not payment until paid unless it is expressly agreed that, whether good or not, it shall have that effect.37 In Massachusetts, however, exactly the contrary doctrine prevails,38 but acceptance of a check implies an undertaking of due diligence in presenting for payment, and a failure in that regard is at the holder's risk,39 and payment

SS2. Weil v. Lippman, 105 NYS 616. A

party suing in equity for the cancellation of

is in the name of the creditor and another

mortgage is bound to keep good a previous

jointly. Kerr v. Moore \[Cal. App.\] 92 P 107.

tender by bringing the money into court at

36. An agreement with member of a firm

the commencement of the action and allergic

whereby an indebtedness to the firm is

that fact in the complaint. Id. In such a

dorsed on notes held by its debtor against

case the purchaser on foreclosure has a

said member individually when the firm does

right to appeal from the decree and hence is

not contest the member's right to make such

not obliged to accept a tender since by so

an agreement. Brockman v. Ostdlek \[Neb.\]

dolmg he would wavits that right. Id. One

133 NW 629.

who has lost his statutory right to redeem

37. Citizens' Bk. v. Kretschmar \[Miss.\] 44

land sold on foreclosure, but obtains a decree

8 930. And unless there is either precedent

extending the time, must keep good a tender

or contemporaneous debt. Mairock V. Scheu-

of the amount due made within that time.

erman \[Or.\] 93 P 823. An unpresented check

Burning v. Haskell \[Cal.\] 93 P 110. A re-

is not payment. Tholmann v. Lewis, 121 App.

fusal to pay within the time granted in an

Dlv, SS3, 106 TXS 1065. When dishonored,

affirmance of the decree upon appeal wavivers

the original indebtedness continues to exist,

the right to redeem regardless of the pre-

and the creditor may recover therefor with-

vious tender. Id.

83. Rosenweik v. Kitchman, SS36 Misc., 456.

Kretschmar \[Miss.\] 44 S 930. And even

106 NYS 860. In an action by vendee in a

though the check is accepted as payment by

land contract to compel specific performance,

the creditor who replies on the implied repre-

there seems to be no reason why a previous

sentation that it will be honored, if dishon-

tender of the amount due need be kept good.

ored, the creditor will be relieved from his

Kerr v. Moore \[Cal. App.\] 92 P 107. Where

vendee in possession has made such improve-

In good faith. Id. Where checks lost

ments as equally entitle him to specific

debtor remains liability both on checks and or-

performance. Taylor v. Matthews 53 Fla.

\[ignal Indedness. First Nat. Bank v.

716, 44 S 146. In an action to recover stock

McConnell \[Minn.\] 114 NW 1129, Where

pledged as collateral and wrongfully sold by

fedendant. Further v. National Metal Co., 118

Juggent entered on the original notes, the

App. Div. 263, 103 NYS 490. While, Im an

apyere has a lien on such judgment for ther

action on a composition agreement, a tender

payment. Adair v. Decker, 34 Pa. Super. Ct.

must be kept good to be available, yet

163. Only evidence of payment and where

where such an agreement is set up as a

deb. bank operates a creamy and pays its p-

fense to a common-law action on the origin-

troms by checks drawn upon itself, such

inal obligation, and tender thereunder and

holders are general creditors. Emigh v.

its refusal is shown, such tender need not be

Earling \[Wis.\] 115 NW 128. Only conditional

kept good. Roenzweig v. Kitchman, SS

payment. R. H. Herron Co. v. Mawby \[Cal.\]

Misc. 346, 106 NYS 860. Where the owner

App.\] 89 P 82.

of property brought suit against his tenant

Presumption against payment. Brughman

to recover possession on the ground that the

v. Lowe \[Ind. App.\] 83 NS 255. But this

lease had terminated and refused to receive

presumption may be overcome by facts incon-

a tender of rent during the suit, It was not

sistent therewith, Lester Whitney Shoe Co. v.

necessary to keep good the tender in order

Oliver Co., 1 Ga 1153 PAYMENT AND TENDER SS 2. 10 Cur. Law. by check bars garnishment of the debt unless or until the check is dishonored.\[40\] Where there is an exchange of commercial paper, each instrument is sufficient consideration for the other, and an independent obligation not conditional upon the payment of the other.\[41\] The certification of a check operates as a payment as between drawer and holder.\[42\] The giving of a debter's note does not pay the debt in the absence of agreement that it shall.\[43\] When a creditor is induced by misrepresentations - to accept notes in payment of a debt, he may rescind such acceptance and the original debt thereupon revives.\[44\] The creditor may, however, estop himself from asserting nonpayment.\[45\] A check is not legal tender,\[40\] nor is a bill of exchange.\[47\]

SS 2. \_Application of payment.\[See SS 5. C. L. 1831.--The creditor and debtor may agree upon the application of payments, where there is more than one debt to any particular item of indebtedness.\[48\] In the absence of such an agreement, the debtor is primarily entitled to apply the payment to such indebtedness as he chooses,\[49\] and, where pay, ment is to an agent or trustee, he is not required to see that it is applied to the purpose of the payment.\[50\] If the debtor fails to omit application, it may be made by the creditor.\[51\] A creditor holding two notes, one an individual and one a joint note of

SS 9 P 872. But this does not apply to one who merely holds a check pending further negotiations, but refuses to accept it as payment. Leister-Whitney Shoe Co. V. Oliver Co., silent in that regard (Id.), such note operation. App. 244, 58 SE 212. Check sent by mail must be accepted within a reasonable time on the conditions on which given. Dunn v. Whalen, 120 App. Div. 729, 105 NYS 688. 40. Wait-Harley-Holmes Hardware Co. v. Day, JGa. App. 646, 57 SE 1033. 41. Matlock v. Scheuerman \[Or.\] 92 P 82. 42. Though accepted only as payment on account when given in full payment. Dunn v. Whalen, 120 App. Div. 729, 105 NYS 588. 43. Daniel v. Gordy \[Ark.\] 105 SWY 256. In lieu of cash premiums due on insurance policy. Hilp v. Fidelity Mult. Ins. Co., 128 Ga. 491, 57 SE 892, Notes given in lieu of cash payment of premiums on insurance merely -extend the time of paying in cash, and such notes after default are ineffective in preventing forfeiture. Horav v. Union Mut. Life Ins. Co., 118 App. Div. 416, 103 NYS 1059. Note of debtor and third party only extends time of cash payment and evidence of indebtedness. Menael v. Primm \[Cai.\], 91 P 764. Notes in payment of other notes secured by collateral do not release the security when the renewal notes are on their face also secured by collateral. Farmers' Loan & Trust Co. V. Madison Mfg. Co., 185 F 310. The execution of a renewal note is not a payment of the judgment obtained on the original note, but is only another evidence of the debt. Crenshaw v. Durfs Exr, 31 KS. L. R. 173, 103 SWY 287. 44. But the misrepresentations must actually deceive and induce the acceptance. American Malting Co. v. Southern Brew. Co., 194 Mass. 89, 80 NE 526. 45. America Malting Co. v. Southern Brew. Co., 194 Mass. 89, 80 NE 526. When Insurance policy not to become operative until cash payment of initial premium, acceptance of a note and delivery of policy and receipt stating such premium to be settled by note, the policy thereupon took effect (Hipp v. Fidelity Mult. Life Ins. Co., 128 Ga. 491, 57 SE 892), and acceptance of note for overdue premiums wavics right to forfeiture policy (Arnold v. Empire Mut. Annuity & 10 Cur. Law. PAYMENT AND TENDER SS 3. 1153

the same debtor, may apply to either note an undirected general payment,52 but payment out of proceeds of property mortgaged must be applied to the debt secured thereby.58 In the absence of direction or application by either party, the law applies the payment in accordance with well established and recognized rules.54 In general, money paid into court by way of tender should be applied on the judgment recovery.ered,55 and payment into court is payment to plaintiff.54 The question as to whether there was an application by the parties may be submitted to the jury.57

**SS 3. Effect of payment or tender.See * C. L. 1333--A** vendee under a land contract who pays the full purchase price and performs all the other conditions of the contract acquires thereby whatever title the vendor has, even in the absence of a dead.58 For payments made by the mortgaged before the mortgage acquired notice of a prior incumbrance, the purchaser will be protected pro tanto, to the extent of such payments.58 Payment of the first premium on an insurance policy completes the contract.50 The tender of a debt secured by mortgage does not release the lion of the mortgage, but there can be no foreclosure while the tender is kept alive.61 To preserve the legal effect of a tender, it must be kept good.52 Refusal of a valid tender bars the right to costs of a suit instituted thereafter for collection of the debt tender,63 and also stops interest.64 In an action on a note, a payment into court of the amount due thereon simply eliminates any question as to plaintiff's right to re-

52. So where one is barred and the other

the common law. Id. Where a note bears

not, application may be made to the former.

semi-annual interest, payments of interest

McBride v. Noble \[Colo. 39 P P 1037.

semi-annuality after maturity will be

53. Not to another mortgage debt. Nolen

plied on interest and not principal, the in-

v. Farrow \[Ala.\] 45 S 183. Purchase by Ilenor

of an interest in the property secured

ex- the whole note is due. Adams V. Illinois

tinguishes only that portion of the indebted-

cdense which was a charge upon the inter-

55, 56. Ahrens v. Fenton \[Iowa\] 115 NW

est purchased. Stone v. Petts \[Tex. Cir. App. J 18 Tex. Ct. Rep. 863, 108 SW 418.

57. Ontario Bk. v. Loomis, 18 N. Y. 578, 82

01. Maryland Jockey Club v. State \[Md.\] 458 A 612. To that indebtedness for which

the security is most preerious. Payments

by a bank cashier will be applied to defalcalc-

tions occurring outside the period covered

by his bond, when unsecured. Fancher v.

Kaneen, 5 Ohio N. P. (N. S.) 614. To the

otherst items first. Brown v. Larry \[Ala.\] 44

S 841: Holloway V. White-Dunham Sho Co.

\[C. C. A.\] 151 F 216; Fisher V. Brown Hardware Co. \[Tex. Cir. App.\] 19 Tex. Ct. Rep. 575, 103 SW 655 In order of maturity,

Belcher v. J. L. Case Threshold Co.

\[Neb.\] 111 NW 848. To accomplish equity

among all parties interested, payments indexed on interest will be applied to

cipal. Commonwealth v. Louisville & N. R.

Co., 31 Ky. L. R. 9104 SW 267. Payment on an Interest bearing note are applied first

on the interest and balance on the principal,

pal, and interest is then computed on

cipal remaining; but if payment is less than

the interest, the balance of the interest is not added to the principal, but the same

principal draws interest until the payments

exceed the interest, when the excess is again

applied to the principal. Adams V. Illinois

Life Ins. Co., 31 Ky. L. R. 1941, 104 SW 718.

And where the debtor pays the principal

sum, either before or pending suit, and the

creditor still demands interest, the payment

does not discharge the principal but is applied as a partial payment on the total sum

then due. Commonwealth v. Louisville &

**X. R. Co., 31 Ky. L. R. 819, 104 SW 267.** This note is not changed by Ky. St. 1903, 8 2219,

subsec. 3, which is merely declaratory of

10 Cur. L-- 73.

the common law. Id. Where a note bears

not, application may be made to the former.

semi-annual interest, payments of interest

McBride v. Noble \[Colo.\] 39 P P 1037.

53. Not to another mortgage debt. Nolen

plied on interest and not principal, the in-

v. Farrow \[Ala.\] 45 S 183. Purchase by Ilenor

of an interest in the property secured

the whole note is due. Adams V. Illinois

tinguishes only that portion of the indebted-

cdense which was a charge upon the inter-

55, 56. Ahrens v. Fenton \[Iowa\] 115 NW

est purchased. Stone v. Petts \[Tex. Cir. App. J 18 Tex. Ct. Rep. 863, 108 SW 418.

57. Ontario Bk. v. Loomis, 18 N. Y.

- 1154 PAYMENT AND TENDER SS 4A. 10 Cur. Law.

cover on the note, but leaves all other issues open.\* Defendant is credited with whatever he pays into court, but if the amount is insufficient plaintiff recovers judgment for the full amount and costs.\*

\_Recovery back of payment.--\_Payments, though voluntary, may be recovered if made under mistake of a material fact,\* though otherwise if made under a mistake of law,\* unless such payments were illegal.\* But payments made in satisfaction of a _voidable_ award cannot be recovered.\* Rent due and voluntarily paid cannot be recovered,\* nor can taxes paid by a stranger be recovered from the owner of the land.\*

\_Necessity for tender.--\_Generally, tender of performance must be made by one party before he can maintain a suit for breach of conditions by the other.\* A suit to redeem cannot be maintained without tender of the amount due,\* but a formal tender is never required where it is disclosed that if it had been made it would have been fruitless.\*

_Payment is not excused_ by sickness * nor by the fact that another earnestly endeavored to make payment.\*

_Creditor may waive_ express conditions of payment by words or conduct.\*

SS 4. \_Payment or tender as an issue. A. Pleading.\_See S C. L. 1388--A plea of tender, in general, admits plaintiff's right of recovery.\* It must state the precise sum tendered and a refusal of the creditor to receive it, that defendant has been, and still is, ready and willing to pay the sum, and must aver that the money is brought into court, and it must be so brought, otherwise the plea and evidence under it is a nullity,\* though an allegation of tender need not state the amount in dollars and cents.\*

65. Aherns v. Fenton \[Iowa\] 115 Nvw 233. breach of a contract to purchase and re-Does not preclude a counterclaim which may extinguish the debt sued upon, in which case the amount paid is returned to defendant. Volk V. Olsen, 64 Misc. 221, 104 NYS 415. Id. 74 Longino v. Ball-Warren Commission 66. Ahrens v. Fenton \[Iowa\] 115 Nvw 833. 67. Collins v. Kelsey \[Tex. Civ. App.\] 16 is brought into court during pendency of Tex. Ct. Rep. 955, 97 SV 122. Payment of a higher rate for electricity than that charged others. Armour Packing Co., V. Edison Elec. Ins. Co. (Ga. App.) 10 65 AE 470; Starr v. Wat-Illuminating Co., 115 App. Div. 51, 100 NYS 865. 68. Insurance policy forfortified though payment of premiums thus prevented. Hipp v. Fidelity Mut. Ins. Co., 128 Ga. 491, 57 SE 892. 77. Hipp v. Fidelity Mut. Ins. Co., 128 Ga. 491, 57 SE 892. Laws of 1892. Wright v. Gansvoort Bk., 118

App. Div. 281, 103 NYS 548. But payment, after insolveny, of a secured debt, is not a preference. Id. That they were voluntarily made is no defense to a recovery. Packard v. Mobile (Ala.) 48 S 965. 70. Hegem v. Beckley \[Ky.\] 105 SW 969. Such payments are such a ratification of the award as to estap the party making them from thereafter questioning its validity. Id.

71. Where paid in summary proceedings, not based on nonpayment of rent, resulting in judgment of ouster. Dechenbach v. Rima \[Or.\] 38 P 446. 72. Neither at common law nor by statute. Mitchell v. Danielson, 88 Colo. 63, 89 P 823. 73. Where a contract for the sale of land for a sum payable in instalments is silent as to the time of delivering the deed, either the deed or so much of the land as equals in value the amount paid should be tendered before an action on a note given for one of the instalments can be maintained. Menzel v. Primm \[CAL. App.\] 91 P 754. Plaintiff cannot maintain an action for 10 Cur. Law. PAYMENT AND TENDER SS 4B. 1155

An averment of readiness and willingness to pay to parties not before the court is not good as a plea of tender,\[82\] and a plea of payment which fails to allege when, how, and to whom the payment was made is defective.\[83\] Matters not pleaded are unavailable,\[84\] but objections to a plea must be seasonally raised,\[85\] since generally, amendments thereto are within the discretion of the court.\[88\] Where the only issue is the amount due, the court should retain whatever is paid into court until judgment.\[87\]

(SS 4) _B. Evidence.\[88\]--Where the evidence shows that a nurse made purchases for the patient at his request but is conflicting as to whether she paid for them out of certain checks given her by him, a verdict that she did so will be sustained.\[89\] Ordinarily, a receipt may be contradicted and explained by parol evidence,\[90\] and where it is indefinite as to the amount of payment it should be disregarded in determining that question.\[91\]_

_Presumptions.\[86\]_ $e$ _S_. C. L. 1384--There is a presumption that a check is not to have the effect of payment until paid, and this can be overcome only by clear proof to the contrary,\[92\] but it will not be presumed that money deposited in a bank to the credit of one of the parties to an award has not been accepted by him.\[93\] A note governed by the law merchant given for a pre-existing debt is only prima facie evidence of payment.\[94\] Whether this prima facie evidence has been rebutted is a question for the trial court.\[95\] It has been held to be overcome by the fact that acceptance of un-

is not bound under SS 46, e. 125, Code 1899, to 1904. Palatine Ins. Co. v. O'Brien \[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[\[ ( ( ( ( ( ( ( ( 1156 PAYMENT AND TENDER SS 4B. 10 Cur. Law.

secured notes, as such, would deprive a creditor of a collateral security or other substantial benefit.\*6 Lapse of time may raise a presumption of payment.\*7 In the absence of fraud or undue influence, a voluntary payment of money by a parent to his child will be presumed to be a gift.\*8 The presumption arises in such cases, from circumstances which might be insufficient to raise it between strangers.\*9 A few contract will not be presumed from the fact that payments due under an old were not made in accordance with its terms.1

\_Burden of proof.\_See * C. L. 1935--Payment is an affirmative defense and the burden of proving it by a clear preponderance of the evidence is upon him who alleges it,2 and the same is true of tender,3 but certain circumstances may raise a presumption of payment and cast the burden of proof upon the one denying it.4 Plaintiff's possession of a note is prima facie evidence of its nonpayment.6 In an action to recover money voluntarily paid, the burden of proving mistake, fraud, or like ground of recovery is upon the party alleging it.\* To support a gift to a person standing in a confidential relation to the giver, the burden is upon the former to show in a clear and unequivocal manner that the donor understood the transaction and that it was his voluntary act.7

\_Sufficiency.\_See * C. L. 1936--A finding of the lower court that a mortgage has been paid will not be upheld where the testimony in support of such finding is given by parties in interest, and is improbable and inconsistent with testimony of other

**0e. Such as a mechanic's Ilen. Beach v.** purchaser of mortgaged chattels must make Huntsman \[Ind. App.\] SS NE 1033.

satisfactory proof of payment. The burden

97. Where from the final account of the

is then upon the mortgage to show that

guardian of a deceased lunnich, which was

claimant had actual or constructive notice

duly Pjed and approved, it appears that cer-

of the mortgage, under Code 1896, & 1009

tan funds came into the guardian's hands

Nolen v. Farrow \[Ala.\] 45 S 183. Where

mcre than twenty years before the com-

mcrementment of suit for an accounting of said

open and close the evidence and argument.

funds, it will be presumed that they were

Gtone v. Pettus (Tex. Civ. App.) 18 Tex. Ct.

day paid to those entitled thereto. Mat-

thews. Kelly, 70 N. J. Eq. 786, & 74 1075.

as payment. Citizens' Bank v. Krethomas

in the absence of proof of any payments on

a mortgage during twenty years which it

the back but declines to accept it as payment.

has been due, there is a presumption that it

has been paid (Greenfield v. Mills, 123 App.

App. 244, 68 S212.

Div. 43, 107 NYS 765), and so where a mortgage has not been foreclosed and more than

twenty years have elapsed since its execution

(Morgan v. Pott, 124 Mo. App 371, 101 SWV 711). But in an action by judgment

crediors to set aside as fraudulent a dead

of the debtors, there is no presumption that

the judgments, obtained four years before

comnementement of the action, have been paid,

though the action has been pending for over

twenty-five years. St. Francis Milli Co. v.

Sugg, 206 Mo. 148, 104 SWV 45.

**95, 99**, Jenning v. Rohde, 93 Minn. 385,

109 NVP 597.

L. Adams v. Illinois Life Ins. Co., 81 Ky.

L. R. 1041, 104 SWV 718. Where a note provides for interest payable semi-annually un-

til maturity and thereafter at the same rate

annually, and the maker continues to pay

interest semi-annually after maturity, the

court will presume that such payments were

made voluntarily for the convenience of the

maker and not under a new contract. Id.

a Delana v. Voss \[Iowa\] 114 NWV 1076;

Greenburg v. Sauls Brox, \[Miss.\] 45 S 569;

Bossi's Ekstate v. Baehr \[Whis.\] 113 NWV 423.

Payment of renewal note given on condition

that old note be surrendered. Stevens v.

Taylor \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 428,

102 SWV 712. One claiming to be a Deng Hole
10 Cur. Law. PAYMENT AND TENDER SS 4C. 1157

"witnesses." To establish tender, evidence of the amount must be definite and positive."

\_Admissibility.\_See * C. L. 1285--Checks are admissible as evidence of payment." In an action to recover payments, evidence that they were made as a gift is admissible under a general denial.11 In an action on a note, testimony of the maker regarding statements of the deceased payee is inadmissible,12 though other facts and circumstances showing the nature of plaintiff's transaction with decedent may be admissible.13 Advancement of money by decedent to plaintiffs is no evidence of itself that it was in payment of services rendered.14 In an action to recover money paid, statements by plaintiff against interest may be admissible as admissions,15 and payment may be shown by circumstantial evidence.16 Under a plea of payment, instruments competent to establish that fact are admissible,17 though not themselves specifically pleaded,18 and payment may be evidenced by more than one instrument.19 Testimony showing a readiness to tender is no evidence that a tender was actually made and is inadmissible for such purpose.20 Oral evidence that the amount tendered on a mortgage, was that agreed upon in a writing subsequent to the mortgage, it not being the full amount of the mortgage, is inadmissible.21 Where tender is not the only question in issue, it is not conclusive of the others.22

(SS 4) \_C. Limitations.\_See * C. L. 94--While a creditor who holds more than one claim against a debtor, one of which is barred by the statute of limitations and the other not, may apply an undirected general payment to the barred debt, this does not prove that the debtor acknowledged that debt and hence does not raise the bar

8. York v. West, 147 Mich. 549, 14 Det. the 'indebtedness. Atkinson v. Maris \[Ind. Leg. N. 3, 111 NWV 164.

1. Where can identify but one of a num-

1. Jenning v. Rohde, 99 Minn. 335, 109

ber of bills he saw offered and does not

16. That plaintiff entered decedent's place

know the total sum, he establishes no-

17. of business in possession of a certain sum

fiedinfed. Schuchman v. Hochstein, 104

and came out without it may be some evil-

NYS 374.

10. Checks given by decedent to claimant

decent. Campbell v. Collins, 133 Iowa, 152,

prior to date of note used upon. Also checks

110 NWV 435. But proof of favors rendered,

of a later date payable to a third party. In

such as loaning money at less than ordinary

re Royer's State, 217 Pa. 826, 64 & 854.

11. Jenning v. Rohde, 99 Minn. 335, 109 NWV 597.

01. That interest was payable semi-an-

01. Fto Grande & S. F. Co. v. Colorado

usually where note provided for annual in-

14. Fto D'Alesson, 81 P 1114. In an

01. Fto D'Alesson, 81 Ky. L. R. 1041, 104

01. That plaintiff entered decedent's place

01. Fto D'Alesson, 81 Ky. L. R. 1041, 104

01. Fto D'Alesson, 81 Ky. L. R. 1041, 104

01. Fto D'Alesson, 81 Ky. L. R. 1041, 104

01. Fto D'Alesson, 81 Ky. L. R. 1041, 104

01. Fto D'Alesson, 81 Ky. L. R. 1041, 104
    1158 PAYMENT INTO COURT. 10 Cur. Law. of the statute.\[28\] Where the confidential relation of principal and agent exists between debtor and creditor, the statute of limitations does not begin to run against the claim until the debtor's death.\[24\]

(SS 4) \_D. Questions of law and fact.\_See s C. L. 1336--Whether a note is payment of a debt, when connected with other instruments explanatory thereof, is a question of fact,\[25\] as is also the question as to whether or not there has been a waiver of a formal tender,\[26\] and, as such, they must be submitted to the jury.\[27\] But when the evidence clearly establishes a fact, such fact should be assumed by the court.\[28\]

**PAYMENT INTO COURT.\[28\]**

Money unconditionally deposited in court becomes the property of the one for whom it is paid.\[30\] The right thereto is admitted by a plea of tender and payment,\[31\] and the party to whom the fund belongs is entitled to an order allowing him to receive the same upon application therefor.\[32\] Money deposited in court cannot be withdrawn before final judgment,\[33\] and there is no final judgment pending an appeal.\[34\] Judgment for a greater amount than that paid into court may be had.\[38\] In such case the amount deposited must be paid plaintiff and credited upon the judgment.\[36\] But where the action is to recover the possession of property based on special ownership and not to recover a debt, judgment for a greater amount than the deposit in court does not call for a pro tanto application of the deposit on the judgment;\[37\] the amount deposited, less costs of suit, must be returned to defendant, and the fact that the court ordered the deposit to be made does not affect the party's right thereto.\[38\] One cannot be compelled to pay money into court where the right to it is a disputed fact,\[39\] nor can a party be required to pay money into court to take the place of a lion which has never been established.\[40\] Tender alone is sufficient in a bill for interpleader,\[41\] no one being authorized to receive a payment into court until the court has sustained the bill.\[42\] Payment into court will be regarded as following a valid tender where the testimony in regard to a tender having been made is conflicting.\[43\] Under statutory provisions that where a fund in litigation is admitted by

\*\*23. McBride v. Noble \[Colo.\] 90 P 1037. Following the English, Massachusetts and Maine doctrine. In Vermont and Missouri, Id. however, such an application requires the 33, 34. Higgins v. Keyes \[Cal. App.\] 90 P debt. Id. See case cited in principal case,\[97\]. 24. McGrew's Exr' v. Congleton, 31 Ky. L. R. 609, 102 SV 1185. This relation was esseph Unteraturzungs Vercin, 104 NYS 908.ublished where claimants acted for twelve and one-half years as agents for decedent, decedent. unqualifiedly recognized her liia- Joseph Unteraturzungs Vercin, 104 NYS 908; Wilty for the services, and no settlement was demanded. Id. 37. Windsor v. Snider \[Kan.\] 90 P 820. Plaintiffs having recovered the property or a portion of it, cannot claim the money. Id. 38. Windsor v. Snider \[Kan.\] 90 P 820.
\*\*25. Collins v. Kelsey \[Tex. Civ. App.\] 16 Tex. Ct. Rep. 955, 97 SV 122. 20. See 8 C. L, 1337. 30. Dechenbach v. Rima \[Or.\] 93 P 464. In summary proceedings, rent due cannot be withdrawn though the action is based on expiration of the lease and not nonpayment of rent. Id. 31. Elebter v. Goldberg, 120 App. Div. 457, 104 NYS 1080. 32. Blebter v. Goldberg, 120 App. Div. 457, 104 NYS 1080. So, in a suit to foreclose mortgage for nonpayment of Instantments, complainant is entitled to withdraw them upon their payment into court following a valid tender, since the tender and payment 10 Cur. Law. PEDDLING. SS 4. 1159

the pleadings to be held in trust the court may order it paid into its custody, the admission, to sustain the order, must be free from any claim on the fund by the pleader,\[44\] and the admission must relate to the state of facts as they exist at the time of granting the order.\[45\] Where all parties are before the court, the fund in litigation in its custody will be distributed according to the rights of the parties, though the application for distribution by one who failed to show an interest has been denied.\[46\] An order to pay money into court with interest calls for the legal rate, and the court cannot accept a lesser rate.\[47\] Payment into court by plaintiff must be made at commencement of suit and alleged in the complaint.\[48\] Deposit in a bank by the register of money paid into court, in violation of the court's order, amounts to a conversion,\[49\] the register becomes _eo instantiate_ a debtor of the party to whom the fund belongs, and a cause of action at once arises against him and his surety.\[40\] It is the duty of the clerk to turn over money deposited in court to the county treasure, who has no authority to pay it out except upon the court's order.\[51\]

**PEDDLING.**

\*\*SS 1. Defailtion, 1159. 8. Who May Become Licenses, 1150. 8. A. Statutory or Municipal Regulation, 1150. 8. A. Offenses and Prosecm tion, 1150. 8. 1150. 8. 1150. 8. 1150. 8. 1150. 8. 1150. 8. 1151. 8. 1152. 8. 1153. 8. 1154. 8. 1155. 8. 1156. 8. 1157. 8. 1158. 1159. 1159. 1158. 1159. 1159. 1159. 1150. 1151. 1159. 1150. 1151. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1159. 1150. 1150. 1151. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1150. 1151. 1159. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1150. 1151. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1150. 1151. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1150. 1151. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1150. 1151. 1159. 1150. 1151. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1150. 1151. 1159. 1150. 1151. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1150. 1151. 1159. 1150. 1151. 1150. 1151. 1150. 1152. 1153. 1154. 1155. 1156. 1157. 1158. 1159. 1159. 1159. 1151. 1159. 1150. 1151. 1150. 1152. 1153. 1155. 1156. 1157. 1158. 1159. 1159 1160

PENALTIES AND FORFEITURES $ 1. 10 Cur. Law.

after shipment into state by foreign corporation, the transaction does not constitute

interstate commerce.\[68\].

Peolipere, see latest topical index.

PENALTIES AND FORFEITURES.

$ 1. Definitions and Elements, 1160.

Forfeitures, and the Policy of the Law,

$ 2. Rights and Liabilities to Penalities end

1100.

$ 3. Remedies and Procedure, 1161.

_The scope of this topic is noted below.\[50\]_

$ 1. _Definition and elements._ See * C. L. 1389.--Whether a deposit is to be regarded

as a penalty or liquidated damages depends upon the nature of the transaction and

intent of parties.\[60\] If the sum deposited be disproportionate to any possible damage,

it is to be treated as a penalty, and not as stipulated damages.\[61\] The word "forfeit" means to lose,\[62\] and involves a change of ownership.\[63\]

$ 2. _Rights and liabilities to penalties and forfeitures, and the policy of the law._ See * C. L. 1380.--Equity will reluctantly enforce a forfeiture,\[64\] and will always re-

lieve from a technical forfeiture\[65\] when no substantial injury has resulted.\[66\]

\_Statutory penalties.\_See * C. L. 1340.--Penal statutes are to be strictly construed,\[67\]

but not so as to defeat the intention of the act,\[68\] and actions for violation must be

brought in good faith.\[69\] A statute imposing a minimum penalty only is not in-

valid.\[60\] Congress may enact that the sum mentioned as penalty in a bond be

recoverable as liquidated damages.\[71\] An Arkansas statute provides for the maintenance

of an action for penalty, though the penal statute be repealed,\[72\] and Texas provides

for the same.\[73\]

\_Belief from forfeitures.\_See * C. L. 1341

$ 58. City of Muskegren v. Hanes. 149 Mich.

$ 67. Section 85, c. 114, Hurd'e R. S. 1905,

$ 460, 14 Dec. Leg. N. 489, 112 NW 1071.

$ 68. It excludes punishment for violation

Co. v. People, 227 Till. 270, 81 NE 343; State v.

of criminal laws (see Criminal Law, $ 0. L. 851), and penalties provided by contract for

Cent. R. Co. (WWs.) 113 NW 852. Plaintiff

failure to comply with their terms (see

Building and Construction Contracts, $ 0. C. L. 424; Contracts, $ 0. C. L. 654; Public Contracts, $ 0. C. L. 1473, and see Damages, $ 0. C. L. 859, for a more extended treatment as

$ 69. United States v. Louisville, etc., R. Co.,

daintices between penalties and liquidated damages. Topics dealing with the subject

matter as to which penalties are awarded

should also be consulted (e. g. Betting and

$ 68. United States v. Louis, etc., R. Co. v.

$ 69. United States v. Louis, etc., R. Co. v.

$ 70. United States v. Louis, etc., R. Co. v.

$ 81. State imposing penalty for nonpay-

$ 82. Health forfeitures v. Snyder, 105 NYS 502. Recourse may be had to prior negotiations and

surrounding facts. United States v. Bethle-

hem Steel Co., 205 U. S. 105, 51 Law. Ed. 731.

$ 64. Mining claims incapable of profits.

lieveuft v. Hoyt, 118 App. Div. 227, 103 NYS

451. Not disproportionate amount. United

States v. Bethlehem Steel Co., 205 U. S. 105,

$ 51 Law. Ed. 721.

$ 62. Lien forfeited by statute. Sheets v.

Prosser (N. D.) 112 NW 72. Defining forfeiture. Meyers v. State \[Tex. Cliv. App.\] 105 SW7 48.

$ 68. State impounding animals, which

$ 71. Bond of contractor for carrying mail.

will pass into ownership of town, involves

forfeiture. Corell v. Welsh \[La.\] 45 S 428,

$ 64. Pheasant v. Hanna \[V. Va.\] 60 SE

$ 613: Tretley v. McElmurry, 201 Mo. 382, 100

$ 72. Western Union Tel. Co. v. State \[Ark.\]

$ 73. Later act dimnished penalties. Waxters-Pierce Oil Co. v. State \[Tex. Civ. App.\]

$ 20 Tex. Ct. Rep. 621, 106 SWV 918.

10 Cur. Law. -- PENSIONS. -- 1161

_Cumulative penalties_,See * C. L. 1141--Cumulative penalties cannot be recovered,74 unless such is the clear intent of the legislature.75

SS 3. _Remedies and procedure_,See * C. L. 1242--A proceeding to collect a penalty is a civil suit,76 and the institution of-an action is a waiver of previous penalties.77 Debt is the proper action for the recovery of statutory penalties,78 and the state may maintain the action.78 A penalty, imposed by statute, does not bar an action for damages for tort arising out of the violation.89 The pleading is strictly construed.81 Nothing is taken by implication.82 An express averment that a statutory penalty is sought is necessary,83 and the statute must be indicated,84 but North Carolina holds this unnecessary if facts be set out bringing the case within the statute.88 When a statute imposes a penalty, the plaintiff must prove the facts by a preponderance of evidence,86 but it need not make out its case "beyond reasonable_doub,"87 though courts differ, as to the latter rule.88

## 5 PENSIONS.8

A pension is an annuity from the government for past services.90 Writ of mandamus to fix pension is not barred by laches because application was not promptly brought, the rule of promptness applicable to reinstatement in office having no application.91

PERJURY,

$ 1. Elements of the Offense, 1162. $ 2. Prosection and Punishment, 1163.

Matters common to other crimes are elsewhere treated.92

$ 1. _Elements of the offense_, See S. C. L. 1344--Perjury is willful," false swearing 94 before an officer or tribunal having jurisdiction 95 in respect to a matter material,96 circumstantially 97 or otherwise to the issue, or which tends to credit 98 or discredit the witnesses in respect to the main fact in issue or on inquiry,99 and upon an oath 1 duly administered by a competent officer on an occasion where an oath is required by law.2 It does not require the participation.of more than one person, and is scarcely susceptible of being committed jointly with others.3 Knowledge by defendant of the materiality of his testimony is not essential,4 nor do mere irregularities in the organization of the tribunal,8 the administration of the oath,8 or in the proceedings,7 operate as a defense. Nor can a defendant proceeding to trial without objection rely upon the defective character of the information relative to which he gave false testimony to exculpate him,8 and in the case of false swearing under naturalization statute, there need not have been any purpose of gain or instigation of malice.9

Perjury may be assigned upon the cross-examination of a witness only where the

92. See Criminal Law, 9 C. L. 851; Indictment and Prosection, 10 C. L. 57.

01. Nurnberger v. U. S. \[C. C. A.\] 156 F 721.

01. Elevins v. State \[Ark.\] 107 SWP 393; Schooler v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 403, 106 SWP 359.

01. That grand jury indicating defendant for perjury had previously indicted him for bigramy, and both charges involved fact that defendant married certain woman on specified date, did not deprive court of jurisdiction to try perjury indictment. People v. Collins \[Cal. App.\] 92 P 513.

01. People v. Collins \[Cal. App.\] 92 P 518.

01. Health material Amount and title of property of surevy of ball bond, under statute, $ 572-3-5, Code Crim. Proc. People v. Davis, 122 App. Div. 569, 107 NTS 426. In prosecection for removing crops without paying rent, 1sindindor's testimony that he did not assign rent or instruct defendant to pay assigne. State v. Harris \[N. C.\] 58 EE 115. All statute before grand jury which might properly influence decision. State v. Sargood \[VT.\] 68 A 49.

**Immaterial:** Where issue is, was defendant guilty of disorderly conduct on certain avenue, testimony that he was guilty at place not embraced in complaint. State v. Dineen. 203 Mo. 628, 102 SWP 480.

97. People v. Collins \[Cal. App.\] 92 P 513; People v. Davis, 122 App. Div. 569, 107 NTS 426.

01. Value of property alleged to be owned, as giving credit to survey's statement of ownership of property valued at more than certain amount. People v. Davis, 122 App. Div. 569, 107 NTS 426.

01. People v. Collins \[Cal. App.\] 92 P 513.

01. Oath "to slemnly swear, * * concerning penal laws of Texas, sufficient on which to predicate perjury, though touching violation of penal laws" might have been added to oath. Clay v. State \[Tex. Cr. App.\] 107 SWP 1129.

01. Under the statute, false swearing in \[Homerston v. U. S. \[C. C. A.\] 156 F 429.

01.

10 Cur. Law. PERJURY SS 2.

testimony in chief is material and the cross-examination affects the credibility of the witness.10

\_Subornalation of perjury.See & C. L. 1345--To constitute subornalation of perjury, there must have been perjury committed by another at the procurement of the defendant.11

SS 2. _Prosecution and punishment.See & C. L. 1345_

\_Jurisdiction.--\_The district court has jurisdiction of violations of the national naturalization laws though committed in naturalization proceedings in a state court.12

\_Indictment.See & C. L. 1345--The ancient common law in exacting much particularization in the description of the offense of perjury and subornalation of perjury has been greatly modified by statute.13 Hence an indictment inartificially drawn and defective in matters of form cannot be questioned for such reasons after verdict,14 and if one assignment is sufficient, an improper assignment will not, be ground for quashing the indictment, and can only be taken advantage of by exception to the evidence introduced thereunder.13 It is now only necessary that the indictment for both common law perjury and statutory false swearing so sufficiently inform the accused of the cause and nature of the charge that he may intelligently meet it, and, if convicted, successfully plead his conviction in a subsequent prosecution therefor.16 The indictment therefore must set forth the substance of the controversy or matter in respect to which the offense was committed,17 must show upon its face that the alleged false testimony was material to the issue,18 must set forth the court or person before whom the false oath was taken,19 the authority to administer it,20 that the testimony was false 21 and willfully and 22 corruply given.23 But the indictment

**10.** Enough of the direct testmony must be admitted to show the materiality of the stress-examination. Wilkinson v. People, \[Ga. App.\] 59 SE 211. Good averment of materials sufficient unless it affirmatively appears from other averments that matter alleged material was in fact immaterial. People v. Collins \[Cal. App.\] 92 P 513. Averment that testimony was material to actionoured making with knowledge that per-son sworer falsely. Id.

**12.** Holmgren v. U. S. \[C. C. A.\] 156 F 439.

**13.** Sections 5386, 5397, Rev. St. U. S. \[U. S. Comp. St. 1901, p. 3655\]. Nurnberger v U. S. \[C. C. A.\] 156 F 721.

**14.** Averment that oath was made in support of certain application to enter certain land, subject to entry at said land office, sufficient after verdict as showing land was public land subject to homestead entry.

**15.** Error to quash indictment containing two good assignments because third too general. Hoffman v. Allegan Circuit Judge, 19. Pen. Code, $ 966. People v. Collins 150 Mich. 58, 14 Del. Leg. 8, 61, 11 NV 854.

Where but two of three statements alleged sufficiently traversed as to truthfulness, and court permitted jury to pass thereon only.

**16.** Under Coast. art. 10, indictment for periphery before grand jury which fails to specify subject-matter of investigation then being pursued, 78 V. U. S. \[C. C. A.\] 156 F 721.

**17.** Commonwealth v. Combs, 80 Ky. L. R. 1800, 101 SW 312.

**18.** Under Coast. art. 10, indictment for periphery before grand jury which fails to specify subject-matter of investigation then being pursued, 78 V.

1164 PERJURY SS 2. 10 Cur. Law.

need not set forth the pleadings, record, or proceedings with which the oath was connected, nor the commission or authority of the person or court before whom the perjury was committed.24 And a direct averment of willfulness, where the facts alleged necessarily import willfulness,25 or that accused was sworn where the indictment alleges that he committed perjury, is unnecessary.28 So, also, in an indictment for perjury on prosecution for violation of local option law it is unnecessary to allege the method in which the law was put into force,21 and in Texas an indictment need not show the materiality of the testimony although it is held better policy to do so.28

_Suboration of perjury,See 8 C. L. 1345--To support an indictment for subornation of perjury in violation of the homesetead laws, it is not essential that the affidavit should have been subscribed as well as sworn to before the land officer.29_

_Variance.See 8 C. L. 1346--The ordinary rules as to variance apply.30 An information is not limited by a complaint as to the mode of charging the offense provided it is based on the same transaction.31_

_Admissibility of evidence.See 8 C. L. 1347--The materiality of false testimony is a mixed question of law and fact,32 unless there is no dispute as to what was said upon_

Appl.19 Tex. Ct. Rep. 283, 103 SW SW 897. In ordinances creating police court and author-allegation that defendant paid "M," adminis-trator, whereas in fact he did not, unneces-sarry to negative expressly that he paid "M" personally. Blevins v. State \[Ark.\] 107 SW 823 Mo. 628, 102 SW 480.

393. Failure of indictment alleging that defendant swore that he did not do certain things to allege that he did, fatal. Moore \[Aliss.\] 44 S 817.

001. Charge that testimony was feloniously, falsely, and corruptly given, necessarily implies willfully or intentionally given. Blevins v. State \[Ark.\] 107, SW 393. Complaint charging that defendant in chancery suit filed sworn answer, false in specified portions, and such answer was used to dissolve injunction, good though not alleging intent to so use. Hoffman v. Allegan Circuit Judge, 150 Mich. 58, 14 Det. Leg. N. 610, 113 NIV 584.

001. Wilkinson v. People, 226 Ill. 135, 80 NE 699.

001. _Wilkinson v. People, 226 Ill. 135, 80 NE 699._

Indictment sufficient: Indictment under form provided in Laws 1889, p. 86, c. 83, setting out court, cause, alleged false statement, scheme, and charging that defendant did unlawfully commit perjury. State v. Harris \[N. C.\] 59 SE 115. Indictment alleging that accused testified that he had not engaged or seen others engage in certain game at specified time and place, that he had done so and well knew fact when he testified. Howell v. Commonwealth, 31 Ky. L. R. 983, 104 SW 685. Indictment that defendant falsely and knowingly testified that certain marriage ceremony was performed between himself and certain person at certain time and place and by certain minister, followed by preparing there, and allegation of truth and\_

30. \_Where several persons held for perjury on joint complaint, before magistrate, hed. Howell v. Commonwealth, 31 Ky. L. R. 983, 104 SW 685. Indictment that defendant failedy and knowingly testified that certain differance from that charged in commarriage ceremony was performed between himself and certain person at certain time that all persons concerned in commission of and place and by certain minister, followed by crime are principals, is not applicable to negation thereof, and allegation of truth and perjury, since 5 169, provides that one provor-facts, sufficient as against charge of negative pregnant, there being no allegation of subordination of perjury, a separate offense.

01. _No material variance where information identical with compliant, except that it_

01. \_Wilkinson v. People, 10 Cur. Law. PERJURY SS 2. 1165

a given issue in which case it is purely a question of law.\[38\] The ordinary rules as to relevancy, materiality,\* and competency, apply.\[38\] The fact that the perjured witness was sworn may be proved by witnesses.\[39\] In suborination of perjury, evidence material to the question of motive or intention is admissible.\[40\]

_Sufficiency of evidence.\[39\]_ & C. L. 1347--The rule that the determination of an issue of fact in a criminal case is conclusive in a subsequent criminal proceeding against the same person is inapplicable to perjury.\[38\] The proof should show how and wherein the testimony upon which the perjury is assigned was material.\[39\] It must also conform to the allegations of the indictment \[40\] and prove all the material averments thereof.\[41\] Proof that an oath was administered in the presence of the court by any officer authorized to do so is sufficient to sustain an allegation that the person was sworn by the court or in court.\[42\] To authorize a conviction for perjury, there must be two witnesses testifying to the falsity of the statement, or one witness with strong corroborating circumstances of such a character as clearly to turn the scale and overcome the oath of the party and the legal presumption of his innocococ.\[43\]

33. State v. Dineen, 203 Mo. 628, 102 SW

binding and dependent on other facts, re-

480.

001. Evidence that intention of applicants was to convey lands to defendants contrary

judicate of defendant's perjury in denying to sworn statements, admissible. Van Gesner v. U. S., 158 F 46. Where indictment

en evidence of single witness, while in per-

charged injury in giving testimony on trial

for conspiracy to obtain money by false pre-

Sargced (V.U.S.) 68 A 49.

tenses, error to admit entire record of suit.

39. Askew v. State \[Ga. App.\] 59 SE 311.

Wilkinson v. People, 228 Ill. 185, 80 NE 699.

More admission of testimony Insufficient to

Statement to witness after examination be-

show materiality. State v. Dineen, 203 Mo.

fore grand jury, showing falsity of previous

628, 102 SW 480. More fact that in prosecution

statements upon which perjury charge was

for seduction defendant herein testified that

based, admissible. Clay v. State \[Tex. Cr. App.\] 107 SW 1129. Where defendant swore

the old not have certain conversation with

Armitage ceremony never occurred, evidence

that same was illegal-indmissible. People

v. Collins \[Cal. App.\] 92 P 513.

85. Component Under indictment for suborination of perjury under Timber and Stone

01. Where alleged that defendant testified

Act (U. S. Comp. St. 1901, p. 1545), proof that

that he paid M, and proof showed that he

land was valuable, not for timber but for

testingled that he paid one claiming to be M.

grazing purposes, although tending to show

lands not enterable under act. Van Gesner

v. U. S., 158 F 46. Tract book of land office

41. Where indictment is based on such

to show that lands applied for under raise

facts, failure to require prosecution to show

out were public lands subject to entry.

that defendant was present at time and place

Nurnberger v. U. S. \[C. C. A.\] 156 F 721.

stated and committed acts charged error-

For register to explain meaning of abbreviations used in tract book. Id. Clerk's au-

88. 104 SW 685. More improbability of

thematical minutes and record of trial and

testimony, without affirmative proof of

proceedings in case where perjury was

lied to have been committed, to show juris

diction of court and pendency of action.

State v. Pratt \[S. D.\] 112 NVP 182. Com

plain at variance from information as to

matterors disregarded as surplusage. Kelley

v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 204,

103 SW 189.

34. Destinony of witness that defendant

was sworn by justice and oath administered,

admissible. Clay v. State \[Tex. Cr. App.\] 107 SW 1129.

37. Regulation of land office correberating

defendant's testimony as to his understand-

ing of the law by showing such understanding was that of land department until after

alleged offense, admissible. Nurnberger v. U. S. \[C. C. A.\] 156 F 721. Testimony of de-

Testimony of witness that defendant

readant that his agreement with alleged

perjured applicants for land was that future

conveyance to him was optional and not

binding and dependent on other facts, re-

the living him of criminal intent. Id.

38. Conviletion for poisoning coults not res

was to convey lands to defendants contrary

judicate of defendant's perjury in denying

to be poisoned them, since conviction may be

ner v. U. S., 158 F 46. Where indictment

en evidence of single witness, while in per-

charged injury in giving testimony on trial

jury conviction cannot be so had, State v.

for No legal rule can be laid down to measure the extent of the corroboration except that some corroboration must exist, the amount of which is in each particular case for the determination of the jury,\[44\] and where the jury finds that the corroboration is sufficient, and the trial judge is satisfied with their finding, the latter's discretion in refusing a new trial will not be interfered with unless manifestly abused.\[45\] An accomplice being a discredited witness, there must be at least one credible witness independent of the accomplice.\[46\] Motive is a material fact to be proved in statutory indictment for suboransion of perjury.\[47\]

\_Instructions.\_See * C. L. 1348.--The jury should be informed by the charge which assignments of false testimony are submitted to them as a basis for their verdict.\[48\] Instructions should not be misleading \[49\] and should not increase the burden of proof.\[50\] Instructions not warranted by the evidence,\[51\] and instructions amply covered by previous instructions, are properly refused.\[52\] It is proper for the court to select one or more assignments of perjury and inform jury of their materiality,\[53\] to instruct as to the meaning of terms employed where necessary,\[54\] and it is not error to instruct conversely.\[58\] An applicant for eitizenship is not an accomplice in such a sense as to require the jury to be cautioned in respect to his testimony where it

- \[noitemsep,nolistsep\]
  10 Cur. Law. PERPERTUITIES AND ACCUMULATIONS SS 2.1167

does not appear that the defendant gave the false testimony at the instigation of such applicant.\[56\]

PERFULATION OF TESTIMONY, see latest topical index.

**8 1. The Rule Against Perpetuities and Ac-**

**annotness of Particular Limitations,**

**annulations; Its Nature and Applica-**

**itoss, 1167.**

**8 2. Computation of the Period and Re-**

**--**

**SS 1.** \_The rule against perpetuities and accumulations; its nature and applications.\_See S. C. L. 1348--\*\*

Future estates must be so limited that in every possible contingency they must vest within the statutory period.\[57\] It is the postponement of the vesting that is prohibited and not merely the postponement of the possession,\[58\] and a limitation is not void if there are persons in being who can make absolute transfers.\[59\] Where trustees are given power to receive rents and profits pending their sale of reality, the power of alternation is not suspended by the fact that they may not act,\[60\] or that the interest of the beneficiaries is inalienable pending the trust. Under statutes providing that expectant estates shall be alienable in the same manner as estates in possession, a testamentary disposition of a reversion held under a deed * is not invalid, though it suspends the absolute ownership of the property during two lives beyond that of the original life beneficiary.\[51\] The repeal of a statute of perpetuities after a testator's death does not affect the construction of his will with respect to the estates it purports to create.\[62\] Parties in interest cannot by agreement secure property to the heirs of living persons in evasion of the statute.\[88\]

**SS 2.** \_Computation of the period and remoteness of particular limitations.\_See S. C. L. 1359--\*\*

Whether a will violates the rule against perpetuities must be determined as of the date of the testator's death.\[54\] A will creating a power of appointment and

**SS 3.** Evidence insufficient to show: applicant

does not violate statute against perpetuities

acocomplice. Holmgren v. U. S. \[C. C. A.\]156

since lessor and lessee may join in convey-

**SS 439.**

**SS 67.**

Devise to executor to hold for 25 years

from date of probate held void since pro-

bate which was condition precedent to vest-

either a life income or the corpus of the

ing might be postponed for more than 21

estate to her surviving husband does not

Yoars after death of testatrix. Johnson v.

Preston, 226 Ill. 447, 80 NE 1001.

**SS 68.**

Dwyer v. Cahill, 228 Ill. 617, 81 NE

**60.**

Keyser v. Mead, 83 Misc. 114, 103 NYS

**Held vaid:**

Request of stock to be delivered

after seven years with provision that share

of one should go to others should he die

within the seven years held valid, stock

v. Cary \[N. Y.\]83 NE 598.

vesting at death of testatrix. Orange County

Trust Co. v. Morrison, 56 Misc. 88, 106 NYS

**SS 940.**

Discretionary power in trustees to hold

for 25 years stock which at testator's death

vested in regulatory leagles. Lembeck v.

of life trusts for benefit of widow and chil-

Lembeck \[N. J. Eq.1 68 A 387. Residue to

two grandadughters, stated amounts to be

pald to each on their arriving at different

ages until age of 45, and provision for pay-

ments to survivor or to others in case both

die. Hull v. Osborn \[Michol.\]14 Det. Leg. N.

597, 113 NW7 784. Provision that if any of

descendants of a testator's child are minors

at death of child, trustees should pay only

income until they reach majority, did not

prevent vesting of interest in them. Bas-

com v. Weed, 53 Misc. 496, 105 NYS 459.

59. Lease of land for any number of years

**SS 1.** \_The rule against perpetuities and accumulations; its nature and applications.\_See S. C. L. 1348--\*\*

Future estates must be so limited that in every possible contingency they must vest within the statutory period.\[57\] It is the postponement of the

vesting that is prohibited and not merely the postponement of the possession,\[58\] and

a limitation is not void if there are persons in being who can make absolute trans-

fera.\[59\] Where trustees are given power to receive rents and profits pending their

sale of reality, the power of alternation is not suspended by the fact that they may

not act,\[60\] or that the interest of the beneficiaries is inalienable pending the trust.

Under statutes providing that expectant estates shall be alienable in the same manner as estates in possession, a testamentary disposition of a reversion held under a deed

- is not invalid, though it suspends the absolute ownership of the property during two

lives beyond that of the original life beneficiary.\[51\] The repeal of a statute of perpetuities after a testator's death does not affect the construction of his will with respect

to the estates it purports to create.\[62\] Parties in interest cannot by agreement secure

property to the heirs of living persons in a will attempting to exercise it will be read together in estimating the extent of a suspension,65 but a trust deed and a will, not shown to be executed in furtherance of any scheme, has been considered separately.66 A minority is deemed a part of a life and not a fixed period.67 A limitation for a period not measured by lives,68 or a suspension during the minority of a child born after testator's death,69 is invalid. Particular states are considered below.70

65. Where will limited trust estate on life of "longest liver" of two daughters, testa- of each of two children until younger should, premature appointment by one of the daughter's mother life held invalid. Farmers' Lona & Trust Co. v. Kib, 120 App. Div. 347, 104 NYS 1092.

01. Validity of testamentary disposition of trust property as part of residue held not affected by deed of trust. New York Life Ins. & Trust Co. v. Cary \[N. Y.\] 83 NE 598, rvs. 120 App. Div. 256, 105 NYS 125; Farmers' Lona & Trust Co. v. Bostwick, 120 App. Div. 271, 105 NYS 130, following New York Life Ins. & Trust Co. v. Cary, 120 App. Div. 256, 105 NYS 125.

01. One third of residue to each of three families of grandchildren, said shares "not to be paid to said children or any of them until the youngest of said three families of children becomes 21 years of age," held valid. \[Tohner v. Crounse, 57 Misc. 252, 107 NYS 990. Trust held to continue during minority of youngest child living at testa-tor's death and not of all children of the three families then living. Id.

01. Held void: Trust to sell within 6 years when $50,000 could be realized. Stewart v. Woolley, 121 App. Div. 581, 106 NYS 99. Disrection to accumulate rents, etc., meanwhile held also invalid. Id. Where property was devised to children but will provided that executor was to hold it for five years, provision that if any devise should die within the five years his share should go to his child or children. In re Phillips Estate, 56 Mike. 96, 107 NYS 388.

01. Trust for grandchildren held not to be executed in furtherance of any scheme, has been considered separately.66 A minority is deemed a part of a life and not a fixed period.67 A limitation for a period not measured by lives,68 or a suspension during the minority of a child born after testator's death,69 is invalid. Particular states are considered below.70

01. Where will limited trust estate on life of "longest liver" of two daughters, testa- of each of two children until younger should, premature appointment by one of the daughter's mother life held invalid. Farmers' Lona & Trust Co. v. Kib, 120 App. Div. 347, 104 NYS 1092.

01. Validity of testamentary disposition of trust property as part of residue held not affected by deed of trust. New York Life Ins. & Trust Co. v. Cary \[N. Y.\] 83 NE 598, rvs. 120 App. Div. 256, 105 NYS 125; Farmers' Lona & Trust Co. v. Bostwick, 120 App. Div. 271, 105 NYS 130, following New York Life Ins. & Trust Co. v. Cary, 120 App. Div. 285, 105 NYS 125.

01. One third of residue to each of three families of grandchildren, said shares "not to be paid to said children or any of them until the youngest of said three families of children becomes 21 years of age," held valid. \[Tohner v. Crounse, 57 Misc. 252, 107 NYS 990. Trust held to continue during minority of youngest child living at testa-tor's death and not of all children of the three families then living. Id.

01. Held void: Trust to sell within 6 years when $50,000 could be realized. Stewart v. Woolley, 121 App. Div. 581, 106 NYS 99. Disrection to accumulate rents, etc., meanwhile held also invalid. Id. Where property was devised to children but will provided that executor was to hold it for five years, provision that if any devise should die within the five years his share should go to his child or children. In re Phillips Estate, 56 Mike. 96, 107 NYS 388.

01. Trust for grandchildren held not to be executed in furtherance of any scheme, has been considered separately.66 A minority is deemed a part of a life and not a fixed period.67 A limitation for a period not measured by lives,68 or a suspension during the minority of a child born after testator's death,69 is invalid. Particular states are considered below.70

01. Where will limited trust estate on life of "longest liver" of two daughters, testa- of each of two children until younger should, premature appointment by one of the daughter's mother life held not unlawfully to suspend absorbers for another life held invalid. Farmers' Lona & Trust Co. v. Kib, 120 App. Div. 347, 104 NYS 1092.

01. Validity of testamentary disposition of trust property as part of residue held not affected by deed of trust. New York Life Ins. & Trust Co. v. Cary \[N. Y.\] 83 NE 598, rvs. 120 App. Div. 256, 105 NYS 125; Farmers' Lona & Trust 10 Cur. Law. perpetuities and accumulations SS 2. 1169

_Charitable gifts.See_ * C. L. 1352--Property may be given by will to a corporation to be formed after testator's death if the corporation is to be formed and the property vested in it within the lives of two persons in being when the will is executed.${}^{\\ref{thm}}$

_Accumulations of income.See_ * C. L. 1352--All accumulations of income are prohibited in New York except where they are for the benefit of minors and terminate with their minority,${}^{\\ref{thm}}$ and this prohibition applies to charitable gifts.${}^{\\ref{thm}}$ When no

617, 66 A 166. Remainder to lawful helrs of a daughter. Harmon v. Harmon (Conn.) 66

be held after majority. Cochrane v. Alex-A. 711. Income to wife for life, then semi-annually to each of five sons or legal reperto-sentatives of any who may have deceased, jorify. Id. A direction that no interest shall be collected on a mortrage during the to be equally divided among their issue per stripes, held invalid as to gift over of both privateal and income. Leopard v. Clapp \[Conn.\] 66 A 780. Devise to son, absolutely, on death of both wife and daughter, "or" in case he should die before that time to his legal helrs at law, held to give son a vested remnant in fee, limitation over in case of his not surviving mother and sister being vold. Cody v. Staples \[Conn.\] 67 A 1. Pro-vision in trust ded that trustee might pay income to children or descendants of a life tenant during remainder of their respective lives. Angel v. Ansell \[R. L.\] 68 A 583. Life beneficiary's appointment for her children for life, remainder to their children. Brown v. Columbia Finance & Trust Co., 30 Ky., L. R. 110, 97 SW 421. To trustees during minority of four children, to be divided on all arriving of age. Whitefeld v. Whitefeld v. Whitefeld, led, RS NYS 110. Trust to endure for mid-noyity of four children held void and not saved by a power of sale which did not terminate trust. Whitefeld v. Crissman, 55

Mise. 488, 106 NYS 620. Income to be divided among sisters, a cousin, a nice, and father, and three years after death of these, estate to be distributed among nephews and nicee. Farmer\* Lean & Trust Co., V. Cummings, 168

NYS 882. Income to children for twenty-five years, and to their children if they should have any. In re Fay's Estate \[Cal. App.\] 89 P 1065. Property to be held by trustees during lives of wife and children and for further period of thirty years if there should be lawful issue of any child in esse, etc. Campbell-Kawunnankao v. Campbell \[Cal.\] 92 P 134. To widow for life, remainder to son in trust for life of daughter, then to her bodily heirs for life, and in fee should they have issue, reversion to devivest on failure of issue. Sheppard v. Fisher, 206 Mo. 208, 103 SW 989. Trust provisions in favor of children and grandchildren. Bradford v. Bloessem, 207 Mo. 177, 105 SW 289.

71. St. John v. Andrews Institute for Girls \[N. Y.\] 83 NE 981.

01. Prohibition of division of estate for five years without direction for payment of annuities or expenses held invalid. In re Phillips' Estate, 56 Misc. 96, 107 NYS 888. Direction that a portion of accumulations be held in trust during life of a child, remainder to his children, held void. Stewart v. Wool-ley, 121 App. Div. 531, 106 NYS 99. Pro-vision for payment of income, leas certain sums, until beneficiary was 25, deducted sums to be added to principal and this then paid over less enough to produce a certain income for his life, held invalid in so far as 10 Curr. L.-- 74.

tion may be said to be for his benefit (Manjee v. Manlee, 43 N. Y. 379, 380). Ordinarily the deed or will vests the estate, and the interposition of the minority is not a condition precedent. Id. The same rules appear now to apply to the corpus of personally and with equal reason, 7 Columbia L. R. 73; Everitt v. Everitt, 29 N. Y. 39; Paterson v. Ellis, 11 Wend. \[N. Y.\] 159. But see Laws 1897, c. 417, $ 6, where the words "entitled to the expect- and estate" are omitted. If, then, the expect-ant estate must vest in the minor in order that the accumulations may be said to be for his benefit, it would seem a fortiori that the accumulations should vest as they ac-crue. In Manice v. Manice, 43 N. Y. 379, 380, it was laid down that accumulations must be for the sole benefit of the minor; that, therefore, the accumulations must vest; but that they could not vest if the expectant estate in the realty must be used. In this argument the court assumed as a premise that the accumulations must vest, and such seems to be the law. Draper v. Palmer, 27 N. Y. 3t, Rep. 610; Smith v. Parsons, 146 N. Y. 121; Smith v. Campbell, 75 Hun \[N. Y.\] 155, 161; Willets v. Titus, 14 Hun \[N. Y.\] 554; Gilman v. Healy, 1 Dem. \[N. Y.\] 404, 408; and see Matter of Lehman, 2 App. Diz; \[N. Y.\] 531; and Laws 1896, c. 547, $ 52; Laws 1897, c. 417, $ 6, which assume vesting. Revisers' Notes, 3 Rev. St. \[I2nd Ed.\] 578.

According to the diotum then, in Smith v. Parsons, 146 N. Y. 116, a direction over to B would be invalid, but the lower courts, In several instances, have intimated that vested accumulations might be divested upon the death of A during his minority. Willets v. Titus, 14 Hun \[N. Y.\] 564; Gilman v. Healy, 1 Dem. \[N. Y.\] 408; and see Bolton v. Jacks, 6 Robot \[N. Y.\] 166, 230. In the case last cited the court reasoned by the act of God it was impossible to comply with the provisions of the statute by giving the accumulations to the minor at majority and that therefore, if there were no provision in the will, the fund would have to revert back and the testator die intestine as to it; hence that there was no reason why the testator should not anticipate this result, treat the fund as part of his original estate, and devise it over to whom he chose. But this, of course, assumes that the accumulations did not vest as they accrued. It has also been stated that a devise over of the corpus, if the minor dies before majority, carries with it the accumulations (Gilman v. Healy, 1 Dem. \[N. Y.\] 408), but this is repudiated by Draper v. Palmer, 27 N. Y. St. Rep. 510. In Smith v. Campbell, 75 Hun \[N. Y.\] 158, 159; Smith v. Parsons, 146 N. Y. 120, it was stated that a gift over to B, an adult, would be void under the statute, but that a gift over to B, a minor, might not be. There should be no distinction between these two cases, for since A takes a vested interest in the accumulations, B, in either case, takes only a contingent interest, and the accumulation is not for his sole benefit. A distinction, however, must be made between the question whether a direction under the statute is good or bad, and the question whether the statute operates upon a given direction at all. The statute operates upon "all directions for the accumulation * * * for the valid direction is given for the accumulation of rents and profits pending a legal suspension of the power of alienation or ownership, such rents and profits belong to the persons presumptively entitled to the next eventual estate.\[14\] A direction for the payment of income is not rendered invalid because the income proves greater than the total of the sums directed to be paid,\[7\] but in such case the surplus will be paid to the persons entitled thereto under the statute.\[18\] On accumulation in the nature of a discretionary and temporary withholding of income as incidental to the general purpose of a trust is not within an inhibition against the permanent accumulation of income except during the minority of the beneficiary.\[71\]

SS 8. \_Operation and effect, complete and partial invalidity.\_See a C. L. 1887_Invalid provisions not inseparably connected with a general scheme may be rejected without affecting the valid ones.\[18\] Under the California code, a direction for accumulation for a longer term than during the minority of beneficiaries is void only as to the time beyond the minority.\[7\]

Personal Injuries; Personal Property; Persons; Petitions, see latest topical index.

Pettory actions.\[8\]

This topic treats of matters peculiar to petitory actions under the Louisiana code.

In a petitory action the only parties necessary are plaintiff claiming owner. ship and defendant in possession, though latter may bring in vendor or lessor.\[81\] A petition showing proceedings whereby petitioner's interest was divested, and alleging that such proceedings were nullities, presents a petitory action.\[82\]

Pews; Photographs; Physical Examination; Physicians and Subgeons; Pilots, see latest topical index.

Pipe lines and subways.\[8\]

An underground tunnel railroad largely beneath water and upon private prop-

unpatively entitled to the next eventual es-

In hands of trustee with discretion as to distate. 38 N. Y. Law Jour. No. 122; 7 Columbia

posal of accumulations and termination of L. R. 405-From 8 Columbia L. R. 298.

trust did not infringe Act April 18, 1853 (P

73. Laws 1883, p. 1748, e. 701, as amended

L. 603), In re Spring's Bstate, 216 Pa. 529, by Laws 1901, p. 751, c. 291, providing that

66 A 110.

gifts to charity "In other respects" valid shall not be held invalid by reason of in-

distribution not upset by suspension of definiteness of beneficiaries, does not as to

power of sale until a certain price could be such gifts abrogate the prohibitions against

obtained and provision for accumulations

accumulations. St. John v. Andrews Institute. Stewart v. Woolley, 121 App.

tute for Girls \[N. Y.\] 83 NB 881.

T4. Where property was given by will to a

exploration to be formed as soon after test-

should go to his children could be elimi-

tor's death as practicable, and to another

nuly in a contingency which did not happen,

107 NYS 388. Testator held not to intend to

corporation to be formed was, prior to

dispose of independent estates regardless of

formation, presumptively entitled to next

general plan. Sheppard v. Fisher, 206 Mo.

eventual estate, but not being in sense it

could not take income as it accarted, and

hence income accruing between date of tes-

tor's death and formation of corporation

passed as intestine property to next of kin.

St. John v. Andrew Institute for Girls

\[N. Y.\] 83 NB 891.

75. In re Harteau's Will, 58 Misc, 201, 104

01. Where under will no person was entitled to "next eventual estate," surplus went

as intestine property. In re Harteau's Will,

68 Misc, 201, 104 NYS 586.

77. Devise placing management of estate erty is not a street railway under the statute.\[85\] The right to lay conduits in the public streets is generally dependent upon the character of the corporation, the statute of the state,\[86\] and the consent of the municipality " for which reasonable conditions may be imposed." The right to remove conduits may be barred by laches."

A borough may levy annual and mileage license taxes on the pipes of a natural gas company maintained in its streets " on the theory that it enables the municipality to discharge without cost to itself the duty of exercising proper surveillance over the company.\[91\] It is no defense to a recovery of such an annual stipulated sum that the payments have been diverted by the city to an illegal use,\[92\] or that the city has granted similar privileges to competing corporations.\[93\]

The power of locating the foundations and walls of a subway may be delegated by the city council to city officials " under suitable rules and regulations,\[95\] and the adoption of any plan for making subways, and securing the rights of the public, will not be interfered with unless the council has acted in bad faith." A franchise conferring upon a private lessee the right to use a public subway for railroad purposes will be strictly construed against the lessee and held to confer only powers expressly * 10 Cur. Law. PLEADING SS 1. 1173

- granted. 97 So, also, a licensee of the right to construct a conduit takes it subject to the right of the municipality to construct other local improvements.\*\* Hence since the right to use the streets for subways includes the right to use the space under the sidewalks. 98 A private wall extending under the sidewalk upon property acquired by a subway railroad may be removed where such space is a present or future necessity for the railroad. 1

The rapid transit act confers upon the board of rapid transit commissioners all powers necessary to effectuate the speedy, proper, and adequate construction of subway, 2 and the city is a proper formal party to an application by the board to secure approval of a report of the commissioners authorizing a change of route of the subway. 3

An owner of the fee of portions of certain public streets has the right to lay pipes in the bed of the street so long as they do not interfere with its use by the public and may make the necessary excavations in the street to enable him to effect his purpose. 4

PLEADING.

- 1. Principles Common to All Pleadings,
- 1173. Interpretation and Construction in General, 1182. Profert and Over, 1185. Exhibits, 1186. Bills of Particulars, 1186. Bills of
- 2. The Declaratio, Count, Complaint, or Petitlon, 1389. General Rules, 1189. Consolidation of Suits, 1192. Joinder of Causes of Action, 1192. Election,
- 1197. Splitting Causes of Action, 1197. Prayer, 1197.
- 3. The Plea or Answer, 1198. General Principles, 1198. Denials and Traverses, 1201. Concession and Avoidance, 1202.
- 4. Repplesition or Reply and Subsequent Pleadings, 1202, Additional Pleadings, 1204.
- 5. Demarrer, 1204.
- 6. The scope of this topic is noted below. 5
- 1. Principles common to all pleadings. General rules. See
- C. L. 1355--In code
- 97 Right to use public subway for rail-
- streets without action by municipality when constructing such subway itself but not for transmission, electric currents for sale where private corporation is constructing, to third parties. City of New York v. Interborough Rapid Transit Subway Const. Co. v. Coler, letborough Rapid Transit Co., 53 Misc. 138, 105 NYS 824.
- 98 A. In the Rapid Transit Com'rs, 119 App. Div. 196, 104 NYS 61. conduit was prior In time and to public service corporation gives no rights superior to those of private owner building vault under municipal license, though construction thereof, required licensee to take additional precautions for protection and maintenance of conduit. New York Steam Co. v. Foundation Co., 108 NYS 84.
- 99 A. Allegheny County Light Co. v. Booth, 216 Pa. 564, 66 A. 72. 1. Where brick wall blocking passage-
- way from building to subway extended into subway station. Potter v. Interborough Rapid Transit Co., 43 Misc. 423, 105 NYS 1071.
- 9. Under Rapid Transit Act (Laws 1891, p. 3, c. 4, amended by Laws 1834, p. 1880, c. 152, and Laws 1900, p. 1349, c. 616), board may issue permits to builders to use and open
     states the only proper pleadings are those designated by the code." In code states it is not necessary that any particular name be given a pleading, but it is sufficient if it states facts constituting a cause of action or defense." So, too, the allegations of the pleading, and not the name given to it by the pleader, determine its character."

Where the court is of limited or special jurisdiction, facts bringing the cause within its jurisdiction must be alleged." Except in local actions, facts justifying the venue need not be alleged." Time \[11\] and place \[12\] should be alleged, if material. One seeking to avail himself of a statute must allege facts sufficient to bring himself within its provisions." In pleading an ordinance, so much of its language must be stated as will enable the court to judge whether its provisions offer a ground for the action or defense in support of which the authority of the ordinance is invoked." Foreign statutes must be pleaded if relied on." In declaring on a written instrument, the pleader may set it out in full or according to its legal effect, but must do one or the other." A general custom need not be pleaded, but a custom obtaining only in a particular di_trict or neighborhood must be." One is not ordinarily bound to negative defenses," except such as are apparent on the face of his pleading." The \[18\]

- \[noitemsep\]
- 10 Cur. Law. PLEADING SS 1.1.

which he claims create duty violated. Chi-cago, etc., I. Co. v. Barker \[Ind.\] 83 NE 869. Direct statement that it was duty of deformat. Waterbury Nat. Bk. v. Reed, fendant to do or not to de certain act. Chi-cago & E. R. Co. v. Latin \[Ind.\] 83 NE 632. That by rules of defendant railroad company certain things were required to be done and certain duties were imposed, without pleading said rules in substance or in full. Wababsh K. Co. v. Hassett \[Ind.\] 83 NE 705. That it was duty of engineer, flagman, and fireman to do certain things. Id. That it was duty of employee to do certain things. Indiana Union Trac. Co. v. Pring \[Ind. App.\] 83 NE 738. That jeweiry delivered was of different kind from that which defendants had agreed to purchase, the same being of very little value, to wit, $10. McAllister-Coman Co. v. Matthews \[Ala.\] 48 S 747. Allegation in bill to restrain foreclosure of mortgase, etc., that no attorney's fee was due. Tidwell v. Wittmeier \[Ala.\] 43 S 782. That That wrongness complained of in each count relate to same subject-matter. Gulf Yellow Pine Co. v. Urquhart \[Ala.\] 44 S 55. That defendant became and is owner of certain corporate stock. People's Home Sav. Bk. v. Stadtmuller, 160 Cal. 106, SS P 280. That continued trepsas "will' pine into a right and casement on plaintiff's property," and will "constitute and create an obstruction to the free and peaceable use" thereof. Bishop v. Owens \[Cal. App.\] 89 P 844. That plain-tiff will be driven to a multiplicity of suits involving trivial amounts, etc., and that his property will suffer irreparable injury. Id. That fraud was not discovered until within two months before commencement of action, for purpose of bringing case within exception of statute of limitations. People v. San Jacqain Valley Agricultural Assm \[Cal.\] 91 P 740. Allegation by way of conclusion in answer that note was given as payment held not binding on court, it being plainly at variance with language of note itself, as well as with extrinsic circumstances surrounding its execution. Menzel v. Primm \[Cal. App.\] 91 P 754. Denial that plaintiff made any false representation, etc. Mastin v. Bartho-omev \[Col.\] 92 P 682. Allegation on information and belief in answer in action against executrix to recover legacy held to be construed as allegation of defendants' opinion as to legal effect of distribution in trust for purposes named in will. St. Mary's Hospital v. Perry \[Cal.\] 92 P 864. That will was contrary to laws of California as made and provided by certain amended section of civil code. In re Lennon's Ekate \[Cal.\] 92 P 870. That defendant "wilfully, premediately, and intentionally," refused and neglected to perform bls duty in premises. Wyatt v. Arnot \[Cal. App.\] 94 P 86. In action of repelvin, that plaintiff is entitled to immediate possession of property. Street v. Sederburg \[Col.\] 92 P 29. That by virtue of mortgase plaintiff was owner and entitled to immediate possession of mortgaged property. Id. That refusal of carrier to transport articles offered for shipment on tender of rates prescribed by law is "arbitrary, illegal, and greatly to the injury and damage of petiltinger, its property, and business. Southern R. Co. v. Atlantaia Stove Works, 128 Ga. 207, 57 SE 429. That defendant broke contract. Hearn v. Owwer, I Ga. App. 265, 57 SE 516. Allegation of indebtedness. Hicks may be alleged on information and belief,24 but not matters presumptively within the pleader's own knowledge.27 As a general rule it is not permissible to plead in the alternative,28 though it is sometimes allowed.29 Allegations should be definite and certain,20 and direct rather than argumenta-

ship commissioners on bonds would have

where knows that defendant has been guilty had no legal efficacy. Smythe v. Inhabitants

in one or all of several ways, but not which of New Providence Tp., 158 F 213,

and where defendant would be liable in

**Averments held neat to be conclusions**:

either case, and plaintiff should not in such

That plaintiff was without fault. Rome R. &

L. Co. v. Keel Gea. App. J60 BE 468. Charge

that laffe Tn. Co. v. McCurdy, 118 App. Div.

that act was done negligently is not conclu-

815, 103 NYS 829. In action by insurance

son of law, but conclusion of fact, and is

sumfident without statement of facts

damages sustained by defendant's unauthor-

stituting the negligence. Lowe V. Miller,

31 Ky. L. R. 829, 104 SW 257. That conduct-

alternative allegation in complaint that de-

or "invited and encouraged" plaintiff to

foundant "made or authorized to be made, or

jump from moving train. Cooper v. Atlantic

Knowingly or negligently permitted to be

Coast Line R. Co. \[S. C.\] 89 SE 704. In action by trustee in bankrupty to set aside

made," such payment, held permissible. Id.

mortage as preference, allegation that

extra. Groton Bridge & Mfg. Co. v. Ameri-

bankrupty's estate was insolvent, and that

there was not property enough to pay

panel of must be alleged with definiteness

eral creditors. Bowler v. First Nat. BK. \[S. D.\] 113 NWV 618. That on certain date "said

v. Seaman \[Ala.\] 44 SS 46. Petition should

contract was again renewed, ratified, and

softer forth facts upon which cause of action

confirmed by defendant," in view of entire

allegation. San Antonio Light & Pub. Co.

v. Moore \[Tex. Civ. App.\] 19 Tex. Ct. Rep.

412, 101 SWV 867. That defendant was duly

dunified treasure of village between certain

dates, that his bond was duly approved, and

that his successor was duly elected and

qualified. Village of Prentice v. Nelson

\[Ws.\] 114 NWV 830. Plaintiff had insured de-

fedant against liability on certain judgment

to extent of $5,000. Defendant desiring to

appeal, bonding company furnished appeal

bond at plaintiff's request, and defendant

agreed that if judgment was affirmed he

would pay plaintiff any amount in excess

of $5,000 which plaintiff was obliged to pay

thereon. Plaintiff paid entire judgment after

affirmance, and sued to recover excess. Held

that averment that "plaintiff was obliged to

and did pay upon said judgment" was suff

client allegation of affirmance of judgment.

Travelers' Ins. Co. v. Hallanter, 131 Wis. 371,

111 NWV 527.

26. For denials cn information and belief,24

see SS 3, post. Matters peculiarly within

knowledge of defendants and as to which

plaintiffs could learn only from statements

made to them by others. Campbell-Kawan-

manakao V. Campbell \[Cal.\] 92 P 184.

27. Affirmative averments in answer of

fraudulent representations by plaintiff and

his agent as to goods sold held not put in

issue by allegation that plaintiff had not and

could not obtain sufficient knowledge upon

which to base a belief, he being presumed to

know what he himself and his agent said

and did. Mastin v. Bartholomew \[Colo.\] 92 P 682.

28. Complaint In action for personal injury

ries, which showed on its face that plaintiff

was guilty of contributory negligence so that

there could be no recovery unless defendants'

negligence was willful or wanton, held

murrable where it alleged that defendant

either knew, or, in exercise of ordinary care,

might have known, that plaintiff was in ex

posed position. Anderson v. Minneapolis,

etc., R. Co. \[Minn.\] 114 NWV 1123.

29. Plaintiff may plead in alternative

where knows that defendant has been guilty

in one or all of several ways, but not which

and where defendant would be liable in

avermente each, and plaintiff should not in such

That plaintiff was without fault. Rome R. &

cas, be required to elect in advance. Mu-

L. Co. v. Keel Gea. App. J60 BE 468. Charge

tual Life Tn. Co. v. McCurdy, 118 App. Div.

815, 103 NYS 829. In action by insurance

company against former president to recover

damages sustained by defendant's unauthor-

stituting the negligence. Lowe V. Miller,

31 Ky. L. R. 829, 104 SW 257. That conduct-

alternative allegation in complaint that

or "invited and encouraged" plaintiff

## 1178 Pleading $ 1.1

10 Cur. Law.

damages for alienating affections of plain- toff's wife, held not error to deny motion to make complaint more definite and certain by showing sense in which word "seduce" was used, where plaintiff's counsel stated sense in which he intended to employ term, and defendants counsel expressed himself as satisfied, and case was tried as though word was used in said sense. Ireland v. Ward \[Or.\] 83 P 932. In action for damages for personal injuries alleged to have been caused by defendant's negligence, held not error to overrule motion for compulsory amendment of declaration seeking to require plaintiff to separate acts of negligence complained of, and to state same specifically in separate and distinct counts, since plaintiff was confined to allegations of his declaration, particularly where order stated that plaintiff was so limited and that specific acts of negligence were properly set forth in one count. Atlantic Coast Line R. Co. v. Crosby, $3 Fla. 400, 43 S 318. Granting or demial of motion for compulsory amendment, based on Rev. St. 1892, $ 1043, rests in sound judicial dis-cretion of trial court, since said court must determine whether pleading is "no framed as to prejudice, or embarrass, or delay the fair trial of the action," and ruling will not be disturbed on appeal unless abuse is plainly made to appear. Id.

**Allegations held sufficiently definite**: Complaint in action for breach of contract. Hurwitz v. Gross \[Cal. App.\] 91 P 109. Complaint in action by widow to set aside deed to her husband alleged to have been procured through intimidation or undue influence, though particular acts constituting intimidation and influence were not alleged. Yordi \[Cal. App.\] 91 P 248. In action to abate nuisance and for damages, allegations of complaint as to time, special damages, etc. Tobbins v. Batli-Donahue v. Stockton Gas & Elec. Co. \[Cal. App.\] 92 P 196. Amendment of complaint in action for negligence held to have sufficiently met objections raised by special demurrer. Atlantic Coast Line R. Co. v. O'Neill, 127 Ga. 685, 56 SE 986. Petition in action for wrong-ful death. Southern States Portland Cement Co. v. Helms, 2 Ga. App.\] 86, 58 SE 624. Allegations as to plaintiff's injuries. Douglas, etc., R. Co. v. Swindle, 2 Ga. App.\] 560, 59 SE 600. Petition in action by tenant against landlord to recover for labor and material furnished and for improvments. Busby v. Marshall \[Ga. App.\] 60 SE 376. Paragraph alleging that plaintiff's earning capacity would increase. Rome R. & Light Co. v. Keeel \[Ga. App.\] 60 SE 468. Allegations as to work for which compensation was claimed in complaint in action to foreclose llen for construction of canal. Nelson Bennett Co. v. Twin Falls Land & Water Co. \[Idahn\] 93 P 789. Allegations of complaint as to manner of destruction and damage, in action under statute for damages for destroying public drain. Kelsay v. Chal-cago, etc., R. Co. \[Ind. App.\] 81 NE 522. Compilation in action to foreclose special assessment for street improvements. Daily v. Gubbins \[Ind.\] 82 NE 659. Complaint in action to recover for services. Huntington Fuel Co. v. McIlwaine \[Ind. App.\] 82 NE 1001. Overruling of motion to make complaint in action for personal injuries more definite and certain by stating point in defendants's mine where explosion occurred, and 10 Cur. Law. PLEADING SS 1. 11:9

tive.\[11\] Less particularity is required in alleging matters of inducement.\[82\] Statutes in many states allow matters to be alleged generally which it would otherwise be necessary to particularize.\[33\] At law only the ultimate facts, as distinguished from matters of evidence, should be stated.\[34\] Negatives pregnant \[88\] and irrelevant,\[89\] in-

and duties, held insufficient to allege gener-

melt of facts supporting them held untenably that plaintiff had performed all conditions imposed on him, but that petition

able, such matters being recited merely by way of inducement. Id. Is not necessary, should have set out with particularity the

in stating executed considerations, to state

manner of performance. United States Fl-

delity & Guarantany Co. v. Trustees of Bap-

other matters, since averment of past con-

that church, 31 Ky. L. R. 520, 102 SW 325,

ederation is considered to be matter of in-

Count charging conversion directed to be

document and as such not in itself traverse.

made more definite and certain with respect

able. Allations held sufficient. Id. Suit

to time, and whether it was claimed that

held, as to principal item, one for money had

property was converted by single act or

and received, averments regarding contract

transaction. Mutual Life Ins. Co. v. Ray-

none, 118 App. Div. 828, 103 NYS 839. In

etion on note alleged to have been indexed

would have been necessary had action been

and assigned to plaintiff, held that plaintiff

would be required to allege whether it was

Civ. App.107 SW 361.

transferred to him before or after maturity.

33. Ads and contracts may be stated ac-

McGhee v. Cooke, 105 NYS 60. Where affir-

mative defense might apply to either of two

814. Grayswold V. Branford \[Conn.\] 68 A

agreements pleaded by plaintiff, held that

887. Where facts about tenancy from year

plaintiff was entitled to have same made

to year resulting from conduct of parties

more definite and certain. Ledivivra V. Uto-

rule Land Co., 107 NYS 135. Where date of

ment could be recovered under allegation of

instrument or facte upon which cause of ac-

send lease for year, Id. General averment

tion or defense is based in yet given, plead-

of defendants' corporate capacity is suffi-

ing is indefinite in that respect, and a non-

client under Code, 3 867. Krawne v. Modern

tion to make it definite will lie. Date of note

Woodman, 133 Iowa, 139, 110 NW 462. Alle-

sued on. Church v. Stevens, 56 Mine. 572,

gations as to appointment of trustee in bank-

107 NYS 510. In action involving right to

rupty held sufficient in view of Code Civ.

passession of property belonging to religious

Proc. 5 $2 that, in pleading a judgment, it

corporation, held proper to order complaint

is not necessary to state facts conferring

to be amended so as to state with definite-

Jurisdiction, but judgment may be stated to

ness and certainty unlawful acts relief on

have been duly given. Bouton v. Wheeler,

as basis of claim for general damages. Ep-

118 App. Div. 426, 104 NYS 839.

sti v. Berman \[S.C.\] 68 SEB 1013. Order held

not objectionable as requiring plaintiff to

more than a statement of facts which party

allege evidentiary matters or special damages

sects to prove by evidence at trial. Vrab-

not claimed. Id. Facts relied on the impaction

Ingle Inc. No. v. Scott, 119 App. Div.

validity of local option election should be

847, 104 NYS 898. Material facts must be

set forth specifically and definitely. Gen-

eral allegations held properly stricken on

allegation of material fact and alleging only

exceptions. Oxley v. Allen \[Tex. Civ. App.\].

evidence of said fact is defective. Park v.

107 SW 45. Pleas of fraud. Payne v.

Southern R. Co. \[S. C.\] 58 E91. In action

Knickerbocker Trust Co. \[C. C. A.\] 153 F

page, allegation that plaintiff held check of

176.

**31.** Certain allegations of answer to al-

ternative writ of mandamus brought to com-

gation of evidence going to show facad of de-

pel railroad company to repair its track

priket as argumentative. State v. Atlantic

Coast Line R. Co., 53 Fla. 711, 44 S 230. De

to determine rights of parties to use of

livery of dead of release held argumenta-

waters of certain river, held that it was

tively alleged, Dunley v. Fenton \[Vt.\] 68

sufficient for plaintiff to plead ultimate facts

A 651.

**32.** Inducement is statement of matter

which is introductory to the principal subject

improper, to plead historical derragment

of the declaration or plea, and which is nec-

essary to explain or elucidate it. Armello v.

Whitmann \[Mo. App.\] 106 SW 1113. Allega-

362 consistent," redundant,"38 equivocal and ambiguous,"39 and scandalous allegations,"

effect or aspect of those facts, and not mere juries held not irrelevant. Code 1896, $ 3286. evidence or productive facts by which their \[Southern R. Co. v. Hobbs \[Ala.\] 43 B 844. existence is established. Baird V. Western Plea in action by broker on contract to di-Union Tel. Co. \[S. C.\] 60 SE 695. Letter as pleaded held merely evidence. Quinn V. Vall. Quebec \[V.\] 63 A 515.

35. Negative pregnant Is such a form of negative expression as many imply or carry within it an affirmative, Lemke v. Lemke \[Neb.\] 111 NWV 138. Denals held not nega-lives pregnant. 1d. Where compliant ala- leged "that the defendant is a corporation owning and operating a line of railway running through S. county," held that allegation in answer denying that defendant "is a corporation owning and operating a line of railway running through S. county" was am-lignuous and bad, both at common law and under the code. Chicago, etc., R. Co. v. State \[Ark.\] 106 SWV 199. Where cross complaint \[V.\] 111.

alleged that defendant was and for long time had been "the owner and entitled to the ex-clause use of all the waters" of certain lake.

3.5. The exclusive use of all the waters" of the lake was not a good traverse, but was ad-mission that defendant was entitled to sub-stantly all the water. Duckworth V. Watsonville Water & Light Co., 150 Cal., 520, 89 F 328. Denial that loss of plaintiff by reason of destruction of properly described in \[G.\] 104 SWV 86. In action by shipper against complaint, as therein alleged, was sum specified in complaint, held to raise no issue as to value of said property. McVay v. Central California Inv., Co. \[Cal. App.\] 91 F 745. De-hal that plaintiff "made any false, untrue, and fraudulent statements and representations" to defendant held not to put allegations of answer in issue, it being in conjunc-type instead of disjunctive. Mastin v. Bar-thorlemov V.

should be avoided, and sham \[41\] or frivolous "42 pleadings should not be interposed. Surplusage,"43 and allegations contradicting anything of which the court must take judicial notice,"44 will be disregarded.

Facts judicially noticed,"45 or which the law presumes,"46 and matters of evivi

208. Allegations of complaint in action for damages for overflow of land resulting from construction of railroad embankment held redundant. Foreman v. Midland Valley R. Frage in action exeltotic against carrier for Co. \[Ind. T.\] 104 SW 806. In repelvin by injuries to passenger. Rushin v. Central of mortgagee of personality against officer to recover mortgaged property seized by latter operation as to extension of contract of guard under writ of attachment in favor of creditor e17 mortgagor, held that, where answer con- nix Mfg. Co. v. Bogardus, 231 #1. 528, $3 NE tained general denial, subsequent narration of proceedings in attachment suit should have been stricken on motion. Beeler v. Perry \[Mo. App.\] 107 SWV 1008. Refusal to strike it held harmless. Id. Certain parts of answer held properly stricken, and other parts improperly stricken. Ebling Brew, Co. v. Adler, 103 NYS 93. In action against telegraph company for failure to transmit telegram correctly, certain allegations held redundant. Baird v. Western Union Tel. Co. \[S.-C.\] 60 S. E. 605.

001. United States v. Larkin \[C. C. A.\] 153 F 113. Error in overruling demarrer for ambiguity, uncertainty, or unintelligibility is not ground for reversal if it appears that demurring party was not misled by defect, and that cause was falrly trted upon its merits. Bank of Lemoore v. Fulgham \[Cal.\] 90 P 986.

001. Declaration alleging that defendant "by periry, and by his evil influence on the judge and jury, procured a verdict against this plaintiff," and had judgment entered thereon, etc., held scandalous and properly stricken on motion. Ropes v. Stewart \[Fla.\] 45 S 81.

001. Answer in action to recover for goods sold and delivered, "attempting to set up noncompilance by plaintiff with statute prescribing conditions under which foreign corporations might do business in state, held to have raised no real issue of fact, and hence to have been properly stricken as sham, it appearing by undisputed afflavits that plaintiff was not doing business in state and that contract was made outside of state, etc. Brown-Forman Co. v. Peterson, 101 Minn. 53, 111 NW 733. A denial can never be treated as sham, though it may be frivolous, word sham applying only to defenses. Rochkind v. Perlman, 108 NYS 224. Whether, under B. & C. Comp., 17 %, pleading is sham, must be determined from pleading itself on the whole record. Pacific Mill Co. v. Inman, Poulsen & Co. \[Or.\] 90 P 1999. Where amended pleading is verified by afflavit, whether it is sham must be determined from whole record, and cannot be tried out on afflavit when making up the issues. Id.

001. Rejoniders in action for personal injuries held not frivolous. Code 1896, $ 2286. Southern R. Co. v. Hobbs \[Ala.\] 43 S 844.

Denial is frivolous only when on its face it is not a denial, and defense only when on its face it is not a defense. Rochkind v. Perlman, 108 NYS 224.

43. In action for false imprisonment, allegations that defendant acted "unlawfully" (44), "45", "46", "47", "48", "49", "49", "41", "42", "43", "44", "45", "46", "47", "48", "49", "49", "41", "42", "43", "44", "45", "46", "47", "48", "49", "49", "41", "42", "44", "45", "46", "47", "48", "49", "49", "41", "42", "44", "45", "47", "48", "49", "49", "41", "42", "44", "45", "46", "47", "48", "49", "49", "41", "42", "44", "45", "47", "48", "49", "49", dence,47 need not be alleged, nor is it necessary to allege what or how the law requires things to be done.48

Pleadings must ordinarily be signed by counsel.49

\_Interpretation and construction in general.\_See & C. L. 1864.--A pleading should be construed as a whole 50 and should be given a reasonable construction rather than a

47.Evidence need not be pleaded. Wood-

ter \[Neb.\] 110 NMV 631. The facts which ruff v. Hughes, 2 Ga. App. 361, 58 SE 551; Cedartown Cotton & Export Co. v. Miles, 2 facts must be stated, but the facts from Ga. App. 79, 58 SE 289; Sawyer V. Walker,

which they are inferred are but evidence 244 Mo. 132, 102 SWV 544; Jerry V. Jago \[Tex.\], which need not and should not be pleaded. Civ. App. 18 Tex. Ct. Rep. 81, 100 SW 815. Cooper V. Atlantic Coast Line R. Co. \[S. C.\] Is error to sustain exception of no cause of 59 SE 704. Where complaintin action against action on ground that plaintiff has failed to carrier by passenger injured while attempt-

allage that evidence relied on to support his ing to leave moving train alleged that con-

case is in writing, even if it is necessary ductor "invited and encouraged" plaintiff to

that it should be. Rudcock Orleans Cypress

jump, held that it was not necessary to alleg-

Co. v. Deluppe, 119 La. 952, 44 S 79. Where

lege words and gestures used, surrounding answer, in addition to general denial, set out

circumstances, etc. Id. In action on notes evidence on which defendants relied, held

defendant claimed that he was entitled to that denial of motion to strike from reply credit not indorsed thereon. In supplemental

statement of evidence on which plaintiffs alleged, for purpose of

relled was proper. Cobb v. Holloway \[Mo.\], showing contrary, that defendant owed them

App.\] 108 SW 109. In action on profonsatory other money on which credit claimed was

note against an indorser thereof, allegations

applied. Heid proper to refuse to require

as to presentment for payment held not plaintiffs to state what other money was

demurrable for uncertainty in that it failed

owing to them, matters set up in supple-

to allege name of person to whom present- mental petition being merely matters of evlment was made. Klnsel v. Ballou \[Cal.\] 91

dence which need not have been pleaded. P g20. Executed compromise and settlement

Wood v. Lambasth \[Tex. Civ, App.\] 20 Tex. agreement held admissible under allegation

Ct. Rep. 825, 106 SW 717.

of payment. Rio Grande Southern R. Co. v. 48. Legal propositions can only be alleged

Colorado Fuel & Iron Co. \[Colo.\] 91 P 111;

as conclusions following statement of facts

In action for injuries resulting from colli-

upon which alleged duty strikes. City of San

sion between coach and street ear, held that

Antonio v. Routledge \[Tex. Civ. App.\] 19

evidence as to condition of travel at place

Tex. Ct. Rep. 457, 102 SWV 756. Allegation

where and time when accident occurred was

that under chatter it became city's duty to

admissible though not pleaded. Wilmington

City R. Co. v. White \[Del.\] 66 A 1009. In

action of trover defendant cannot, by special

49. Where defendant at first term of court

demurrer, compel plaintiff to disclose evlment

dence by which he proposes to prove title,

sel, but which was not demurred to or ob-

Bank of Sparta v. Butts, 1 Ga. App.\] 717, 67

jected to until next term, held that court did

SE 1061. Plea asking that suit against defendant

not err in then allowing plea to be signed,

fendant be stayed pending determination of

his petition for discharge in bankruptcy held

ammediment. Currie v. Deaver, 1 Ga. App. 11,

suffuent without attaching certified copies

of bankruptcy proceedings relied on. Hunter

fendant filed plea at first term. Subse-

v. Lissner, 1 Ga. App. 1, 58 SE 54. Demurrer

on ground that petition did not state dis-

of Sylvester under provisions of act great-

tance plaintiff was from car when he

nalled it to stop held not meritorious. Rome

latter court on ground that it was not signed

R. & L. Co. v. Beeler \[Ga. App.\] 60 SE 468. In

action to quiet title, held not necessary for

tion to strike was made, defendant's counsel

cross complainant to set forth evidence by

which he expected to prove his title. Bacon

not yet been marked in default. Gillis v. At-

v. Hlce \[Idaho\] 93 P 511. In action against

railroad company for negligently burning

plaintiffs orchard, held that defendant was

not required to plead that its engines were

screened as required by statute. Louisville,

etc., R. Co. v. Beeler, 31 Ky. L. R. 750, 103

SW 780. In action to recover certain land,

held that plaintiff was not required to alle 10 Cur. Law. PLEADING SS 1.183

technical one,\[51\] but the court is not authorized to reconstruct a pleading, or to render, by transposition, that certain which the pleader has made uncertain.\[52\] Specific allegations control general ones.\[53\] That which is implied is of equal effect as though it had been expressed.\[54\] More clerical errors will be disregarded.\[55\] Answers to interrogatories propounded in a pleading are not a part thereof.\[56\] In some states, written instruments may be incorporated into the pleading by reference.\[67\] Formal recitals of an instrument incorporated in a pleading cannot supply essential arcments not found in said pleading.\[58\] Pleadings in an action at law in the Federal courts should be construed as they would be in the courts of the state where the action is brought.\[59\]

At common law on general demurrer, everything in a pleading was taken most strongly against the pleader, and this rule still prevails in some states.\[60\] Under the codes, however, pleadings are generally to be liberally construed with a view to substantial justice between the parties,\[91\] and every reasonable intendment and presump-

**51. Rees v. Storma \[Minn.\] I12 NWF 419. In \[Fishburn v. Londershausen \[Or.\] 92 P 1060.\] determining whether denial is negative pregnant, intention, when clear, must govern a, for all matter of form, but amer rather than technical rules. Lemke v. Lemke \[Neb.\] L11 NW 138.**

G2. Birmingham R., L. & P. Co. v. Wright \[Ala.\] 44 S 1037.\*\*

G3. Dugas v. Hammond \[Ga.\] 60 SE 268.\*\*

Petition in divorce case. Hays v. Hays \[Ind.\] App.\] 82 NE 90. Specific allegations of facts constituting negligence held to control general statement that plaintiff was injured through the carelessness and negligence of defendant. Southern B. Co. v. Elliott \[Ind.\] 82 NE 1061. General allegations of negligence should be regarded as explained and controlled by specific acts of negligence asverted, in absence of clear: indications in complaint that general allegations were intended to cover other acts than those specifically alleged. Goodwin v. Charleston & W. C. R., 76 S. C. 557, 57 SE 530.\*\*

54. Allegation that a decree is In full force and effect is equivalent to an allegation that it had not been performed and paid. Henry v. Hedlmarier, 216 IL 152, 80 NE 705, agf. 129 Ill. App. 86.\*\*

01. Omission of word "plaintiff" between words "the" and "claims" in amended complaint held in view of summans and caption of complaint, a self-correcting electrical error. Martin v. Jesse French Piano & Organ Co. \[Ala.\] 44 S 112.\*\*

01. Are to be used as evidence (Code, 3604) and are not to be considered in determining whether case should be transferred to equity docket. Van Norman v. Modern Brotherhood of America, 134 Iowa, 575, 111 NWF 922.\*\*

01. Agreement referred to in complaint and made part thereof held as much part thereof as though fully set forth therein. Jones v. Gould, 108 NYS 31.\*\*

01. Street v. Sederburg \[Colo.\] 92 P 29.\*\*

01. As to whether general denial is qualified by admissions elsewhere in answer. School Dist. No. 11 v. Chapman \[C. C. A.\] 152 F 857.\*\*

01. Birmingham R., L. & P. Co. v. Wright \[Ala.\] 44 S 1037; Smith v. Smith \[Ala.\] 45 S 168; Leaves v. Anlington Knitting Millie \[Ala.\] 45 S 102; Padgett v. Lewis \[Fla.\] 46 S 29; People v. Grand Trunk Western R. Co., 282 Ill. 292, 83 NE 839; Wakefield v. Chicago, etc., R. Co., 81 KY. L. R. 1108, 104 SW 778; I184 PLEADING SS 1.10 Cur. Law.

tion will be indulged in their favor, \[62\] though in some states this rule does not apply when they are attacked by special demurrer. \[63\] It has also been held not to apply to petitions for the granting of extraordinary writs. \[64\] As a general rule, both at common law and under the codes, pleadings will be liberally construed when first attacked at the trial \[65\] or after verdict and judgment. \[66\]

White Co. v. Carroll \[N. C.\] 59 SE 678. pleading will reasonably admit of construcc-Where defendants demurred to complaint tion which will support it, that construction setting out lease on which action was based, should be adopted instead of one which will thus raising question as one of law and not condemn it. Id. Mere technical defects as of fact, held that they must be bound by regards insufficiency of statement give way fair construction of terms of lease in fixing to liberal rules for construction, where esterm granted. I. X. L. Furniture & Carpetential matters, not expressly alleged, are Installment House v. Berets \[Utah\] 91 P reasonably suggested to exist, and Intended to have been included in language used.

62. Shaw v. Feltman, 121 App. Div. 597, 106 Mivaukee Trust Co. v. VanValkenburgh NYS 1043: Mutual Life Ins. Co. v. Hargus \[VRs.\] 112 NVS 1083. Pleading is not open \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 335, 99 S8V 580. Matters of necessary inference sonably admit of construction which will from substantial facts are to be considered, utaustain it in light of all facts stated ex-though they may be imperfectly or defect- precisely or by reasonable inference, reason-, relyed. Timpecane Loan & Trust Co. v. Carr \[Ind. App.\] 78 NE 1048. But pleaders is not entitled to have substantial or ultimate allegations of pleading must be certain to in aid of pleading thus challenged. Id. Allegation that other personal property was be supplied by inference having no applica-converted by defendant held not to showouthelog \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 1d. Compain is deemed to allege what may be implied from the allegations therein by reasonable and fair intendment. Ward v. Hargus, such as injunction, will be Rogers, 51 Misc. 299, 100 NYS 1058. Where complaint in action by corroboration to re- Brown County v. De Long \[Neb.\] 114 NVW 934.

tiff was domestic corporation, held that it would be presumed that plaintiff was legally made in its favor. Nairn v. Missouri etc., and properly incorporated and that certificate of its incorporation contained information required by statute, though contents be liberally construed with view to substan-of certificate were not alleged and it was not made part of complaint. Avon Springs & 519. Leleman v. Rosenzweigk, 103 NYS 83. Sanitharium Co. v. Veed, 419 App. Div. 560, 104 NYS 58. No resort may be had to guess-work in order to determine what issues are, the Dresser v. Mercantile Trust Co., 108 NYS 577.

Complain is deemed to state cause of action and retain same, defendant promised to pay when requisite allegations can be fairly gathered from all its averments, though fats are imperfectly, informally, or argumentatively averted, and pleading is def-cient in technical language. Heath Dry Gas Co. v. Hurd, 108 NYS 410. Complaint can-not be overthrown because of formal defects or unless it is wholly insufficient. Blackmore v. Winters, 144 N C. 212, 56 SE 874. Cause of action against tenant for rent held sufficiently alleged as against general demurrer, though improperly commingled with another cause of action. Id. In construing effect of instrument declared on, consideration alleged should be read into it. Richards v. Gee \[Tex. Civ. App.\] 107 SW 61. Declaration will be treated as alleging by implication every fact which can be implied from its averments by the most liberal intentions. Robbins V. Baltimore, etc., R. Co. \[W. Va.\] 69 SE 512. Ali facts reasonably inferable from those expressly alleged are to be regarded as sufficiently pleaded. White v. White \[VWs.\] 111 NW 1116. Are to be deemed set forth and as forming a part of the pleading. Travelers' Ins. Co. v. Hallaner, 131 Wis. 871, 111 NW 527. If language of 356.

10 Cur. Law. PLEADING SS 1.1185

_Profert and oyer._${}^{\\text{\\sc geo}}$ & C. L. 1867--Profert is not necessary where the instrument pleading is a public record, nor has the opposite party a right to crave over in such case.67 Statutes in some states provide that it shall not be necessary to make profit of an instrument sued on, but that the opposiye party shall be entitled to over in the same manner as if profit was made.68 Instruments pleaded with profert must be recited on oyer in order to incorporate them in the pleading in which profert is made.69 When so recited they stand the same as if incorporated in said pleadings.79 As a general rule there cannot be oyer of the writ,71 though there seems to be some conflict of authority in this regard.71 In states where special demurrers have been sustained if upon any view plaintiff is entitled to relief. Raymond v. Binagrossion had entered a \[Mon.\] 93 P 648. Objection should be over ruled if upon well pleaded facts, which mo-aligned that plaintiff had meritous and nominal damages. Fritz v. Watertown \[S. D.\] 111 NW 630. Answer will be construed liberally, and will be held swiftened in some of the \[Mon.\] 111 NW 630. Answer will be construed liberally, and will be held swiftened if its allegations would uphold a ver-direct rendered thereon. Johnson v. Sheridan \[Mon.\] 92 P 561. Complaint held allegations will be disregarded, and pleading is maintained if upon any view plaintiff is entitled to relief. Raymond v. Binagrossion had no appeal. Carlson v. Barker \[Mon.\] 93 P 648. Objection should be over ruled if upon well pleaded facts, which mo-aligned that plaintiff had meritous and nominal damages. Fritz v. Watertown \[S. D.\] 111 NW 630. Answer will be construed liberally, and will be held swiftened if its allegations would uphold a ver-direct rendered thereon. Johnson v. Sheridan \[Mon.\] 111 NW 238. Where com-Lumber Co. \[Or.\] 93 P 470. Answer held to indentifally allege that plaintiff had no knowledge of plaintiff's secret profit. Id. Samre rule applies as where objection is made after verdict, and objection is properly overuled where there is defective statement of good cause of action. Bade v. Hibberd \[Or.\] 93 P 864. 68. See, also, 11, post, Alder by Verdict. In absence of demurrer or objection to offered evidence, complaint that alleges es-sential fact only inferentially or as conclusion is good when first attacked on appeal. Dillon v. Cross \[CaI.\] 91 P 439. Com-plaint held to sufficiently alice trust as against attack first made on appeal. Id. In determining whether complaint contains averments sufficient to support judgment, every intendment is to be indulged in favor of the judgment, all doubts of construction to be resolved in support thereof, and construction of complaint which will uphold judgment is to be adopted, if it can be so construed. San Gabriel Valley Bk, v. Lake View Town Co., 4 Cal. App. 839, P 850. 751. Though objection that complaint fails to state cause of action may ordinarily be raised for first time on appeal, such objections are not favored, and such an objection will not be sustained where it is apparent that it attention had been called to defect -previous to or at trial it could have been cured by amendment. Edward Malley Co. v. Londoner \[Colo\] 93 P 488. Will be suported by very reasonable intendment. Chiuago City R. Co. v. Shreve, 226 Ill. 530, 80 NE 1043; Diamond Gue Co. V. Wieteychowskij, 227 Ill. 338, 81 NE 352. As against ob-, lection first made on appeal, every presum-, tion and intendment will be indulged in favor of declaration. Leigh v. National Hollow 10 Curr. L-- 75.

1186 PLEADING SS 1. 10 Cur. Law. abolished, a pleading is not defective for eraving over where over is not demandable,78 and, where a demand for over is complied with, though over is not properly demandable, the instrument becomes a part of the record.74

\_Exhibits.\_See * C. L. 1367.--By statute in some states when any pleading is founded on a written instrument, the original or a copy thereof must be filed with the pleading.76

Footnote 76: The 10 made before issue joined unless the bill is shown to be necessary to enable the moving party to plead," and an application for a bill to enable the applicant to plead will be denied if he may by any method plead without the aid of the particulars sought."68 Though a demand for affirmative relief is not essential to authorize the court to require defendant to furnish a bill,"64 he should not be required to do so where the allegations of the answer are in effect a denial of those of the complaint."65 It is no answer to an application for a bill that the party from whom it is demanded is an executor or administrator and hence has no personal knowledge of the facts."68 An order directing the filing of a bill should not provide for the imposition of a penalty in case of disobedience; but if the bill is not filed the other party may then apply for an order preventing the giving of evidence as to the items in regard to which it was ordered."68

The bill should be as specific as the circumstances of the case will allow,"68 how far a party should be required to go in narrowing the statement of his case being largely discretionary with the court."68 A party should not be required to disclose his evidence,"69 or to give information peculiarly or equally within the knowledge of the specification of matter set forth in pleading.

have been granted. Foster v. Curtis, 105 Weedon v. Weedon, 34 Pa. Super. Ct. 358.

NYS 362.

82. Mutual Life Ins. Co. v. Grannis, 118

01. May be granted of defenses not in-App. Div 830, 103 NYS 835; Bailey v Mayer,

volving counterclaim or demand for affirmative-66 Misc. 331, 107 NYS 624. Motion by defend-tive relief. Reader v. Haggin, 123 App. Div. ant for bill of particulars on ground that 489, 107 NYS 963.

85. In action by creditor to set aside denied when made before answer is served,

alleged fraudulent transfer of property to since it cannot be said that defense will be

defendant, fact that defendants unnecessarily made until issue is raised. Standard Maj.

Ify made part of their denial an affirmative terials Co. v. Bowne, 118 App. Div. 91, 103

algestation that they had property held not as YYS 12. In action to recover balance due to justify court in requiring them to specify after forcefocative of chatel mortgage, where

what property they had. Wilks v. Grecen, defendants counterclaimed for value of

120 App. Div. 811, 105 NYS 246.

property belonging to them of which it was

86. Since office of bill is to amplify or alleged plaintiff had taken possession, held

limit pleadings and point out issues to be

what plaintiff's application for bill of par-met at trial, and administrator does know

ticulars made before reply was premature,
upon what theory he seeks to recover. Acheren being no showing in afflawits that

tion for wrongful death. Waller v. Degnon

bill was necessary to enable plaintiff to

Contracting Co., 120 App. Div. 389, 105 NYS 203.

203.

001. In action to recover for personal in-

001. Foster v. Curtis, 121 App. Div. 689, 106

juries defendant's application for bill be-

NYS 88.

fore Issue joined denied, where he denied

88. While it need not state more than the

all knowledge concerning matters alleged in

party furnishing it is bound to prove under complaint, since he could put them in issue by

displacing, it must be as specific as cir-denying any knowledge or information suf-

cumstances of case will allow, and should

ficient to form belief as to their truth. Bailey

fairly apropise court and opposite party of v. Mayer, 56 Misc. 381, 107 NYS 624. In action

nature of the claim or defense made, and

to recover advances alleged to have been

nature of evidence. Weedon v. Weedon, 84

made to agent in excess of commissions,

Pa. Super. Ct. 358.

held that defendant was not entitled to bill

89. In determining how far plaintiff should

before issue joined, since he was presumed

be required to go in narrowing statement

to know amount due plaintiff, and if not he

of his case as to time or place, rights and

could deny allegations on information and

interests of parties and difficulties and exi-

belief. United States Casualty Co. v.

gencies of preparation of plaintiff's case and

Jamieson, 122 App. Div. 608, 107 NYS 490.

defendant's defense should be considered,

Bill will not be ordered to enable defendant

and such orders made as will promote jus-

to answer, where he is wholly ignorant of

tice. Pool v. Bergman \[Mass.\] 83 NE 7. In

particulars of plaintiff's claim, since he may

action for assault, time of which was not

deny any knowledge or information suf-

alleged in declaration, plaintiff filed specifi-

dent to form belief as to allegations of

action allegating that assault occurred "on or

complaint. Standard Materials Co. v. Bowne,

about" certain date. He did error to strike

118 App. Div. 91, 103 NYS 12. Plaintiff's

out words "or about," though evidence at

motion for further bill was denied on ground

previous trial tended to show that assault

- that his reply to defendant's counterclaim

occurred on date specified, remedy being by

was not party seeking it. \[91\] In case the bill served is deemed defective or insufficient the remedy is ordinarily by motion for a further bill. \[92\] The bill may ordinarily be amended upon leave of court. \[93\] Ordinarily the bill is no part of the pleading and cannot supply necessary averiments omitted therefrom. \[94\] Cases dealing with the right to bills in particular cases, \[95\] and the sufficiency of particular bills, \[96\] will be found in the notes.

**91.** In action to recover cost to electric company of caring for, repairing, and changing underground wires, etc., made necessary by reason of construction of subway, held essential allegations of fact omitted from which of the defendants, and which of their agents or employees did acts alleged, nor purchased by defendants were required to make repairs. New York Edlison Co., V. McDonald, 16 May 63, 10 May 66. In action by part-ner for dissolution of partnership and an accounting, where plaintiff alleged that defendant had applied funds of partnership to his own use in excess of his share, and in order to conceal that fact had never balance partnership books, of which he had injuries was entitled to bill stating with quire plaintiff to furnish bill of particulars of allegations of receipt of said money by defendant, each having presumptively as much knowledge of matters shown by books as other. Kellogg v. Griffiths, 10 May 96.

**92.** Where defendants served bill of participants of counterclaim which they deemed compliance with order requiring it, held that if plaintiff claimed that bill was defective or insufficient he should have moved for further bill, and not having done so, he could not, for first time at trial, raise objection that it did not comply with order by invoking provision precluding giving of evidence as to counterclaim. Pollack v Wiener, 6 May 434, 10 May 405. Motion under Code Civ. Proc. $ 454, to require plaintiff to serve further account or bill of particulars.

**92.** It is not possible to use the term "invest" to be used to make 10 Cur. Law. PLEADING SS 2. 1189

By statute in some states a party is not required to set forth in his pleading the items of an account therein alleged, but must in lieu thereof, and within a specified time after a written demand therefor, deliver to the opposite party, or file, a copy of said account, or be precluded from giving evidence thereof."

SS 2. _The declaration, count, complaint, or petition. General rules.See_\* c. L. 1872-A complaint preferred on behalf of the state in a civil action is usually termed an information."The declaration, petition, or complaint must aver all the facts necessary to show a cause of action against the defendant," in ordinary and concise

105 NYS 203. In action for negligence for injuries to servant as to amount of damages, whether he was operating machine when injured, what he was directed to do, and in what respect machinery was defective, Kaplan v. Sher, 56 Misc. 432, 106 NYS 1094. In action for personal injuries, specifying injuries claimed to be permanent. Bishany v.

language, in such manner as to enable a person of ordinary understanding to know what is intended." The performance or happening of all conditions precedent to the right to sue, or an excuse for nonperformance, must be alleged.1 Plaintiff need not allege matters of defense.2 In some states a plaintiff who is not a resident of the county in which the action is commenced is required to state his residence and post office address in his petition.2

Footnote 11: https://www.stat.ucsd.edu/~data/

The complaint must proceed on a definite theory, on which plaintiff must recover, if at all.4 The nature of the action,5 whether it is in tort or on contract,6

Footnote 12: https://www.stat.ucsd.edu/~data/

Burns' Ann. St. 1901, $ 341, requiring statement of facts constituting cause of action. Kelly v. Bell \[Ind. App.\]. $3 N173. Must be sufficient to settle plaintiff to defend, jury, and court. Robbins v. Balti-Iief asked without Introduction of evidence to support it, if its allegations are not defined. Bolen-Darnall Coal Co. v. Williams for want of facts must exhibit enough \[Ind. T.\] 104 SVW 867. In action on contract, is proper for plaintiff to point out its various provisions, and to allege performance thereafter.

or at law or in equity," and whether the complaint states one or more causes of action," are questions of construction.

violate rule. Williamson v. Shank \[Ind. App.\] $3 NE #41.

$. Nature of action is not to be determined by designation of pleader, but its character and classification depend upon intrinsic contents of pleader, but its credentials of fact, nature of wrong sought to be remedied, and quality

passenger. Rushin v. Central of Georgia

R. Co., 128 Ga. 726, $5 SE 357. For convervency

$. Nature of action is not to be determined by designation of pleader, but its character

776, 103 NYS 878. Complaint alleging that

and classification depend upon intrinsic contents of pleader, but its credentials of fact, nature

sell for him, that defendant received certain of wrong sought to be remedied, and quality

sum therefor which he converted to his own

of remedy invoked. Pennington v. Douglas,

use, and asking for recovery of said sum and

etc., R. Co. \[Ga. App.\] $5 SE 485. Pacts set

for arrest and ball of defendant, held to be

out in complaint, and not title of action, nor

treated as election tosue in tort, where

prayer for judgment, determine kind and

court in which action was brought would

character of cause of action alleged. Jones

not have had jurisdiction of action on con

v. Gould, 108 NYS 31. As to whether action

tract. White v. Eley \[N. C.\] $8 SE 487.

is against defendants personally or merely

Petition in so far as it sought to recover

as managers of syndicate. Id. Theory of

value of bull alleged to have been appropri:

paragraph must be determined from lead-

ated by defendant. Pfeiffer v. Wilke \[Tex. in allegations. therein, and not from mere

Civ. App.\] $107 SW 381. Petition in action

occational averments. Kelley v. Bell \[Ind. App.\] $3 NE 778. Theory of paragraph held

defendants while engaged in raising it for

to set aside fraudulent conveyance of bonds

purpose of building basement and foundation, allegations as to contract being merd

Id. Complaint in action by passenger against

matter of inducement. Armello v. Whitman

carrier for personal injuries held to state

(Mo. App.) 106 SW 1113. Where original

cause of action in case. Birmingham R.,

complaint counted in trespasts to realty and

L. & P. Co. v. Wright \[Ala.\] $4 1837. Com-

additional one sought to recover damages

plain in action for breach of contract of

agency held to have sought recovery for

on cotton, demurrer and motion to strike

value of services actually rendered only, and

on ground of misolinder in that original

not for prospective profits. Wilson v. North-

counts were ex dellotte and additional one

western Nat. Life Ins. Co. \[Minn.\] 114 NW

$51. Count held one upon quantum mertu

zams v. Alabama Cotton Oil Co. \[Ala.\] 44

and not upon stated account for an agreed

$57. Action against dormant corporations

sum, so that there was no error in admitting

and officers thereof to recover on notes and

wages v. Mexico City Banking Co. \[Tex.

to have judgment declared lien on corporate

Civ. App.\] $18 Tex. Ct. Rep. 553, 108 SW 461.

really held one at law. Swarley v. Oak

**6. In doubtful cases every intendant is**

Leaf Creamery Co. \[Howard l13 NW 496.

in favor of regarding action ex contractu.

\*\*8. Complaint held to state one cease of

Randolph v. Walker \[S. C\] $8 SE 565. Where

action: Count in complaint in action for

given default may constitute both breach of

personal injuries alleged to have resulted

contract and tort, and complaint contains

from breaking of defective hand car handle.

apt allegations charging default in both

Southern R. Co. v. McGowan \[Ala.\] $3 878.

sects, if it appears from whole complaint

For breach of contract to transmit tele-

that contract is alleged chiefly or wholly by

gram, averments of negligence in first count

way of necessary inducement in order to

being merely descriptive of manner in which

show existence of a duty, and the emphasis

contact was broken. Western Union Tel.

is laid upon willful or wrongful disregard

Co. v. Garthright \[Ala.\] $4 $13. Com-

of said duty, intent is to charge tort, while

plant in action for damages for failure to

if contract appears to be stated as basis of

perform contract to assume payment of

the action, and emphasis is laid upon de-

chatical mortages, though allegating two

fault in carrying it out, intent is to charge

elements of damage. Hurwitz v. Gross

mere breach of contract. Boehrer v. Juer-

gens & Anderson Co. \[Vis.\] 113 NW 655.

surance. Missouri State Life Ins. Co. v.

**Heid** a state cause of action on contract

Lovelace \[Ga. App.\] $8 SE 92. In action on

Action by shipper against carrier for dam-

injection bond conditioned for payment of

ages for failure to transport. Jen-

judgment, collection of which was sought to

kins v. Sebabaori Air Line R. Co. \[Ga. App.\] * \[1192\] PLEADING SS 2. 10 Cur. Law. \_Consolidation of suits.\_See

- C. L. 1374.--The court ordinarily has discretionary power to consolidate two or more pending actions brought by the same plaintiff against the same defendant for cause of action which could be joined.

- \_Jointed of causes of action.\_See

- C. L. 1375.--The codes generally specify certain classes of causes of action which may be joined,10 provided they are consistent11 and

- \[1192\] company against its former president held 60 SE 569. Count in petition in action for each to state but single cause of action to defend of servant, one under Rev. St. 1899, reocer damages sustained by defendant's 2864, and one under $ 2865. Jordan v. St. unauthorized and unlawful appropriation of Louis Transit Co., 202 Mo. 418, 101 SW 11. plaintiff funds. Mutual Life Ins. Co. v. One at law against corporation to recover McCurdy, 118 App. Div. 815, 103 NYS 829. TQ recover money lost to plaintiff insurance company through fraudulent sets of defendants acting in concert to execute precon- 115 App. Div. 778, 101 NYS 199. To and without authority. Mutual Life Ins. Co. v. McCurdy, 118 App. Div. 827, 103 NYS 837. In action by insurance company against contract, 108 App. Div. former president and trustee to compel him to account for unauthorized expenditures. Mutual Life Ins. Co. v. McCurdy, 118 App. Div. 822, 103 NYS 840. For breach of contract to certain pictures, allegations as to extra damages not amounting to separate cause of action for tort. Dunn v. New York Terald Co., 119 App. Div. 470, 104 NYS / 104 NYS 94. Complaint alleging sale of goods by plaintiff's assignor to certain company, against two separate defendants based upon loan to defendant of certain sum, and agreement by defendant to repay loan and also, as part of consideration of loan, to pay for best sustained. Hammurow, New York said goods. Wood v. Duncan, 54 Misc. 628, 104 NYS 880, ryg. 104 NYS 1035. Complaint in equitable ac- tion to restrain continuance of a nuisance, trespages and for injunction to prevent fur- 10 creation of which acts of several defendants have contributed, is not multi- 114, it cannot be said that damage allegations because containing demand for dam- 114, it cannot be said that damage allegations already suffered. Burgen v. Erie R. Deledg is incident only to the equity action. Co., 108 NYS 311, rvs. 83 Misc. 457, 103 NYS 292. Complaint in action against express 1058. Complaint alleged conspiracy to decompany for failure to deliver whiskkey, strong plaintiff's property and obtain possess- 114, which plaintiff claimed sign thereof, and that pursuant there do- 114, which is not 11 10 Cur. Law. PLEADING SS 2. 1193

affect all the parties to the action in the same character and capacity.12 Among the

ing of Code Civ. Proc. SS 484, because proof other relief held multifarious so that, ap-

of absence of contributory negligence was

propriate objection having been taken there-

essential to first and was not to second. to, it was error to grant injunction and to

SelfRelvan v. Errie R. Co., 57 Misc. 222, 107 NYS

adjudge certain of defendants in contempt

1060.

Causes held improperly joined: Causes of

upon in the suit. Id. Where several parties

action based on realisation of contract be-

have at diverse times, and without concert

cause of false representations and on breach

of action or collusion, gone upon land and

thereof, though growing out of same trans-

each taken severally part thereof and erected

action. Code Civ. Proc. $ 484, sub. 9.

Inprovements thereon, and one of said

Kranz v. Lewis, 115 App. Div. 106, 37 Civ.

Partes has individually and on his own

Proc. R. 368, 160 NYS 674. For breach of

account removed improvements placed there-

contract and for unabriul possession and

on by himself, cause of action for such re-

use of property, though growing out of same

moval against such person cannot be joined

transaction. Code Civ. Proc. $ 484. Hoag

with one against all such persons for resti-

v. Lehigh Valley R. Co., 105 NYS 200. Causes

ution of entire premises, since some judg-

of action in divorce and separation, though

ment cannot be rendered against all defend-

both may be joined in counterclaims under

ants. Rev. St. 1887, 4166. White v. Whitt-

Code Civ. Proc. $ 1170, Conrad v. Conrad,

comb, 13 Idaho, 490, 90 P 1080. Cause of

66 Misc. 376, 107 NYS 655. County held not

action against one party on lease with one

entitled to join with suit under B. & Co., Comp.

on separate and distinct writing wherein an

$ 4946, to cancel lease of road for failure

other party guaranties that certain part of

to comply with its provisions, a claim to

rent under said lease will be paid. Mar-

avoid said lease because made without au-

shail V. Saline River Land & Mineral Co., 75

thority, or because not fully executed, said

Kan. 445, 89 P 805. Petition in action in

stature only providing for forfetiture on first

quo warrants averning cause of action

named ground. Climando County v. Wilson

g against mayor, conulimen, and assessor

River Road Co. \[Or.\] 89 P 958.

12. Heid no misididermied: Field proper for

two plaintiffs with whom defendants's agent

couldy treasurer to enjoin collection of tax

bad made separate contracts for conveyance

level on property of plaintiff in said city,

of land to join in suit for specific perform-

held demstruble. Gen. St. 1905, $ 495.

ance, where said contracts covered same

land in part, so that seeming conflict could

be determined and title cleared in one

probable cause and for breach of indeminy-

tion, Carter v. Gray, 78 Ark. 273, 96 SW

377. Where plaintiff, claiming entire in-

crests in property decided to bar and her hus-

band, sued him and third person, who had

ants occupy separate portions of premises

purchased husband's interest at execution

claimed by plaintiff in electempt, they should

sale, to remove clouds from her title. Hud-

soar v. Wright, 204 Mo. 413, 108 SW SW. In

205 Mo. 284, 108 SW 548. Where husband

suit by guardian of insane person against

and wife used twenty-four defendants to

execurts of former guardian and varieties

quiet title to diverse tracts of land, and

on three several bonds given by said de-

plaintiffs were not jointly interested in said

ceased guardian for money alleged to have

several tracts, but each held title distinct

been collected by latter and not accounted

from other in separate parcels, and it also

for Moore v. Hanson \[Tex, City. App.\] 19

appeared from petition that defendants did

Tex. Ct. Rep. 707, 103 SW 665.

not in every instance claim interests ad-

Causes held improperly joined: Count

verse to plaintiffs in same tract. Gardner v.

joining two distinct ports by different

debortson \[Mo.\] 106 SW 645. Action to fore-

fendants held demstruble, no common pur-

close mortrage with one to obtain money

pose or motive being shown Hackney v.

Judgment on note not secured by. the mort-

Perry \[Ala.\] 44 8 1029. Action by handoid

gage. McCague Sav. BK. V. Croft \[Nob.\] 115

against tenant to recover rent from termina-

KNW 315. Causes of action at law against

tion of tenancy to commencement most common of these are causes of action upon claims arising out of the same transaction or transactions connected with the same subject of action,\[13\] causes of action on contract,\[14\] for injuries to real property,\[15\] and by or against a party in a fiduciary capacity arising by virtue of contract or operation of law.\[16\] In Iowa causes of action of whatever kind may be joined provided each may be prosecuted by the same kind of proceeding, and if held by the same party and against the same party in the same rights, and if suit on all may be brought and tried in the same county.\[17\] In Alabama causes of action in trespans and case may be joined if they relate to the same subject-matter.\[18\] In Louisiana it has been held that a petitory action, an action in jactiat-city and railway company, cause of action for impairment of value of property by low-one based on allegations in alternative that, ering grade of street, and one for use and ttained property of plaintiff, the original pany for storage of tools. Coyne v. Memphis, 118 Tenn, 651, 102 SW 355. For Broskins v. Velasco Nat. Bk. (Tex. Civ. App.) personal injury to wife and for damages to husband as result of said injury. St. 1888, # 2680, 2345, 4985, construed. Brickner v. Kopmeier (W18; 113 NWV 414. 13. Causes held properly joined: Declara-tion In suit by several plaintiffs against sexual defendants to cancel certain deeds and to quiet title, etc., held net multifarious, where under theory by which it was sought to recover all of the defendants were to have community property partitioned, and obliged to resort to enforcement of same security for whatever rights they might be satisfied from common security. Ashley v. Cock, 128 Ga. 836, 58 SE 640. For unpaid rent due under lease of reality, and for dam-ages occasioned by wrongful act of tenant in setting fire to building, thus violating covenant of lease to return premises at expiration of lease in as good condition as when received by him, both arising out of lease. Rev. Laws 1905, # 4154. Reed v. Bernstein (Minm.) 114 NWV 261. Causes of action on tax bills for construction of side-walk in front of two lots owned by defendants. Rev. St. 1889, # 503. City of Mexico v. Lakeenan (Mo. App.) 108 SWV 41. In action by trustee in bankruptcy, causes of action to set aside unlawful transfer of bankrupt's property and to recover same or its value for benefit of estate. Bouton v. Wheel-er, 118 App. Div. 426, 104 NYS 33. Cause of action in equity for an accounting concerning concerning disposition of fund over which defend-ant had disposition and control held immediately if one or a law for dam-ages claimed to have resulted from wrong-ful or negligent acts of defendant in im-bankrupt to defendant of reality in another properly auditing bills against plaintiff pay-able out of its general funds. Mutual Life is. Co. v. Gillette, 119 App. Div. 430, 104 NYS 683. Cause of action for breach of lossing contract with one in tort for cons-version of property placed on defendant's land by plaintiff for purpose of carrying out small contract. Revisai 1905, # 489. Hawk v. Pine Lumber Co. \[N. C.\] 58 SE 603. Cause of action for equitable relief from forefited mechanic's lien with one to re-cover penalty imposed by statute for failing to release said lien on demand. Rev. Codes 1899, # 5291, Sheets v. Presser (N. D.) 113 NWV 618. 112 NWV 72. Against carrier for unreasonably - maybe be joined only when they relate to shale delay in transporting goods, and for stature penalty for such delay. McCullen v. Mequhart (Ala.) 44 $ 555. Count in trover for conversion of logs and count in 506. Cause of action against defendants to be paid in the same way as the one in the 10 Cur. Law. PLEADING SS 3. 1195

tion, and an action for damages for trespass, may not be cumulated in the same suit.\[19\] In states adhering to the common-law rules of pleading, causes of action for separate torts may be joined,\[30\] but not causes of action at law and in equity,\[21\] or which are inconsistent,\[22\] or on which the same judgment cannot be given.\[28\] The joinder of legal and equitable causes of action is ordinarily permissible under the codes.\[24\] Both at common law \[25\] and in some code states,\[26\] causes of action on tort and in contract cannot be joined. There is no misjainder where one of two causes of action attempted to be stated is bad for want of facts.\[27\]

Several aspects of the same cause of action may ordinarily be pleaded in different counts, provided they are not inconsistent.\[18\] Duplicity should be avoided,\[29\] and land and cutting trees from which logs breaches of contract of insurance. Price were made held improperly joined. Id. Count for treespass quare clausum freight for eneturing on certain lands and count it proved 26. Louisville, etc., R. Co. v. Hurt, 129 Ga. for certain pine trees held improperly joined. Gulf Yellow Pine Lumber Co. v. breach of duty as agent. Wolf v. South-Monk \[Ala\] 45 SS 222. Counts for slander on R. Co. \[Ga\] 60 SS 469. and counts for assault and battery cannot be joined. Vest v. Spekekman \[Ala\] 44 SS 25 are two or more good causes of action 1017. Counts in treespass and case for pumping water from plaintiffs land and White \[Wins\] 111 NW 1116. Demurrer for for filling up springs held to relate to same subject-matter. Louisville, etc., R. Co. v. Hugenholtz causes of action only one la in Higginbotham \[Ala\] 44 SS 872. 13. Bossiery Reirs v. Hollingsworth, 119 SS 28. Whether or not duplicate statements of same cause of action will be allowed in slander. Slater v. Walter, 148 Mich. 650. 141 Det. Leg. N. 314, 112 NW 882. Fact that disturbed unless abused. Possell v. Smith, plaintiffs joined demands for which they 89 SS 106. 127, SS 1064. May be variety of were not entitled to recover with that upon counts in respect to same cause of action, which they did recover held no ground for new trial. Dickinson v. Pere Marquette R. and reasonably exercised. Wilmington Co., 148 M. 461, 14 Det. Leg. N. 256, 111 City R. Co. v. White \[Del\] 64 A. 109. Each NW 1078. For two wrongful levies on theory must be enforced in a separate parse personality. Smith v. White \[W, Va\]. 88 NE 404. Compilation in action to force.

21. Cause of action to contest will under close materialmark's line held not to violate static cannot be joined with one for specific. If. Where entire compliant stated life performance, partition, and accounting cause of action in language and construcction that one of ordinary intelligence of general equity powers of court. Tagert would be able to understand, held that it v. Fletcher, 232 III. 197, SS 32 NE 805.

01. Field no misjainder of counts in action cause of action was stated in several separate paragraphs, and refusal to require its consideration because rulming claims sold plaintiff were never owned by defend. Belen-Darenl Coal Co. v. Wilming \[Lund, T.\] and second alleged right to rescind for false representations. Whitney v. Haskell, 216 broker may join out on express contract with one for reasonable value of services. Berry v. Craig \[Kan.\] 91 P 919. Feltition in charging utterance of slander by husband action for personal injuries may charge two on one occasion, and by wife on another, pursuant to conspiracy previously formed contradictory. Spaulding v. Metropolitan to injure plaintiffs character, held demur- stable. Kellar v. James \[W, Va\] 59 SB same cause of action is stated differently in 139. Demands of several former postmasters for unpaid salaries under Act of March 3, on which he will rely. Russell v. Quincy, 1838, held improperly joined. Peyeyst v. U. etc., R. Co., 441, 102 SW 613. 8, 41 CL. Cl. 511.

01. Compilation is not bad because it plays cause of action to be stated in different for both legal and equitable relief, as for injunction against maintenance of dam and for damages growing out of its execution, where allegations are not inconsistent and Bal. Ann. Code & St. v 4798. Durgas v. Lin-deferndant is not ruled. Neuman v. Grant coin Creek Lumber Co. \[Vash.\] 92 P 43. 13. In action to recover dam.

01. Count alleging that defendant induced aggen for conversion of stock alleged to testator to take out policy of insurance and have been pledged as collateral security for pay assessments, etc., by false and fraud- loans, held not fatal objection to allowance silent representations, cannot be joined with or amendment to complaint, inserting alter-common counts in assumpati and for native cause of action, alleging that half of separate causes of action "0" and inconsistent allegations "1" should not be stated in a single count or paragraph. Each count or paragraph must be complete in itself."22

stock was delivered to defendant as secur-

Its and half as bonus and that transaction

clearly appearing that recovery was sought was void, that complaint would state two

for deceit alone. Summers v, Geer \[Or.\]

apparently inconsistent statements of trans-

93 P 133. In action against purchaser of action on which cause of action rested,

rather before being no discrepancy as to making of

injuries received while road was in handa

loan, giving of note therefor, and delivery

of recovers, declaration alleging as

of stock. Shirley v. Bernheim, 123 App.

By. 428, 107 NXS 946. When exact nature

Iliability by purchaser, and euccession to

of plaintiff's legal right or defendants' lla-

betterments and improvements made by re-

bility under certain state of facts is doubt-

ful, plaintiff may state same cause of action

ing or tending to state single cause of

in different forms, and unless different alleg-

action. Gray v. Grand Trunk Western R.

gations are so inconsistent that proof of

Co. \[C. C. A. 157 E 786.

one will disprove others, he should not be

so. Southern R. Co. v. McIntyre \[Ala\_\] 44

required to elect between them before trial.

$ 624; Atena Life Inc s. Vo. v. Stryker \[Ind.

Norbeck & Nicholson Co. v. Pease \[S. D.\] 112

App. 83 NE 867; Giacoma v. New York, etc.

NW 1136. In action for drilling well, where

plaintiff in one count pleaded performance

must be separately stated. St. 1898, $ 2647.

of written contract subsequently modified

Prahm v. M. C. Gehl Co. \[VW18\]. 112 NWF

by parol, and in another sought to recover

1997. N. Y. Coke Civ. Proc. $ 483. Moore

on quantum merit for same labor and ma-

Bros, Glass Co. v. Drevet Mfg. Co., 154 F

terial, held error to require him to elect

1977. Form of numbering paragraphs dis-

between counts before trial. Id.

approved as leaving room for doubt and un-

29. To constitute duplicity, it must ap-

certainty as to whether it is intended to

pear that plaintiff relies upon more than

simply number paragraphs or to number

one cause of action as ground of a single

cases of action, Toledo Gas-Light & Coke

recovery, and it is not enough that it ap-

Co. v. Toledo, 10 Ohio C, C. (N. S.) 490

pears that he has more than one. Sum-

Plaintiff in action against railroad comma-

mers v. Geer \[Or.\] $ 713. Petition is not

necessarily duplicitous because of some In-

one count cause of action at common law

consequential or inapt expression which

for failure to furnish safe readebed and

may not be strictly pertinent to case therein

machinery, and one arising from negligence

made, where it is plain that plaintiff does

of fellow-servants under Const. $ 193, Yazoo,

not rest his claim for recovery upon it.

t.c., R. Co. v. Wallace \[Miss.\] 43 S 469.

Rushin v. Central of Georgia R. Co., 128 Ga.

Cause of action under Rev. St. 1899, $ 2864.

726, $ 85 SE 357.

Reld duplication: Petition containing allegations appropriate to action to enforce

legations appropriate to action to enforce

liability against defendant under statute as

one under $ 2865, 2866, for death caused

last of connecting line of carriers of freight,

by negligence of defendant, though both

and also. allegations appropriate to action

may be joined in same petition. Casey v.

seeking to enforce against it a common law

liability, and which are sufficient to set

1146. Barring inconsistent and self-destruct-

forth good cause of action on either theory.

Ive averments, common-law and statutory

Central of Georgia R. Co. v. Banks, 128 Ga.

negligence may be pleaded in same count

785, $ 85 SE 352. Petition seeking to enforce

liability against railway company as car-

river of freight under statute and containing

matter of the suit. White v. St Louis, etc.,

allegations appropriate to action to enforce

common-law liability. Atlanta, etc., R. Co.

v. Broome \[Ga. App.\] $ 60 SE 355. Duplicity

in declaration in action by passenger

against carrier for personal injuries,

which alleged negligent operation of car

and employment of incompetent conductor,

held harmless in view of instructions,

though it might have been taken advantage

of by special denumerr. Reid v. Rhode Is-

land Co. \[R. L.\] 67 A $ 288.

**Held not duplicitous: Petition in action**

against carried for injuries to passenger.

Rushin v. Central of Georgia R. Co., 128

Ga. 726, $ 85 SE 357 10 Cur. Law. PLEADING SS 2. 1197

\_Election.\_See * C. L. 1850.--An election is required whenever a pleader relies on two different, inconsistent conditions of fact.38

\_Splitting causes of action.\_See * C. L. 1850.--One may not split his cause of action, but all damages arising from a single wrong or cause of action must be recovered in one suit.34

\_Prayer.\_See * C. L. 1851.--As a general rule the fact that plaintiff asks for more or different relief than that to which he is entitled does not violate his pleading,38 and

ticularly in suits in equity. Aetna Life Ins. contract as subsequently modified by parol Co. v. Stryker (Ind. App.) 83 NE 647. On conventions pleadings in connection with faces and materials. Norbeck & Nicholson judgment held that action to redeem land from foreclosus sale was presented, considered, and determined as well as right to sign of grain, refusal to require plaintiff to possession and to quiet title, so that defend-

elect upon which of alleged acts of con-
ants were not entitled to new trial as of

verion he would rely held not error, in right. Id.

31. Contradictory state of facts should

judgment against one or more of several

not be set up in same paragraph. Chicago,

defendants and determination of their

etc., R. Co., W. Barker \[Ind.\] 83 NE 369.

mate rights between themselves, and of

fact that no prejudice was shown. Hahn v.

32. Under N. Y. Code Civ. Proc. $ 483, each

cause of action must contain facts sufficent to sustain it, irrespective of any

of contract of hiring contained count on

averments in first cause of action. Moore

Bros. Glass Co. v. Drevet Mfg. Co., 154 F

of three years as permitted by its terms

737. Count not purpriting to exhibit an-

need to previous count, and not referring

theorto. cannot be aided thereby. Merrill

w. Post Pub. Co. \[Mass.\] 83 NE 419. In passing on demurrect to one count, allegations in

traet. Field that plaintiff should not have

otherly cannot be considered unless incor-

been compelled to elect between his causes

Moras. 400, 80 NE 654.

14 was error to require him to do so at

33. One cannot sue to enforce inconsistent

close of his evidence, it being clear that he

rights in the same action, and where he at-

had good cause of action on second count

tempts to do so he should, on a special de-

in any event. Mendelson v. Brenner, 108

murror on that ground being interposed, be

NYS 807. Election to rely on first count

compelled to elect between them. Venable

held none the less final because plaintiff at-

v. Burton, 129 Ga. 537, 59 SE 253. Where

tempted to reserve right to subsequent trial

each of two counts of declaration in action

of issues raised by second count, and hence

for negligence stated enough to embrace

it was not error to permit plaintiff, after

cause of action under statute or at common

verdict, to amend by striking second count.

law according to what allegations were

Gorham v. New Haven, 79 Conn. 670, 66 A

jected as surplusage, held proper to require

505. Failure to require unavailable election

plaintiff to elect as to which cause of action

held harmless in any event. in view of the

he would regard as stated in each count.

verdict. Id. In action to recover damages for

Glacomma v. New York etc., R. Co. \[Mass.\]

false representations in land deal, and also

$1.NE 899. Where one count of a declaration

by failure of defendant to perform alleged

asks damages for conversion of costs and

oral contract in settlement of wrongs pre-

another for the conversion of the proceeds

viously alleged, held not error to permit

of the sale of the outs, plaintiff should not

plaintiff to elect to proceed upon theory of

be required to elect. Huenl V. Freehill, 125

context of settlement. Schamper v. Ullrich,

III. App. 345. In action in tort against

131 Wits. 524, 111 NWV 691.

chatted mortgages for injuring property of

34. See Former Adjolication, 5 C. L. 142.

plaintiffs in removing mortgaged property

35. Prayer is not part of cause of action

from premises and taking property not cov-

and does not determine the nature or extent

ered by mortgage, held power to refuse to

of relief to which plaintiff is entitled, and

require plaintiff to elect between count in

problem which otherwise states cause of

trover and count in trepsage for forfeble

action is not demurrable because it seeks

entry, since if plaintiffs proved that some

to recover more or different relief than that

of goods taken were theirs, and failed to

which plaintiff is entitled. Updepraft v.

prove that entry was unlawful, count in

Lucas \[Kan.\] 83 F 630. If facts stated en-

trover was necessary, though could recover

title plaintiff to any relief, general demurrer

for conversion of such goods under count

will not lie though he is not entitled to

in trepsage if proved that entry was un-

relief demanded by prayer. Donovan v. Mc-

lawful. Kennedy v. Hoyt \[Mass he will be granted such relief as the facts alleged and proved entitle him, regardless of that demanded.26

**SS 3**. \_The plea or answer.\_See * C. L. 1381--Matters relating to set-off and counterclaim,37 affidavits of defense,38 and the necessity of pleading under oath,38 are treated in separate articles.

\_General principles.\_See * C. L. 1381--The codes generally provide that the answer shall consist of a concise statement of the facts constituting defendant's ground of defense,40 or that it shall contain a denial of each allegation of the complaint and a statement of any new matter constituting a defense or counterclaim,41 and permit defendant to set up as many defenses or counterclaims as he may have.42 Whether the answer sets up more than one defense,43 and whether it sets up an affirmative defense or merely denies the allegations of the complaint,44 are questions of construction. The plea or answer must be responsive to the allegations of the complaint45 and should not be evasive or ambiguous.46 Except where permitted by the code,47

when it should have been legal. Kingston * SEE 1030. Aniswer in action on contract v. Walters \[N. M.\] 93 P 700. * 26. For full discussion of this question, see: Judgments, 10 C. L. 467. * S7. See Set-off and Counterclaim, 8 C. L. * S8. See aHMavity of Merits of Claim or Defense, 9 C. L. 26. * S9. See Verification, 8 C. L. 2255. * S101, par. 1277, defense of contributory negligence must be specially pleaded to be available, at least unless it appears from plaintiff's case. De Amado v. Friedman \[Arli\] 89 S 583. * S104. Under Rey, St. 189, $ 604, held that, where defendant did not plead champerty, he could not show as defense that contract used on washamperous. Kelerer v. Henderson, 203 Mo. 498, 101 SVV 1083. In action to recover for extra work done under construction contract, where complaint showed that plaintiff did work in endeavor to carry out contract and alleged that plaintiff had no knowledge or reason to believe that work was different from that required by contract, held that defendant could not plead estopel based on such knowledge, since it would neither be a denial or new matter constituting a defense within meaning of Burns' Ann. St. 1901, $ 250. Cleveland, etc., R. Co. v. Moore \[Int.\] 82 NEE 52. * S105. * S106. * S107. * S108. * S109. * S110. * S111. * S112. * S113. * S114. * S115. * S116. * S117. * S118. * S119. * S120. * S121. * S122. * S123. * S124. * S125. * S126. * S127. * S128. * S129. * S128. * S129. * S130. * S131. * S132. * S133. * S134. * S135. * S136. * S137. * S138. * S139. * S139. * S140. * S141. * S142. * S143. * S144. * S145. * S146. * S147. * S148. * S149. * S150. * S151. * S152. * S153. * S154. * S155. * S156. * S157. * S158. * S159. * S160. * S161. * S162. * S163. * S164. * S165. * S166. * S167. * S168. * S169. * S170. * S171. * S172. * S173. * S174. * S175. * S176. * S177. * S178. * S179. * S180. * S181. * S182. * S183. * S184. * S185. * S186. * S187. * S188. * S188. * S189. * S190. * S191. * S192. * S193. * S194. * S195. * S196. * S197. * S198. * S199. * S199. * S199. * S198. * S199. * S190. * S199. * S190. * S191. * S191. * S192. * S193. * S194. * S195. * S196. * S197. * S198. * S19 inconsistent defenses or pleas cannot be set up in the same answer.48 There is a conflict of authority as to whether such a course is permissible under the code provision authorizing defendant to set up as many defenses as he may have,49 and as to whether such provision authorizes the pleading of matter in abatement and in bar.50 Even where the latter course is permitted, the same defense may not be pleaded in abatement and in bar, and where that is done the plea in abatement is a nullity.51 Inconsistent defenses, when permitted, must be pleaded in separate paragraphs.52 A plea to the merits is not to be deemed waived or withdrawn by subsequently filing a plea in abatement.53

as qualified by admissions elsewhere in ans-

party to trade without defendant's knowl-

A.J 152 F 887. In action on school bonds,

where answer contained general denial, but

\[Mo. App.\] 106 SWV 111. In action to re-

elsewhere admitted genuinness and execu-

over compensation for services, general

tion of bonds, held that plaintiff was not re-

\[Or.\] 91 F 459.

\[Or.\] 94. Under Code Civ. Proc. $ 441, defendant

a waived, an estopel, or matter to avoid,

will be treated as admitted, though answer

\[obs\] those are inconsistent with each

\[Nob.\] 113 NWV 138.

\[Obs.\] 113 NWV 139.

\[Obs.\] 114 SWV 139.

\[Obs.\] 115 SWV 139.

\[Obs.\] 116 SWV 139.

\[Obs.\] 117 SWV 139.

\[Obs.\] 118 SWV 139.

\[Obs.\] 119 SWV 139.

Each separate defense must be complete in itself," except that matters alleged in other defenses may ordinarily be incorporated therein by reference.\[58\] Defendant may, however, in one paragraph, deny the allegations of all the paragraphs of plaintiff's pleading.\[59\] A plea or defense,professing to answer the entire declaration, but which fails to do so, is bad." Facts not alleged as a partial defense will be deemed to have been intended as a complete defense.\[58\] Separate defenses are sometimes required to be separately stated and numbered."

Pleas must not be double.\[60\] Pleas reiterating and repeating defenses which have already been adjudged against the defendant should not be allowed to be filed, and should be stricken if filed without leave.\[61\] In states where the distinction between actions at law and suits in equity is preserved, pleas on equitable grounds to a common-law action, which set up only legal defenses, are bad.\[62\] A plea which merely tenders an issue of law is bad.\[63\]

Pleas in abatement are not favored and will be strictly construed and not aided in construction by any intendments.\[64\] With them correctness of form is a matter of substance, and any defect of form is fatal.\[65\] They should not only aver fully what is necessary to be answered, but should anticipate and exclude all such supposable matter as would, if alleged on the opposite side, defeat the plea.\[66\] Such a plea must ordinarily give defendant a better writ," but this rule does not apply to a plea to the

54. Walsh v. Lispenard Reality Co., 55 "for a distinct defense and as a counter-Misc. 400, 106 NYS 570. Must contain all that ls necessary to answer whole cause of relief, held that he should not have been action or that part of it which it purports and counterclaim, it appearing that he intends no reference in terms or by necessary plaintff's recovery, and no duplicity being apparent. Letbowitz v. Utopia Land Co., Div. 168, 104 NYS 1099; Biedler v. Malcolm, 105 NYS 642.

01. Allegation in separate defenses that defendant "realleges all that he has herein-before alleged" held to incorporate into said defenses affirmative defenses therefore allegated. Stemmerman v. Kelly, 122 App. Div. 669, 107 NYS 379.

01. Hicka v. Hamilton (Ga. App.) 59 SE 831.

01. Lee v. Follensby \[Vt.\] 67 A 197. De-murre to plea in action for goods sold on ground that it did not answer certain count of complaint held properly overruied. McMAllister-Coman Co. v. Matthews (Ala.) 43 8 747.

01. Where facts which, if stated as partial defense, would have been relevant and proper for that purpose, were not so stated, held that they would be deemed intended for complete defense and therefore demur-rable for insufficiency. W. T. Hanson Co. v. Collier, 104 NYS 787. Separate defense not pleaded as partial defense or in mitigation of damages must be regarded as pleaded as complete defense. Thistle v. Jones, 128 App. Div. 40, 107 NYS 840.

01. Paragraph of answer held to state but single defense of limitations, so that order directing separate stating and numbering was improper. Ebling Brew, Co., V. Adler, 103 NYS 93. Where answer in suit to fore-close mortgage denied assignment of mort-gage to plaintiff and also alleged new matter by way of defense, held that denial of motion to separately state and number was error, Code CIV. Proc. **53** 500, 507. Stern v. Marcuse, 119 App. Div. 478, 103 NYS 1026. Where defendant pleaded certain matter * 10 Cur. Law. PLEADING SS 3. 1201

jurisdiction showing a condition of facts under which no court of the state has jurisdiction." Matter in abatement cannot be considered when pleaded in bar." Matter in abatement concluding in bar must be regarded as pleaded in bar." Pleas in abatement may ordinarily be determined though a party defendant has not yet been served." The highest degree of certainty is required in pleas to the jurisdiction," and they must negative every fact from which jurisdiction may be presumed." Such a plea can derive no help from the writ or declaration unless referred to in such a way as to make it a part of the plea." In Illinois an objection to the sufficiency of the service of summons on defendant corporation, when founded on extrinsic facts, may be taken by a plea to the jurisdiction in the nature of a plea in abatement, which need not be verified, nor give a better writ, nor conform in its commencement and conclusion to the rules applicable to pleas in abatement."

In pleas puis darrein continuance, after the cause has been continued, great certainty is required, and it is not sufficient to say generally that after the last continuance such a thing happened, but the day of continuance must be alleged where the matter of defense arose." Such a plea waives all former pleadings, and, if it is adjudged bad on demurrer, the judgment goes in chief, unless the court allows a re-pleader, on terms, which it may do." It does not, however, admit the truthfulness of an affidavit for a capias ad respondendum."

_Denials and traverses."_--Argumentative denials are insufficient." Denials on information and belief are generally permitted by the codes," except as to matters presumptively within defendant's knowledge," or matters of public record to which

Oppenheimer & Co. v. Elfant \[V. Va.\] 59

SE 892.

- 68. Rule that plea must show more proper or suffleent jurisdiction in some other court of state wherein application is brought. Dea-

relick's Adm'r v. State Life Ins, Co. \[Va.\] 59

- 69. That action was prematurely brought. Clayton v. Dinwoody \[Utah\] 89 P 723. Dea-
- 68. Place that plaintiff, a foreign corporation, has claim. Dunley v. Fenton \[V.\] 68 A 651.
- 68. Where defendant has no information could be served, as required by statute, held strictly matter in abstatement and not open to consideration when pleaded in bar. Russia
- 70. Its character must be determined from its conclusion or prayer, and not from its subject-matter. Contract held pleaded in bar." Matter in abatement concluding in bar must be regarded as pleaded in bar." Pleas in abatement may ordinarily be determined though a party defendant has not yet been served." The highest degree of certainty is required in pleas to the jurisdiction," and they must negative every fact from which jurisdiction may be presumed." Such a plea can derive no help from the writ or declaration unless referred to in such a way as to make it a part of the plea." In Illinois an objection to the sufficiency of the service of summons on defendant corporation, when founded on extrinsic facts, may be taken by a plea to the jurisdiction in the nature of a plea in abatement, which need not be verified, nor give a better writ, nor conform in its commencement and conclusion to the rules applicable to pleas in abatement."

In pleas puis darrein continuance, after the cause has been continued, great certainty is required, and it is not sufficient to say generally that after the last continuance such a thing happened, but the day of continuance must be alleged where the matter of defense arose." Such a plea waives all former pleadings, and, if it is adjudged bad on demurrer, the judgment goes in chief, unless the court allows a re-pleader, on terms, which it may do." It does not, however, admit the truthfulness of an affidavit for a capias ad respondendum."

_Denials and traverses."_--Argumentative denials are insufficient." Denials on information and belief are generally permitted by the codes," except as to matters presumptively within defendant's knowledge," or matters of public record to which

Oppenheimer & Co. v. Elfant \[V. Va.\] 59

- 78. Van Norman v. Young, 228 Ill. 425, 81 NE 1060, ag. 129 Ill. App. 542.

- 79. See 8 C. L. 1838. See. also. 14, post.

- 80. Inferential or argumentative denial in of state wherein application is brought. Dea-

- 81. Inferential or argumentative denial in pleas to jurisdiction. United States v. U. S.

- 82. Inferential & Guarantative C. \[Va.\] 59

- 83. Unified States Causality Co. v. Jamieson,

- 84. Unified States Causality Co. v. Jamieson,

- 85. Unified States Causality Co. v. Jamieson,

- 86. Unified States Causality Co. v. Jamieson,

- 87. Unified States V. U. S. Fidelity & Guarantative denial,

- 88. Unified States V. U. S. Fidelity & Guarantative Co. \[Vt.\] 66 A 809. Must negative every ground of jurisdiction enumerated in statute. Deaitrick's Adm'r v. State Life Ins.

- 89. Unified States V. U. S. Fidelity & Guarantative denial,

- 80. Unified States V. U. S. Fidelity & Guarantative Co. \[Vt.\] 66 A 809. Must negative every ground of jurisdiction enumerated in statute. Deaitrick's Adm'r v. State Life Ins.

- 1203

PLEADING SS 4.10 Cur. Law. he has access.\[83\] Where permitted, the prescribed form must be followed in all essential particulars.\[84\] A general denial should proceed rather than follow matters in confession and avoidance.\[85\]

\_Confession and avoidance.\[See & C. L. 1884--A plea of confession and avoidance must at least give color to the matter to which it is applied.\[86\] A pleading which attempts to confess and avoid, but does neither, is bad on demurrer.\[87\] A general denial may not be pleaded by iteration or otherwise in a separate defense which is a plea by confession and avoidance.\[88\] A specific allegation of the complaint may, however, be denied in a separate answer, either directly or by repeating a preceding paragraph of the answer, where such denial is necessary to make the separate defense complete.\[89\]

SS 4. \_Replication or reply and subsequent pleadings.\[See & C. L. 1884--The code provisions as to the necessity for a reply vary in the different jurisdictions. In some states no reply is necessary.\[90\] In others a reply is required only when the answer contains a counterclaim,\[91\] or new matter constituting a defense or counterclaim,\[92\] or new and affirmative matter,\[93\] or when the plaintiff wishes to set up matter by way in case of intentional ignorance on his part. 89. On motion to strike from paragraph when it is his duty to know or learn facts, and they are at hand and accessible, as being and incorporating therein previous in case of a public record. Rochkind v. Perlman, 108 NYS 224. 83. Denial of knowledge or information whether it is prejudical to plaintiff. Benulfment to form a belief that plaintiff purchased certain trees from a certain person and received from him deed, which was duly recorded, held insulinClient under City. Code Prac. $ 113, subsec. 7, since inspection of record would have informed him of facts. Johnson v. Asher \[Key\]. 105 SVP 948. 84. Denial of "any knowledge or information sufficient to form a belief as to the truth or falsify" or certain allegations of complaint helpful sufficient in form under Code. Scully v. Wolff, 56 Misc. 468, 107 NYS 181. Denials held insulinClient in form under Code City. Proc. $ 500. Rochkind v. Perlman, 108 NYS 224. Allegation that defendant "denies knowledge or information sufficient to form a belief as to the truth or falsify" or certain allegations of complaint or information in general. Jurgens v. Wichmann, 108 NYS 881. 85. Limitations, Sterling v. De Laune \[Tex. City. App.\] 20 Tex. Ct. Rep. 198, 105 SVV 1169. 86. Must contain at least an implied admission that allegations to be avoided are true, and hence plea in effect denying existence of claim it oppose is defective. Dunley v. Fenton \[VtL\] 68 A 651. Allegation of repli- cation that plaintiff made release pleaded by defendant held insulinClient to give color to view of allegations that it never became effective, contract as set forth being entirely inconsistent with existence of release as claimed by defendant. Id. 87. Sefton v. Mitchell, 120 III. App. 256. 88. Benjamin v. White, 105 NYS 991. Neither general nor special denial may be inserted in affirmative defense. Outcault v. Bonheur, 120 App. Div. 168, 104 NYS 1099. 87. Formal plea of general issue contained in plea of estoppel may be stricken as un-necessary where there is another plea of estoppel may be stricken as un- "causal issue. Wefeel v. Stillman \[Ala\]. 44 S=20. 89. On motion to strike from paragraph when it is his duty to know or learn facts, and they are at hand and accessible, as being and incorporating therein previous in case of a public record. Rochkind v. Perlman, 108 NYS 224. 83. Denial of knowledge or information whether it is prejudical to plaintiff. Benulfment to form a belief that plaintiff purchased certain trees from a certain person and received from him deed, which was duly recorded, held insulinClient under City. Code Prac. $ 113, subsec. 7, since inspection of record would have informed him of facts. Johnson v. Asher \[Key\]. 105 SVP 948. 84. Denial of "any knowledge or information sufficient to form a belief as to the truth or falsify" or certain allegations of complaint or information in general. Jurgens v. Wichmann, 108 NYS 881. 85. Limitations, Sterling v. De Laune \[Tex. City. App.\] 20 Tex. Ct. Rep. 198, 105 SVV 1169. 86. Must contain at least an implied admission that allegations to be avoided are true, and hence plea in effect denying existence of claim it oppose is defective. Dunley v. Fenton \[VtL\] 68 A 651. Allegation of repli- cation that plaintiff made release pleaded by defendant held insulinClient to give color to view of allegations that it never became effective, contract as set forth being entirely inconsistent with existence of release as claimed by defendant. Id. 87. Sefton v. Mitchell, 120 III. App. 256. 88. Benjamin v. White, 105 NYS 991. Neither general nor special denial may be inserted in affirmative defense. Outcault v. Bonheur, 120 App. Div. 168, 104 NYS 1099. 87. Formal plea of general issue contained in plea of estoppel may be stricken as un 10 Cur. Law. PLEADING SS 4. 1203 of confession and avoidance.*4 In others where the answer contains new matter by way of avoidance, the right to order a reply is discretionary with the court.*5 The reply must be responsive and defensive to the new matter pleaded in the answer.*6 It must not be inconsistent with the allegations of the complaint," nor can it, as a general rule, be used as a ground for affirmative relief.** Denials on information and belief are permissible only when authorized by the code.*\*

In common-law states, a special replication or new assignment is necessary when it is desired to avoid the effect of new matter of defense set up in a plea.1 The design of a special traverse as distinguished from a common traverse is to explain or qualify the denial.2 When the denial under the absque hoc in a plea is sufficient, no issue of fact can be formed on the inducement.\* A traverse upon a traverse is not ordinarily permissible.4

94. Under Code, SS 576, in action on implied contract for services, where defendant pleaded that services were rendered as member of defendant's family, held that no reply was necessary. Webster v. Armstrong \[Lowa\] 113 NVV 549. #5. Code, SS 174. Kennedy v. Hill \[S. C.\] 60 SB 689. #6. Hailner v. Union Transfer Co. \[Neb.\] 112 NVV 384. Demurrers to certain replications held properly overruled, as replications simply presented general issues to plea to which they were addressed. Southern R. Co. v. Hobbs \[Ala.1 43 SS 844. Motion to strike allegations of reply as to conditions and circumstances under which contract sued on was made held properly overruled, they being addressed to allegations of ignorance and fraud in answer. Old Setters' Inv. Co. v. Marshall Vinegar, Pickle & soap Co. \[Iowa\] 113 NVV 326. #7. Departure in pleading takes place when, in a subsequent pleading, party de-serts ground taken in his last antecedent pleading, and resorts to another. Erickson v. McLennann \[Vaha.\] 91 P 249. To set out part of cause of action in complaint and balance in reply is not a departure. Id. Reply in action on contract held not departure. Id. #1. Allegations of reply held in nature of plea of matter in estoppel of defendant's plea of resojtacats, and hence permissible under Civ. Code Prac. SS 101. Dodd v. Pittsburg, etc., R. Co. \[Ky.\] 106 SWV 787. Reply in action to recover personally to which plaintiff claim, ed to be entitled under chatted mortage held not inconsistent with complaint, it merely amplifying allegations of complaint as to title and right to possession alleged by showing how they were acquired. J. F. White Co. v. Carroll \[N. C.\] 59 SE 678. In suit to enjoin cutting of further, defendant pleaded in justification certain contracts according to their legal effect. Held that pleading terms of said contracts in reply did not constitute departure. Roots v. Boring Junction Lump Co. \[Or.\] 92 P 811. Reply held departure. Hailner v. Union Transfer Co. \[Neb.\] 112 NVV 334. Where complaint in action to quiet title alleged that defendant had no estate, right, title, or interest what: ever in premises or any part thereof, held that replication alleging that he had title, but that same was held in trust for plaintiff, and asking to have same canceled, but not conveyed to plaintiff, was such departure that no evidence should have been received.

01. Under Code, SS 576, in action on implied contract for services, where defendant pleaded that services were rendered as member of defendant's family, held that no reply was necessary. Webster v. Armstrong \[Lowa\] 113 NVV 549. #5. Code, SS 174. Kennedy v. Hill \[S. C.\] 60 SB 689. #6. Hailner v. Union Transfer Co. \[Neb.\] 112 NVV 384. Demurrers to certain replications held properly overruled, as replications simply presented general issues to plea to which they were addressed. Southern R. Co. v. Hobbs \[Ala.1 43 SS 844. Motion to strike allegations of reply as to conditions and circumstances under which contract sued on was made held properly overruled, they being addressed to allegations of ignorance and fraud in answer. Old Setters' Inv. Co. v. Marshall Vinegar, Pickle & soap Co. \[Iowa\] 113 NVV 326. #7. Departure in pleading takes place when, in a subsequent pleading, party de-serts ground taken in his last antecedent pleading, and resorts to another. Erickson v. McLennann \[Vaha.\] 91 P 249. To set out part of cause of action in complaint and balance in reply is not a departure. Id. Reply in action on contract held not departure. Id. #1. Allegations of reply held in nature of plea of matter in estoppel of defendant's plea of resojtacats, and hence permissible under Civ. Code Prac. SS 101. Dodd v. Pittsburg, etc., R. Co. \[Ky.\] 106 SWV 787. Reply in action to recover personally to which plaintiff claim, ed to be entitled under chatted mortage held not inconsistent with complaint, it merely amplifying allegations of complaint as to title and right to possession alleged by showing how they were acquired. J. F. White Co. v. Carroll \[N. C.\] 59 SE 678. In suit to enjoin cutting of further, defendant pleaded in justification certain contracts according to their legal effect. Held that pleading terms of said contracts in reply did not constitute departure. Roots v. Boring Junction Lump Co. \[Or.\] 92 P 811. Reply held
    Additional pleadings,"Ses & C. L. 1986--Rejoinders must be responsive to the replications to which they are addressed."

SS 5. Demurrer. General rules.See & C. L. 1986--A demurrer reaches only such defects as are apparent on the face of a pleading," and must be considered as directed against the pleading as it stands at the time the demurrer is interposed."

A demurrer cannot go to the fragmentary part of a pleading, but must go to the whole of the count, plea, or defense to which it is addressed." A demurrer for want of facts will be overruled if the complaint warrants the granting of any relief " or if

- 5. Rejoinder held properly stricken, where matter therein set up was irrelevant, and in some defense for ambiguity, etc., held prop-no sense an answer to replication to which it was addressed. Code 1896, SS 3286. Dalton v. Bunn \[Ala.\] 44 & 625.

- 6. As to what defects and defenses may be raised by demurrer, see SS 10, post. Illinois, etc., R. Co. v. Minninha, 129 Ill. App. 432. Jeffreys v. Fraternal Banker's Reserve Soc. \[Iowa\] 112 NWV 786. Demurrer on ground of limitations can be sustained only when it affirmatively appears from complaint that plaintiff's cause of action is barred. Donabev v. Stockton Gas & Elec. Co. \[Cal. App.\] 93 P 195. Defense of res adjudication, founded on averments of facts not appearing in declaration or record of the case, cannot be made by demurrer. Fay v. Boston & W. St. R. Co. \[Mass.\] 82 NE 7. Complaint held not demurrable on ground that action was pre-matruely brought where there was nothing in complaint itself showing when it was brought. Belanewski v. Gallaher, 105 NYS 77. To sustain demurrer on ground that complaint fails to state facts sufficient to constitute cause of action, court cannot look to date of summons or verification to determine whether action was prematurely brought. Id. Extraneous or collateral facts stated in demurrer cannot be considered. Wood v. Kincaid, 144 N. C. 393, 57 SE 4. Submits to court legal effect of what appears on face of preceding record. Lee v. Follens-by \[Vt.\] 67 A 197. Defendant in trespas quarce clausum pleaded des with profert. Plaintiff craved oyer and having heard them read, demurred without reciting deeds, Heid that deeds were not within scope of de-murrer and points depending on their contents would not be considered. Id. Where bill in Federal court alleges that matter in dispute exceeds jurisdictional amount, and there is nothing in bill to contradict such allegation, demurrer for want of jurisdiction because requisite amount is not involved will be overruled, reasonableness of allegations as to amount not being open to consideration. North American Cold Storage Co. v. Chicago, 151 F 120.

- 7. Pleading demurred to cannot be subsequently modified on motion to strike and the demurrer then apply to the face of such modified pleading. Gooding v. Doyle \[WVs.\] 116 NWV 114. Demurrer cannot be considered as directed against complaint as latter is amended by order of court at time of and as part of the order overruling the demurrer. City of Columbus v. Fountain Prairie \[WVs.\] 115 NWV 111. Where demurrer to original petlion was overruled, held that it could not be renewed at subsequent term after amendment. Missouri State Life Ins. Co. v. Lovelace \[Ga. App.\] 58 SE 93.

- 10 Cur. Law. PLEADING SS 5.

- it is good on any theory, \[10\] as will a demurrer addressed to a complaint, \[11\] answer, or plea, \[12\] as a whole, if any of the counts or defenses set up therein are good.

- \_Form, requisites, and sufficiency.\_See s C. L. 1857--A frivolous demurrer is one which raises no serious issue of law. \[13\] A speaking demurrer is bad. \[14\] Where the

- v. Evangelical Creed Congregation \[Wis.\]

murrer unless it is good as to whole com-113 NPV 66.

- 10. Complaint is good as against general

Speciality Co. v. Seneca Button Co., 54 Misc. demurrer If it states cause of action either 152, 103 NYS 82. Demurrer that plaintiff

at law or in equity. Swan. Y. Talbot \[Cal.\]

is not authorized or has not legal capacity

94 P 238. Test as to whether petition can

resist general demurrer is whether defend- or has not be a cause of action is stated,

sent could admit all that is alleged and escape

12. If one of separate defenses therein

liability. Douglas, etc., R. Co. v. Swindle, 2

alleged is good. Bispise Co. v. Smith \[Cal.\]

Ga. App. 560, 95 SB 600. General demurrer

App. 93 P 1083. Though allegation of

to petition seeking equitable relief should

fraud and mistake in answer were defective,

be overvuled if it contains good matter for

held that defect could not be reached by gen-equity to deal with. Dykes v. Jones, 129

eral demurrer where other defenses were

Ga. 99, 58 SB 645. Where complaint states

suffiently alleged. In We Warner's Estate

facts sufficient to constitute cause of action,

\[Cal. App.\] 92 P 181. Where answer contains

mere fact that it is difficult to tell which of

denial of material, allegations of complaint,

two theories is true one will not render it

and also affirmative allegations which do

bad on demirrer for want of facts if same

not constitute defense, latter must be reach-is so framed that either theory is consistent

ed by motion, and not by demurrer to whole

therewith. Collite Stone Co. v. Ridge \[Ind.\]

answer. Edward Malley Co. v. Lononer

83 NS 246, rvs. \[Ind. App.\] 80 NE 441. Com

\[Colo.\] 93 P 488. When plea is good in part

blaint will be upheld if states facts sum-

and had in part, proper remedy is motion to

cient to constitute good cause of action of

strike objectionable features, and not demurrer

any kind whatsoever. Dresser v. Mercantile

cr. Grifing Brox, Co. v. Winfield, 53 Fla.

Trust Co., 108 NYS 577. Where complaint

589, 43 SB 687. Is error to strike, on oral

set up good cause of action in contract,

motion or general demurrer, an entire plea

held immaterial that plaintiff admitted oral-

which, though defective in several para-

ly that he intended to plead in tort. Id.

graphs, contains one paragraph which

Where averments of complaint are all con-

sistant with the demand for damages with

Kamition (Ga. App.) 69 SB 331. While it

out resort to equity to fix amount, it is not

error to strike entire plea when any por-

demurrable though equitable relief is also

then theref is good, answer to petition filed

sought. Kelsey v. Walls, 55 Misc. 382, 106

in orderly and distinct parsgraphs may be

NYS 515. Clear statement of facts upon

stirken on demurrer when denials are en-

which liability is predicated, followed by

tirey inconsistent with admissions made in

general prayer for relief, will, If facts show

cause of action, be good as against general

vertising Co., 2 Ga. App. 107, 58 SB 320.

demurrer, even if suit is brought on wrong

Where answer to cross complaint contained

theory. Thompson, V. Mills (Tex. City. App.)

general denial, held that general demurrer

18 Tex. Ct. Rep. 139, 101 SW 560. Demurrer

to petition held properly overvended, though

ruled regardless of whether special defenses

on facts pleaded plaintiff was entitled to

set up therein were good or not. Sherman

damages for breach of contract, whereas he

v. Goodwin (Aritz.) 89 P 517.

prayed for sum of money due and unpaid. Id.

18. Mydugment overvuling demurrer to com-

**11.** Where contains one good count. Mc-

plain was affirmed. Answer was served, and

Dougald v. Bass, 53 Pla. 142, 43 S 778;

thereafter supplemental complaint was serv-

Alvey v. Hartwig \[Md.\] 67 A 132. If any

ed, to which defendant demurrer. Heid that

part of it presents cause of action. Kamp-

motion by plaintiff for judgment on latter

mann v. Rothwell \[Tex. City. App.\] 1 statute prescribes the grounds of demurrer, no others are available.\[18\] The demurrer must clearly indicate the part of the pleading attacked.\[16\] In some states the precise defect relied on must be pointed out,\[17\] and only the grounds so specified may be considered.\[18\] In others this is true as to special demurrers,\[19\] but does not apply to general demurrers assailing substantial imperfections.\[20\] A joint demurrer interposed by several parties will be overruled if the pleading attacked is good as to any of them,\[21\] but several demurrers test the sufficiency of the pleading as to each of the parties interposing them.\[22\]

on statement or recital of alleged rules and | than special one. Pfeiffer v. Wilke \[Tex. regulations of defendant society, which were embodied in demurrer itself, held bad. Jeff. or omission of averment in regard to actual fries v. Fraternal Bankers' Reserve Soc. \[Iowa\] 112 NW786. Demurrer averring any fact not stated in pleading attacked. Vood v. Kincaid, 144 N. C. 393, 57 SE 4.
15\. Demurrer to paragraph of answer on ground that same was not sufficient to constitute a sufficient cause of defense to plain-tiff's cause of action held bad under Burns' Ann. St. 1901, SS 349, providing that where facts stated in answer are not sufficient to constitute cause of defense plaintiff may denurre to it under rules prescribed for demurrer to complaint, since it did not present any of the six causes of demurrer enumerated in Code. Oglebay v. Tippecanoe Loan & Trust Co. \[Ind. App.\] SS 3E 494. Defects for which demurrer will lie are only those named in Code. V. Proc. # 680, and no others can be reached thereby. Donovan v. McDevitt \[Monti\] 82 p 49. In action on note, cross complaint setting up facts showing that, as between defendants, those answer-ing were entitled to demand that a code-fendant pay said note, and praying that, if plaintiff obtained judgment, it should provide that execution should first issue against said codefendant, and that, if answering defendants were compelled to pay, they should be compelled to pay, held to demand affirma-tive relief against plaintiff within meaning of St. 1889, SS 2656a, providing that party against whom affirmative relief is demanded in cross-complaint may denurreto. First Nat. Ek. v. Frank, 131 Vis. 416, 111 NW7 526. Under St. 1898, SS 2658, giving plaintiff right to demur to answer of any defendant, or any separate defense pleaded therein, he may challenge the sufficiency of a cross complaint by denurrer regardless of SS 2656a. Id. 16. Demurrer "to the defense and counterre claim consisting of new matter" held sufficently explicit. Code Civ. Proc. # 494. Outacult v. Bonheur, 120 App. Div. 168, 104 NY8 1099.
17\. Ground of demurrer held bad because general. Code 1886.# 3303. Francis v. Sandin \[Ala.\] 43 SS 829. Demurrer to complaint on ground that alleged employee was not alleged to have been proximate "result" of plaintiff's injury held wanting in intelligent merit, and, properly overruled. Birmingham R., L. & P. Co. v. Lee \[Ala.\] 45 SS 292. Grounds of demurrer that several causes of action were Impropriy joined, and that complaint was ambiguous, unintelligible, and uncertain, disregarded for falling to specify grounds of objection. Milli's Ann. Code, SS 51. Lacey y. Bentley, 39 Colo. 449, SS 59 F 783. Exception to petition in answer, each of them separately demurre to the com-courts, to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit", to be regarded as general rather "definit" 10 Cur. Law. PLEADING SS 5. 1207

\_Issues raised.\_Bee & C. L. 1888--A demurrer raises an issue of law \[23\] which must be determined upon the words actually employed in the pleading demurred to.\[24\] It admits the truth of all material allegations of fact which are well pleaded,\[25\] together with such inferences as may be reasonably drawn from them,\[26\] but does not admit conclusions of law \[27\] or facts pladed by way of recital.\[28\]

As a general rule a demurrer, whenever and by whmsoever interposed, reaches back through the whole record, and condemns the first pleading defective in substance,\[29\] but this rule has been held not to apply to a demurrer to a counterclaim.\[30\]

v. Babcock \[IndJ 82 NE 458. Demurrer led\] R. Co, v. Douglas County \[W!s.\] 114 NPV-showing upon its face that each of the de- 511. Verified complaint in action by water fendants for himself demurred separately company to restrain enforcement of rates and severally to each paragraph of complaint

fixed by county commissioners contained for reason that neither paragraph stated

coples of orders fixing and refusing to modi-facts sufficient to constitute cause of action

by said rates set out in haee verba. Demur-held sufficient in form to challenge suffm-

rer to complaint was overtled and defendancy of each paragraph as to each of the 4 and elected to stand by it. Heid that defendants demurring. Southern R. Co, v.

Editorial \[IndJ 82 NE 1061. Demurrer led\] not proven. Montezuma County Com'rs v.

to be treated as confined to one cause of

Monterema Water & Land Co., 39 Colo. 186, action against two of defendants only, so

89 P 794.

that it was not error to sustain it where

26. Aven Springs Sanitatum Co. v. Weed,

action was prematurely brought as to them,

119 App. Div. 650, 104 NYS 68.

though complaint stated good cause of action

27. As to what allegations are conculun-against other defendant. Blackmore v.

sions, see I, an. People's Home Sav. Bk.

V. Stadtunier, 150 Col. 168 S 280; Aetna

28. Where plea in action against railroad

Life Ins. Co. v. North Star Min. Co., 107 NYS

for killing stock alleged that plaintiff's neglig-

140.

gence proximately contributed to his dam-

28. As to what allegations are rectails, see ages, and set out facts reflect on as constiti-

1, ante. Chicago, etc., R. Co. v. Barker

tting such negligence, held that sufficiency

1,

of such facts to constitute contributory neg-

29. United States Fidelity & Guaranty Co.

ligene was on demurrer to plea, question of

v. Paxton \[KY. App.\] 168 SW 41. Opens up

law for court. Southern R. Co. v. Dickens

\[Ala.\] 45 S 215. Submits to court legal effect

be rendered against party who committed

of what appears on face of preceding record.

Lee v. Volinsky \[V! 47 A 197.

24. Where contract on which counter-

are sufficient for a bad reply. People v.

claim was based was not alleged otherwise

Centralized Union Tel. Co., 232 IL. 260, 83 NE

than by reiteration of each and every alle-

829. Where a general and special demurrer

gation contained in certain paragraphs "or

was intended to all of several replications

this amended complaint," and compliant was

to two pleas, held that demurrer was prop-

not an amended one, and paragraphs refer-

erly sustained if there was one good plea

red to did not set forth contract, held that

and no good replication. Id. Where bill for

demurrer to answer would be sustained with

junction showed adequate remedy at law,

leave to amend on payment of costs, though

held that it should have been dismissed on

defendant doubtless intended to refer to

demurrer to answer. Lafayette v. Hood

answer and not complaint. Aetna Life Ins.

\[Ind. T.\] 104 SW 553. Demurrer will not lie

Co. v. North Star Mines Co., 55 Misc., 402, 106

to insufficient defense unless complaint

NYS 645.

25. Smyrhe v. Inhabitants of New Provi-

dence Tp., 158 F 213; Atlantic Coast Line

That complaint does not state cause of ac-

R. Co. v. Crosby, 63 Fla. 400, 43 S 318; At-

Iantic Coast Line R. Co. v. Beasley \[Fla.\]

fense, and complaint will be dismissed under

48 S 761; Erays v. Rrays \[Ind. App.\] 82 N 870 NW

Brown v. Gorman \[Ind. T.\] 104 SW 1166;

Hurd, 108 NYS 410. Sufficiency of complaint

Jeffries v. Fraternal Bankers' Reserve Soc.

considered on demurrer to answer. Holland

\[Iovval 112 NW 786; Martin V. Smith, 31 X.\]

v. Grote, 107 NYS 667. Demurrer to reply
In Louisiana preemptory exceptions founded on law do not go into the merits, and may be filed at any stage previous to definitive judgment,\[91\] and where a defendant files an exception of no cause of action after default, and also files an answer, the exception should not be considered as an answer admitting the facts alleged in the petition for the purposes of a trial on the merits,\[82\]

_Hearing and decision on demurrer_.\[See * C. L. 1390--Ordinarily the court should rule on a general demurrer before proceeding to trial on the merits,\[83\] or at least before passing on the merits.\[34\] A party to whose pleading'a demurrer has been sustained should ordinarily be given an opportunity to amend.\[85\] After the signing of an order sustaining a demurrer to the entire declaration with no allowance of time to amend, it is too late to amend, though the order contains no formal words of dismissal.\[86\] The fact that a demurring party abides by his demurrer after it has been overruled does not preclude the amendment of the pleading to which it was directed.\[87\] Where plaintiff refuses to plead over after his demurrers to the answer are overruled, judgment is properly rendered for defendant if any one of the defenses demurred to is sufficient,\[88\] unless issues of fact remain to be tried.\[89\] As a general rule a party whose demurrer is overruled must withdraw the same before pleading

\[Vt.\] 68 A 651. Demurrer to part of answer |answer bill of complaint after two succes-held to entitle defendant to challenge validity of complaint. Moore Bros. Glass Co. v. Dervet Mfg. Co., 154 F 737. |argues case on final hearing and does not ask for further time until judgment against sufficiency of counterexample is to be deter-him is announced, and even then makes no effect of a bona dide metriotrous defense. Willins, Co. v. North Star Mines Co., 107 NYS 140. |laws v. Clyatt, 53 Fla. 987, 43 S 441. Where town, surmanced as codefendant by order of court, appeared and by demurrer raised prac-Lehmann, 118 La. 956, 43 S 632. |laws as that raised by demurrer of original defendant, held that plaintiff was not required to further amend com-Co. v. Lehmann, 118 La. 956, 43 S 632. |laws, which would bind town. Pinney v. petition before proceeding to hear evidence, after which it was overruled, held harmless though not commendable practice. Thompson v. Mills \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 139, 101 SVV 560.

10 Cur. Law. PLEADING SS 6. 1209 further.40 A judgment overruling a demurrer, while unreversed, is conclusive as to the legal sufficiency of the pleading demurred to,41 and a pleading to which a demurrer has been sustained is out of the record.42 The signing of an order sustaining a demurrer to the whole declaration interposed by one of several defendants puts an end to the case as to him.43 A judgment on demurrer should be rendered only in favor of the parties interposing it even though the pleading is insufficient as to co-parties not demurring.44 Any error in sustaining a demurrer to a paragraph of the complaint 45 or to a plea or defense 46 is harmless where the facts therein alleged are provable under other allegations of the pleading. Overruling a demurrer to a bad paragraph is reversible error unless it appears that the facts set forth therein that are competent to go in evidence at all may be proved under some other sufficient paragraph, and that the verdict or finding is based on the latter paragraph and not on the defective one.47

SS 6. \_Cross complaints and answers.\_See * C. L. 1891.-By statute in some states whenever a defendant seeks affirmative relief against any party affecting the property or transaction to which the action relates, he may, in addition to his answer, file a cross complaint demanding the same.48 The sufficiency of a cross complaint is to 40. Where plaintiff's demurrer to separate defense is overruled, they cannot amend unhass benefit of all matters relied upon therein 11 they have withdrawn their demurrer. Nachod v. Hindley, 118 App. Dlv. 658, 103 Union Fertilizer Co. v. Johnson \[Ala.\] 43 S NYS 801. Where plaintiff's demurrer to 75a, Derendant held not to have gotton ben-separate defense was overruled, and leave given them to amend, held that judgment only sustained under certain other pleas which went further. Southern R. Co. v. their demurrer. Id. 44 S 195. 47 Sullivan Mach. Co. v. Breeden \[Ind.\] answer, unless accepted to and reversed, concludes plaintiff as to legal sufficiency of an answer, and, if same goes to whole of plaintiffs demand and is fully supported by evidencing. Rev. St. 1887, & 4188. Bacon dence, complete defense is established. Kiser Co. v. McLean-Everrett & Co., 2 Ga., App. 360, 58 SE 489. 42 Where demurrer to the plea of statute of limitations is sustained and no leave is to be used to a consumer. Id. Under St. 1888, & 2656a, fact involving the statute of limitations. Gillmore v. Chicago, 224 Ill. 490, 79 NE 596, v.eve on im some manner at the contract, vrg. 125 Ill. App. 18. Where demurrer to place has been sustained, defendant need offer - to prevent it as the plea of * 1210 PLEADING SS 7. 10 Cur. Law.

be tested by the same rules of pleading as the complaint.\* No answer to a cross complaint is necessary where it merely sets up matters provable under the answer.\*

SS 7. Amendments.See & C. L. 1892.--Amendments are, as a rule, freely granted in furtherance of justice,51 the matter being largely committed to the discretion of the

49. In action to quiet title, cross com-plainant need not set forth evidence by

thereto name of plainit's counsel and alle-which he expects to prove his title. Bacon

vation that account was due and unpaid and v. Rice \[Idaho\] 93 P 511. Must state facts

that defendants were partnership composed

sufficient to entitle pleader to affirmative

of named individuals, Austin V. M. Ferr's

relief. 1d.

50. In suit for injunction to restrain execution of writ of possession, where socalled

ants to same plainit for commissioning

"cross bill" of defendants only set up matters provable under their plea of not guilty,

ring to same contract, but varying state-Taylor v. Wyard \[Tex. Civ. App.\] 19 Tex. Ct.

Rep. 441, 102 SWV 465.

51. Only limitation on right of plainit

action against carrier by passenger, amend-in civil action at law to amend complaint at

ment to petition claiming exemplary dam-any time before final submission of cause

ages in which it was in effect alleged that to jury is that there must not be an en-

act complained of amounted to wIllit mis-

true change of parties nor substitution or conduct, or that entire want of care which

introduction of an entirely new cause of

would raise presumption of conscious in-action. Townes v. Dallas Mfg. Co. \[Aia.\] 45

difference to consequences. Southern R. Co.

S 696. Should be allowed if declaration has

v. Jordan, 129 Ga. 665, 59 SE 802. To declar-

in it enough to amend by in respect to con-

ation alleging that contract, breach of

tents and nature of amendment offered,

which is wrong complained of, was made by

Boyce v. Day \[Ga. App.\] 59 SE 930. Court

defendant as agent, without more, by strlk-

should be liberal in allowing amendments,

ing word "agent" therefrom, such contract

where it appears that they are in food faith

being the individual undertaking of the

and that their allowance would serve the

makeer. Hearn v. Gower, 1 Ga. App. 265, 57

ends of justice. See 1887 4228. Dun

SE 916. In action the justice's court by ship-

bar v. Griffiths \[Idaho\] 93 P 654. Statute al-

lowing amendments should be literally con-

to transport goods, amendments to sum-

stured. Northwestern Hut. Life Ins. Co., v

mons amplifying statement of cause of

Richardson, 130 Ill. App. 205. Circuit court

action by setting out contract of carriage.

may permit such amendments as will do

Jenkins V. Seaboard Air Line R. Co. \[Ga.

substantial justice between parties. Toledo,

App.\] 59 SE 1120. Fotition stating cause of

etc., R. Co. v. Smith, 130 Ill. App. 11.

tion good as against general demurrer may be

Application for leave to amend should be

purged by amendment of general allegations

granted unless something has taken place

which do not of themselves set forth dif-

since service of original pleading which will

work to prejudice of adverse party if

to real cause declared on. Central of Georgia

amendment is allowed, or trial will be de-

R. Co. v., Inman, 129 Ga. 652, 59 SE 784. In

layed by reason of it. Washington Life Ins.

action by landlor to recover rent under

Co. v. Scott, 119 App. Dlv. 847, 104 XYS 898.

written lease, where defendant interposed

Party ought to be permitted to put his

general denial, held error to refuse to allow

plealdings in such shape as will enable him

him to amend by alleging also, by way of

to raise and have determined at trial every

confession and avoidance, subsequent oral

question affecting his interest involved in

agreement inconsistent with plainit's right

subject-matter of the litigation. Code Civ.

to recover, and excluding evidence to that

Proc. 8 723. Id. Under Code 1 914, only Ilim-

effect. Rees v. Storming \[Mim.\] 112 NWV 419.

flation on allowance of amendment before

In action against indorser of certificate of

trial is that they must be in furtherance of

deposit, amendment of complaint at trial

Justice, Kennedy v., Khil (S. C.) 60 SE 889.

by inserting in copy of certificate set forth

Exceptions to allowance overruled where defendant

fendant failed to satisfy court that they

cent. per annum, no interest after 6 months,"

were not in furtherance of justice. Id.

Power of court to allow amendments in

lowed under Minn. Gen. St. 1894, SS 5262, var-

furtherance of justice is very broad. Price

v. Grzyil \[Vis.\] 114 NWV 100. Rule that

ing. Derham V. Donohue \[C 10 Cur. Law. PLEADING SS 7. 1211

trial court,\[52\] who may take into consideration the probable utility of the amend-

swer, judgment shall not be more favorable

have been stricken out on motion will not to plaintiff than that demanded in com-

be disturbed unless abuse of discretion is plain, judgment rendered being proper un-

shown. Roots v. Boring Junction Lumber der original complaint since, as to second

Co. \[Or.\] 92 P 811. Fact that application mortgage, surplus took place of land.

was not supported by affluxit showing why Hookey v. Greenstein, 119 App. Dlv. 209, 104

manced reply should be allowed held not NYS 621. Refusal to allow amendment of

to show abuse of discretion in allowing it.

answer held error. Washington Life Ins.

Id. Discretion of trial court in granting Co. v. Scott, 119 App. Div. 847, 104 NYS 898.

Where' pleadings were oral so that defect

literally, so as to secure to defendant his

of parties could not be taken advantage of

statutory right to assert as many defenses by demurrer, held that defendant should

as be many have, and to bring about trial on

have been allowed to amend answer at trial

no as to set up that fact. Moppar v. Willt-

419. Kirby's Dig. & 6145, does not require

chik, SS flice. #66, 107 NYS 694. Under Re-

court at all stages to permit introduction

vasi 1906, # 1467, relating to amendments,

etc., in justice's court, held that, where warrant and complaint in action in such court

not change substantially the claim or de-

to recover statutory penalty merely alleged

that amount claimed was "due by penalty,"

Lumber O. v. Ellison \[Ark.\] 107 SW 161.

amended so as to show facts under which

penalty was claimed to have accord, and

section of code under which it was claimed.

- Stone v. Atlantic Coast Line R. Co., 144 N.

jected to great humiliation, indignity and

C. 230, 65 SE 832. Permission a plaintiff who

has sued in her Individual capacity to subst-

\[Ala.\] 43 S 733. Of amended answer setting

tute herself as executrs. Tucker V. Sher-

up special defenses other than those orig-

man, g who C. C. (N. S) 70. In action against

county for damages for personal injuries

nonsult. Rose v. Dee, 4 Cal. App. 680, 89

sustained on defective bridge, amendment of

135. Of complaint in action to recover

complaint at trial so as to allege that plain-

dimances to plaintiff's property resulting

tiff had no knowledge, it not having changed

from construction of railroad, after jury

cause of action, and it not appearing that

was impancled, so as to correct mistake in

defendant was mailed to his prejudice. B.

description of property, it not having

& C. Comp. 102. Ridings v. Marion County

changed cause of action, and no prejudice

\[Or.\] 91 P 22. Fact that objection was

having been shown. Fit. Collins Develop-

made to admission of evidence as to said

ment R. Co. v. Franca \[Co.\] 92 P 958. Of

fact held not to have deprived or right

petition in action to recover money alleged

to allow amendment. Id.

to have been fraudulently obtained and

Amendment disallowed: In suit by ad-

minstrator to recover for wrongful death,

sale of plaintiff's farm, so as to seek

where answer in terms admitted plaintiff's

every of commissions paid defendants,

appointment and qualifications held that, on

right to which it was alleged had been for-

case being reached for trial more than two

feited by their misconduct. Deter v. Jack-

years after death of decedent, application

son \[Kan.\] 92 P 646. Of petition, after re-

to amend answer so as to denay plaintifftiff's

versal of judgment for plaintiff in action

appointment and qualification, for sole pur-

to recover land, so as to allege that only

pose of interrogoming bar of statute of limit-

part of land claimed was accretion instead

ations, should have been denied as not be-

of all of it at alleged in original petition,

ing in furtherness of justice. Archaeon

land claimed being same in both cases.

v. Cincinnati Gas & Elec. Co., 76 Ohio St.

Frolingsworth v. Barrett, 31 Xy. L. R. 428,

97, 81 NE 152.

82. Northwest Mut. Life Ins. Co. v.

senger against carrier for personal injuries

Richardson, 130 Tl. App. 205; Carey-Lom-

darr lump Co. V. Daughters, 125 Ill. App.

tempted to board ear. Howard v. Louis-

258. To rely. Gohlert V. Quinn, 35 Mont. 451,

90 P 168. Allowance not error unless deprives

equity, where petition alleged that, through

complaining parity of some substantial

defendants fraud, dead conveying certain

fright. Idaho Placer Min. Co. v. Green

land to plaintiff in exchange for certain

\[fdaho\] 94 P 161. Application for

### 1213 PLEADING SS 7.

10 Cur. Law. ment,\[83\] and the diligence exercised in presenting it,\[54\] and impose such terms as seem

by defendant's automobile, so as to allege

so as to plead repudiation by defendant. that automobile was being driven by defendant,

Longfellow v. Huffman (Or.) 90 P 907. Of

fendants' servants instead of by defendant,

answer in action to foreclose mortgage, so

and by adding words "and negligently" to

as to introduce new issue of payment or sat-

allegation that machine was run reckelsly,

lsfaction near end of trial. Bare v. Ford,

vantunity, and willfully on and over plain-

17 Kaan. 583, 87 P 731. Of declaration in

tiff. Lampe v. Jacobsen \[Wasah.\] 90 P 654.

In action to recover rental due under lease,

where defendant counterlaimed for failure

in construction of street railway, so as to

to give him possession of dwelling house

allowed to be upon leaseed lands, and reply

case granted by town. Fay V. Boston, etc.,

alleged that there were two houses on

leased premises, amendment of reply, when

to file additional pleas is not error where

case was called for trial by striking said

the issue thereby sought to be made has

sligation and alleging that under lease

been raised by pleading previously filed.

fendants were given possession of house on

Van Norman v. Young, 129 Ill. App. 542, add.

lands of plaintiff other than those leased, in

228 Ill. 425, 81 NSE 1060.

view of broad discretion given by St. 1898,

**Effewal health abuse of discretion:** Where

$ 2830, and fact that it appeared that orig-

mal allegation was inserted by mistake.

Korsten v. Weichman \[Vis.\] 114 NW 499.

To petition in election contest so as to give

Northwestern Mut. Life Ins. Co. v. Richard-

names of alleged illegal voters. Vidmayer

son, 130 Ill. App. 205. In action against city

v. Davis, 231 Ill. 42, 83 NE 87. Of complaint

on award of arbitractors requiring it to re-

allegering an assault by a corporation and

pair certain street within specified time or

others, by inserting after name of corpora-

to pay plaintiff certain additional sum as

tion in body of complaint words "in all

damages, complaint alleged that defendant

things acting by and through its servants,

had failed to make repairs within said

agents and employees." Marbury Lumber Co.

time. Answer denied such allegation, and

v. Wainwright \[Ala.\] 43 S 733.

\*\*Refusal to allow held not an abuse of

discretion I. In action for conversion of

direction to refuse to allow answer to be

grain on which plaintiff claimed thresher's

alended so as to allege that repairs had

lien, where answer was general daniel of

been made prior to signing of award, but

answer, at close of evidence, so as to allege

after it had become known what award

waview of lien, it not appearing that defendant

would be. City of Lexington v. Williamson

ant who purchased grain relied on waiver

at time be did so, or was in any manner

case had been placed on short cause cal-

misled thereby. Hahn v. Sleepy ZNG Mill.

endar, where amendment merely enlarged

Co. \[IS. D.\] 112 NW 843. In suit to

stables title and right of possession to certain

pear that plaintiff was prejudiced by delay,

land, refusal to allow defendant to file plea

and trial would not be delayed. Murtagh v.

of innocent purchaser after all proof had

been taken and ease was about to be tried.

Mirg v. Canada \[Tenn.\] 107 SW 970. On

S3. In suit to enjoin obstruction of ditth

second trial of action for personal injuries,

retusal to allow amendment of complaint

amended answer, in which, for purpose of

so as to allege facts concerning old ditch

securing closing argument, defendant

added that injuries, if any, were direct and

which was subject of suit could not be

natural consequences of its gross negligence

predicted on previously acquired right to

and that plaintiff had been damaged, and

use old one, so that proposed amendment

offered to confess judgment for $400. Illinois

hosted no additional right in plaintiff

nois Cent. R Co. v. Houchins, 21 Ky. L. R.

Kern Island Irrigating Co. v. Bakersfield

98, 101 SW 934. Refusal to allow

after closing of his case and after defendant

ment of answer at trial will not be held

ant had requested peremptory instruction in

erroneous where nature of proposed amend-

its favor, which was subsequently given,

ment and reasonable necessity thereor were

to amend declaration by filing additional

not shown, nor any reason why earlier

count alleging additional grounds of negill-

pileation had not been made. Federal Bet

gence. Allen v. Western Blec. Co., 131 Ill.

termen Co. v. Reeves \[Karn.\] 93 P 627. In

App. 118. Of answer which was insufficient

in that it denied on information and belief

band, where defendant claimed that sum10 Cur. Law. PLEADING SS 7. 1213

D.J. 115 NUV 192. Under Rev. St. $ 954, al-

being shown and there being no showing

lowance of amendments is discretionary,

why objection had not been made earlier.

and such discretion should be exercised with

Salmon v. Rathlens \[Cal.\] 92 P 733. Of
great liberality in intruthenance of justice, but

answer after case had been referred, where

am amendment should not be allowed where it

will prejudice substantial right of other

had not been made earlier, or why amend-

party, or where it seems superfluous. Federal Mfg. & Printing Co. v. U. S., 41 Ct. Cl.

v. Green \[Idaho\] 94 P 161. In action in

138. In action by assignee of contract

plain to recover property conditionally sold.

against government, amended pollution add-

where defendant alleged breach of contract

ing names of assignors as parties for use

by plaintiff, refusal to allow plaintiff, after

and benefit of claimm, filed after limita-

evidence had been introduced, to amend so

tions had apparently run against them,

as to allege waiver. American Soda Foun-

strucken from files. Id.

tain Co. v. Dean Drug Co \[Iowa\] 111 NUV

54. Application for leave to amend must

be made within a reasonable time after the

division of answer held not to have excused.

necessity thereor has been discovered.

delay on theory that plaintiff could not have

Carey-Lombard Lumber Co. v. Daugherty,

know until motions to direct verdict what

125 Ill. App. 268. Court held to have abused

said rulings were intended to include. Id.

discretion by ordering amended answer to

Of answer so as to substantially change

be stricken without allowing defendant

issues after plaintiff had rested, no reason

make showing as to why he had not pre-

being made to appear why amendment could

viously filed it, and his reasons for delay.

not have been filed sooner. Vorhers v. Buch-

Dunbar v. Griffiths \[Idaho\] 93 P 684. Delay

val \[Iowa\] 112 NUV 1105. Of answer after

held not to prevent granting of plaintiff's

conclusion of all the evidence, where de

motion to amend, where such action would

fendant failed to ask leave to amend when

not necessarily delay trial, or require pro-

the discovered necessity for doing so on

duction of any different evidence. Shirley v.

ing out of evidence. Cincinnati, etc., R. Co.

Bernheim, 123 App. Div. 428, 107 NYS 946.

V, Crabtree, 30 Ky, L R, 1000, 100 SWP 318.

Refusal to allow amendment held not

To answer, offered after proof had been

abuse of discretion: In action on verified

taken and case was ready for submission,

account, rejecting additional pleas proposed

where it was not made to appear therein

to be filed during progression of trial setting

that matters therein relied on were not

up an indebtedness of plaintiff to defendant

known to defendants when original answer

and praying that it be deducted from plaintiff's

was filed. Weimer's AdAmf' v. Smith, 30

tiff's demand. Murphy v. St. Louis Coffin

Ky. L. R. 1311, 101 SWP 327. In action to

co. (Ala.) 43 S 212. To answer in action

enjon obstruction of plaintiff's passway,

to recover on account fourer bond and

and removed after case had been

delivered, attacking quality of lumber fur-

prepared and submitted, alleging that one

ished for first time, when it was not ten-

of defendants had acquired title to land

dered until close of trial. Butty Clupler

on both sides of passway, and that, in case

Co. v. Hilson \[Ark.\] 107 SWP 161. After jury

was impaneled to refuse to allow defendants

should be required to erect and maintain

ant to file amended answer containing pleas

gates, since its allowance would have re-

in a statement alleging failure of plaintiff to

ceasitated opening and continuing case, and

join her husband as party, and her want of

statute makes ample provision for establish-

legal capacity to suo, he having been al-

ment of gates. Boyd v. Morris \[xy.\] 106

lowed to die amended answer without them,

Tsurky 867. In action based on alleged con-

and said defenses having been waived by

failure to interpose them earlier, no excuse

where original answer denied such agree-

for such failure having been shown. Civ.

ment, and amended answer pleaded counter-

Code Proc. $ 473. Tingley v. Times Mirror

claim, and proof was taken on issues raised

Co. \[Cal.\] 89 P 1097. In action to foreclose

by both answers, refusal to allow filing of

mortrage of answer at trial setting up an

second amended answer admitting contract

agreement showing complete nowation as

and alleging its termination by agreement

to note secured by mortrage, where action

had been pending for years, and effect

having elapsed since filing of first answer,

of allowance would have been to defeat

plaintiff's claim if amendment was

setting up such defense. Howe v. Courthey

ported by evidence, and court was justified

in treating it as application to
just.\[58\] Amendments may, on proper leave granted,\[59\] or in some states as a matter of right,\[57\] be made before trial,\[58\] at the trial\[59\] under proper restrictions against sur.

55. Under Code Civ. Proc. $ 473, court held $upposes himself entitled, prayer for relief to have had authority to impose such terms as were just on allowing plaintiff to amend complaint at trial so as to raise new issue.

motion to amend complaint, McVey v. Williams v. Myer, 150 Cal. 714, 89 P 972.

Shevring out. Life Ins. Co., 118 App. Div.

Showing as to necessity of continuance, etc., held sufficient to justify imposition of terms.

titled to file "trial amendment" without Id. Held proper to require payment by leave of court, for purpose of setting up plaintiff of fees paid by defendant for per

new matter supplementary to that contained

dem of jurors impanaled and sworn, ex-

on answer then on file, so that it was proper

penses incurred by him in obtaining attend-

for court to disregard it in presenting is-

ance of witnesses, and $100 as compensation

sues to jury. Rev. St. 1895, art. 1262, and

for expenses incurred by him in employ-

district court rule 27 construed. Hoffman

ment of attorneys and his own expenses in

V. Lemm (Tex. Civ. App.) 20 Tex. Ct. Rep.

atendible trial. Id. Held error to require

431, 106 SW7 712. Amendments sought to

payment to clerk of court per diem and

be made out of rule should be allowed only

milage paid by and due from county to

in furtherance of justice, they being not

jurors summed for the trial. Id. Where

matter of right, but allowable only in dis-

court imposed both proper and improper

creation of court. Archdescon v. Cincinnati

charges, held not necessary for plaintiff to

Gas & Eice. Co., 76 Ohio St., 97, 81 N 152,

offer to pay amounts properly assessed in

Failure to pass order allowing amendment

order to avail himself of the error on 10 Cur. Law.

PLEADING SS 7.

1215

prise,60 at the conclusion of the trial to conform the pleadings to the proof,61 and, in

double time within which amended answer may be served Code Civ. Proc. #1 542, 798.

Doed. v. Tangemann, 53 Misc. 268, 38 Civ.

Proc. R. 447, 108 NYS 77. A defendant who has served original answer by mail has right to amend same once as of course within 40 days, H not done for purpose of delay, or to deprive plaintiff of a term of up the court. Langer V. Wawasey, 54 Misc. 301, 103 NYS. 1088. Where default in pleading was opened and order opening it was completed with and answer served held that deforms was in same position in regard to subsequent litigation as if no default had occurred, and hence had right to amend said answer within 20 days after service thereof.

Of'Reilly v. Skelly, 56 Misc. 122, 106 NYS

1082. If defendant takes full time allowed by him to amend, he does so at peril of all regular proceedings which may be taken against him before he amends. Langer v. Wawasey, 54 Misc. 301, 103 NYS 1088. Fact that a party may serve amended pleading and thus change issues raised in action does, not preclude adverse party from noticing.

Hurt v. Powell \[Tex. Civ, App.\] 107 SVW 364.

case for trial upon issues that was raised, but after close of evidence held not ground for so long as right to amend exists, notice of

reversal. Id. Federal court held to have trial is liable to be defeated and rendered.

unavailing by service of amended pleading.

dd. Since under express provisions of amended at trial. Lamar v. Spadling \[C. Civ. Proc. #1 542, right to amend as of C. C. 14 $F 37. Where there was no proper course 's not to prejudduce proceedings al- ready had, held that where plaintiff no- and 's motion' for leave to file statement of tied case for trial and defendant's default was regularly noted on his failure to ap- closed in case, was proper. Batley v. Wwarper, default was not affected by subsequent

per (R. I. 67 A 63.

service of amended answer, though it was served before expiration of time within

trial may entitle opposite party to continua- which defendant had right to amend as of

ance if motion for that purpose is duly pre-course. Id. In municipal court is man- sented. Sparks Imp. Co. V. Jones \[Ga. App.\]

datory to allow pleading to be amended at 60 SE 810. Overriding motion held not an any time, if substantial justice will thereby

abuse of discretion. Id. Refusal to allow be promoted, even though entire cause of

continuance on ground of surprise upon al-action is thereby changed. Universal Cut-

tor C. v. Emden, 107 NYS 669. In action to recover installation of purchase price of

how defendant was surprised, or that he machine, refusal to allow amendment of

was less prepared to go on than he would answer at trial so as to set up breach of

otherwise have been. City, Code 1895, 6128.

warranty held error. Id.

Craddock v. Kelly, 125 G 818, 103.

SS. In action on note held proper to allow

plaintiff to amend after answer so as to

prise held not error. Edge v. Southwest

allege that original note rather than copy

was attached to complaint as an exhibit,

so. Reversal of continuance on allowance of

Bradley v. Pitney \[Kan.\] 93 PS 858. In action

amount of complaint held not abuse of

by assignor of claim for medical services

discretion, defendant having made no show- held that under Code Civ. Proc. # 723, motion to amend complaint so as change name

trial. Lampe v. Jacobsen \[Vash.\] 90 P 654.

of person from whom plaintiff derived title

who had they been granted, no change in

in that they could not object to thing claim being made thereby. Thompson v.

amended petition bringing in new parties

Young, 53 Misc. 250, 103 NYS 200. In action

to recover damages for conversion of stock

v. Oliver \[Tex. Civ, App.\] 106 SWP 1161.

alleged to have been pledged to defendant

to secure loan, held that motion made

aderation after the motion for new trial,

shortly before case was reached for trial

it the defendant is not prejudiced thereby.

to allow plaintiff to amend by inserting sec- and alternative cause of action alleged.

Chicago, etc., R. Co. v. Henderson, 126 Ill.

ond and alternative cause of action alleged.

ing that half of stock was delivered to de- fedant as security and half as bonus, and

c. 173, 84.

dummy v. Jay \[Mass.\] 82 NE

that this transaction was invatious and void,

should have been allowed upon terms. Shlll.

Amendements allowed: Compmitant consider by Bernheim, 123 App. DIV. 428, 107 NYS

g42. Though statute expressly forbids

g43. Defendants held entitled to withdraw

evidence_admitted without objection. By- or amend their disclaimer, where, though it

num v. Brady \[Ark.\] 100 SWP 66. Where

### 1216 PLEADING SS 7.

10 Cur. Law.

plaintiff sued on contracts to recover commissions due him for several years, but evt-g possession at time of conversion, held defence received without objection was suf-proper, after judgment for plaintiff and client to show an account stated for one of said years, held that court properly never trial and in arrest of judgment, to treated compliant as amended so as to declare on account for that year. Wrought Izon Range Co. v. Young \[Ark. 107 SW 674.

104 SW 481. In action for assault and Allowing amendment of complaint atte:

Q delivery held proper, after evidence was in, case had been submitted, but before Judg-

Q delivery plaintiff to amend by striking outment was entered, held within discretion

word "stamping" in allegation accusing de-of court, under Code Civ. Proc. $ 473, and

redundant of stamping plaintiff and inserting that discretion was not abused, amendment

word "kicking" in lieu thereof. Rev. St. not having introduced substantially new

189 SW 657. Baxter v. Magill \[Mo. App.\] issue and defendant's rights not having

105 SW 679. Heid proper to allow amend-been prejudiced. Yordi v. Yordi \[Cal. App.\]

ment of answer at close of testimony.

91 P 348. Allowance of amendment of commissions

amendment being in furtheance of justice, plaint, after submission of case to trial

and no prejudice from delay having been

judge without argument, to conform to

shows. Code $ 144. Blondel v. Bolander facts which judge stated he regarded as

(Neb.) 14 NW 574. Where complaint al-proven, held not abuse of discretion

-

bered contract of hiring, performance by

ferred by Code Civ. Proc. $ 473. Doherty v.

plaintiff, refusal to perform by defendant.

California Nav. & Imp. Co. \[Cal. App.\] $ 1 and that defendant was indeed to plain-

P 419. Allowing defendant to amend ann-

iff in certain sum, held that court had

swer so as to allege plaintiff's bankruptcy

in bar of action, after both parties had

furthername of justice, to allow amendment

rested but before cause was submitted, held

to conform to proof that plaintiff was in-

not abuse of discretion. Simpson v. Miller

formed by defendant that no further work

\[Cal. App.\] $ 252. Allowance of amend-

ment to complaint, in action for injuries

-

naturaly would continue to be paid until ex-

to servant, after close of evidence held

109 P 348. Doherty v.

paper, it not having changed issues, or

sso, no surprise being shown and evidence-

misled or prejudiced defendant. Burns'

Ann. St. 1901, $ 345-357. Parry Mtg. Co.

V. Barton \[Ind. App.\]. $ 38 NE 510. Where

answer in action on three notes alleged fall-

-

survive for debt influence of amendment.

ure of consideration and asked that notes

be canceled, held that amendment of ann-

-

swer after close of evidence by. averment

that skr other notes were given with those

tion, it having worked no substantial

mentioned in petition for same purpose

-

as part of same transaction, and praying

that they be canceled also, was permissible

under Code Civ. Proc. $ 135, and was properly allowed. Minnesota Threshold.

-

Poyer, 75 Kan, 365, $ 89 P 688. Where

original answer set up counterclaim, held

-

proof, after evidence had been taken by de-

position to refuse to allow defendants to

rington, 10 Julio C. C. (N. S.) 134. Defect

amend to conform to proof so as to allege

that plaintiff had promised to pay sum

-

countclaimmed for, since its filling could in

-

not by amendment at any stage of case.

no way have prejudiced plaintiff. Morrison

-

v. Payton, 31 Ky., L. R. $ 902, 104 SW 685.

-

vWhere petition in action to recover dam-

-

ages for death of person killed by one of

-

defendants trains alleged that before train

-

some cases, in the appellate court,62 or after remand therefrom.63 The right to add

inally pleaded as defense, but evidence there-

on agreement of some sort, and that right of was received without objection, held that

thereunder was not barred by limitations, allowance of amendment setting it up after

held not abuse of discretion for circuit court,

vordict for defendant based thereon was not

an abuse of discretion. Bowe v. Gage \[Wis.\]

an amendment showing an agreement by de-

112 NUV 469. In suit in equity to cancel

cedent to pay for said services, defect being certificate of tax sale of reality held not

indefiniteness. Longwell v. Mierow, 130 Wis.

abuse of discretion to allow amendment of

complaint, to conform to facts proved without objection, so as to allege possession

and other facts necessary to etitle plain-

table petition, held that, when remtittitur

iff to relief under St. 4898, $ 3186, providing

for actions to quiet title, suit not being

was rudented to trial court, and before it

thereby changed from one in equity to one

ment to petition could be offered, provided it

at law. Durbin v. Knox \[Wis.\] 112 NUV 1094.

Were planitit set out cause of action for

anned by Eagle & Phenyl Mills v. Museo-

commissions earned by him under contract

and cause of action for damages for breach

reversal of order of interpleader on ground,

of contract, and erroneously included item

among others, that sum admitted to be due

which was part of commissions in second

by interpleader and directed to be paid into

count, and he was held to be entitled to

recover on first count but not on second, held

by one of the claimants, held that after re-

not an abuse of discretion to allow plaintiff,

and interpleader might amend to cover

after verdict to amend by transferring said

discrepancy 1f it found that it had erred in

item to hret cause of action. Greene v.

amount tendered. Smith v. Grand Lodge A.

Freund \[C. C. A.\] 150 P 721.

O. U. V., 124 Mo. App. 181, 101 SWV 642.

Where in action for wrongful death under

pretition in action for personal injuries was

drawn and case tried, on theory that relation

section, but in substituting measure of

of master and servant existed between

damages of their own plaintiffs relied on de-

fendant and third person, whom defendant's

exivant had induced to assist him, so that

cregan that was liable for such person's neglig-

would be- granted new trial with leave to

gence, held that plaintiff was not entitled to

amend. Casev v. St. Louis Transit Co., 205

amendent after directed verdict so as to allege

that servant was not proper person to do

work and was guilty of negligence in per-

mitig the third person to assist him, which

neglience was proximate cause of plain-

confirmed teamed quantum mernit count, and re-

tiff's injury. Thymesen v. Davenport Ice &

Cold Storage Co., 134 Iowa, 749, 112 NUV 177.

Where plaintiff sued for actual and ex-

employ damages for trespassing in permitting

cattle to go upon his land, and case was

tried and submitted to jury on that theory,

held that after verdict he could not, by

amendment, waive tort and sue on implied

contract for use and occupation. Cole v. Thompson, 134 Iowa, 685, 112 NW 178.

e2. In action on account stated amendment of complaint so as to strike certain ala-

the end, if they did, that it was not

legations as to credits claimed by defendants

ants allowed under Code Vic. Proc. $ 94

Brown & Manzanares Co. v. Gulse \[N. M.\]

91 P 716. Pleadings cannot be amended to

conform to proof on appeal, where facts

have been proven over objection and ex-

ception of party against whom evidence is

offered. Bjorkegren v. Kirk, $3 Misc. 560,

103 NYS 984. Where proper objections on

group of variance were made at trial, and no amendment was asked for, held that com-

claim could not be amended after trial to

comform to proof. Epstein v. Cohen, 56 Misc.

579, 107 NYS 148. Pleadings in action commenced before justice may be amended after

appeal to district court for purpose of corre-

retting clerclal error, there being no change

in the issue. Kofold v. Lincoln Implement

& Transfer Co. \[Neb.\] 114 NW 937. Amendment changing date of termination of lease

held properly allowed. Id. Where claim

against decedent's estate for services in-

cluded enough to suggest that it was based

10 Cur. L--77.

1217

some cases, in the appellate court,62 or after remand therefrom.63 The right to add

inally pleaded as defense, but evidence there-

on agreement of some sort, and that right of

of was received without objection, held that

thereunder was not barred by limitations,

allowance of amendment setting it up after

held not abuse of discretion for circuit court,

vordict for defendant based thereon was not

on appeal from its allowance, to allow

an abuse of or eliminate, or substitute parties depends upon the statutes of the various states.44 The amendment may be one of substance or form,45 but amendments changing the cause of action or introducing new issues are not ordinarily permitted, particularly after the running of limitations.46

Footnote 46: The term "a" is not meant to be confused with the term "a".

Amendments disallowed; Liberality in allowing amendments is greatest in earliest stages of case, decreases as it progresses, and changes to a strictness ordinarily amounting to a prohibition after matters 128 Ga. 754, 58 SE 452. Motion to allow mitigated have received the normally final sanction of an adjudication by trial court, affirmed on appeal. Todd v. Bettingen, 102 Mlinn. 260, 112 NW 906. Affirmedness of trial court's order for judgment ordinarily amounts to direction not to proceed to deter.

PLEADING SS 7.

Packing Co. \[Tex. Civ. App.\] 19 Tex. Ctt. Rep. 861, 105 SWV 46. New cause of action Is not set up by amendment where same substantial facts are pleaded merely in different form, so that recovery on either pleading would bar recovery on other. Alabama Consol. Coal & Iron Co. v. Heald \[Ala.\] 45 G 686. Change does not refer to form of remedy but to general identity of the transaction, and when it remains same amendment does not substantially change cause of action. Snider v. Windsor \[Kan.\] -93 P 600. Amendment to declaration in act/St. to recover for wrongful death changing relation in which plaintiff sued from that of her individual capacity as widow to that of her representative character as administatrix held permissible under both Fla. Gen. St. 1906, 1432, and Rev. St. U. S. 954, though changing cause of action, provided limitations had not run. Hall v. Louisville & N. R. Co., 167 F 464.

Amendments held to set up new or different cause of action: Where all counts of original complaint were in trespans to reality, counts subsequently filed gravramen of which was destruction of alleged lien for wharfage charges on cotton. Williams v. Alabama Cotton Oil Co. \[Ala.\] 44 S 957. Additional count claiming damages for maintaining nuisance on public street to damage of plaintiff as abutting property owner held departure from original complaint and properly stricken. Id. In action on administrator's bond for refusal to pay over funds in accordance with order of probable court, amendment setting up order of distribution made by probate court after commencement of action. Ferguson v. Carr \[Ark.\] 107 SWV 1177. Where original complaint sought to recover proceeds of land on theory that defendants' testator had conveyed same to him by deed in escrov to take effect on testators' death and had subsequently sold same to in- nocent purchaser, amendment so as to allege agreement by testator to devise land to plaintiff. Simpson v. Miller \[Cal. App.\] 94 P 255. Amendment, in action against city, showing that accident occurred on different street than that alleged in original declaration. Gillmore v. Chicago, 224 Ill. 490, 79 NE 596, afs. 125 Ill. App. 13. Where petition by subcontractor for mechanics' line alleged that contractor had completed building and that owner had accepted it without paying pertinent, amended petition alleging that contractor abandoned work before its completion and that value of the work done was greater than petitioner's claim. Carey Lombard Lambert Co. v. Daugherty, 125 Ill. App. 258. In action on open account, amendment to complaint setting up judgment recovered by plaintiff in another state on same cause of action after institution of suit. Mansf. Dig. $ 5608. Cassidy v. Saline County Bk. \[Ind. T.\] 104 SWV 829. In suit against township to recover for goods sold held that plaintiff, after motion to direct ver-dict on ground that defendant was not legal entity had been made, could not amend so as to substitute as defendant's board of trustees of township and individual trustees, and ask. court to take cognizance of action in equity, and to award writ of mandamus to compel trustees to make payment. Austin Western Co. v. Weaver Tp. \[Iov1\] 14 NWV 138. In action by buyer of corporate stock 1220

PLEADING $ 7.

from plaintiff's land by erection of embank-

nal petition. King v. Seaboard Air Line R.

ment on street near his land it not being alleged that plaintiff was in possession of

petition which merely amplifies or varies

street. Southern R. Co. v, McIntyre \[Ala.\]

44 S 624. Where original complaint in ac-

that injury for which recovery is sought

tion against railroad alleged that mare and

cell were killed by defendants' negligence.

Co. v. Helms, 2 Ga. App. 308, 58 SE 524. In

amendment alleging that mare was killed

and clot killed or injured. S8L Louis, etc. R.

lute in form, but which it was alleged was

Co. v. Douglas \[Ala.\] 44 S 677. Where origlia-

given as security for an indebtedness,

nal count alleged crippling of cow by railroad company so as to diminsh her value,

endment alleging that crowd died from in-

amendment alleging that cow died from in-

juries received, and eliminating allegations

as diminution in value. Southern R. Co. v.

Dickens \[Ala.\] 45 S 215. In action for wrong-

fuf death of employee, where original count

was for negligent death of interest,

whether under statute or common law, and

alleged that death was caused by defend-

ant's negligence in failing to provide safe

place for him to work, held that additional

count alleging that it resulted from obeying

orders which it was intestine's duty to obey

under Code 1896, $ 1749, subd. 3, was not

departure, conceding that first count stated

cause of action at common law and second

one under statute. Alabama Consol. Coal &

Iron Co. v. Heald \[Ala.\] 45 S 688, In action

by employe for personal injuries counts

added to complaint by amendment held to re-

Igle back to original. Townes v. Dallas Mfg.

Co. \[Ala.\] 45 S 686. In action of ejectment

amendment of complaint so as to set up

diferent claim of title from that originally

stated, title being one acquired before action

was commenced. Gannon v. Moore \[Ark.\]

been allowed. Boyce v. Day \[Ga. App.\] 59

104 SW 139. In action on building contractor's bond by materialman, where original

court in action by shipper against carrier for

complaint counted on material furnished under

danges for failure to transport goods,

der, and breach of, contract generally as

which merely set forth same alleged wrong

measure of defendants' liability, amendment

mere definitely. Jenkins v. Seaboard Air Line

alleging changes and alterations made in

conformity to contract. Peoples' Lumber Co.

tom against several defendants contained

v."Gillard \[CaL App.\] 59 P 556. Amendment

setting up foreign statutes in amplification

sitting complaint for land, and allegations

and aid of rights claimed in original plead-

appropriate for equitable relief, amendments

ing. Misonviat State Life Inc. Co, v. Lovelace

\[Ga. App.\] 58 SE 93. Where action for death

ing all defendants except to and electing to

by wrongful act was brought by widow,

and measure profits only, and by adding

self as widow, amendment striking description

specifical prayer for recovery of land. Crad-

tive word "administrix" from declaration

dock v. Kelly, 129 Ga. 818, 50 SE 193. In

and leaving suit to proceed in Individual

name of widow, held properly allowed. Civ.

Code 1896, $ 150, $106, $361. Atlanta, etc.

R. Co. v. Smith, 1 Ga. App. 162, 58 SE 166.

Where original petition in action against

railroad company for personal injuries re-

set during from defective floor in station

leged that plaintiff visited station for pur-

pose of transacting business with defendant,

emememment alleging that defendant permit

tend express company to trasact business in

station, that same person was agent of both

action, but claiming treble damages under

combangles, and that she went to building for

purpose of transacting business with agent

13 Idaho, 581, 92 P 532. Amendment correcting

of express company. Central of Georgia R.

Co. v. Hunter, 123 Ga. 600, 88 SE 154. Amendment

of petition so as to allege that matters

ent up in answer had been adjudicated in

former case, it not setting up any cause of

by implication show existence of subject-

action at all. Kelly & Jones Co. v. Moore, 128

matter of suit, amendment expressly stating

Ga. 683, 58 SE 181. Amendment to petition

which merely varies the acts of negligence,

Terminal R. Ass'n v. Schultz, 226 Ill. 409, 80

but does not complain of any different

wrong or injury from that set forth in origlia-

declaration alleged that gangway was re 10 Cur. Law. PLEADING SS 7. 1331

Ordinarily pleas in abatement are not amendable," but this rule does not apply to pleas in abatement to the jurisdiction of the court of the person." Pleas amounting merely to the general issue are not amendable."

Amendments which are insufficient in substance," or which do not cure the de-

dered unsafe by reason of obstructions

Mo. 471, 104 SWP 90. In action for damages placed therein by order of defendants' fore-

for personal injuries amended petition dif-

man, amendment alleging that it was done

fering from original only in that it con-

with the knowledge of the foreman. Deer-

nected defendant with negligence alleged to

ing v. Barzak, 227 Ill. 71, 81 NE 1. Where

have produced injury, in which respect orig-

first complaint failed to allege a duty of due

nal was defective. Johnson v. American

care on part of defendant, amendment sup-

Smelting & Refining Co. (Neb.) 114 NWP 144.

plying the omission. Lake Shore, etc., R. Co.

Amendment in action against carrier for

v. Enright, 227 Ill. 403, 81 NE 374, aff. 129

personal injuries to passenger sustained

III. App. 228. Where one or grounds alleged

while alighting from car changing allega-

in petition to contest election was that ille-

gal votes had been cast, amendment stating

to one that there was no stop of the car at all

names of alleged illegal voters. Refusal to

Schmelzer v. Chester Trac. Co. \[Pa.\] 66 A

strike it because filed after period prescribed

1005. In action for personal injuries re-

for instituting contest held not error. Wld-

sulting from collision between car and car-

mayer v. Davis, 231 Ill. 42, 83 NE 87.

riage, amended control merely showing dif-

Amended declaration merely restating and

ference in description of plaintiff's position

amplifying causes of action set up in origl-

and direction in which her cartridge was pro-

nal. Swift v. Gaylord, 126 Ill. App. 281.

ceeding. Butler v. Rhode Island Co. \[R. I.\]

Amended count in slander. Millar v. Solititit,

68 A 42g. In action to recover commissions

131 Ill. App. 196. Amended petition in action

for procuring purchaser for land, amend-

for damages for assault and battery filed

ment merely amplifying original petition.

after evidence had been adduced. Watta v.

Mayers v. Magillar \[Tex. Civ. App.\] 107 SWP 365.

Etunier \[Iowa\] 115 NWP 209. In action for

Where plaintiffs originally saved as individi-

damages for personal injuries, though fail-

uas, amended petition in which they sued

ure to allege plaintiff's freedom from con-

as firm. Id. Amended petition in action for

tributory negligence renders petition de-

conversion held to set up substantially same

murable, amendment supplying such onns-

cause of action as original, save that it con-

sion. Cahill v. Illinois Cont. R. Co. (Iowa)

tained additional or supplementary allega-

115 NWP 216. Amendment of complaint so as

tion that defendant promised to pay for

to allege that original rather than copy of

property that both petitions charged he had

note sued on was attached as an exhibit

converted about certain date, and not to

held not commencement of new action. Brad-

have amounted to abandonment of original,

ley v. Pinney \[Kan.\] 93 P 585. Where origl-

and substitution of entirely new and distinct

nal petition alleged execution of certain

cause of action subject to statute of limita-

notes by defendants and chated mortgages

tions. Hilson v. Burt \[Tex. Civ. App.\] 18

to secure their payment, and a default, and

Tex. Ct. Rep. 279, 101 SWP 292. In action for

prayed for judgment for amount due on

personal injuries, amendment of complaint

notes and sale of mortgaged property,

so as to allege that plaintiff was detained

amended petition setting up cause of action

from business minus dusty instead of thirty

in repliv for same property. Snider v.

days. Jones v. Ogden City \[Utah\] 89 P 1006.

Windsor \[Kan.\] 83 P 606. Amendment held

Refusal to allow it held error. Id.

properly allowed. Id. In action by servant

@7. Hurd's Rev. St. 1905, C. 7, 811. Spencer

against master for personal injuries, where

v. Aetna Indemity Co. 231 Ill. 82, 83 NE 102.

original answer was general denial, held

otrisity plea in "abatement, but

that amended answer alleging assumption

meritorious plea necessary to protection of

of risk, and that accident was due to neg-

substantial right granted by statute.

Spen-
ligence of fellow-servant did not change

cer v. Aetna Indemity Co., 231 Ill. 82, 83 NE

issue, and was not inconsistent with origl-

102.

nal, or calculated to fect sought to be remedied,\[11\] or which have been previously disallowed,\[12\] or which do not differ substantially from allegations previously held insufficient,\[13\] or which would require the adjudication of issues affecting persons not parties to the action,\[7\] or which are inconsistent with stipulations previously entered into,\[7\] and trial amendments inconsistent with the evidence previously introduced by the party offering them,\[7\] are ordinarily not permissible. The right to amend does not, however, depend upon whether the amended pleading is wholly invulnerable to demurrer or motion,\[7\] nor is the allowance of an amendment an adjudication of its sufficiency so as to preclude a denurrer or motion to test its substance or form.\[8\]

In order to allow an amendment the court must, of course, have acquired and retained jurisdiction of the cause.\[9\] Statutes in some states make the existence of

- \*\*nature of improvement at length, and plead-
- \*\*ling alleged benefits as counterclaim, held
- **then,** judgment is properly entered upon the proper, city not being entitled to recover on
- \*\*such a counterclaim, and allegations as to
- **nature of improvements being merely matter**
- \*\*of evidence provable without being pleaded.
- \*\*City of Owensboro v. Yewell, 31 Ky. L. R.
- \*\*85, 104 SWV 284. Refusal to allow filing of
- \*\*smended answer alleging fraudulent representations as to certain agreement held
- **for,** where it contained no allegation of
- \*\*a specific fraudulent act upon which any
- **one relied so that proof of actionable fraud**
- **would not have been admissible thereunder.**
- \*\*Hase v. Burns \[S. D.\] 115 NWV 104. Where
- **on sustaining demurrers to complaint, court refused leave to amend on sole ground that**
- \*\*complaint would not state cause of action if amendments were allowed, held that, on appeal from judgment for defendant on sustaining of said demurrers, proposed amendments would be regarded as incorporated in
- **complaint for purpose of determining its**
- **williciency. Campbell-Kawaunanakoa v. Campbell \[Cal.\] 92 P 184.**
- **71. In action for assault and battery**
- **where defendant filed plea of justification**
- **allenging that he. committed assault**
- \*\*fending his'son from attack by plaintiff,
- **fusal to allow amendment thereof by inserting, after description of said attack,**
- \*\*words "thus using unnecessary force in re-
- **peiling any assault made upon him by the**
- **said son of this defendant" held proper,**
- **since amendment did not meet objections raised by demurrer to plea, and would not**
- \*\*have made it sufficient. Morris v. McClel-
- \*\*lean \[La.\] 45 S 641. Amendment setting out more legal conclusions and which would not have cured defects in petition, held properly rejected. Thornton v. Jackson, 129 Ga. 700,
- **69 SE 905. Demurrer having been sustained, and it appearing upon tender of amended**
- **petition that initial defect is not susceptible**
- \*\*of amendment, leave to file will be refused and cause dismissed. Code 85 5116, 5320. Harris v. Cincinnati, etc., R. Co., 6 Ohio N. P.
- \*\*72. Order of special term of city court de-
- \*\*wrling leave to amend answer, which was in
- **ful force at time of trial, held binding on**
- **for,** but the other two are not possible.\*\*
- **for,** but the other two are possible.\*\*
  10 Cur. Law. PLEADING SS 7. 1323

enough to amend by a condition precedent to the allowance of an amendment.\* Proposed amendments should ordinarily be presented in writing,*${}^{\\text{st}}$ it being necessary in some states to attach copies thereof to the moving papers in case the amendment is made on motion.*${}^{\\text{st}}$ An afflavit that allegations sought to be added by amendment were not omitted from the original pleading for purposes of delay,*${}^{\\text{st}}$ or excusing the failure or negligence necessitating the amendment,*${}^{\\text{st}}$ is sometimes required. Leave to amend is of no effect until the amendment is actually made.*${}^{\\text{st}}$ The amendment should not be made on the face of the original pleading, but on a separate piece of paper,*${}^{\\text{st}}$ or in the form of an entirely new pleading.*${}^{\\text{st}}$ In some states a copy of the amended pleading must be served on the opposite party if it in any way changes or adds to the traversable allegations of the original, or aids the cause of action or.de-fense.*${}^{\\text{st}}$ An amended pleading supersedes the original,\*${}^{\\text{st}}$ and relates back to the time of

- 80. Petitlen showing a plaintiff and de-fendant, and setting out sufficient to indi-l125 III. App. 258. 80. Should not be interlined in original, or transaction as a cause of action, is enough to amend by. Civ. Code 185%, 5 5998. Eagle in. Chicago & A. R. Co. v. Johnson, 128 III. & Phenix Mills v. Musegegeg Mfg. Co., 129 App. 20. 63 Eq. 712, 59 SE 804. Where petitlen suff-ciently indicated design of pleader to show with new count added, entitled "amended" that plaintiff claimed that it and defendant declaration," and so designated and treated both held factory sites under convances in order of court filire it, held to be re-from common grantor, that there was duty on part of defendant to take not more than new and independent one. Lawson v. WII-specified amount of water or water power in lianson Coal & Cole Co., 61 W. Va. 689, 57 from stream, and that it was violating said SE 258. 88. Plainttiff, held entitled on second trial was enough to amend by. Id. Summons in justice's court held sufficient. Jenkins v. Sebaoard Air Line R. Co. (Ga. App. 1) 9 SE 1120. Since municipal corporation can see and be sued only ,in corporate name set forth in its charrier, suit not brought in such name as mere reality, and petitlen is insuff-ciently to support amendment of any character whatever. Town of East Rome v. Rome, 129 Ga. 290, 58 SE 854. 81. Better practice. Evans Marble Co. v. McDonald (Ala.) 45 82 213. 82. Washington Life Ins. Co, v. Scott, 52 Mise. 639, 103 NRS 928. 83. Where amendment to answer, filed after time for answering has expired, sets up new facts of which notice was not given in original answer, afflavit attached to preffered amendment must state that such facts were not omitted from original answer for purpose of delay. Columbus Show Case Co. v. Brinson, 128 Ga. 487, 57 SE 871, Amendment to plea, which is not purely precatory in character, but avers new matter of defense, notice of which was not given in original answer, is properly disallowed when defendant fails to so swear in submitted to jury. Hlawson v. Chicago, afflavit. Gross v. Whitlety, 128 Ga. 79, 67 SE 94. Where amendment to answer simply enlarged defense originally set up, held that afflavit of officer of defendant corporation on motion for leave to amend was unnecessary. Murtagh v. Kingsland Brick Co., 119 App. Div. 286, 104 NYS 515. 85. Until amendment is actually filed. Roth v. Burnham, 128 III. App. 222. Is not equiv-lent to amendment. Heinho v. Vavrik, 126 It may be introduced in evidence, its contents cannot be considered at the trial, either app. 264, Filing of amendment is ineffective as part of record or as admissions of plain-afflavit to any other. Lane 1234 PLEADING SS 8. 10 Cur. Law.

filing the latter,90 except in so far as it introduces a new cause of action, or brings in new parties.91 The effect of the original pleading as an admission in such case is treated in a subsequent section.92 The opposite party may ordinarily plead de novo in case of a material amendment,93 or he may allow his original pleading to stand.94 SS 8. \_Supplemental pleadings.\_95 & C. L. 1405--The codes generally provide that, upon the application of either party, the court may permit him to file a supplemental complaint, answer, or reply alleging material facts which have occurred since the filing of his former pleading, or of which he was ignorant at that time.95 When an

v. Choctaw, etc., R. Co. \[Okl.\] 91 P 883. Part 1 leging auch service was made more than a removed by amendment drops out of case. year after filing of Iben. Id. Amendment to Kersten v. Weichman \[Wis. 114 INV 499.\] declaration in action to recover for wrong-Error, if any, in not sustaining motion made full death changing relation in which plain-at second term to dismiss action on account iff and from that of her individual capacid-for failure to furnish bill of particulars in accordance with superior court rule 11 (Civ.) capacity as admInitarruk, held change of Code 1895, 8 5642, held cured by amendment cause 6% action from one under state statute attaching bill of particulars which court re- to one under Federal employers' liability quited to be made at subsequent term. Soucad an independent court or relate back to App.\] 59 SE 467. Error in overvining de-Commemement of action so as to avoid bar member by rendered harmless by amendment of limitations which had run since comment sufficient to cure objection. Pacific

mencement of action. Hall V. Louisville & Seiling Co. V. Albright-Prior Co. (Ga. App.), N. R. Co., 157 # 464.

59 SE 468. Consideration of intermediate \[Ag. 82 Sec 114, post.

amendments and so much of judgment as 93. Where pleading is amended by adding related to them held to have been rendered unnecessarily by their elimination from peti-Race v. Isaacson, 124 Ill. App. 196. Where

To be third amendment. Central of Georgia

pleading is amended after commencement of R. Co. v. Imman, 129 # 625.95 SE 784. De-

Jury trial, friend of adverse party to plead

murrer to petition, seeking to change carrier

thero, time within which it may be done, of goods with both common-law and statutory liability, on ground of duplicity held

and whether such privilege be general.or

limited to merits, are questions for trial

properly overcrued where plaintiff by amend-

control in its discretion, considering circum-ment elected to proceed upon common-law

stances of case and conditions of parties at liability. Alianta, etc., T. Co. v. Broome

the time. Kansas Portcode Co. V. Eric Pe-

\[Ga. App.\] 60 SE 355. Amendments to peti-

troleum Co., 158 Kan. 530, 87 # 913. Refusal

tion in suit for land held to have cured any

possible error in reusing to dismiss peti-

held not abuse of discretion under circum-

tion. Cradock v. Kelly, 129 # 34.8, 68 SE

stances, amendment not having materially

193. In action for assault amended petition, change attitude of parties. Id. Where de-

not attacked by motion or otherwise, held

fendant was allowed to file amended answer

to have supplied any defect in original in at trial, held not an abuse of discretion to

not asking for actual damages. Waltz v. allow plaintiff to file reply thereto. Metro-

Enter \[Towsh 115 NW 209.\]

90. For effect of running of limitations in 1175.

the meantime, see Limatation of Actions, 10

C. L. 635. Townes v. Dallas Mfg. Co. \[Ala.\]

complaint, served no new-answers, held that

45 S 896. Amendment changing action for

original answers would stand as answers to

death by wrongful act from one by widow

amended complaint. White v. Smith \[Vis.\]

as administrative for her benefit as widow

11 NW 106.

to one in her individual name as widow held

95. Office of supplemental complaint is to

to relate back to beginning of action. At-

hring to notice of court and opposite party

lanta, etc., R. Co. v. Smith, 1 Ga. App. 162,

things occurring after commencement of the

58 SE 106. Plaintiff has right to file amended

action which do or may affect rights as-

petition setting up good cause of action

serted and relief asked in original action,

after demurrer to original petition has been

California Farn & Fruit Co. v. Schlappa-

sustained, though limitations have run in

Pietra \[Cal.\] 91 P 893. Though complaint

the meantime, provided amended petition

and supplemental complaint were both in-

does not seek to recover upon new and in-

dependent cause of action, and it is error

"amended and supplemental complaint", and

to strike such an amendment from files.

supplemental complaint was distinguished

Johnson v. American Smelting & Refining

only by being contained in separate, but con-

Co. \[Ne.\] 114 NW 144.

,

selectively numbered paragraphs, held that action is reviewed against the personal representatives of a deceased defendant, it is neither necessary nor proper to restate in a supplemental complaint the cause of action.\* Motions for leave to file supplemental pleadings are addressed to the discretion of the court,97 who may ordinarily impose such terms as may be just.98 Where the application is timely,99 leave should not be withheld, unless it be shown that the object of the application is to obtain delay or it is otherwise made in bad faith,1 or unless the proposed pleading is manifestly frivolous 2 or does not present a doubtful question.8 Plaintiff cannot by such a pleading set up a new cause of action.\* In some states the motion for leave to file such a pleading must be accompanied by an affidavit,5 and the proposed pleading must be attached to the moving papers.6 The

versal Talking Mach, Co., 120 App. Div. 392, fuse leave to file additional pleadings after 105 NYS 217. Facts which have come into "cause is set where no good cause is shown." existence since fling of original answer "Id." should be set up by supplemental answer on "88 Motion for leave to serve supplemental "lawe granted." Silver V. Waterman, 122 App. Div. 373, 106 NYS 899. In action by "spheon- "rauted upon payment of costs up to time of "trader, to "ficee mechamatic" line, held "application. Rosenbaum v. Breslauer, 54 that, under Code Civ. Proc. $ 644, it was "Misc. 76, 104 NYS 506." nor to refuse to allow defendant contract "99 Application for leave to serve "supplemental answer" granted. Jones v. Gould, 56 action had been tried, and resulted in "ludg- "Misc. 328, 107 NYS 661. Delay held not such "menti dasmissing complaint as to require denial of "little"'s failure to appeal "therem, and "menti danswer setting up release of plan- "olf"'s claim." Van Kannel Revolving "not been reached, and it did not appear that "Door Co. v. Sloane, 122 App. Div. 613, 107 Dixmys 507. Complaint in action by taxpayer "Preslauer, 54 Miss. 76, 104 NYS 506." "Application for leave to serve "supple- "aditing" or "allowing payment of certain "menti dasm" granted. Jones v. Gould, 56 dites "dismisses" and "claims" were "a- "Misc. 328, 107 NYS 661." "Application for leave to serve "supple- "and "passes" against "towns" in "sald" "Misc. 328, 107 NYS 661." "Misc. 328, 107 NYS 661." "Misc. 328, 107 NYS 661." "Misc. 328, 107 NYS 661." "Misc. 3 Where supplemental answer cannot be "a- "bar, it will be disallowed, but when there "is some doubt as to question, application "should be allowed and question determined "at trial." Jones v. Gould, 56 Misc. 328, 107 NYS 661." "Application for leave to serve "supplemental answer" allegment "menti dasm" granted. Jones v. Gould, 56 Misc. 328, 107 NYS 661." "Application for leave to serve "supplemental answer" allegment "menti dasm" granted. Jones v. Gould, 56 dites "dismisses" and "claims" are "menti dasm" granted. Jones v. Gould, 56 dites "dismisses" and "claims" are "menti dasm" granted, "menti dasm" granted. Jones v. Gould, 56 dites "dismisses" and "claims" are "menti dasm" granted, "menti dasm" and "claims" are 1226 PLEADING SS 9. 10 Cur. Law. court does not determine whether the fact pleaded is available upon a reading of the opposing affladavits,\[7\] nor does leave to file such a pleading in any way determine the rights of the parties.\[8\] The sufficiency of the complaint with respect to the proper joinder of all parties originally included is to be determined by reference to the facts existing and disclosed by the complaint at the commencement of the action, regardless of those disclosed by a supplemental complaint.\[9\]

SS 9. _Motions upon the pleadings._\[See 8 C. L. 1400--Interlocutory motions may be used to simplify pleadings for the purpose of attacking them on demurrer.\[10\]

Statutes in some states authorize the striking of any pleading so framed as to prejudice or embarrass or, delay the fair trial of the action.\[11\] Pleadings may not be stricken for want of sufficient evidence to support them.\[12\] Statutes providing for the striking of the complaint as a punishment for plaintiff's refusal to testify have been held to be valid,\[12\] though a different rule seems to prevail as to striking the answer on a similar refusal by defendant.\[14\] The distinction between a motion to strike and a demurrer should be observed, and one cannot be used interchangeably for the other.\[15\] On a motion to strike, the court's ordinarily confined to the grounds

Misc. 638, 103 NYS 929. Application granted embbarass, or delay fair trial, and when though order to show cause prayed for order permiting service of answer "substantially in the form of" that annexed to moving papers, where moving affladavit alleged that exhibit sq annexed was copy of proposed answer which it was desired to serve. Jones v. Gould, 56 Misc. 328, 107 NYS 661. 7. Silver v. Waterman, 122 App. Div. 378, 106 NYS 899. In action to restrain unfair competition in manufacture and sale of certain article, held that application for leave to file supplemental answer setting up granting of patent to defendants in connection with article manufactured by them was properly granted, though plea could not establish complete defense if allegations of complaint were proven, and though it might not be material, since it was possible that some of acts of unfair competition alleged might be justified by invention, and hence it could not be said that pleading was manfiersly bad or frivolous. Id. 8 Answer. Silver v. Waterman, 122 App. Div. 373, 108 NYS 899. Hence, where certain parties are originally properly joined as defendants, complaint is not made demurrable for misjohn-der or as falling to state cause of action as to them by filling of supplemental complaint showing that they have disposed of their interest since commencement of action. California Farm & Frult Co. v. Schlappa-Pietra \[Cal.\] 91 P589. 10. W. H. Mullins Co. v. Freund Roofing Co., 5 Ohio N. P. (N. S.) 1. If answer to alternative writ of manfamous wholly irrelevant or improper and impedes far trial of cause, it may be stricken out on motion, and any irrelevant, immaterial, or otherwise improper matters therein may be stricken on motion. Gen. St. 1906, 1438. State v. Atlantic Coast Line R. Co., 53 Fla. 711, 44 S 230. Answer to alternative writ of mandamus brought to complement railroad company to repair its rack held to contain denials and other averments responsive to material allegations of writ, so that motion to strike entire answer was not well taken. Id. Plea in abatement to venue, filed with pleas to merits, does not prejudice, specified.16 Matters of defense in no way appearing from the complaint will not be considered.17 Sustaining a motion to strike a plea is harmless where the facts therein alleged are provable under a plea of the general issue.18

The petition alone, and not the evidence, must be looked to in determining its sufficiency on motion in arrest of judgment.19 Motions to make more definite and certain are addressed to the discretion of the court.20 All grounds of objection should be stated in a single motion.21 In New York such a motion will not be denied because the moving papers contain an affladavit of merits.22 Motions to make more definite and certain and for a bill of particulars are improperly joined.23 .An order requiring a pleading to be made more definite and certain should ordinarily provide for the striking out of the allegations attacked, rather than the whole pleading; in case of disobedience.24

A joint objection by two parties to the introduction of evidence because of the insufficiency of a pleading is properly overruled if it is good as to one of them.25

In some states, motions to require plaintiff to elect between counts must be in writing 20 and must be accompanied by written specifications of the grounds thereof.27

Leave to file amended and supplemental complaints may only be obtained by separate; consecutive, applications.28

SS 10. _Right to object, and mode of asserting defenses-and objections; whether by demurrer, motion, etc.--Want of jurisdiction_ See **s C. L. 1407** may be raised by demurrer if apparent on the face of the complaint,29 but if not must be set up by answer.30 The fact that plaintiff sues at law instead of in equity is no ground for dismissing the complaint on demurrer, but the case should be transferred to the proper court.31 The objection that the complaint in a suit in equity shows that plaintiff has,

! 16. Williams v. Alabama Cotton O11 Co. \[Ala.\] 44 S 957. \[Ala.\] 44 S 818. \[Ala.\] 44 S 818.

1228 PLEADING SS 10. 10 Cur. Law. an adequate remedy at law cannot be raised by an objection to the introduction of any evidence.\[32\]

_Objection to parties_ See * C. L. 1407 for want of capacity to sue, or for misjoinder or nonjoinder, may be raised by demurrer on that ground if apparent on the face of the complaint, or by plea or answer if not,\[33\] but does not amount to a failure to state a cause of action.\[34\]

_Nisjoinder of causes of action_ See * C. L. 1408 is ordinarily ground of demurrer if apparent on the face of the complaint \[85\] and not for motion to strike.\[86\] On objection that two causes of action are improperly joined, plaintiff may dismiss as to one and proceed to trial upon the other.\[87\] If the objection is as to the manner of statement only, the remedy is ordinarily by motion to separate,\[38\] or to strike,\[39\] or to require an election.\[40\]

_Irrelevant,\[See * C. L. 1409 redundant, or immaterial matter is ordinarily reached by motion to strike,\[41\] and not by general demurrer.\[42\]_

S3. Shannon v. Dorsinksl \[\[Vis.\] 114 NWW use and occupation of house thereon by railway company for storage of tools, held that court properly struck latter and directed issues raised thereby to be tried in separate action or before separate Jury. Coyne v. Mennphis, 118 Tenn. 651, 102 SW 355 Prace. $ 92. Louisville, etc., R. Co. v. Herman. 40, Where two causes of action, which might have properly been united in same petition if stated in separate counts, are improperly blended in one count, remedy is by \[Colo.\] 93 P 1099. Can only be taken by dextree out other. Jordan v. St. Louis Diamond Rubber Co. v. Harryman \[Colo.\] 92 P 922. Can be raised only by demurrer. Prac. Book, p. 50, 170. Gorham v. New Haven, 79 Conn. 670, 66 A 505. Where several causes of action are improperly joined, demurrer on that ground should be sustained and plaintiff be given leave to amend. White v. Whitcomb, 13 Idaho, 490, 90 P 1080. May be reached by demurrer where two causes are distinctly and completely pleaded. Mutual Life Ins. Co. v. Gillette, 119 App. Div. 430, 104 NYS 683. 36. Objection that complaint improperly joins cause of action at law on bond and one in equity to foreclose mortgage given to secure it, cannot be raised by motion to strike as irrelevant, but should be taken by demurrer or at trial by proper motion or objection to evidence. City Realitate Co. v. King, 122 App. Div. 556, 107 NYS 535. 37. McCague Sav. BK. v. Craft \[Neb.\] 115 NNT 315. 38. Commingling in one statement of what should have been separate statements of same cause of action must be taken advanquage of by motion. Possell v. Smith, 39 Colo. 127, 88 P 1064. Demand to separately state and number defense is, property subject of motion to make more definite and certain, and separate stating and numbering cannot be ordered on motion to strike irrelevant and redundant matter. Bibling Brew, Co. v. Adler, 103 NYS 93. 38. Objection that causes of action are not separately stated must be raised by motion to strike, under B. & C. Comp. 106, made at proper time, and cannot be raised during ad-gations will be stricken in units equity \[Or.\] 93 P 364. Where complaint in action against city and railway company presented acute of action for impairment of value of property by lowering street, and one for 10 Cur. Law. PLEADING SS 10. 1229

_Scandalous matter_ will be stricken on motion.\[48\]

_Frivolous pleadings._--Statutes in some states provide that judgment may be entered on frivolous pleadings on motion.\[44\]

\_Formal defects_See S. C. L. 1409 can ordinarily be reached only by motion to require their correction \[45\] or to strike,\[46\] and'not by objection to evidence,\[47\] motion for a directed verdict,\[48\] or demurrer,\[49\] except where special demurrers are authorized.\[50\]

Where a petition still states a cause of action against the defendant after the striking out of the redundant and improper matter, rupture court had given plaintiff permission the court has no power to dismiss the action to prosecute action on its claim against without prejudice in the absence of any pleading traversing the averments left in factly clear, in view of all the facts, that the petition. Klink v. Toledo R. & L. Co., 10

Ohio C. C. (N. S.) 48.

42. Where complaint makes out good cause of action for recovery of any damage at all, but combines in addition there to clean for nonrecoverable damages, proper People v. McClellan, 53 Mise, 48, 105 NYS 223.

way to rid it of latter claim is by motion to strike, objection to evidence, or special in-sarry party held not so palpably bad as to struction to jury, and not by demurrer.

Ustify its being treated as frivolous, it be-Western Union Tel. Co, V. Westmoreland

\[Ala.\] 43 S 790: Western Union Tel, Co. v. Westmoreland

\[Ala.\] 44 S 212. If complaint

\[Ala.\] 44 S 213. If complaint

\[Ala.\] 44 S 381. Where complaint

\[Ala.\] 44 S 381.

1230 PLEADING SS 10. 10 Cur. Law.

_Uncertainly_ See * C. L. 1410 is ground for a motion to make more definite and certain,51 but not for objection to evidence,52 or motion to strike,53 or dismissal of the

plant does not fully and clearly state terms

51. Avon Springs Sanitarium Co. v. Weed, of contract sued on cannot be reached by de-

119 App. Div. 560, 104 NYS 58; Gillikin v.

murre to substance, but should be remedied

Lake Drummond Canal & Water Co. \[N.C.\]

by motion to make more definite and certain,

60 EB E64. In action to recover sum claimed

or by demurrer to form where permissible,

for work and labor performed, and money

Revival 1005, $ 498. Vwd. V. Klineal, 144

advanced, held that, if there was anything

N. C. 393, 67 NE 4. Omission of word "coun-

uncertain about method of stating itemized

!" in petition in action on liquor dealers'

second field by paintf as basis of action,

bond held mere clerical error which could

detendant should have objected to it on that

not be availed of by general demurrer. White

ground, and moved to have it made more

v. Manning \[Tex. Cir. App.\] 18 Tex. Ct. Rep.

definite and certain. Deal V. Beck \[Ark.\]

465, 102 SW 160. Objection that plaintiff

103 SW 736. In action by servant against

not entitled to money judgment because

master for personal injuries, held that de-

there is no prayer therefor in complaint

fect in complaint in failing to sufficiently

cannot be reached by general demurrer, not-

utilstanding Code Civ. Proc. $ 1003. Don-

negliquee was claimed to have caused in-

ovan v. McDewitt \[Mon.\] $ 2 P 49. General

jury, was vice-principal and not fellow

demurrer to amended complaint does not

reasure solution that introduces new cause

make more definite and certain. Roberts

of action accruing since commencement of

action. Ferguson v. Carr \[Ark.\] 101 SW 165.

in action against city for injuries due to

1177. Objection that defense is improperly

fective sidewalk, held that defendants'

incorporated in the several separate defenses

should be raised by motion to strike, and is

tion as to where accident occurred was by

not reached by demurrer to said defenses as

insufficient in law. Stemmerian v. Kelly,

certain. City of Huntington v. Stuver \[Ind.

122 App. Div. 669, 107 NYS 879. Fact that

app.\] $ 3N EB 518. Not every indefinite or

special plea tenders issue covered by plea

uncertain allegation may be made subject

of motion to make more definite and certain,

does not render it demurrable. Atlantic

but only such as are so indefinite and un-

Coast Line R. Co. v. Crosby, 53 Fia. 400, 43

S. 318. Sustaining demurrer held harmless.

Id. Demurrer to paragraph of answer held

property overluted, in being good as an

argumentative denial. Teague v, Blooming-

ton \[Ind. App.\] $ 1N NE 103. Argumentative

quas, allegations that defendant operated

plea is good on general demurrer. De Long

v. Spring Lake Beach Imp. Co. \[N. J. Law\]

96 A $ 591.

50. Defects of form can be reached only

by special demurrer. Hicks v. Hamilton

\[Ga. App.\] $ 8E 331; People v. Munroe, 227

III. 604, $ 1 NE 704; Central of Georgia R. Co.

Alegations that defendant was guilty of

v. Banks & _Forsorsch_, 128 Ata. 785, 58 AB 852.

Objection that counts of declaration in action

tions, etc., held subject to motion to make

of repelvin refer to another count for de-

sorption of property, instead of being com-

being amendment of complaint so as to make

plete in themselves. McDenough v. Reilly,

131 III. App. 583. Pleading should not be

tract more definite held error, since court

sticker for prolility except in extreme and

would, without amplification or amendment

palpable cases, but, in cases of doubt, better

have no difficulty in applying correct rule of

practice is to proceed by special demurrer so

damages. Friedman v. Denovsky, 122 App.

that matter may be corrected by amendment

Wefel v. Stillman \[Ala.\] 44 S 203. Where

on complaint states all facts essential to re-

be made more definite and certain is

cover, but states them imperfect, demur-

r, to be effectal, must be special, and di-

rect to the very defect apparent. Union

as required by Code Civ. Proc. $ 481, 646.

Ice Co. v. Doyle \[Cal. App.\] $ 2 P 112. Com-

distant is good against general demurrer

distant.

Div. 830, 103 NYS 835. Court may require

though 10 Cur. Law. - PLEADING SS 10. 1231

complaint at the trial,84 or demurrer,85 except when demurrer on that ground is authorized by the code.86 A party seeking a more particular statement of his oppo-

\\begin{tabular}{l l} \\hline \\hline \\multicolumn 12332 PLEADING SS 10. 10 Cur. Law.

nent's claim for the purpose of narrowing the issues at the trial, or to prevent surprise, should apply for a bill of particulars.\[57\]

_Inconsistency or departures_ See 8 C. L. 1411 in pleading are ordinarily reached by motion \[58\] or demurrer.\[59\]

_Failure to state a cause of action or defense_ See 8 C. L. 1411 may be reached by demurrer,\[60\] objection to the introduction of any evidence,\[61\] motion to dismiss,\[82\]

tainty may be raised by demurrer. Both-well v. Denver Union Stockyard Co., 38 Colo. 221, 90 P 1127. Objection that facts are stated hypothetically or by way of rectal may be taken advantage of by general defuncture. Ifled v. Ziesler \[Colo.\] 9 P 85. Lack offulness or explicitness in allega-tions of declaration should be reached by demurrer, and not by motion to strike. Atlantic Coast Line R. Co., V. Crosby, 53 Fla. 400, 43 S 318. Ambiguous and evasive answer to suit on note may be stricken on defuncture. Thomas v. Slesetz \[Ga. App. 663, 58 SE 181\]. Where petition is ambiguous as to whether action is ex contractor ev as defuncture. Jenckins v. Seshoard Air Line R. Co. \[Ga. App.\] 59 SE 1120. Where defendant desires complaint nade more definite and certain, should especially demur. Carlson v. Barker \[Mont.\] 93 P 644. 57. In such oane, should not be allowed to obtain amended pleading on motion to make more definite and certain on, theory that precise meaning or application of allega-tion is uncertain. Harrington v. Stillman, 120 App. Div. 659, 105 NYS 75. Where disinction exists, should be observed though result of either application would be same. Id.

SSs. If several defenses are inconsistent, remedy is by motion to strike or to require election, and not by motion for judgment on pleadings. Dee V. Nachbar, 207 M6. 680, 106 SW 55. If new matter in reply is de-parture from case made in petition, it should be stricken on motion or objection, or disregarded. Halifner v. Union Transfer Co. \[Neb.\] 112 NW 334. Where denials in plea raised issues of fact requiring evidence on part of plaintiff before he was entitled to recover, held error to strike plea on general demurrer because of any inconsistent or apparently inconsistent allega-tion therein. Wade v. Watson, 129 Ga. 614, 59 SE 294, Objection that cause of action stated in cross petition is not germane to that stated in original petition should be raised by motion to strike or to dismiss. Novak v. Novak \[Iowa\] 115 NWv 1.

59. Objection to inconsistency of two counts in narr. must be taken advantage of by demurrer, and will not be injured into on error. Whitney v. Haskell, 216 Pa. 622, 66 A 101.

01. In view of statute of amendments and abolition of general demurrers, when pleading, though not unnecessarily prolix or frivelious or irrelevant, is supposed to be substantiaily defective, as where facts alleged do not constitute cause of action or defense, objection must be taken by defuncture. Wefel v. Stillman \[Ala.\] 44 S 203. If complaint in action for personal injuries was defective in filling to show proximate cause of injury, and not the possibility of any evidence of frauds. Miller v. Drought \[Tex. Clv. App.\] 19 Tex. Cl. Rep. 416, 102 SW 145. Plea.

Sections up matter contradicting written instrument which would have to be established by pard evidence de hors, record is bad on demurrer. Grimhes Bro. Co. v. Winfield, 53 Fla. 589, 43 S 687. If nawwer to alternative writ of mandamus is responsive to allega-tions of writ, but is wholly insufflen as a pleading, demurrer will lie. Stute v. Atlantic Coast Line R. Co., 53 Fla. 711, 44 S 230. Where petition sets forth cause of action in orderly paragraphs, and plea and answer thereto set up no ground of defense, court may at any stage of trial, give cause such direction as will disregard plea. Bedingled v. Bates Advertising Co., 2 Ga. App. 107, 58 SE 320. Cause of action being purely equitable in its nature, insufficiency of defense that plaintiff has adequate remedy at law may be raised by demurrer. Holland v. Movie \[Iowa\] 115 NWv 1.

59. Objection to inconsistency of two counts in narr. must be taken advantage of by demurrer, and will not be injured into on error. Whitney v. Haskell, 216 Pa. 622, 66 A 101.

01. In view of statute of amendments and abolition of general demurrers, when pleading, though not unnecessarily prolix or frivelious or irrelevant, is supposed to be substantiaily defective, as where facts alleged do not constitute cause of action or defense, objection must be taken by defuncture. Wefel v. Stillman \[Ala.\] 44 S 203. If complaint in action for personal injuries was defective in filling to show proximate cause of injury, and not the possibility of any evidence of frauds. Miller v. Drought \[Tex. Clv. App.\] 19 Tex. Cl. Rep. 416, 102 SW 145. Plea.

Sections up matter contradicting written instrument which would have to
VOL. X. No. 6. CURRENT LAW, OCTOBER, 1908. **1233**

**(Copyright, 1908; by the Keefe-Davidson Company.)**

**PLEADING--Cont'd.**

tion to strike,${}^{\\tt 63}$ or motion for judgment, notwithstanding the verdict.${}^{\\tt 44}$ The objection that a counterclaim is not pleadable in the action must be taken by demurrer, or, if not apparent on the face of the answer, by reply.${}^{\\tt 66}$ Defects in a plea to the jurisdiction may be reached by general demurrer.${}^{\\tt 66}$

_Matters of defense${}^{\\tt 67}$ must ordinarily be raised by plea or answer,${}^{\\tt 68}$ unless apparent on the face of the complaint, when demurrer will lie.${}^{\\tt 69}$ Defenses not raised by answer or demurrer are deemed waived.${}^{\\tt 69}$_

**SS 11.**_Waiver of objections and cure of defects.${}^{\\tt See}$_\* C. L. 1413--Objections to pleadings must as a rule be made ${}^{\\tt 71}$ and brought to a hearing ${}^{\\tt 72}$ at the earliest oppor-

v. Bal1, 18 Oxl. 535, 90 P 1017, Objection to

parment was made to him under mistake of introduction of evidence should be sustained

fact, or that he had committed or particl-

and action dismissed if it appears that defect

in complaint is one of substance which can-

payment was made under mistake of law, not be cured by amendment or evidence.

should have been set up by demurrer and

OTDay v. Ambanu \[Vhash.\] 92 P 421. Failure

not by plea. Drenen v. Griffin \[Ala.\] 43

to demur to plea which sets up no valid de-

S 785. Ruling upon question of negligence

fense in law does not preclude plainfirm

may be invoked by general demurrer. Har-

moving to exclude evidence offered in its

den v. Georgia R. Co. \[Ga. App.\] 59 SE 1122.

support. Halliday v. Bank of Stewart Coun-

General damurrer to petition in action for

ty, 128 Ga. 639, 85 SE 169.

neglence should be sustained where it

62. Oral motion to dismiss plainff\* case

appears from allegations thereof that in-

because petition does not state cause of ac-

turnes were result of failure to exercise due

tion may be made at any stage before ver-

date. Capps v. Edwards \[Ga.\] 60 SE 455,

ence of defendant. Louisville, etc., R. Co.

On oral motion to dismiss because petition

v. Edmondson, 128 Ga. 478, 57 SE 877. De-

does not state cause of action, question is

mutrer to answer held properly sustained

not whether any particular allegation has

been defectively pleaded, but whether petl-

defendant was estroped from averring or

tion 1 In its entirety sets out cause of action.

H. Jettition in action for damages for breach

599, 59 SE 281. Defense of laches may be

of contractor to sell stock held sufficient. Id.

r raised by general demurrer to complaint

**63.** Plea or answer which sets up no legal

where laches is apparent on its face. Elliott

or equitable defense and is bad in sub-

v. Clark \[Cal. App.\] 89 P 455. Complaint in

stance may be stuficken on motion at trial

action to establish trust and for accounting

term. Bailey & Carney Bugey Co. v. Guthrie,

held demurrable. Id.

1 Ga. App.\] 55, 58 SE 103.

70. Where a defendant sued as joint maker

01. Motion for judgment notwithstanding

verdict because of defect in petition may

did not, by demurrer or plea, object to form

only be sustained when evidence heard,

of suit, or alleg that he was other than

issues submitted to jury, and verdict, do not

junster, held that he could not object on

cure defect. City of Henderson v. Smith, 31

Ay. L. R. 860, 14 SW 2717.

adress, and that judgment was not entered

45. St. 1889, 18 2658, 2680. Randal v. Link

\[Vis.\] 114 NW 498.

66. All defects in plea to jurisdiction may

be reached by general demurrer. United

States v. U. S. Fidelity & Guaranty Co. \[Vt.\]

sou corporations, Valley Lambert & Mrs.

66. A 809.

01. See 8 C. L, 1412. See, also, topics

dealing with particular defenses, as Former

ladno, 662, 93 P 765. Where defendant failed

Adjudication, 5 C. L, 1412; Limitation of

to plead contract in abatement, held that he

Actions, etc., 10 C. L, 8 1834 PLEADING SS 11. 10 Cur. Law.

tunity, and, while entire failure to state a cause of action,\[13\] or want of jurisdiction of the subject-matter,\[74\] or the objection that the action is prematurely brought,\[75\] may be availed of at any time, other objections are waived by pleading responsively,\[76\]

thereto, defendant must make his objections -- cause of action. Leigh v. National: Hollow at the first term, or he will be held to have waived any objection which can be cured by amendment. Id. Defendant cannot, by asking instruction that declaration should be cannot be cured by answer, verdict, or disregarded because it failed to state cause of action, False any question which could have been raised by departure. American Car & & Foundry Co. v. Hill, 228 Ill. 227, 80 NB 784.

Defendant having right to plea in abatement must a wall himself of it at first opportunity \[Ind. App.\] SS 85.4. Petition to recover and before or at time of pleading to merits and if he does not do so it will be waived. That action was prematurely brought, C Clayton v. Dinwoved \[Utah\] 83 P T23. Fall-upre to object to admission of evidence held \[Was\] of evidence that it was inadmissible under plagdings. Hubbard v. Rutland R. Co. \[Vt.\] 68 A. 647.

72. Demurrant will be deemed to have waived those grounds of objection to which he fails to direct court's attention. Indianapolis -- clis St. R. Co. v. Kane \[Ind.\] 81 NE 721.

01. May be made for first time on appeal. Leigh v. National Hollow Brake Beam Co., 131 Ill. App. 106: Cartwright v. Liberty Tel. Co., 265 Mo. 216, 103 SWP 832. Though demurrer to petition was overuled below. Pardee v. Kuster, 15 Wyo. 368, 89 P 572, 91 P 836. Sufficiency of petition will be considered on appeal where there is motion in arrest of judgment on ground of its insuffin. Teiency, though defendant has waived demurrer or then found by pleading to merits. Clippard v. St. Louis Transit Co., 202 Mo. 432, 101 SWP 44. Assignment of error calling in question for first time on appeal sufficiency of plea, but took issue thereon, and it was clearly proved that elency of complaint must reach entire complaint, since sufficiency of single paragraph can only be tested by demurrer. Indianapolis -- clis St. R. Co. v. Boim \[Ind. App.\] 83 NE 754. Objection is not waived by failing to demur. Caskey v. Edwards \[Mo. App.\] 107 SNP 37. Not by failure to raise it by denurrer or answer. Code Civ. Proc. 8 49.

01. Where defendant did not plead limitations In code form, but plaintiff did not 432, 101 SWP 44. Assignment of error calling in question for first time on appeal sufficiency of plea, but took issue thereon, and it was clearly proved that clause of action was barred, held that defend. plain, since sufficiency of single paragraph -- can only be tested by demurrer. Indianapolis -- clis St. R. Co. v. Boim \[Ind. App.\] 83 NE 754. Objection is not waived by failing to demur. Caskey v. Edwards \[Mo. App.\] 107 SNP 37. Not by failure to raise it by denurrer or answer. Code Civ. Proc. 8 49.

81 NE 374. Failure to state cause of action can not be cured by answer, verdict, or disregarded because it failed to state cause of action, False any question which could have been raised by departure. American Car & & Foundry Co. v. Hill, 228 Ill. 227, 80 NB 10 Cur. Law. PLEADING SS 11. 1233

failure to object by motion," or demurer or answer," going to trial on the merits," or by suffering a default."Omissions in a pleading supplied by allegations in

not complain of curable defects in declara-

complain that no cause of action was stated. Ilinois Cent. R. Co. v. Paneblango,

if, under. pleadings, any contract or agree-
129 Ill. App. 1. Objection that complaint

ment could be proven which was fairly

is partly in irrespasas, partly in case, cannot

within allegations made. Nichols V. Riley,

be availed after pleading the general issue

118 App. Div. 404, 103 NYS 554. Where com-

and after verdict. Chicago Consol. Trac.

plain states cause of action, indefiniteness

Co. v. Mahoney, 230 Ill. 562, 82 NE 868,

is waived by answering without moving to

affg. 131 Ill. App. 581. Objection that

make more definite and certain or demurov-

counts of declaration in repievin referred

ring. Revisal 1905, $ 496, 498. Hough v.

to another count for description of prop-

Southern R. Co., 144 N. C. 692, 57 SE 469.

entry, instead of being complete in themselves

scyles held too late after pleas to merits had

recovery of reality and of ferrypost and ap-

been filed to them, particularly after verdict.

plinces held waived, under Kirby's Dig. $

McDenough v. Reilly, 131 Ill. App. 553. Mo-

6082, by failure to object thereo, Lake v.

tion to strike allegations of complaint as

Combs \[Ark\] 104 SW 544. Objection that

to various provisions of contract sued on

amendment to complaint introduced new

and performance thereof by plaintiff's

sagnor held properly overruled in 'view of

ment of action held waived where defendant

fact that defendant in his answer pleaded

merely demurred to amended complaint on

such provisions and admitted performance

ground that it did not state cause of action,

thereof. Old Setters' Inv. Co. v, Marshall

and that plaintiffs did not have legal capac-

Vinegar, Pickle & Soap Co. \[Iowa\] 113 NW

ty to use. Ferguson v. Carr \[Ark\] 107 SWV

325. Pleading to merits waives objection

that plaintiff has blended in one count two

wavled by failure to demur. Leigh v. National

causes of action which might properly have

below Brake Beam Co., 131 Ill. App. 106.

been united in one petition if stated in Sep-

Defendant held not entitled to object for

arate counts, and oral motion, made at

first time on appeal that count of declara-

ginning of trial, to require plaintiff to

tion was bad for duplicity where he did not

elect, comes too late. Jordan v. St. Louis

demur but answered and went to trial on

Transit Co., 202 Mo. 418, 101 SWV 11. De-

merits under declaration ambiguous set-

fendant's assertion of right to be sued in

ting forth two causes of action. Paine v.

particular county is plea in abatement,

Kelley \[Mass.\] $ 88 NE 8. In action before

whether presented by exception or other-

wise, and hence is waived where not filed

until after answer to merits. Wolf v. Will-

fence incolaging plaintiff's farm, held that

lingham \[Tex. Civ. App.\] 107 SW 60. Where

right to file plea in abatement has been

wavled by answering to merits, it cannot

not lead into defendants' incolisure was

be regained by withdrawing or abandoning

such answer to merits. Id.

67. Defendant who falls to attack by motion or demurer petition stating facts suf-

fclent to constitute cause of action for

breach of warranty, and also containing

comes too late if made after answer where

averments that would justify recovery on

ground of fraud cannot complain on appeal

St. 1899, $ 598, 602. Hudson v. Wright, 204

that case was tried as one based on con-

M. 412, 103 SWV 8. Misolinder of causes of

tract. Burgess v. Aleorn, 75 Kan. Tase, 75, 90

p 239. Defendant held not entitled to com-

plan on appeal that demurrer to answer

sound \[Mq.\] 106 SWV 645. Defendant failing to

and sustained thereto where he did not

make motion to - that effect below, particurov-

Code, $ 176, cannot complain of court's

larly where parties went to trial and little-

gated question claimed not to have been suf-

C.\] 60 SE 689. Where under code defendant

ficently alleged in petition. United States

Fidelity & Garanny Co, v. Paxton \[Ky.\] 106

be desires fact that plea of limitations ap-

SWV 841. In suit by stockholder to cancel

certificate of corporate stock alleged to have

mere defect of form not available to plain-

been Improperly issued, held the pleadings of the adverse party are thereby cured." After verdict, no defects

sion. After objection was overruuled, issues raised by answer, which sought to

miss petition after hearing because no an-

sues raised by answer, which sought to

swer was filed to amended petition where

have title established in defendants and

judgment was not objected 'to on that

any cloud thereon removed, were tried on

ground in lower court. Wright's Admr' v.

merits. Heid that objection that action

Wright \[Key.\] 108 SWP 266. Plaintiff held

should have been in ejectment was waived.

not entitled to object on error that no lssin.

Brown v. Baldwin \[Wash.\] $9 P 483. Though

was joined on pleas where court and both

petition is bad for duplicity, if it is not

particles dealt with case as though plead-

tacked by special demurrer on that ground

ings had been perfected, and evidence was

and parties go to trial and introduce evi-

introduced and case argued on that theory,

dence relative to issues raised by petition

he having sustained no injury, Deatrick's

and answer; verdict for plaintiff will not

dAmr' v. State Life Ins. Co. \[Va.\] $9 SE

be set aside as without evidencen to suppor

489. Failure to answer cross complaint held

port it if either cause of action is supported

waved by going to trial without insisting

by any evidence. Central of Georgia R.

On answer, to do so being an election to

Co. v. Banks, 128 Ga. 786, 58 SE 352. Objection that amended petition was defective

cluding contention that they should be

in falling to offer to place defendant

taken, as admitted, Updegraf v. Marked

statu quo held waived by answering and

going to trial on merits. Smith v. Smith,

treating allegations of answer as denied

75 Kan. $47, 89 P 896. Failure to object to

form of plealing waves error if any, in

plaintiff held to have waived: necessity for

stating two causes of action in same com-

pright without separating them as required

Filing of replication is waived by submit-

by code. Schultz v. Greenwood Cemetery,

190 N. Y. 276, 83 NE 41. Where parties go

to trial on material issue raised by answer,

though it should have been raised by pe-

dition, court is not justified in directing verdict for defendant if there is any evidence

supporting it. Cahill v. Illinois Cent. R.

Co. \[Towal\] 115 NW 216. Defendants' plea

of privilege to be sued in county of his

legance held waived by answering and going

to trial without urging plea or presenting

it to court for action. Karner v. Ross \[Tex.

Judge during trial, was never in fact filed,

Civ. App.\] 16 Tex. Ct. Rep. 737, 85 SWP 46.

Obijection that counterexample is not pleadable

in the action is waived unless raised by

demyrer or reply. St. 1898, $ 2659, 2660,

80. See, also, Defaults, 9 C. L. 960. Alle-

Randall v. Link \[VWs.\] 114 NW 498. Where

gation in form of conclusion of law is

testlimony does introduced in support of

firmative defense alleged in answer and

faults of pleading being cured by judgment,

cross complaint, held that, if counterclaim

in absence of any demurrer, Killilea v.

thereby set up did not arise out of same

transaction as that which was basis of suit,

defect was cured. Reynolds v. Dickson

sum. Id.

\[Wash.\] $3 P 910. Though claims for dam-

ages set up in answer were defectively

pleaded, held that where reply treated them

swer. Omile v. O'Toole \[N. D.\] 112 NW 677.

as counterclaims and they were so regarded

deletes held careful. Insuffiency of com-

at trial, and they were not otherwise dis-

paint held not ground for reversal where

posed of by trial court, they were issues

mads by pleadings, and court should have

have tended worse set forth by answer,

made findings on such issues. Louie Chung

v. Stephenson \[Or.\] $9 P 386. Defendant

fendant and issue was joined thereon by

held not entitled to object that reply was

palaintff's answer to the two latter plead-

departure where it joined issue thereon and

ings. Donegan v. Houston \[Cal. App.\] 90

case was tried on theory that matter therein

alleged was properly in Issue, Dodd v.

IMS,
In action on certificate of insurance

Pittsburg, etc., R. Co. \[Key.\] 106 SWP 787.

that if it were necessary to plainff's right

Objections that replication is not answer to

of recovery to allege that defendant's

special plea and that it is bad for duplicity

facers had failed or refused to make assess-

cannot be raised for first time on writ of

ment to pay plaintiff's benefit, and that as-

error after trial on merits. Stimmel v.

sessment, if made, would have produced

Bentall \[Ya.\] 60 SE 76. Acceptance of

smifficient funds for that purpose, answer

material which might have been cured will avail,82 and the appellate court may, if necessary,

Footnote 8: The _Hackett_ is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, and which could be _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a _Hackett_, is a _Hackett_, which is a _Hackett_, which is a _Hackett_, which is a \_H regard amendments obviating such defects as having been made.83 A verdict will not, however, cure failure to state a cause of action.84

more formality and certainty. Chesapeake, etc., R. Co. v. Satterfield, 30 Ky. L. R. 1168, 100 SW 844. In action for damages for breach of building contract in that house as built was defective, petition held to pre-clude idea that defects were not latent, and hence not to show waiver by acceptance, so that failure to describe them as latent, if a fault, was cured by verdict. Forbes v. Hunter, 31 Ky. L. R. 285, 102 SW 246. If petition in action by servant against master was defective in failing to allege that plain-tiff did not know of danger incident to work in way in which it was attempted to be done, held that error was cured by verdict, where proof was heard on question, and it was submitted to jury without objections. City of Henderson v. Smith, 31 Ky. L. R. 860, 104 SW 277. Failure of complaint, in action against city for injuries to pedestrian resulting from defective sidewalk, to allege that crossing where plaintiff was injured was within city limits and being maintained by city, held cured by evidence, instructions and verdict. City of Henderson v. Sizemore, 31 Ky. L. R. 1134, 104 SW 732. In action for personal injuries, defect in petition in failing to allege that injuries were permanent held cured by evidence, instructions, and verdict. Maysville, etc., R. Co. v. Willis, 31 Ky. L. R. 1249, 104 SW 1016. In action by servant against master for personal injuries, petition held to sufficiently allege that plaintiff was himself exercising due care, as against objection after verdict. Re-public Iron & Steel Co. v. Walsh \[Ky.\] 105 SW 974. In action by servant for personal injuries, held that, if petition was defective in failing to allege that plaintiff only continued to work reasonable time after defendant's promise to prop entry to mine, defect was cured by verdict for plaintiff, question having been raised by evidence and submitted to jury, and it not being reasonable to presume verdict would have been rendered for plaintiff without such evidence, Ballou v. Potter \[Ky.\] 106 SW 1178. In action to have reality declared to be held in trust for plaintiff on theory that provisions to that effect were, through mistake, accident, and oversight, omitted from decades on conveying it, held that defects in petition in that allegations of mistake, accident, and oversight were too general and indefinite were cured by judgment, where no objection on that ground was made in trial court. Rev. St. 1899, $ 672. Smith v. Smith, 201 Mo. 533, 100 SW 579. In action against railroad company for killing of stock alleged to have resulted from defendant's failure to maintain lawful fence, held that, though petition was demurable for failure to allege that defendant had notice of defect in fence, allegation that fence for long time prior to accident was negligently and carelessly permitted by defendant to remain in unsafe condition was sufficient after verdict. Max v. Quincy, etc., R. Co., 123 Mo. App. 172, 100 SW 693. Petition in action under status against railroad company for damages alleged to have resulted from its failure to maintain lawful fence held sufficient after verdict and judgment, though probably open 10 Cur. Law. PLEADING SS 11.

In the absence of a statutory provision to the contrary, \[85\] pleading to the merits ordinarily waives a previous demurrer \[80\] or motion to require an election. \[87\] Pleading over \[88\] or amending \[89\] after ruling on demurrer ordinarily waives any error in
the ruling, and such an error may be waived by entering into a stipulation inconsistent with an intention to insist on it." So, too, any error in striking a pleading" or in sustaining an objection to the introduction of any evidence in support of its allegations" is waived by acquiescing in the ruling. An objection to the allowance of an amendment is waived by accepting the benefits of conditions imposed" and an objection to the allowance of a trial amendment on the ground of surprise by proceeding with the trial without asking for an adjurnment." Going to trial without objection is a waiver of the right to plead de novo to an amended pleading." Answering an amended pleading waives the effect of a previous ruling on a demurrer to the original," but not the right to object that recovery can no longer be had on the original pleading." A general appearance waives want of jurisdiction over the person."

## 12 Time and order of pleadings

See 1419.-Pleadings must ordinarily be filed within the time fixed by statute," though the court may in its discretion, and for good cause shown, extend the time for pleading,1 or allow a pleading to be filed out of time.2 The time for filing may also be extended by stipulation of the parties."

\[Iowa\] 111 NUV 1016. Tendering amended pectin and making application to file same held waived of any error in sustaining denumerter to original petition. Garfield County was anmerer to original petition. Garfield County was anmered by answer, defendant elected to treat amendant as remedying defects, if any, on which for misjoinder and failure of petition to issues in another way, so that ruling on the demurrer could not be accepted as many as to issues joined and participation thereafter in taking of such testimony. Michael v. Security Ins. Co., & Ohio N. P. (N. S.) 401.

91. Where exception to order striking out pleading as irregular is entered on record in accordance with P. L, 1903, p. 569, $ 110, defeated party wakes error by filing new pleading. King v. Morris \[N. J. Err. & App.\] 68 A 162.

01. Where plaintiff asks leave to amend petition either by interlineation or by filing such other pleading as court may order, and complies without objection to order requiring him to file amended petition, he cannot thereafter complain of such ruling. Hackler v. Miller \[Neb,\] 114 NUV 274. Where objection to introduction of any evidence is sustained on ground of defect in petition, and plaintiff obviates objection by filing amendment, he thereby waives exception to ruling. Id.

01. Objection to order allowing amendment of answer after verdict so as to change issues held waived by acceptance of costs, payment of which was imposed as condition of allowance. Price v. Grzyll \[Vls,\] 114 NUV 100.

01. Allowance of amendment of complaint at trial changing action for work and materials furnished to one for damages for breach of contract to procute dismissal of certain tenement house violations and to pay expense Incident thereof held no ground for reversal. Vucel v. Pellettieri, 103 NYS 104.

01. Race v, Isaacson, 124 Ill. App.\] 196. Where plaintiff amends after demurrer to petition is sustained, defendant, by answering over, waives effect of previous ruling as to those portions of petition at least to which he pleads issuably. Marshall 10 Cur. Law. PLEADING SS 14. 1341

Filing, service, and withdrawalSee & C. L. 1420--Pleadings are generally required to be filed.4 Where the judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant desiring such determination is sometimes required to demand it in his answer, and to serve a copy of such answer on the attorney of each of the defendants to be affected thereby.8

Footnote 4: The author is grateful to the anonymous referee for the support of the author.

Statutes in some states authorize the re-establishment of lost or destroyed pleadings by the court in which the action is pending.8

Footnote 4: The author is grateful to the anonymous referee for the support of the author.

SS 14. _Issues made, proof and variance.See & C. L. 1421--An issue of fact arises whenever an allegation of one party is denied or deemed denied by the other.' The denial of a conclusion of law raises no issue of fact.8 Under the Maryland rule day acts, defendant's appearance and compliance with the statute gives him the benefit of all defenses.9_

Footnote 4: Striking out reply because it had not been marked "Held" and because no reply was necessary, held error where it had re-mained on file several terms without ob- \[Idaho\] #3 P P54. General denial puts in admissible all facts which directly tend to disprove any one or more averments of the complaint, or to show that plaintiff never had a cause of action.11 In common-law

issue only such pleaded facts as are neces-

sary for plaintiff to prove in order to recover

335, 109 NNV 597. In forcible entry and on his cause of action. Herpolsheimer v.

unlawful detainter proceedings for restitution

Citizens' Ins. Co. (Neb.), 113 NW 152.

of premises alleged to have been leased by

11. Is not necessary to affirmatively plead

plaintiff to defendant, held that evidence

facts which tend only to contradict allegations to show that relation of landford and

tions of complaint, but all such facts may

be shown under general denial. Sodini v.

plea of not guilty, which was equivalent to

Gaber, 101 Minn. I55, 111 NW 962. Any fact

which in effect admits cause of action set

155, 111 NNV 962. In action of replievin by

out in complaint, but attempts to avoid its

mortagree of personality against sensible to

force and effect, must be affirmatively plead-

ecover mortgaged property seized by latter

ed, but evidence which merely controverts

under writ of attachment in action against

facts necessary to be proved by plaintiff to

mortagree, evidence that mortagree was

authorize recovery may be proved under

fraudulent. Beeler v. Perry \[Mo. App.\] 107

general denial. Sov 108. Certain evidence in action for con-

mette Towing Co. \[Or.\] 89 P 388.

Facts provable under general denial: In

nature & Mattress Co. \[Neb.\] 112 NW 618.

action to recover possession of unpatented

In action for malicious prosecution, any evu-

mining claims, where plaintiff alleged

ownership in general terms, that deceds under

malice and probable cause. Hackler v. Miller

which plaintiff claimed were bad, and that

\[Neb.\] 114 NW 274.

fights of original locator or his successors

Facts not provable under general denial:

under whom plaintiff claimed had been

felled for failure to do required assessment

battery. Morris v. McClellan \[Ala.\] 45 S 641.

work. Holmes v. Salamanca Gold Min. &

Where plaintiff in action on contract alleged

Mill Co., 5 Cal. App. 659, 91 P 160. In action

for claim and delivery under specific denial,

which, when compliant is verified, is under

that defendant could not prove nonperform-

the statute the same as a general denial,

defendant may prove his right to possession,

or that he, as an officer, levieed on property

at suit of creditor, of him from whom plain-

tiff obtained it in fraud of creditors, or his

v Ornauer, 39 Colo. 498, 90 P 846. In action

right to possession by virtue of a lion, or

he may show title in strange. Idaho Place

Min. Co. v. Green \[Idaho\] 93 P 954. In

action of debt upon a judgment, plea of

fuel record is equivalent to plea of the generalissue. Forsyth v. Barnes 1311 Nimb. 467.

Coverture existing at time of entry of judg-

ment and at time of making contract on

which it was based held provable under plea

of nul tiel record. Id. In action by employee

for injuries, assumption of risk and that

accident was due to negligence of fellow-

servant. Smith v. Rock Island, etc., R. Co.,

119 La, 537, 44 S 290. In action on express

different, that contract differed in terms from

that pleaded, or that no contract was in

fact made. Sorensen v. Townsend \[Neb.\]

109 NNV 749. In action for damages for

breach of building loan agreement, that

materials used in construction of buildings

were not purchased so that ownership

thereof vested in contractors on delivery as

required by contract, that buildings were not

finished, and that certain materials, fixtures,

and articles had been removed before payment was demanded. Adams v. Lawson, 188

N. Y. 460, 81 NE 315. In action for negligence, that acts upon which it is based

were done by other persons for whose negligence

defendant was not liable. Multinomah

County & Willamete Towing Co. \[Or.\] 89

P 389. In action of assumptied on note, de-

fense of failure of consideration may be

made either under plea of non assumpti,

plea of not guilty, which was equivalent to

5. McClanahan v. Caul \[W. Va.\] 60 SE 382.

**Evidence held admissible: In action to**

recover money alleged to have been loaned to

defendants, proof that money was paid to

property by insured must be specially 10 Cur. Law. PLEADING SS 14. 1243 states a plea of the general issue does not put in issue matters of inducement,\[12\] and the same has been held true of a general denial in some code states.\[13\] A special plea amounting to the general issue is bad.\[14\]

_Special issues and special denials:_ See s C. L. 1422.-As a general rule matters which lie in affirmative proof because of presumptions of law to the contrary, such as contributory negligence,\[15\] waiver,\[16\] estoppel,\[17\] payment,\[18\] fraud,\[19\] and the like, must be specially pleaded. Specific denials of indebtedness,\[26\] and of the execution of writen instruments sued on,\[21\] are required by statutes in some states. Facts relied on pleaded if relied on. Herpolisheimer v. CIt- plea of not guilty. Smith v. White (W. Va.) iense' has. Co. \[Neb.\] 113 NW 152, Under 60 SEE 404. In suit on notes providing for plea of general issue defendant cannot set reasonable attorney's fees, plaintiff alleged up claim arising out of separate transaction that defendant was indebted to him in sum which is proper subject of set-off. Sawyer v. Van Doren \[N. J. Brr. & App.\] 66 A 396.

Vawier of conversion in action for convert, denying such allegation on ground that it slion, since release of cause of action or re- session of contract must be specially plea- no issutable defense, since meaning of such ed. Wood v. Proudman, 122 App. DIV. 826, denial could not be less than that to per 107 NYS 757. Objections to legal capacity of plantilt to use must be distinctly pleaded, was .to raise issue for jury. Proctor v. Rev. St. 1606, 8603. Archochen v. Clin. 155, See Negligence, 8 C. L. 1090.

152. Justification in action for assault and 10, See Election and Waiver, 9 C. L. 1087; battery. Price v. Gryzyl \[Vis.\] 114 NW 100.

In action for breach of marriage promise, 17. See Estoppel, 5 C. L. 1217. Though as recession or abandonment of contract can- a general rule estoppel must be specially not. Salcher v. Reimig \[Vis.\] 115 NW 132.

Where pleas of fraud were properly stricken opportunity of pleading it. Held not waived, as not sufficiently specific, and fraud was not again and more specifically pleaded, held 52.

proper to refuse to permit defendant to ir- 18. See Payment and Tender, 10 C. L. 1147.

regularly introduce such defense under plea 19. See Fraud and Undue Influence, 9 C.

of general issue by cross-examination of 1, 1476. Rule that writing cannot be at- plaintiff witness. Payne v. Knickerbockerocker trucked for fraud, mistake, or undue influence runs (C. C. A.) 163 716.

122. Allegations that defendant is in pos- 18.

session and operation of a street car line is 18.

placing of party relying on it, but appears not put in issue by a plea of not guilty, Chicago Union Trac. Co. v. Jerka, 227 Ill.

case. Puf v. Puff, 31 Ky. L. R. 939, 104 SW 95, 81 ND 7, aff. 126 Ill. App. 385. General

issue admits allegation that defendant in state is inadmissible under plea of nonas- personal injury suit is in possession and 18.

sumpli, but only by way of special matter, operation of street car line. Hill v. Chicago

after due notice, under Rule of Court No. 30.

City R. Co., 126 Ill. App. 152. In action by 8. Callaway v. Prettyman, 218 Pa. 293, 67

passenger against carrier for personal in- 4.

juries, plea of general issue held to admit allegation of declaration that defendant owned, operated, and controlled street car.

v. Hamilton \[Ga. App.\] 59 SEE 381. Where, line in question. Chicago Union Trac. Co. v.

In action on notes, answer in paragraphs 131 III. App. 485.

13. In action for injuries to minor brought 13. In action of improbst to minor brought 13. In action of improbst to minor brought 13.

by next friend, plea of general issue held 13.

and admission of character in which plaintiff sued, such as was set out in declaration.

21. For necessity of denial under path, Birmingham R., L. & P. Co. v. Moore \[Ala.\] 43 S 841. General denial does not put in issue plaintiff's appointment as admin- 14.

01. Under Civ. Code 1895, $ 505, general

in. Issue plaintiff's appointment as admin- 14.

written instrument which is declared on or 14.

4. Please setting up in reply a different contract from one alleged is made since it is of genuineness thereof and demand that it be argumentative denial of what adverse party 14.

proved at trial, held to dispense with proof must prove to sustain his claim. Dunley of signature in absence of specific denial v. Fenton, 80 Vt. 505, 85 A 651. Special plea

only where 1244 - PLEADING SS 14. 10 Cur. Law.

to controvert performance of conditions precedent are sometimes required to be specially stated.21

\_- Proof and variance.\_See 8 C. L. 1483.- Since a party must recover, if at all, on the cause of action set up in his pleadings, his allegations and proofs must substantially correspond.23 Where the deficiency of the evidence is as to the entire scope of the

on, held that administrator could show that, from locomotive and proof that fire was written assignments offered in evidence by\] communicated to plaintiff's land by reason plaintiff were forgeries, though he did not of change in direction of wind. Florida East specifically deny signatures, oral assignment - Coast R. Co, V. Welch, 53 Fla. 146, 44 825, - being valid. In action of debt plea - In action for personal injuries, between non est factum puts in issue only the giving allegations and proof as to how injury occurs of the feed. Landt v. McCullough, 130 JIL, early, right to recovery not depending App. kks.

22, General denial of general allegation of Wadia, 1 Ga. App. 403, 58 S 115. In action performance of conditions precedent held not against railroad for damages resulting from to have put them in issue under Code 43 SS 626, firing of timber by sparks, allegation that 3628. Krawae v. Modern Woodman of Amer-plaintiff were owners of reality did not lie, 133 Iowa, 199, 110 NW 452.

23. Cannot sue on one cause of action and that one owned life estate in part of land recover on another. Ingwerson v. Chicago, and others remainder did not constitute etc., R. Co., 206 Mo. 238, 103 SW 1143; Henry Variance, Western, etc., R. Co. v. Tate, 129 County v. Citizens' Bk. (Mo. 16 July 50 FSE 62, Ga. 526, 95 SB 268. Between allegations that Plaintiff can recover only seundium allegation plaithart was injured while standing in car ot probata. Abromovitz v. Markowitz, 108 unloading freight into wagon, and proof that NYS 1044. Must be allegations as well as injury occurred while he had one foot on proof, and they must correspond. Perry v. wagon. Louisville, etc., R. Co. v. Warner, Hackney, 142 N. C. 368, 65 SE 289. De-

129 Ga. 44, 60 NS 162. Between declaration Tendant cannot avail himself of any defense charges interference with natural water not set up in his pleadings. Millard v. course, and proof that in some respects em-Millard, 123 Ill. App. 264. Variance exists bankment constructed by defendant does not when evidence does not sustain pleadings - interference with course of water. St. Louis upon which a recovery is sought or a defense Merchanst' Bridge Terminal R. Asse'n v. rested. Illinois Cent. R. Co. v. Curry (KK-) Schultz, 228 IL 449, 80 NNE 879. Between 106 SW 294. Defenses not pleaded should be allegation that plaintiff's injury was caused ignored in submitting issues to jury though by reason of fact that his car caught in tim-incidentally established by evidence. Smith

berg of roof which wasged down, and proof v. Mutual Cash Guaranty Fire Ins. Co. \[S.\]

that timmers swayed down and coal on his D.J. 113 NW 94. Plaintiff having failed to

car caught thereon. Jones & Adams Co. v. prove cause of action alleged, proper objec-George, 227 Ill. 64, 81 NW 4. Between allegation having been made at trial and notions and proof in action for personal in-amendment having been asked for, held that judges, general allegations being sufficiently judgment in plaintiff's favor on cause of broad to admit proof made. Orr v. Water-action not alleged could not be sustained on sen, 128 Ill. App. 124. Under a general al-appeal. Epstein v. Cohen, 66 Mis. 579, 107

legation of notice, any notice which would NYS 148. Where certain evidence offered by

impose upon defendant the duty charged defendants was excluded on ground that may be proved. City Water Co. v. Silverfarb, neither counterexample nor offset was pleaded, 128 Ill. App. 215. Between allegation that and that it was not-admissible to establish

machine was defectively - constructed and defense of payment, and no motion was made

proof that it was permitted to become out to amend, or to withdraw juror, though

of order. Latrobe Steel & Coupler Co. v. question was presented in various forms and Shinoas, 129 Ill. App. 216. Between allegation of times, held that defendants would

be held to have elected to stand upon their deposit. First Nat. Bk. v. Pickears \[Ind. T.\] answer. Thalmann v. Lewis, 121 App. Div. 104 SW 947. Between allegation that cor-836, 106 NYS 1056. Where it appeared by

poration made and executed its articles of plaintiff's evidence that contract declared on incorporation "under out" and proof that was not the true contract entered into by

they were acknowledged, averment of ex-partes, held that court could either grant

ecution under cath being immaterial, since

nonsuit or allow verdict to be entered for

amount admitted by defendant to be due,

under cath, and legal effect of articles con-Tuck v. Earle & Prev Exp. Co. \[R. I\] 67 10 Cur. Law.

PLEADING SS 14.

mortgageee directed lessor to pick and bale, hooked by vicious cow alleged to belong to hops, and agreed to pay expenses thereof, and proof that lessor harvested crop with tenant's consent and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- or- or- or- or- or- or- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- or- or- is- between allegation and was holding for and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or- is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.\] 68 A 609. Under declaration on com- or is- between allegation and was holding it accordingly. Abernethy v. Uhlman \[Or.\] 93 P 936, Between allegation that wheel driving belting "was out of plumb and wobily," and proof that wheel was wooden one which had worn off on one side until it was oblong \[Mid.

1946

PLeading $ 14.

10 Cur. Law.

pleading, and not merely to some particular part thereof, there is a failure of proof.24 The parties may enlarge the issues by mutually trying out issues of fact not involved in the pleadings.25

held not entitled to recover on proof that

complaint in action for personal injuries

money was delivered to defendant in pay

alleged to have resulted from defendant's

ment for certain stock which defendant

negligence specified defects in handle of hand

failed to deliver, Max Hahn Packing Co. v.

car, existence of which was negligigence com-

Shaw \[Tex. Civ. App.\] 97 SW 712. Declara

plained of, held that plaintiff was bound to

counting as upon special contract of

carriage between plaintiff and defendant

ern R. Co. v. McGowan \[Ala.\] 43 S 378.

held not supported by proof of contract be

Instruction pretermining duty of plaintiff to

tween defendant and county court for

prove more than one of defects averred and

plaintiff's benefit, nor by implied contract be

particularized held reversible error. Id. In

tween carrier and passenger. Jenkins v.

action by passenger against carrier for per-

Chesapeake, etc., R. Co., 61 W. Va., 697, 57 SE

48. Where declaration stated contract with

covery for any negliggent act of defendant

plaintiff alone and proof showed contract

causing accident, without reference to acts

with, and promise to plaintiff and another

of negligigence alleged in petition, held re-

person. Sandusky. V. West Fort Oil & Natural

versible error. Missouri, etc., R. Co. v.

Gas Co. (W. Va.\] 59 SE 1082. Between

Redus \[Tex. Civ. App.\] 107 SW 68. Instruc

declaration alleging cause of action on claim

tions authorizing recovery on different

against defendant personally and proof of

ground of negligigence than that alleged in

claim against estate of a deceded of which

complaint held erroneous. Finnegan

w. he was administrator. Hanson v. Blake (W.

Andrey J. Robinson Co., 108 XY 135. Where

Va.\] 68 SB 589.

is charge of general negligence coupled with

Action by or against several identity: In

specific acts of negligence, complainant will

sult to foreclose material's line, held

be confined to the specific acts. Joseph v.

fatal variance between allegation of

Metropolitan St. R. Co. \[Mo. App.\] 107 SW

contract between two defendants and con-

1055. Where plaintiff specifies injuries, he

tractor, and proof showing contract with one

will be held to such specifications in his

defendant only. Coccia v. Wood-Dickerson

proof and recovery. Parello v. Missouri

Supply Co. \[Ala.\] 44 S 541. In action on

Pac. R. Co. \[Mo. App.\] 107 SW 473.

case for value of cotton, held fatal variance

24. No failure of proof within meaning of

where complaint averred contractual rela-

Ann. St. 1899, $ 3282, Manst. Dlg. $ 5077.

tion from which alleged duty to return cot-

ton arose as to all defendants, and there

deposited money with bank which latter had

was total failure of evidence showing any

such relation between plaintiff and one of

showed that note deposited with bank by

them. Hackney v. Perry \[Ala.\] 44 S 1029.

plaintiff as security had been paid to bank

where complaint alleges joint contract by

shot defendants, and proof shows contract

with one of them only, there is fatal variance,

note plaintiff might waive tort, and see in

nowithstanding Code 1896, $ 44, providing

that when suit is instituted against several

First Nat. Bk. v. Pickens \[Ind. T.\] 104 SW

defendants, plaintiff may recover against one

or more. Redmond v. Louisville, etc., R. Co.

\[Ala.\] 45 S 649. Where defendants are sued

iff alleged that original contract of ship-

as joint tort fears and plaintiff dismisses

ment was in parol, but that the signed writ-

as to one of them, variance does not result

Franke Parmalee Co. v. Wheelock, 224 Ill.,

proved that verbal contract had been

194, 79 NE 652, affg. 127 Ill. App. 500. Pleas

ententor metal of joint liability puts upon plain-

tiff the burden of proving the joint liability.

Clark v. Hofman, 128 Ill. App. 422.

Partieuhr facts descriptive of transaction:

Where pleader specifies, he is held to proof

of his specifications. Struwell v. National

so that no claim of

Council of Knight & Ladies of Security \[Mo. App.\] 107 SW 781.

App.\] 104 SW 884. In action on

Internal certificate, where defendant pleaded

in 'nace verna certain of its laws under

which it claimed that certificate was

for-

felled, held that he could not rely on other

laws not pleaded. Id. Where plaintiff

leged special damage, held that evidence

defective sidewalk, where petition alleged

should have been confined to such allegation,

that defendant was owner of premises, but * 10 Cur. Law. PLEADING SS 14.

Matters laid under a videlicet need not be proved as alleged.\* A failure to prove all that is charged does not preclude a recovery provided a cause of action is made out.27

Immaterial allegations 28 and matters pleaded by way of recital 29 need not be proved.

Immaterial variances will be wholly disregarded.29 By statute in some states no

proved, held that there was failure of proof, and not merely, a variance. Ingwerson v. Chicago, etc., I. Co., 205 Mo. 328, 103 SWV.

Alleged. Snyder v. Parmalaee, 80 Vt. 496, 68 and not merely, a variance. Ingwerson v. Chicago, etc., II Co., 205 Mo. 328, 103 SWV.

Plaintiff proves such material allegations as

1143. Alleged variance held not to amount to

are necessary to his cause of action; it is

failure of proof within meaning of Rev. St. not necessary that all material allegations

1899, SS 3738. Chicago, etc., R. Co. v. Pollock

\[Vyo.\] 93 P 847.

25. Evidence admitted without objection

does not have affect of enlarging pleadings

when admissible under them." Rogers v. Southern Fiber Co., 119 La., 714, 44 8 443.

Litigation who has interposed exception of no

cause of action, and only consented to file

answer when forced, to do so by court, and

need be proved, provided: it is sufficient to

exception, cannot be presumed to have consented to such a change in petition as would

Sht. C. Co. \[Mo. App.\] 107 SWV 1049. A defenst who pleads two separate complete

such case pleading cannot he deemed

changed by admission of evidence without

lishes one of them, though he wholly fails

objection. Id. Complaint contained charge

of general negligence coupled with specific

90 P 1001. Though plaintiff alleged that

acts of negligence. Defendant did not objection

to evidence: of general negligence, or ask

that plaintiff be confined to negligence

proof that he promised, though he failed to

fled. Held that he could not object to instructe

prove promise of other. McDonald v. Cabil-

tions submitting question of general negligence as part of issue. Joseph v. Metro-

gsf. I7 Tex. Ct. Rep. 362, 102 SWV 721,

gsf. I7 Tex. Ct. Rep. 518, 98 SWV 943. In

politan St. R. Co. \[Mo. App.\] 107 SWV.1055.

action against carrier for injuries to pass-

If evidence received and proceedings had,

when it is claimed constitute wavwer, are

gprint to rely upon presumption of negligu-

periment to any issue presented by pleadings, should be held, in absence of any other

fact or circumstance clearly indicating the

contrary, that evidence was received and

proceedings had with respect to issue

mally presented. Manneely v. New York, 119

App. Div. 376, 105 XYS 976. In action of

assumpsit for goods sold and delivered,

where defendant introduced evidence tending

to show new agreement between parties at

ter delivery of goods, and so conducted

defense as to show that what was done under

new agreement went only to question of

defendant's liability under original contract,

held that he could not complain that plaintiff

was permitted to go into same matters

in rebuttal, nor, after trial on merits and

verdict and judgment against him, of de

parture from statement of claim. Hastings

v. Speer, 34 Pa. Super. Ct. 478. Evidence

incidentally brought out as bearing on an

issue in case cannot operate to enlarge

issues, though it incidentally tends to establish

defense not pleaded. Smith v. Mutual Cash

Guaranty Fire Ins. Co. \[S. D.\] 113 NWV 94.

26. Specification that assault occurred "on

or about" certain day held not to confine

plaintiff to proof that it occurred on said

day. Pool v. Bergman \[Mass.\] 83 NE 7.

Pies of date under videlicet is not averment

of an exact date, and it need not be exactly

proved to establish allegation of pleadings,

nor does it estop pleader from proving near,

but different date. "To-wit." City of St.

Charles v. Stookey \[C. C. A.\] 154 F 772.

27. Plaintiff need not prove more than is

necessary to his recovery, though more is

\[Tex.\] 182 Tex. Ct. Rep. 362, 102 SWV 721,

gsf. I7 Tex. Ct. Rep. 518, 98 SWV 943. In

action against carrier for injuries to pass-

senger, plaintiff held not to have waived

right to rely upon presumption of negligu-

gence arising from happening of accident

by pleadings and undertaking to prove the

particular cause thereof. Watters V. Seattle.

etc., I. Co. \[Wash.\] 93 P 419; Lobb v. Se-

attle, etc., R. Co. \[Wash.\] 93 P 422.

28. Unnecessary allegations variance is to be deemed material unless it has actually misled the other party to his prejudice in maintaining his action or defense upon the merits.\[31\]

A variance between the writ and the declaration cannot be taken advantage of by demurrer,\[82\] but the contrary is true as to a variance between the provisions of a

Newell v. National Advertising Co., 39 Colo., St. 189, $ 3736, 3737. Chicago, etc., R. Co. 295, $ 9 P 792. Rules of Court, $ 149. Where facts showed tendency from year to year -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- ---- -- -- -- ---- -- -- ---- -- -- ---- -- ---- -- ---- -- ---- -- ---- -- ---- -- ---- -- ---- -- ---- -- ---- ---- -- ---- ---- -- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ------ ---- ---- ------ ---- ---- ------ ---- ------ ---- ------ ---- ------ ---- ------ ---- ------ ------ ---- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ -------- ------ -------- -------- -------- -------- -------- -------- ---------- ---------- ------------ written instrument sued on and the pleading.88 A variance is waived by failure to make timely objection on that ground in the trial court,84 and any error in overruling a motion for nonsuit on the ground of variance and failure of proof, by proceeding with the trial.85 Where there is some evidence tending to support the material allegations of the pleading, the question of variance will not be considered on appeal.86

\_Admissions in pleadings or by failure to plead.88 A variance is waived by failure to make timely objection on that ground in the trial court,84 and any error in overruling a motion for nonsuit on the ground of variance and failure of proof, by proceeding with the trial.85 Where there is some evidence tending to support the material allegations of the pleading, the question of variance will not be considered on appeal.86

_Admissions in pleadings or by failure to plead.88 A parity is bound_

_by statements and admissions in his pleadings.87 Allegations of a pleading which are admitted by the pleadings of the opposite party,88 and matters well pleaded which_

83. Variance between condition of bond

not taken out license. Sprague v. Reilly,

sued on and allegations of declaration may

34 Pa. Super. Ct. 332.

be reached by general demurrer, State v.

Abandoned pleadings: After amendment,

Wilson \[Md.J. 68 A 609.

allegation in abandoned pleading may be

84. Where objection was first made on ap-

used as evidence, but it is not conclusive.

peal. Leigh v. National Hollow Brake

Miller v. Drought \[Tex. Civ. App.\] 19 Tex.

Beam Co., 131 11, App. 106. Objection made

Attter evidence complained of has been in-

original petitom are no longer absolutely

troduced comes too late. City of Chicago

binding on platinum, though they may be

v. Bork, 227 Ill, 60, 81 NE 27. In action to

recover damages resulting from fire alleged

snyder v. Reememayder, 76 Kan. 566, 89 P

to have been set by defendants' locomotive

1014. Though original answer is withdrawn

on or about certain date, variance as to

by filing of amended answer by leave of

date of fire held not to preclude recovery,

court; it is admissible in evidence as an ad-

defandant not having objected to evidence,

mission against interest. Johnson v. Sher-

claimed surprise, showed that he was mis-

led to his prejudace in preparation of his de-

in original pleading are not, however, con-

fense, requested postponent of trial, or

objected to form of statement of time in

should be construed in connection with the

dearation. Florida East Coast R. Co. v.

walking statements, if any, and it is for

Welch, 58 Fla. 145, 44 S 250. Objection that

jury, and not for court, to determine from

there was no plea of set-off under which

in inspection of entire pleading the intent of

evidence would be competent, held waived

party who introduced it. Id. After amend-

where there was no objection to evidence on

that ground. Melton Hardware Co. v. Heid-

in evidence, but contents cannot be consid-

elberg \[Miss.\] 44 S 857.

55. Motion made at close of plaintiff

as admissions of plaintiff, unless so intro-

case. Nevell v. National Advertising Co.,

duced. Lane v. Choctaw, etc., R. Co. \[Okl.\]

89 Colo. 295, 89 P 792.

86. Louisville, etc., R. Co. v. Varner, 129

removed by amendment drops out of case

Ga. 844, 60 SE 162.

87. By allegations of his petitom. Pardee

v. Kuster, 15 Wyo. 368, 91 P 836, 89 P 572.

Party cannot prove facts specifically denied

In his pleadings. Millard v. Millard, 123

that original written contract sued on had

Ill. App. 264. In action by employ for

send injuries, where from petition and

sworn statement as to circumstances under

which injuries were received, which had

been previously furnished defendant and

was attached to petition as an exhibit, it

swe't a.

appeared that plaintiff was guilty of con-

tributory negligence, held that petition was

sneded pleadings when thus used must al-

insufficient and would not sustain a recovery. Atchison, etc., R. Co. v. Schroll \[Kan.\]

proper time like other matters of evidence."

93 P 596. In action to reform note given

--From Wigmore, Ev. $ 1067.

for part of purchase price of land, held that,

where defendant did not apply under B. &

C. Comp. $ 533 for order permitting exam-

matrion of contract of sale of said land

fore answering, he could not, in face of correct

reet description of land contained in an-

swer, and admission in reply of contract to

purchase land so desorbed, contend that

description in written memorandum of sale

was too indefinite for specific performance

on theory that he had never had opportunity

to inspect it before trial. Fagan v. Wiley

\[Or.\] 90 P 910. Statement of claim held ad-

misship for purpose of proving defense that

plaintiff was real estate broker who had 1250

PLEADING SS 14.

averments of complaint. Lehman v. Gunn \[Ala.\] 45 S 620. Admission of justness of indebtedness evidenced by notes held not admission of indebtedness prior to dates of notes. Id. In suit to enjoin interference with laying of water pipes across streets, held that failure of complaint to allergic that * plaintiff owned fee to part of street did not render finding to that effect erroneous as * ricks, 127 Mo. App. 47, 106 SWV 111, Ad- not responsive to issues where answer alleged ownership of certain land by plaintiff's predecessor and facts from which it might be inferred that it was bounded by * said street, thus raising presumumption that * adjoining propriictor owned to center of * street, particularly where evidence of such ownership was not objected to. Colegrove VWater Co. V Hollywood, 151 Ca1, 425, 90 P * 1053. Admission of execution and genuineness of check alleged in answer to have been given in payment of demand sued on * held not admission of accord and satisfaction or that check in any way related to * translation set forth in complaint, and as * such allegations of answer were to be * deemed controverted under Code City. Proc. * 462, defendants' motion for judgment on pleadings was properly denied: Newsman v. Woolacott, 5 Ca1. App. 122, 91 P * 44. Judgment for defendant held erroneous as * not supported by pleadings, where answer * admitted liability in specified amount. Horn v. Martinho \[Ca1. App. J 94 P 79. Plea held not subject to construction that it admitted * any to be due by defendant to plaintiff in excess of amount found by jury in latter's * daily & Carney Buy Co. v., valid held binding on parties making them, * Outhrie, 1 Ga. App. 350, 58 S 108. In action on certificate of Insurance issued by fraternal benefit association, allegations of * any newer to effect that insured had been ex- * the role to pay * that notice, service of which was condition * does and assessments held equivalent to * admission that defendant had not leved as \*, act was served on or about June 16, held not * an admission that it was served prior to commencement of action, summons having America v. Brewer, 75 Kaan. 789, 90 P 247. Where all of defendants in action for free-pass on land justified in joint answer, held * midremod company for negligent killing of no evidence to connect him with trespasable to grant nonsuit, claiming that, if strictly * or greater, reply contained implied admls- * of contributory negligence. Admission not arise except by reference to af- * firmative allegations of answer. Held that, since one relying on technical defect is subject to technical rules, answer would be strictly construed, and when so construed * did not alleg contributory negligence, since * grows therein referred to were not necessarily same as those mentioned in complaint, and hence defendant was not entroverted to reversal after judgment against * it. Jackson v. Sumpter Valley R. Co. \[Or.\] * 93 P 356. Defendant held not entitled to complain that judgment foreclosed mortrigage then though no mortgage was introduced in evidence, where he admitted ex- * the role to the effect of a 10 Cur. Law. PLEADING SS 14. 1251

are not denied or avoided by the allegations of the opposite party, \[59\] are taken as established, and need not be proved. The pleadings in a case are not evidence of the facts pleaded. \[40\]

\_Judgment on the pleadings_Sco s C. L. 1430 should be granted when they present such a case of conceded facts as entitles either party to relief, \[41\] but is improper where

due. plaintiffs from _agent_, and that judge. \[37\]. Where denial on information and bement was for same monewys as present suit, Ilef was insufficient to raise issue, held that held not an admission of an indebtedness Judgment on allegation so denied for want conclusive on defendant, he not having been of an answer was proper. Streator v. party to former suit. Harris v. Chtpanan

Streator \[NL. C.\] 59 SB 112. Though failure to deny allegations of complaint is admis-

89. Alligations of complaint not contro-

ston thereof, and dispenses wth proof, such

verted by answer must be taken to be true.

An admission does not preclude plea of English v. Ter. \[Arts.\] 89 P 501; Oliver v.

statute of limitations, Gilman v. Cochran

Calbert, 80 Ky. L. R. 1316, 110 SW 314; Nolan

\[Or.\] 90 P 1001. Common-law rule that

v. Garrington \[Mcl.\] 115 NW 85; Reals v.

every fact pleaded by plaintiff, not specially

Pfeiffer, 117 App. Div. 880, 108 NY8 478.

traversed by respondent is taken as ad-

Plaintiff need not offer evidence to support

until held to obtain in mandamus proceed-

allegations not put in issue by answer.

ings. City of San Antonio v. Routledge

Johnson v. Asher \[Ky.\] 105 SW 943. All

\[Tex. Civ. App.\] 19 Tex. Ct. Rep. 457, 102 SWW

material facts set out in a plea and not

756. Held not necessary to prove formal

put in issue by replication are admitted.

Averment that amount involved exceeded

Hepler v. People, 226 Ill. 275, 80 NB 759.

Jurisdictional amount, where defendant did

Matter pleaded as affirmative defense not

not plead to jurisdiction. Bitterman v.

denled by reply is admitted. Tisk v. Arnold

Louisville & N. R. Co., 88 S. Ct. 91.

\[Ind. T.\] 104 SVW 824. Where complaint

Failure to pleadi allegations of replica-

alleged that plaintiff had acquired timber

tion held admitted where no rejoinder was

in controversy by purchase from certain

made thereto. Leigh v. National Hollow

persons, the owners thereof, and answer

Brake Beam, Co., 131 Ill. App. 106. Where

dated that plaintiff had purchased it from

plaintiff's demurrer to defendant's cross bill

said persons, held that when conveyance

was overruled, and plaintiff filed no addi-

from such persons to plaintiff was proved

tional pleading, held that plaintiff was left

there was no further controversy left as

without defense to cross bill, and every man

to plaintiff's ownership. Moore v. Chas. F.

terial allegation therein was, for purposes

Luehrmann Hardwood Lumber Co. \[Ark.\]

of the case, to be taken as true. Code, 8

102 SW SW 855. Defendant held not entitled

to attack finding that certain notice was

Trustees \[Iowa\] 112 NW 176. Failure to

given where allegation to that effect in com-

file reply admits new matter in answer.

plaint was not denied by answer. Kinsel

Martin v. Smith, 21 Ky. L. R. 885, 104 SWV

V. Balou, 151 Cal. 754, 91 P 620. Where com-

310; Hall v. Mineral Development Co., 31 Ky.

plaint alleged that defendant knew at time

L. R. 863, 104 SWV 384. Where, on overruling

he made representation to plaintiff that

of demurrer to paragraph of answer, plain-

was false, denial that defendant made repr-

terial allegation to plead further, and other par

resentation at all did not raise issue as to

agents of answer presented complete defendant's knowledge of falsity of repr-

fense, and no reply was filed, held proper

sentation, if made, and hence, if made, it

to dismiss petition absolutely. Martin v.

was, under Code Civ. Prog. # 463, admitted

Smith, 81 Ky. L. R. 885, 104 SWV 310. Ma-

by failure to deny in answer that it was

made with knowledge of its falsity. Crandall

not controverted by reply are to be taken

v. Parks \[Cal.\] 93 P 1018. Proof upon sub-

as admitted. Rev. St. 1838, 4 4006. Brown

ject of attorneys' fees held unnecessary, de-

V. Massey \[Okl.\] 92 P 246.

fendant 1253 PLEADING SS 14. 10 Cur. Law. there is any material issue of fact.\[42\] A motion therefor admits the truth of the allegations of the opposite party which are well pleaded.\[43\] In considering such a motion made when the case is called for trial, the court may consider the admissions and statements of counsel as to what he expects to prove and rely on at the trial.\[44\] The failure to offer proof by the party having the affirmative of the issue is no ground for entering judgment against him on the pleadings.\[45\] By statute in some states where, in an action for the recovery of money, the answer admits a part of plaintiff's claim, he may take judgment for the amount so admitted.\[45\]

PLEAS, see latest topical index.

be properly granted only where complaint \[of answer to state defense may be urged in is sufficient to warrant granting of relief opposition to motion for judgment on pleadings, either in trial court or on appeal, by way of denial or new matter, to bar or \[though no denmurrer was filed. B, & C.\] defect the action. St. Mary's Hospital v. Comp. 72. Sutherlandin v. Bloomer \[Or.\] 98. Perry \[Cal.\] 92 P 864. Answer in action P 135.

against executra to recover legacy held to raise no material issue, so that judgment \[ings where issues of fact are raised by on pleadings was properly granted. Id.\] plagdings which require evidence to establish them before court can intelligently de-admitted facts, moving party is entitled to \[determine whether they are with plaintiff or \[dagment.\] Idaho Placer Min. Co. v. Green might be on facts upon which issue is \[Idaho\] 94 P 161. Where answer pleaded \[limitations and estopel, held that plaintiff P 648.\] Judgment held improperly reen-dered where practically all allegations of \[being inconsistent.\] Dee v. Nachbar, 207 \[Where petition in action by subcontractor \[do. 680, 106 SW 35.\] Entry of judgment \[do.\] service of notice of films of Ilen on owner, \[issures for trial, though insufficient to per- held that motion for judgment should have \[not introduction of evidence as to others.\] been sustained, though petition was \[Socut V.\] Northwestern Port Huron Co. \[N.\] immediately. In that regard after running of \[D\] 115 NW 192. Motion is properly denied limitations. Powers V. Badger Lumber Co., \[where denial of allegations of complaint \[to pattern because of plaintiff's \[Imana, Poulsen & Co. \[Or.\] 90 P 1098.\] failure to reply where answer and count-troclaim were insufficient. Shehl V. Asher, 31 Ky. L. R. 566, 102 SW 879. In action to \[of his adversary and untruth of all his own \[title, held that, in view of fact that allegations which have been denied by his \[name of affirmative allegations of answer \[Idaho\] 94 P 161.\] Where ground of judgd- denied, defendant was entitled to judgment \[then it that facts set forth in answer are \[name of \[call.\] 93\], \[name of \[call.\] 94 P 161.\]). In \[name of \[call.\] 94 P 161.\] Where ground of judgd- on pleadings alone, Hail V. Mineral De-velopment Co., \[name of \[call.\] 94 P 161.\]. In \[name of \[call.\] 94 P 161.\] Where ground of judgd- on pleadings alone, Hail V. Mineral De-velopment Co., \[name of \[call.\] 94 P 161.\].

Where defendant by answer admits that \[name of \[call.\] 94 P 161.\].

The failure to offer proof by the party having the affirmative of the issue is no ground for entering judgment against him on the pleadings.\[45\] By statute in some states where, in an action for the recovery of money, the answer admits a part of plaintiff's claim, he may take judgment for the amount so admitted.\[45\]

PLEAS, see latest topical index.

be properly granted only where complaint \[of answer to state defense may be urged in \[s sufficient to warrant granting of relief \[from position to motion for judgment on pleadings \[and answers were \[from position to motion for judgment on pleadings \[ 10 Cur. Law. PLEDGES SS 5. 1353

PLEDGES.

$ 1. Definition and Nature, 1253. $ 4. The Contract and Its Repulsites, 1253. $ 2. Right to Make, 1253. $ 5. Rights, Duttes, and Labilities Under the Pledge, 1253. $ 3. Property Subject to be Pledged, 1253. $ 1.253.

Matters peculiar to the pledge of negotiable instruments \[47\] and to the rights of banks in respect to collateral security \[48\] are more fully treated elsewhere, and pledge by way of mortgage \[49\] is excluded, as is the regulation of the business of pawnbroking. \[50\] Validity of pledge incident to a gambling contract \[51\] and matters common to all contracts \[52\] are also treated in other topics. $ 1. _Definition and nature_. \[See 8 C. L. 1431.--A transaction will be declared a pledge when it is established that such was the intention of the parties. \[88\] The agreement, ascertained from the writings, must determine what debts are secured \[54\] and what was pledged therefor. \[55\] The relation of pledgor and pledge arises when a broker purchases stock for a customer upon a margin. \[56\] $ 2. _Right to make_. \[See 8 C. L. 1443.--A person who takes property from an officer of a corporation as a pledge is not charged with notice of any infirmity of title. \[57\] $ 3. _Property subject to be pledged_. \[See 9 C. L. 1068.--A promissory note may be the subject of a valid transfer and delivery by way of pledge or collateral security. \[58\] A contract of pledge may cover future as well as present deliveries and operate upon future as well as present loans. \[59\] $ 4. _The contract and its requisites_. \[See 8 C. L. 1443.--The general law of pledges requires possession, and a valid pledge cannot exist without it. \[60\] Whether the property pledged was delivered to the pledge must be determined from the circumstances of each case. \[61\] $ 5. _Rights, duties, and liabilities under the pledge_. \[See 8 C. L. 1444.--Pledge need not insure notice to the public of the existence of a pledge, but reasonable care should be observed to negative ostensible ownership in the pledgor. \[52\] Notice to a purchaser of goods to remit to the pledge is not notice of the existence of a pledge. \[63\] A pledgeee

47. See Negotiable Instruments, 10 C. L. $ 48. See Banking and Finance, 9 C. L. 327. $ 48. See Mortgages, 10 C. L. 855; Chattel Morbidgs, 9 C. L. 560. $ 50. See Pawnbrokers and Secondhand Hanover Nat. Bk. V. Sudden \[C. C. A.\] 153. $ 102. $ 51. See Gambilling Contracts, 9 C. L. 1522. $ 52. See Contracts, 9 C. L. 654. See, also, $ 6 C. L. 1431. $ 53. Money advanced on oral promise for future delivery of coal. Ationsh, etc., R. Co., V. Hurley \[C. C. A.\] 153 F 603. Ewil-dence that bill of sale was pledge. Puzia v. Temko, 33 Pa. Super. Ct. 516. Transfer of stock in form of sale construed as pledge, elements of sale being lacking. Keifer v. Myers, 5 Cal. App. 668, 91 P 163. $ 48. "Any other liability which may hereafter be contracted" does not include funds converted by pledgor. Brown v. James \[Neb.\] 114 NPV 581. Property was turned over by the cashier, defendant in this case, to the president of the bank, as trustee, to secure to that extent his indebtedness to the bank by reason of his defalcations. This was done without destination as to what part of the indebtedness this credit should be applied. Held that in the absence of a designation as to the items upon which this credit should apply the law upon equitable principles will imply that the debtor not relying on all of the pledged property is not liable for failure to record a chattel mortgage.\[84\] The pledgor is presumed to have waived nothing except what is specifically waived.\[68\] Where money is borrowed by one on collateral loaned him for that purpose, the pledge becomes vested with the same rights as he would have had if the loan had been made by the owner of the collateral.\[88\] Pledge of promissory note in good faith takes it free from any equities of which he had no notice.\[87\]

_Possession and custody_,\[88\] S C. L. 1434.--The pledgor cannot recover possession of the pledged property without paying his debt, though barred by the statute of limitations.\[88\]

_Title to the property_,\[88\] S C. L. 1067.--A pledge does not divest the pledgor of the general property in the thing pledged,\[89\] and the pledgor has title to the property subject to the pledge's lien \[70\] in Whossoever hands he finds it.\[71\] An unauthorized pledge of stock may give the pledge good title if he acts in good faith and the transaction is founded upon valuable consideration,\[72\] but a pledge by a bailee of goods, with intent to convert the proceeds, is void,\[73\] and the pledge though acting in good faith acquires no title against the owner.\[74\] One in possession of personal property may recover for a tort though the legal title be in another as security for a debt.\[75\]

_Duty to realize on collaterals and prevent loss_,\[88\] S C. L. 1435.--A pledge holding choses in action, such as bonds, notes, or obligations of third parties, is bound to use reasonable care and diligence to make the collateral available.\[76\]

_Conversion by the pledge_.\[88\] S. C. L. 1435

_Redemption and surrender_.\[88\] S. C. L. 1435

_Default, foreclosure, and sale_.\[88\] S. C. L. 1436.--A pledge cannot sell the security save in satisfaction of the debt pledged,\[77\] and conditions precedent must be complied with,\[78\] but the sale is at the discretion of pledge.\[79\] The pledgor is entitled to reasonable notice of the intention to sell the property\[80\] and he may recover any amount in excess of the debts received by the pledge.\[81\] So, also, pledge may sue pledgor for a balance due.\[82\] A pledgor ratifies the sale of pledged property by the pledge unless he objects within a reasonable time.\[83\] The sale of pledged property by the pledge, under a valid agreement, cannot be restrained by a court of bankruptcy.\[84\]

_Right of action on the debt_.\[88\] S. C. L. 1438.--A creditor holding a pledge of commercial paper may bring an action to enforce the principal debt or one to collect the pledged paper.\[85\]

64. Pledge of real estate and chattel mort.\[88\]

01. Newton v. Cardwell's Blue Print & gage.\[88\] V. Alton-Dawson Mercantile\[88\] Supply Co.\[89\] S2 P 914.\[89\]

01. Replevin of mining instruments.\[90\]

01. Waiver of "further notice."Smith v.\[88\] V. Cardwell's Blue Print & Supply Shippers' Oil Co.\[89\] S2 P 914.\[89\]

01. Emanuel County v. Thompson \[Ga.App.\] S9E 803.\[89\]

01. Pledge failed to sell corporate stock at par value at pledgor's request.\[89\]

01. Chl.App. 106.\[89\]

01. Life insurance policy pledged.\[89\] Puckhaber v.\[89\] Henry \[Cal.\] S9 P 114.\[89\]

01. Pledge of tax bill for a less sum.\[89\]

01. Sale only on fglure to provide additional security.\[89\]

01. Smith v.\[89\] Shippers' Oil Co.\[89\]

01. Smith v.\[89\] S8E 1089.\[89\]

01. Smith v.\[89\] Shippers' Oil Co.\[89\]

01. Smith v.\[89\] Shippers' Oil Co.\[89\]

01. Pledge failed to sell corporate stock at par value at pledgor's request.\[89\]

01. Xlle.\[89\]

01. Smith v.\[89\] Shippers' Oil Co.\[89\]

01.

01. Sale only on fglure to provide additional security.\[89\]

01. Smith v.\[89\] Shippers' Oil Co.\[89\]

01. Smith v.\[89\]

01. Smith v.\[89\]

01. Smith v.\[89\]

01. Newton v.\[89\] Carwell's Blue Print & gage.\[89\]

01. Smith v.\[89\] Shippers' Oil Co.\[89\]

01. Replevin of mining instruments.\[89\]

01. Newton v.\[89\] Shippers' Oil Co.\[89\]

01. Emanuel County v.\[89\] Thompson \[Ga.App.\] S9E 803.\[89\]

01. Pledge failed to sell corporate stock at par value at pledgor's request.\[89\]

01. Smith v.

10 Cur. Law. POSTAL LAW SS 1.' 1255

\_Effect of insolvency and bankruptcy.\_See s C. L. 1438

\_Equities and defenses between one of the parties and third persons.\_See s C. L. 1438

The pledgee may enforce his lien though it appear that the property belongs to a third person," and this right is a matter solely between the pledgee and pledgor." A pledgee must allege and prove an existing indebtedness before he can collect on his collateral security." The right of pledgor to sue to redeem acerues upon discovery of transfer by pledgee." The pledgor may sue in equity where special grounds appear." The pledgor of a promissory note may obtain judgment thereon and enforce same if pledgee makes no objection." A person liable for the payment of a debt may pay the same and is then -entitled to be subrogated to the creditor's rights in the pledge." Where the holder of a note sells property pledged by an indorser, the indorser is entitled to the note as subrogee of the holder's rights."

Pointing Firearms, see latest topical index.

POISONS."

Policement: Police Power; Pollution of Waters; Poon Laws; Poon Litigants; Posses Comitatus, see latest topical index.

POSSESION, WRIT of.

POSSESORY WARrant."

This topic treats only of the possessory warrant under the Georgia practice.

Possessory warrant is the remedy to recover personal property taken by fraud, violence, seduction, or other like means inhibited by statute."- Manner of securing possession is the sole question of the action." The warrant will lie where defend-ant's possession, though originally lawful, became subsequently unlawful."

POSTAL LAW.

1. The Federal Postal System and Its Ad- \[ 8 2. Use of Mails and M\*II Matter, 1250.

**2. Use of Mails and M\*II Matter, 1250.**

**3. Postal Crimes and Offenses, 1257.**

\_The scope of this topic is noted below.\_1

1. \_Federal postal system and its administration.\_See s C. L. 1441.--A mail carrier and the surety on his bond are liable to the government for money stolen by the
   former from registered letters.2 And in a suit against the surety the government may recover the entire amount taken with interest, regardless of the fact that the postal regulations limit the liability of the government to twenty-five dollars.3

Footnote 2: The postmaster general has authority to be the determination of the postmaster general.5 The actions of the assistant in such case are, however, merely those of a master or referee to hear proofs and report findings, it being the postmaster general alone who finally acts on the matter,6 and it will be conclusively presumed that the postmaster general acted on the testimony submitted to him by the assistant as fully as if the hearing had been before him.7 The courts have jurisdiction to re-examine the action of the postmaster general when he is either acting without authority of law, or in excess of the power granted to him by law, or has misconstrued the legal effect of the statute under which he is acting,7 but findings of fact made by him are conclusive and will not be disturbed by the courts in the absence of fraud, or mistake of law.8 Second class mail privileges once granted to any publication may be suspended or annulled only after a hearing.9

Footnote 2: The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general, since it is not the case of the postmaster general.5 The postmaster general has authority to be the determination of the postmaster general, since it is not the case of the postmaster general, since it ing under the postal laws.\[18\] If such a cause is begun in a state court, it may, however, be removed to the Federal court if the jurisdictional amount is involved.\[18\]

SS 3. \_Postal crimes and offenses.\_See s C. L. \[144\]--An indictment under the statute prohibiting the use of the mails in furtherance of a lottery or gift enterprise must aver specifically or by necessary intendment the existence of such lottery or enterprise.\[17\]

\_Obscene matter.\_See s C. L. \[144\]--The mailing of obscene matter or information as to where the same may be obtained is made a criminal offense,\[18\] punishable by fine or imprisonment, or both.\[18\] As in other cases the indictment must sufficiently inform the accused of the nature and cause of the accusation against him \[20\] and must not charge the commission of more than one offense.\[21\] It must sufficiently identify the letter charged to have been mailed \[22\] and allege that it was deposited in the post-office for mailing and delivery,\[23\] but need not characterize it as indecent in addition to being lewd, obscene, and lascivious.\[24\] Time not being an element of the offense, it is sufficient if it appears that it was committed before the finding of the indictment and within the statute of limitations.\[25\] Whether the letter is too obscene to be spread upon the records is a question for the determination of the trial court.\[26\]

\_Use of mails to defraud.\_See s C. L. \[144\]--Any person who, having devised a fraudulent scheme or artifice, with intent to defraud,\[27\] to be effected by the use of the 15. Rev. St. $ 629, subd. 4, does not confer \[15\], shments. Rinker v. U. S. \[C. C. A.\] 151 F \[75\], exclusive jurisdiction on Federal courts. \[20\], Lewis Pub. Co. v. Wyman, 152 F 200. State court held to have jurisdiction of salt to en-join enforcement of order annilling second class mailing privilege. Id.

\_16.\_But to enjoin enforcement of order re-voking second class mailing privilege held \[15\] F 755. Plain inference to be drawn from removable under Act March 3, 1887, c. & 378, & 384.

\_21.\_Charge of mailing letter informing face that controversy was one under postal laws, and that value of matter in controversy exceeded $2,000. Lewis Pub. Co. v. Wyman, 152 F 200.

\_22.\_Indictment setting forth beginning and \[15\], shuffent where defraud did not apply for bill of participants. Rinker v. U. S. \[C. C. A.\] 151 F 755. Plain inference to be drawn from \[15\], shuffent held that charged in indictment. Lee \[15\], v. U. S. \[156 F 948\].

\_23.\_Charge of mailing letter informing face that controversy was one under postal laws, and that value of matter in controversy extended to prevent conception and very exceeded $2,000. Lewis Pub. Co. v. broure 'abortion might be obtained, not \[15\], mail," deposits or causes to be deposited any matter in the mail in furtherance thereof, or takes any such matter therefrom," is guilty of a criminal offense. Each letter put in or taken out constitutes a separate offense." Not more than three offenses committed within the same six calendar months may be charged in the same indictment,31 but this provision does not prevent the consolidation for trial of indictments charging offenses not committed within the same six calendar months and aggregating more than three in number,32 nor does it render bad an indictment joining three or more offenses not committed within the same six calendar months.33 The indictment must fully and accurately describe an offense committed by the accused within the statute,34 should be definite and certain,35 and should not be double.36 Time not being an essential element of the offense, it is sufficient if it is shown to have been committed within the statute of limitations and before the finding of the indictment.37 While specific intent need not be proved where manifest from the nature of the scheme itself,38 the evidence must connect the accused with the offense crime denounced by Rev. St. $5480 is execu- \[C. C. A.\] 152 F 155. \[C. A.\] 152 F 155. \[C. A.\] 152 F 155. \[C. A.\] 152 F 155. \[C. A.\] 152 F 111. \[C. A.\] 152 F 111. \[C. A.\] 153 F 154. \[C. A.\] 154 F 155. \[C. A.\] 155 F 156. \[C. A.\] 157 F 158. \[C. A.\] 158 F 159. \[C. A.\] 159 F 157. \[C. A.\] 150 F 159. \[C. A.\] 151 F 158. \[C. A.\] 154 F 153. \[C. A.\] 155 F 159. \[C. A.\] 156 F 157. \[C. A.\] 157 F 158. \[C. A.\] 158 F 159. \[C. A.\] 159 F 159. \[C. A.\] 150 F 159. \[C. A.\] 151 F 159. \[C. A.\] 150 F 159. \[C. A.\] 151 F 159. \[C. A.\] 152 F 159. \[C. A.\] 153 F 159. \[C. A.\] 154 F 159. \[C. A.\] 155 F 159. \[C. A.\] 156 F 159. \[C. A.\] 157 F 159. \[C. A.\] 158 F 159. \[C. A.\] 159 F 159. \[C. A.\] 159 F 159. \[C. A.\] 150 F 159. \[C. A.\] 151 F 159. \[C. A.\] 152 F 159. \[C. A.\] 153 F 159.

10 Cur. Law. POWERS SS 2. 1259

charged by presence, acquiescence, or coincident circumstances.\[9\] Correspondence of the accused other than that pleaded and relied upon for conviction,\[40\] and evidence concerning offenses sufficiently similar in character and so related in time as to be material as to the fraudulent intent of defendant in the transactions charged,\[41\] is admissible. Where the evidence is conflicting, the question of intent to defraud is for the jury.\[42\]

\_Embezzlement and larceny from the mails,\_See * C. L. 1445. The secreting, destroying, or embezzling by any person employed in the postal service of any mail matter intended to be conveyed by mail and containing valuable inclosures is made a criminal offense.\[44\]

POSTRONEMENT, see latest topical index.

POWERS.

8 1. Nature and Kinds, 1259. 8 3. Execution of Powers, 1260. 8 2. Creation, Construction, Validity, and Effect, 1259. This topic treats only of powers of appointment, powers of attorney being elsewhere treated.\[44\]

8 1. Nature and kinds.\[See * C. L. 1445. A power is an authority in one person to dispose of or limit an interest in lands belonging to another.\[44\] Powers of attorney to convey land are elsewhere treated.\[45\]

8 2. Creation, construction, validity, and effect.\[See * C. L. 1445. Power to dispose of the fee may be given to life tenants.\[47\] In creating a power of appointment, a phrase that it may be exercised by writing in the nature of a last will and testament is apt where the donee has no other property to dispose of.\[48\] The instrument creating a power should be so construed as to give effect to all its provisions if possible.\[49\] A power in a deed of settlement will be construed according to the law of the place with reference to which it was made.\[50\] By statute in some states an absolute power of disposition given to the owner of a particular estate for life or years enlarges the estate into a fee only in favor of creditors and purchasers and leaves it subject to future estates if the power is not executed or the land sold in satisfaction of debts.\[51\]

39. Evidence of participation in scheme to defraud effected through express and telephone companies by accused and accessories, and subsequent use of mails by later, insufficient in absence of evidence connecting accused with change to use of mails, Dalton v. U. S. \[C. C. A.\] 154 74 61. 40. United States V. Dexter, 154 F 890. Letter whose text shows nothing effective to further scheme admissible where written on stationery ordinarily used to further fraud and intended to be used in connection therewith. \[C. C. A.\] 162 F 111. 41. Booth V. U. S. \[C. C. A.\] 154 F 836. 42. United States V. Corrad. 156 F 248. 43. Where inspector with permission of addresse opened and copied contents, placed marked money therein, and replaced it, held that it did not thereby cease to be mail matter intended to be conveyed by mail within meaning of Rev. St. $ 467. Ennis v. U. S. \[C. C. A.\] 154 F 842. 44. See Agency, $ C. L. 58. 45. Tscatmentary power in widow to divide estate among children as she might see best held valid. In re McNeNeIe's Estate, 217 Pa. 179, $ 64 A 328. 46. See Agency, $ C. L. 58. 47. Wills construed to confer a life estate on devisees with power to convey the fee for their support, they being sole judges of necessity therefor. Hosman v. Willett \[KY.\] 107 SW 334. Deed of quitclaim held to pass fee. Id. 48. White v. Holly \[Conn.\] 68 A 997. 49. Where deed to husband, wife, and chil-dren provided that husband and wife, "excluding their children' rights," should have right to convey or exchange the land, they could convey title free from claim of chil-dren. Funkhouser v. Porter \[KY.\] 107 SW 202. 50. Circumstances and recitals held to raise presumption that deeds of trust were drawn with reference to laws of Connecticut, making question of donce's last domimetic immaterial. White v. Holly \[Conn.\] 68 A 997. 51. Code 1896, $ 1046. Remainderment not barred by petition of life tenant to probate court for sale of land for division and by sale thereunder, where widow did not act as executrix, and there was a defect of parties, and statute for execution of powers was not compiled with. Rutledge v. Crampton \[Ala.\] 43 S 822.

That may not be done under a power of appointment which the donor himself could not have legally done.\[82\] Power in a trustee to sell with consent of another ceases with the latter's death, there being no provision for disposition of the corpus.\[53\] A power coupled with an interest passes to the survivors of several donees.\[54\] Where two devices of a fee are donees of a power of sale for the benefit of themselves and a third, and by the latter's death his share vests in them, the power merges in the fee.\[55\]

SS 3. _Execution of powers.\[56\]_ C. L. 1446\_--The provisions of the power must be strictly observed.\[57\] A power to appoint a life estate in income of property held in trust will not authorize an appointment of a life estate in the corpus.\[57\] General authority in grantees to sell or exchange the property includes power to mortgage it,\[58\] but power in a devisee to sell for the support of herself and children does not.\[59\] Where two executors qualify, both must join in a dead made under a power in the will to sell land at private sale.\[60\] A power to appoint by instrument in the nature of a will prepared in the form required by the laws of a named state is legally executed in another state by a will valid under its laws and recognized by the laws of the state named.\[61\] The words "give, devise, and bequeath" are sufficient when used in connection with a previous statement of intention to exercise all power of disposition and appointment.\[62\] An intention to execute a power is shown by express reference to the property on which it was to be executed, especially where the donee has no other property.\[68\] A testamentary power to divide an estate is properly executed by a devise in trust to sell and distribute in a manner prescribed.\[64\] A direction by a testator, in execution of a general power, that the really be sold and the proceeds distributed as indicated in the will, is not objectionable as failing to designate the persons who shall take,\[68\] nor as an attempted delegation of the execution to the executors. A general power of appointment may be exercised in favor of whomsoever the donee pleases, even in favor of himself.\[69\] A life beneficiary's appointment of the principal.

52. Power could not be so executed as to offend rule against perpetuities. Brown v. Columba Finance & Trust Co., 30 Ky. L. R. 110, 97 SWV 421.

01. Wells v. Brooklyn Union El. R. Co., 121 App. Div. 491, 106 NYS 77. Real Property Law, Laws 1896, p. 583, e. 547, 515, making consent of survivor sufficient, did not apply where death occurred prior to its passage. Id.

01. Easy Payment Property Co. v. Vonder- heide, 39 Ky. L. R. 782, 96 SWV 449.

01. In re Rathyen, 115 App. Div. 644, 101 NYS 289.

01. Authority to appoint $4,000 to moth- er's family and balance to father's family not lawfully exercised by giving mother's family $4,500. In re Rogers'Estate, 218 Pa.

431, 67 A 762. Power in donee to dispose of reality by will to any of her children held not to confer authority to limit children to life estates with remainders to heirs of their bodies. Preston v. Preston \[Ky.\] 107 SVV 723. Having so appointed children took fee. Id.

57. Where beneficiary by will disposed of trust property in connection with her own, intending to exercise her power to appoint a life estate in income to her surviving husband, and she gave husband a life estate in all the property, corpus of trust estate was not transferred to husband for life, but remained in trustees, husband receiving the income. Ogden v. McLane \[N. J. Eq.\] 67 A 695.

01. Foreclosure held to exclude rights of grantees' children. Funkhouser v. Porter \[Ky.\] 107 SWV 202.

01. Dougherty v. Dougherty, 204 Mo, 228, 102 SWV 1099.

01. Board of Education of Glynn County , Day, 18 Ga. 156, 57 SE 358. Rule not altered by fact that one executor had moved away and had ceased to take part in administration, he not having resigned or been removed. Id.

01. Statute recognizing foreign wills executed according to law of state where made.

White v. Holly \[Conn.\] 68 A 997. Test not whether will was admissible to probate in Connecticut, but whether it was executed in manner required by its laws. Id.

62. White v. Holly \[Conn.\] 68 A 997.

01. Where testrix directed that her real estate be sold. Papin v. Piednoir, 205 Mo.

521, 104 SWV 63.

64. In re McNeile's Estate, 217 Pa. 179, 66 A 328.

01. Papin v. Plednoir, 205 Mo. 521, 104 SWV 63.

01. Where husband conveyed in trust for sole use of wife for life remainder to chll- dren, but with provision that wife, during his life, could dispose of property as she might see fit, conveyance by her and hor husband and reconveyance by grantee in fee simple to wife on same day held valid and effectual. Mandel v. Fidelity Trust Co. \[Ky.\] 107 SWV 775.

10 Cur. Law. PRISONS, JAILS, AND REFORMATORIES. 1261

pal of a trust estate by deed confers a vested remainder when the deed is executed,"

and, by reconveyance from the appointee and conveyance of the life estate to himself,

the beneficiary may terminate the trust and vest in himself the whole estate." An appointment under one of two or more independent powers is not invalidated by the defective exercise of the others." Equity cannot cure a defective appointment in favor of mere volunteers and without knowledge of done's intentions as to the manner in which he would have executed the power legally." A sale uncompleted by reason of death of an executor before conveyance may be completed by decree of court when all persons in interest are bound."

Powers of Attorney; Practice; Prayebs; PECATORY Trusts; Preliminary Examination; Preliminary Suits; PRESCRIPTIONS; PRESTUTIONS; Principal and Agent; Principal and Surett; PBIOM Appropriation; Priorities Between Creditors, see latest topical index.

PRISONS, JAILS, AND REFORMATORIES

Nature and Classes, 1261. # 2. Costedy, Discipline, Government, and # 3. Additional and Fixed Affairs, 1262. # 2. Employment of Inmates, 1261. # 3.1. _The scope of this topic_ is noted below."

$ 1. \_Nature and classes.\_See 4 C. L. 1087

$ 2. \_Custody, discipline, government, and employment of inmates.\_See 5-C. L. 1448. The uninhabitable condition of a place of confinement is not a ground upon which courts can order a prisoner's release upon habeas corpus." The shortening of the term or change of place of imprisonment by the managers is a matter of prison discipline, and not of an exercise of judicial power." There is no conflict between a statute conferring power upon the court sentencing a prisoner to prescribe what portion of the time he is sentenced for shall be spent in solitary confinement and a statute providing that wardens shall cause prisoners to be employed at useful labor, and the latter does not repeal the former." In Nebraska it is the duty of the warden of the penitentiary, if a convict under sentence of death appears to be insane, to give notice thereof to the judge of the district court of the county in which the penitentiary is located," and it is thereupon the duty of such judge to summon a jury to inquire into the facts; " and if the warden refuses to give such notice, it is the judge's duty, upon proper application, to investigate as to whether the warden is justified in so refusing." In an action to enforce the provisions of a statute placing a limitation on the amount of prison labor which may be engaged at any one time in the manuhabitable facture of any one article or class of goods in the state, it is sufficient to aver that a specified number of men are engaged in making certain specified articles, where the articles are not designated in the alternative; 78 but such a statute is unconstitutional because of its unequal operation,80 and, where it leaves the enforcement of such limitation to the discretion of a designated individual, it is also void because it fails to provide equal protection to all free laborers, and also because it is a delegation to the individual of legislative functions.81

\_Credits for good behavior.\_See * C. L. 1448

SS 3. \_Administration and fiscal affairs.\_See * C. L. 1449.\_In the absence of a showing to the contrary, it will be presumed fines, forfeitures, and money received from the hire of prisoners have been disbursed in the manner prescribed by law.82 A county may be liable to a municipality in whose prison its convicts are kept.83 A physician who, at the oral request of the jailor, furnishes medical aid to a prisoner, cannot recover therefor in a suit against the county where all county contracts are required to be in writing,84 but such fees may properly be taxed against the county by the jailor.85

Privacy, Right of; Private International Law; Private Schools; Private Ways; Privilege; Privilege Communications; Prize, see latest topical index.

PROATE, see latest topical index.

PROCESS.

- 1. Nature and Kinds, Form and Requisites, 8 5. Consorctive Service, 1270, 1262, 8 6. Return and Proof of Service, 1272. 8 2. Issuance, 1263, 8 7. Defeets, Objections and Amendments, 1274. 8 4. Actual Service, 1264. 8 8. Privilege and Exemptions from Servo-Lce, 1276. 8. Substituted, 1269. 8. Abuse of Process, 1276. 8. The Server, His Qualifications, and Protection, 1270. _The scope of this topic_ is noted below.87

SS 1. \_Nature and kinds, form and requisites.\_Definition.\_See * C. L. 1449

\_Designation of court and parties.\_See * C. L. 1450

The parties used must be suffil-

79. Baldwin Forging & Tool Co. v. Griffith, 1er v. Douglas County, 204 Mo. 194, 102 SWV 596. 80. Section 7452-1, Ohio Rev. St. Baldwin Forging & Tool Co. v. Griffith, 6 Ohio N. P. (N. S) 666. 81. Section 7432-2, Ohio Rev. St. Baldwin Forging & Tool Co. v. Griffith, 5 Ohio N. P. (N. S.) 566. 82. Jail fees. Randolph County v. Ellis (Gla.) 68 EE 458. 83. The liability of county commissioners for maintenance of prisoners, sentenced by the common pleas court to a city work house, is not essentially contractual, but is based rather on the mandatory requirements of $ 1556-369, Rev. St. City of Cleveland v. Cuyahoga County Com'rs, 10 Ohio C. C. (N. S.) 277. 84. Under Ann. St. 1906, p. 1262, even though Ann. St. 1906, p. 3327, provides that one in good faith fulfilling a contract with the county may recover thereon, though in entering into it the county or its agents did not follow the form prescribed by law. Millian 10 Cur. Law. PROCESS SS 2.1263

ciently designated,"88 but a misnomer is not fatal where the real party is served and is not misled and the error is corrected by the court as authorized by law." Amendment as to parties is treated in a subsequent section."90 Process against a corporation must direct service upon the corporation, and not upon its agent."91

\_Signing and sealing.\_See 8 C. L. 1450--Lack of the attesting judge's official title does not render the process void."2 No prejudice can arise from the signature of a writ by a de facto officer."93

Sealing is not a matter of substance but of form."94

\_Indorsement.\_See 8 C. L. 1450

\_Direction and delivery.\_See 8 C. L. 1080

\_Stating nature of cause of action.\_See 8 C. L. 1451

\_Penalities or consequences of nonappearance.\_95

\_The appearance day_See 8 C. L. 1451 must be designated with sufficient certainty,"96

but does not necessarily contemplate appearance in person."97

\_Return day.\_See 8 C. L. 1451--The statement of the return day is sufficient if from the whole process it is apparent what day is intended."98

Omission of the date in the copy served on the defendant is harmless where the return day is stated."98

\_Alias, counterpart or supplemental process.\_See 8 C. L. 1451

SS 2.1_Issuance.\_See 8 C. L. 1451--Where the duty of the clerk to issue a summons is purely ministerial," he cannot demand a showing of jurisdictional facts as a condition to the issue of the summons," especially where the court has not the absolute power to refuse jurisdiction."

other appropriate toples. Service on corpora-

tions and upon nonresidents is retained.

The necessity of process as a means of acquiring jurisdiction is excluded. See Appearance, 9 C. L. 282; Jurisdiction, 10 C. L. 512,

Defective process and objection thereto are treated herein, but defects in and absence of process as grounds of attack on the Judge.

ment are treated elsewhere (see Judgments,

10 C. L. 467; Foreign Judgments, 9 C. L. 1405), as are also saying such questions for

review (see Saving Questions for Review, 8 C. L. 1822), the review itself (see Appeal and

Review, 9 C. L. 108), and waiver of defects

by appearance (see Appearance, 9 C. L. 232).

88. Under statute requiring name of wife, when sued with husband, to be stated, a citation designating defendants as a certain person by name, "et uxor" or "and wife," is insufficient. Higgins v. Shepard \[Tex. Civ. App.\]. 107 SW 79.

01. Summons against "Grant's Lick, Clary-

ville & Butler Turnpike Co.," and returned

as gerved on such company by service on

president of "Claryville, Grant's Lick & Butler Turnpike Co." And was actually served on the president of the latter, such being the correct name of the defendant, and error

was corrected under authority of Cr. Code

Prac. 1 215. Claryville, Grant's Lick & Butler Turnpike Co. v. Com. \[Ky.\] 107 SW 327.

90. See post, 8 7, Defects, Objections, and

Amendments.

91. Under Sayles' Rev. Civ. St. 1897, art.

1214, requiring process to direct service to

be made upon "defendant." Mutual Life Ins.

Co. v. Decker \[Tex. Civ. App.\] 18 Tex. Ct.

Rep. 167, 101 SW 872.

92. Sapp v. Parrish \[Ga. App.\] 69 SE 821.

01. Writ signed by woman as deputy clerk

held not void, even 1f it were voidable. State

v. Webster Parish Police Jury \[La.\] 45 S 47.

94. Under Revisal 1905, 8 448, authorizing

personal service in lieu of publication, seal-

ing, if necessary, is matter of form, Vick v.

Flournoy \[N. C.\] 60 SE 978.

\*\*55. See 6 C. L. 1080. See, also, Appearance,

95 C. L. 222.

96. Rev. St. 1887, $ 4140, subd. 3, held sufficiently

the time within which defendant was required to appear and answer. McKnight v.

Gran, 13 Idaho, 629, 92 P 989.

**97.** In Kansas the answer day stated in

the summons is the day for the filing of 'a

written pleading or to become in default, no

personal appearance otherwise being necessary or contemplated. Schockman v. Wil

lams \[Kan.\] 51 P 64.

98. Writ tested on Aug. 1, and made re-

turnable "on first Monday in August next,"

is not absolutely void, since, when read in

the light of the law as to issuance and re-

turn of process, the error is self-correcting,

and it appears that the first Monday in the

month therein mentioned was intended.

Town of Point Pleasant v 1964 PROCESS SS 3. 10 Cur. Law.

**SS 3.**\_Extrateritorial effect or validity.\_See * C. L. 1482.--In the absence of statutory authority, the courts of a state cannot order service on a resident of process from a foreign court,\* and even where there is such authority, it will not be exercised in contravention of the settled policies of the state or to the prejudice of the interests of its citizens.\*

To justify the issuance of a summons to another county, and service on a defendant residing or found there, the action must be rightly brought and the persons used must be properly joined as defendants * and the statutory requirements must be observed.\* This subject is closely allied to that of venue, and the article on that subject should be consulted in connection herewith.\*

**SS 4.**\_Actual service. A. Personal. In general.\_See * C. L. 1452.--Service obtained by unlawful entry of defendant's dwelling house or any portion thereof is invalid,\* but one cannot evade personal service by refusal to take the process from the officer, or by flight when he attempts to make the service.10 Service in cases removed to Federal courts is treated elsewhere.11

\_Upon nonresidents or their agents.\_See * C. L. 1453.--In the absence of trick or device enticing a nonresident into the state, he may be personally served while therein,12 and such service will not be invalidated by the mere fact that the plaintiff anticipates such contingency and makes prior arrangements for such service.13 Service on a nonresident cannot be made by service on his agent 14 or partner.15

\_Upon municipal corporations.\_See * C. L. 1084.

\_Upon domestic corporations.\_See * C. L. 1453.--To sustain service on corporation by service on its agent, the relation of principal and agent must be actual.16 In the absence of statutory specification as to what particular agents may be served, the capacity of an agent to be served depends upon whether his position is such as to raise a presumption of notice by him to his company,17 but the fact that the proper agent actually receives the process is not sufficient where service is not made upon him as

request removal to proper district. In re one and the same cause of action. Drenner North American Mercantile Agency Co., 109 v. Jasper Inv. Co. \[Aia.\] 45 S 157. NYS 165. &, See Venue and Place of Trial, 8 C. L. 2236. &, Court could not order service of process from Mexican court in suit against New York corporation which had neither office, her pretense of wish to see another than de-busness, nor property in Mexico. In re fendant, was not such an entry as authorized forelle access to dining room upstairs. &, Marshall V. Saling River Land & Mineral Co., 75 Kan. 445, 89 P 905. &, See Venue and Place of Trial, 8 C. L. 1455 court cannot, under Code Civ. Proc. &, See Venue and Place of Trial, 8 C. L. 849, be made outside of the county with-out a certificate of county clerk attached 871, 66 A 259. &, see, showings that Justice issuing summons was at date thereof an acting justice. Ferguson v. Basin Consol. Mines Co. \[CaL\] 93 P 867. &, See, Venue and Place of Trial, 8 C. L. 1722. &, see, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 8 C. L. 1723. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 731. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 732. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 730. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 731. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 732. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 F 733. &, See, Venue and Place of Trial, 12, 13, Case v. Smith, Lineawayeer & Co., 152 10 Cur. Law. PROCESSSS 4A.1265

required by law.18 One employed by a coporation only to sell goods on commission is not an agent in the sense that service of process on him will bind principal.19 Officers interested cannot be served.20 Domestic corporations having their place of business and works outside of the state may be classed as foreign or nonresident corporations.21 Service by leaving a copy at the corporation's place of business is treated in a subsequent subsection of this section.22

by statute designate the agents of a foreign corporation upon whom service may be made \[29\] though the corporation has not designated any person in the state upon whom service may be made \[30\] and though by other statutes or even by constitutional provision foreign corporations are themselves required to designate such an agent.\[31\] The validity of the service in such case depends upon whether the party served was in fact such an agent as was authorized by statute to be served.\[32\] Where service is authorized on certain specified officers or agents, or "other agent," etc., such other agent must belong to the same general class as those designated.\[33\] Where service is v. Chicago, etc., R. Co., 147 F 767. Foreign Vol. 6, $ 8034, discusses the relation between insurance agent sent into state for special the parent corporation and. a subcorporation, purpose of investigating plaintiff's claim organized to exploit its business in another state. In such a case, courts have held that 189, $ 570, subd., 4, Ann. St. 1906, 597. A relation of principal and agent exists and Painter v. Colorado Springs & Cripple Creek make the foreign corporation table to process. R. Co., 127 Mo. App. 248, 104 SWV 1189. Ownership by a foreign corporation of a ser v. Navigation Co., 48 F 202. The supreme majority of the stock in a domestic corporation which runs its own business as overruleed these last two cases and. also, Rule v. Chicago, etc., R. Co., 59 Tex. 51, 65 SWV stitite transaction of business, in the state. Peterson v. Chicago, etc., R. Co., 205 U. S. 64, 61 Law. R. 841. Presence of an officer in the state in attendance upon the taking the corporation itself clearly governs the state. Lad Metals Co. v. American Min. Law. Ed. 473.--From 6 Mich. L. R. 259. A general sales agent who took orders to be accepted and filled outside state held not relating to duties of law. Grant v. A question of fact: Whether the corporation was doing business and had an agent in the county where process was served may be "v. Denver Union Water Co. \[Colo.\] entirely a question of fact. Southern Pac. Co. v. Allen \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 202, 108 SWV 441. Federal question is involved in determination of whether foreign corporation is doing business in state so that service may be had upon its agent. Vold v. J. B. Colt Co., 102 (June 1996, 597. A paper). V. D. Smith C., 104 SWV 1189. Note: A foreign railroad corporation owned the stock and controlled the policy of a domestic railroad corporation, and both corporations were parts of one railroad system. The foreign corporation sent its trains and crews over the tracks of the domestic (Colo.) 30 P 623. Acts W. A comparison. The expense of management of . . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Acts W. A comparison owned only a small rolling stock (Colo.) 30 P 623. Acts W. A comparison of management of . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Acts W. A comparison owned only a small rolling stock (Colo.) 30 P 623. Acts W. A comparison of . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Acts W. A comparison owned only a small rolling stock (Colo.) 30 P 623. Acts W. A comparison of . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Acts W. A comparison owned only a small rolling stock (Colo.) 30 P 623. Acts W. A comparison of . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Acts W. A comparison owned only a small rolling stock (Colo.) 30 P 623. Acts W. A comparison of . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Acts W. A comparison owned only a small rolling stock (Colo.) 30 P 623. Acts W. A comparison of . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Acts W. A comparison owned only a small rolling stock (Colo.) 30 P 623. Acts W. A comparison of . 1905, 0. 39, requiring appointment of such trains was borne by the domestic corporation while on its tracks. The domestic (Colo.) 30 P 623. Ac

## 10 Cur. Law. Process SS 4A.

authorized upon agents and officers generally, the test is whether the agent or officer is such as to reasonably insure notice to the corporation \[34\]. In the absence of statutory designation of the agent that may be served, he must be the agent representing the corporation in the business which it is doing in the state \[85\], or such as will be deemed generally to represent the corporation in its corporate capacity and as such authorized to be served \[85\]. The agent must also be one in fact, and not merely by construction of law \[37\]. An officer or agent cannot be served where he is casually or temporarily in the state \[85\] unless it is so provided by statute \[85\], or where he is enticed into the state for the purpose of service \[40\]. The mere tender of a resignation by an officer, not acted on and unknown to the plaintiff, will not invalidate service upon such officer after such tender \[41\], and so also where the articles provide for a holding over until election of a successor, and no successor of the resigning officer has been elected \[42\]. The appointment of an officer as a receiver for the corporation will not prevent service on him as an officer \[43\]. Withdrawal from the state will not prevent service in suits arising out of business transacted in the state provided a proper agent or officer can be served \[44\]. A state may require foreign corporations to designate an agent upon whom service may be made in suits growing out of business transacted in the state \[45\] whether such suits be brought before or after the corporation ceases to do business in the state \[46\], and a corporation, having assented to such provisions anddesignated an agent, must respond to process served upon him in the mode prescribed by law,47 and the designation of such agent is irrevocable as to persons acting in reliance theron,48 and it is sometimes so provided by statute,49 but limitations

shall run from time of filling until his successor is appointed or the restination of such agent, etc., the capacity of the agent to receive service continues after withdrawal of corporation from the state and after the agent had ceased to have any relation to the corporation except with regard to service, Id.

47. Hill V. Empire State-Idaho Min. & Developering Co., 156 F 197.

01. Foreign insurance company could not revoke designation of North Carolina insurance company as agent for service as against a resident assignee of a South Caro-Iina policy holder, where the assignment was made prior to the insurance company's attempted revocation. Hunter v. Mutual Reserve Life Ins. Co., 118 App. Div. 94, 103 NYS 76, following, by analogy, Voodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485, 71 NE 10, 102 Am. St. Rep. 519, where the policy used on was issued to a resident of North Carolina, and distinguishing Hunter v. Mutual Reserve Ins. Co., 184 N. Y. 136, 78 NE 1072, on the ground that in that case the assignment to the resident of North Carolina was after the revocation of the designation of the insurance commissioner as agent for service.

Note: The defendant company, a foreign corporation, had done business in Idaho and had while there lived up to the statutory requirement of appointing an agent upon whom service could be had. The statute required that the designation of the agent should run until his successor was appointed. The defendant company withdrew from the state and ceased doing business there, and the agent was no longer connected with the company. The plaintiff sues the company in tort for damages to his lands and served the former agent of defendant company. He did the service was good, V. Amplive State-Idaho Min. & Developering Co., 156 F 77.

The general rule is that a foreign corporation must be doing business in the state before it is subject to process. It must be present through its agents, and the agent served must be representing it in its business there. St. Clair v. Cox, 106 U. S. 350, 27 Law. Ed. 222; Conley v. Mathieson Alkali Works, 190 U. S. 406, 47 Law. Ed. 113; Peterson v. Chicago, etc., B. Co., 205 U. S. 364, 51 Law. Ed. 841. The court in the principal case reasons that a foreign corporation can, agree as a condition to entering a state for business purposes that it will be liable to suit by a specified service as long as there shall exist any liability against it in that state, and this even though it ceases to do business there. It would seem that such an agreement should be express and should clearly contemplate such service so that the constitutional guaranty of "the process of law" will not be violated. The agreement has been held to exist when the statute specifically requires a stipulation to be filed by the foreign corporation that the agent's authority to receive service will not be revocable while any liability against the corporation.

10 Cur. Law. PROCESS SS 4B. 1269

upon the right to revoke the appointment of the statutory process agent do not affect the kinds of suits that may be instituted.50 A subsequent statutory provision as to service does not necessarily repeal a former provision.51 Provision is sometimes made for service in the nature of substituted service.52 In some states foreign corporations are placed upon the same basis as domestic corporations for the purpose of service.53 A process agent appointed by a foreign corporation pursuant to statutory requirement may accept service for the corporation.54

_Upon foreign unincorporated associations.54 C. L. 1078_

(SS 4) _B. Substituted.55e_ S. C. L. 185e.Substituted service can be made only when and as authorized by statute.56 Statutes authorizing substituted service will be strictly construed 50 and must be substantially complied with.57 Statements of the statutory grounds upon information and belief must disclose the source of the information.58 The test as to what constitutes one's family is whether the relation between him and the other persons of the household is of a permanent and domestic character, and not intended to be merely temporary.50 Where service is made on several defendants residing in the same residence, a copy should be left for each.50

Provision is sometimes made for service in the nature of substituted service on corporations.51 Such service is authorized where the contingency provided for by the statute exists at the time of the service.52

of insurance stipulating that it was a New York contract was not an obligation out-, p. 597. Colter v. Luke \[Mo. App.\] I08 SVW standing In North Carolina within Revial 688. Service "by delivering a true copy on Mrs. M. B., wife of the within named J. M. 50. Provision of Shannon's Code, 1292. B.," is not sufficient under provision authoring service by leaving copy at usual place. commissioner as process agent shall not be revoked while obligations are outstanding in state, does not preclude suit against for-, or the contents thereof. Barwick v. sign insurance company by a nonresident.

Rouse, 53 Fla. 643, 83 T53. Patton v. Continental Casualty Co. \[Tenn\]. 58 That defendant was in the state when the order was issued. Nichols v. Emmett, 104 SVW 305.

61. Service may be made as provided by Code, notwithstanding Key. St. 103, 871.

Subsequently enacted. Cumberland Co. v. "Family," as used in Rev. St. 1899, 8 570. Lewis \[Key.\] I08 SVW 341.

52. See post, this section, subsection B.

Substituted.

SS. City, Code 1895, & 2693, subsec. 7, is broad enough to include foreign as well as domestic corporations. Bell v. New Orleans, etc., R. Co., 2 Ga. App. 512, 55 85 102. Under Cliv. Code 1902, & 1791, a foreign corporation which files with secretary of state a copy of its charter, etc., becomes a domestic corporation for purpose of service. Geraty v. Atlantic Coast Line R. Co. \[S. C\] o82 SS36.

54. Insurance commissioner appointed process agent pursuant to Shannon's Code, 822, subsec. 3. Patton v. Continental Casualty Co. \[Tenn\]. 104 SVW 305.

SS. Order for substituted service, under Code City. Proc. 435, improper where it did not appear from papers that defendant was in state when order was granted, or that diligent effort was in state when order was granted, or that diligent effort had been made to obtain personal service. Nichols v. Emmett, 6& Misc. 321, 107 NYS 663. Substituted service under Municipal Court Act, Laws 1092, p. 1500, & 580, & 32, held un-authorized where it appeared that defendant had neither residence nor place of business in city at or after time of issuance of origl-, pal. 443-455, 4.37, #58-59, 16. Under clenn.

107 NYS 734.

56. Gage v. Riverside Trust Co., 156 F 1002.

1270 PROCESS SS 4C. 10 Cur. Law.

(SS 4) \_C. The server, his qualifications and protection.\_See * C. L. 1487 SS 5. \_Constructive service. Service by publication.\_See * C. L. 1487--Statutes authorizing service by publication are strictly construed," and must therefore be strictly complied with," and such compliance must affirmatively appear of record," unaided by any presumptions."

\_When proper.\_See * C. L. 1488--Constructive service is allowable only where it is expressly authorized by statute." Such service is usually confined to cases where the court has jurisdiction of the res " and the parties sought to be served are non-residents of the state." There is some conflict as to the effect of an honest mistake as to the defendant's nonresidence."

\_Procedure to authorize.\_See * C. L. 1488--The statutory provisions must be followed with exactness," including those relating to the affidavit," which must set out the cause of action " and all the essential statutory facts," and in this respect

ing a copy at such office with the person In indemnity of the corporation, held not local charge thereof, where it appears that at the time of such service the ether officers and representation of the statute Co., 158 F 837.

are not found in the county. American Bonding Co. v. Dickey, 74 Kan. 791, SS P 66. Serv-1207. Payne v. Anderson \[Neb.\] 114 NWP 148.

lce at corporation's office on mere salesman held invalid. Frankel v. Dover Mfg. Co., 104 NYS 459.

gA. See Rev. St. 1899, SS 955, 996; Ann. St. 1906, pp. 876, 878, authorizing service by leaving copy, etc., where president, etc., cannot be found, etc. Cornwall v. Star Bottiling Co. \[Mo. App.\] 108 SV 591.

gA. Gage v. Riverside Trust Co., 156 F 100; Whitney v. Masemore, 15 KAsn. 522, SS 9 P 914.

gA. Morse v. U. S., 29 App. D. C. 433; Slattery v. Stevens, 125 Ill. App. 67; Czyston v. St. Stanislaus Parish, 131 Ill. App. 161; Schaller v. Marxet \[Iowa\] 114 NWP 43; Finn v. Howard \[KAsn.\] 94 P 801.

gC, 66. Cohen.v. Portland Lodge, No. 142, B. P. O. E. \[C. C. A.\] 152 F 857.

gT. Bisby v. Modul \[Iowa\] 115 NWP 489.

g8. In suit concerning title to shares in domestic corporation held by nonresident, latter may be served by publication. Boosee v. Singer Mfg. Co. \[N. J. Eq.\] 68 A 54. Under Code Civ. Proc. $ 438, subd. 5, authorizing published service where defendant is sought to be excluded from an interest, etc., In real or personal property in the state, such serv- lec may be had upon nonresident benef- clarles of insurance policy in suit by testa-tor's trustee to recover advancements made by testator for premiums to secure which the policy had been assigned to testator. Morgan v. Mutual Ben. Life Ins. Co., 189 N. X. 447, SS 2NE 438, affg. Jd., 119 App. DIV.

gA, 104 NYS 185. Enforcement of laborer's lien. Hoye Coal v. Colvin \[Ark.\] 104 SV 287. Prior to Laws 1903, p. 587. c. 354, published service was not allowable in action for specific performance of contract to convey reality. Horner v. Ellis, 75 Kan. 675, 90 P 275. Sult for specific performance of contract to convey land is not suit in rom where no property is attached. Lucas v. Patton \[Tex. Civ. App.\] 107 SV 1148. Suit by stock- holder for receiver with authority to appear in state court and defend against judgment therein against the corporation and to obtain injunction against interference with corporation's property, and to secure accounting as to certain attack plagged for the 10 Cur. Law. PROCESS SS 5.1271

the affidavit, while not a pleading, may be tested by the rules applicable thereto.18 In certain cases the allegations may be upon information and belief.7e The return of the sheriff not found, after diligent search, is prima facie evidence of the defendant's absence from that county wherein the sheriff exercised its authority,17 and the affidavit of an attorney as to the substance of the record in this regard will be given the same weight." Where the statute authorizes published service on several grounds in the alternative, the affidavit should not be in the alternative, but the plaintiff should select which ground he relies on," and where the plaintiff does not know which of the grounds is true, he must resort to other means provided by law for obtaining the order of publication.80

\_How and when made.\_See 8 C. L. 1460--Where the statute is sufficiently comprehensive to include service on particular classes of parties, the provisions of statutes relating to personal service on such parties will not be considered.81 A requirement of publication for a certain number of successive weeks does not require publication daily for such term, but only a weekly publication for such term,82 but it is held that the full specified term must expire before the service is complete.83 Where the statute provides that the service shall be complete at the expiration of the time prescribed

Jurisdiction of the court to pass in such question being dependent upon allegation of facts having a probative tendency upon such as to whether it had any officer hasue. Evans v. Weinstein, 108 XYES 753.

Ranch v. Werley, 159 F 509.

When an affavit shows that defendant is a nonresident and has been such for a long O. E. I.C. A.152 F 857.

time, and that he is not in the state, this

70, Norsenfidence. Evans v. Weinstein, is a sufficient showing of diligence. Mc-Knight v. Grant, 13 Idaho, 629, 92 P 88.

108 XYES 753. Where there is a positive suit involving property of decedent, inquiry

gence and of the information received from of executor as to whereabouts of defendants whose interests were derived from or absence of the defendant, upon such in-the will held due diligence. Cohen v. Portland

formation: If adopted by the affant, may be LoGge No. 142, B. P. O. E. \[C. C. A.15\] 152 F 857.

An affavit which falls to show inability to

is absent or nonresident. Information discover defendants' whereabouts is insull-

stated held accepted by use of expression client as the basis for service by publication. "therefore" the defendant, etc. Cohen v. Anderson v. Anderson, 229 Ill. 638, 82 N 311.

Portland Lodge No. 142, B. P. O. E. \[C. C. A.\]

Allegation that defendants were nonresi-

152 F 857.

dents of the state and were residents of

77,8, Cohen v. Portland Lodge, No. 142, Great Britain and had always been residents

B. P. O. E. I.C. C. A.152 F 857.

thereof, and that personal service on them

79. Under Kirby's Dig. $ 6055, authorizing could not be had, held sufficient. Shinott v. publication where defendant is a nonresident

Emnis, 106 XYES 218, Statement, in words of

70. Code Civ. Proc. $ 438, that plaintiff "will be unable, with due diligence, to make personal service," etc. held more conclusion.

McLaughlin v. McCann, 128 App. Dlv. 67,

107 NYES 762. Statement that plaintiff cannot

ascertain after diligent inquiry where defendants reside held more conclusion. Id. Afflavit or other proof. Holloway v. Hoffmanavit stating inquiries of named persons,

11,3, B. P. O. E. \[C. C. A.15\] 152 F 857.

81. Minors. Cohen v. Portland Lodge No.

defendant could not be found, held sufficient

143, B. P. O. E. \[C. C. A.15\] 152 F 857. B. & C.

under Code Civ. Proc. $ 412, though the spec-

56% results of the inquiries were not stated. Chapman v. Moore, 151 Cal. 609, 91 P 324.

Allegation of inquiry of executor as to

whereabouts of minor child of decedent, such

Inquiry resulting in the information that the child was in an orphan asylum in another

state, held sufficient showing of diligence. Cohen v. Portland Lodge No. 142, B. P. O. E. \[C. C. A.15\] 152 F 857. B. & C. Comp. Or.

1 $6 held compiled with, as against collateral

attack, by afflavit showing that defendant

was foreign corporation with principal office

in another state, that process against it was

returned unexecuted, and that affant had,

without avail, made diligent inquiry of persougent being dependent upon allegation of

sons named as to whether it had any officer

facies having a probative tendency upon such

or agent in state who could be served. Rasch v. Werley, 159 F 509.

When an affavit shows that defendant is a

75, Cohen v. Portland Lodge No. 142, B. P. O. E. \[C. C. A.15\] 1 for publication, the time, according to the usual rules of computation, will be computed by excluding the first day and including the last.84 Where the notice is mailed to an address other than that set out in the afflavit, the court does not acquire jurisdiction.85

\_Order of publication.\_See * C. L. 1480--Compliance with the statutory requirements as to the published notice or order is jurisdictional,86 but mere irregularities in an order for constructive service are not fatal.87 The order of publication must be made by the proper court,88 and, must sufficiently designate the defendants,88 describe the res,89 and state the time for appearance.91

\_Personal service in lieu of publication_See * C. L. 1481 is sometimes authorized.92

\_86 Return and proof of service.\_See * C. L. 1481--A summons once returned and filed with the papers in the case becomes a file of the court which cannot be withdrawn without permission of the court,93 but the court may order it to be withdrawn and served on any defendant in the case.94 A return of service by a private individual must show service as required by the statute.95 Admission of service can be made only by one having capacity to be served.96 A written admission of service must identify the process.97

\_Official return.\_See * C. L. 1481--The official return of service must show a legal service 98 upon the party sued,99 and cannot be aided by reference to the statute under

84 Under B. & C. Comp. Or. **SS 56**, 57, an umber **84**, **89**, **87**, **88**, 10 Cur. Law. PROCESSSS 6. 1873

which the service is made.1 At common law, process for appearance must be returned at the same or the next term,2 and this rule still prevails in some states.3

\_Return of service on corporations.\_See 8 C. L. 1492.--A return of service on a corporation must show that the agent served was one upon whom service was authorized.4 Where the corporation is a nonresident, the return must show that it was subject to service.5

\_Amendment of return.\_See 8 C. L. 1492.--An amendment of an official return can be made only by the officer who made it or from his memoranda or facts proved to the court.6 Return of service on a foreign corporation may be amended by inserting the title of the officer or agent served.7 Amendment of proof of service by publication is treated in a subsequent subdivision of this section.6

\_Impeachment and contradiction of return.\_See 8 C. L. 1498.--There is a strong presumption in favor of the return of an officer,9 and, under the common-law rule, in the absence of fraud or mistake, an official return regular on its face, is conclusive upon the parties,10 but in some of the states provision is made for the traverse of the return.11 Such a traverse is a matter of abatement, and must be pleaded as

turn of service of process against several

statute service of process may be made upon

defendants, reciting service "by delivering to

the withdraw named defendant a true copy,"

class or kind of agent upon whom service

etc., "on the dates and at the places herein.

after set forth." etc., naming each defendant,

etc, held insufficient to show service on any

of defendants. Mahan v. McManus (Tex. Civ. App.) 19 Tex. Ct. Rep. 490, 102 SWV 789.

return must show that the corporation had

1. Wealaka Mercantile & Mfg. Co. v. Lumparman's Mut. Ins. Co. \[Mo. App.\] 106 SWV

store Park Transp. Co., 154 F 504.

2. Bowden v. T. A. Gillespie Co. \[N. J. Law\]

68 A 238.

3. Bowden v. T. A. Gillespie Co. \[N. J. Law\]

68 A 238. Where defendant was served before return day, but return was not made

on such day, it was error to direct a return

to be made and to require defendant to de-

turn of Constructive Service and Proof of

mur or plead, more than a term of court having

ing interval between issue of writ and

making of such order. Id.

Remedy in New Jersey for failure of off.

cer to make return in proper time is by

amerement of officer. Bowden v. T. A.

Gillespe Co. \[N. J. Law\] 68 A 238.

4. Under Burns Ann. St. 1901, $18, authoring service primarily on certain off.

Lick & Butler Turnpike Co. v. Com. \[Ky.\]

cers and secondarily on other officers and

107 SWV 327. Sheriff's return that president

agents, a return which showed service

or other chief officer could not be found in

merely on an "agent." without disclosing his

name or that none of officers primarily sub-

ject could be found, was insufficient. South-

motion to quash by afflavits showing that

ern Indiana R. Co. V. Indianapolis, etc., R.

Co., 168 Ind. 360, 81 NE 65. Such defect held

v. Star Bottling Co. \[Mo. App.\] 106 SWV 591.

not cured by $13. Id. A return showing

service on president or vice-president sunfl-

clearly shows that service was upon an

agent. Venner v. Denver Union Water Co.

o. $80, $13, judgment for plaintiff must be

\[Coo.\] 90 P 623. Under Rev. St. 1899, $799;

reversed where undisputed afflavits show

Ann. St. 1906, p. 3801, authorizing service on

foreign insurance company which has not

complied with Rev. St. 1899, $798, 7961;

102.

such.12 Where the return is made by a deputy-sheriff, both he and the sheriff are necessary parities to the traverse.18 Denials of service must be direct14 and something more than the mere conclusions of the affiant.18 An official return is not even prima facie service of a notice, the service of which is not within the officer's official duties,14 nor is an unofficial entry of service any evidence thereof.17 The presumption of the correctness of an official return does not prevail in favor of a return of service by a private individual.18 Collateral attack upon the return is treated elsewhere.19

\_Waiver of irregularities.\_See 8 C. L. 1468

\_Return on constructive service and proof of service by publication.\_See 8 C. L. 1468

The affidavit of constructive service must be made by the party designated by statute,20 and must be in compliance with the statute.21 Service by publication is not rendered defective by reason of the failure of the return to show in what particular mail box the notice was dropped.22 Amendment of the proof is allowable,23 but only when authorized by order of court and upon a sufficient showing of the facts.24

SS 7. \_Defects, objections, and amendments. In general.\_See 8 C. L. 1468--It is sometimes provided that service shall not be set aside where it is sufficient to inform the defendant of the suit, the plaintiff's name, and the court and time at which appearance is required.28 The service of a summons should not be set aside because

him address defendant by name, and saw fendant in an inarticulate and unintelligible him hand defendant a copy. Halpern v. Sherman, 107 NYS 20. Affavit of defendant, her husband, and real estate agent, that she legrett v. Stubbert, 126 Ill. App. 171.

had moved from residence where, according to affidavit of process server, the service defendant was not served is merely a con- was made, held to prevail over the affidavit of such server that process was served on fendant of the specific facts by the process her at such residence, Hogan v. Gault,147 NYS 410. Evidence on appeal held to show her York City. Mann v. Mergush, 107 NYS 104. NYS 770. Judgment in municipal court of New York City cannot be vacated solely for purpose of traversing the return. Mann v. Mergush, 107 NYS 69. Prior to amendment of Laws 1902, p. 1562, 680, by Laws 1907, p. 554, a 304, the municipal court of New York City could not vacate or set aside a Judgment for nonservice of the summons, only remedy being by appeal, on which affidavits were submitted and served on plaintiff, who had right to controvert them. Id. No relief was allowable under Laws 1907, p. 554. 504, 5 356, where defendant did not ask to have his default opened and the case set down for trial, and submitted no prepared answer or affidavit of merits, and did not even declare that he had any defense. Id. Under Municipal Court Act, 831, affidavits filed in lower court, but not served on plaintiff, no notice being given him that they would be relied upon on appeal, could not prevail without giving plaintiff an opportunity to controvert them. Id.

12. Such a plea is dilatory and must be verified. Bell v. New Orleans, etc., R. Co., 2 Gq. App. 812, 59 SE 102. When the record shows a return prima facie valid, and the defendant discovers the existence of the return prior to the judgment, the objection for lack of service must be made by the party designated by statute,20 and must be in compliance with the statute.21 Service by publication is not rendered defective by reason of the failure of the return to show in what particular mail box the notice was dropped.22 Amendment of the proof is allowable,23 but only when authorized by order of court and upon a sufficient showing of the facts.24

SS 7. \_Defects, objections, and amendments. In general.\_See 8 C. L. 1468--It is sometimes provided that service shall not be set aside where it is sufficient to inform the defendant of the suit, the plaintiff's name, and the court and time at which appearance is required.28 The service of a summons should not be set aside because

him address defendant by name, and saw fendant in an inarticulate and unintelligible him hand defendant a copy. Halpern v. Sherman, 107 NYS 20. Affavit of defendant, her husband, and real estate agent, that she legrett v. Stubbert, 126 Ill. App. 171.

15. An allegation in an affidavit that the defendant was not served is merely a con-

was made, held to prevail over the affidavit of such server that process was served on

denation of the specific facts by the process her at such residence, Hogan v. Gault,147 NYS 410. Evidence on appeal held to show her York City. Mann v. Mergush, 107 NYS 599.

16. Notice to landowner to restore a fence of New York City cannot be vacated solely for purpose of traversing the return. Mann v. Flynn, 5 Cal. App. 819, 90 F 463.

01. Justices of the peace not being re-

quired to make entries of service, such an entry is no evidence of mode of service,

Harrison v. Basin Consol. Mines \[Cal.\] 98

P 867.

18. Lynch v. West \[W. Va.\] 60 SE 606.

01. See Judgments, 10 C. L. 467.

01. Under Code, 8386, the affidavit of publication must be made by the publisher, and cannot be made by 10 Cur. Law. PROCESS SS 7.1275

the copy served did not indicate that the seal had been placed on the original.\*\* Failure to comply with the statutory prerequisites of published service is fatal to jurisdiction,**\[27\] but not so as to mere irregularities.**\[28\] A misnomer may be fatal, but is not necessarily so.**\[29\] Failure to publish service for the required length of time is not ground for quashing the service.**\[30\] Service will not be set aside upon the motion of one not a party to the action,**\[31\] but a defendant may move to vacate an order of publication against codefendants who are proper and necessary parties.**\[32\]

_Alterations and amendments._**\[58\]** **C. L. 1444--An unauthorized change in a process by a stranger to the writ**\[38\] does not affect its validity.**\[44\] Process may be amended**\[38\] **as to the name of the court,**\[38\] **name and description of parties,**\[37\] **and title of attesting officer.**\[38\] **Bringing in new parties by amendment of process is considered elsewhere.**\[39\]

_When objections made._**See 8 C. L. 1444--Objections for defects in process must be made in proper time.**\[40\]

\*\*26. Sictman v. Goeckner, 127 Ill. App. 67. 27. 27.

\_How objections made.\_See * C. L. 1465--Defects and irregularities in process and service thereof must be raised by special appearance and objections to jurisdiction,41 but exemption from service may be raised by answer.42 Where defects in the service appear on the face of the papers, objection on account thereof may be taken by motion to quash.43 Defects not apparent on the face of the papers may be objected to by plea in abatement or rather a plea in the nature of a plea in abatement,44 but such a plea need not conform to the rules applicable to pleas in abatement strictly so-called.45 On a motion to vacate an order for substituted or published service, the court will inquire into the merits as exhibited by the bill to ascertain whether the case is one in which such service may be had.46 Service of process in one action cannot be set aside in another action.47

\_Waiver of irregularities or lack of process.\_See * C. L. 1465--Irregularities which do not absolutely vitiate the process may be waived,48 as may also even a total lack of process.49

SS 8. \_Privileges and exemptions from service.\_See * C. L. 1467--Parties to suits are exempt from service while going to, attending, or returning from court,50 and such exemption will be allowed a reasonable latitude.61 Exemption while attending court as witness under order of court exists independently of statute and is liberally construed.52 Such exemption applies to a nonresident defendant53 whether sued in his individual or a representative capacity.54 The exemption applies also to witnesses summoned into the state by the Federal courts.56 The rule in the Federal courts is that one attending court in another state, either as a witness or as a defendant, nominal or real, is exempt from service while in such attendance,54 at least in the absence of statute clearly to the contrary.57

SS 9. \_Abuse of process_See * C. L. 1467 considered elsewhere.58

PROODUCTION OF DOCUMENTS, see latest topical index.

woman as deputy clerk should have been

rased in limine. State v. Police Jury of

Webster Parish \[La.\] 45 S 47.

41, 42. Stelling v. Peddicord \[Neb.\] 111

43. Selectting Vehicle Co. v. Craig Toledo

01. Beck & Paul Lithographing Co. v. Monarch Brew. Co., 131 Ill. App. 645. Must be

made by plea in abatement so as to afford the

compalianment an opportunity to cross-exam-

ine the witnesses. Electric Vehicle Co. v. Craig Toledo

Craig Toledo Motor Co., 157 F 816. Variance

between "branch" summons to another

country and the other summons must be

objected to by a plea in abatement, and not

by motion to strike the branch summons

in state under order of court. Id.

from the files. Drennan v. Jasper Inv. Co. \[Ala.\] 45 S 157.

45. Plea alleging merely that person

served as secretary of corporation defendant

was not such secretary at the time of such

service, nor any other officer or agent, etc.

able. Barber v. Knowles \[Ohlo\] 82 NE 1065.

held sufficient. Beck & Paul Lithographing

52, 53, 54. Sewance Coal. Coke & Land Co. v. Monarch Brew. Co., 131 Ill. App. 645.

46. Plaintiff's bill must make act a case

01. Exception under Shannon's Code,

within those enumerated by Fed. Judimentary

Act Mech. 3, 1875, c. 137, 18 Stat. 471 (U. S. Comp. St. 1901, p. 513), in order to be entitled

56. Skinner & Moance Co. v. Waite, 155 F

to an order for substituted service. Gage

57. Riverside Trust Co., 156 F 1002.

01. Setting aside summons and vacation of

proceedings in action Instituted by one at-

torney could not be had in subsequent action

such a statute. Id.

upon same cause if action instituted by an

58. See Malicious Proscution and Abuse 10 Cur. Law. PROHIBITION, WRIT OF SS 1: 1277

PROFANITY AND BLASPREY."

Use of indecent, obscene,60 or threatening 61 words, and disorderly conduct,62 are elsewhere treated.

There must be an invocation of divinity to constitute profane swearing.63

PROFENT; PROFITS A PENDEDE, see latest topical Index.

PROHIBITION, WRIT OF.

# 1. Nature, Function, and Occasion of | 8 2. Practice and Procedure, 1270.

Remedy, 1277.

The determination as to whether jurisdiction exists 64 and prohibitive relief by other writs 65 are elsewhere treated.

SS 1. \_Nature, function, and occasion of remedy.\_56e & C. L. 1467--The writ of prohibition is not a writ of right,66 but an extraordinary legal remedy,67 sometimes called the counterpart of the writ of mandate.68 It will only issue to arrest the proceedings of a tribunal, corporation, board, or person, when such proceedings are without 69 or in excess of the jurisdiction of such tribunal, corporation, board, or person.70

of Process, 10 C. L. 657. See, also, Special and new trial was ordered on appeal. Hunt-Article, 4 C. L. 470.

ington v. San Francisco Super. Ct., 5 Cale.

59, See 8 C. L. 1467. App. 288, 80 P 141. Where court takes ju-

60. See Indecency, Lewndness and Obschen-

risdiction of cause regardless of fact that try, 10 C. L. 42.

61. See Threats, 6 C. L. 1697.

statute, Lane v. Kings County Super. Ct.

62. See Disorderly Conduct, 9 C. L. 985.

01. "Go to hell" not within Code 1906,

01. Stafford v. State (Miss.) 44 801.

01. See Jurisdiction, 10 C. L. 512.

01. See Injunction, 10 C. L. 246; Mandamus, 10 C. L. 662

01. Zinn v. Barnes Dist. Ct. \[N. D.\] 114

noses in slander case pending before court in

NVV 475.

67. Ex parte State (Ala.) 43 8 490; Critten-

468, 105 SWV 636. To prevent one court from

den v. Boonewille (Miss.) 45 8 723.

interferting with property in hands of receiver

68. $ 1102, Code Civ. Proc. Beaulieu Vine-

yard v. Napa County Super. Ct. \[CaI. App.\] 7 v. Reynolds \[Mo.\] 107 SSV 487. To restrain

91 P 1015, 8 4994, Rev. St. 1887. Bragaw v.

proceedings for judicial account of vote fcr

Gooding \[Idaho\] 94 P 438.

mayor in cities of first class under alleged

69. State v. Hinkle \[Wash.\] 91 P 640. Wills

unconditional act, under $ 2101, 2102,

only if he went court is proceeding without or

Code Civ. Proc. People v. Dayton, 120 App.

in excess of jurisdiction. Bragaw, 9. Good-

Inv. S14, 106 NYS 809. To prevent court

ing \[Idaho\] 94 P 438; State v. Riley, 203 Mo.

from proceeding to try accused on second in-

175, 101 SWV 667. St. $ 7853. Zinn v. District

Ct. of Barnes County \[N. D.\] 114 NWP 475;

moved from jurisdiction of court by change

Hindman v. Colvin, 46 Vash. $17, 89 P 884.

of venue. Reefe v. District Ct. \[Wy.o\] 94

$ 1102, 1103, Code Civ. Proc. Murphy v.

P 458.

Banted \[Cal. App.\] 91 P 805. Code Civ.

Dented: Where Justice of supreme court

Proc. $ 1102. Beaulieu Vineyard v. Napa

has jurisdiction under Laws 1897, p. 520, to

Country Super. Ct. \[Cal. App.\]. 91 P 1015. The

remove theatrical license. People v. OGor-

only question is whether the justice had

jurisdiction to entertain the application and

man, 108 NYS 787. Where court has been

his jurisdiction to make the order sought

Dunbar V. Wallace (Arx.) 105 SWV 267. To

to be restrained People v. O'Gorman, 108

NYS 737. Right to maintain stands or falls

police with view to dismissal where offense

on question of jurisdiction to render judge judge-

wans sufficient ground for dismissal. Thomas

ment. Lenham Mercantile Co. v. Herke, 105

v. Thompson, 81 Ky. L. R. 524, 102 The writ will lie only to restrain judicial and quasi judicial action,"1 and not to prevent acts of a legislative, ministerial,"2 administrative, or executive character, though performed by the judge or presiding officer of an inferior tribunal."3 While the purpose of the writ is to relieve from pending,"4 not completed, action,"5 it cannot be used to prevent the institution of an action,"6 nor to prevent an inferior court from exercising jurisdiction in a particular case if it has jurisdiction in any case of that kind,"1 and prohibition after conviction under an alleged unlawful ordinance should be brought after sentence and not before."6 It should not issue unless it is the only plain, speedy, and adequate remedy of the party making application therefor,"7 is necessary to attain the ends of right and justice,"8 and prevent injury or damages for which the party has no adequate or complete remedy in the usual course of law "1 by mandamus, habeas corpus,"9 injunction,"10 ceritorari, or writ of error,"11 appeal,"11 or

sioner from hearing habeas corpus matter for custody of children. In re Potter \[Wis.\]

107 SVW 446. $ 4962, Rev. St. 1887. Gunder-

112 NPV 1087. To prevent prosecution of

80. Avalmable under $ 922, Code of

01. suit in jurisdiction of another court. State

v. Riley, 127 Mo. App. 469, 105 SWW 696.

70. State v. Hinkle \[Vash.\] $1 P 640. Must

01. To prevent payment into court of

appear inferior court is about to exceed

jurisdiction. U. S. v. Barnard, 29 App. D. C.

431.

001. Court of Com'rs of Washington County

v. State \[Ala.\] 44 S 465.

72. Wiii not issue to prevent commissioner

of agriculture, a ministerial officer, from sum-

moning and examining witnesses under oath

to secure information in aid of legislation.

In re Fenton, 103 NYS 321. To prevent

recution of court house and jail at county seat

87. Gunder whose proceeding would com-

by court county commissioners. Court of

Comrs of Washington County V. State \[Ala.\] 44 S 465.

74 S 465. To prevent exercise of judgment

and discretion by village authorities to

variant street railway franchise, People v.

Bauer, 54 Misc. 28, 103 NYS 1081.

75. Court Com'rs of Washington County

v. State \[Ala.\] 44 S 465.

74. Will lie to prevent pending enforcement of void ordinance and repeated

rets and prosecutions rendering property

and business valueless. Crittenden v. Boone-

ville \[Miss.\] 45 S 722. Can only operate on

pending suit. Darnell v. Vandine \[V. Va.\] 60 SE 936. Unavailable to prevent anti-

gated action on mandamus for granting

pcal within authority of lower court. Gleason v. Wisdom \[La.\] 45 S 282.

75. Crittenden v. Booneville \[Miss.\] 45 S

01. Denied where proceedings complete ex-

cept sentence. State v. Abrams, 119 La. 81,

44 S 807.

76. Denied to prevent carrying into

execution threats of further prosecution. Darnell v. Vandine \[W. Va.\] 60 SE 936.

77. Unavailable where person is accused

of selling liquor without a license within one

mile of municipality. Darnell v. Vandine

\[V. Va.\] 60 SE 936. Unavailable, since

state may under some circumstances maintain action to prevent issunate certificate

of purchase state land. Woodworth v. Mar-

in County Super. Ct. \[Cal.\] 94 P 233.

78. State v. Abrams, 119 La. 81, 44 S 807.

01. Granted to prevent prosecution under

milesed void ordinance where appeal would
10 Cur. Law. PROHIBITION, WRIT OF SS 2. 1379 any other substantial remedy.\*\* However, in some states, the writ will be granted when the court is without jurisdiction, regardless of the existence of other remedies.\*\* The writ of prohibition sometimes issues to prevent conflicts with\*\* and encroachments on the jurisdiction of other tribunals,\*\* the incurring of useless costs,\*\* and in exceptional instances to prevent a court from proceeding with a criminal or civil cause of action arising under an unconstitutional statute or a void city ordinance.**\[**SS 2**. _Practice and procedure._**\[**58** & C. L. 1471.--The applicant for the writ must show some interest which will be affected by the act sought to be prohibited.\*\* His petition must clearly and affirmatively show that the inferior tribunal is about to proceed in a matter over which it has not jurisdiction.**\[**92**\]** While some states hold that no application for a writ of prohibition can be entertained until after a plea to the jurisdiction of the lower court has been urged and overruled,**\[**94**\]** in others the matter is discretionary with the supervising court.**\[**95**\]** On application for a writ of prohibition--

of venue, notwithstanding delay and ex-

pense. State v. Mason County Super. Ct.

In leaving value of tract sought to be con-

\[Vwash.\] $1 P 629. To correct errors in grant-

defined to jury, and reserved to itself after

ing change of venue. State v. Riley, 203 Mo.

determination of jury question of necessity

176, 101 SW 567. Where change of venue is

of tract to be condemned. Beaulieu Vine-

granted on alleged imperfect application

yard v. Napa County Super, Ct. \[CaL. App.\]

under statute. Id. To prevent proceeding

91 P 1015.

to trial after alleged erroneous refusal to

86, U. S. v. Barnard, 29 App. D. C. 431.

dismis. State v. King County Super. Ct.

87. Enforcement judgment for costs un-

\[Vwash.\] $4 P 472. To control action of

authorized by statute prohibited, as when

court by vacating or modifying judgment.

Welborn v. Edwards, 31 Ky. L. R. 270, 102

cause on any other ground. Bice v. Booths-

SWV 235. To set aside or reverse action state

ville 21, Co. \[V. Va.\] $5 SE 601. Under

board of exammers in disallowing claim

art. 94, Const., even though the applicant in

presented against state under $ 18, art. 4, the end may have right to appeal. Ferridy v.

Constitution, and Sess. Laws, 1905, p. 366.

Middlesex Banking Co., 118 La. 770, 43 S 403.

Bragaw v, Gooding \[Idaho\] $4 P 438. To

Where writ of habes corpus is attempted

arrest proceedings by trial court on indict-

to be used out before judge of another

ment found by grand jury irregularly drawn,

county than one committing prisoner. Ex

summoced, and impanied. Zinn v. Barnes

parte State \[Ala.\] $4 490.

County Dist. Ct. \[N. D.\] 114 NW 475. To

88, Tc prevent clash of jurisdiction, court

restrain superior court from proceeding with

may take matter and pass upon question

trial on indictment alleged to have been

involved, particularly if it does not abmu-

found without evidence to show petitioner

faulty appear that adequate remedy by ap-

guilty of public offense. Brobeck v. Califor-

paal may be had. Ferriday v. Middlesex

nia Super, Ct. \[CaL.\] $2 P 646. Where indict-

Banking Co., 118 La. 770, 43 S 403.

ment states or attempts to state offense of

88. To prevent interference by one court

which court has jurisdiction. Kitts v. Ne-

vada County Super. Ct., 5 Cal. App. 462, 90

another, State v, Reynolds \[Mo.\] 107 SWV

P 971. To review action of court in deny-

487.

ing right to trial by jury in condemnation

proceedings. Beaulieu Vineyard v. Napa

Coauty Super. Ct. \[CaL.\]. $1 P 1015,

91, State v. Shannon \[Mo. App.\] 108 SWV

Where purpose was to question whether

facts justified condemnation of land. Rec-

92. Railroad corporation, not taxpayer or

lamation Dist. No. 551 V. Sacramento County

resident of village, owning no property or

Super. Ct., 151 Cal. 263, 90 P 546. To

vested rights therein, having no franchise

correct error in refusing permission to inter-

or application thereof over proposed route

vene and defend in foreclosure proceeding.

of rival corporation, is not entitled to writ

Hindman v. Colvin, 46 Wwash. 317, 85 P 84.

To question sufficiency of pleedings. State

Frahey, 127 Mo. App. 469, 105 SWV 696.

Bauer, 54 Misc. 28, 103 XYES tion, the verity of the recitals of finding and the judgment of trial court will be presumed." While the procedure by demurrer to the petition is unusual and irregular in prohibition, yet where the parties acquiesce and no exceptions are presented the case will be considered as one arising on motion to discharge a rule in prohibition." In New York statutes regulate the petition for the writ," the title," and the mode of questioning the sufficiency of the papers on which the writ is granted,1 and in Idaho the title of the writ is governed by statute.3

PROMETERS, see latest topical index.

- 1. Definition and Nature, 1250, Realty or Personalty, 1280. Formulae, Informa- 10 Cur. Law. PROPERTITY SS 2. **1281**

selves parties may treat as personality things which would otherwise be considered realty.${}^{13}$

\_Formulae, information, processes, literary, and like mental productions.\_See * c. L. ${}^{1472}$--Though an inventor of an unpatented secret formula has a qualified right in it to the extent that he may maintain the secrecy and prevent its disclosure or use by persons obtaining knowledge of it through fraud or breach of contract,${}^{14}$ the formula is not property within the meaning of a provision prohibiting corporations from issuing stock except for labor or "property actually received."${}^{15}$ An author has, at common law, a right of property in his manuscript, and before publication he is entitled to its exclusive use.${}^{16}$ This rule applies though the contents are not wholly the product of his own brain,${}^{17}$ but the right to the exclusive use or multiplication of copies ceases with publication.${}^{18}$ Independent of letters patent, an inventor has an exclusive common-law property in his invention until by publication it becomes the property of the general public.${}^{19}$

SS 2. \_Creation, possession, and ownership.\_See * c. L. ${}^{1472}$--Subject to exceptions in the interest of justice, the title to tangible personality is governed by the law of its situs.${}^{20}$ The word "owner" has a wide application, but with respect to land it primarily means one who is seized of a freehold therein and who owes no service to another which limits his dominion.${}^{21}$ Ownership of property may be shown by proof of possession and control${}^{22}$ as well as by proof of signs displayed thereon.${}^{22}$ Where the ownership of personality is undisputed, slight evidence will suffice to establish it.${}^{24}$

. **13.** Verbal chattel mortgage on growing crops. Odom v. Clark \[N. C.\] 60 SE 512. Hays "now cut or that shall be cut" becomes personality in hands of purchaser. Allen v. Bryant, 4 Cal. App. 371, 88 F 294. Slag not merely in transit, should be determined by law of New Jersey as between solid as personality without actual severance, fastens. Schmidt v. Perkins LN. Err. & App.J 67 A 71. **21.** Mere tenant held not "owner" entitled under statute to object to granting of liquor license. American Woolen Co. v. North Smithheld Town Council \[R. I.\] 69 A 293. **22.** North American Restaurant & Oyster House , McElligott, 129 Ill. App. 488. If other evidence is introduced to control it, whole evidence is considered together. United Shoe Mach. Co. v. Bresnahan Shoe Mach. Co. \[Mass.\] 83 NE 412. Ownership of personality may be established by acts of do- \[Tex. Viv. App.\] 107 SW 919. **18.** Vernon Abstract Co. v. Waggoner Title Co. \[Tex. Viv. App.\] 107 SW 919. Furnishing or offering to furnish abstracts to general public held publication depriving owner of exclusive right to multiply copies, though sale was to persons procuring abstracts for sole and special purpose of examining_title to specific property. Id. The common-law right which an author or owner of a literary work has to prevent its publication can exist only so long as the work is kept private (State v. State Journal Co. \[Neb.\] 110 NVP 763), if it is published without a compliance with the copyright act, the right is abandoned (Id.). Where supreme court reports had already been made public and had not been copyrighted, state had no cause of action against, one who contracted with it to manufacture certain volumes thereof for manufacturing and selling such volumes on his own account. Id. 10 Curr. L -- 81.

Possession follows title to reality in the absence of any other possession adverse to it,28 and the burden is on him who alleges the unlawful possession of land.29

SS 3. \_Estates in personality.27--\_The rule in Shelley's case applies seemingly to personality.28

\_Life estates.--\_Life estates may be created in personal property as well as in real estate,29 but perishable personality bequeathed for life vests absolutely.20

\_Reversions.--\_A reversion is beyond the control of the life tenant and not subject to inheritance tax on his death.21

\_Vested and contingent interests and remainders.--\_The principles of distinction between vested and contingent remainders apply to personality as well as to reality.31 When the time of division or payment is of the substance of the gift, it is contingent,33 but it is vested when such time is mentioned only as a qualifying clause of payment or division.34 A direction for future payment to or division among a class vests title in those who answer the description at the time of distribution,35 but where interest is given pending enjoyment of the principal in possession, the principal vests in right immediately.36 A legacy is vested rather than contingent when the intention is doubtful.37 If land is devised with direction that in case of its sale by the device a portion of the proceeds shall go to another, death of the devisee without sale ex 10 Cur. Law. PROPERTITY SS 3.1833

tinguishes the interest of the other person.\[38\] A contingent gift may be reached by creditors.\[39\] Whether one is entitled to only a portion of a remainder under a will must necessarily depend upon its terms.\[40\]

\_Interests created in individual cases.\[41\]--Where the income of personality is bequeathed without remainder or contingency, it is a gift of the property itself \[42\] unless a contrary intent is shown.\[43\] Subsequent clauses will not cut down a gift given in clear terms unless an intention to that effect is shown with reasonable certainty.\[44\]

_Mutual rights of present and future tenants._--A life tenant occupies the position of a quasi-trustee.\[45\] He is entitled to the interest on money and choses in action,\[46\] but the principal sum coming into his hands must be kept intact for the remainderman.\[47\] His personal representative is chargeable with the proceeds of sales of the property \[48\] and must turn over to the remainderman all personalty on hand.\[49\] In the case of money or its equivalent or property which must be converted into money, a life tenant under a will is entitled only to income therefrom, and not to possession unless a contrary intent is shown by the will,\[40\] and where one bequeaths to the maker of notes interest thereon for life, the maker is not entitled to possession and control of the notes themselves.\[51\] Where a trustee and life beneficiary commingle trust and individual funds, the burden is on them to show that expenditures for securities or improvements were made with money of the life beneficiary, and not with that of the estate.\[42\] The possession of a life tenant is subject to the right

38. DeviSee not bound to sell. In re Walk: that legatees be part of household at testa-trix's death. Lowe v. Whitifage, 105 Md. 89, Will construed to give a legacy on 183, 65 A 926. Absolute gift to wife held happening of three contingencies, and to not cut down by provision for disposition of "vest" legate's interest on death of testator remainder, if any, after her death. Farney so that it passed to his trustee in bank. v. Welch 52 Miszo. 245, 103 NYS 38. Ex-ruptyty. Watkins v. Bigelow, 93 Minn. 361,pression of desire that fund should be used as scholarship fund held not to qualify ab-solute gift. Farmers Etona & Trust Co. v. only one-half of remainder of a fund be-biaward to widow for life, other half laps-gift not sat down by subsequent doubtful clause. In re Pearce's Estate, 53 Miszo. 215, N. Y. 70, 77 NE 874.

01. All personality to wife, but provision that whatever should remain at her death come of personality for life, and right to which go over, gave wife only the use for life with beneficial power of disposition and legatees. In re Trelease, 115 App. Div. 654, remainder over. Tuthill V. Davis, 121 App. Div. 290, 105 NYS 672. One-eighth of estate in trust for use of daughter passed to daughter-ter's estate and not under residuary bequest. Twilley v. Toadvine \[Id.\] 66 A 1030. Direc. Evidence held to show that payments to life beneficiaries were no part of corpus, rellevating them of liability to account to remind-death to their surviving children at age of 21, gave survivor of the two sons all the interest for life. In re Beomer's Will \[Vis.\] 113 NW 668. Will giving sisters 510 each each held not to give survivor $200. Driggs v. V. Plunket \[KY.\] 105 SWP 976.

01. Bequest to churches of moiety of divl-dends from miling stock vested entire as-life to that moiety of stock of which divl-dends were bequeathed. Wilkinson v. Roser's Extr, 31 Ky. L. R. 1282, 104 SWP 1019. A bequest of the income from a trust fund without limit as to time or gift over car-res the corpus itself. Where only condition was against widow's rearmarage. Busby v. Busby \[Iowa\] 114 NWP 559.

01. Interest on $2,000 for life; on death, principal to go to heylf. In re Dull's Estate, 217 Pa. 358, 66 A 567.

01. Legacies held not subject to condition that is not a good choice of remaindermen to have the property in a state of security to be forthcoming upon the termination of the life estate.\[53\] Life tenants of animate and inanimate person-alty are not accountable to the remaindermen for the death or unavoidable loss of the former or the ordinary wear of the latter.\[54\]

\_Capital and income.--\_Where one is entitled to income only after the amount of the fund has been ascertained, his estate is not entitled thereto where he dies before that time.\[55\] Where articles of partnership provide for a continuation of the firm for a certain period after death of a member, a deceased member's share of profits for such period will be treated as income.\[56\] Stock dividends representing profits, whether issued in cash, stock, or other property, belong to the life tenant of the stock,\[57\] but so-called dividends representing merely corporate capital go to the remaindermen.\[58\] Since dividends presumptively represent profits, the burden is on him who claims that they are capital.\[59\] Dividends go to the life tenants only so far as earned after the latter became such.\[60\] The privilege of a stockholder to subscribe for additional stock belongs to the remaindermen.\[61\] As between life tenants and amount received from sale of certain securli-

was entitled to annual interest on a note ties where other securities held to belong to estate were purchased therewith. Id.

53. Where execurik was deeded to turn over certificates to a lestate "to be held by him under the will," execurik was authorized to index the tremon memorada that they should be held under the terms of the will," 475.

01. If the remaining stock is turned over to a life tenant, he should be required to execute a bond for forthcoming of the estate to remaindermen, or a trustee should be appointed to hold the property in accordance with the terms of the document creating the estate. Wilkinson v. Rosser's

Exr', 31 Ky. L. R. 1262, 104 SWV 1019. That husband's will exonerated wife from giving bond as execurik held insufficient to show testator's intention that no security should be exacted to secure her acts as trustee for remaindermen. Scott v. Scott \[Iowa\] 114 NWV 881. Where money of its equivalent is bequeathed for life without direction as to security in favor of the remaindermen, the exaction of security is discretionary with the court and depends on a showing of liability of waste. Id. Heid proper to require security where life tenant who was not kindly disposed toward remaindermen spent most of her time in another state and had made certain loans without personal investigation as to security. Id. Where execurik, also life tenant, failed to promptly account, and endangered estate by entrusting title to an unntif agent, court properly required her to secure remainderman though as execurik she was not required to give bond and though will gave her use of principal so far as in good faith she should deem it necessary for her support. Reed v. Reed \[Conn.\] 68 A 855.

55. Negroes lost as result of Civil War, mules dead, and machinery worn out. Wilson v. Gordon \[S.C.\] 61 SE 85.

01. With creating trust construed to give children yearly proportional parts of fund to be ascertained by deduction of expenses, and widow's share from income, so that estate of child dying was not entitled to share of income acerning after last settlement and before death. Green v. Bissell, 79 Conn., 547, came 65 A 1056. The representatives of one who 10 Cur. Law. PUBLIC CONTRacts. 1285

remaindermen, assets distributed among stockholders by corporations in process of liquidation after dissolution are to be regarded as capital, and not income."

_Rights as against third persons._

SS 4. \_Transfer, loss, and abandonment.\_See S C. L. 1471, 1478_Transfer is usually by sale,"gift," inheritance;" or will." In the absence of statute or estoppel," one can not acquire title to personally by purchase in good faith from one who has no title."

A finder of property may hold it as against all persons except the owner." The status of title to land is not affected by the distruction of the record thereof."

Abandonment is the voluntary forsaking or giving up of property without concern as to who may subsequently take possession." It consists of nonuser and intention." Mining and similar rights or privileges may be lost by abandonment," but equity will not divest title to land for mere laches short of the period of limitations, the same being unaccompanied by supervening equities." One must act with reasonable diligence in the assertion of his rights to property not in his possession." Hence statutes authorizing the distribution of the estates of absentees after the lapse of many years are generally upheld."

PROSCUTING AttORERS; PROSTITION; PROEXES; PUBLICATION; PUBLIC BuildINGS and PLACES, see latest topical index.

PUBLIC CONTRacts.

1. Power of Government and Authority of

119 Omera to Contract, 1286.

B. Performance and Discharge, 1292.

8. How Limited, 1288.

1. How Closed, 1289.

1. E. Essential Provisions In, and Conditions

B. By Bidder, 1294.

Pertaining to, Public Contracts,

1289. Bonds, 1291.

Quantum Meruit, 1294.

13. Interpretation and Effect of Public

D. On the Contractor's Bond, 1295.

Contracts; Performance and Dis-

E. Under Llen Laws, 1296.

62. Curtis V. Osborne, 79 Conn. 555, 65 A

of water held to show abandonment thereof

968.

001. See Sales, S C. L. 1751; Judicial Sales,

Co. v. Fishman, 127 M. App. 207, 104 SWP

10 C. L. 607; Executions, 9 C. L. 1328.

1156. Statement by one, whom plaintiff's

0001. See Gifts, 9 C. L. 1534.

0001. See Descent and Distribution, 9 C. L.

0001. See Willis, 8 C. L. 2305.

0001. By standing by in silence and allowing

property to be sold to an innocent purchase,

Shoo Mach. Co. v. Bresnahan

one estops himself from afterwards asserted.

ing ownership. Where lessor knew that

property was to be sold by lesse as Junk,

he was required to exercise his rights of

ownership within a reasonable time, such

606.

time being for the jury. United Since Mach. Co. v. Bresnahan Shoe Mach. Co. \[Mass.\] 83

83 C412. That plaintiffs who had purchased

cotton cloth left it in the possession of the

selling agents in accordance with custom

did not hear recovery from agents innocent

showing intention of owner not to rego-

pledge. Schwab v. Oatman, 56 Mice 335,

106 NYES 741. S-e, also, Entoppel, 9 C. L.

1217.

0001. Purchase from mere ballee. Heisley v.

Economy Tool Mfg. Co., 33 Pa. Super. Ct.

218.

001. Notwithstanding demand for it by po-

lice officer. Ryan v. Chicago, 124 Till. App.

185.

001. Dixon v. Harris \[KY.\] 105 SWP 451.

001. Wilmore Coal Co. v. Brown, 147 F 93L

001. Custom of mineral water company of pur-

ehasing its own old bottles from bottle deal-

ers who had obtained them from purchasers 889. See Absentes, 9 C. L. 9.

This topic includes all questions relating to the making, validity, and performance of public contracts generally, excluding some matters peculiar to contracts of particular public corporations,\[77\] and excluding also matters common to private contracts \[78\] and those peculiar to contracts for public improvements.\[79\]

SS 1. _Power of government and authority of its officers to contract.--_ See * C. L. 1473--\_Municipal corporations can make such contracts as they are expressly authorized to enter into,\[80\] such contracts as are essential to the declared objects and purposes of the corporation, not simply convenient but indispensable,\[81\] and such as are implied as incident to powers granted,\[82\] and no others.\[83\] A distinction is made as to the validity of corporate contracts between those that are ultra vires, as being beyond scope of corporate powers,\[84\] and those within corporate powers, though the power is irregularly exercised.\[85\] Both parties having acted upon a contract for a long time, the city may be estopped from asserting that the contract was ultra vires and void.\[86\] If the method of entering into the contract is prescribed by charter or statute, such method must be strictly complied with,\[87\] and the doctrine of implied contract does not ordinarily apply,\[88\] persons dealing with municipal corporations being bound to take notice of the limitations of their powers;\[89\] but acceptance of benefits has been

77. See Coutines, * C. L, * S27; Municipal--\_existing law, it was authorized to make, Corporations, * C. L, * S18; States, * C. L. 1970; United States, * C. L. 12207. * S28. Contracts, * C. L. 1654. * S30. See Public Works and Improvements, * S40. L. 1506. * S41. Robinson-Humphrey Co. v. Wilcox County, * S53. * S64. * S65. * S66. * S67. * S68. * S69. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S60. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S61. * S61. * S62. * S63. * S64. * S65. * S66. * S66. * S67. * S68. * S69. * S60. * S69. * S61. * S60. * S61. * 10 Cur. Law. PUBLIC CONTRracts $ 1. 1287

frequently held to raise an obligation to pay. \[noitem\] Compliance with a contract in excess of corporate powers does not, by estoppel and relation back, supply the power originally wanting. \[noitem\] Where no method is prescribed, contracts which fall within the ordinary powers of a city may be entered into without resolution or ordinance, and, in the absence of any statute requiring it, without writing. \[noitem\] Public officers \[noitem\] and boards \[noitem\] have only such power to contract on behalf of the public as is conferred upon them by law, and one contracting with them is bound to know the scope of their authority. \[noitem\] The public powers devolved by law or public charter upon the governing body of a municipality cannot be delegated to others. \[noitem\] As to matters within the business functions of municipalities, officers may bind the municipality beyond their terms of office \[noitem\] provided it does not exceed the time limitation fixed by statute.

power to make the contract in the first instance, but not otherwise,90 as an ultra vires act is void and cannot be ratified,1 though the city may be estopped from asserting the contract to be ultra vires where both parties have acquiesced in and acted upon the contract.2 Where an ordinance is necessary to the validity of the contract, it is necessary for a valid ratification.8 A city may contract in the exercise of a merely private right not involving a governmental function, and in such case its liability is determinable as that of any citizen by the contract effected.4

Footnote 8: The author is grateful to the anonymous referee for the support of the work of the University 10 Car. Law. PUBLIC CONTRracts $ 4. 1289

tion may be delegated to a committee of the city council.\[14\] The material to be used is sometimes required to be specified.\[15\] Under statutes requiring advertisements for bids, city need not readvertise for bids for completing the work, on abandonment of the contract by the contractor.\[16\]

SS 3. _How closed._\[See e C. L. 147\]--Where bids are called for, they must be responsive to the advertisement.\[17\] A bid may be withdrawn by the bidder prior to his notification of acceptance, although a resolution by the official board has been only adopted to notify.\[18\] Although under a rule requiring contracts to be let to the lowest responsible bidder the contract need not be let to the lowest bidder unless he is responsible \[19\] and furnishes proof thereof,\[20\] the lowest bidder if responsible must be awarded the contract.\[21\] but where the determining body is allowed to use its discretion in awarding the contract, they do not have to award it to the lowest bidder,\[22\] and, where their action is free from fraud, the exercise of their discretion cannot be controlled,\[23\] nor is the city liable in damages for failure to award the contract to the highest bidder, though the rejection was wrongful.\[24\] Despite a constitutional provision for an award to the highest and best bidder, with right of rejection reserved, an ordinance precluding consideration of the bid of a certain company having the only existing franchise is valid.\[25\] Where a matter is for the determination of a public board, a court will not interfere in the absence of a showing of fraud or abuse of discretion.\[26\]

SS 4. _Essential provisions in, and conditions pertaining to, public contracts._

14. Cady v. San Bernardino \[Cal.\] 94 P 142; Saunders v. Iowa City, 134 Iowa, 132, 111 NW 529. That a city council in its resolution and advertisement for bids required the use of a certain patented pavement did not restrict competition. Saunders v. Iowa City, 134 Iowa, 132, 111 NW 529. 22, Case v. Trenton \[N. J. Law\] 68 A 67. 15. Curtice v. Schmidt, 202 Mo. 703, 101 SW 61. City of Millbank v. Western Surety Co. \[S. D.\] 111 NW 561. 17. Where bids were invited for the paying of a street as one work bids for less than the whole work were not in response to the invitation and were properly disregarded. Stiannon v. Hanley, 151 Cal. 379, 80 P 945. 18. Where, on receipt of bids, commissioners in joint session with a town board adopted a resolution to notify a bidder that his bid for the construction of a bridge had been accepted, but prior to taking or steps to notify, bidder telegraphed commission not to consider his bid, and in a letter claimed that he made an error in bid, and withdrew bid, there was no acceptance binding bidder who was entitled to return of deposit. Northeastern Const. Co. v. North Hemposted, 105 NYS 581. 19. Saunders v. Iowa City, 134 Iowa, 132, 111 NW 529; Curtice v. Schmidt, 202 Mo. 703, 101 SW 61; City of Millbank v. Western Surety Co. \[S. D.\] 111 NW 561. 20. Under a charter provision requiring binders to a satisfactorily prove their ability to perform the work, the council may refuse to award a paving contract to one who fail.\[23\] Let to make such proof, though it was the lowest bidder. Case v. Trenton \[N. J. Law\] 68 A 57. 21. Under Act May 23, 1874 (P. L. 230), providing that all work and materials required by the city shall be awarded lowest bidder.\[24\]

01. Cady v. San Bernardino \[Cal.\] 94 P 142; Saunders v. Iowa City, 134 Iowa, 132, 141 NW 529. That a city council in its resolution and advertisement for bids required the use of a certain patented pavement did not restrict competition. Saunders v. Iowa City, 134 Iowa, 132, 111 NW 529. 22. Case v. Trenton \[N. J. Law\] 68 A 67. 23. A paving contract awarded to one not the lowest bidder will not be disturbed unless the municipal authorities have abused their discretion. Case v. Trenton \[N. J. Law\] 68 A 67. 24. Where the city reserved the right to reject bids, but wrongfully rejected the bid of one who was the lowest responsible bidder, qualified to do the work, yet the latter cannot maintain an action to recover from the city damages for loss of profits, due to the failure to award the contract to him. Molloy v. New Rochelle, 108 NYS 120. 25. To secure competition, a city passed an ordinance that iselling a franchise to string and maintain wires along the streets for distributing and selling electricity any bid made by a certain lightning company, having the only existing franchise, should not be considered, was valid, notwithstanding.\[25\] Working than, before awarding franchise a municipality shall, after advertisement, publicly receive bids therefor and award it to the highest and best bidder, reserving the right to reject any and all bids. Stites v. Norton, 31 Ky. L. R. 263, 101 SW 1189. 26. Whether or not a machine is one that has been in successful operation for two years is a matter for determination by the board of public service along with other facts connected with the bidding, and in the absence of a showing of fraud or abuse of discretion on the part of the board a court will not interfere. Columbus v. Board of Public Service, 5 Ohio N. P. (
    See & C. L. 1480.--The contract must be authorized by a valid law or ordinance "7" and must conform thereto.28 All statutory conditions must be complied with 20 as to the mode of exercising the power to contract,29 the'making of an estimate before,21 as to the fund out of which the cost of improvements is to be paid,23 or until an assessment has been made, confirmed, and delivered to proper official.23 It is presumed that payment in the manner and on the terms authorized by law is contemplated.24 It must, if so required, be in writing,23 signed in the name of the city by the proper official.20 Contracts must conform to the principles of public policy, hence a public official cannot contract with himself,27 or with a partnership of which he is a member,28 or of a corporation of which he is an officer.23 Estoppel does not arise to ren-

01. A contract awarded by resolution in pursuance of a regularly adopted ordinance \[Ith\] Feb. 25, 1907, and confirmed July 2 folloving. People v. Buffalo, 57 Misc. 10, 107 NYS 689.

Kolb v. Tamaqna Borough, 218 Fa. 126, 67 A. 44. Where a contract of a city for re-pairing a street was invalid because not contractor such interest as it may collect from property holders not void where the of the contract price under authority of a motion adopted by the council has no effect by the property holders. City or Chicago v. on the contract's validity \[Mulligan v. McGovern, 226 Ill. 403, 80 NNE 855.

Lexington, 126 Mo. App. 715, 105 SW 1104), and a written demand by the mayor, at the council's instigation, upon the contractor, to furnish the repairing material, has no binding effect upon the city (Id.). Burden of showing absence of valid ordinance authorizing on taxpayer using to set aside municipal contract. Kolb v. Tamaqna Borough, 218 Pa. 126, 67 R 44.

28. State v. Holt \[TWs.\] 111 NW 116. A county court house must be constructed and furnished by contract, according to the proceedings expressly prescribed by Burns' Ann. St. 1901, **5589**-5592, 5594q1. Com's of Huntington County v. Pashong \[Ind. App.\] 83 NE 838.

01. Where the specifications for paving contracts in effect made an agreement among bidders on the price of material, contravening Acts 1905, p. 281, c, 129, $ 95, designed to prevent collusion and combination a proposed contract conforming thereto was un-lawful. Selbert v. Indianapolis \[Ind. App.\] 81 NE 99.

01. People v. Buffalo, 57 Misc. 10, 107 NYS 689.

01. Failure of board of public works to make estimate of expense of public works before borrowing money to pay for same. Vossen v. St. Clair, 148 Mich. 686, 14 Det. Leg. N. 331, 112 NWV 746.

01. Corey v. Pt. Dodge, 133 Iowa, 666, 111 NIV 6. Where city contracts to make certain payments out of interest collections, it is liable the foretor to the extent of the collections made. City of Chicago v. McGovern, 226 Ill. 403, 80 NE 895.

01. Under Buffalo City Charter, $ 408, a contract involving over $25,000, for dredging, which was drawn, signed and acknowledgged by the contractor on Sept. 27, 1906, on which day the contractor's bond was executed, was approved by corporation counsel on Sept. 28, by the comptroller on the 29, by the burca of engineering on Oct. 9, 1906, immediately following which the work was prosecuted, though the contract was not signed by commissioner of public works until July 6, 1907, was premature where the assessment roll was not filed un-lawful.

01. A contract by a city with an alderman, ratified by a city council, is within Const.

01. Corey v. Pt. Dodge, 133 Iowa, 666, 111 NIV 6.

01. Under Buffalo City Charter, $ 408, a contract involving over $25,000, for dredging, which was drawn, signed and acknowledgged by the contractor on Sept. 27, 1906, on which day the contractor's bond was executed, was approved by corporation counsel on Sept. 28, by the comptroller on the 29, by the burca of engineering on Oct. 9, 1906, immediately following which the work was prosecuted, though the contract was not signed by commissioner of public works until July 6, 1907, was premature where the assessment roll was not filed un-lawful.

01. A contract made by a board of public services is properly executed if signed by the president and clerk only, if such authentication is in accordance with the rules adopted by the board for the execution of contracts, Burke v. Cleveland, 6 Ohio N. P. (N. S.) 225.

01. A contract by a city with an alderman, ratified by a city council, is within Const.

01. A contract between a municipality and a partnership in which one of the members of its council is a partner is void. McCarthy, P. Bloomington, 127 Ill. App. 215. Act March 21, 1860, $ 68 (P. L. 400), 10 Cur. Law. PUBLIC CONTRacts $ 5A. 1291

der a city liable for benefits of a contract of sale by a member of the council to the city." That a contractor was a town official prior to and subsequent to contracting with the town, but not at the time of contracting, does not invalidate the contract," and a contract entered into by an outgoing board of officials is not necessarily contrary to good morals."23 Agreements to suppress competition are illegal,"48 but bona fide agreements between partnerships for bidding 44 or bona fide arrangements between prospective bidders 46 are valid. In the absence of a contract, express or implied, there can be no recovery for extra work."49 A provision in the contract against assignment is valid, and the assignee cannot recover on the contract."47 Provisions for indemnifying the city against the improper conduct or negligence of the contractor and the retention of funds due on the contract until the settlement of claims are valid."5 The government is not liable for delays caused by the failure of congress to make the necessary appropriations to prosecute the work."60

_Bonds_ See 8 C. L. 1482 with sureties 80 executed before the officer or board having charge of the subject-matter of the contract 81 and in an amount sufficient to secure its faithful execution 82 are usually required. The bond ordinarily required on contracts for public improvements to protect against claims of materialmen and subcontractors is elsewhere treated."82a In some jurisdictions, security for payment by the contractor for labor performed and materials furnished is required."83 A stipulation in a statutory bond executed by a bridge contractor, providing for reconstruction on removal from any cause except fire, embraces destruction by a flood."84

\_S 5. Interpretation and effect of public contracts; performance and discharge. A. Construction and interpretation.\_See 8 C. L. 1488.--The contract may be deduced from a series of letters."84 A provision in a paving contract that the contractor shall keep up repairs for a specified time is a mere guaranty of good work, and does not amount the use of a municipality. Commonwealth improvement, and the loanor employed an engineer to see that the work was done so as to sustain the validity of the tax for printing, evidence was sufficient to show that company with which it contracted was mergedly a device in an attempt to evade Key.

S4. 1903, $ 2768, making void contracts between a city and a corporation where a member of the council is an officer or employee of such corporation. Jacques v. Louis-ville \[KY.\] 106 SW 308.

40. 209 V. Davidson, 133 Iowa, 688, 111 NWV 25.

01. A contract for constructing a sidewalk was not invalid because the contractor was a town trustee until resigning just before the bidding, though he was afterwards reappointed, there being no evidence of bad faith in resigning. Harmonion v. Preasuburg \[KY.\] 107 SW 327.

01. Contract made by outgoing board of county commissioners for county printing was not contra bons mores, within Cly. Code, $ 2240. Pickett Pub. Co. v. Carbon County Com'rs \[Mont.\] 92 P 524.

43, 44. Virginia Bridge & Iron Co. v. Crafts, 2 Ga. App. 126, $ 3E 322.

45. An arrangement whereby a bid for the entire contract is put in, and the parties to the agreement are each to do a part of the work, the object not being to suppress competition, is valid. Virginia Bridge & Iron Co. v. Crafts, 2 Ga. App. 126, $ 3E 322.

01. Beattle v. McMullen \[Conn.\] 67 A 488.

01. United States v. Axman, 162 F 816.

That a sewer contractor contracted with another, from whom he obtained a loan, to assign tax bills to be received for a public to an abrogation of a governmental function.\[56\] A contract for the construction of a sewer, to be paid for by assessments, and which expressly exempts the city from liability, is not within a penal statute requiring a provision for forfeiture on permitting laborers to exceed eight hours work per day.\[57\] An express provision by congress as to the construction and effect to be given to bonds executed to the United States is controlling in the interpretation of the bond.\[58\] A provision in a contract limiting a city as to time to test smoke consumers is of the essence of the contract, and binding.\[59\] Where in a contract for public improvement the resolution of intention and proceedings intermediate to final award are based on specifications providing that all loss or damage be sustained by the contractor, bonds issued pursuant thereto, and assessments, are void.\[60\]

(SS 5) \_B. Performance and discharge.\_See S C. L. 1452.-A release is presumed to be the final settlement of a contract unless otherwise stipulated.\[61\]$\\lambda$ stipulation in a contract making an engineer, inspector, or other person the arbiter of the sufficiency of performance is valid,\[62\] as is a provision referring to them for settlement of matters of dispute,\[63\] and his action thereunder is final in the absence of fraud or such gross mistakes as implies bad faith.\[64\] The power of such person is exhausted by a final award.\[65\] Where a particular mode of discharge of a contract by a municipality is provided by statute, such mode must be first pursued, and the corporation is liable only for a breach of duty to provide the fund prescribed.\[66\] Violating a statute fixing the hours of labor on municipal contracts does not work a forfeiture of compensation for work done after the completion of the contract.\[67\] A municipality may complete a contract which has not been finished in accordance with the agreement and recover the cost of completing the unfinished work.\[68\] To constitute a waiver of incompleteness in the performance of a contract, acceptance is essential.\[69\] Use of materials different from those specified does not discharge the contract, although used without the consent or waiver of the surety on the bond of the contractor.\[70\] There may be recovery for extra work ordered by an authorized person\[71\] when the contract so provides \[12\] and the claim is properly presented.\[7\] Compensation for extra work may be governed by the rate fixed for work specified.\[7\] A contract may be modified by a later agreement,\[7\] but the original contract remains in force, except in so far as expressly modified or annulled,\[7\] but damages for increased cost resulting from authorized alterations are not recoverable.\[17\] Where statutes provide for the award of municipal contracts to the lowest responsible bidder, a city may provide in a contract for payment for extra work without advertisement.\[7\]

SS 6. _Remedies and procedure. A. By taxpayer.\[8\]_ See _S C. L. 1484_--A taxpayer may maintain a bill to restrain public officials from paying out public moneys upon a void contract,\[7\] to recover moneys so paid,\[8\] to enjoin the performance of a contract,\[9\] and may maintain, in his own name, injunction against entering into any illegal contract which may result in the creation of a public burden.\[8\] Taxpayers are not estopped because they did not commence their action until the completion of the work.\[8\] That the highest of several bidders was a subsidiary company of the successful bidder is not ground for injunction at the instance of a taxpayer in the absence of fraud.\[8\] A taxpayer may sue for injunction only when the performance of the contract will result in damage to him.\[8\] Conditions precedent to the enforcement of a subscription contract by a city having been complied with, a taxpayer cannot have the subscription declared void \[8\] or enjoin the payment of the subscription.\[8\] The right of a taxpayer to intervene and restrain the discontinuance of an action by another taxpayer to restrain a city in carrying out a contract is not absolute.\[8\] Illegalities and irregularities in a contract may in some instances be cured by statute, so as to validate the contract.\[8\] A contract having finally been entered into, a taxpayer \[8\]

72. Capital City Brick & Pipe Co. v. Des Moines \[Iowa\] 113 Nw 835. The fact that imman, a payor may for the benefit of the municipality recover the consideration paid not grounds for recovery where the contract under which it is done does not include pay for same. Costa v. Cranford Tp. in Union County \[N. J. Err. & App.\] 68 A 160.

01. Capital City Brick & Pipe Co. v. Des Moines \[Iowa\] 113 Nw 835.

01. Compensation for extra work properly fixed at rate stated in bid and contract, independently worthless as a basis for compe-dependent of resolution adopted by town, and not accepted by bidder, fixing cost of extra work at such rate. Talbot v. Newcastle \[Ind.\] 81 NE 724.

75, 76, Sweetin v. Milville \[N. J. Law\] 66 A 923.

77. Where a contract for the construction of a city sewer provided that the engl-neer, with the written consent of the board, could make alterations in the work at any time before completion, and, if the alterations diminished the quantity of work to be done, they should not constitute a claim for damages or anticipated profits, and a change was made by the engineer with the consent of the board, whereby certain subdrains were dispensed with, damages for increased cost in constructing the remaining portion on account of the conditions resulting from the abandonment of the subdrains were not recoverable. City & County of Denver v. Hindry \[Colo.\] 90 P 1028,

01. Jonathan Clark & Sons Co. v. Pittsburg \[Pa.\] 66 A 154.

01. Crawker v. Milvaukee \[Twis.\] 113 NW 419.

01. Where a partnership has executed and performed a contract with a municipal-

193

10 Cur. Law. . PUBLIC CONTRacts $ 6A.

193

194

195

196

197

1988

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2099

2009

2099
cannot object that the city failed to require a deposit by the successful bidder, as required by the city charter." Where the making of a contract is discretionary with a board of aldermen, its execution will not be enjoined in the absence of an abuse of such discretion, of good faith, or a violation of some statute." The burden is on a taxpayer, suing to set aside a municipal contract as illegal, to show the absence of a valid authorizing ordinance."

(SS 6) \_B. By bidder.\_See * C. L. 1485-An action lies against a city for the improper refusal of an officer to execute a contract." Mandamus lies to compel a state official to execute a contract authorized by statute, there being no discretion reposed in such official," but it will not lie to compel a city council to complete the making of a contract." A deposit forfeited by the highest bidder for failure to execute a contract is not recoverable." A contract fraudulently obtained by a city may be re-scinded by the contract," likewise if the contract was made under mutual mistake." An action lies to enforce specific performance of a contract by a city to make a lease." One who acquired no right to have a contract awarded to him cannot recover damages from the city for refusing to execute a contract with him." The designation of a depository by the county commissioners is not a judicial but a ministerial function, to be exercised without discretion, except in the matter of bond, at the time the proposals are opened, by an immediate award to the highest bidder; and an aggrived bidder is without remedy by way of proceedings in error to the award which the commissioners have seen fit to make, or to their refusal to make an award."

(SS 6) \_C. On the contract proper or on a quantum merit.\_See * C. L. 1485-There may be a recovery either on the contract, on an allegation of performance * by a contract with a city, or on a quantum merit," if the contract has been substantially, although not completely performed, and the city has received and retained the benefits of performance." There can be no recovery on an unauthorized contract." In

validated by statute, and a bill by a tax-

compel the council to complete the execution of the contract. Putnam Foundry & tract will be dismissed, though filed prior

to the passage of the statute. Cranor v.

I.J 67 A 733.

Volusta County Com'rs \[Fla.\] 45 S 455.

90. The purpose of the requirement that

the bidder or his assignee could not recover a bidder awarded a contract should make a deposit. Phillips v. New York, 108 NYS

deposit to protect the city should no refuse

to enter into the contract is at an end when

1055.

10 Cur. Law. PUBLIC CONTRACTS $ 6D. 1295 some jurisdictions a city having received the benefit of performance of an invalid contract is liable on a quantum mernit.\[7\] On failure of a city to pay installments, a contract may abandon the contract and recover the value of work performed thereunder.\[8\] .A city cannot withdraw or change the contract after entering on performance and thereby affect the right of the contractor to recover.\[9\] Substantial compliance with a contract for construction of sewers entitles the contract to the contract price upon due notification to the city to receive, although the city refuses to formally accept.\[10\] Estoppel or waiver does not arise to prevent a city from refusing payment on a contract where the work is not completed according to contract and the engineer in charge makes false and fraudulent estimates, although approved by the council, if ignorant of its fraudulent character.\[11\] On abandonment of the contract by the contrarotor, the city may complete the work and recover the difference in cost from the sureties of the contractor \[12\] or bond deposited.\[18\] Upon a failure to reject a device within the limit prescribed by the contract, a city is liable for the contract price thereof.\[14\] Assumpsit will not lie against a county to recover the price of fixtures placed in a county building to which the county has not acquired title.\[15\] The compensation recoverable by a contract is determinable by the terms of the contract \[16\] or by a statute governing the amount of the compensation.\[17\] A city is liable only for the market price of articles sold and delivered.\[18\] Payment is recoverable for services performed in pursuance of a contract authorized by a statute declared valid, although subsequent to rendition of services the statute is declared unconstitutional and void.\[19\] ( 6) _D. On the contractor's bond._ See s C. L. 1488-Liability to materialmen and subcontractors on bonds given for their benefit is elsewhere treated.\[19\] On letting a contract not performed, the city as trustee for property owners taxed with the resulting loss and original contract price cannot sue on the bond.\[20\] In an action against a contractor and his sureties for breach of contract, it is necessary to allege being no authority of law for a county to enter into an executory contract for the sale of bonds, the issuance of which is unauthorized, an action will not lie against city for damages for breach of undertaking. Robinson-Humphrey Co. v. Viliox County, 129 Ga. 104, 58 SE 644. 7. A city availling itself of the benefit of a contract with a contract by accepting the work done under it after knowledge of the violation by the contractor of Laws 1897, p. 462, c. 415, 8, re-enacted by Laws 1906, p. 134, c. 506, cannot refuse to pay the contractor pursuant to the contract. People v. Zimmerman, 109 NYS 396. S. Peet v. East Grand Forks \[Minn.\] 112 NWV 1003. 0. Appleton Waterworks Co. v. Appleton \[VW18.\] 113 NWV 44. A contractor to whom a subcontractor has surrended control after abandoning the contract may perform and recover against the city any loss or damage sustained thereby for which it is liable. Capital City Brick and Pipe Co. v. Des Moines \[Iowa\] 113 NWV 835. 10. A sewer having been constructed in substantial compliance with the terms of the contract therefor the city on notification must receive it, and cannot refuse to pay intercept though arbitrarily refusing to formally accept. Whitworth v. Webb City, 204 Mo. 579, 103 SWV 86. 11. Peet v. East Grand Forks \[Minn.\] 112 NWV 1005. 12. City of Milbank v. Western Surety Co. \[S. D.\] 111 NWV 561. 13. MacFarland v. Barber Asphalt Paving Co., 29 App. D. C. 506. 14. Missouri Smoke Preventer Co. v. St. Louis, 205 Mo. 220, 103 SW 513. 15. Calhoun County v. Art Metal Const. Co. \[Ala.\] 44 S 876. 16. People v. Neff \[N. Y.\] 83 NNE 970. 10. Duty of subcontractor to protect himself by stipulation. Sand Filtration Corporation of America v. Cowardin, 29 App. D. C. 571. 17. A publication of a commissioner's report in columns and with leaders and two or more justifications is tabular work within the meaning of SS 4368, and in the absence of a special contract the publisher is entitled to the price and a half rate therein prescribed. Knorr v. Darke County, 4 Ohio N. P. (N. S.) 35. 18. One selling a trtprod to a city could recover only the market value, shown by what the city could have purchased it.for in the market, at the time plaintiff made the purchase, in order to deliver the tripod to the city. Burke v. New York, 108 NYS 650. 19. Thomas v. State, 76 Ohio St. 241, 81 NE 437. 10. See Public Works and Improvements, 10 C. L. 1307. 20. City of St. Louis v. G. H. Wright Cont. Co., 202 Mo. 451, 101 SWV 6.

1296 PUBLIC LANDS SS 1. 10 Cur. Law. that the contract relied on is one of binding force and effect,\[21\] also to allege all of the prerequisites to a valid and complete contract.\[22\]

(SS 6) \_E. Under lien laws.\_See * C. L. 1105

**PUBLIC LANDS.**

- 1. The Public Domain and Property
- 1. The Profile Domain and Property
- 1. Therella, 1296.
- 1. Lands Open for Settlement and Lands
- 1. The Profile Domain and Property
     10 Cur. Law. PUBLIC LANDS SS 3A. **1297**

sale.\[10\] So are those used as town site and for trade purposes,\[37\] or those already granted,\[38\] or under lease,\[39\] or occupied by a settler\[40\] under a valid homestead entry,\[41\] and where forfeiture proceedings are void, there can be no resale,\[43\] but void certificates and applications cannot have the effect to close it to location.\[43\]

SS 3. _Mode of locating and acquiring title. A${}_{\\infty}$Federal lands.\[ See 8 C. L. 1488\]\_

The land office may make such reasonable rules as it sees proper as to the disposition of public lands\[44\] which must be complied with.\[45\] A homestead right may be initiated by actual bona fide settlement on the land or by entry at the local land office,\[46\] but the applicant is not required to supervise the entries on the books of the registrar,\[47\] nor, at final hearing, can he be required to reiterate his purpose, bona fides and interest in acquiring the lands,\[48\] nor is it necessary that the survey should be made upon lines of sections and subdivisions,\[49\] but statement should not be filed during time for appeal.\[50\] The term "entries" is used with various meanings,\[51\] Title cannot be acquired by persons prohibited,\[52\] nor does it pass till patent issues,\[53\] or the land is selected.\[54\] It operates both as a judgment and conveyance,\[56\] and is prima fidee evidence that no objection to its issuance existed.\[58\]

judge of the quality of land reserved by him, both the state and its grantees are bound by his judgment honestly exercised. V. Coffin, 102 Minn. 493, 114 NWP 248.

Stetson v. Grant, 102 Me. 222, 64 A 480.

46. Holt v. Classen \[Okl.\] 91 P 866.

01. This applies to lands within such cities as well as to those outside and within two miles of city limits. Williams v. San

94 P 234.

95 M. White v. Whitcomb, 13 Idaho, 490, 90 P 1080.

48. Construction of timber and stone act

96 June 3, 1878, $ 3 (20 Stat. 89, c. 151, U. S. 144 N. C. 560, 57 SE 34; Dew v. Fyke \[N. C.\]

59 SE 76. And this is true although the

102 M. 22, 64 N. C. 163.

103 M. 22, 64 N. C. 164.

104 N. C. 165.

105 M. 22, 64 N. C. 166.

106 C. 166.

107 C. Law. **PUBLIC LANDS SS 3A.**

sale.\[108\] So are those used as town site and for trade purposes,\[37\] or those already granted,\[38\] or under lease,\[39\] or occupied by a settler\[40\] under a valid homestead entry,\[41\] and where forfeiture proceedings are void,\[43\] but void certificates and applications cannot have the effect to close it to location.\[43\]

SS 3. _Mode of locating and acquiring title. A${}_{\\infty}$Federal lands.\[ See 8 C. L. 1488\]\_

The land office may make such reasonable rules as it sees proper as to the disposition of public lands\[44\] which must be complied with.\[45\] A homestead right may be initiated by actual bona fide settlement on the land or by entry at the local land office,\[46\] but the applicant is not required to supervise the entries on the books of the registrar,\[47\] nor, at final hearing, can he be required to reiterate his purpose, bona fides and interest in acquiring the lands,\[48\] nor is it necessary that the survey should be made upon lines of sections and subdivisions,\[49\] but statement should not be filed during time for appeal.\[50\] The term "entries" is used with various meanings,\[51\] Title cannot be acquired by persons prohibited,\[52\] nor does it pass till patent issues,\[53\] or the land is selected.\[54\] It operates both as a judgment and conveyance,\[56\] and is prima fidee evidence that no objection to its issuance existed.\[58\]

judge of the quality of land reserved by him, both the state and its grantees are bound by his judgment honestly exercised. V. Coffin, 102 Minn. 493, 114 NWP 248.

46. Holt v. Classen \[Okl.\] 91 P 866.

01. This applies to lands within such cities as well as to those outside and within two miles of city limits. Williams v. San

94 P 234.

95 M. White v. Whitcomb, 13 Idaho, 490, 90 P 1080.

48. Construction of timber and stone act

96 June 3, 1878, $ 3 (20 Stat. 89, c. 151, U. S. 144 N. C. 560, 57 SE 34; Dew v. Fyke \[N. C.\]

59 SE 76. And this is true although the

102 M. 22, 64 N. C. 163.

104 N. C 1898 PUBLIC LANDS SS 3A. 10 Cur. Law.

\_Bailroad grants.\_See 8 c. L. 1489--Filing profile map of the road in the land office is a condition precedent to obtaining right of way,\[57\] after which, and action thereon by the secretary of the interior, title is complete,\[58\] and cannot be defeated by failure of an officer to perform a clerical duty,\[69\] but when the right attaches depends upon the limits within which the land lies.\[69\]

\_Swamp land grants.\_See 8 c. L. 1489--On notice to the entryman,\[61\] but not his alienee,\[62\] by registered letter\[63\] within five years,\[64\] the government may sue to an-ul the grant,\[65\] but a judicial proceeding is not necessary when the forfeiture is by legislative act,\[66\] though the question of fact upon which the forfeiture depends may be enquired into and determined in such proceeding.\[67\] In a proper case,\[66\] such as fraud or mistake, the final certificate may be canceled,\[69\] and the patent also if erroneously issued,\[70\] unless to do so would be inequitable to third persons as well as grantee.\[71\] A sale of the homestead may be treated as a relinquishment of it\[72\] when it reverts to the government\[73\] free from any burdens,\[74\] but though the cancellation of an entry, from which no appeal is taken, extinguishes the right,\[75\] a judgment of forfeiture will not affect lands not therein included.\[76\]

\_Jurisdiction of land officers and courts.\_See 8 c. L. 1491--Courts have no jurisdiction in suits against the government respecting the disposition of its land in the absence of its consent,\[77\] hence the land office is the proper forum,\[78\] unless it has lost\[79\]

secretary of the treasury as required by

Chandler-Dunbar Water Power Co. \[C, C. granting act. Koch v. Streuter, 232 III. 594, A.\] 152 F 25.

65. Action to forfeft grants must be in- 85 NE 1072.

01. A patent to land of which the land

stituted by the Federal government. Warpedartment may dispose is both the Judg-

rror River Coal & Land Co. v. Alabama

ment of that tribunal and a conveyance of

State Land Co. \[Ala.\] 45 S 53.

the legal title. Le Marchel v. Teagarden,

66. Grant of lands to railroad on conditions

152 F 662.

tions. Failure to perform such conditions

56. United States v. Chandler-Dunbar

operated ipso facto to forfeft the rights des-

Water Power Co. \[C. C. A.\] 152 F 25.

gated in the statute. Columbia Valley R.

57. Unless actual construction has begun.

C. Vo. Portland, etc., R. Co. \[Vash.\] 83 P

Act Mar. 3, 1875, 18 Statat. 482, e. 152 U. S. 167.

Comp. Stat. 1901 p. 1568. Minneapolis s.,

67. Columbia Valley R. Co. v. Portland,

R. Co. V. Dougstridge, B. S. C. 291. Title to

etc., R. Co. \[Vash.\] 83 P 1067.

land within the primary limits of a rail-

68. Govlery v. Countryman, 18 Okl. 220,

road grant passes on filling the map and

90 P 427.

definite location of the line, and the accept-

60. But after the patent has issued, the

ance and approval thereof by the secretary

remedy is in the courts. Budd v. Gallier

of the interior. United States v. Oregon, \[Or.\] 89 P 688.

etc., R. Co., 152 F 473.

70. There must be proper proof by the

01. Oregon Short Line R. Co. v. Stalker

party entitled to the land. Le Marchel v.

\[Idah\] 54 P 56.

50. Maps of railroad land filed in duplicate

01. Lands granted to railroad company

in local land office approved by secretary of

did not pass because same had been re-

interior, and returned to local office, which

served. Grantee, acting in good faith, sold

failed to make proper notations thereon of

to good-faith purchasers. Grant cannot be

the location of station grounds, subject to

em canceled, nor minimum price of land re-

controversy. Oregon Short Line R. Co. v.

covered. United States v. Grand Rapids,

Stalker \[Idah\] 9 P 56.

60. Within the primary limits, the right

ataches upon definite location, while within

not create a new right as against the

the indemitry limits it does not attach until

party in whose favor he relinquished. Love

selection. Donohue v. St. Paul, etc., R. Co.

v. Fishke, 206 U. S. 356, 51 Law, Ed. 1092.

(Min.) 112 NW 413.

73. Lands granted and abandoned by the

(Neb.) 115 NW 857.

62. Alience is not entitled to notice until

Donohue v. St. Paul, etc., R. Co. \[Min.\] 112

he gives notice to the local land office of 10 Cur. Law. PUBLIC LANDS SS 3B. 1299 jurisdiction," and its decisions on questions of fact are conclusive " in the absence of fraud, imposition, or mistake," and will not be disturbed by a court of equity; " but it is otherwise as to questions of law," unless the question is as to the validity of homestead documents."

(SS 3) _B. State lands._"See 5 C. L. 1492.-Title to public lands cannot be acquired by adverse possession," but application to purchase must be made to the state land board and must be filed with the clerk of the board," and since an entry of land creates an inchoate equity which becomes a complete legal title on payment of the money and taking a grant," every intending purchaser," such as competitive bidders " or entrymen, must proceed pursuant to statute," unless its provisions are waived." There must be an actual occupancy for the statutory period," but this will not be required in all cases," nor need the purchaser be the original occupant."

ing pme lands ceded by Indians in Minne-ston and obligations and made first pay-sota, and to require him to execute trust and account, dismissed. Naganab v. Hitch-Rep. 983, 105 SWV 488.

cock, 202 U. S. 473, 80 Law. Ed. 113.

90 Where land is resided on or cult-?8. Where the entryman's title is in-choate and another takes possession, he is withing of his intention to enter. Entry and for reinstatement. Eastern Banking Co. v. Loveday \[Nob.\] 115 NWV 857.

79 The issuance of a patent to land in controversy, pending such controversy, de-prives the department of jurisdiction If the land is unappropriated and open to errors are committed, however, the parties may seek remedy in the courts. Brooks v. Garner \[OK.\] 94 F 694.

80 Decision that it is mineral and not ag-ricultural, conclusive. Cragie v. Roberts \[CAL.\] 92 P 97; Love v. FJINING, 205 U. S. 195, 61 Law. Ed. 768. In a suit be-tween parties, the determination of the land office as to what did or did not pass under certain grants is conclusive. Barringer v. Davis \[Iowa\] 112 NWV 208.

81 Old Dominion Copper Min. & Smelting Co. v. Haverly \[Arlin.\] 90 P 333; White v. Whitcomb, 13 Idaho, 490, 90 P 1080.

82, Gourley v. Countryman, 18 Okl. 220, 996, 103 SWV 1189. Failure to reside upon 90 P 427.

83 Decisions of the land office on matters of law are not binding on the courts but will not be overvalued unless clearly erroneous. Hand v. CoCk \[Nev.\] 92 P 3. When there has been a manifest misapplication of the law to the facts, courts of equity with grant relief. United States v. Citizens' Trading Co. \[OK.\] 93 P 448.

84 The decision of the land department as to the validity of documents evidencing the right to homestead is conclusive. Question as to right to additional homestead. Lanson v. Coffin, 102 Minn. 493, 114 NWV 248.

85 Lands granted to state by Federal government for school purposes held not subject to loss to state by adverse possession. Murtaugh v. Chicago, etc., R. Co., 102 Minn. 52, 112 NWV 860.

86 The governor and ex-offelo land commissioner, therefore, is not liable to action for damages for defrauding would-be purchaser. Summers v. Geer \[Or.\] 93 P 133.

87. Fisher v. Owen, 144 N. C. 649, 67 SE 593.

01. Blakeley v. Kingsbury \[Cal. App.\] 93

01. On day lands are opened for compe-titive bids, bidder must have filed applica- \[Purchase. Cliv. App.\] 93

01. On day lands are opened for compe-titive bids, bidder must have filed applica- \[Purchase. Cliv. App.\] 19

1300 PUBLIC LANDS SS 3B. 10 Cur. Law.

The entry "\* or application should describe the land with certainty." It should not be premature," and must show the right to purchase," that applicant desires the land for his own use," though a sale is contemplated when the certificate is secured,1 and it must state the facts 2 as to possession and improvements." It may be withdrawn, however,4 and since it takes effect from the date of its filing in the clerk's office," precedence will be given him who first files.6 When rights are denied, mandamus will lie to enforce them,7 but the petition must show that the land was on the market at the time of the attempted purchase,6 nor must it raise a question of fact,9 and the right to the remedy may be lost by laches,10 but not barred by the statute of limitations.11 Judgment in an entry proceeding should follow the statute and be within its terms.12

transfer before amdavful. On showing proper settlement and mistake In date of need, reinstatement of sale ordered. Patton 91 P 762. v. Terrell \[Tex.\] 20 Tex. Ct. Rep. 147, 105 SWV 1115. 95. 640 acres, on waters of Texaway river, Transylvan county, beginning at north. - a return of cash payment. Hamilton v. west corner of Harriet Fisher hometead tract, and adjolting lands of J. S. Fisher and others, and running various courses for complement not sufficient. Fisher v. Owen, 144 N. C. 649, 57 SE 393. 15 Tex. Ct. Rep. 391, 101 SWV 1065. 95. De. Bieber v. Lambert \[Cal.\] 98 P 94. Ap-plication describing the land as 160 acres, the west quarter of the designated section, is sufficient, it appearing the state had only one quarter in that section. Lindsey v. Terrell \[Tex.\] 18 Tex. Ct. Rep. 321, 101 SWV 1078. Application calling for the south part of section 150, cert 241, grantee. F. M. Gardner, 400 8-10 acres," may be understood to apply to that quantity of land anywhere in the south part of the survey. Morgan v. Armstrong \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 424, 102 SWV 1164. 97. An application made before forfuture declared is premature, Adams v. Terrell \[Tex.\] 107 SWV 837. 98. Application will not be held void, on a contest, because it merely states the fact of the right to purchase, where It appears applicant was unmarried woman and 112 NWV 852. On application for manda-entited to hold real estate In her own name, Henshall v. Marsh, 151 Cal. 289, 90 P 693. An agreement by applleant to pay another for services rendered in the matter of application, though payment is to be made on the sale of the land, does not show applicant did not apply to purchase for his own use and benefit, nor does the fact that money was borrowed to be repold on safe of the land, or secured by mortgage after certificate of purchase. Henshall v. Marsh, 151 Cal. 289, 90 P 693. The right to purchase is not lost by an agreement to sell, made after filing application. Bryan v. Graham, 5 Cal. App. 599, 91 P 114. That an applicant to purchase school lands proceeds in good faith will be presumed. Henshall v. Marsh, 151 Cal. 289, 90 P 693. 1. Henshall v. Marsh, 151 Cal. 289, 90 P 693. 2. A sales statement defeats both the applicant and his assignee of any rights acquired thereunder. Kleinsorge v. Burg-bacher \[Cal. App.\] 92 P 199. 8. If the applicant does not know the condition of the land as to possession and 10 Cur. Law. PUBLIC LANDS SS 3B. 1301

\_Grants and patents.\_See 4 C. L. 1448. The officers have no right to issue a patent pending contest,\[18\] but the making of an award is presumptive evidence that it was authorized and regular,\[14\] and whether made pending a lease may be shown by such lease.\[18\] A vague and indefinite grant is invalid, unless the identity of the premises can be ascertained by extrinsic evidence,\[16\] but alterations will not invalidate it,\[17\] nor will mistake in the name affect a certificate.\[18\] Until annulled in a proper action the patent is conclusive against the state and claimants under junior titles,\[19\] and the registration is not required to rest title.\[20\] -

\_Rescissions, cancellations, forfeitures, and reversions.\_See 5 C. L. 1491. A patent cannot be revoked except upon proper judicial proceedings,\[31\] instituted in behalf of the state \[22\] within the statutory period,\[23\] nor does occupation of the land as a setler affect the rule,\[24\] but a void certificate is open to attack by one not in privity with the paramount source of title.\[25\] In a proceeding to forfeit for abandonment, the abandonment must be shown.\[26\] The cancellation restores the land to the state,\[27\] and the abandoning party may purchase the same land at competitive sale.\[28\] Jurisdiction to vacate plats of tide lands is vested in the board of state and land commissioners.\[29\] Protest against an entry is not a civil action but a simple proceeding,\[30\] and cannot be terminated by submitting to nonsuit,\[31\] but may be withdrawn.\[32\] The contestant must begin his action within sixty days\[33\] or forfeit all rights,\[34\] but, if begun before the patent issues, is in time.\[35\] The court derives jurisdiction from the order of reference,\[36\] and the ordinarry rules of pleading, practice, and evidence apply,\[37\]

148 Mich. 12, 14 Det. Leg. N. 114, 111 NWW be collaterally attacked. Grant v. Oregon R. & N. Co. \[Or.\] 90 P 178. 12. In re entry No. 49 of Williams \[N.\] 23. The limitation of one year within C.J 59 SE 698. 13. Blakeley v. Kingsbury \[Cal. App.\] 93

14. Bumpases v. McLendon \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 485, 102 SW App.\] 18 Tex. Ct. Rep. 267, 101 SWV 491. 15. Lease of the land admissible to show whether it was in force or canceled at the date of an award of the land. Trimble v. Burroughs \[Tex. Civ. App.\] 14 Tex. Ct. Rep. 753, 95 SW 614. 16. Grant not showing where land located, except that it is on a certain island, and embraced within certain courses and distances, which have no starting or ending point, too vague as notice of any rights claimed thereunder. Merritt v. Bunting \[Va.\] 57 SE 667. 17. Alteration in the surveyor's field notes will not invalidate a patent. Keenan v. Slaughter \[Tex. Civ. App.\] 108 SW 703. 18. A mistake in the middle initial of the vendee will not invalidate the certificate. Trimble v. Burroughs \[Tex. Civ. App.\] 14 Tex. Ct. Rep. 753, 95 SW 614. 19. Freilsen V. Grandell \[La.\] 45 S 558. 120. Dew v. Pyke \[N. C.\] 59 SE 76. 121. Smith v. Crandall, 118 La. 1052, 43 8 699. 22. Freilsen v. Crandell \[La.\] 45 S 558; Darby's Heirs v. Emmer \[La.\] 46 S 548. Neither the state nor any of its agents can attack a state patent, valid on its face, in a collateral proceeding. Chauvin v. Loulsti ana Oyster Commission \[La.\] 46 S 38. On an order of reference, the statute begins to run from the the making and entry of the order. Zbwbank v. Mikel \[Cal. App.\] 91 P 672. 21. Smith v. Crandall, 118 La. 1052, 43 8 84. He has the right to file another application, and thus acquire a right. Ewbank v. Mikel \[Cal. App.\] 91 P 672. 35. Blakeley v. Kingsbury \[Cal. App.\] 93

193 Kleinsorge v. Burgbacher \[Cal. App.\] 92 P 199; Blakeley v. Kingsbury \[Cal. App.\] 93 P 129. Blakeley v. Kingsbury \[Cal. App.\] 93 P 129. 37. Plaintiff must show the certificate is invalid, and the defendant may rely on proof made by plaintiff and facts admitted by the pleading. Bieber v. Lambert \[Cal.\] 93 P 94.

hence an alias notice may issue if the original was defective.\[88\] The protestant is not bound to make out a perfect chain of title.\[39\] The burden of proof is on the enterer or claimant.\[40\] but a subsequent settler need not show that defendant's non-residence on the land was the result of mistake.\[41\] In such cases there is no appeal from the state board of land commissioners.\[42, 43\]

SS 4. \_Interest and title of occupants, claimants, and patentees. A. Federal lands.\[See SS 5. C. L. 1498--The patent is conclusive as to the extent of the right passing under the grant,\[44\] but does not pass lands not public at its date though they may afterwards become so.\[45\] What riparian rights go to a patentee, however, depends upon the general law of the state where the land is situated.\[46\] A substantial right accrues when payment is made and certificate or receipt received.\[47\] The party in actual possession has the right to hold the land against everyone but the United States,\[48\] and a homestead entryman has the right to the land and all improvements and crops thereon,\[49\] but an unsuccessful claimant is not entitled to hold the land until improvements made during the contest are paid for.\[50\] A contestant's preference right is superior to a trespasser's,\[61\] and one first entering after the cancellation of a prior entry has priority over another who attempted to enter prior to such cancellation.\[52\] On relinquishment of the entry, in the absence of superior intervening rights, the settler is entitled to the homestead entry.\[58\] Courts of equity will determine whether or not title shall be held as trustee,\[54\] and will decree as circumstances warrant.\[55\] Laches and waiver, however, defeat the right to charge patentees

SSs. The proceeding will not be dismissed for defective notice. Caldwell Land & Lumber Co. v. Coffey, 144 N. C. 560, 57 SE 344.

SS2. Hold v. Classen \[OkL\] 91 P 866; Emid & A. R. Co. v. Kephart \[OkL\] 91 P 1049.

SS4. He must show proper entry and that the lands are vacant and unappropriated. Walker v. Carpenter, 144 N. C. 674, 57 SE 461.

41. Morgan v. Armstrong \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 42, 102 SW 1164.

42, 43. Plerson v. State Land Com's \[Idaho\] 93 P 775.

44. Barringer v. Davis \[Iowa\] 112 NWV 208.

01. United States v. Grand Rapids, etc., R. Co., 154 F 131.

01. If land patented lie in state where Emglish common law doctrine of riparian ownership prevails, the patentee, if land on natural water course, would have right to have water flow down to him without material diminution in quantity, but such right would not exist in arid western states where this doctrine has been modified so as to allow diversion in the interest of agriculture. City of Los Angeles V. Los Angeles Farming & Mill. Co. \[Cal.\] 98 P 869.

01. Budd v. Gallier \[Or.\] 89 P 683.

01. New England & Coilinga Oil Co, v. Congdon-\[Cal.\] 92 P 180.

01. First entryman leased land to croppers who sowed and then relinquished back to the government; entry by second party entitled him to crops growing under lease with first entryman. Moore v. Linn \[OkL\] 91 P 910.

01. Howe v. Parker, 18 Okl. 282, 90 P 15.

01. Settler on land covered by valid homestead entry acquires no right as a settler

01. Cur. Law.

01. The protection of the water is not bound to make out a perfect chain of title.\[39\] The burden of proof is on the enterer or claimant,\[40\] but a subsequent settler need not show that defendant's non-residence on the land was the result of mistake.\[41\] In such cases there is no appeal from the state board of land commissioners.\[42, 43\]

SS 4. \_Interest and title of occupants, claimants, and patentees. A. Federal lands.\[See SS 5. C. L. 1498--The patent is conclusive as to the extent of the right passing under the grant,\[44\] but does not pass lands not public at its date though they may afterwards become so.\[45\] What riparian rights go to a patentee, however, depends upon the general law of the state where the land is situated.\[46\] A substantial right accrues when payment is made and certificate or receipt received.\[47\] The party in actual possession has the right to hold the land against everyone but the United States,\[48\] and a homestead entryman has the right to the land and all improvements and crops thereon,\[49\] but an unsuccessful claimant is not entitled to hold the land until improvements made during the contest are paid for.\[50\] A contestant's preference right is superior to a trespasser's,\[61\] and one first entering after the cancellation of a prior entry has priority over another who attempted to enter prior to such cancellation.\[52\] On relinquishment of the entry, in the absence of superior intervening rights, the settler is entitled to the homestead entry.\[58\] Courts of equity will determine whether or not title shall be held as trustee,\[54\] and will decree as circumstances warrant.\[55\] Laches and waiver, however, defeat the right to charge patentees

SSs. The proceeding will not be dismissed for defective notice. Caldwell Land & Lumber Co. v. Coffey, 10 Cur. Law. PUBLIC LANDS SS 4B. 1303 as trustees. \[58\] On entry by town authorities the title is held in trust, \[57\] and the interest of a town lot owner cannot be reduced by the surveyor or affected by the rules of the legislature. \[58\] The right to mortgage, sell, or lease depends on circumstances also. \[59\]

\_Railroad land grants,\_See s C. L. 1500...The extent of the interest granted is to be determined by the granting act, \[60\] and the mere selection of lands by the company confers on it no title, equitable or otherwise, \[61\] The price of land erroneously patented and sold to innocent parties by the company may be recovered by the government. \[62\] \_Area acquired and boundaries.\_See s C. L. 1500...If a meander line substantially corresponds to a shore line of a body of water in fact meandered in the original survey, the grantee will take to the actual water line, although it is more than the plat represents. \[63\]

\_Adverse possession.\_See s C. L. 1500 (SS 4) \_B. State lands.\_See s C. L. 1501...The certificate is prima facie evidence of title, \[64\] but no interest or title passes under a void certificate, \[65\] nor under a deed to lands located before the execution of the deed. \[66\] Unless he hold as trustee for the rightful owner, \[67\] the party holding the older grant has the better title, \[68\] which cannot be defeated by error or mistake in the discription of the land. \[69\] Grantee may devise lands held under grant, \[60\] and the title descends to the heirs of the party who

56. Wavier filed before patent issued, and \[\] vyeed land, duly asserted, will be protected delay of several years to enforce prefer- until right. Holt v. Murphy, 28 S. Ct. 212, 57. Entry made under SS 2387, U. S. Rev. St. (U. S. Comp. St. 1901, p. 1457), the en- terred holds in trust for the benefit of the occupants individually and collectively and the disposal of the lots is conducted under such regulations as the state wherein the same are located may make. White v. \[104\], 62. Suit by United States under U. S. Soure, 13 Idaho, 490, 90 P 1080; Scully 67. Entry made under SS 2387, U. S. Rev. St. (U. S. Comp. St. 1901, p. 1457), the en- terred holds in trust for the benefit of the occupants individually and collectively and the disposal of the lots is conducted under such regulations as the state wherein the same are located may make. White v. \[104\], 62. Suit by United States under U. S. Soure, 13 Idaho, 417, 90 P 573. \[105\], the en- terred is, 63. On entry of town authorities, the rights of the inhabitants accure and cannot be defeated by rules of the territorial legis- lature or the acts of the surveyor. Scully v. Squire, 13 Idaho, 417, 90 P 573. \[106\], Homesetad lands may be mortgaged before patent issues, Rogers v. Minneapolis Thisching Mach. Co. \[Wash.\] 82 P 774. The sale of the right initiated by settlement is an abandonment of the settlement as against an adverse claimant. Brooks v. Garner \[Ok1.\] 94 P 694. Conveyance after \[Ok1.\] 93 P 94. Conveyance after \[Ok1.\] 93 P 94. patent pursuant to agreement made before its issuance sustained. Hartman v. Butterfield Lumber Co., 199 U. S. 335, 50 Law, Ed. 217. A party may dispose of the substan- tial title or interest acruing on paying purchase price and receiving certificate or receipt, Gourley v. Countryman, 18 Oxk, 220, 90 P 427. A donation land claimant may sell and convey his claim after four years' residence and cultivation whether he has received patent or not. Sylvester v. State, 46 Wash. 585, 91 P 15. The full beneficial interest and ownership vests in the homesetador upon receipt for final entry, and a lease by him before the issuance of his patent is valid, Walker v. Johnson, 53 Fla. 1076, 48 S 71. \[60\], United States v. Southern Pac. R. Co., 152 F 314. \[61\], Donohue v. St. Paul, etc., R. Co. \[Minn.\] 112 NWV 418. Rights acquired by settlement and improvement upon unsur- tional. \[62\], 63. On entry of town authorities, the title is held in trust, \[63\] and the interest of a town lot owner cannot be reduced by the surveyor or affected by the rules of the legislature. \[64\] The right to mortgage, sell, or lease depends on circumstances also. \[65\]

\_Railroad land grants,\_See s C. L. 1500...The extent of the interest granted is to be determined by the granting act, \[60\] and the mere selection of lands by the company confers on it no title, equitable or otherwise, \[61\] The price of land erroneously patented and sold to innocent parties by the company may be recovered by the government. \[62\] \_Area acquired and boundaries.\_See s C. L. 1500...If a meander line substantially corresponds to a shore line of a body of water in fact meandered in the original survey, the 1304 PUBLIC LANDS SS 5. 10 Cur. Law.

completed the period of occupancy. \[71\] A certificate and the land patented thereunder are also assets of a decedent's estate. \[72\] A claimant will be compensated for a failure of title unless he is excluded by the terms of the conveyance, \[73\] but the damages are limited to the purchase money and interest. \[74\] There can be no recovery for improvements unless put on the land in good faith, \[75\] nor has an intruding settler a right to remove such as constitute fixtures. \[76\] A purchaser of school land may create a valid lien thereon, \[77\] but not until the statutory period of occupancy has expired. \[78\] An alien takes such an interest as can only be divested by the state. \[79\]

\_Area acquired and boundaries.\_See * C. L. 1501--The purchaser of tide lands has the right of wharfage to deep water, and the right to all accretions, \[80\] and in arriving at the extent of the grant the mode of measurement is determined by the character of the surface to which it is to be applied. \[81\]

_Adverse possession._--Entry by the elder patentee will stop the running of the statute of limitations in favor of the junior patentee. \[82\]

\_Adjudication of title by the courts.\_See * C. L. 1502--Statute conferring jurisdiction on the court of claims is constitutional. \[83\] A patent will be construed according to its language, \[84\] but not so as to pass lands occupied under a claim of title. \[85\] An abandoned survey cannot be set up against a subsequent patent, \[84\] but title may be established by any competent parol evidence, \[84\] and the burden is on plaintiff. \[85\]

SS 5. \_Leases of public lands and rights thereunder.\_See * C. L. 1503--The statute fixes the amount of land to be leased to any one person, \[85\] though the unauthorized

Jascoe \[Tex. Civ. App.\] IS Tex. Ct. Rep. 676, 103 SWV 196. \[71\] C. takes up homesetead with wife who died before completion of three-year actual occupancy required by statute. C. married again and wife lived with him on land until completion of period. Title descended to hirts of last wife. Helrs of first wife, how-ever, were entitled to contribution for improvements made by the community of the elder patentee enters and improves part of first marriage. Creymer V. Briscoe \[Tex. Civ. App.\] 107 SWV 635. \[72\] C. Certificate after death of party entitled and patent issued not property of helrs, but subject to administration. Fields v. Burnett \[Tex. Civ. App.\] 108 SWV 1048. \[73\] C. Construction Laws 1894, p. 574, e. 517, 51. \[74\] S. Wheeler v. State, 190 N. Y. 406, 83 NE 54. \[74\] V. Wheeler v. State, 190 N. Y. 406, 83 NE 54. \[75\] T. Wheeler v. State, 190 N. Y. 406, 83 NE 54. \[76\] T. Improvements put on after application rejected and after suit cannot be recovered for. Fellers v. McFatter \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 391, 101 SWV 1065. \[76\] M. McCullers v. Johnson \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 606, 104 SWV 602. \[77\] T. Before the expiration of the three years' occupancy required by statute, a lien may be created on school land, enforceible after such occupancy had been completed. Bumpass v. McLendon \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 267, 101 SWV 491. \[78\] S. Bourin v. Robinson \[Tex. Civ. App.\] 107 SWV 873. \[79\] J. Johnson v. Eversole Lumber Co., 144 N. C. 711, 87 SE 518. \[80\] G. Grant v. Oregon R. & Nav. Co. \[Or.\] 90 P 178. \[81\] S. If the distance to be ascertained is over the sea, it is determined in marine miles; if over the land, in statute miles. Laxell v. Boardman \[Mc.\] 69 A 97. \[82\] S. Where junior patentee makes first entry within the interference and holds possession, if the elder enters within 15 years and takes possession, the statute is suspended against him. Such entry gains possession of the uninclosed lands. Where two patents interfere, and junior patentee first settles on the part of the interference with intention of taking possession, and elder patentee enters and improves part of interference, he is, by construction of law, possessed of whole tract. Goff v. Lowe, \[Ky.\] 107 SWV 794. \[83\] K. Laws 1900, p. 1633, e. 767, conferring jurisdiction on the court of claims in matters of claims of purchasers of public lands, is not violation of Const. art, s 19, Wheeler v. State, 190 N. Y. 406, 83 NE 54. \[84\] S. Patent recites issanance of land certificates and their assignment to certain persons, "executors of" party deceased, and grants to said persons, executors and their "heirs and assigns." Land passed to them as individuals, the term "heirs and assigns" being necessary to create an estate in 10${}^{\\prime}$Cur. Law. PUBLIC LANDS SS 7. 1305 insertion of lands in the lease may be ratified by the state." The lease may be denied for failure to pay rent," but cannot be canceled before its termination and a new one issued, there being no such failure." Inhibition against sale does not include leasing." The lessee of tide lands may exercise ownership over what is on the leased premises," and his assignee may enjoin a trespas thereon." The right to renew or release is subject to sale and purchase." The quantities in which the land may be purchased is fixed by statute," which gives lessees and their assignees a preference right to purchase the leased premises " before the expiration of the lease " on notice of his intention to buy," and showing that the right of the state under the lease has ended." Purchase of the land by the lessee takes it out of the operation of the lease."

SS 6. _Spanish and other grants antedating Federal authority._ See 8 C. L. 1503 SS 7. _Regulations and policing, and offenses pertaining to public lands. Cutting timber on public lands._ See 8 C. L. 1504--Other topics treat of conspiracy to violate the land laws," and of perjury in applications for lands." The law prescribing the terms upon which timber may be cut and removed will be construed so as to effectuate it," hence where authority is given to cut on mineral lands they must be actually such," and the intent with which the location was made may be determined by circumstances." In jurisdictions where a permit for the removal of timber is necessary, it can only be removed during the life of the permit," and if not then so removed it becomes the property of the state 10 when the party then removing is guilty of a conversion," an action for which is not barred by the statutes applying to penalties or forfeitures." Such permit may be extended once for the period of one year," but

90. Land not subject to lease inserted \[Tex. Ct. Rep. 443, I02 SWV 98; Patterson v. therein by clerk not having power to do \[Knapp \[Tex.\] 103 SWV 489, so. Rents paid by lesser and commissioner \[90, Patterson v. Crenshaw \[Tex. Civ. of land office and state treater treated \[Appl.\] 20 Tex. Ct. Rep. 91, 105 SWV 986, lease as covering land inserted, McGill v. \[A.\] 1, Statute requires 60 days' notice before \[Key expiration of lease. Assignment executed 19 Tex. Ct. Rep. 695, 103 SWV 695, 104 SWV 695, 105 SWV 695, 106, Lease shall issue to original lessees until 18, 1907, Notice too late under the act of \[Key 16, 1870\], which took effect between the original lease, and not to subsequent ones, execution and acknowledgement of the as-though some of the lessees may be the same. Rhea v. Terrell \[Tex.\] 18 Tex. Ct. Rep. 144, 105 SWV 481. \[Appl.\] 22, TaTGill v. Sites \[Tex. Civ. App.\] 18 3. The lease comes to an end without any \[Tex. Ct. Rep. 63, 19 Tex. Ct. Rep. 695, 103 SWV 695, 104 SWV 695. An inhibition of the sale of school lands does not include a lease thereof for \[Tex.\] 18 Tex. Ct. Rep. 446, 102 SWV mineral purposes. State v. Evans, 99 Mimn. 97. 220, 108 NWV 958. \[Appl.\] 4. The lessee or his assignee is entitled to the claims that gather on leased tide lands. Sequin Bay Canning Co. v. Bugge \[VWash.\] 94 P 922. 95. The state, being no party to the trespas or to the immediate possession, need not be impeladed. Sequin Bay Canning Co. v. Bugge \[Vwash.\] 94 P 923. 96. School lands in Oklahoma. Noel v. Barretti, 18 041. 90 P 12. 97. The "survey" referred to in the statute mean "sections," which are to be sold as a whole, and not in subdivisions, If no part of it has already been sold. Ford v. Terrell \[Tex.\] 107 SWV 40. 98. The statute giving such right is not unconstitutional, and is not confined to as-signees who were such when the statute was passed. Glasgow v. Terrell \[Tex.\] 18 the state is not stepped to deny the validity of an unauthorized extension,\[14\] nor to bring an action for the conversion of the timber.\[18\] That the trespasser had knowledge of the law does not of itself make the trespass willful.\[16\] The amount of damages recoverable depends on the terms of the statute \[11\] which has been held constitutional,\[18\] and both damages and penalties may be recovered in one action.\[19\] In the absence of a statute giving damages, however, none can be recovered.\[20\]

Crimes and offenses against public lands.\[See 8 C. L. 1558.--The land department has jurisdiction to make rules for the disposition of public lands,\[21\] but criminal charges cannot be based on violations of them,\[22\] and statutes imposing penalties for this illegal purchase of public lands must be strictly construed.\[23\] Hence the statute relating to fraudulent entries contemplates active fraud,\[24\] but does not require pecuniary loss,\[25\] nor will the oath be willful and corrupt if wanting in essential criminal intent.\[26\] The indictment, however, need not charge that the lands were public lands, subject to homestead entry.\[27\] The secretary of the interior has the authority to make such rules and regulations as will insure the objects of the forest reserves,\[28\] and this authority cannot be affected by state policy.\[29\] Unless forbidden, the public have an implied license to graze stock on the public lands,\[30\] but this privilege cannot be monopolized by anyone.\[21\]

Fencing.\[See 8 C. L. 1505.--Without the intent to inclose public lands, knowing them to be such, there can be no offense.\[82\] Color of title cannot be shown by a deed

Minn. 470, 113 Nw 634; State v. Rat Port-

age Lumber Co. \[Minn.\] 115 Nw 162.

14. State v. Shervlin-Carpenter Co., 102 Minn. 470, 113 Nw 634.

01. State v. Rat Portage Lumber Co. \[Minn.\] 115 Nw 162.

01. Parties who enter in good faith, under the belief that a permit has or will be extended, are not willful trespassers. State v. Shervlin-Carpenter Co., 102 Minn. 470, 113 Nw 634.

01. The statute, as construed, authorizes the state to recover double or treble value of the timber taken, according to whether the trespass is causal or involuntary, or willful and unlawful. State v. Shervlin-Carpenter Co., 102 Minn. 470, 113 Nw 634.

01. The statute fixing damages for trespass upon state timber to double and treble the value of the timber taken is not unconstitutional. State v. Shervlin-Carpenter Co., 102 Minn. 470, 113 Nw 634.

01. Action for trespass in cutting trespass and for penalty under forest, fish and game law. People v. Bennett, 56 Misc. 160, 107 NYS 406.

01. Code Civ. Proc. 1867, 1868, giving treble damages for cutting trees, do not apply to trees on state lands, People v. Bennett, 56 Misc. 160, 107 NYS 406.

01. The land department has the power to make such reasonable rules and regulations not inconsistent with any valid law, as will give effect to the acts of congress pro-

viding for the disposition of public lands. Van Gesner v. U. S. \[C. C. A.\] 153 F 46.

The term "jurisdiction," in connection with the secretary of the interior, is used in its legal sense. United States v. Keitel, 157 F 396.

22. Rules and regulations of the land office cannot be made the basis of crime

where a statute does not distinctly make

10.

10 Cur. Law. PUBLIC WORKS AND IIMPROVEMENTS SS 2. 1307

for unsnveryed public lands from a railroad company to defendant.\[88\] A verdict of guilty may be found on one count and not guilty on another.\[44\]

PUBLIC POLICY, see latest topical index.

PUBLIC WORKS AND IMPROVEMENTS.

1. Definitions and scope of Title, 1307.

1. B. Pover, Duty and Occasion to Order or

Make Improvements, 1307.

1. B. Establishment or Change of Grade

for Cost, 1308.

1. C. A.\] 8. A. Proceedings to Authorize or Validate

1. B. Local Assessments, 1324.

Making, 1309.

A. Power and Duty to Make, 1324.

1. B. By Whom and How Initiated, 1309.

1. C. Notice and Hearing, 1311.

1. D. Protests and Remonstrances, 1312.

1. E. Estimates of Cost, 1312.

1. F. Approval and Acceptance of Work,

1.

1. G. Curative Legislation and Rafficcation, 1313.

1. E. Reassessments and Additional Assesments, 133.

1. F. Maturity, Obligation and Lien of Contract Provisions, 1317. Performance of Contract, 1319. Allowance of Claims and Recovery

1. E. Reassessment and Additional Assesments, 1336.

1. G. Payment and Discharge, 1337.

1. E. Reassessment and Additional Assesments, 1342.

1. E. Reassessment and Additional Assesments, 1331.

1. E. Reassessment and Additional Assesments, 1335.

1. Definitions and scope of title.See 1 C. L. 1508. This topic treats generally of public works and improvements, including local improvements \[88\], \[86\] the powers and duties of municipalities with respect to public works and improvements, the procedure therefor and the costs thereof, including local assessments. The taking of property for public use,\[87\] the construction and operation of particular public works,\[88\] and matters peculiar to the powers and fiscal affairs of particular public bodies.\[89\] are treated elsewhere. While the manner of letting a contract for a public work and the validity of provisions peculiar to contracts of this kind are treated herein, matters pertaining to the making and validity of public contracts in general are excluded.\[40\] Liability for personal injuries resulting from negligence in the construction and maintenance of public works is also excluded.\[41\]

1. B. Pover, duty and occasion to order or make improvements.\[88\]

1. B. Pover, Duty and Occasion to Order or Date improvements.

1308 PUBLIC WORKS AND IMPROVEMENTS SS 3. 10 Cur. Law.

Subject to constitutional limitations,\[42\] the power of the state to construct public works and to make public improvements is inherent and, except to the extent that it has been delegated to municipalities, exclusive,\[43\] while the powers of municipalities in this regard are solely derivative,\[44\] and the legislative functions delegated to the municipal body in this regard cannot be delegated by it,\[45\] but the details of supervision and direction of the construction may be delegated,\[46\] and a slight deviation from the plans and specifications will not constitute asurpation of legislative authority by the officer in charge of such details, where the plans and specifications are substantially followed in all material respects.\[47\] The exercise of this power by a municipality involves more or less of discretion,\[48\] and where such power is limited only by a restriction as to the amount of municipal indebtedness, the determination of the duly authorized authorities as to the necessity of the work or improvement is exclusive.\[49\] A city's power to make such repairs and improvements is not curtailed by a statute requiring a public service corporation to do a portion of such work.\[50\]

SS 3. \_Funds for improvements and provision for cost.See 10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 4B. 1309

curved,\[81\] submission to the vote of the people,\[82\] and limitations as to the amount to be expended.\[83\] Under a general authority to issue bonds, a city may issue bonds to raise funds for an authorized public improvement,\[94\] and the right to assess the owners with a part of the cost is not necessarily exclusive of the right to issue bonds for the remainder.\[84\]

SS 4. \_Proceedings to authorize or validate making. A. In general.\[85\] & C. L. 1011. (SS 4) B. By whom and how initiated.\[86\] & C. L. 1011. --Public works and improvements undertaken by municipalities are usually inaugurated either by ordinance. enacted by the municipal body of its own motion or upon a petition required by statute.\[88\] In either case jurisdictional requirements must be strictly complied with, and failure to do so will render all subsequent acts and, proceedings void,\[87\] but not so as to mere irregularities in matters of procedure.\[88\] The ordinance must, of course, be enacted by the requisite majority,\[89\] and in the manner prescribed by statutory.

51. Tie vote for expenditure of funds, de-cleded in favor of such expenditure by vote Laws, $ 258, submitted to voters the queses of mayor, held sufficient merely to authorize and electriting funding to enlarge waterworks: expenditure of funds on hand and not sufflement to create obligation to be met by larger bolders, and on being so authorized taxation. Vossen V. St. Clarl, 148 Mtch, 686, 14 Deic. Ng. 331, 142 N NV 146, Under 1 - under authority of $ 2365 use such Priv, Laws 1869, 2, 364, $ 13, giving parks commissioners all powers of council as purchase electrical current. Vossen v. St. to parks, such board may incur expense for charity 1774. Where municipality is required to: therefor as required by city charter where such expanses are incurred by city council, hing revenues to meet the cost of an Im-Barber Asphalat Pav. Co. v. South Park (Com'rs, 233 Ill. 264, 84 NTE 243. Buffalo City (ed. Act. March 17, 187 (Sexas. Laws 1877, chafter, 1 408, requiring Levy of assessment and confirmation thereof before contracting 1905 (Sess, Laws 1905, p. 300, p. 159), held for public improvements in excess of certain amount. does not apply to issue of bonds (Aymore v. Seattle (Vrsnals) 2 P 892. under Laws 1902, p. 1361, p. 658, 11-3, as amended by Laws 1906, p. 1715, 6, 665, and assessment to reimburse city for such board (Isse. People v. Buffalo, 57 Miss. 17, 17 NTE 281. An appropriation therefor as required by city charter, where such expenses are incurred by city council. Barber Asphalat Pav. Co. v. South Park (Com'rs, 233 Ill. 264, 84 NTE 243. If section 408 should be construed to apply to such bond issue, it was repealed by the law authorizing such issue. 16 d. Section 408 does not apply to assessment to pay bonds of city of Buffalo level under Laws 1902, p. 1356, 656, but does apply to assessment to assessment under Laws 1906, p. 1435, 627, to pay for improvements therein specid-fed. People, etc., R. Co. v. Buffalo, 57 Miss. 10, 107 NTE 689. The key of an assessment is a sufficient approximation to render the funds available for the contarction of the improvement. McGilvey v. Lewiston, 13 Idaho, 388, 90 P 348. \*\*Persons contracting with municipality for construction of street or fewer improvements are bound to use reasonable dilition. Thoms v. Woots \[Ky.\] 108 SW 878. **Persons** contracting with municipality for construction of street or fewer improvements are bound to use reasonable dilition. Thoms v. Woots \[Ky.\] 108 SW 878. **Persons** contracting with municipality for construction of street or fewer improvements are bound to use reasonable dilition. Thoms v. Woots \[Ky.\] 108 SW 878. **Persons** contracting with municipality for construction of street or fewer improvements are bound to ascertain validity of proceedings and authority of council to enter into such contract, and where gross disproportion is apparent be-ween amount authorized to be so expended by unanimous vote of only eight members of taxable valuation of property included in all, and charter feuforming "unanimous vote." Bussing v. Mt. Vernon, 121 Ap. Dirv. 502, 106 NTE 195. Under Code, 193, cate that requisite funds are in treasury requiring three-fourthies majority to pass-resolution for improvement on council's own. Smith v. Rockford, 9 Ohio C. C. (N. S.) 465. **Persons** 1310 PUBLIC WORKS AND IMPROVEMENTS SS 4B. 10 Cur. Law.

ute.69 It must sufficiently describe the improvements therein proposed,61 but where the ordinance definitely describes the property, irregularities in designation of the owners is not necessarily fatal.62 Impractical exactness in specifications is not required.63 The enabling statute may be incorporated into the resolution for the improvement by reference,64 as may also plans and specifications on file.65

Footnote 63: https://www.sds.org/

Footnote 64: Edwards House Co. v. Jackson \[Mise.\]

Where the proceedings are required to be instituted by petition of property holders the filing of a petition signed by the proper number of property holders is jurisdictional.65 Such a petition must be supported by the legally sufficient consideration and final adoption. Nixon v.

V. Jackson \[Mise.\] 45 S 14. The fact that Burlington \[Iowa\] 115 NW 238, Record ordinance does not provide in express terms of detailed statement of the vote upon streets for pervasive streets torn up in excavating for sewers does not render it invalid if it pose is sufficient, though such statement 16 does so by implication. Provision In ordinance that labor "be performed in a good and workmanlike manner, construed in con-

Footnote 65: https://www.

## 10 Cur. Law. Public works and improvements SS 4C.

signatures \[97\] of the required number \[98\] of legally qualified signers.\[10\] The fact that some of the signatures were made under a misapprehension of the facts does not affect jurisdiction, where such fact does not appear on the face of the petition.\[70\] Petitioners cannot prevent further proceedings by withdrawal from the proceedings which they have inaugurated.\[71\] Where the entire proceedings prior to the directing, of the improvement are at the risk of the petitioners, the municipality cannot recover costs from the sureties on petitioners' bond which has been declared invalid by reason of the invalidity of the statute under which it was given.\[72\] Where the record of the municipal body is required to show that the proceedings were initiated by petition, it is sufficient if such fact appear from the whole record.\[73\]

(SS 4) \_C. Notice and hearing.\[See e C. L. 1518\]\_In the absence of statutory mandate, notice of a proposed public improvement is not necessary,\[74\] but where notice is required \[78\] it is imperative that it should be given.\[76\] The notice must specify the approximate location of the proposed improvement \[77\] and the property to be assessed,\[78\] and must be for the required length of time.\[78\] Due diligence must be ex1313 PUBLIC WORKS AND IMPROVEMENTS SS 4D. 10 Cur. Law.

ercised to ascertain who are the owners entitled to notice.80 Notice to a wife is not notice to her husband,81 nor is notice to one tenant in common notice to the other.82

Footnote 82: The author is grateful to the anonymous referees for their comments.

(SS 4) \_D. Protests and remonstrances.\_See S. C. L. 1517--It is sometimes provided that an improvement may be prevented by the protest of a certain number of property owners.83 Remonstrances must be made in the manner prescribed by statute.84

(SS 4) \_E. Estimates of cost.\_See S. C. L. 1517--Requirements as to estimates of cost are not necessarily jurisdictional.85 An estimate is an approximation, which is something more than a mere statement of the maximum cost,86 and should be itemized sufficiently to give the owners of property a general idea of what it is estimated each of the substantial component elements will cost,87 but an impractical degree of particularity is not required.88 The scope of the improvement to be made with the proceeds of municipal bonds is not limited by estimates and plans furnished merely for the information and assistance of the municipal board, there being no statutory or charter provision for such estimates and plans, and the submission of the proposal to bond the municipality being general and contemplating general improvements.88 Where the officer charged with the duty of making the estimate testifies that he made the required estimate, an inquiry into the general custom of making estimates with reference to whether they were excessive or not will not be allowed in the absence of any averment of fraud,90 nor, in such case, is it relevant to inquire into the details of the estimate.91 Where the same kind of improvement is made in front of each lot, a separate estimate as to each lot is not necessary.92

115 NW 957. See post, SS 9, Local Assessments.

The author is grateful to the anonymous referees for their comments.

10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 5. 1313

(SS 4) _F. Approval and acceptance of work._\[83\]

(SS 4) \_G. Curative legislation and ratification.\_See e C. L. 1153--Proceedings for local improvements may be legalized by subsequent legislation,\[94\] the rule being that the legislature may cure by subsequent legislation defects consisting of acts or omissions which it could have declared immaterial in the first instance.\[95\] Where an improvement contract must be based upon an ordinance, so must a ratification thereof.\[96\]

SS 5. \_Proposals, contracts and bonds. Advertisements, bids, and awarding of contract.\_See e C. L. 1153--Failure to comply with statutory requirements as to notice to bidders is jurisdictional.\[97\] Bidding is not always necessary,\[98\] and unnecessary advertisement does not bind the authorities to the procedure applicable where advertisement is necessary.\[99\] The notice or call for bids must be given in the manner and for the time required by statute,\[9\] and must usually be made with reference to the plans and specifications of the work.\[9\] The specifications must be such as to leave room for free competition between the bidders,\[9\] and where this is not done the notice or advertisement will be invalid, as where patented or trade marked material is called for without any alternative,\[94\] but such is not the effect where such material is called

98. See 8 C. L. 618. See, also, post, SS 5, \[no publication where the paper was not pub-subd. Performance, and subd. Allowances of Claims and Recovery by Contractor. 118 SW 141. 14 Det. Leg. N. 231, 11 NW 1068. 142. 142.

City Hydraulic Press Brlck Co. v. National Surety Co., 157 F 620.

Note Questions as to what amounts to proper competition under statutory and charter provisions requiring that paving contracts be let to the lowest bidder have caused much difficulty where patented processes or proprietary materials have been involved. Such requirements are primarily for the protection and benefit of the tax-payer. His rights are paramount. while those of the contractor are subordinate. As a result it often appears that the decisions of the courts are more or less influenced by the consideration that a contract is being attacked by a taxpayer rather than a bidder of vice versa. Specifications or ordinances calling for a patented pavement or material and followed by the single bid of the parties controlling the patent brought the meaning of the words "lowest bidder" before the courts. A sharp conflict at once appeared in the two leading cases of Dean v. Charlton, 23 WIs, 590, 99-Am, Dec. 205, and Hobart v. Detroit, 17 Mlch. 245. The facts in both were the same, but the WIs-consin court held such a contract void, while the Michigan court held it valid. From these cases grew the so-called Wisconsin Rule and Michigan Rule, each of which has its adhererents. With changing statutes and cirmstances, however, courts have recaded from their original positions, have modified and distinguished, until it is difficult to state precisely upon which side of the controversy they stand. Still at times the conflict reappears as sharply as in the two leading opinions.

In the recent case of Stocking v. Warren Bros. Co. \[VWis.\] 114 NW 789, the question was involved. The specifications called for bids on four different kinds of paving. One of these was patented and controlled by the defendant company, which, as the sole bidder on that particular kind of pavement, submitted the lowest of all bids on the four kinds specified. Previously the defendant had offered to furnish all the necessary rights and material to any successful bidder at a fixed price. An action by taxpayers to enjoin the execution of the work was sustained on the ground that the statue required competition between bidders upon the same plan or process and was not satisfied by competition between different plans or processes. Timlin and Kerwin, JJ., dissented on the authority of Baltimore v. Flack, 104 Ml, 107, 64 A 702. It may be taken as settled that, in the absence of statute, municipal corporations are not bound to let their contracts to the lowest bidder, nor are they precluded from contracting for patented materials or processes. The fact that such a contract tends to create a monopoly does not make it void as against public policy. Bunker v. Hutchinson, 74 KAm. 651, 87 P 884; Dillingham V. Spartanburgh, 75 S. C. 549, 56 SE 881, 117 Am. St. Rep. 917, 8 L. R. A. (N. S.) 412. Then, too, when the statute uses the words "lowest responsible bidder," there is a large measure of discretion left to the municipal authorities. Reuting v. Titusville, 175 Pa. 512. Even if "responsible" be omitted, the letting of a contract calls for the exercise of some discretion. The conflict is whether "lowest bidder" calls for competition, and, if so, what must be the nature of that competition. The following cases may be said to directly support the Wisconsin Rule: Nicholson Pav. Co. V. Painter, 35 Cal. 699; Fishburn v. Chicago, 171 111. 338, 63 Am. St. Rep. 236, 39 L. R. A. 482; Siegel v. Chalcogeno, 233 Ill. 428, 79 NE 280; Monaghan v. Indianapolis, 37 Ind. App. 280; Fineman v. Paving Co., 116 Ky. 495; State v. Elizabeth, 35 N. J. Law, 351; Dolan v. New York, 4 Abb. Pr. N. S., N. Y. 381; 391; People v. Van Nort, 65 Barb. \[N. Y.\] 381. Also Burgess v. Jefferson, 21 La. Ann. 143, in so far as burdens on abutting property owners are involved. The Michigan Rule is directly supported by Holmes v. Detroit, 120 Mich. 226, 77 Am. St. Rep. 587, 45 L. R. A. 121; Barber Pav. Co. v. Hunt, 100 Mo. 22, 18 Am. St. Rep. 530, 8 L. R. A. 110; Swift v. St. Louis, 180 Mo. 80; and, though not directly in the case or passed upon, is cited with approval in Rhodes v. Board of Public Works, 10 Colo. App. 99; Sannders v. Iowa City, 134 Iowa, 122, 111 NW 529; Yarnold v. Lawrence, 15 Kan. 126; Baltimore v. Flack, 104 Ml. 107, 64 A 702; Newmark v. Bonnell, 57 N. J. Law, 424, 51 Am. St. Rep. 609. The great difficulty is that many cases, often cited as being on one side or the other of the controversy, arose under changed circumstances or requirements which forced the courts to modify their ear-lier holdings. Thus New York is claimed by the follow- ors of both rules. The two early decisions above certainly supported the Wisconsin view. But in the case of In re Dugro, 50 N. Y. 513, a contract calling for "Nicolson" payment was held valid, but on the ground that the statute gave the common council wide discretion. In the opinion it is said, "If, as alleged, there could be no competition for paving with the Nicolson pavement, the common council has nevertheless the power to cause the street to be paved with nally, in Bye v. Atlantic City, 73 N. J. Law, 402, it was held that bids could be called for upon special or patented material alone, provided anyone could obtain such material at a known fixed price before the bids were called for.

In other states the question has not been definitely passed upon. Colorado, while favoring the Michigan Rule, has only decided that where the abutting owners are given the right to choose a paving material they may properly petition for Trinidad Lake asphalt, there being no proof that it could not be purchased on the market. Rhodes v.

W. Shawnee County, 57 Kan. 267, La. 267, La.

for in the alternative with other materials or free competition is otherwise provided for.\* A limited discretion may be reserved in regard to the materials to be used,7 but not to such an extent as to leave any discretion as to the acceptance of the lowest bid, where such bid is requested by law to be accepted.\* Where the kind of material is left to the discretion of the municipal authorities, the exercise of such discretion is conclusive in the absence of abuse.\* In the absence of contrary provision, advertisements for bids must be in the English language and published in a newspaper printed in such language.10 The council having once acquired jurisdiction does not lose it by an abortive attempt to secure satisfactory bids, and may either readvertise,11 or, where the successful bidder does not execute the required contract, may award the contract to another bidder.12 Statutory designation of cases in which readvertisement may be made is not necessarily exclusive.13 Authority to have the work done either by a commission or to advertise for bids becomes single and non-elective after an election between the alternative methods authorized has been made.14 The contract need not be awarded to the lowest bidder where he is otherwise disqualified.18 Where there are several bona fide bids, the acceptance of one of them is not invalidated by the fact that there was also a sham bid.18 An ordinance accepting infexible rule that will not work misheflef, for each case must stand upon its own circumstances in determining whether there is in fact competition or not. The charter of New York city, which requires "a fair and reasonable opportunity for competition," seems to meet the situation. See 4 Mich. L. R. 78, and 5 Mich. L. R. 484, 485, 708.--From 6 Mich. L. R. 493.

- Specification of materials manufactured by certain concerns 1s not improper when coupled with some such qualification as "or some other, etc., equally as good." Glisonite Const. Co., v. Arkansas Mcalester Coal Co., \[Mo.\] 103 SW 93. Patented material may be specified in the alternative with other material equally as good. Campbell V. Southenthal Equilibria Co. \[Ky.\] 106 SW 1189.
- Whether owner of patent files agreement to allow successful bidder to use material on payment of fixed royalty. Lacoste V. New Orleans, 119 La. 469, 44 S 267. In such case, fact that owner does not have to pay such royalties does not change this rule, since his profit on the contract would begin only after deduction of his royalties. Id. A requirement that patented materials can be included in the specifications only under such circumstances as admit of reasonable competition, does not necessarily require the specifications in the several bids to be the same. Laws 1901, p. 642, c. 466, 1554, relating to paving in Greater New York, does not so require. Warren Bros. Co. V. New York, 190 N. Y., 297, 83 NE 59. Proposals held to comply with requirement as to reasonable opportunity for competition. Id.
- Specification of certain kind of brick, or other brick equally as good, to be approved by board of local improvements, held not to invalidate the ordinance providing for the improvement. Village of Oak Park V. Galt, 231 Ill. 365, 83 NE 209.
- Before bids are invited for a public building, the commission having the matter in charge must make the specifications so definite and certain as to material as to the amount of the bidder.18 An ordinance accepting the acceptance of the lowest bid. State v. \[McKenzie, 9 Ohio C. C. (N. S.) 105. In In-viting bids for a public building, the build-im commission are without authority to require bidders to include the total amount of their bids an arbitrary sum which the commission reserves the right to expend at. R. 78, and 5 Mich. L. R. 484, 485, 708.--From 6 Mich. L. R. 493.
- Specification of materials manufactured by certain concerns 1s not improper when coupled with some such qualification as "or some other, etc., equally as good." Glisonite Const. Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Arkansas Mcalester Coal Co., v. Mcalester Coal Co., v. Mcalester Coal Co., v. Mcalester Coal Co., v. Mcalester Coal Co., v. Mcalester Coal Co., v. Mcalester Coal Co.

10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 5. 1317

a bid is a valid acceptance though the vote is not entered of record as required by a general ordinance.\[17\] It seems that mandamus is available to enforce the right of a bidder to the contract.\[18\]

Where the local authorities are required by statute to make yearly contracts for the construction of certain improvements, contracts for a greater or less time cannot be made,\[19\] and this limitation cannot be evaded by terminating a yearly contract made and the execution of a new contract.\[20\] A recital of the municipality's authority in the contract estopped the municipality from denying its authority to make the contract.\[21\] Fraud or mistake will violate the contract and entitle the defrauded party to rescind,\[22\] unless he has waived such right or is estopped to assert it,\[23\] or unless the parties cannot be placed in statu quo.\[24\]

\_Form of contract.\_See * C. L. 1522.--The minds of the parties must meet as in the case of other kinds of contracts.\[25\] The municipality cannot urge as a defense to an action for breach of its contract that there was no formal contract other than the bid and its acceptance, where it has waived the execution of such contract.\[26\]

\_Particular contract provisions.\_See * C. L. 1522.--Where the contract is complete and unambiguous, and clearly covers the whole subject-matter, the negotiations and bids leading up thereto are merged therein.\[27\] Repairs may be stipulated for,\[28\] but not to such an extent as to increase the burden of the property owners\[29\] where the authority to assess is limited to original construction.\[30\] Stipulation that damages arising from the nature of the work shall be borne by the contract renders the contract and all other proceedings, including bonds and assessments, void.\[31\] This is a work done disclosed that the improvement contemplated was more difficult and expensive than previously contemplated, and will lie to compel county commissioners to hence that it could not again be let on such favorable terms. Long v. Athol \[Mass.\] SS 65.

use requires such action on their part and it appears by undisputed evidence or consecision in pleadings that one of the bidder is the lowest and best and that the commissioners are fraudulently colluding for the award of the contract to another bidder.

State v. Sandusky County Comms, 9 Ohio C. (N. S.) 210.

10, Whedon v. Lancaster County \[Neb.\] 114 NV 1102.

20, Whedon v. Lancaster County \[Neb.\] 114 NV 1102. Improvements must be commenced under the yearly contract in force at the time, though they cannot be completed before its expiration. Id.

Damange to taxpayers will be presumed where yearly contract is terminated before expiration and a less advantageous one made, Whedon v. Lancaster County \[Neb.\] 114 NV 1102.

21. Whitworth v. Webb City, 204 Mo. 579, 103 SW 86.

01. Contractors entitled to rescind for fraud or mistake in estimates, etc., furnished them. Long v. Athol \[Mass.\] SS 2NB 65.

01. Contractors held not estopped to re-send for false estimates, though they had access to the data from which a skilled drutsmann could have discovered the mistake. Long v. Athol \[Mass.\] SS 2NB 665.

01. Eided that upon reassign of contract for false estimates furnished by municipality it could be placed in statu quo by requiring it to pay merely the value of the work and material actually furnished, though the rule of property, and, having been declared by the court in former decisions, must be followed.32 The price must be a bona fide one.33 Whether certain items of the work are included in the price stipulated for is a matter of construction.34 Extras mean something beyond and in addition to the requirements of the contract,35 and allowance therefor depends upon the terms of the contract.38 Where provision is made for extra work, except that the price is not fixed for such work, the price agreed upon for the principal work may be considered.37 Some other provisions which have been construed are those relating to subletting,38 supervision,39 alterations,40 time and conditions of payment,41 and arbitration of disputes.42 A more or less arbitrary right

of work on acts of contractor. Woollacott \[it vold. Northwestern University v. Wyll-v. Meekin \[Cal.\] 91 P 612. 220 III. 80, 82 NEW 615. It is not lodg-32. Joyce v. Newmark \[Cal. App.\] 93 P \[ ging ion volde a discretion in a board and en-1041. 104. 33. A contract for the construction of a severe or decrease the quantities. or to be fraudulent as to price by the fact that particular," or to provide for a right of in-several elements of cost, estimated the work at 150 per foot. Burke v. Cleveland, 6 Ohio \[piment are prepared, or to permit the ac-1041. 33. A price stipulated for paying street held to include concrete foundation, and not confined merely to sheet asphalt surface. Fulleron v. Des Moines \[Iowa\] 115 NW 607. 33. C Concrete foundation necessary to bring street up to proper grade held not an extra where contract required contract to bring street up to such grade and pave with asphalt. Fulleron v. Des Moines \[Iowa\] 115 NWV 607. Under a provision for such extra compensation as is necessary to accomplish a certain purpose, the contractor can recover for only such extra work as is necessary to accomplish such purpose. Capital City Erick & Pipe Co. v. Des Moines \[Iowa\] 113 NWV 835. A stipulation against liability for extra will be abrogated or limited pro tanto by a provision subsequently added that certain extras will be allowed. Capital City Brick & Pipe Co. v. Des Moines \[Iowa\] 113 NWV 836. Representation by city that it had investigated the site by borings, and that the nature of the excavation necessary was as represented, held a warranty, entilting contractor to compensation for extra work caused by the fact that the work was more difficult than as represented. Id.

37. Price per foot of main sewer, fixed by court as price of extensions and tributaries constructed as extras. Talbott v. New Case-tie \[Ind.\] 81 NE 724.

01. Assignment of special tax bills by the contractor to secure the payment of money borrowed by him to enable him to perform the contract is not within a provision against subletting. Dickey v. Porter, 203 Mo. 1, 101 SWV 586. Employment of engineer by assignee to see that work was done in such manner as to sustain the tax did not render the assignment a subletting. Id.

01. Insmunch as the court in which assessment is confirmed must determine whether improvement is constructed in ac-cordance with the terms of the ordinance, the fact that it provides that the work shall be done under the supervision of the board of local improvements does not render \[c, C. A.\] 154 F 772.

of revocation may be reserved by the municipality,43 and where it is stipulated that the municipality may forfeit the contract for nonperformance, it may, upon such a forfeiture, enter into a new_contract with some other contractor.44

Footnote 43: The contractor is not a legal contractor, but it is not a legal contractor, but it is not a legal contractor.

\_Performance of contract.\_See 8 C. L. 1824--In the absence of fraud, the municipality is bound by the approval and acceptance of the duly authorized officer or commission.45 Likewise, it may be estopped by its acquiescence to complain of a variance from the plans.46 Trivial variations will not defeat a recovery, especially where the work has been approved by the engineer in charge thereof.47 Assessment of benefits in excess of the amount paid the contractor is an adjudication that the municipality has not been damaged by a variance from the contract as to the material used.48 Where the time of performance is not definitely fixed,49 the work must be completed in a reasonable time.50 Where a money penalty is attached to failure to perform within the stipulated time, the tax bills are not necessarily invalidated by failure to perform within such time,51 the question in such case being whether the performance was completed within a reasonable time,52 and the rule is the same when it is provided not only that the work shall be completed but that it shall be commenced and completed within a certain time.58 The contractor is bound by a stipulation that no extensions shall be allowed except upon the determination of certain officers.54 On the other hand the municipality may waive such limit 55 or may be estopped to assert it.56 Maintenance of the force originally prescribed by the engineer in charge will not relieve the contractor of the duty to complete the work within the time prescribed,57 and provision is sometimes made in the contract for the employment of an additional force if necessary to complete the work within such time.58 Where the engineer in charge acts in bad faith and in an unreasonable manner in requiring the work to be done under unfavorable circumstances, the contractor will not be concluded thereby.59

45. Reservation of righth to revoke street repairing contract whenever council should become satisfied that work was unnecessary. Only delayed held to give right of revocation upon such contingency, without notice to contractor, and though the delay was caused by inability to procure materials. Miller v. Atlantic City \[N. J. Law\] 68 A. 64. 44. City of Auburn v. State \[Ind.\] 68 NSE 97. 45. City of Jamestown v. Arter, 55 Misc. 629, 106 NYS 1027. \*\*Fraud is not shown by a variance from the contract as to material used where there is no evidence that such material was not suitable, but on the contrary there was evidence that it was suitable, and the work has been accepted and paid for by the duly constituted authorities.\*\*Id. \*\*46.\*\*Whitworth v. Webb City, 204 Mo. 579, 1038 SW 86. \*\*47.\*\*Ford v. Manchester \[Iowa\] 113 NW 846. \*\*48.\*\*City of Jamestown v. Arter, 55 Misc. 629, 106 NYS 1027. \*\*49.\*\*Requirement that work should be finished on certain date held indefinite when qualified by provision for forfeiture of certain sum for failure to complete it by such date. Paul v. Conqueror Trust Co., 125 Mo. App. 483, 102 SW 1070. \*\*50.\*\*Paul v. Conqueror Trust Co., 125 Mo. App. 483, 102 SW 1070. \*\*51.\*\*City of Sedalia v. Smith, 206 Mo. 346, 104 SW 15. \*\*52.\*\*City of Sedalia v. Smith, 206 Mo. 346, 104 SW 15. Time held unreasonable. GIIsonic Const. Co. v. Arkansas McAlester Coal Co. \[M.O.\] 105 SW 93. \*\*53.\*\*Though the money penalty expressly applies only to time of completion, it impliedly applies also to time of commencement. Merline v. Barber Asphalt Pav, Co., 125 Mo. App. 623, 103 SW 508. \*\*54.\*\*Where no such extension was obtained on account of inability to obtain use of city street roller and on account of weather, such matters were no excuse for delay. Paul v. Conqueror Trust Co., 125 Mo. App. 483, 102 SW 1070. \*\*55.\*\*Time limit for completion of state building held waived by acceptance of work and part payment, the delay, moreover, being contributed to by the fault of the state, J. J. Newman Lumber Co. v. Wemple, 56 Miles, 168, 107 NYS 818. \*\*56.\*\*The contractor cannot be held responsible for delays occasioned by the municipality's failure to furnish materials which contractor to furnish. J. J. Newman Lumber Co. v. Wemple, 56 Misc. 168, 107 NYS 318. \*\*57.\*\*McIntyre v. U. S., 40 Ct. CL 366. \*\*58.\*\*In such case the engineer in charge is not limited by a requirement that he must determine before the work begins the force necessary to complete it. McIntyre v. U. S., 40 Ct. CL 366. \*\*59.\*\*McIntyre v. U. S., 40 Ct. CL 366. \*\*Inter 1320 PUBLIC WORKS AND IMPROVEMENTS SS 5. 10 Cur. Law.

\_Allowance of claims and recovery by contractor.\_See 8 C. L. 1525--The contractor cannot demand acceptance and payment until the work has been completed,60 and a municipal board having complete charge of the improvement has implied power to determine when the work is completed,61 the contractor's remedy for a refusal to accept being as provided by the statute.62 In a proper case, mandamus is available.63 The contractor cannot recover until all conditions and requirements have been performed,64 including those imposed by the duly authorized engineer in charge,65 and where compensation is payable only upon certificate of performance no recovery can be had without such certificate66 unless its absence is due to the fraud or arbitrary or unreasonable conduct of the person whose duty it is to give it,67 and the facts upon which such excuse is based must be pleaded and proved.68 Where the contract is let as a whole, payment for a part only of the work cannot be enforced when the balance has not been done.69 The discretion of the municipal authorities in allowing claims is not an arbitrary one,76 and they have no power to allow claims clearly illegal and in excess of the terms of the contract.71 In the absence of fraud or mistake, equity cannot reform the contract so as to allow compensation not provided for therein.72 Failure of a contractor to present his claim for allowance as prescribed by statute will not bar an action thereon where such result is not within the penalty prescribed by the statute.73 A provision that no allowance will be made for extras unless the same is presented to a certain board is valid 74 and in such case the claim must be presented to the board as such.75

vention by engineer in charge of levele work held justified by high water, etc. Id.

60. Board of Com's of Jackson County v. Branaman \[Ind.\] 82 NE 65. Under Acts 1893,

P. 196, c. 112, as amended by Acts 1895,

U. S., 40 Ct. Cl. 366.

ways and providing that whole amount of contract shall not be paid until the road has been received as completed by board of

eentry commissioners, contractor cannot re-

every until road is completed (Id.), and

such acts contemplate that board shall fix a

time for determining question of completion at which any interested taxpayer may appear, and party aggrieved may appeal to

the result court (Id.).

61, 62. Board of Com's of Jackson County v. Branaman \[Ind.\] 82 NE 65.

63. Mandamus lies to compel officer charged with duty of issuing warrants in

payment for work to perform such duty.

State V. Com's of Drainage Dist. No. 1, Pagine County, 46 Wash. 474, 90 P 660. Action

to recover on contract, coupled with demand for mandatory order in ald thereof,

seeks legal and not equitable relief. Ford

v. Manchester \[Iowa11 113 NVW 846. Manamus to compel acceptance of the work and

issue of a warrant for payment is not avail-

able where the contractor has another adequate remedy. Contract for road improve-

ment under Acts 1893, p. 196, c. 112, as amended by Acts 1895, p. 146, y 63. Board of Com's of Jackson County v. Branaman \[Ind.\] 82 NE 65. Under the Indiana statute

relating to the construction of roads, no judgment can be recovered by the contractor against the county for money due him

under the contract, his remedy being man-

damus to compel the county board to perform its statutory duties. Acts 1895, p. 146, c. 63. Id.

64. Payment of claims. City & County of

heled justified by high water, etc. Id.

Denver v. Hindry \[Colo.\] 90 P 1028.

65. Election of structures required by

Branaman \[Ind.\] 82 NE 65. Under Acts 1893,

contract upon certain contingencies, and

P. 196, c. 112, as amended by Acts 1895,

required by officer in charge. McIntyre v.

143, c. 63, authorising improvement of high-

U. S., 40 Ct. Cl. 366.

ways and providing that whole amount of

66. In absence of fraud or arbitrary or

contract shall not be paid until the road

unreasonable conduct on part of engineer in

has been received as completed by board of

charge, contractor could not recover install-

county commissioners, contractor cannot re-

return without certificate of engineer, re-

cover until road is completed (Id.), and

quired by contract, as to progress of work.

such acts contemplate that board shall fix a

time for determining question of completion

at which any interested taxpayer may appear, and party aggrieved may appeal to

of engineer in refusing to give certificate of

circuit court (Id.).

61, 62. Board of Com's of Jackson County v. Branaman \[Ind.\] 82 NE 65.

63. Mandamus lies to compel officer charged with duty of issuing warrants in

payment for work to perform such duty.

State V. Com's of Drainage Dist. No. 1, Pagine County, 46 Wash. 474, 90 P 660. Action

to recover on contract, coupled with demand for mandatory order in ald thereof,

seeks legal and not equitable relief. Ford

v. Manchester \[Iowa11 113 NVW 846 10 Cu. Law. PUBLIC WORKS AND IMPROVEMENTS SS 6. 1321

Where the contractor sublets the contract, but is subsequently compelled, by the inability of the subcontractor to complete the work, to resume it, he is the proper party to recover any loss or damage for which the city is liable under the contract." A municipality cannot be held liable unless the mandatory provisions of the charter have been complied with, and contractors are bound to take notice of such provisions," and hence the municipality cannot be held liable upon a quantum merit where the contract is invalid." A municipality is not necessarily liable to the contractor because the work is done under the supervision and control of and by contract with a commission appointed by it." The usual rules as to varying the contract by parol evidence apply in actions on contracts for public improvements."

\_Enjoining performance of illegal contract.\_See * C. L. 1528--Taxpayers who will be injured may sue to enjoin the performance of illegal contracts," but a general tax-paper cannot sue to restrain the letting of a contract on the ground of the invalidity of the special assessment therefor," nor are they entitled to have the acceptance of the work enjoined, since no injury accrues to them until payment for such work." Payment of compensation in excess of that provided for by the contract may be enjoined."

\_Bonds.\_See * C. L. 1527

SS 6. \_Security to subcontractors, laborers and materialmen.\_See * C. L. 1528--Such security may be provided for by the contract." Where a subcontractor furnishes extras solely upon the credit of the contractor, the latter alone can be held liable therefor," and reference in a subcontract to the principal contract as being a part of the subcontract with reference to specifications does not incorporate into the subcontract provisions of the principal contract relative to extra work." Where the government provides in its contract for a limited liability to the original contractors, and the latter have given bond to pay for labor and materials furnished to them, and no provision is made by statute for the security of persons furnishing materials to subcontractors, the contractors are not liable for such labor or materials, and cannot

fee or on street held insufficient. Capital amended by Acts 1895, p. 143, c. 63. Board City Bruck & PIPe Co. V. Des Moines \[Iowa\] of Com'rs of Jackson County v, Branaman 113 NPV 835. \[Ind.\] 82 NE 65. **76.** Capital City Bruck & PIPe Co. v. Des Moines \[Iowa\] 113 NPV 835. **80.** Blassingame v. Laurens \[S. C.\] 61 SE 96. **77.** City & County of Denver v. Hindry \[Colo.\] 90 P 1028. **81.** Where assessments for paving were onerous, and in addition thereto they would have to bear their share of costs of paving, to be paid out of the general tax levy. Bennett V. Baltimore \[Md.\] 68 A 14. **82.** General taxpayer has no right of action until an attempt is made to defray the expenses of the improvement from the general funds. Merritt v. Duluth \[Minn.\] 114 NY 758. **83.** On motion to vacate injunction granted at instance of general taxpayers against payment of funds on illegal contract and restraining city from acceptance of the work, the court may and should modify the injunction by vacating the latter part, though no motion to modify is mado. Cawker v. Milwaukee \[VWs.\] 113 NPV 419. **84.** Fullerton v. Des Moines \[Iowa\] 115 NPV 607. **85.** Provision for withholding payment until claims against contractor have been paid held valid. City & County of Denver v. Hindry \[Colo.\] 90 P 1028. **86.** S7. Beattie V. McMullen \[Conn.\] 67 A 488.

maintain an action of interleader against a subcontractor relative to the title to and disposition of the amount due by the subcontractor for labor or materials.88

\_Bond.\_88e & C. L. 1888--The order in which the contract and the bond are executed is immaterial,89 and the recital of the bond as to the date of the execution of the contract is conclusive upon the sureties.99 So, also, the recital in the bond of the contract as valid and subsisting estops the sureties from asserting that it was ultra vires.91 The remedy of the materialman against the sureties will not be defeated by mere irregularities in the making of the principal contract,92 nor by a variance between the work and the specifications.93 A materialman may be debarred of remedy on the contractor's bond by reason of his participation in matters rendering the contract void,94 but knowledge of fraud or illegality in such contract must, in order to defeat the materialman's security under such bond, be such that, in furnishing the material, he can be regarded as an active agent in the promotion of such fraud or illegality.99 In the absence of discrediting circumstances or anything to raise suspicions, it need not be proved that the various items went into the work,94 it being sufficient in such case to show that the material was furnished in good faith for such work.97 Sureties on a bond given by a partnership are not released from liability for claims of laborers and materialmen because other persons were associated with the firm as partners in carrying out the contract.98 Limitations applicable to statutory bonds apply and run from the time the debt was contracted.99 An officer cannot be held liable for failure to take a bond for the security of labor and materials claims, where the duty of taking such bond is not imposed on him but on the municipality.1 The liability of municipalities in Michigan and Minnesota for losses sustained by reason of its failure to require the bond provided for by statute 2 is secondary and conditional upon the contractor's inability to pay.8 The privilege of a contractor to be sued on his bond in a particular place may be waived.4

88, Mosler v. Kurchhoff, 51 Misc. 432, 101

NTXS 643.

**89.** Bond to secure materialmen supplying

**95.** National Surety Co. v. Wyandotte Coal

material for construction of sewer under

**86.** National Surety Co. v. Wyandotte Coal

**87.** Paul city charter. Red Wing Sewer Pipe Co. v. Donnelly,

**88.** Rod Wing Sewer Pipe Co. v. Donnelly,

**89.** National Surety Co. v. Wyandotte Coal

102 Minn. 192, 113 NW 1.

**91.** Bell v. Kirkland, 102 Minn. 213, 113

**92.** Failure of municipality to obtain consent of property owners through whose property the sewer passed and the consent of the Federal authorities for the outlet on government land. Bell v. Kirkland, 102 Minn. 213, 113 NW 271.

**93.** Bond furnished government contractor by surety company pursuant to Act Aug. 13, 1834, 0. 282, 28 Stat. 279 (U. S. Comp. St. 1801, p. 2315), 11 in effect two separate instruments, one to secure government and one to secure subcontractors; and hence variation in work by government will not discharge obligation of surety company to subcontractors. United States v. California Bridge & Consat. Co., 152 F 659.

**94.** A materialman who has procured specifications calling for a brand of material of which he holds the trade mark cannot maintain an action on the contractor's bond for balance due for such material, the contract being invalid by reason of the suppression of bidding as to materials, and the bond being infected by the invalidity of the NW.

10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 8A. 1333

$\\it{Liens}^{\\rm{See}}$ s c. L. 1530.Liens for labor or material being purely statutory, their scope is necessarily a matter of statutory construction,5 as is also the procedure for the enforcement of such liens.9 Where the proceedings for the enforcement of such liens are purely in rem,7 the court has no jurisdiction of a cross bill by the contractor for an accounting between him and the municipality.8 The express consent of a state is not necessary to authorize foreclosure proceedings against it,9 and it may be estopped to claim exemption from such a suit.10

1384 PUBLIC WORKS AND IMPROVEMENTS SS 8B. 10 Cur. Law. of the commissioners.\[16\] Where an improvement is authorized by a municipal board prior to the acceptance of a municipal charter, but the petition and the appointment of the commissioners to ascertain damages are subsequent thereto, their duties and the duties of the municipality with reference to payment for the necessary lands are governed by the charter.\[17\] The right is sometimes given to set off damages against assessments,\[18\] and an exemption of property from assessment does not necessarily prevent the deduction of benefits from damages thereto.\[19\] The language of a notice given by the appraisers will be liberally construed to uphold their acts, especially in case of ambiguous phrases borrowed from the statute.\[20\] In an action against municipal officers for damages from an improvement alleged to have been unauthorized, parol evidence is admissible to show authorization by the council where the records are silent in regard thereto.\[21\]

(SS 8) _B. Establishment or change of grade of street.\[22\]_

SS 9. _Local assessments. A. Power and duty to make.\[See 8 C. L. 1835_Local assessments are made to pay for local improvements,\[28\] and the levying of such assessments is an exercise of the taxing power, and not of the power of eminent domain.\[24\] Such power is entirely statutory,\[29\] and the scope of the statutory authority is therefore necessarily a matter of statutory construction,\[28\] as are also matters relating to the time of the assessment\[27\] and date of payment,\[28\] and the mode prescribed by statutory._

16. Hull v. Phillips \[Mo. App.\] 107 SW 21.

Andrew employed by grantor to secure all-lowance of damage had no attorney's lien as against grante in conveyance before assessment where he did nottify grantee allowance of bills for such work, with of his contract with grantor. See Laws 1901, p. 46, SS 2 (Ann. St. 1906, SS 4937-2). Id.

17. In re Jerome Ave. in New York, 120 App. Div. 201, 105 NYS 315.

01. Right under an ordinance to set off condemnation award and damages sustained to property against assessment held not waived by taking city warrants for such award and damages instead of entering satisfaction of the amount thereof on execution defect and filling certificate of such satisfaction with city treasurer, etc., as provided by the statute. State V. Seattle \[Vwash.\] 94 P 656.

01. See New York City Charter, Laws 1897, p. 342, c. 378, SS 970 (Rev. Charter Laws 1901, c. 466, p. 1184), relating to damages assessable, and Laws 1879, p. 397, c. 310, exempting cemeteries. In re Jerome Ave, in New York, 120 App. Div. 201, 105 NYS 315.

01. Use of phrase "actual damages done to all other property" held not fatal, though admitting of construction that appraisers were to assess damages to property other than that through which street was to pass. Kansas City v. Napiceock \[Kan.\] 92 P 827.

Expression "to apprise and assess the actual value of the land proposed to be taken * * and the actual damages done to all other property * * and for the payment of such value and damages assess against said city, * * the amount of bene-fit to the public generally, and the remainder of such damages caused by the opening of said street against the property or the benefit district," held not subject to objection, being borrowed from the statute, though it might be susceptible to the construction that the appraisers were to assess against the city both the value of the land taken and the damages to other property, but against the property specially benefited

## 10 Cur. Law. Public Works and Improvements $ 9B.

**1325-**

**ute is of the essence of the power, which can be exercised legally only in the prescribed mode.**\[**29**\]\*\*

**Authority to assess for construction does not include authority to assess for repair.**\[**30**\]\*\*

**The duty to levy an assessment may be enforced by mandamus,**\[**41**\]\*\*

**but the courts will hesitate to interfere with the discretion of the city council in prescribing the location, nature and character of a local improvement.**\[**32**\]\*\*

**Under some of the statutes a demand upon the property owner is an essential prerequisite to the right to make an assessment.**\[**43**\]\*\*

**A special assessment cannot be levied to defray the cost of an improvement which will be ineffectual without.a further improvement.**\[**44**\]\*\*\*\*

**(SS 9)**

\_B. Constitutional and statutory limitations._See s C. L. 1936._**--**

**States relating to special assessments must conform to constitutional limitations,**\[**35**\]\*\*

**but the failure of the legislature to properly denominate the burden imposed as a tax or assessment will not invalidate the statute if it can be sustained as an exercise of the taxing power.**\[**46**\]\*\*

**Assessments for benefits are not subject, however, to the constitutional limitations relating to taxation in the ordinary sense,**\[**37**\]\*\*

**such as the limitations relating to double taxation,**\[**43**\]\*\*

**and the taking of property without compensation.**\[**38**\]\*\*\*\*

**As-**

**question was begun, under prior statutes**
**\[axes or perform municipal functions. City but not completed until after passage of such act. Morse v. Charles \[Mass.\] $ 3NE 891.**

**28. Provision that no deduction shall be allowed for benefits received in common with other properties did not prevent assessments from being made payable prior to construction of the work. Nalle v. Austin \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 54, 103 SWP 825.**

**29. People v. Kingston Common Council,**

**189 N. X, 64, 81 NE 567, rvp. 114 App. Div. 284, 99 NYS 657. See post, this section, subsection D. Procedure for Authorization. Statutes must be strictly followed. Bennett v. Emmettsburg \[Towal\] 115 NW 582. Must be made by legislative action of council. Mulligan v. Lexington, 126 Mo. App. 715, 105 SWP 114.**

**30. Construction and repair distinguished. City of Covington v. Bullock, 31 Ky. L. R. 685, 103 SWP 276.**

**31. A. Instance of holders of county warrants issued in payment for improvement. State v. Lewis County, 45 Wash. 42, 85 P 760. Fact that condemamation proceeding to acquire necessary property is pending is no defense to suit of holder of improvement warrants, but court should order such proceedings to be prefected and completed. Id. 32. Northwestern University v. Wilmette, 230 Ill. 80, 82 NE 616. To justify a holding that an assessment for an improvement is unreasonable and oppressive, the evidence must be clear and convincing. Id. 33. Gen. Laws 1896, c. 73, 81, relating to setting of curstones. Bowers v. Narragament. 34. Sekt Real Estate Co. \[R. L\] 67 A 324.**

**34. Gault v. Glen Elllyn, 285 Ill. 520, 80 NE 1046.**

**35. P. L. 1895, p. 95, held constitutional. Simmons v. Millville \[N. J. Law\] 66 A 895. Denver city charter provisions respecting creation and appointment of board of public works held constitutional. Jackson v. Denver \[Col.\] 92 P 690. Denver charter provisions creating board of public works with power to levy assessments, etc., held not in contravention of Const. art, 6, 8 35, prohibiting delegation to commission power to levy \[Towal\] 1325-**

**whereby certain procedure is prescribed to obtain consent of majority in value, and a forum to determine whether such consent has been obtained. Id. The legislature can- not determine for itself whether such consent has been obtained. Id. Laws 1907, p. 389, c. 252, relating to paving, etc., and. Stevers in certain townships, held unconstitutional as an attempted delegation of legis-native powers to individuals. Martin v. Holer \[N. D.\] 115 NW 256. Not contrary to. provision against special or local laws where the statute applicable generally throughout the state, though application to particuar localities in particular instances is made condition upon petition of property owners. St. Benedict's Abbey v. Marion County \[Or.\] 93 P 221.**

**36. In re Water Front in New York, 190 N. Y. 350, 83 NE 299.**

**37. Nalle v. Austin \[Tex, Civ. App.\] 18 Tex. Ct. Rep. 54, 103 SWP 825.**

**38. An assessment does not constitute double taxation because bonds are also issued to pay for work. Edwards House Co. v. Jackson \[Miss.\] 45 S 14.**

\*\*39. Edwards House Co. v. Jackson \[Miss.\] 45 S 14. An assessment for benefits,"though collectible prior to the construction of the improvementsessment statutes may be retroactive.\[40\] As a general rule the assessment must be based on benefits conferred,\[41\] but it is held that certain assessments may be made regardless of benefits.\[42\] Special assessments are not within limitations upon the amount of municipal indebfedness,\[43\] or as to submission of proposed indebtedness to the vote of the people.\[44\] The legislature may itself fix the sum to be raised\[48\] and prescribe the benefit district,\[44\] or both of such matters may be delegated to a local board or body,\[47\] the legislature being vested with a wide discretion in this regard.\[48\] General laws upon the subject of special assessments for local improvements may be superseded by municipal charters.\[49\]

\_Equality and uniformity.\[See * c. L. 1850.--Assessments in proportion to benefits do not violate constitutional provisions relative to equality and uniformity of taxation,\[50\] and a reasonable classification of properties for the purpose of such assessments is permissible,\[51\] but discrimination between individuals cannot be made,\[52\] and the liability to and the amount of the tax cannot be left to pure accident having no just relation to the subject.\[53\] The fact that the entire municipality will be bene 10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9B. 1327

fitted by a proposed improvement does not invalidate the assessment of those specially benefited thereby,\[54\] but the assessment must be equally and ratably apportioned among those benefited.\[55\] Under some circumstances the result reached under the front foot rule may be the same as that under the benefit rule,\[56\] and a statute authorizing a levy for street improvements according to front foot rule is not unconstitutional,\[57\] equal benefit being presumed from fact of assessment according to front-age.\[58\] Equality is not necessarily dependent upon an apportionment of benefits, however, and the legislature may provide other modes for fixing the amounts of the respective assessments.\[59\] The question. as to the necessity of benefits as a basis for assessments is often considered from different points of view, with more or less actual or seeming conflict.\[60\]

\_Competitive bids.\_See 5 C. L. 1858--The work for which the assessment is levied is sometimes required to be let upon competitive bidding to the lowest bidders,\[51\] and such a requirement cannot be evaded by letting the work upon separate contracts.\[62\]

\_Due process of law.\_See 5 C. L. 1858--Notice and opportunity to be heard satisfy all the legal requirements necessary for the protection of private rights,\[63\] and an assessment on property benefited is not a deprivation of property without due process of law where the owner is given an opportunity to be heard\[54\] and failure to fix a definite time for hearing and production of witnesses does not constitute a violation of

p. 351, c. 466, SS 822, providing that where a part of a water front propriator's property is taken for water front improvements the 58. Northern Pac. R. Co. v. Seattle, 46 difference between the entire premises and the value of the balance after the improvement shall be the measure of the compensation for the part taken, held violative of the 14th Amendment. In re Water Front in City 1980 N. Y. 350, SS 3N EE 299.

54. Though a system of sewets installed will benefit the entire municipality, if it is used is to be paid for by specially benefits the property assessed, it is a local Improvement. Northwestern Uni-, wider, an assessment for costs of paving versity v. Wimlette, 230 Ill. 80, SS 2NE 615.

01. Special assessment cannot be authorized by statute except in proportion to the benefits received. Stevens v. Port Huron, 149 MICh, 636, 14 Det. Leg. Neg. N. Y. 68, 81 NE 557, rye. 114 App. Div. 291. Assessments must be based on benefits received. People v. Buffalo, 57 Misc. 17, 107 NYS 281. Sewer assessment held invalid canthouse, and separate contracts, identical as not in conformity with the benefit rule, in terms, parties, etc., were made as to walk Bennett v. Emmetsburg \[Iowa\] 115 NW 582, in front of each lot. People v. Lamon, 232 Exclusion of property benefited renders the 58. New York, etc., R. Co. v. Hammond Simmons v. Millville \[N. J. Law\] 66 A 895.

The mere fact that the assessment does not Rev. St., providing for the improvement of exceed the benefits does not validate it -- constitutional provisions as to due process of law where provision is made for notice and filing of objections.\[65\] It is even held that an assessment for benefits without a hearing is not a deprivation of property without due process of law,\[66\] and that notice to the property owner is not essential.\[67\] Failure to provide for a hearing is cured by provision for an appeal and a full hearing thereon.\[68\] The assessment being upon the property and not upon the owner, one acquiring property pending the work or after completion thereof, but before assessment, is not deprived of property without due process of law by the assessment.\[69\]

(SS 9) \_C. Persons, property, and districts liable, and extent of liability,\[68\]\_s_c. L. 1532--Local assessments are primarily imposed upon the property and not the owner thereof,\[69\] and in some states cannot be made basis of a personal liability of the owner.\[71\] The separate ownership of lots forming a block must be considered, however, in levying the assessment, which must be upon the separate lots and not the block.\[72\] Ordinarily an assessment must be in accordance with the law in force when the proceedings therefor were begun.\[73\]

As a general rule the basis of local assessments is the benefit accruing from the improvement,\[74\] but this rule is far from being universal in its application, and property is sometimes assessed without regard to benefits,\[75\] or because of the fact that the owners have participated in rendering the improvement necessary,\[76\] or according to the foot frontage of the property abutting on the improvement.\[77\]

- **65. Opportunity to file written objections**

especially benefited thereby, in absence of held due process of law. Reed v. Cedar provision for any other rule of apportion-rapids \[Iowa\] 111 NV 1013.

ment, must be construed to mean that the 66. Naylor v. Harrisonville, 207 Mo. 341,

topored shall be distributed in proportion

67. The local improvement act of 1897 is not unconsontutional in that it fails to pro-

tracts respectively, as estimated by the ap-

vide for notice to owner of property as-

passers. Kansas City v. Napiceek \[Kan.J sessed. McChesney v. Chicago, 227 Ill. 450,

92 P S2T. In as much as payment of an as-

$1 NE 435. Publication of ordinance creates

essessment for a street improvement can be

img improvement district, the notice for bids, and the ordinance levying the assessment,

resulted to the abutting property, neither the

held sufficient. City of Perry v. Davis, 18

OKI. 427, 90 P S65. An opportunity to ap-

as to the plans and specifications to be adopt-

pear and be heard is not necessary where

ed, not an honest difference of opinion among

the legislature has fixed the mode of assessment in advance so that the amount of each

ad a proposed improvement beneficial, is a

assessment is determined solely by a match-

sufficient basis upon which to rest a valid as-

matteal calculation. Sewer assessment on

sessment, where the event has shown that

each lot fixed in proportion which area of

such lot bears to area of whole assessment

district. Id.

#8. Reed v. Cedar Rapids \[Iowa\] 111 NW v. Cincinnati, 5 Ohio N. P. (N. S.) 49. As-

1013.

#9. Morse v. Charles \[Mass.\] 83 NE 891.

#9. M. Heman Const. Co. V. Wabash R. Co.,

#70, M. Heman Const. Co. V. Wabash R. Co.,

#26 Mo. 172, 104 SW7 67.

#72. Where three lots held by different

owners form a flat-from or wedge-shaped

plot, bounded on three sides by public

streets, the assessments for improving the

adjointing streets should be level on each

lot separately, although all three form a

single parcel and are used at the time for a

common purpose; and such assessments

should be based on the shorter frontage of

each lot. McMaken v. Hayes. 10 Ohio C. C. (N. S.) 38.

**73. Monroe v. Cleveland, 9 Ohio C. C. (N. S.) 523.**

\*\*74. See ante, this section, subsection B,

**75.** Backlying lots not benefited by street

Provision that appraisers shall assess a

part of cost against property within special

Red district which shall in their opinion be

#1.

10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9C. 1329

Under the benefit rule, various elements must be considered in determining the extent of the benefit," including the value of the property 70 and its foot frontage on the improvement," an assessment according to such frontage being sometimes equivalent to an assessment in proportion to benefits,81 and unless the contrary appears such an assessment will be sustained.82 Increase of market value is not the sole test,83 nor is liability to assessment for benefits dependent upon the location of the property,84 nor upon the use which is made of the property,85 nor upon benefits to others than the owners.86 One is not exempt from an annual assessment merely because not assessed in former years,87 nor is liability affected by the question of enforceability of the assessment.88 Private improvement by the owner may exempt the property from assessment,89 but such result does not necessarily follow.90 A fee ,

1893, p. 305), SS 65, 66, SS 21,10, relating to improvement of streets. Oliver V. Newberg (Dr.) 91 P 470, Under Laws 1890, p. 45, 37,

whenther or not abutting property has been left (Rev.) 16 (Rev. Proc. SS 1304), amending Comp. 1887, 8, 974, the assessment per front took 18 same as under the law before amended, and is ascertained by dtivid.

In the total cost of the street improvement, the motion thereof is within the discretion of number of feet fronting or abutting upon the same. Brandhuber v. Pierre (S. D.) 113 , W. Hayes, 10 Ohio C. C. (N. S.) 18.

84. It is not always essential that a lot should shut upon the Improvement in order to be benefited. McGillvery v. Lewiston, 13 Idaho, 383, 90 P 248. Under a general provision for assessment upon property benefit, it is not essential that the property assessed about on the improvement, under Laws 1903, p. 22, 12, 160, relating to streets. Kansas City v. Napiceek (Kan.) 92 P 827. Property adjoining the locality to be affected in any property adjoining or near the improvement which is physically affected or the value of which is commercially affected directly by the improvement to a degree in excess of the effect upon property in the municipality generally. Board of Imp. v.

Ofchhauser (Arl.) 105 SW 268. Under

Comp. St. 1897, e. 12a, 810, special assessors.

ments may be levied to pay for property ap-

appropriately for bolverd purposes upon all

property specially benefited, regardless of its location with relation to the improvement. State V. Several PACS of Land \[Neb.\] 113 , N.Y 248.

85. Ranked right of way held assessable for street improvement. Herman Const. Co.

01. V. Whabash R. Co., 206 Mo. 172, 104 SW 67; Northern Pac. R. Co. v. Seattle, 46 Wash.

01. Where attatute required assessment according to benefits and to foot frontage. Blackwell v. Coeur D'Aleme, 13 Idaho, 357,

90 P 353. An ordinance creating an improvement district and directing an assesment upon all abutting property according to frontage is a legislative determination that

such property will be benefited, and in the absence of fraud or arbitrary action such

determination is not revivable by the court. Northern Pac. R. Co. v. Seattle, 46 Wash.

Wash. 674, 91 P 244. Where the amount of

a sewer assessment does not exceed the

special benefits to the land, the assessment is not rendered invalid because leveled in

terms by the abutting foot. Kibier v. Newberg, 4 Ohio N. P. (N. S.) 641.

83. Churches, factories, and perhaps railroads, held benefited by sewer, in regard to

their use if not their market value. Elim-

10 Cur. L. -84.

simple title is not essential to liability for an assessment."1 A municipality cannot grant special exemption in favor of particular property,"2 but such exemptions may be and are granted by statute."83

ment leveled on his land. Pontificial College ! 71: New York v. Second Ave, Co., 102 N. Y. v. Kleell, 5 Ohio N. P. (N. S.) 241,

90, Property not exempt from sewer assessment because it has private sewer discharge into river, especially in view of legislation for protection of rivers from pollution. Simmons v. Milleville \[N. J. Law\] 66 A 895. A property owner who is provided with a drain leading to a cess pool on his own property is not, on the ground that he is already provided with local drainage, exempt from assessment for a sewer laid in the street, having a proper outlet, and built

"lands," "buildings," "houses," "lots," in conformity with the requirements of the state. Kibler v. Newwark, 4 Ohio N. P. (N. S.) 641.

91. Railroad company assessable as owner

of right of way. Northern Pac. R. Co. v. 177; State v. County Dist. Co., 31 Minn. 354;

Street railroad track and right of way

held not within Ballinger's Ann. Codes & R. Co. v. Winnersho County, 89 Vis. 438,

St. 796, authorizing assessments upon

"lots, blocks, tracts and parcels of land"

v. Houston Co., 92 Tex. 129, and the cases

benefited. City of Seattle v. Seattle Elec.

Co. \[Vwash.\] 94 P 194. Street railroad franchise

Conn. 422, p. Ann. Rep. 399; Kuehner v. Freebase to operate cars in street held not within Ky. St. 1903, 81 3564, 3566, 3587, 3571,

872, relating to assessment on lots and parts

of lots abutting on the street to be improved.

City of Maysville v. Maysville St. R. & Transfer Co. \[Key.\] 108 SW 960.

193. The principal case is of interest

001. Cur. Law. PUBLIC WORKS AND IMPprovements SS 9D. 1331

One cannot be assessed with a lump sum for separate improvements where he is not benefited by them all.94 The costs of different improvements cannot, therefore, be lumped and a property owner assessed with a certain proportion thereof where the costs of the several improvements are required to be assessed against property owners upon different principles.95 Where the law specifies the depth to which property is assessable on one side of a street, the local authorities must assess the property on the other side to an equal depth.96 The action of the local authorities in including or excluding property from an assessment district is conclusive in the absence of fraud,97 and, unless injustice is apparent in the assessment of the expense incurred in ditch improvement proceedings, a court of equity will not disturb the findings of the county commissioners.98

Only such items of expense may be included in an assessment as are considered, in legal contemplation, to be reasonably necessary and incident to the improvement.99

(SS 9) _D. Procedure for authorization, levy, and confirmation of assessments._

_Status, ordinances and jurisdiction of proceedings._,86e & C. L. 1344. Assessment procedures must be based on an existing statute.1, 2, 3 The presumption in favor of assessment statutes cannot be invoked to deprive property owners of property rights.4 An assessment ordinance must be in conformity with the appropriate statute,9 and

- **98. Mason v. Fulton County Com'rs, 10**
- such lands to liable to only such assessments
- as may be laid after the exemption has been
- \*\*99. Assessment held void as including ille-
- **99.** Assessment for grading of several
- sites, one of which relator's property did
- **99.** Under Kingston City charter, Laws
- **189.** 99.

must be passed in the manner provided by statute \[e\] and by the required majority.\[7\] The validity or invalidity of an ordinance providing for the improvement is immaterial where such proceedings are sustained by statute providing directly therefor.\[8\] A resolution for an improvement to be paid for by general taxation will not support a special assessment,\[9\] and where such a resolution is adopted, property owners have the right to assume that the method will not be changed.\[10\] The ordinance must describe the work,\[11\] but a change of the plans will not necessarily invalidate the assessment, nor is a variance in this regard necessarily fatal.\[12\] An assessment ordinance is not within a statutory provision relating to publication of ordinances of a general nature.\[13\] Such an ordinance may be published on Sunday.\[14\] To establish a mistake in the proceedings of a city council preliminary to the making of an improvement, the proof must be clear and satisfactory,\[15\] and to constitute an estoppel to make a reapportionment there must have been reliance on the ordinance as originally adopted.\[18\]

A property owner may attack the jurisdiction of the authorities to levy the assessment,\[17\] and may dispute the records of the municipal council and ministerial officers in this regard.\[18\] Where the ordinance prescribes a time limit for the comb-properly made for an assessment under \[0, Bennett v. Emmetsburg \[Iowa\] 115 Nvw $1536-250, notwithstanding the adoption of the resolution of necessity was prior to that date. King v. Dayton, 6 Ohio N. P. (N. S.) 365. Where the record discloses that at the meeting of the city council at which there were proceedings with reference to a street improvement and the assessment therefor, certain members of council were present just prior to the taking of the vote, and does not disclose that any of the members left the room before voting, and it is definitely stated that the particular resolution and ordinance was passed by a certain number of votes being "Yeas," and the number of "yeas" le the same as the number of members previously recorded as present, there is a substantial record of compliance with the statutory provisions requiring the vote of the council for street improvements to be by "yeas" and "nasy," although the court does not approve of the form of the record. McMakken v. Hayes, 10 Ohio C. C. (N. S.) 38. 7. Requirement under Laws 1003, p. 63. $ (Ann. St. 1906, $ 5747-8), of two-thirds (N. S.) majority to pass improvement and assessment ordinance, held mandatory, and ordinance not so passed was void. Cox v. Mignery \[Mo. App.\] 105 SW 675. Same presumption of validity is indugled in favor of municipal ordinance as in favor of acts of the legislature, and hence in the absence of any showing to the contrary an assessment ordinance will be presumed to have been passed by the requisite majority. Id.

Burbet of proof to show contrary is on party attacking the ordinance. Cox v. Mignery \[Mo. App.\] 105 SW 675. >>\_Evidence held to show that ordinance was passed by requisite majority. Cox v. Mignery \[Mo. App.\] 105 SW 675. Minute book and entries by clerk and testimony of clerk and members of council held admissi-ble on Isene as to whether ordinance was passed by requisite majority. Id.

S. Hardwick v. Independence \[Iowa\] 114 Nvw 14.

B. Bennett v. Emmetsburg \[Iowa\] 115 Nvw $1536-250, notwithstanding the adoption of the resolution of necessity was prior to that date. King v. Dayton, 6 Ohio N. P. (N. S.) 365. Where the record discloses that at the meeting of the city council at which there were proceedings with reference to a street improvement and the assessment therefor, certain members of council were present just prior to the taking of the vote, and does not disclose that any of the members left the room before voting, and it is definitely stated that the particular resolution and ordinance was passed by a certain number of votes being "Yeas," and the number of "yeas" le the same as the number of members previously recorded as present, there is a substantial record of compliance with the statutory provisions requiring the vote of the council for street improvements to be by "yeas" and "nasy," although the court does not approve of the form of the record. McMakken v. Hayes, 10 Ohio C. C. (N. S.) 38. 7. Requirement under Laws 1003, p. 63. $ (Ann. St. 1906, $ 5747-8), of two-thirds (N. S.) majority to pass improvement and assessment ordinance, held mandatory, and ordinance not so passed was void. Cox v. Mignery \[Mo. App.\] 105 SW 675. Same presumption of validity is indugled in favor of municipal ordinance as in favor of acts of the legislature, and hence in the absence of any showing to the contrary an assessment ordinance will be presumed to have been passed by the requisite majority. Id.

Burbet of proof to show contrary is on party attacking the ordinance. Cox v. Mignery \[Mo. App.\] 105 SW 675. >>\_Evidence held to show that ordinance was passed by requisite majority. Cox v. Mignery \[Mo. App.\] 105 SW 675. Minute book and entries by clerk and testimony of clerk and members of council held admissi-ble on Isene as to whether ordinance was passed by requisite majority. Id.

S. Hardwick v. Independence \[Iowa\] 114 Nvw 14.

B. Hardwick v. Independence \[Iowa\] 114 Nvw 14.

B. Bennett v. Emmetsburg \[Iowa\] 115 Nvw $1536-250, notwithstanding the adoption of the resolution of pletion of the work, time is thereby made of the essence of the proceedings, and jurisdiction to proceed may be lost by delay.\[10\] The filing of plans and specifications may likewise be jurisdictional,\[20\] as may also the giving of notice,\[21\] but since the legislature could in the first instance levy an assessment and apportion the same without notice, it may validate an assessment made by commissioners without the statutory notice by adoption of such assessment by way of reassessment.\[23\] A charter provision for notice is not rendered invalid by failure to specify the time and place for the hearing,\[28\] or to specify the tribunal,\[24\] nor is an ordinance invalid for failure to specify such time and place where it specifies the tribunal.\[25\] In proceedings by a city for improvements, the city, county and state in which the property affected_is situated need not be specified.\[20\] A finding as to jurisdiction must be specific.\[27\]

_Essential prerequisites to assessment.\[28\]_ S C. L. 1846.\[29\]\_--Statutory requirements must be strictly complied with.\[28\] The assessment must be made by the officers designated by law,\[29\] and cannot even by agreement be committed to others.\[20\] When the statute requires the assessment to be levied by a board or commission, no levy can be made without a legally constituted meeting.\[31\] An order appointing assessment commissioners must recite their statutory qualifications.\[82\] A valid assessment cannot be based on defective work.\[33\]

_Defective or excessive assessments.\[28\]_ S C. L. 1846.\[29\]\_--Defects and irregularities not jurisdictional and which do not mislead the property owner will not invalidate the assessment,\[34\] and such irregularities are waived by appearance and objection to the 19. Where ordinance required work to be completed 90 days from execution of con- tract, and contract was not executed for elevon months after it was awarded, the tax bills were void, though the work was completed within 90 days from execution of contracts. City of Marshall v. W1sdom, 127 Mo. App. 640, 106 SW7 1078.\[30\]. Filing of plans and specifications by engineer charged by ordinance with duty of films and making same held jurisdic- tional under Rev. St. 1899, & 5898 (Ann. St. 1906, p. 8024), and tax bills issued to con- tractor were vOf where plans prepared by him were accepted and filed. Barber Ashad- phalt Pav. Co. v. O'Brien \[Mc. App.\] 107 SW7 25. City engineer may testify that filing marks endorsed by him on plans and specifications are false as to date. Id.\[31\]. Where notice is required, failure to give it is a jurisdictional defect. Subdry v. Graves \[Ark.\] 103 SW7 728; City of St. Louis v. Brinckwirth, 204 Mo. 280, 102 SW7 1091. Failure to give the required notice and to afford an opportunity to be heard before confirmation is fatal to jurisdiction.\[32\]. A 124.\[33\].

1334 PUBLIC WORKS AND IMPROVEMENTS SS 9D. 10 Cur. Law.

levy on other grounds.\[88\] Where the excess is susceptible of mathematical calculation, it does not render the whole assessment invalid.\[86\] A property owner cannot take advantage of excessiveness until he has paid or tendered the valid amount.\[87\]

_Assessment roll or report.\[88\]_ See 8 C. L. 1548--The assessment roll must be made by the duly authorized officer \[88\] and must be proved as required by law.\[89\] It must definitely describe the property assessed.\[40\] The court has power to determine what changes shall be made therein and the manner in which they shall be made, and its order in that connection must be incorporated in the record.\[41\] It may, if justice requires, annul the entire assessment, but it cannot make an original assessment, nor can it require the officer who made the original roll to make a new one according to his discretion.\[42\] Changes in the assessment roll must be governed entirely by the order of the court, and are limited to the changes thereby required.\[48\]

_Confirmation of assessments.\[88\]_ See 8 C. L. 1548--Where the assessing board has granted a stay, it may confirm the assessment notwithstanding such stay, thereby revoking the same.\[44\] In order to be entitled to a continuance on account of absent witnesses, the party applying therefor must show reasonable diligence in preparing for trial and the reason of the absence of such witnesses.\[48\] Affidavits offered in support of a continuance cannot be considered on the hearing unless offered in evidence thereon.\[49\] The question of benefits is one of fact, to be determined from the evidence.\[47\] Objection that the improvement will injure an adjoining municipality can be raised only by such municipality.\[48\] Where the only issues are whether the objector's property was assessed beyond the benefits or for more than its proportionate share, the question whether the improvement should be made is immaterial.\[49\] Where the contents of the notice of the confirmation proceedings are prescribed by statute, other matters need not be included.\[50\] A variance between the assessment roll and

ficient ground for setting aside the whole assessment unless it is shown that prejument for street improvement on the ground -dice has resulted to the plaintiff by reason that a stay order has been granted until the set of such informality. Ridenour v. Biddle, 10

shc: C. C. (N. S.) 438.

shc: That street in which sewer was to be laid was not sufficiently described in notice

cago, 227 Ill. 450, 81 NE 435.

of intention to make the levy. Reed v. Cedar Rapids \[Iowa\] 111 NWV 1013.

shc: Hallett v. U. S. Security & Bond Co, 46. Statement of the court on refusing a continuance that the village would be required to admit that objector's witnesses, if present, would testify to the matters set out in the admitavits offered in support of the be made therein except upon order of the continuance, did not put such court. Chicago, etc., R. Co. v. Chicago, 230

shc: Hallett v. U. S. Security & Bond Co, 46. Statement of the court on refusing a continuance that the village would be required to admit that objector's witnesses, if present, would testify to the matters set out in the admitavits offered in support of the motion for the continuance, did not put such afflavits or their contents in evidence where they were not offered by the objector. Vili-

shc: Hallett v.

- 10 Cur. Law. PUBLIC WORKS AND $\\cdot$IMPprovements SS 9E. 1335
- 10 the notice of the confirmation proceedings as to matters not required to be contained in the notice is immaterial. \[51\] An order of confirmation includes a finding that the property was in fact benefited, \[52\] but confirmation is not an adjudication of any indebtedness to the municipality. \[58\] Where the proceedings are regular and notice of hearing is given, confirmation of the assessment settles all questions which should have been raised on the hearing, \[54\] and irregularities not affecting the jurisdiction of the court are cured. \[58\] The parties cannot by stipulation entered into prior to confirmation confer jurisdiction upon the court to set aside the order of confirmation after it has lost jurisdiction of the case, \[58\] and equity will not, therfore, enforce such stipulations, \[57\]
- (SS 9) \_E- Reassessments and additional assessments.\_See s C. L. 1548--Provision is generally made for reassessment where the original assessment is invalid or is vacated or set aside, \[58\] and defects in the improvement contract may thus be cured, \[59\] as may also failure to assess property liable to assessment \[60\] and formal defects in the assessment proceedings \[61\] and in a proper case the court in making such reassessment may adopt the original assessment. \[62\] Where an assessment is set aside by the courts, it is nullified, and a new assessment is not merely a different mode of collecting the former assessment, but is a distinct proceeding, \[63\] but may be based upon the original proceedings for the improvement. \[64\] A reassessment is not precluded by a judgment declaring the contract for improvement void for failure to comply with statutory requirements, \[58\] nor does delay occasioned by an injunction preclude the re-
- 10 Rev. St. 1905, c. 24, SS 547, does not require
  1336 PUBLIC WORKS AND IMPROVEMENTS SS 9F. 10 Cur. Law. assessment as soon as the restraint of the injunction is removed.\*\* An adjudication as to the former levy will not apply to subsequent levies unless plainly intended to do so.**\[97\] Where the liability of the city is dependent upon the liability of the property benefited, the city is not liable for loss which may accrue by reason of a reapportionment of the property in the assessment district.**\[98\] Where an additional levy is authorized to meet a contingency, such levy cannot exceed the amount necessary to meet the contingency on which it is based.**\[99\] Where the additional levy is dependent upon an official certificate of a contingency necessitating such levy, the certificate must state the facts showing such contingency.**\[70\] Authority to levy an additional assessment to complete the work does not authorize such a levy after the completion of such work.**\[71\] (SS 9) _F. Maturity, obligation and lien of assessments._\[86\] **S C. L. 1850.-Assessment liens as such are purely statutory,**\[72\] but the lien of judgment making an assessment relates back to the beginning of the proceedings in which it is rendered, regardless of the validity of the statutory lien.**\[73\] The legislature may provide for priority of the lien over liens and encumbrances existing prior in time to the inception of the statutory lien.**\[74\] Whether such was the intent of the legislature is a matter of construction of statutes,**\[75\] and assessment statutes being an exercise of the sovereign prerogative of taxation, any statutory construction seeking to ascertain the legislative intent must necessarily have special regard to the public necessity upon which the exercise of such power is based.**\[99\] The scope and duration of the lien are matters of statutory construction,**\[75\] and it is held that such lien is not divested by a tax sale of the property,**\[99\] nor by condemnation of land to which it attaches until the title of the owner has been divested.**\[99\] One paying assessment on lot of another is subrogated to lien of the municipality.**\[99\] Questions as to the enforcement of liens are treated in a subsequent subsection of this section.**\[100\] **of the work. State v. Blue Earth County** **uses the phrase "with which the said property may become charged," the act, however, being merely a re-enactment of Act** **Rep. 1834 (P. L. 18). Haspel v. O'Brien, 218 Pa. 146, 67 A 128. 76. Shaler v. McAleese \[N. J. Eq.\] 68 A 416. 77. Under Gen. Laws 1896, c. 48, 8 2, and c. 72, 8 21, curbing assessments do not become an enenumbrance on the property until included in the next tax assessment. Bowers v. Narragansett Real Patuate Co. \[R. I.\] 67 A 521. Borough act, 4 45 (P. L. 1897, p. 307), as amended by P. L. 1906, p. 87, where taken in connection with borough act 1897 (P. L. p. 361), 87, providing for payment of assessments in yearly instalments, gives lien for two years after maturity of last** **Instalment. Voorness v. North Wildwood** **Instalment.** Voorness v. North Wildwood\*\* **Instalment.** Voorness v. North Wildwood\*\* **Instalment.** Voorness v.\*\* \*\*Instalment.

10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9H. 1837

(SS 9) \_G. Payment and discharge.\_See * C. L. 1851.--The contractor cannot prior to the letting of the contract, make a valid agreement with a property owner to allow the latter a discount on his tax bill,82 as such an agreement would show either fraud or corruption,88 but the same considerations do not necessarily attach to a discount made after the completion of the work.84

(SS 9) \_H. Enforcement and collection. Mode of collection.\_See * C. L. 1852.--An assessment lien may be enforced against the whole or a part of the abutting property,88 and such lien may be enforced against the property of persons under legal disability in the manner prescribed by law.86

\_Warrant or tax report.\_See * C. L. 1852.--A special tax bill must be properly signed by the duly authorized officer,87 but, unless so required by the statute, it need not recite every step necessary to its validity,88 and, where it is made prima facie evidence of the regularity of the assessment proceedings,88 it need not recite notice to the property holders.89 Such a bill is not invalidated in too by the inclusion of unauthorized items,91 and in a suit on the same the court may render judgment for the proper amount without interest.92 The validity of a special tax bill issued for work conforming to the contract requirements is not affected by the failure of the proper officer to sign the report of completion.88 A special tax bill is not invalid because the partner of the contractor to whom it is issued is a surety on the contractor's bonds.84

\_Character of action and parties.\_See * C. L. 1852.--Special provision is usually made for the enforcement of local assessments,98 but, in the absence of statute to the contrary,88 the hearing of special assessment cases is conducted under the same rules as apply to other cases at law.

Footnote 88: Tax bill held not invalid under Kan-

An assignee of special tax bills 97 may, as the real party in interest, sue thereon in his own name though he has pledged them to secure a debt, where there has been no default as to the debt.88 Upon an application for an order of sale of property as-

82, 83. Kurts v. Knapp, 127 Mo. App. 608, 106 SWV 537.

84. Tax bills not invalidated by small dis-

01. Barron v. Lexington \[Ky.\] 105 SWV 395, 86. Insane person. See Civ. Code Proc. 586.

01. Barmon v. Lexington \[Ky.\] 105 SWV 395.

01. Rev. St. 1899, $ 5843 (Ann. St. 1906, p.

Where granted of part of property became

870). City of Mexico v. Lakeman \[Mo. App.\]

guardian of grantor who was adjuded in-

88. Lack of notices required by the ordi-

sranter on question of sale of whole prop-

89. Vick of Joplin v. Freeman, 126 Mo. App.

etry under assessment lien, but not as to

89. City of Joplin v. Freeman, 126 Mo. App.

01. City of Joplin v. Freeman, 125 Mo.

01. App. 172, 103 SWV 130.

01. Kurts v. Knapp, 127 Mo. App. 608, 106 SWV 537.

01. City of Krolus Scheme and Charter,

01. City of Krolus'chenko and Charter,

01. City of Joplin v. Freeman, 126 Mo. App.

01. City of Joplin v. Freeman, 125 Mo.

125 Mo. App. 142, 101 SWV 1120.

127. 103 SWV 130.

001. App. 172, 108 SWV 130.

001. Kurts v. Knapp, 127 Mo. App. 608, 106 SWV 537.

001. Under St. Louis Scheme and Charter,

001. City of Krolus'chenko and Charter,
     sessed, owners of other property assessed may file objections and the cases be tried as one."

_Service of summons and warning order._ See 8 C. L. 1553--A variance between the notice of application for judgment and the delinquent list may be fatal,1 but is not necessarily so.2

_Pleading and proof._ See 8 C. L. 1553--Causes of action on tax bills for a single improvement against several pieces of property owned by the same persons may be joined in the same petition in separate counts.

10 Cur. Law. PUBLIC WORKS AND IMPprovements SS 9H. 1339

Defenses.See * C. L. 1555--Harmless irregularities are not available as a defense,\[19\] and the same is true as to irregularities cured by the confirmation,\[20\] and as to irregularities in collateral proceedings, such as the election of municipal trustees,\[21\] but while the revenue law is liberal in allowing irregularities, informalities, or omissions not affecting the substantial justice of the tax to be corrected or supplied in proceedings to enforce the assessment,\[22\] the court cannot levy a tax where none has been levied by the proper officers.\[23\] Delay in the completion of the improvement is no defense.\[24\] In a suit on a special tax bill, the validity of the assessment may be inquired into so far as to determine whether it was levied according to law,\[25\] but lack of benefit cannot be shown as a defense to such a suit.\[26\] Where alternative methods of construction are authorized, the property owner is not concerned in the method adopted so long as his assessment is not thereby increased.\[27\] Set-offs allowed by statute\[28\] must be presented as required thereby.\[29\] Dismissal of proceedings under a new ordinance for the collection of unpaid balance of the cost of an improvement on the ground that proceedings under original assessment are still pending does not preclude municipality from again commencing such proceedings after final judgment is rendered in the proceedings under the original assessment.\[26\] A property owner who has not paid his portion of the original assessment cannot defend against an additional assessment to reach property not previously assessed on the ground that there is no unpaid balance of the costs of the work to authorize the improvement.\[21\] Where special tax bills are not issued until the period of limitation upon the city's liability to issue the same has expired,\[22\] an action thereon against the property

\\begin{tabular}{l|l} & \\ \\end{tabular}
1340 PUBLIC WORKS AND IMPROVEMENTS SS 9H. 10 Cur. Law.

owner is barred.\[38\] The limitation upon an_action to enforce an assessment lien \[34\] is not affected by the maturity of all the instalments of the assessment by reason of default as to one.\[35\]

\_Waiver of and estoppel to urge defenses.\[See & C. L. 1559.--Objections must be made within the time specified by law,\[36\] and if a property owner fails to avail himself of the fair and reasonable opportunities afforded him to be heard, he cannot thereafter be heard to say that the assessment is unfair or unequal.\[37\] Property owners, therefore, should object at the time and place and in the manner provided by law, and not wait until the work has been done and they have received the benefit thereof,\[38\] but provisions rendering irregularities unavailable after completion of the work do not apply to matters jurisdictional and rendering the improvement ordinanco void,\[39\] and such provisions are sometimes declared unconstitutional.\[40\] A provision for waiver by payment does not apply where the assessment is absolutely void.\[41\] Petitioners for an improvement are generally estopped to urge irregularities.\[42\] A waiver

33. He being the real party in interest, City of Moberly v. Hassett, 127 Mo. App. 11, 106 SWV 115.

01. Laws 1895, p. 270, c. 114, preherlping limitations as to equits to enforce such liens, held not repealed by Laws 1903, p. 26, c. 24, amending Ballinger's Ann. Condes & St. St. \[Ind.\] 82 NE 659. One of five joint owners of a tract of land within municipality, Wagner \[Wash.\] 94 P 759.

01. Limitation still runs from original date of maturity of last instalment. Gilson-ito Const. Co. v. Arkansas McAlester 10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9H. 13&11 of a particular ground of objection constitutes an estoppel to assert the unconstitutionality of the statute on such ground.\[45\]

As a general rule a general appearance cures all defects in the application for judgment,\[44\] including defects of notice.\[45\]

\_The judgment.\_See * C. L. 1560.--The judgment must be in substantial conformity with the statutory form.\[46\] Where the proceedings are in rem, no personal judgment can be rendered.\[47\] Some of the statutes provide for interest on the judgment \[48\] and for penalties.\[49\] The applicability of particular provisions of general statutes is a matter of statutory construction.\[50\]

\_Sale and redemption.\[52\]\_See * C. L. 1561.--Proceedings for sale must conform strictly to the statutory requirements,\[51\] including those relating to the various notices that may be required,\[52\] place of sale,\[53\] and mode of sale.\[54\] Where the sale is held invalid,

owner who joined in a petition for the Improvement of the street by grading, draining, enveling, and the laying of sidewalks, and who knew or should have known that the work was in progress but entered no protest thereto. Id. While a lot owner cannot escape payment for a street improvement made in accordance with a petition signed by him, even though the assessment exceeds the statutory limitation, he is entitled to have such an assessment added to any later assessment made within five years for the purpose of ascertaining whether the total exceeds thirty-five and one-third per cent of the value of the land after the improvement has been made, and if excess is found he is entitled to relief from the second assessment to that extent. Fifth Nat. Ek. v. Cincinnati, 10 Ohio C. C. (N. S.) 602. Mortgase who has become owned by foreclosure is estopped from denying that property is not benefited to extent of assessment or that it is not valuable enough to stand the assessment, where mortgap joined in the petition for improvement Cincinnati Bldg. & Deposit Co. v. Cincinnati, 10 Ohio C. C. (N. S.) 31.

43. Where in proceedings to foreclose Ilen of assessment for street improvements, under Burns Ann. St. 1601, 4 #288, defendant was stopped to urge disqualification, on account of interest, of trustee who participated in key, he was also estopped to assert that the statute was unconstitutional because it made no provision for supplying places of disqualified trustees. Daly v. Gubblins \[Ind.82 NEE 659.

01. People v. Warren, 231 Ill. 518, 83 NE 271.

01. Variance between title of delinquent list and that of notice of application for judgment held waived by general appearance and filing of general objections not confined to question of jurisdiction. People v. Warren, 231 Ill. 518, 83 NE 271.

01. Schedule filed with and referred to by judgment cannot supply failure of judgfment to include the items required to be included by statute. See Local Improvement Act (Hurdurd'Rev, St. 1905, 24, 873), 67, and Revenue Act, 151 (Hurd'Rev, St.) 1905, c. 120). People v. Smythte, 232 Ill. 242, 83 NE 821; Id., 4,232 Ill. 256, 83 NE 828; City of People v. Smith, 232 Ill. 561, 83 NE 1061.

01. Procedure under Ky. St. 1903, 8 3706, on assessment warrant. Jackson v. Mc-Hargue \[Key.\] 106 SVW 871.

01. Under Kansas City charter, judgment on special tax bill bears interest at 10 per cent, Dickey v. Porter, 203 Mo. 1, 101 SWW and who knew or should have known that 586.

01. Statutory penalty of 4 per cent should protest thereto. Id. While a lot owner cannot be computed upon the judgment exclusive of attorney's fees. English v. Ter. \[Ariz.\]

50 P 601.
50\. Laws 1907, p. 456, Prac. Act, $ 41, authoring submission by agreement of prepositions of law to court, does not apply to application for order of sale of property assessed, since such section applies only where parties are entitled to trial by jury. People v. Chicago, etc., R. Co., 231 Ill. 112, 83 NE 110. Seems that the revenue act, which is made a part of local improvement act, complicates that the judgment and order of safe shall be spread of record in the "tax, judgment, sale, redemption, and for-future record." People v. Smythte, 232 Ill. 242, 83 NE 821; Id., 232 Ill. 259, 83 NE 828; City of Peoria v. Smith, 232 Ill. 561, 83 NE 1061.

51. Lantz v. Fishburn, 3 Cal. App. 662, 91 P 816. Sales for delinquent special assessments can be made only in the manner provided by the statute. Williams v. Eau Claire County \[Vis.\] 115 NW 140.

01. Notice of sale. Lantz v. Fishburn, 3 Cal. App. 662, 91 P 816. Notice to owner that purchaser will apply for dead and right to redemption will expire on certain day held invalid under Pol. Code, $ 3775, 3776, prior to amendment of 189 1343 PUBLIC WORKS AND IMPprovements SS 9.1. 10 Cur. Law. the purchaser may recover back his money under statutory provisions.\[85\] By sale of assessment certificates under judgment in its favor, a city contracts that the purchaser shall receive a lien capable of being matured into a valid title to the lands described,\[86\] or a return of the consideration paid, with interest, in case of redemption or of judicial determination in bona fide litigation that the certificates are invalid.\[97\] Where a sale to satisfy an assessment bond is void, a purchaser of the certificate of sale becomes the equitable owner of the bond \[88\] and may enforce full payment of the amount paid by him, regardless of the equities between the owners of different parts of the land,\[89\] the remedy of an owner of a part of such land being by payment of the whole amount and then enforcing contribution from the owner of the other part.\[90\] Where the proceedings are in rem, the sale passes title as to all persons,\[91\] but one claiming under assessment sale must show compliance with the statue.\[92\] The court, having control of the proceeds of the sale, should apportion them among the parties entitled thereto.\[93\] (SS 9) _I. Recovery back of assessments paid.\[88\]_ C. L. 1962--An action lies to recover from a municipality a special assessment rebate notwithstanding the fund created by the assessment has been depleted.\[44\] (SS 9) _J. Remedies by injunction or other collateral attack, and grounds therefor.\[88\]_ c. L. 1962--Defects rendering the assessment absolutely void are available on collateral attack,\[98\] and injunction is the proper remedy,\[88\] as where there was a lack of jurisdiction of the assessment proceedings;\[97\] but the right to an injunction cannot be predicated upon irregularities, not jurisdictional, which have been waived by failure to urge theft upon the hearing,\[88\] or by failure to take advantage of the remedies provided by law, such as an appeal,\[99\] nor can objections be urged which have been waived by appearance\[99\] and objection on other grounds.\[11\] In the absence of fraud, the remedies provided by statute for review of assessments are exclusive,

01. Purchaser at general tax sale held entitled to refund where sale was void because special assessments which required a separate sale were included. Williams v. Eau Claire County \[VWs.115 NW 140.

01. Otis v. St. Paul, 102 Minn. 208, 113 NWV 28.

01. Otis v. St. Paul, 102 Minn. 208, 113 NWV 269.

01. Purchaser not estopped to seek refundment of price of certificate sold under second judgment by adjudication in suit to which he was partly that former judgment was invalid, where in a subsequent suit the former judgment was held valid and the second judgment invalid. Otis v. St. Paul, 102 Minn. 208, 113 NWV 269.

01. S0, 60. Ellis v. Witter, 148 Cal. 528, 83 P 80.

01. Proceedings for sale of land for levee taxes. Updersafar v. Marked Tree Lumber Co. \[Ark.\] 103 SWV 606.

01. Sale under St. 1893, p. 33, c. 21. Lants v. Fishburn, 3 Cal. App. 62, 91 P 816.

01. Where owner sold part of property after assessment, and the whole property was thereafter sold under the assessment alien, the court, having control of the proceeds, had power to determine what portion of the tax should be paid by the vendor and what part by the vendee. Barron v. Lexington \[Key.\] 105 SWV 395.

01. Claimant is not required to proceed against officers or municipality whose improper acts depleted the fund. Clity of Chi- 10 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9J. 1913

and equity will not interfere.72 Mere irregularities, not jurisdictional, do not constituto ground for equitable relief where they are declared harmless by statute,73 and independently of statute such irregularities are not available to one who has not been injured thereby.74 Where the question of validity of the assessment turns on the service of notice the objection is personal to each of the complainants.75 In the absence of fraud, equity has no jurisdiction on the ground of excessiveness of the assessment,76 and an assessment which has been confirmed cannot be attacked collaterally for irregularity or inaccuracy.77 The property owner need not wait until the improvement has been completed or an actual levy of the tax has been made.78 On the contrary, equity will not grant relief to one who has delayed asking thereor until he has received the benefit of the full or partial completion of the work.79 Where, however, the assessment is absolutely void, failure to interfere while the work is in progress will not preclude equitable relief,80 nor is resort to equity for relief from a void assessment precluded by failure to take advantage of opportunities provided by statute for objection to and review of the assessment,81 as where there was a lack of jurisdiction of the assessment proceedings,84 and, in the absence of any provision for review of the assessment proceedings, the aid of equity may be invoked on the ground of illegality in such proceedings.88 Equitable relief is not barred by a statutory provision that no "action at law" shall be maintained for any damages, etc., arising from the improvement.84 The decision of the duly authorized tribunal as to benefits is conclusive on the courts in any case admitting of a substantial doubt 88

72. St. Benedict's Abbey v. Marion County 79. Jones v Gable, 150 Mich. 30, 14 Det. Leg. \[Or.\] 93 P 231. Such is the rule regardless 823, 113 NW 577. An owner who, though of statutory prohibitions. Jones v. Gable, having full knowledge of the progress of 150 Mich. 30, 14 Det. Leg. 823, 113 NW 577. The work, makes no protest until after the Owner must avail himself of the opportunenti- assessment, cannot thereafter have the colites offered to appear and object in the lection of the assessment enjoined, even on special forum designated by law, otherwise 823. The court \[Iowa\] 114 NW 552. An abutting forum, Lalitiet V. U. S. Security & Bond Co. property owner whose property has been \[Colo.\] 90 P 683. Assessment of damages 823 assessed for a street improvement in ex- for land taken on basis that owners would 823, retain title to improvements already there- 823, 113 NW 577. A comment who, though on and remove them at their own expense 823, 113 NW 577. The work, makes no protest until after the 823, 113 NW 577.

and the burden is on one seeking to enjoin the enforcement of an assessment on the ground of lack of benefit to show conclusively that no such benefit is possible; \[88\] but the collection of an assessment for a street improvement which has conferred no benefit whatever on the abutting property because of a mistake in the provision for drainage will be enjoined without seeking to inquire whether due to an abuse of corporate power or to gross negligence on the part of the corporation. \[87\] Where the proceedings have been legalized by subsequent legislation, equity will not interfere. \[88\] No tender is necessary as a condition precedent to the right to sue to set aside an absolutely void assessment. \[88\] Suit must be instituted within the time prescribed by law, \[80\] the legislature having power to limit the time within which suits to annul assessments must be brought. \[81\] General tax payers have no status to sue to restrain the collection of a special assessment, their remedy being by injunction to restrain the paying of public funds upon the contract. \[82\] Where the assessment is void, the municipality is not injured by a misjoinder of several lot owners as plaintiffs in a suit to set it aside. \[83\] Where the ordinance does not show its invalidity on its face, the burden of proving such invalidity is on the attacking party. \[84\] Equity will not enforce specific performance of stipulations between the property owner and counsel for the municipality where such stipulations are contrary to statute. \[85\]

(SS 9) _K. Appeal and other direct review. \[88\]_ * C. L. \[88\]\_ \*The right of appeal is purely statutory \[96\] and is available only to those who have complied with the statutory requirements, \[87\] and the methods of review are such as are provided by statute, \[98\] and proceedings for review must be instituted and perfected within the time prescribed by the statute.

be limited in such manner as the legislature may deem proper,\[1\] as may also the relief which may be granted.\[2\] The decision of the tribunal authorized by law to determine the question of benefits will not be disturbed when the assessment appears to be reasonably fair,\[3\] nor will a finding of the lower court as to the necessity of the assessment be reviewed where the evidence is conflicting.\[4\] Only such questions can be reviewed as are properly saved below.\[5\] Objections for defects in special tax bills must be made in the trial court in a suit thereon,\[3\] as must also defects in the proceedings for the improvement,\[7\] but on appeal from order for sale of property assessed, matters rendering the assessment absolutely void may be raised, notwithstanding entry of general appearance below.\[8\] A reversal will not be granted for harmless irregularities,\[9\] and the rule that error is presumed to be prejudicial does not apply to irregularities in apportioning improvement assessments, such cases being governed by the principle of liberal construction provided for by the statutes.\[10\] Where intermediate the final judgment for improvement assessment and the suing out of a writ of error proceedings for a supplemental assessment were instituted, they were

Under "act concerning townships," approved -- ating an assessment district and levying an --a improperly dismissed on the ground that proceedings as to, object's property were still pending.\[11\] Where the delinquent list is furnished to the county collector prior to an appeal from the judgment of sales, a second one need not be supplied after affirmance.\[12\]

-

Puis Darwin Continuance; PURGrasse-Money Mortagges; PURGrassebs FOR VALUE; Quarantine; Quasi Contract, see latest topical index.

QUESTIONS OF LAW AND FACT.

Province of Court and Jury In General, 1346. | Particulate Facts or Issues, 1847.

\_Scope of topic.--\_Only the general principles with a few illustrative applications are here treated. Whether particular facts or issues are questions of law or facts are treated in the topic to which they are germane.\[13\] The propriety of taking a case from the jury is elsewhere treated,\[14\] as is the revivory power of appellate courts over decisions of questions of fact.\[15\] The province of court and jury likewise is most frequently discussed in connection with the form and sufficiency of instructions.\[16\]

_Province of court and jury in general.\[80\]_ * C. L. \[167\]--It is the province of the jury to decide issues of fact,\[17\] and of the court to decide questions of law.\[18\] Whether there is evidence legally sufficient is for the court,\[19\] but, there being such evidence, its sufficiency to establish the issue is for the jury.\[10\] The jury are the sole judges of the credibility of witnesses,\[21\] and the weight to be given the evidence.\[22\] While it is for the jury to determine conflicting evidence \[23\] and to draw conclusions from established facts where reasonable minds might differ in respect thereto,\[24\] the court

11. City of Chicago v. Baldwin, 227 Ill. 834, 81 NE 542. 129. 13. 14. 15. 16. 17. 18. 19.

10 Cur. Law. QUliETING TITLE. 1347 may decide an issue where the evidence is undisputed,\[28\] and will permit of but one reasonable inference.\[28\] The competency of witnesses is a preliminary question for the court.\[47\]

_Particular facts or issues_,\[28\] C. L. 1580--It is the province of the court to determine the meaning,\[28\] legal effect,\[29\] and nature\[30\] of written instruments. Assumption of risk,\[31\] negligence and contributory negligence,\[82\] are essentially questions of fact for the jury, but where the act is negligent per se, as in violation of some statute or ordinance,\[28\] the matters may be for the court. Questions of knowledge,\[34\] attention,\[28\] certain questions of possession,\[28\] damages\[27\] and ownership,\[28\] are of fact and for the jury, but the defense of limitations,\[28\] unless depending on conflicting evidence as to a matter of fact,\[29\] is for a court.

QUliETING TITLE.

8 1. Chancery and Statutory Remedles and 8 2. What is a Cloud or Conflecting Claim, 1352. 1349. Defense, 1261. 8 8. Proceedure, 1352.

App. 8 2 NE 932; Bennett v. Busch \[N. J. Law\] 67 A 188; McCarthy v. Metropolitan \[Ali.\] 44 S 417. If Life Inc. Co. \[N. J. Err. & Appl. 69 A 170; Greenwood Grocery Co., Canadian County \] naked questions of law without any guide \[Tex. Co., 77 S. C. 219, 57 IS SE 867; Red \] but should have been hypothesized, if there \[River Nat. Sk. v. D Berry \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 855, 106 SW 988; Kersten v. Welchman \[Vii.\] 114 NW 499. 25, Jones v. St. Louis, etc., R. Co., 124 Mo. 548, 83 NE 286. And see Master and Serv. App. 246, 101 SW 915; Mahner v. Benglict, 108 NYS 228; Smith v. Humphryville \[Tex. Civ. App.\] 15 Tex. Ct. Rep. 936, 104 SW 495. 20, 865 V. Southern R. Co. \[C. C. A\] 151 F 736; Red River Nat. Sk. v. D Berry \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 385, 106 SW 988; Vailver v. Erwin \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 209, 106 SW 164. 27. Parkersburg Nat. Sk. v. Hannamam \[V. Va.\] 60 SE 242. 28. Where there is clearly no ambiguity and where the relations between the parties must be determined. Velth v. Jenkins \[Va.\] 67 SE 574. But where court instead allowed jury to contentive instrument and where it appears a proper construction would have been adverse to the complaining party, it was harmless error. R. L. Moss Mfg. Co. v. Carolina Portland Cement Co., 13 G. App. 232, 57 SE 914. Where money was advanced to sollicting agent by Insurance company under written agreement that it was to be paid back out of commission and agent failed to earn commission. New York Life Inc. Co. v. Wolfson, 124 Mo. App. 286, 101 SW 162. 29. In an action to try title to land where title hinges on character of a dead and the acceptance and delivery, a directed verdict is proper only if ordinary minds could reach no other conclusion than that the instrument never became effective because not a dead, or if a dead because never delivered or accepted. Walker v. Erwin \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 209, 106 SW 164. Whether a dead was delivered or not and accepted by grantees. Id. 30. Whether Instrument was dead or bill of sale or mortgage where it was not ambiguous. Nelson v. Spence, 129 Ga. 35, 58 SE 697. Whether mill machinery was included in a mortgage and whether it was cold in accordance with power in a mortgage.

### 1348 QUETING TITLE SS 1.

10 Cur. Law.

_The scope of this topic is noted below.\[41\]_

SS 1. \_Chancery and statutory remedies and rights. Nature and office.\[56e 8 c. L.

1879--Equity has inherent jurisdiction of suits to quiet title and to remove clouds.\[42\] Statutory actions for this purpose are generally regarded as equitable in character 48 and provisions authorizing them as merely enlarging the powers of courts of equity,\[44\] and as creating concurrent and not exclusive remedies.\[45\] As in other cases, equity will not assume jurisdiction where there is an adequate remedy at law 48 unless in exceptional cases to prevent fraud and injustice 47 or, in proper cases, to prevent a multiplicity of suits.\[48\] Independently of statutory,\[49\] equity may in a proper case, en-

41. This topic treats of suits in equity to

determination of title, held to have de-

quiet title to reality and for the removal of

prived bill of equity, Rosebrook V. Baker

clouds and statutory substitutes therefor.

\[Ala.\] 44 S 198. Disposition in alleged last

The cancellation of particular instruments

will and testament of property which tes-

which may be clouds on title (see Cancellation

tator may not own does not give superior

tion of Instruments, 9 C. L. 454), quelting

court, in exercise of equity powers, jurisdic

title as an incident to statutory actions for

tion to cancel alleged will as cloud on title

the restoration of destroyed instruments

of one xverning ownership of property de

(see Restoring Instruments and Records. 8

Vised, or to enjoin its probate by nominated

C. L. 1742), and adverse proceedings for

executor. Adams v. Johnson, 129 Ga. 611,

the determination of conflicting interests in

59 SE 269. Where complishment owned pro-

minning claims (see Mines and Minerals, 10

C. L. 889), have been excluded.

he was unable to sell on account of ven-

42. Well established ground for equitable

dors in on allots in addition, and al-

relief. Acord v. Western Pocahontas Corporations, 186 F 985.

self the property primarily liable and suff-

43. Carlson v. Current \[Wash.\] 93 F 915.

cient to pay lie his lota were liable to fore-

Action held properly brought in equity.

douserve, Insulfent to compel sale to remove

Jonesville Perpetual Bldg. de Loan Assn of

dool in absence of showing imminent dan-

Johesville v. Beverly \[Ly.\] 107 SV 770.

44. St. 1889, & 5186, authorizing action to

try title to read property, not restriction but

enlargement of equity powers. Shedschlag

v. Griffin \[VWs.\] 112 NW 18.

45. While Rev. St. 1899, & 650 (Ann. St. 1986, p. 687), providing remedy to determine

trafaction of court on ground that plaintiffs

interests and quiet title, repealed by implication

tton Rev. St. 1899, & 647 (Ann. St. 1986, p. 665), providing remedy in such cases, it did

\[VWs.\] 112 NW 18.

not quiet jurisdiction of equity to remove

cloads from titles, but statutory and chan-

simi juris, but are addressed to the discretion

cery jurisdictions are concurrent. Hudson

v. Wright, 204 Mo. 412, 108 SW 8.

- 40. Adams v. Johnson, 129 Ga. 611, 59 SE

- 269; Austin v. Minor \[Vw.\] 67 SE 609; Swick

according to the particular case, when those

v. Rease \[Vw.\] 93 F 85 EU 510. Where de-

fendants' intestine held right of possession

for term, purchased at sale for diligment

80 Vt. 434, & 83 E. 1686. refused where ad-

taxes, which right was barred by limitations,

quate remedy at law and no injury would re-

complinant not required to sue at law,

but might file bill to quiet title under Gen.

St. p. 3486, and P. L. 1907, p. 57, c. 80.

Beaty v. Lewis \[N. J. Eq.\] 68 A 95. Remedy

at law inadequate where complainment Is in

possession. Mackey v. Maxin \[Vw. Va.\] 59 SE 742. Does not lie where agreement will.

Pollitzer v. Bunkenmper, 76 & C. 517, 57 SE

47S. One selling land to another who has

some into possession but refuses to receive

title on account of outstanding adverse

claim cannot be compelled to bring eject-

ment under Act. April 16, 1983 (P. L. 212; 2

Pud. (13 Ed.) 1304), right being limited to

on 1n possession. Hoppenstell v. Long, 217

49. But to enjoin threatened sale as

Pa. 491, 66 A 991. Since plaintiff in forcribe 10 Cur. Law. Quieting Title SS 1. 1349 join a sale of land which would cast a cloud upon the legal title, \[50\] and a remedy by injunction under such circumstances is sometimes specifically provided for by statute in certain cases where there is no adequate remedy by an action for damages. \[51\] The jurisdiction of a Federal court to restrain the enforcement of a judgment of a state court is not effective to remove a cloud from the title to reality cast by reason of the judgment which would still remain notwithstanding the owner is not permitted to enforce it. \[52\] As a rule only title to realty may be quieted. \[53\] There is a conflict of authority as to whether the statutory action is one in personam or in rem. \[54\] It is sometimes considered an action for the recovery of the real property which is the subject-matter thereof. \[55\] The action being equitable, complainant must come into court with clean hands, \[56\] and may be required to do equity as a condition to relief. \[57\] _Tike and possession. See_ S. C. L. 1572. In the absence of a statutory provision to the contrary, both possession \[58\] and legal title \[59\] are ordinarily necessary to the main-

50. Bonsor v. Madison County, 204 Mo. 84, 102 SW 494. \[St. See under Rev. St. 1899, $ 3649 (Ann. St. 1906, p. 2055), where landowner whose land is about to be sold under execution is-

\[56\] Forrest, 56 Misc. 147, 106 NYS 1083. Bill \[St. 1907, p. 2055), but for partition with defendants in possession not real interest. Payne v. Davless County

\[57\] In the absence of a statutory provision to the contrary, both possession \[58\] and legal title \[59\] are ordinarily necessary to the main-

50. Bonsor v. Madison County, 204 Mo. 84, 102 SW 494. \[St. See under Rev. St. 1899, $ 3649 (Ann. St. 1906, p. 2055), where landowner whose land is about to be sold under execution is-

\[61\] Forrest, 56 Misc. 147, 106 NYS 1083. Bill \[St. 1907, p. 20 tenance of the action, unless removal of cloud from title is merely incidental to the primary relief sought, or the plaintiff has no remedy at law.60 This rule has, however, been greatly modified by statute in many states. Thus in some states equitable title coupled with possession is requisite; 61 in others equitable title without possession is sufficient though the defendant be in possession,62 and in still others the holding of legal title without possession is sufficient.63 In some states the action cannot be maintained by the owner of an equitable title against the owner of a legal title.64 Title and right to possession,65 peaceable possession under claim of title,66 or possession for a certain period under claim of title,67 is sometimes required. By some statutes anyone having a lien or incumbrance on land is given the right to test the validity of any other lien, claim, or incumbrance.68 In Michigan any person claiming legal or equitable title whether in possession or not may institute suit against any other person not in possession setting up claim in opposition to his title.69 A tenant's possession is construed as that of his landlord,70 the possession of an officer of a corporation that of the corporation,71 and a life tenant's possession that of the remain-derman.72 A title by adverse possession will be quieted.74

thereto, petition alleging that plaintiff accept title by reason of defendant's ad-have been in open, notorious, continuous and hostile possession for over fifty years, 491, 68 A 91.

and that original occupant purchased from

64. Defense consisting merely ln denial of state, but received no patent therefor, and plaintiff's title and assertion of title ln defendant not established by proof that plain-under order of county court as school lands,

iff holds legal title and defendant equitable sufficiently states cause of action, since

title. Robinson v. Mluf, 151 Cal. 118, 90 under Rev. St. 889, c. 122, art 2 (Ann. St. 1906, pp. 3857-3874), county courts are made

45. Right to possession presumed where trustees to sell school lands, and Rev. St.

admitted that plaintiff had legal title under 1899, $ 9829 (Ann. St. 1906, p.4507), gives

commissioner's dead. Flood v. Templeton the county court care and management of

\[Cal.\] 52 P 78. In Washington a valid sub-funds, though title remains in state. Bon-sor v. Madison County, 204 Mo. 84, 102 SWP

1st sufficient. Under $ 5500, Ballinger's Ann.

49. One having only equitable interest un-der contract providing same would be con-

\[Vash.\] 91 P 243; Warren v. Oregon &

under either mortgage thereon, cannot maintain bill to declare taxed vold and remove

66. Assememem in public square acquired

same as cloud. Tax Title Co. V. Denoon

\[Va.\] 57 SE 586. Holder through patent

from United States of legal title may maintain suit to quiet title and restrain removal of ore. Lawson v. U. S. Min. Co., 28 S, Ct. 15.

60. In such case, neither legal title nor possession is necessary. Swick v. Rease

\[Vv.\] 59 SE 510.

61. One having equitable title may maintain action as against a party having the record title. Casstevens v. Casstevens, 227 Ill. 547, 81 NE 709. Vendee under contract

for deed, holding entire equitable title, has

sufficient interest. Coel v. Gloa, 232 Ill. 142,

85 NE 529. Variance Immaterial where fee

alleged and proof shows possession under equitable title only. Van Vranken v. Gran-ite County, 35 Mont. 427, 90 P 164.

62. Where those in possession held under another than one holding tax title. Carlson v. Curren \[Vwash.\] 93 P 815. Under

Code 1877, 1 255, where defendant director

and officer of corporation has taken possession in own right under fully performed oral agreement. Consolidated Plaster Co. v. Willo \[Colo.\] 94 P 285. Where person in

trust relation deeds land to another. Swick v. Rease \[Vv. Va.\] 59 SE 510.

63. Where plaintiff has title and sella to

another now ln possession who refuses to

to 10 Cur. Law. QUIETING TITLE SS 1. 1351

Plaintiff must recover, if at all, on the strength of his own title, and not on the weakness of his adversary's.14 In the Federal courts the suit may now be maintained without a prior adjudication of the legal title in an action at law.75

Footnote 14: The author is grateful to the anonymous referee for his constructive suggestions.

_Defenses._ See _S C. L. 1978_.\_The right to maintain the action may be lost by laches 76 and also by the operation of the statute of limitations.77

property so as to permit its maintenance of |who was grantee of husband in prior ded, action, but his possession is that of the |she may show ignorance of ded of trust |corporation. Consolidated Plaster Co. v. |which husband gave before decoding prop- |Wild |\[Colo.\] 94 P 285. |

**72. Under 11 57, 59, c. 73, Confp. St. 1903.**

\*\*Remarkation may bring suit during life |Parke v. Worthington |\[Tex. Civ. App.\] 19 of life tenant. Hobson V. Huxitable |\[Neb.\] 112 NW 658. Operation of the statute of limitations is not postponed until the death of the life tenant, and hence delay of tenant out of possession, no matter how long? |but by remalerman. Id. In suit under |A June 10, 1893 (P. L. 415), 1 2, it is not merely petitioner's possession which must |but just brought, such possession was no- |the title by which it is held. Klimmel v. Shaffer |\[Pa.\] 68 A 1017. Claim of petitioner to contingent right on death of person in possession, whom he claims |life tenant, is present |dispute of title by which possession |is held, and hence within the |date of title |Parke v. |\[Neb.\] 115 NW 625. Possession for seven years under color of |title sufficient. Van Etten V. Daugherty, |88 Ark. 524, 103 SW 737. One in actual possession for ten or fifteen years who had made improvements. Dickson V. Sentell, |83 Ark. 855, 104 SW 148. |Action not supported by vdd tax title. Mason V. Gates, |82 Ark. 294, 102 SW 180. |Must establish validity of own title and in- |validity of opponent's. Houston v. McKinney |\[Fla.\] 45 S 480; Lenny V. Harrisonburg |Land & Imp. Co. |Va.\] 59 SE 400. Where |plaintiff fails to prove his own title, canno maimtation not matern. St. 102, | 4053, or complain of defects in defendants' title. Roberts V. Merwin |\[Conn.\] 68 A 377. Plaintiff claiming under deed against one claiming through void sale under attachment directed against grantors' property |shows sufficient right of relief. Empire Real Ekate & Morris. Co. v. Bechechley |\[Iowa\] 114 NWP 556. Evidence that plaintiff |parted with title conclusive against recovery by him. Brown v. Common |N. D11 118 NWP 758. Where plaintiff's grantor made to claim that conveyance to plaintiff was obtained by fraud, adverse claimment cannot successfully assert such claim, conveyance being otherwise sufficient to pass title. Obermeyer v. Behn, 108 NYS 289. Defendants held not precluded from questioning validity of certificate of purchase of tide |Parke v. |\[Neb.\] 114 NWP 658. Evidence that plaintiff |parted with title conclusive against recovery by him. Brown v. Common |N. D11 118 NWP 758. Where plaintiff's grantor made to claim that conveyance to plaintiff was obtained by fraud, adverse claimment cannot successfully assert such claim, conveyance being otherwise sufficient to pass title. Obermeyer v. Behn, 108 NYS 289. Defendants held not precluded from questioning validity of certificate of purchase of tide |Parke v. |\[Neb.\] 112 NWP 758. Defendants held not precluded from questioning validity of certificate of purchase of tide |Parke v. |\[Neb.\] 114 NWP 759. The same as the previous claim that conveyance to plaintiff |Parke v. |\[Neb.\] 115 NWP 758. The same as the previous claim that conveyance to plaintiff |Parke v. |\[Neb.\] 116 NWP 758. The same as the previous claim that conveyance to plaintiff |Parke v. |\[Neb.\] 117 NWP 759. The same as the previous claim that conveyance to plaintiff |Parke v. |\[Neb.\] 118 NWP 759. The same as the previous claim that conveyance to plaintiff |Parke v. |\[Neb.\] 119 NWP 759.

## 2 What is a cloud or conflicting claim

Soo # C. L. 1875--A cloud is an apparent legal or equitable title or a claim of interest appearing in some legal form, but which is in fact unsound. \[78\] An instrument void on its face does not ordinarily constitute a cloud. \[79\]

## 3 Procedure

Soo # C. L. 1576

Process.See # C. L. 1577--The subject of process is fully treated elsewhere. \[80\]

Parties. \[81\]--A municipality is the proper party to maintain a bill to settle the title of the general public in a public square. \[82\] All persons having a joint interest in all the property involved may join as plaintiffs. \[83\] Only persons claiming an interest

Any deed, devise, or other instrument, by failure to Institute foreclosure proceed-judgment, or decree not vold on its face, which purports to convey any interest in \[N. D.\] 112 NWP 72. Bill alleging that com-owner the invalidity of which requires proof by extrinsic evidence, or any pretended conveyance which, if left undisturbed, may ripen into perfect title. Acord v. Western and executed deeds to one another purport-ing to convey (litle, and recorded same, state cause of action. Acord v. Western doubt whether title under it was vested in \[Poconnants Corp., 156 F 898\].

Held not to constitute cloud: Where Evangelical Lutheran Church v. Pierce \[Dol.\] 68 A 194. Contract for sale of land, recorded without consent of vendor, vendee not being entitled to specific performance, tos occupying corresponding location, Sugar v. Froellch, 229 Ill. 341, 82 NE 414. Sheriff's deed vold because no valid proof of publication of process, even though de-fudenant might amend proof. Empire Real to state according to original, unrecorded \[Estate & Mortg. Co. V. Beechley \[Iowa\]\], plainttiff's tax title was to lots located 114 NWP 556.

10 Cur. Law. QUISTING TITLE SS 3. 1353 in the property involved are necessary parties defendant. \[84\] All persons claiming interests adverse to plaintiff in the same property may ordinarily be joined as defendants. \[85\] A conveyance during the pendency of the action is sufficient to support a substitution of the grantees in place of the original plaintiff. \[86\]

\_Bill, complaint, or petition.\_See & C. L. 1371.--The usual rules of pleading apply," including those as to joinder of causes of action. \[88\] Whether the suit is one to quiet title is to be determined from a construction of the bill or complaint. \[89\] As a general rule, plaintiff must allege ownership \[90\] and that defendant claims some adverse interest. \[91\] Possession \[92\] and that there is no other suit pending in regard to the

84. The patentee is a necessary party defendant in an action to remove a cloud con- solid by surviving partner to pay firm debta existing of a patent issued by the state.

and deed executed by snch partner and Lally v. New York Cent., etc., R. Co., 123 wife and deceased partner's widow as in-App. Div. 35, 97 NYS 858. Grants with-dividals only, complainants claiming out warranty who have parted with all claim to the lands in question are not nec- eased partner under such deed must allegeo assay or indispensable parties defendant, and prove, in suit to compel conveyance of West Coast Lumber Co. v. Griffith \[Fla.\] 45 said interest that personal assets of firm s 514. In action to quiet title to certain insufficient to'pay debts. (Ogletree v. Rainer land which defendants' grantees had orally (Ala.) 44 S 565), if in addition to allegation agreed to convey to plaintiff prior to their title are also set out and snch facts show plamtiff had a partner immaterial where agreement made with plaintiff only and partner not necessary party. Crane v.

v, Griffith \[Fla.\] 45 S 514. Complaint averreging plaintiff was fee owner subject to oil and gas lease sufficiently definite description of interest. Erle Crawford Oil Co. v. Meeks Carlson v. Curren \[Vash.\] 93 P 315. No misjoinder where deed was taken in his-plaintiff is owner in fee simple sufficient band and wife and wife claiming whole allegation of title. Shute v. Shute \[S. C.\] shed husband and one buying his interest 60 SE 961. Ownership being ultimate fact, at execution sale. Hudson v. Wright, \[94\] allegations setting out detailed facts showwing ownership are allegations of evidentiary facts. West Coast Lumber Co. v. plaintiffs in the same tracts of land can- not be joined in an action to quiet title to in detail the facts showing such ownership.

Need not set out source of title. Rosebrook Mc. 605, 106 SVP 445. 1988. Savage v. Say-86. Vietanen v. Ollus, 46 Wash. 402, 90 P 254.

87. Pleadings should conform to pleadings v. Leeds \[Ind. App.\] 83 NE 526.

under practice act in ordinary civil action so far as analogous. Spencer v. Merwin \[Conn.\] 68 A 370.

88. See 8 C. L. 1880. For full discussion 19 4224, it not being necessary to follow of this question, see Equity, 9 C. L. 1110, and Pleading, 10 C. L. 117A.

01. Action held one to determine adverse use to clearly and not one to construe very claims, facts should be alleged will. Savage v. Savage \[Cr.\] 94 P 182. Bill showing that defendants are settling up to restrain enforcement of judgment held claim of title or right hostile to plaintiff.

not sustainable as bill to remove cloud Brown v. Ward \[Ky.\] 105 SWP 964. Averfrom title to reality where reality alleged ment that defendants are settling up some to have been cloned is not described and doing to land and both together are setting does not proceed on the theory of the removal of an inexembrance. Schonitz v. High-Iand Gold Mines Co., 115 F 337.

90. West Coast Lumber Co. v. Griffin

17A. 45 S 514; Yorker v. Hobart \[N. D.\]

render it bad on general demurrer, proper 115 NWP 839. Allocation to ordinary and complete terms of ultimate fact that plaintiff is owner of some substantial named interest in real estate. Savage v. Sav-age \[Cr.\] 94 P 182. Should aver nature and extent of estate. Richards v. Moran \[Iowa\]

114 NWP 1035. Must show with clearness, or interest which he claims. Savage v.

117A. 45 S 480. Where firm dissolved by West Coast Lumber Co. v. Griffin \[Fla.\] land "" must be alleged if essential to the right of action. Plaintiff need not allege matters of defense." Complainant may lawfully allege facts pertinent to the transaction out of which his claim for equitable relief may have arisen and which support a claim for such incidental orders as may be proper to render the equitable relief sought full and complete." The Iowa statute requires notice to be given stating in general terms the cause of action, accurately describing the property, and stating in general terms the nature and extent of plaintiff's claim." Under a plea of title based on specific facts, defendant may show a lien based on the same facts, and thereby defeat plaintiff's right to have his title quieted as against said lien."

\_Answer, cross-complaint, and other pleadings.\_See 8 C. L. 1879.\_If defendant has no claim at all he should file a disclaimer."

A cross complaint is ordinarily unnecessary where defendant relies upon title in himself." It has, however, been held that defendant may file a cross complaint demanding affirmative relief for the purpose of compelling plaintiff to litigate the cloud on defendant's title raised by the commencement of the action." It is also proper where he seeks affirmative relief to have title quieted in himself as against plaintiff." The sufficiency of the cross complaint is to be determined by the same rules of pleading as the complaint."

_Evidence._"-The burden is ordinarily on plaintiff to show title." Where defendant claims title and demands affirmative relief, however, he must establish such title in order to preclude recovery by plaintiff." Cases dealing with the admissibility of

45 S 614. That he is in possession of or that it is not in possession of another. Savage v. Savage \[Or.\] 94 P 182. Aberrant of peaceable possession, actual or construcet v. Meyer, sunflower. Rosebrook v. Baker \[Ala.\] 44 S 195. Allegation that plaintiff was owner in fee held sufficient without specific allegation of possession, possession being presumed to follow legal title. Shute v. Shute \[S. C.\] 60 SB 961. Complaint alleging lot sold on execution for community debt was plaintiff separate property, not subject to sale, sufficient though failing to allege possession or that land was unoccupied. Dueber v. Wolfe \[Vwash.\] 92 P 455.

93. Code 1896, $ 809. Corona Coal & Iron Co. v. Swindle \[Ala.\] 44 S 549. Must be averred that complainants' title is denied, and that no suit is pending to enforce or test validity of such title. Rosebrook v. Baker \[Ala.\] 44 S 198.

01. Bill in equity to cancel deed alleged void by reason of grantor's insanity and to remove cloud created by it contains equity though not offering to restore consideration, since payment of adequate consideration for land is defensive matter. Mitchell v. Baldwin \[Ala.\] 45 S 716.

01. Under Gen. St. 1902, $ 4063, where defendant claimed under valid lease adverse to plaintiff's title, plaintiff claiming absolute ownership, plaintiff may allege lease obtained by undue influence and include prayer for cancellation of lease without public relief would not be "ven. Spencer v. Merwin \[Conn.\] 68 A 370.

", Under Code, $ 3514, 4224, notice stating plaintiff's claim to real estate, describing su.me, and that as owner he prays quieting title and general equitable relief, referring to petition in file, sufficient. Richards v. Moran \[Iowa\] 114 NWV 1035.

97. Where defendant pleaded title under tax certificates which merely gave him then. Bacon v. Rice \[Idaho\] 93 P 511.

01. State v. Alter \[Neb.\] 104 NWV 293.

01. Bacon v. Rice \[Idaho\] 93 P 511. Is ordinarily unnecessary, and when unnecesary may be stricken on motion. Keller v. McGillard, 54. Col. App. 395, 90 P 483.

01. Keller v. McGillard, 54. Col. App. 395, 90 P 483.

90 P 483.

92. Where holder tax deed and certificate desire quiet title in himself. Bacon v. Rice \[Idaho\] 93 P 511.

01. State v. Alter \[Neb.\] 104 NWV 293.

01. Bacon v. Rice \[Idaho\] 93 P 511. Is ordinarily unnecessary, and when unnecesary may be stricken on motion. Keller v. McGillard, 54. Col. App. 395, 90 P 483.

01. Keller v. McGillard, 54. Col. App. 395, 90 P 483.

90 P 483.

92. Where holder tax deed and certificate desire quiet title in himself. Bacon v. Rice \[Idaho\] 93 P 511.

01. Need not plead manunments of title such as tax deeds and certificates. Bacon v. Rice \[Idaho\] 93 P 511.

\[Idaho\] 93 P 511. Need only allege how defendants acquired their title, and then state generally that defendants claim an interest in and to premises adverse to plaintiffs, and pray that respective interests be ascertained and decree entered adjudging rights of parties. Rev. St. 1899, $ 650 (Ann. St. 1906, p. 667). Summer v. City Reality & Brokerage Co., 208 Mo. 501, 106 SWV 614.

4. See 8 C. L. 158 10 Cur. Law. QUIENTING TITLE SS 3. 1355

particular evidence on the questions of title \[7\] and possession \[8\] will be found in the notes. The evidence showing superior title in the plaintiff must be clear and convincing.\[9\] To establish title to unoccupied lands, it is ordinarily necessary to trace it back to the sovereign power, but not where the parties stipulate that another conveyed the land to defendant's predecessor.\[10\]

\_Trial.\_See * C. L. 1881.--In states where forms of action have been abolished, failure to plead or prove facts essential to a suit to quiet title is not ground for dismissal, and relief as in ejectment may be awarded.\[11\] In an action to determine adverse claims under the Oregon statute, the better practice is for the court to decline to determine the validity of defendant's claim, even if plaintiff has assumed to set it out in the complaint, until he has disclosed it by answer.\[12\]

In states where the chancellor is required to frame an issue at law as to the facts upon which the controverted title depends, to be passed upon by the law court, the party supporting the affirmative of the question to be tried should ordinarily be made plaintiff, unless the issue may otherwise be more conveniently raised.\[13\] In New Jersey it is immaterial whether the issue at law so formed be framed in the usual form of feigned issues or whether a simpler form be adopted.\[14\]

_Jury trial._\[15\]--In Kentucky a party desiring the submission to the jury of legal issues must transfer the case to the ordinary docket, and on his failure to do so he cannot complain because the chancellor tried the issue.\[16\]

\_Findings, decree, or judgment.\_See * C. L. 1881.--The judgment should ordinarily quiet and settle the title to the land in dispute and award such incidental relief as may be proper to make the main equitable relief granted full and complete,\[17\] such

v. Knight \[Tex. Civ, App.\] 17 Tex. Ct. Rep. to him admissible in determining boundaries and title. Austin v. Minor \[Va.\] 67 SE 609.

7. Where defendant claimed under deed, records in matter of grantor's estate show-

1. Where plaintiff claims by adverse posing grantor's death before execution of

her possession by common reputation, re-

alleged instrument admissible. Nemo v. referring principally to discussions among

Farrington \[Cal. App.\] 94 P 874. Evidence that taxes on lot claimed by defendant as

\[Or.\] 92 P 107.

park had not been paid immaterial, since

assessor could not accept same as park for

51 NE 709.

city, plaintiff having shown failure to accept

cept by city. Myers v. Oceanside \[Cal. App.\] 10, Vibencus v. McCormick, 122 App. Div.

93 P 686. Where defendants introduced

tax deed under which they claimed, judgment

in former action by plaintiff against defend.

or that promises are vacant and unoccupied.

ant in which title was adjugated in plaintiff

admissible to show claim under tax deed

gailwin, 46 Wash. 106, 89 P 483.

ton \[Cal. App.\] 94 P 874. Where decrees of

distribution in dec decededents' estate through

which title is eidemed referred to inventory

94 P 182.

and appraismement for purpose of description.

such inventory competent for such purpose.

Myers v. Oceanside \[Cal. App.\] 92 P 686.

Evidences that plaintiff has disposed of all

his title to another admissible. Brown v.

Comonow \[N. D.\] 114 NW7 728. Where orig-

mal owner gave trust dead mortage and

subsequent warranty deed through which

plaintiff's grantor holds, and subsequent to

transfer grantor received trust deed by as-

signment and defendant claimed through

judgment against grantor without notice

of his pendens, trust deed and various as-

signments inadmissible against plaintiff

who claimed no rights thereunder. Gilman

v. Carpenter \[S. D.\] 115 NW7 659. Where

complainant claimed title under deed from

grantor holding deed not embracing lands in

controversy, old plat showing land belonged

10 Cur. Law. QUIENTING TITLE SS 3. 1355

particular evidence on the questions of title \[7\] and possession \[8\] will be found in the notes. The evidence showing superior title in the plaintiff must be clear and convincing.\[9\] To establish title to unoccupied lands, it is ordinarily necessary to trace

it back to the sovereign power, but not where the parties stipulate that another conveyed the land to defendant's predecessor.\[10\]

\_Trial.\_See * C. L. 1881.--In states where forms of action have been abolished, failure to plead or prove facts essential to a suit to quiet title is not ground for dismissal, and relief as in ejectment may be awarded.\[11\] In an action to determine adverse claims under the Oregon statute, the better practice is for the court to decline to determine the validity of defendant's claim, even if plaintiff has assumed to set it out in the complaint, until he has disclosed it by answer.\[12\]

In states where the chancellor is required to frame an issue at law as to the facts upon which the controverted title depends, to be passed upon by the law court, the party supporting the affirmative of the question to be tried should ordinarily be made plaintiff, unless the issue may otherwise be more conveniently raised.\[13\]

In New Jersey it is immaterial whether the issue at law so formed be framed in the usual form of feigned issues or whether a simpler form be adopted.\[14\]

_Jury trial._\[15\] 1356 QUO WARRANTO. 10 Cur. Law.

Gas injunction.\[18\] The relief to be granted is sometimes specified by statute.\[19\] It is generally held that the decree should not require a conveyance by the party against whom it is rendered,\[20\] though there is some conflict of authority in this regard.\[21\] .In Kansas the holder of a tax title who institutes a suit to quiet his title against the original owner, if defeated, cannot in the same action have taxes paid by him adjuded to a lien on the real estate, since the statute affords adequate relief.\[22\] In states where the suit lies against persons in possession, defendant is properly charged for use and occupation on a decree in favor of plaintiff.\[23\] The fact that plaintiff is not entitled to have title quieted does not necessarily entitle defendants to a decree quieting title in them.\[24\] Where title to land is revested absolutely in plaintiffs by a decree quieting title, defendant's rights are not affected by the fact that plaintiffs have not paid to a third person a sum which the decree makes a lien upon the land.\[25\] The judgment should definitely describe the land to which title is quieted.\[26\]

_Costs.\[27\]_--Statutes in some states authorize the taxing of an attorney's fee as part of the costs if before suing to quiet title plaintiff requests defendant to quitclaim his adverse interest, and he refuses to do so.\[28\] It is sometimes provided that, if plaintiff substantiates his title, defendant shall be adjuded to pay all costs unless he disclaims and gives a release.\[29\]

QUOWRANTO.

10 Cur. Law. QUO WARRANTO SS 1.1357

This topic treats of the grounds for the writ and the proceedings thereon.. Topics dealing with the subject-matters respecting which it is invoked should be consulted as to matters of substantive right."

SS 1.1 Nature, function, and occasion of the remedy.See S. C. L. 1582--Quo warranto. is a civil action to redress a public wrong or enforce a public right." It is strictly a: prerogative writ," and it will be issued only in exceptional cases \[83\] where no other adequate relief is available." Under the common law it was employed exclusively as a prerogative remedy to punish usurpations of franchises and its use as a remedy for private citizens was unknown," but now it is made the vehicle for the assertion of both private and public rights," but not being a personal action," the writ is: even now never demandable as a matter of right by a private relator." More specifically the writ or information in the nature of a writ of quo warranto is in the nature of a writ of right by the state against one who claims or usurps any office, franchise, or liberty, inquiring by what authority he supports his claim in order to determine his right." Quo warranto is the proper remedy where any person usurps, intrudes into, or unlawfully holds any public office \[40\] to which a partition of the sovereignty of the country either legislative, executive, or judicial attaches, and is exercised for the benefit of the public, " and which is not merely the function or employment of a deputy or servant held at the will or pleasure of others." It is also: the proper method of challenging the existence of an office," equesting an illegal: officer," or otherwise trying title to an elective office." Quo warranto is the proper remedy to question the right of both public and private corporations to exercise corporate functions," and, except as limited by statute, may be brought against a:

So. See Corporations, 9 C. L. 733; Officers and Public Employyes, 10 C. L. 1043.

Sameusion, 131 Wis, 499, 111 N NV 712. To try title to office of superintendent of poor \[Wis.\] 112 N NV 40. May be said to be civil in nature, though still borrowing and using certain forms and punishments peculiar to truestees to hold office over into term of new-criminal law. State v. Taylor, 208 Mo. 442.

106 SSV 1023. Civil action to try civil right.

State v. Matthews \[La.\] 45 S 307.

S2, 83. State v. Nohle \[N. D.\] 112 N NV 141.

S4. Refused where statutory relief by invention is provided to prevent interlouding of stock in corporations under St. 1906, p. 846, c. 872. Malone v. New York, etc., R. Co, \[XMass.\] 83 NTE 408.

S8, People v. Healey, 230 Ill. 280, 82 NNE

S99. People v. Healey, 230 Ill. 280, 82 NNE

S99. Develop v. Healey, 230 Ill. 280, 82 NNE

S99. Allowed at instance of private relator to question right of officers of corporation to such offices. Commonwealth v. Strauss, 32

Pa. Super. Ct. 389.

S7. Service need not be made within state.

Does not lie to out public administrator, a. Anderson v. Myers \[N. J. Law\] 67 A 1086.

S8. State v. Burr \[N. D.\] 113 N NV 705: Smith \[N. C.\] 59 SE 643.

Commonwealth v, Strauss, 32 Pa. Super. Ct. 43. State v. Samuelson, 131 Wis. 499, 111.

S89: State v. Norcross v \[Wis.\] 112 N NV 712. Where respondent based right to:

S9. Greenough v. Lucey \[R. L.\] 68 A 300.

40. Code CIV. Proc. $ 653, Gen. St. 1901, $ 149.

S140. Baugraham v. Nation \[Kan.\] 92 P 548.

Lies for usurping any public office, however, to be rejected illegal municipal corporation from created. Greenough v. Lucey \[R. L.\] 66 A 300.

S00. Proper method of determining disputed \[A.\] 41, 90 P 839.

questing of title to public office. Matney v. 44.

King \[Ok1.\] 92 P 737. Where number of members 'on township board constituting \[A.\] 42, 111.

munipal corporation was increased before:

census authorizing such increase was leig-

gally promulgated, only quo warranto and not certiorari lies. Buck v. Douglas \[N. J. Law\] 65 A 848. To try right to hold office

S0. See Corporations, 9 C. L. 1733; Officers and Public Employyes, 10 C. L. 1043.

of supervisor of assessments. State v. Samuelson, 131 Wis, 499, 111 N NV 712. To try title to office of superintendent of poor \[Wis.\] 112 NNV 40. May be said to be civil in nature, though still borrowing corporation which has abused or misused its corporate franchise,"7 or has usurped a franchise not granted to it \[48\] with such injurious consequences to the public as to justify a forfeiture of its charter.49 The remedy has also been extended to challenge intrusion into corporate office.50

Quo warranto is also the proper method of challenging the validity of a dram-shop license,51 the validity of a street railway charter,52 to oust a telephone company from exercising a franchise attempted to be conferred upon it by an invalid ordinance,58 and for presenting the question of law whether there was a right to determine the license, and the question of fact whether there was a breach of any condition of the ordinance,54 and in Wisconsin it is the only statutory method of contesting an election.58

There are, however, cases of this sort in which quo warranto will not lie. Thus it cannot be brought to oust one holding an election certificate, since he is not a usurper,56 nor can one appointed to a lawful office carrying with it by the words of the act creating it no constitutionally forbidden powers be ousted because subsequent legislation has conferred such powers upon him.57 As a general rule, subject to some exceptions 58 it does not lie where the attorney general desires only a judgment restraining a corporation from exercising powers ultra vires,59 and not being a writ of correction or review, it will not issue to review error of judgment by board of arbitrators settling controversies under state school laws.60 Laches may bar one's right to quo warranto.51

tory to be duly incorporated as municipal

52. Andel v. Duquesne St. R. Co. \[Pa.\] 63

corporation. Beaumont v. Samson, 5 Cal.

A 278. Bill in equity to enjoin street rail-

App. 491, 90 P 839, To attack validity of in-

vay from laying railroad tracks in city

corporation of town. State v. Beilflower

street under alleged invalid franchise pur-

\[Mo.\] 108 SWF 117. Legality of body

ported to be granted held in effect to be quo

constituting municipal corporation can only

be attacked by quo warranto. Buck v.

Duqiangs \[N. J. Law\] 65 A 848.

Broad St. Rapid Transit St. R. Co. \[Pa.\] 67

47. Malone v. New York, etc., R. Co.

\[Mass.\] 83 NE 408.

83. St. 1898, $ 346. State v. Milwaukee

\[Mass.\] 83 NE 408. Legislative acts granting right to maintain dam of specified

Independent Tel. Co. \[Vis.\] 114 NWV 108.

\[Mass.\] 83 NE 408. Legislative acts granting right to maintain dam of specified

from streets. People v. Central Union Tol.

height in stream under certain condition

as to navigation and rights of riparian own-

\[Vis.\] 114 SWF 118.

as held sufficiently in nature of franchise

to come under St. 1898, $ 3466, authorizing

issuance of writ of quo warranto. State v.

Norcross \[Vis.\] 112 NWV 40.

49. Malone v. New York, etc., R. Co. \[Mass.\] 83 NE 408.

01. To question authority of respondents

to office and privileges of trustees of cementy association. Hankins v. Newell N. J. Law\] 66 A 929. Since $ 8, Act April 29, 1874,

p. L. 13, providing for setting aside invalid

election of corporation officers, did not re-

peal act of June 14, 1836, providing for writ

quo warranto to question not validity of

election but right of officers to exercise of-

fice, it is error to require action to question

title to corporate office to be brought under

later act. Commonwealth v. Straus, 32 Pa.

Super. Ct. 389, Appropriate remedy when

question arises concerning exercise of office

in corporation created by authority of law

and having chief place of business within

county under $ 2, Act June 14, 1836, P. L.

$21. Id.

$1. Hurd's Rev. St. 1905, c. 112, $ 1. People v. Heidelberg Garden Co., 233 Ill. 290, 84

NB 230.

10 Cur. Law. QUO WARRANTO SS 3. 1359 SS 2. \_Jurisdiction.\_See S C. L. 1585.--The exercise by the supreme court of its original jurisdiction rests in its discretion, \[92\] and the general rule is that the supreme court will assume original jurisdiction at the relation of private parties only in cases which present some special reason or some special or peculiar emergency, or where the interests of the state at large are shown to be such as to render it apparent that the interests of justice require its exercise, \[98\] after weighing all the facts and the attitude of the attorney general with reference to the particular case under consideration where he refuses to bring or consent to the bringing of the action. \[94\] In such a case while the refusal of the attorney general to apply for the writ or consent to the application by a private relator may have great weight with the supreme court, it is not necessarily controlling. \[95\]

SS 3. \_Parties and the right to prosecute.\_See S C. L. 1585.--Proceedings in the nature of quo warranto on the relation of a private citizen are controlled by statute, \[96\] and under the statute the plaintiff in the action must be the real party in interest \[97\] and must have an interest in the subject of the action and the relief sought. \[98\] The statute provides for trying title to office either on information filed by the prosecuting attorney \[99\] or any other person on his own relation whenever he claims an interest therein, \[96\] and does not attack the existence of the office \[71\] when the attorney general refuses to act, \[71\] or in Wisconsin the office usurped pertains to a county. \[98\] The inter-

to act, fatal. State v. Noble \[N. D.\] 112 NW 114. 62. State v. Burr \[N. D.\] 113 NW 705; State v. Noble \[N. D.\] 112 NW 141. 63. Refused at instance of private relator questioning right of county officials to act under alleged unconstitutional act creating conflicts where he shows no greater interest than other residents and property owners and failed to invoke jurisdiction of district court properly having jurisdiction in such cases. State v. Noble \[N. D.\] 112 NW 141. Original jurisdiction assumed in case of illegally appointed judge threatening to assume jurisdiction over cases in which relator is interested. State v. Burr \[N. D.\] 113 NW 705. 64. State v. Burr \[N. D.\] 113 NW 705. 65. Not controlling where Judge illegally appointed threatens to assume jurisdiction of cases in which his acts in consequence of his illegal appointment would be null and void. State v. Burr \[N. D.\] 113 NW 705. 67. Fact that attorney general indoresed consent to invoking-original jurisdiction does not change rule. State v. Noble \[N. D.\] 112 NW 141. 66. State v. Job, 205 Mo. 1, 103 SW 493. Par. 1, & 2, Act June 14, 1836 (P. L. 623), applying to township officers and permitting quo warranto only by attorney general, does not affect board of managers of poor of township, not being township officers. Commonwealth v. Dowitch, 217 Pa. 527, & & 365. 867. 67. Code CIV, Proc. 812 26, 35, Gen. St. 1091. 83 4454, 4463. Eaughm v. Nation \[Kam.\] 92 P 548. In action in quo warranto in name of state to disorganize municipality for purpose of escaping payment of municipal taxes, state has no interest and is not proper party. State v. Shufford \[Kam.\] 94 P 137. 68. Insufficient where plaintiff's only interest aside from that of citizen and tax may be used that defendant holds separate and distinct office which results in diminishing est claimed by one seeking to try title to office by quo warranto must be shown to be such as will in the eye of the law give him a standing in court to maintain the action,\[74\] and one having no interest in an office held by defendant different from other members of the general public must have the maintenance of the action to some one authorized to appear for and represent the general public.\[75\] The attorney general only may attack the validity of the incorporation of a town,\[76\] or a street railway charter,\[77\] but in some cases a private person may be competent to question an alleged usurpation provided he has some interest in ending it.\[78\]

The statutory requirement as to parties must be followed.\[78\] If the charge be that the corporation is exercising powers not given by its charter, the action proceeds against the corporation to oust it from the use of the usurped power,\[80\] but where it is claimed that corporate powers are being usurped by a body which has no corporate existence, the action must be against the individuals who are usurping corporate rights.\[81\] The attorney general is a proper party to a suit to question title to office only when the office is a public office.\[82\] In Massachusetts the statute does not limit the authority of the attorney general to proceed independently of action by the railroad commissioners in any case where the interests of the public seem to him to require it.\[83\]

_Leave to file an information.\[85\]_ See S. L. 1586--A proceeding in the nature of quo warranto at the relation of a private citizen can only be filed by leave of court.\[84\] The petition for such leave to file an information in the nature of quo warranto must be verified,\[85\] and the affladavits accompanying the petition must be made by persons knowing the facts and must be full and positive.\[86\] In the absence of statutory requirement, no notice need be given the defendant of an application for leave to file an information.\[87\] It is also necessary in the absence of a statute conferring such authority that a private person secure the interposition of the proper state official before proceeding in his own name.\[88\] In such cases the proper practice is to pre-

votes for office even though he be ineligible.\[\] that compilant may set forth name of per-

State v. Bell \[Ind.\] SS2 NEB 69.

75. Minority candidate has no such interest

showing his right thereto, and judgment

as entitles him to question eligibility of

be rendered to person entitled to office, such

majority candidate. Hudson v. Conklin

\[Kan.\] 93 P 585. Refused at instance of

\[private relator who has no greater interest

54 Mise. 130, 105 NYS 844.

than other residents and property owners.

86. In case questioning existence of street

\[N. D.\] 112 NW 141.

76. State v. Bellflower \[Mo. App.\] 108 SVW 117.

01. Andel v. Duquesne St. R. Co. \[Pa.\]

69 A 278. Private individual cannot manlaim bill in nature of quo warranto to test

street railway's right to use public street.

Thirteenth & Fifteenth St. Pass, R. Co. v.

Broad St. Rapid Transit St. R. Co. \[Pa.\] 67 A

901.

001. Taxpayer in district affected has sufficent Interest to institute proceedings to

question constitutionality of law establish-

ing office of supervisor of county assessment,

under St. 1898, 8 3466. State v. Samuelson,

131 VIs. 499, 11 NW 712. Taxpayer has

sufficient interest if exercise of powers and

franchise sought to be questioned may

nvolve city In a pecunitary way. State v. Miliwaukee Independent Tel. Co. \[Twis.\] 114

279. Louisville, etc., R. Co. v. State \[Ala.\]

46 S 296. Under Code Civ. Proc. **SS 1948**,

1949, authorizing attorney general to manlaim action on own information against person who usurps a public office and provides

1360

Quo warranto SS 3.

10 Cur. Law

78. Taxpayer in district affected has sufficent Interest to institute proceedings to

question constitutionality of law establish-

ing office of supervisor of county assessment,

under St. 1898, 8 3466. State v. Samuelson,

131 VIs. 499, 11 NW 712. Taxpayer has

sufficient interest if exercise of powers and

franchise sought to be questioned may

may involve city In a pecunitary way. State v. Miliwaukee Independent Tel. Co. \[Twis.\] 114

279. Louisville, etc., R. Co. v. State \[Ala.\]

46 S 296. Under Code Civ. Proc. **SS 1948**,

1949, authorizing attorney general to manlaim action on own information against person who usurps a public office and provides

1360

10 Cur. Law

78. Taxpayer in district affected has sufficent Interest to institute proceedings to

question constitutionality of law establish-

ing office of supervisor of county assessment,

under St. 1898, 8 3466. State v. Samuelson,

131 VIs. 499, 11 NW 712. Taxpayer has

sufficient interest if exercise of powers and

franchise sought to be questioned may involve city In a pecunitary way. State v. Miliwaukee Independent Tel. Co. \[Twis.\] 114

279. Louis sent to the attorney general or the state's attorney for his signature a petition addressed to the court for leave to file the information." If the papers presented are in proper form and the evidence presented establishes a legal right in the petitioner, it is the duty of the attorney general or the state's attorney to affix his signature thereto." If he refused to affix his name to the petition in a proper case, he can be compelled to do so by mandamus," but where the proceedings are brought by the people and invoke no individual rights, the discretion of the state's attorney as to the institution of the proceedings is absolute." The fact that the proper officer has exercised his discretion in permitting the bringing of quo warranto proceedings is evidenced by his signature to an information in due form and its exhibition to the court," which signature need not be on oath or authenticated by jurat." The state's attorney can be deprived of the right to exercise this discretion only by statute," but after the information is exhibited, filed, and the proceeding commenced, the relator thenceforward shares with him the control and disposition of the litigation," and the proceeding is thereafter in the control of the court." The refusal of the attorney general to give his consent to the action will only be reviewed by the court in exceptional cases and within the discretion of the court."

\_Process.--\_In Pennsylvania a statute providing for service of a copy of the information and the rule to plead," and providing that service on nonresident defendant either personally or by mail is sufficient, is valid.'

SS 4. _The information or complaint._" See * C. L. 1887--\_This proceeding was originally commenced by the issuance of a writ against the respondents inquiring by what right they claim or usurp powers and franchises which can emanate only from sovereign authority." The practice was later changed, and under statute the proceeding is commenced by the filing of an information in the nature of a writ of quo warranto." Hence, except as changed by statute, pleadings in the nature of quo warranto should correspond to pleadings at common law where such a course will not prevent the formation of proper.issues." The office of an information in the

cannot bring action against jury commmis-

82. People v. Healey, 230 Ill, 280, 82 NE slioners under St. 4898, $ 2553a, without first

01. applying to attorney general. State v.

93, 94. State v. Taylor, 208 Mo. 442, 106 Anson \[Ws\]. 112 NW 475. Statute concerns

SWV 1025.

power to determine whether quo warranto

95. Does not lose right by caprice or in-

proceeding shall be instituted upon discrete-

attention or nonaction of attorney general.

tion of attorney general and prosecuting at.

State v. Taylor, 208 Mo. 442, 106 SWV 1023.

427.
001.
001.
001.
001.
001.

1362 QUO WARRANTO SS 4.10 Cur. Law

nature of quo warranto is simply to call upon the defendant in general terms to show by what warrant or charter the privilege claimed is held and exercised.\* Hence, the allegations of usurpation may be of a general * and informal character,\* the pleading being sufficient if establishing a prima facie charge.\* However, in those states where the statutory system in respect to quo warranto has supplanted the common law, the statutory requirements as to procedure must be followed.\* In such states the information or complaint is the first step in the pleadings,\* and it must aver the act or omission complained of clearly and concisely,\* and must contain the essential elements prescribed for the complaint by the statute.\* While it is not objectionable to rely upon two or more grounds of usurpation in one information,\* the usual rule permitting joinder only of such causes of action as affect all parties to the action applies,\* nor should incompatible causes of action be joined in the complaint,\* and each ground should be stated in a separate count or paragraph.\*

stated in Code of Civil Procedure. State v. \[is to be ousted, so that defendant is not Missouri Pac. R. Co., 206 Mo. 28, 103 SVP 336. \[clearly informed of matter to be put in issue $. Not office to tender issue of fact. Peo- \[cb 10 Cur. Law. QUO WARRANTO SS 5. 1363

In New York an action has been substituted for the ancient proceeding by writ, a complaint taking the place of the information.\[17\]

SS 5. \_Answers and other pleadings and motions to quash and dismiss.\_See SS 6. C. L. 1987.--When the information is in general terms, tendering no issue of fact, it cannot be traversed,\[18\] but the defendant must answer by disclaimer or justification,\[19\] and in such a case a pleading establishing a prima facie answer is sufficient.\[20\] If the defendant justifies, the justification must state specifically the grounds of defense,\[21\] and must show not only that he once had the right to use and enjoy the license or privilege but that he still has it.\[22\] The plea, however, need not anticipate matter proper for replication,\[23\] and a traverse upon a traverse is not permissible.\[24\] The defendant is not limited to a single defense but numerous defenses may be set up if they are not inconsistent,\[25\] but defenses of a different character require different pleas.\[26\] A demurrer lies to a complaint which fails to comply with statutory requirements,\[27\] and admits the truth of all that is stated therein.\[28\]

New matter may be set up by replication showing that the rights claimed in the plea have terminated,\[29\] or are invalid or inapplicable,\[30\] and the ineligibility of one

tive or disjunctive, so that it is impossible

corporation may operate railroad in Ala-

to say which averment relied upon, objec-

bama without express charter power to do

tionable. Louisville, etc., R. Co. v. State

so granted by Alabama legislature and orig-

\[Ala.\] 45 S 294.

mal character power to do act complained of,

17. People v. McClellan, 119 App. Div. 416,

properly raised by answer where not raised

104 NYS 447.

Is. People v. Central Union Tel. Co., 232 State \[Ala.\] 45 S 296.

Ill. 260, SS NE 829; State v. Missouri Pac.

Ill. 290, SS 4 NE 220.

Ill. 260, SS 3 NE 829; State v. Missouri Pac.

Ill. 261, SS 3 NE 829; State v. Missouri Pac.

Ill. 262, SS 103 NE 829.

Ill.

to hold office where his right to do so is questioned "1" may be so asserted. Replications setting out repeal of ordinance without showing any breach of its conditions or right to repeal it,"32 or setting up alleged implied conditions not contained in the reaffirming the usurpation.34 The pleadings may be amended as pleadings in other reaffirming the usurpation.34 The pleadings may be amended as pleadings in other civil cases,35 except that in Missouri proceedings instituted ex officio by the attorney general without leave, being governed by the common law, permit of no amendment.36 The statute of New Jersey provides that, in quo warranto proceedings to try defendant's title to an office, the defendant may also put the relator's title to the same office in issue.37

SS 6. \_Trial and judgment.\_See s C. L. 1888--The court will try the true merits of the controversy, namely, whether the incumbent has been legally elected, and not merely the question whether he has by the various other tribunals having to do with an election been decided to be so elected.38 and the statute authorizes the court to adjudge the relator to be entitled to the office whose title is sought to be tried by the proceedings,39 where the pleadings are properly framed for that purpose,40 but the rights of persons not parties cannot be adjudicated.41

In an action of quo warranto against a public officer, the only judgment which can be entered against him is ouster.42 In quo warranto proceedings based on unlawful usurpation of franchise privileges not granted in the original franchise, judgment under the statute may only be of ouster of the excess unlawfully usurped.43 A judgment in quo warranto proceedings is self-executing.44 The Iowa statute also makes refusal to obey orders of the court in quo warranto proceedings contempt,45 and provides that obedience to such judgment may be coerced by attachment as for contempt.46 A former judgment of dismissal in quo warranto proceedings is no bar to a new action by different parties.47 An information in the nature of quo warranto

30. Where plea to information questioning

exercised the rights and privileges of the vallity of dramshop license issued ln particular portion of city sets out general charter and ordinance provisions, fact that such ordinance and provisions do not apply to particular locality in question should be set out by replication to plea. People v. Heldelberg Garden Co., 233 Ill. 290, 84 NE 230.

31. Frost v. State \[Ala.\] 45 S 203.

01. People v. Central Union Tel. Co., 232 Ill. 260, 83 NE 829.

01. City cannot impose new and added conditions not contained ln ordinance and forfeit license for failure to comply with them. People v. Central Union Tel. Co., 232 Ill. 260, 83 NE 829.

01. Where only issuable matter in pleas was traverses under absque hoc. People v. Central Union Tel. Co., 232 Ill. 260, 83 NE 829.

01. State v. Job, 205 Mo. 1, 103 SW 493.

Rev. St. 1899, $ 675 (Ann. St. 1906, p. 691).

State v. Missouri Pace. R. Co., 206 Mo. 28, 103 SV 936.

36. State v. Job, 205 Mo. 1, 103 SW 493.

01. P. L. 1903, p. 379. Magner v. Yore \[N. J. Law\] 66 A 948. Single plea in bar setting up defendant's title to the office insufficient to put relator's title in issue. Id.

01. State v. Ralsier \[NWs.\] 114 NWV 118.

01. P. L. 1903, p. 379, $ 12. Decker v.

Daudt \[N. J. Err. & App.\] 67 A 375.

40. information charging that relator was duly appointed office for term exploring on certain date and that he duly qualified and 10 Cur. Law. RAILROADS. 1385

ranto filed against a corporation in its corporate name admits the existence of the corporation.\[48\]

SS 7. \_New trial and review.\_See 8 C. L. 1889.--A writ of error lies from the refusal of a judge of the superior court to grant leave to file an information in the nature of a writ of quo warranto.\[49\]

Racing.\[80\]

_The scope of this topic_ is noted below.\[81\]

While the New York state racing commission is vested with discretion as to the grant of license,\[82\] such discretion must not be exercised in an arbitrary or unreasonable manner.\[83\]

RAILROADS. 1. Definitions and General Nature of Railroads, 1386. 2. Franchises, Licenses, Permits, and the Like, 1386. 3. Route, Location, Terminal, and Stations, 1386. 1386. Alterations, Changes, and Discontinuous, 1367. 8. Rights of Way and Other Landu, and the Acquirement Thereot, 1388. Grants in Highways and Strects, 1388. Grating Right of Emmment Domain, 1370. 1389. Constructions and Reservations in Private Grants, 1370. 1370. 1370. 1371. 1389. 1372. 1373. 1374. 1375. 1376. 1377. 1378. 1379. 1389. 1389. 1390. 1391. 1392. 1393. 1401. 1410. 1421. 1433. 1445. 145. 1461. 1471. 1481. 1492. 1493. 1501. 1511. 1521. 1531. 154. 1556. 156. 1571. 1581. 1593. 1601. 1611. 1621. 1631. 1641. 165. 1666. 1671. 1681. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1693. 1703. 1713. 1723. 1733. 1743. 1753. 1763. 1776. 1781. 1793. 1803. 1813. 1823. 183. 1843. 1853. 1863. 1876. 1887. 1888. 1893. 1893. 1933. 1933.

1366 RAILROADS $ 1. 10 Cur. Law.

Contractual Exemptions from Liability, 1422. Contributory Negilance, 1423. Peix-Genee, 1423. Peix-Genee, 1423. Peix-Genee, 1438. Powers

Sumptions, 1423. Admissibility of Evidence, 1424. Instructions, 1425. Damages, 1426. Peix-Genee, 1428. A Actions by and Against Rallroad Companles, 1439.

The rights and duties of railroads as common carriers,\[54\] their liability to employees,\[88\] and matters common to all corporations,\[58\] are elsewhere treated.

SS 1. _Definitions and general nature of railroads,\[88\]_ S C. L. 1590--Technically a railroad is any way or road on which rails are laid for the transportation of freight or passengers,\[97\] without regard to length or ownership of rolling stock.\[88\] The term includes all public \[89\] switching tracks and approaches to bridges maintained by the company.\[90\] A distinction, however, is generally made between a commercial railroad and a street railway,\[91\] and in determining the class of a particular road, reference must be had to its charter \[92\] and the statute under which it was organized.\[88\] The fact that a railroad charges toll for the use of its property does not change the character thereof.\[94\]

SS 2. _Franchises, licenses, permits, and the like,\[88\]_ S C. L. 1591

SS 3. _Route, location, termini, and stations.\[88\]_ S C. L. 1592--The railroad first completing the location of its route \[88\] has priority, which will be protected from en-

- 54. See Carriers, 9 C. L. 466. railroad company, directly and continually
- 55. See Master and Servant, 10 C. L. 691.
- 56. See Corporations, 9 C. L. 733.
- 57. Mode of construction and chartered Board of Equalization v. People, 229 Ill. use, and not mottive power, determines. McClearly v. Babcock \[Ind.\] 82 NE 453. Lum-
- 61. A railroad corporation cannot perform ber company operating tramway for private use held subject to rules governing ordinary railway companies, and liable for wantonly
- 62. A railroad corporation cannot perform and unnecessarily blowing whilte to fright-en horse. Stewart, V. Carry Lumber Co. IN. C.1 59 SE 645. Act May 12, 1869 (Laws 1869, p. 92, c. 44), was entitled an act to author-lize aid in construction of "railroads" by countries and towns. Act Mar 9, 1903 (Acts 1903, p. 233, c. 134), provides that word "railroads" occurring in Act 1869, or in any act amendatory or supplemental thereof, shall include street railroads, etc. Held that Act of 1869 was not limited to steam railroads, and hence Act 1903 was not objectionable as not germane to title. McCleary v. Babcock \[Ind.\] 82 NE 453.
- 63. State v. Wiggins Ferry Co., 208 Mo. 622, 106 SWV 1005. Ferry company operating tracks over which steam cars are drawn to and from ferry, same being used for storage, for loading and unloading, and for regular traffic and switching purposes, held operating railroad within Rev. St. 1899, c. 149, art. 8 (Ann. St. 1906, pp. 4293-4315), providing for assessment and taxation of railroads. Id.
- 64. In determining whether switch is a public one or-merisy a private spur track, on Ottawa, 1425.
- 65. Auctions by and Against Rallroad Companles, 1439.
- 66. Auctions for Injuries, 1426. Plead-Ings, 1426. Burden of Proof, 1428.
- 67. The rights and duties of railroads as common carriers,\[54\] their liability to employees,\[88\] and matters common to all corporations,\[88\] are elsewhere treated.

SS 1. _Definitions and general nature of railroads,\[88\]_ S C. L. 1590--Technically a railroad is any way or road on which rails are laid for the transportation of freight or passengers,\[97\] without regard to length or ownership of rolling stock.\[88\] The term includes all public \[89\] switching tracks and approaches to bridges maintained by the company.\[90\] A distinction, however, is generally made between a commercial railroad and a street railway,\[91\] and in determining the class of a particular road, reference must be had to its charter \[92\] and the statute under which it was organized.\[88\] The fact that a railroad charges toll for the use of its property does not change the character thereof.\[94\]

SS 2. _Franchises, licenses, permits, and the like,\[88\]_ S C. L. 1591

SS 3. _Route, location, termini, and stations.\[88\]_ S C. L. 1592--The railroad first completing the location of its route \[88\] has priority, which will be protected from en-

- 54. See Carriers, 9 C. L. 466. railroad company, directly and continually
- 55. See Master and Servant, 10 C. L. 691.
- 56. See Corpor 10 Cur. Law. RAILroads SS 3.

croachment by other roads provided it proceeds with reasonable diligence to construct the same.68

\_Stations.--\_While a railroad cannot by private contract impair its capacity to discharge its duty to the public,97 a contract for the location of a station or side tracks at a particular place,48 or to maintain same,99 is not per se void,70'and the party seeking to escape therefrom has the burden of establishing by satisfactory evidence that it is so in conflict with the duties owed to the public as to prevent a discharge thereof.11 Such contracts where valid may be enforced in equity where the remedy at law is inadequate,72 due regard always being had to the rights of the public.13 Where reasonably necessary,14 the legislature may require the location of a station at a particular place and enforce the same by a criminal prosecution.78

\_Alterations, changes, and -discontinuances.\_See e C. L. 1503.--Where a railroad, given power to locate its route-between designated termini, has done so, such route cannot be changed without legislative authority,76 and any private person suffering special injury may enjoin an unlawful removal77 unless the right has been lost by lache.78

cured for eight of the nine miles of the line, that railroad maintain spur track and de-held that location of route was complete (In pot near hotel, which would be peculiarly re MIIwaukee Light, Heat & Trac. Co. \[Wis.\] beneficial to his business, equity will enforce 112 NWV 663), and it was immaterial that same unless it will directly, materially, and prior surveys by other parties were adopted (Indivously affect public rights. Id.) and that only option contracts were held (Id.).

86. Will not protect survey and location (Ifa. Taylor v. Florida East Coast R. Co. where nothing has been done for seven years and there is no purpose of construct-ing road in near future. Columbia Valley of land for main track, railroad agrees to R. Co. v. Portland, etc., R. Co. \[Wash.\] 94 maintain spur track, depot, etc., grantor P 918.

01. Whether private contract obligation of contract to maintain spur, since rights of conflicts with duty owed to public cannot be arbitrarily determined by railroad. Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574.

01. Alllegations of negotiations and of acts of parties thereafter held to show contract to locate and maintain station at particular place, determination of place in consideration of plaintiff's purchas. In nearby property. Atlanta, etc., R. Co. \[Wash.\] 94 c. Camp \[Ga.\] 60 SE 177. Where railroad accepts dedecvying right of way and uses land so conveyed, it is bound by the terms thereof though not signed by it. Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574.

01. Alllegations of negotiations and of acts of parties thereafter held to show contract to locate and maintain station at particular place in consideration of plaintiff's purchas. In nearby property. Atlanta, etc., R. Co. v. State \[Ar.\] 106 SWV 96b. Spe-v. Camp \[Ga.\] 60 SE 177. Where railroad accepts dedecvying right of way and reasonshapes and public necessity for requirements land so conveyed, it is bound by the terms thereof though not signed by it.

question raising question of validity of Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574.

86. Contract "to maintain the spur track, depot and platform " * * during what is known as "winter tourist season," which consideration is binding upon the party of the second part, its successors and assigns," * considered in light of surrounding circumstances, held to indicate intention to remain binding so long as conditions remained substantially same between parties and their privies. Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574.

01. Enforceible so long as it does not interfere with superior rights of public. Atlanta, etc., R. Co. v. Camp \[Ga.\] 60 SE 177. While railroad is not bound by private contract which renders it incapable of performing its duties to public, yet where contract is not foreign to lawful purposes of corporation, but is fairly within its authorized powers and purposes, and not forbidden by statute, it is valid. Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574. Where owner of hotel conveyed land for right of way for main line, spur track, and depot, in consideration
    In the absence of charter limitations, contractual obligations, or statutory enactments, a railroad may discontinue a side track 79 upon reasonable notice,80 but is liable for resulting injury where no notice is given.81

SS 4. _Rights of way and other lands, and the acquirement thereof.85e & C. L. 1594_

The term "right of way" ordinarily means the entire strip condemned for railroad purposes.82 While a right of way cannot be acquired by dedication,83 it may be acquired by purchase.84 Whether a railroad has a fee or only an easement depends upon the statute or decd under which the right of way is acquired,85 and one having only an easement cannot excavate sand therefrom for sale.86 The right to construct laterals depends upon the road's charter powers.87

\_Grants in highways and streets.85e & C. L. 1595--\_The power to occupy highways and streets must be derived directly or indirectly from legislative grant,88 and ordinarily the right to pass along or over a highway or street does not include the right to the exclusive use of any part thereof,89 although it has been held to authorize the construction of a switch.90 General power to construct a line carries the right to cross highways and streets.91 A railroad cannot acquire right to the exclusive use of a street by any length of user.92 Except in the exercise of the power of eminent do.

\\begin{tabular}{l|l} held error to strike out so much of answer & warranty deed and proceedings were dismised, railroad acquired fee, notwithstanding. Id. \\
78\. Held error to strike out defense of & land is taken without consent of owner \\ laches. Atlantic, etc., R. Co. v. Kirkland, & 232 Ill. 581, 83 NE 1068. \\
79\. Durden v. Southern R. Co., 2 Ga. App. & 86. 58 NE 299. \\
80\. What is reasonable notice is question & \\ for jury, and in determining it rights of & 14, to Baltimore & Ohio R. Co. to construct \\ & Durden v. Southern R. Co., 2 Ga. App., 64. & 87. Power given by Acts 1826, c. 122, & 14, to Baltimore & Ohio R. Co. to construct \\ & Durden v. Southern R. Co., 2 Ga. App., 65. & 14, to Baltimore & Ohio R. Co. to construct \\ & Durden v. Southern R. Co., 2 Ga. App., 66. & 87. & 14, set & feeders to port of Baltimore, \\ & 88 NE 299. \\
81\. Shipper of wood held entitled to recover for loss to wood cut in bona office & \\ & pation of shipment, but not for wood standing, although he purchased because of shipping facilities. Durden v. Southern R. Co., 2 Ga. App., 66, 85 NE 299. \\ & Sz. St. Louis, etc., R. Co. v. Wabash R. Co. & \\ & \[C. C. A.\] 15 F 849. Decreate that Colorado & \\ & company should have joint use of the & \\ & "right of way, tracks, switches, side tracks, & \\ & "tarpouts, turntables of Vrabash Railroad Company," etc., held to give right to joint & \\ & use of entire strip and all the facilities thereof on (I0.), but not facilities outside such & \\ & strip as it then existed (Id.). Held that & \\ & no change of conditions are shown to justify & \\ & court of equity to retuse to enforce such de- & \\ & & \\ & & \\ & & \\ & \\ & & \\ & \\ & & \\ & \\ & & \\ & \\ & & \\ & \\ & \\ & & \\ & \\ 10 Cur. Law. RAILROADS SS 4. 1369 main, the legislature in Ohio has no power to authorize the construction of an elevated road in the street."

While in the absence of statute a municipality has no power to authorize the construction of a railroad in the street," the right to so occupy has been made to depend in most states upon municipal consent," by the proper authorities," and the occupation must be within the consent given," and all conditions complied with if not waived." In Pennsylvania municipal consent is necessary to the elevation or depression of an existing track in a street." Likewise the right to occupy 1 or cross 2 a highway is usually * made dependent upon the consent of the proper highway officials. A private person suffering special damages from an unlawful occupation of a street or highway may enjoin such occupation," but he has the burden of showing such unlawful occupation."

93. Louisville, etc., R. Co. v. Cincinnati, 76 given by board of aldermen to New York & L. I. R. Co. to construct tunnel under land

01. Pittsburg etc., R. Co. v. Warmum \[In\]. conveyed to city under Laws 1870, p. 390, c. App.\] 92 NE 394. Neither Rev. St. 1852, & 137, & 99, as amended, for docks, held not

3283, Act May 3, 1904, & 1 (97 Ohio Laws, revocable after railroad had expended large p. 546), nor Rev. St. 1906, & 3337-17A, 3337-11P, authorize municipality to grant rightment's permission had not been obtained. to occupy street with railroad structure. Id. Louisville, etc., R. Co. v. Cincinnati, 76 Ohio St. 481, & 33 NE 583. General grant to

96. Consent in cities of second class can only be given by common council. Delaware,

01. Louisville, or 1870, & 1700, & 1710, & 1711 1370 RAILROADS SS 4. 10 Cur. Law.

_Bight of eminent domain._"

\_Private grants.\_See * C. L. 1597.--Many of the general rules governing the construction of contracts and deeds are applicable to private grants of right of way." The description in the deed controls the survey as to the land conveyed thereby." A contract to convey a right of way within a specified time gives no present right of entry." A grant of right of way as subsidiary to mining rights dces not authorize its use for general railroad purposes.10

\_Conditions and reservations in private grants.\_See * C. L. 1598.--Agreements to construct private crossings,11 depends,12 etc., are frequently made the inducement or consideration for private grants. While conveyance in consideration of the establishment of a station does not create an estate upon condition, so that noncompliance will work a forfeiture,13 the construction of the road or a commencement thereof over the land granted within a specified time is frequently made a ground of forfeiture.14 Where granted is in possession at time of forfeiture, nothing is necessary to revest title,15 and re-entry in any event may be expressly excused.16 Substantial compliance with the conditions of the grant is usually sufficient to prevent forfeiture,17 but the fact that the construction force was concentrated on another part of the line as a result of some litigation does not relieve forfeiture for failure to complete within specified time.18 Where land is conveyed in consideration of the establishment of a depot thereon, the company has a reasonable time within which to construct the same.19 Where action is brought against one company for failure to locate depot as required by grant to another and for trespass committed by the latter,

Lads 1890, p. 1109, c. 565, SS 92, be compiled with has burden of pointing out omitted provision. Manton V. Shonst Shore Tra. Co.,

thereon, and providing that it is to be used with has burden of pointing out omitted provision. Manton V. Shonst Shore Tra. Co.,

only in connection with railroad and its busl-104 NY8 #12.

should erect depot thereon and not merely

- Ge. 8C. L. 1597. See, also, Eminen Domain, 9 C. L. 1073.

- Where contract binds owner to convey right of way 56 feet wide on each side of the center line thereof as finally located at $100 per acre, parol evidence is admissible to show that center line was located at the time, of which parties had knowledge, and that strip thus conveyed included land

previously conveyed, as bearing on question whether railroad was to pay $100 per acre for entire strip or only new land conveyed. Albert v. Tidewater R. Co. \[Va.\] $8 EE 575. Contract constructed to require payment only for new land conveyed. Id.

- Columbia Valley R. Co. v. Portland, etc. R. Co. \[Va.\] $4 P 918.

- Agreement to convey right of way within a specified time, with unrestricted right to enter, locate, and construct a railroad. Boring Lumber Co. v. Roots \[Or.\] $90 P 487.

- Jackson v. Big Sandy, etc., R. Co. \[Va.\] $9 SE 749. Constitutional inhibition against taking of private property for public use without compensation gives equity jurisdiction to restrain such use (Id.), and equity, Independent of constitutional inhibition against taking private property for public use without payment of compensation or relying of security thereor, may enjoin such use (Id.).

- Evidence held to show parol agreement to construct private crossing made as inducement to execution of deed. Perklo-men R. Co. v. Bromer, 217 Pa. 263, SS 849.

- 12. Deed of land in consideration of establishment and maintenance of station 10 Cur. Law. RAILROADS SS 4. 1371

petition must show such connection between the two companies as to render defendant liable for the acts of the contracting railroad.\[20\]

\_Adverse possession.See S C. L. 1899--A railroad may acquire a right of way by adverse possession, and where a cut or a fill is being used, the adverse possession extends to the top of the cut and to the base of the fill,\[31\] and, likewise, a way across its right of way may be acquired by prescription.\[22\] A railroad acquiring land for a right of way over which individuals exercise and claim a well defined way adverse to and by recognition of the owner takes with notice of their rights.\[23\]

\_Right to cross right of way of other roads.--\_While power to construct a line necessarily implies authority to cross other roads,\[24\] the right is frequently given by express legislative enactment.\[25\] The right is often controlled and regulated by private contract.\[26\]

\_Abandonment of right of way.See S C. L. 1899--\_Abandonment is largely a matter of intention \[27\] as gathered from all the surrounding circumstances.\[28\]

\_Establishment of highways over right of way.--\_A railroad may dedicate \[29\] a crossing for a highway, and, where once dedicated, it cannot recall the same.\[30\] Where a railroad has only an easement, it is not entitled to compensation for land taken in condemning a highway crossing.\[31\]

\_Actions.--\_In determining the location or extent of a right of way, the general

20. Petition in action for damages for failure to locate depot on petitioners land atlantic Coast Line R. Co. v. 465.

of right of way and for trespas held not to state cause of action against appellant, as

possession of right of way for spur track it failed to connect it with company making contract so as to render it liable thereon or in tort for its trespas. Atlanta, etc., R. 281, 57 SE 814.

21. Louisville & N. R. Co. v. 5116 \[Ky.\]

Southern R. Co. (C. C. A.) 158 F 122.

22. Where railroad acquires land for right of way over which individuals claim way adverse to owner, and such vray is continued for 20 years under claim of right against railroad company, held that they act.

justfaced prescriptive right of way, such vray not interfering with use of railroad's right of way. Trustees of Cincinnati Southern R. 10, 51, 5 1373 RAILROADS SS 5. 10 Cur. Law. rules as to admissibility of evidence, \[82\] and the proof required to establish the issue, \[83\] are applicable. SS 5. \_Aids and bonuses.\_See 8 C. L. 1890.--Public land grants to railroads \[84\] and municipal aid bonds \[85\] are elsewhere treated. Where a tax can be voted only in aid of "public improvements and railroads," a vote of aid to a corporation authorized to engage in private undertakings as well as railroad business is void unless limited in purpose. \[86\] In Louisiana the petition to the police jury to call an election to vote aid must be signed by the requisite number, \[87\] must state the amount of money to be raised and not the rate of the tax, \[88\] and the question of aid must be submitted singly and on its own merits. \[89\] Where an incorporated town appropriated money in violation of the constitution as an inducement to a railroad to enter acceptance of the benefit does not ratify the illegal appropriation \[40\] or estop the town from recovering back the money, \[41\] in an action at law. \[88\]

\_Subscriptions.\_See 8 C. L. 1890.--A subscription contract must be construed with reference to the intent of the parties at the time. \[43\] All conditions \[44\] precedent \[45\] must be complied with, although substantial performance is sufficient. \[46\] The time of payment is usually regulated by the contract of subscription. \[47\]

82. In action by railroad, claiming right \[48\] of way 200 feet wide through defendant's \[49\] Mo. App. 634, 97 SW 963. Where business premises, to enjoin obstruction thereof, or, can absorbed on condition that road run dence that plaintiff permitted others to use through or into his town such contract right of way on opposite side of track held \[49\] must be construed with reference to town properly rejected, defendants' rights not \[49\] linking as it existed at time of contract (Id.), being involved. Southern R. Co. v. Howell and court may consider subject-matter of \[S. C\] 60 SE 677. Letter written during agreement, the inducement, and circum-boundary controversy by superintendent states under which it was made as well as stating "It is my understanding that we \[49\] (Id.) own 50 feet on each side of track," held \[40\] 44 Application, ordinances, and recorded not a more statement of opinion but an audience constructed, and held that limits-- admission against interest. Id. Whether upon bond issue was not made a con-superintendent had authority to write letter \[40\] 410 of subscription. Sweeney v. Tennessee regarding boundary of right of way held \[49\] see Cent. R. Co., 118 Tenn. 297, 100 SWV for Jury. Id. \[49\] 48. Finding that right of way extends 100 \[49\] company, made under Actu 1887, 9, 57, 5, 3, feet on each side of center of track held \[40\] there is no implied condition that subscrip--supported by evidence that matter provided \[40\] 410 shall be void if entire stock is not for condemnation of such strip and that \[40\] 4110. Agreement by construc-main line was located in 1858 in practically \[40\] 4110 company to construct road and to re-its present location, since it will be pre- \[41\] 4110 be preferred \[41\] 41110 be preferred \[41\] 10 Cur. Law. RAILROADS SS 7. 1373 SS 6. _Taxes, fees, and license charges._ See 8 C. L. 1800.--By charter contract, proper'y used for railroad purposes 48 is frequently exempt from general taxation, and in most states a special method of assessment and valuation is prescribed by statute,49 which is not violative of the constitutional requirement of uniformity.50 The rule that a railroad cannot be taxed by a county to pay its subscription has no application to a franchise tax on an operating road.51 A right of way within the corporate limits of city of St. Louis is subject to special assessments for improvements.52 SS 7. _Public control and regulation._ See 8 C. L. 1801.--A state may regulate railroads,68 and the extent of such regulation is a matter of legislative discretion, subject to the constitutional guaranties for the protection of property.54 Regulatory status must conform with the constitutional requirement as to title.55

_Control by railroad commissions._ See 8 C. L. 1801.--The statute creating the Kansas board of railroad commissions is valid,56 and is not unconstitutional as delegating legislative 67 or as conferring executive and judicial powers,58 or as commingling the same,59 or as providing for the taking of private property without due process of

plied with by construction of new line from v. Wiggins Ferry Co., 208 Mo. 622, 106 SWV: first point and connecting with old line running through Bloomfield to other design- assessed of railroad property through commission, held not to impair uniformity: when railroad "shall have constructed and begun operation of road through certain town and when company "shall have caused" certain trust company "to execute in favor of undersigned a bond" conditioned that line should be maintained and operated for five years, held that operation must be cheaper, right to permit to permit to continue running trains for five years and operation designed to be temporary is insignificant. Set Louis, etc., R. Co. v. Housek, special assessment district held subject to 120 Mo. App. 634, 97 SWV 963. Held for Jury whether operation was in good faith. Id. R. Co., 206 Mo. 172, 104 SWV 67. Where railroad used old depot within city limits while constructing new depot out- size of city limits, evidence of endeavor to 54. State v. Missouri Pac. R. Co. \[Kan.\] secure extension of city limits for purpose of building into it instead of inside original limits is admissible on issue of good faith.

1374 RAILROADS SS 8. 10 Cur. Law. law.60 Generally railroad commissioners have only such powers as are expressly or by necessary implication conferred by statute,61 but where a matter lies within their jurisdiction, the courts will not ordinarily regulate the rights of litigants in respect thereto though they have the power.62 In many states the findings63 and the orders of the commission are prima facie correct and valid, and the burden is on the objector to show the contrary.64 Failure of a railroad to bring affirmative action to test the reasonableness of an order within thirty days does not, under the Kansas statute, preclude the railroad from asserting unreasonableness as a defensive matter.65 In a proceeding before the commission to determine the necessity of a connection between intersecting roads, questions relating to the taking of property and compensation are not involved.66 Where an order is in the alternative, the invalidity of one alternative does not affect the other.67

SS 8. \_Construction and maintenance.\_66e C. L. 1602--A railroad is not liable for annoyances and inconveniences incidental to its construction work,68 and may obstruct a highway for a time reasonably necessary to the proper prosecution thereof.69 A railroad may make reasonable changes in its right of way to meet the growing needs of commerce,70 providing it does not impose unreasonable additional burdens.71 Where, however, after the completion of the road, improvements are made to the injury of adjoining property, recovery may be had therefor.72 Where plain-

60. Since a hearing is provided. State v. distance. State v. Missouri Pac. R. Co. \[Kan.\] Missouri Pac. R. Co. \[Kan.\] 92 P 606. Rall-road appearing and participating in hearing 66. Louisville, etc., R. Co. v. Interstate R. cannot assert that order made therein is not due process of law. Id. 67. Where order of commission orders de-61. Code 1904, SS 1294d, subsec. 57, held to 67. Another order of commission orders de-61.40 authorise corporation commission to estab-service or to adopt motor car service for lish more than one connection between transesering, fact that defendant has no intensecting roads where reasonably neces-charter power to adopt motor power does sary for interchange of traffic. Louisville, not invalidate rest of order. State v. Mils-etc., R. Co. v. Interstate R. Co. \[Va.\] 57 SE 68. Not liable for annoyance and discomfort cause by team dust, noise, etc., pro-jurisdiction to establish rules governing traffle relations between intersecting roads, and hence court on appeal from order de-18 TC. Ct. Rep. 457, 101 SVV 1017, 69. Indictment held demurrable for fall-etc., R. Co. v. Interstate R. Co. \[Va.\] 57 SE 654.

01. Under Const SS 156, cl. "M," finding of corporation commission that a connection between two intersecting roads is reason-40 Necessary is prima facie correct. Co., 56 Misc. 253, 106 NYS 381. Louisville, etc., R. Co. v. Interstate R. Co. 71. Establishment of platform for reception of freight held on an unreasonable, additional burden. Townsend v. New York Co. \[Va.\] 57 SE 654. Mandamus proceedings to enforce order of commission. State v. Fact that partons use plaintiff's deck to Kidssont Pac. R. Co. \[Kan.\] 92 P 606. Order rema scme created no liability on com-compelling separate passenger service on Manfison Branch of Missouri Pac. R. Co. held prevent such use by a short fence. Id. not unreasonable on its face. Id. Evidence heplacing of wooden slulewary with an held insufficient to show that it was un-reasonable. Id. Evidence held to sustain burden on property. Id. No cause of action finding that connection was necessary, it explains existing connection was making approach over private crossing a traffic more difficult. Id.

01. Missouri, etc., R. Co. v. Perry \[Tex.\] Civ. App.J 18 Tex. Ct. Rep. 687, 102 SWV 1169.

01. Provision of Laws 1905, D. 653, c. 340, $ 11, making certain orders of the commis-sioners conclusive after 30 days, is a rule of evidence, and does not preclude assertion of defense in mandamus to compel ob-18 TC.

01. State v. Missouri Pac. R. Co. \[Kan.\] 92 P 606.

01. Louisville, etc., R. Co. v. Interstate R. Co. \[Va.\] 67. Where order of commission orders de-61. Code 1904, SS 1294d, subsec. 57, held to 67. Where order of commission orders de-61. Code 1904, SS 1294d, subsec.

10 Cvr. Law. RAILROADS SS 8. 1375

tiff's property has depreciated in value by reason of the erection of stockpens nearby, he may recover notwithstanding property generally, including his, has increased in value since the erection thereof.\* One seeking to hold a city liable for damages caused by change of grade in a street by a railroad company must comply with all eqnditions precedent.\**4 A railroad laying tracks in the street is usually required to restore the same to its former condition or to such state as not to unnecessarily impede travel.* Where, under an ordinance, a railroad repairs a bridge which a street railway was in duty bound to repair, the railroad is subrogated to the city's rights against the latter.\*\*7

\_Establishment and maintenance of depots.\_See 8 C. L. 1602...A railroad may exercise its own discretion as to the location of its depots, subject to the rights of the public and contractual limitations.\*\*7 Impossibility of performance excuses a railroad's noncompliance with a penal statute requiring the construction of a depot within a specified time.\*\*8 A railroad must exercise reasonable care to maintain its depot and grounds in a safe condition * for the use of those there by invitation,\*\*8 and is liable for injuries proximately resulting from negligence.\*\*81

\_Private farm crossings.\_See 8 C. L. 1603...By statute in most states, railroads are required to maintain private crossings,\*\*82

Footnote 82: https://www.statute.com/

may be had for personal discomfort and annoyance without regard to care exercised. Id. In action for damages, caused by maintenance of water tank near homesetad, fact that jury did not find for plaintiff on issue of personal annoyance did not necessarily prevent finding that property had deperelated in value. Texas, etc., R. Co. v. Eddrington \[Tex. City. App.\] 102 SW 1171.

73. Gulf, etc., R. Co. v. Blue \[Tex. City. App.\] 18 Tex. Ct. Rep. 377, 102 SW 128. Where property was used for residence purposes, evidence of depreciation in value for such purpose is admissible. Id.

01. Laws 1883, p. 100, c. 113, as amended by Laws 1884, p. 134, c. 281 and Laws 1894, p. 130, c. 172, prescribing liability of city for damages to private persons resulting from change of grade construed with Railroad Law, Laws 1890, p. 1083, c. 565, providing for changing street crossings by railroads and held that where change of grade is made under latter act, action could not be maintained against city unless notice of claim be filed with railroad commits-signors as provided by latter act. Melenbacker v. Salamanca, 188 N. Y. 370, 80 NNE 1080.

01. Provision in Rev. St. 1899, 1035 (Ann. St. 1906, p. 888), requiring railroad constructing its tracks in street to restore street to its former condition is not a mere condition subsequent and void if impossible of performance. Hence, where company constructed tracks without authority but was thereafter given authority to use street as provided by such statute, it must comply the newsfin or refrain from using street (Stute v. Wabash R. Co., 206 Mo. 251, 103 SW 1187), and taxpayers may maintain mandamus to compel performance (Id.).

01. Northern Cent. R. Co. v. United R. & Elec. Co., 105 Mo. 245, 66 A 444.

01. See ante, 8 3.

01. Held not liable under Act Feb. 2, 1907, (Acts 1907, p. 6), requiring it to build depot at certain place within 60 days from time * 1376 RAILROADS SS 8. 10 Cur. Law. where necessary. \[54\] The Ohio statute applies only where the land on the opposite side of the tracks was under a common ownership at the time of constructing the road, \[55\] while the Mississippi statute requires the maintenance of the "plantation road" only for the use of the adjoining plantation. \[86\] The kind and nature of the crossing required depends largely upon the statute. \[87\] No duty is owed to a tenant at sufferance to construct a private crossing. \[88\]

By contract a railroad may obligate itself to maintain a private crossing, \[89\] the nature and kind depending largely upon the terms thereof, \[90\] in the interpretation of which a practical construction will be given great weight. \[91\] Such contract may be considered in awarding damages for the right of way. \[92\] Although a crossing has been established pursuant to private contract, changes may be made where reasonably necessary to safe travel. \[93\] An owner of land on both sides of a right of way may construct a private crossing at his own expense where reasonably necessary and where it does not interfere with movement of trains. \[94\] Evidence that a railroad only acquired the right to construct an embankment with an open underground passage is not objectionable as establishing a parol easement. \[95\]

_Public crossings._ See & C. L. \[150\] While it has been held that a grade crossing can only exist by state authority, \[98\] such right is frequently granted where it will not impede travel, \[97\] and where such crossing is authorized, the only duty owed is to main-

- 84. In proceeding under Code 1904, & \[ table for passage of stock. Hartshorn v. 1194b2, for appointment of commission to \[ Chicago Great Western R. Co. \[Iowa\] 118\] determine necessity for private crossing, \[ NW 840\]. \[\] Where dead provided for "farm cross-ways, while notice for application for com-mision designated only two, held not to \[ for many years to reach village company affect right to commission as to the two\] could not discontinue same on ground that roads. Adams v. Tidewater R. Co. \[Va.\] 60 \[ it was not used as farm crossing. Kraeer SE 129, & 3317, & 3328. Gratz v. 871, & 1 tain the same in as safe a condition as when established." Overhead or underground crossings within cities are often required by ordinance," and the courts will not interfere therewith in the absence of abuse.1 A railroad erecting an embankment across a street must leave spaces therein " reasonably sufficient for the use of the public.' Railroads being subject to police power " are not entitled to compensation for the cost of maintaining newly condemned crossings in statutory safe condition." A railroad must exercise ordinary care " in the construction of its crossings," which duty it cannot delegate." The duty owed in the construction and maintenance of crossings is prescribed by statute in many states," and the acceptance of a franchise carries an assumption of all the duties and obligations imposed by exsiting statutes." These statutes are usually applicable to crossings established after the construction of the road." While the duty extends to the approaches," it does not include bridges on right of way but not a part of the approach or roaded." A charter obligation to

duce to safety rather than to impede travel over crossing. City of Newark v. Central R Co. \[N. J. Eq.\] 67 A 1009. Additional tracks to facilitate access to freight yards held to impede travel. Id. \[Tax. Civ. App.\] 108 SW 786. \[S8.

### 1378 RAILROADS SS 8.

10 Cur. Law. construct and maintain good and sufficient crossings is a continuing obligation.14 A railroad, however, is liable only for injuries resulting proximately 15 from its negligence 16 to one exercising due care for his own safety.17

Footnote 14: The author is grateful to the anonymous referee for his comments.

\_Abolition and prevention of grade crossings.\_See 16 S. C. L. 1607--Jurisdiction has been conferred on the New Jersey court of chancery to compel railroads to adopt underground or overhead crossings,16 in certain cases,18 and a suit may be instituted therein without previous notice to the railroad to construct such crossings.20 The bill need not allege that such crossing is practicable,21 nor need it designate the mode

10 Cur. Law. RAILROADS SS 8. 1379 of crossing desired. \[22\] Likewise, the court of common pleas in Ohio may require such crossings \[23\] in certain cases. \[24\] In New York the railroad commission has been given jurisdiction in regard to public crossings. \[25\]

_Crossings with other railroads, street railways, and canals._ See 8 C. L. \[100\]. In many states an underground or overhead crossing is required if practicable, \[26\] and, if not, a grade crossing is permitted. \[27\] The determination of the mode and manner of crossing is frequently vested in the courts, \[28\] or the railroad commission, \[29\] notwithstanding a private contract, \[30\] and while in some states the cost thereof is equally apportioned, \[31\] in others it is imposed upon the road seeking the crossing, \[32\] unless the roads have otherwise agreed. \[33\] Where a grade crossing is effected, an interlock-

Newark v. Erie R. Co. \[N. J. Eq.\] 68 A 413. \[determination by courts of mode and man-

22. City of Newark v. Erie R. Co. \[N. J. Eq.\] 68 A 413. \[23\] The determination of the mode and manner

01. Whether crossing shall be at grade, above.grade or below grade, is a matter entirely within jurisdiction of common pleas; and where railroad company has acquired

right to cross by proper proceedings in pro-

bare court, privilege so granted is with

manner of divided expense of such cross-

any reference to character of crossing with

12. L.A. & Toledo Trac. Co., V. Toledo R. & T. Co., 11 Ohio C. C. (N. S.) 17. In pro-

etc., R. Co., 9 Ohio C. C. (N. S.) 399. \[24\] Weare proposed crossing is by spur

under road at grade, held error to con-

track leading to manufacturing establishments, commercial houses, and certain

State v. Northern Pac. R. Co. \[VWash.\] 94 P 907.

docks, it falls within exception as to tracks

for increasing "yard facilities at terminal

29. Where objection is made to crossing

or other points," and company has right

under statute to cross at grade. City of

question as to whether such crossing can

Toledo v. Toledo, etc., R. Co., 9 Ohio C. C. (N. S.) 399. In action brought in common

plus to enjoin laying of crossing at grade

Co. V. St. Louis, etc., R. Co., 125 Ill. App.

under grant from produce court, it is error

to exclude testimony offered by railroad

30. Although railroad commission may

company for purpose of showing that

instail interlocking system at crossing of

crossing in question falls within exception

provided in 97 O. L. 546. \[Id.\].

25. Railroad Law, Laws 1897, p. 796, c.

01. & Railroad Law, Laws 1897, p. 796, c.

754, & 62, gives to railroad commissioners

jurisdiction to determine in what manner

crossings shall be made to close a highway

and divert the travel to another, and to

change the grade thereof, subject only to

to

review by the apellate court and the court

of appeals. In re Terminal R. Co., 122 App.

by. 59, 108 NYES 655. Held, where crossings of

125. Louisville, etc., R. Co., 122. \[id.\].

that commissioners had power and authority

14. to close some of them and to divert

traffic through vladatos, railroad offering to

pax expense of construction of vladatos and

damages to property owners. Id.

26. Phrase "if court shall find it practic-

01. as used in Acts 1993, p. 125, e, 59 ing system is sometimes required,\[34\] and in Indiana an order of the railroad commission in respect thereto may be reviewed by an appeal to the courts.\[35\] The petitioner must aver facts affirmatively showing that the order is unwarranted in law.\[36\] Where a crossing is effected in a street, the road crossed cannot complain of any acts which are incidental to a proper use of the street.\[37\]

\_Right on tracks of other companies.\_See $e$ C. L. 1607

_Private connections._--While the duty of constructing and maintaining a private connection is frequently regulated by private contract,\[38\] in some states railroads are bound to permit mill and mine owners to connect private sidings with their railroads.\[39\] Where a railroad puts down side tracks at the request of a lessee of coal mines under a lease which gave coal company the right to remove its mining appliance upon abandonment of the premises, the railroad may remove its tracks upon abandonment of the premises by the company.\[40\]

\_Cattle guards, fences, and stock gaps.\_See $s$ C. L. 1608--While at common law railroads were not required to fence and construct cattle guards, they are required so to do by statute in most states,\[41\] which duty may be enforced by a mandatory injunction,\[42\] or by mandamus if the duty is clear and undisputed.\[43\] In some states a penalty is prescribed for failure to construct \*\* or repair upon notice \[45\] by the adjacent

void as against third corporation purehas- and to maintain and operate same." Held ing without notice the property and franchise wasted on complainant to rebuild chises of debtor railroad. Louisville, etc., bridge washed out by freshet, notwithstanding-R. Co. v. New Orleans Terminal Co. \[La.\]

ing substructure was to be property of defendant. Louisville, etc., R. Co. v. U. S. Iron

34. Laws 1897, p. 238, c. 157, SS 4, providing that where electric railroad crosses at

01. Pennsylvania railroads are bound to grade tracks of another road it must inter-

permit mill owners and mine owners to construct sidings on their own land and to con-

held not applicable where it crosses within

incet same. Beech Creek R. Co. v. Atlanta

limits of street or highway. Michigan

Cend. R. Co. v. Hammond, etc., R. Co. \[Ind.

Gatory injunction Will lie to compel snch App.\] SS 2NE 650. In imposing upon railroad

secking to acquire right to cross tracks of

and its supplements, provide an adverse pro-

another at grade the duty of installing and

ceeding to enable mine owners, etc., to lay

maintaining interlocking system, it is

port to require that such system should

ery to connect with railroad, and is not ap-

cover additional track contemplated by de-

fendant if laid within reasonable time, but

vate property. Id.

error to provide that it should cover any

40. Provided it does so without doing sub-

and all tracks which defendant might lay to the freehold and before

in future. State v. Northern Pac. R. Co. \[Vwash.\] 94 P 907.

58. Railroad commission act (Acts 1905, p. 88, c. 53, SS 6), authorizing company dis-

satisfied with "any order or regulation of

said commission" respecting crossings to

file position in circuit or superior court of

125 Ill. App. 420.

county, etc., held broad enough to include

order installing interlocking system. Grand

Trunk Western R. Co. v. Hunt \[Ind. App.\]

81 NE 524.

36. Grand Trunk Western R. Co. v. Hunt \[Ind. App.\] 81 NE 524.

01. Excavation of soil and of cutting of

1ts ralls by street car company in effecting

a crossing held incidental. Michigan Cent. R. Co. v. Hammond, etc. R. Co. \[Ind. App.\]

83 NE 650. Crossing of railroad tracks in

street by tracks of another road occupying

street is but exercise of right of public use

of street and not an appropriation. Louisville, etc., R. Co. v. New Orleans Terminal

Co. \[La.\] 45 SS 962.

38. Contract for extension of branch line

to defendant's mines provided that defendant should construct substructure and complainant lay track on "said branch railroad

and to maintain and operate same." Held

this without notice the property and franchise wasted out by freshet, notwithstanding-

65 S 962.

66. Laws 1897, p. 238, c. 157, SS 4, providing that where electric railroad crosses at

01. Pennsylvania railroads are bound to

permit mill owners and mine owners to construct sidings on their own land and to con-

held not applicable where it crosses within

incet same. Beech Creek R. Co. v. Atlanta

limits of street or highway. Michigan

Coal Min. Co. \[C. C. A.\] 158 P 86. Mann-

Cent. R. Co. v. Hammond, etc., R. Co. \[Ind. App.\] 82 NE 650. In imposing upon railroad

adtory injunction Will lie to compel snch

onnection. Id. Act Pa. 5, 1832 (P. L. 501),

seeking to acquire right to cross tracks of

and its supplements, provide an adverse pro-

another at grade the duty of installing and

ceeding to enable mine owners, etc., to lay

maintaining interlocking system, it is

port to require that such system should

ery to connect with railroad, and is not ap-

cover additional track cont 10 Cur. Law. RAILROADS SS 8. 1381 landowner,46 while in others the abutting owner after statutory notice,47 or a waiver thereof,48 may erect the fence and recover for the necessary labor and materials furnished,49 provided the adjoining lands are improved or inclosed.50 The fact that a rebuilt fence is within the line of the old fence does not defeat recovery where the line was designated by a representative of the railroad.41 The sufficiency of the complaint must be determined by the statute upon which it is based,62 and in Indiana it must contain an itemized statement of materials and labor furnished.53 Where the railroad fails to construct cattle guards, it is liable for the damage proximately resulting therefrom.54

\_Drainage and disposal of surface water.55a & C. L. 1600--Where the railroad does not divert the natural flow of surface water, no liability attaches for damages done thereby,55 but it becomes liable where it so interferes therewith as to create a nuisance.56 Where a railroad has obstructed the natural flow by the construction of a ditch, it must exercise reasonable care to adapt such ditch to new conditions,87 and to keep the same open and unclogged.58 An unprecedented rain does not relieve a railroad for damages resulting therefrom where its own negligence concurs theremoles by landowner. Chicago, etc., R. Co. fence, followed by itemized statement of v. Filtration, 83 Ark. 481, 104 SWV 175. 45. Though railroad has constructed cattle guard, it is not liable under KIrby's Dlg. $ 6644 for failure to repair unless notice is given: Chicago, etc., R. Co. v. Adams, $ 47, 48. Pittman v. Louvville, etc., R. Co., 31 Ky. L. R. 988, 104 SWV 693. 49. Under Burns' Ann. St. 1901, $ 6324, e.g., 5325, abutting owner may, after- statutory notices, build a new fence on finding materials of original fence are rotten and cate aside materials which might have been need in repairing original fence. Vandalia R. Co. v. Sultenright \[Ind. App.\] $2 NE 980. 56. By fence or natural barriers. Pitman v. Louvville, etc., R. Co., 31 Ky. L. R. 988, 104 SWV 693. Under Burns' Ann. St. 1901, $ 5325-5325, requiring a railroad to fence its right of way except where same runs over unimproved and unincolosed lands and to maintain same, and authorizing abutting owner after notice to repair, such owner may rebuild after notice though fences be between his land and his neighbor's is out of repair. Vandalia R. Co. v. Fetters \[Ind. App.\] $2 NE 978. 51. Vandalia R. Co. v. Seltenright \[Ind. App.\] $2 NE 980. 52. Compaint alleging that defendant's fence had long been out of repair, etc., that plaintiff requested defendant to rebuild same, which it failed to do, that plaintiff made repairs and furnished defendant with itemized statement of coat thereof, which defendant refused to pay, held based on burs' Ann. St. 1901, $ 5325, hence need not negative exceptions in $ 5323. Vandalia R. Co. v. Shatle \[Ind. App.\] $2 NE 999. 53. Compaint under Burns' Ann. St. 1901, $ 5323-5325, alleging reasonable value of fence, followed by itemized statement of material s and labor employed, and that after completion an itemized statement was furnished, sufficiently embodies the Itemized statement. Vandalia R. Co. v. Fetters \[Ind. App.\] $2 NE 978. 54. Veddict, in action for damages for failure to construct cattle guards, allowing for labor expended in guarding cattle, for loss of pasturage, and for diminished rental value of entire farm, held not to allow double damages under facts of case. Atchison, etc., R. Co. v. Billings \[Kan.\] $3 P 590. Where, in action for damage to crops by stock alleged to have entered over insulin- client cattle guards, defendant answered that plaintiff's fence was defective in v.- trique places and that cattle entered there, defendant need prove that it was defective in but one place and cattle entered there. Kansas City, etc., R. Co. v. Mayfield \[Tex. City. App.\] 107 SWV 940. 55. Not liable for failure to construct side ditches which would have diverted water to another point. Greenwood v. Southern R. Co., 144 N. C. 446, $7 SE 157. 56. Permitting of surface water from one side of track to escape to other alongside of highway held not to constitute an actionable nuisance. Townsend v. New York Cont., etc., R. Co., 56 Misc. 255, 106 NYS 381. 57. Created by change of grade. Galves- tenn, etc., R. Co. v. Riggs \[Tex. Civ. App.\] 107 SWV 589. Though ditch as originally constructed was sufficient to carry off water, yet if defendant increased flow by raising embankment and allowed ditch to become clogged, it is liable for Injury proximately resulting therefrom. Id. 58. Evidence that culvert was permitted to become clogged with ice held to make case of negligence for jury. Strong v. Rutland R. Co., 121 App. Dlv. 391, 106 NYS 85. Instruction that defendant was not liable if it constructed ditch and culvert sufficient to carry off water to carry off water to be reasonably anticipated held properly refused as ignoring neglig 1382 RAILROADS SS 9. 10 Cur. Law. with." By statute in some states a railroad is required to construct sufficient culverts, etc., to carry off the water." One acquiring adjacent property subsequent to an illegal change of grade may recover for temporary injuries resulting therefrom, as from diverted waters."

\_Obstruction of watercovars.\_See * C. L. 1600--Where a railroad has a right to bridge a stream, it is liable only for negligence," unless the flow is so obstructed as to necessarily result in injury." A railroad is not liable for damages arising from the maintenance of an embankment constituting a nuisance in the absence of a notice to abate the same unless it was connected with the construction thereof." Where an embankment is not of itself a nuisance but becomes so only at intervals by directing water, distinct causes of action arise for each injury."

\_SS 9. Sales, leases, contracts, and consolidation. Sales.\_See * C. L. 1610--While the Texas statute relating to the purchase of railroads at judicial sale contemplates purchasers capable of exercising the rights, powers, and duties of ownership," a married woman may purchase where a suitable person takes title in his name and undertakes the responsibility of a purchaser," and she and her husband have power to exchange her equitable interest for stock in a corporation duly organized to take over the road." Where purchaser and associates " form a corporation under the Texas statute to take over and operate the purchased road, title vests therein upon filing of its charter " and is not affected by the fact that the corporation was organized to raise money upon bonds which failed of realization." The duties of a purchaser are determined from the contract 12 and statutes relating to such transfers."

_SS9._ Galveston, etc., R. Co. v. Riggs \[Tex. Civ. App.\] 17 Tex. Ct. Rep. 940, 101 SVW 272. Civ. App.\] 107 SVW 589. Evidence that cul Court properly restricted recovery to losses vert in ravine was sufficient to carry off occurring within last two years, period of natural flow but not in times of heavy rains l limitations. Id. held to show negligence. Strong P. Rutland 66. Rev. St. 1885, art. 4549, providing that Rv. Co., 121 App. Div. 391, 105 TXS 85. 60. Where in action for damages from track, franchise, and chartered right of a overflow negligence alleged was that defend- and contracted ditch along right of way and their associates, may exercise all powers, too small to carry off water, that culvert franchises, etc, of sold out company. Texas at certain street crossing was not large Southern R. Co. V. Harle \[Tex.\] 20 Tex. Ct. enough for water from ditch to flow through and that defendant permitted ditch and culvert to become clogged, plaintiff cannot \[Tex.\] 20 Tex. Ct. Rep. 32, 105 SVW 1107. assert that defendant was negligent as matter of law in constructing roadbed without they may be other than those making the sumflect culverts, as required by statute. purchase. Texas Southern R. Co. v. Harle Galveston, etc., R. Co. v. Hinggs \[Tex. Civ. App.\] 107 KvW 589. 70. Rev. St. 1895, art. 4550. Texas South- 61. Downey Bros. Spoke & Bending Co. 57 R. Co. V. Harle \[Tex.\] 20 Tex. Ct. Rep. v. Pennsylvania R. Co. \[Pa.\] 67 A 916. 62. Braine v. Northern Cent. R. Co., 218 TA. Texas Southern R. Co. v. Harle \[Tex.\] Pa. 43, 66 A 985. Held error to instruct that, though company had right to bridge, it railroad under agreement that part payment any change in natural flow of water. Id. 60. Company negligently re-arising bridge in which manner as to bank floating leg is liable proving impracable to make division, it for injury caused by giving way of same, collect same and pay plaintiff one-half of Super. Ct. 630. 63. Where the construction of a railroad notes to be divided, held that defendant was emphasized caused the obstruction of a variety to plaintiff's injury, the fact that it was constructed in accordance with approved principles of engineering ls no defense. Chicago, etc., R. Co. v. Carpenter, contract not specifying what costs are to be allowed, defendant held entitled to the usual and necessary fees. Id. 64. Cheetaw, etc., R. Co. v. Rice \[Ind. T.\] 73. Provision in Rev. St. Ohio 1892, SS 3300, that purchasing road shall be subject to all 10 Cur. Law. RAILROADS SS 9. 1383

\_Leases.\_See 8 C. L. 1810--The lessor 74 and the lessee 78 must possess corporate power to enter into a lease, and the particular lease must not be prohibited.76 The rights of the parties rest in the terms of their lease.77 Action by stockholders to recover rental must be timely brought.78

\_Duties and liabilities subsequent to sale or lease.\_See 8 C. L. 1810--While a railroad cannot by a lease relieve itself of the duties owed to the public,76 it is not responsible

the "dutles, obligations and restrictions" of former company, held not to include claim sor held not to include expense of asserting claim against lessee which was not sustain-goods at specified rata (Rice v. Norfolk, etc., ed. Id. Provision held to include $1,500 R. Co. (C. C. A.) 183 F 497), and werechase counsel fee incurred in suit arising out of is not liable where it did not agree to as- prior sale of property not demised (Id.), but not expense of ejectment suit based on tax

74. Pittsburg v. Castle Shannon Railroad

sale, there being a covenant in lease for quiet Company, organized under general railroad act of April 4, 1868 (P. L. 62), with special

elasor (Id.). Counsel fee of $12,000 for powers conferred by subsequent acts, held

feeding four suits brought by lessee held to have power to lease to Pittsburg Rail-reasonable, although only one reached trial. way Company. Kaufman v. Pittsburg, etc., Id. Lease provided that proceeds of certain R. Co., 217 Pa. 599, 64 A 1108. In absence of land sales should be used for additions, Im-express legislative authority, one railroad

proverns, etc., other than those necessary company has no power to lease its road to to preserve or secure efficiency in operation another, and an attempted lease is void as of railroad. Held that exception related to against public policy. American Lumber

operation of company as a railroad rather Co. v. Tombigbee Valley R. Co. (Ala.) 45 S 811.

75. Pittsburg Railways Company, incorporated under special act May 25, 1871 (P. L. 1170), held to have power to lease. Kaur-, stipulating that lessee should pay all re-man v. Pittsburg, etc., R. Co., 217 Pa. 599, 64 A 1108.

01. General railroad acts April 23, 1861 (P. L. 410), and Feb. 17, 1870 (P. L. 31), requiring roads of lessor and lessee to connect, do not apply to roads possessing special power under act May 26 1871 (P. L. 1170), to lease. Kaufman v. Pittsburg, etc., $3,600 per year to president, $500 to Vice-R. Co., 217 Pa. 599, 64 A 1108.

01. Under lease in perpetuity providing that lessee should at its own cost repair, meetings, were not "reasonable expense

etc, pay all taxes and assessments upon necessary to keep up the property and the business done, except allowance of $4,500 being ample. Id. Where inc@me taxes of stockholders, held that lesser brought suit against lessee to re-lasese could not recover money spent in

over alleged necessary expense within pro-making improvements, expenses incident to vision, and lessee settled by paying claim in issuing of new bonds, nor money paid as tax

full, held that counsel fee therein was necels-on franchise. Atenna Ins. Co. v. Albany,

sary expense within provision. Id. Where etc., R. Co., 156 F 132. Lease at annual

legal services were rendered without external of $49,000 to be paid by paying in-, to a reasonable expense within provision. stock at stated rate, with provision that if

Id. Lesser has burden of proving that claim payments so required did not amount to

asserted was a reasonable expense. Id.

$490,000 balance was to be paid to lessor,

78. Delay by stockholders in bringing held to entitle lessor to benefit of saving

sult to recover rental due under lease, such made by refending the bonded debt at lower

delay being less than period of limitations, rate of interest. Id. Where part of debt is

held not to constitute inches, the questions paid from sinking fund, and money borrowed

being complicated and directors of two to pay remainder is subsequently paid, held

that debt was paid from sinking fund within

132.

the operation of the sinking fund * for a discharge of the duties owed by the lessee to particular individuals." One injured by the operation of a leased road may sue either the lessor or the lessee," and the pendency of an action in the Federal court against one does not bar an action against the other in a state court."

_Contracts,_\[85\] & C. L. 1911--Generally a railroad cannot enter into any contract which will interfere with a discharge of its duties to the public " or which may tend to make it more careless in the performance of the same." Many of the principles of general contract law as to authority of agents," rescission," etc., apply. Contracts will be given effect according to their terms." The Alabama statute requiring the assent of the holders of a majority of the stock to a contract for the operation of the road by another company is for the benefit of the stockholders, and may be waived." A railroad permitting a logging company to use its tracks is liable for the latter's negligence." Where a contract about to be entered into is clearly detrimental to the interests of the minority stockholders, equity may grant relief."

_Consolidation._\[85\] & C. L. 1911--The right of railroads to consolidate " and the road was being operated by receiver of

enters into contract whereby Jessor re-

lessee. Harris v. Quincy, etc., R. Co., 124

leases some for lessee, held too late to Mo. App. 45, 101 SWV 601. Evidence of lease

reschall when sued for rental. Knicker-

by defendant to another, and a lease from

bocker Trust Co., v. O'Rourke Engineering

such road to plaintiff's employer, and also

Const. Co., 108 NYS 707.

ded of the land on which switch was lo-

87. Agreement to construct a railroad spur

cated to defendant, held to make question

to a mine held unambiguous and to bind

of defendant's ownership for jury. Brady

obligor to not only construct the grade and

v. Kansas City, etc., R. Co., 206 Mo. 509, 102

to place ties thereon, but to lay the rails.

SVW 978. Pleadings held to admit ownership.

Ford v. Ingles Coal Co., 31 Ky. L. R. 882,

Id.

10 Cur. Law. RAILROADS SS 10. 1385

manner of so doing "2 is largely regulated by statute, and a stockholder in a corporation authorized by law to consolidate holds subject to the right of the majority to exercise the power." 'In the absence of restrictions, the resultant corporation possesses the powers, franchises, rights and obligations of the constituent companies." The consolidation of two or more roads pursuant to the laws of different states creates a corporation which is a domestic corporation of each state whose laws were followed."

SS 10. _Indebtedness, insolvency, liens, and securities._See * C. L. 1612__--The right of a creditor to the appointment of a receiver on the insolvency of a railroad is generally regulated by statute."

_Mechanics' and materialmen's liens._See * C. L. 1612__--A lien exists only in favor of the persons designated "7 for materials "8 furnished and labor " performed within the terms of the statute. Ordinarily the materials must be actually used in the construction of the road," but under the Tennessee statute it is sufficient if they are furnished in good faith to be so used." An assignment of claims for labor and materials does not carry an unperfected lien in Indiana."

Defects in the notice may be waived by failure to object thereto." Equity has

5262), right of consolidation given thereby

giving subcontractors a lien for labor, etc.

applies to roads organized after its enactment. Id. Burns' Ann. St. 1901, SS 5215, pro-

Co. \[Cal.\] 94 F 877. Perona clearing weeds,

viding that a railroad may not consolidate

etc., off right of way by own labor and

with another which may cross or intersect

Its line, does not apply where intersection

St. 1897, art. 3213, giving lien to laborers,

is at terminal point. Id. Burns' Ann. St.

Ind. 1894, SS 5257, providing that "any rail-

road company " * * shall have power to

intersect, join and unite its road with any

other railroad," held to authorize consolidation of more than two roads at same time.

thenior v. Terre Haute, etc., R. Co. \[C. C. A.\] 151 F 985.

92. Burns' Ann. St. 1901, SS 5252, providing that whenever two or more railroads unite under common name they shall, upon adoption, cause copy of resolutions of their directors to be recorded in recorders' offices of different counties through which road

runs, does not apply to consolidation and merger of capital stock. Smith v. Cleve-

land, etc., R. Co. \[Ind.\] 81 NE 501.

93. Bonner v. Terre Haute, etc., R. Co. \[C. C. A.\] 151 F 985.

01. Power of eminent domain. Smith v. Cleveland, etc., R. Co. \[Ind.\] 81 NE 501.

Under laws of Florida and consolidation

agreement, held that property of extinct company held by absorbing company was sub-

ject to levy of execution based on judgment

obtained against former after merger in

unit pending at time of merger. Atlantic

Coast Line R. Co. v. Cone, 53 Fla. 1017, 43 S 814.

95. Smith v. Cleveland, etc., R. Co. \[Ind.\] 81 NE 501.

01. Where purchaser agreed to pay any judgment which might be recovered in pending suit, and thereafter ceased to operate

more than one-half of road, which was only

16 miles long, and allowed same to deprec-

state, both railroads being insolvent, held

ground for appointment of receiver under

Clv. Code Prae. $ 298. Ingram v. Cincinnati,

etc., R. Co. \[Ky.\] 107 SW 239.

97. One hiring horses and harnesses to

contractors constructing road held not a
1386 RAILROADS $ 10. 10 Cur. Law. jurisdiction to enforce a lien without bringing the property into court.\* While in an action to enforce a lien for an unliquidated account for materials furnished to a subcontractor such subcontractor is a proper party,\* the defendant may waive the right to have him made a party.\* Likewise in an action to enforce the lien of a laborer under a subcontractor, the contractor is a proper,\* but not a necessary party.\* Where the statute gives a lien on the entire road for materials used on any portion thereof, it is not necessary to show where the materials were used,\* nor is it necessary to prove what portion of the materials was used by the subcontractor under the different contracts with the various contractors.\*

_Bonds and mortgages and priority of claims._\[86\] * C. L. 1613--Where bonds are convertible into preferred stock upon certain conditions, such conditions must be complied with.\*

A mortgage on property "thereafter acquired for railroad purposes" does not cover property which cannot be so used,\* and a mortgage upon the "income" covers only the net income after deducting current operating expenses.\* A court of equity administering mortgaged property under a receivers in a foreclosure suit may prefer unpaid claims for current operating expenses * for a limited period before receivership to bonds secured by a prior mortgage.\* Where property in the hands of a receiver and ordered sold under foreclosure is involved in a litigation which will affect the bidding, the court may postpone the sale * though the term at which the order was made has expired.\* A trustee of an active trust may bring an action for the preservation of the property against the consent of the beneficiary and recover the cost thereof.\*

S. Lien may be declared and enforced by | bondhofer is not entitled to an exchange equity without bringing property into court | after all coupons have matured and been by attachment or otherwise, where it is | paid. 1d. | specifically described in |. Lutrul 13, |. Helid not to cover an undivided interest |. Knoxville, etc., R. Co. \[Trenn.\] 105 SW |. Subsequently acquired, since there was no purpose to which railroad could put such |. Lutrul V. Knoxville, etc., R. Co. \[Trenn.\] |. Universidad interest. Chicago, etc., R. Co. \[Trenn.\] 105 SW 566. |. Answering on merits without objecting |. Radger Ballast Car Co. V. Omaha, etc., held to waive right. Lutrul V. Knoxville, |. R. Co. \[Trenn.\] 105 SW 565. |. Amended answer, denying that complainants have |. |.

Duties and liabilities incident to operation of the road. A. Obligation to operate and statutory regulations

See 1. C. L. \[1014\]. When a state confers upon a railroad corporation the rights of a common carrier, the law imposes a duty to provide all facilities and to so operate the same as to reasonably meet the requirements of the service it has undertaken to render,\[20\] which duty may be enforced by the state \[21\] by mandamus where the acts to be performed are sufficiently definite \[22\] and there is no other adequate remedy.\[23\]

Among the more common regulations are those prohibiting the escape of steam,\[24\] designating the signals to be given,\[26\] regulating speed,\[20\] and requiring lookouts \[27\] within corporate limits.

\_Injuries to adjacent owners from smoke, noise, etc.\_See 1. C. L. \[1014\]. By statute in some states, railroads are liable for permitting obnoxious grasses and weeds to grow on right of way and to spread therefrom.\[26\] An action for injury to property must be timely brought.\[20\]_Equipment of cars_,\[See 1. C. L. \[1015\]. Statutes and franchises frequently require passenger cars to be so equipped as to insure comfort and convenience.\[20\] The safety appliance act, being remedial, must be construed to effectuate the intent of congress.\[31\] Under this act all cars used in moving interstate commerce\[32\] must be

- \[noitemsep\]
  1388 RAILROADS SS 11A. 10 Cur. Law. equipped at both ends \[33\] with automatic couplers, but if so equipped the act does not require that such equipment be effectively operated,\[34\] and the railroad is liable only for common-law negligence in keeping the same in repair.\[35\] The act is applicable to a railroad engaged in interstate commerce \[88\] though it operates wholly within a state.\[37\] Knowledge of the defect is not an element of the offense,\[88\] and if diligence is a defense at all \[so\] it must be of the highest kind.\[40\] A car discovered to be defective must be repaired at the first opportunity.\[41\]

There seems to be a conflict of opinion as to whether an action to recover the penalty for a violation of the safety appliance act is one of debt \[42\] or a criminal proceeding,\[43\] and hence whether the violation must be established by a preponderance of the evidence or beyond a reasonable doubt.\[44\] The government must establish all the elements of the offense.\[45\] The burden rests upon the defendant to bring itself within the proviso excepting certain logging cars from its operation.\[46\]

_Speed regulations._\[See 8 C. L. 1618.--By statute \[47\] or otherwise, cities are frequently given the power to fix reasonable \[48\] speed limits, and the court will not interfere

33. United States v. Central of Georgia R. yards\[49\] for unloading and then to repair shops. United States v. Southern Pac. Co., 154 F 897. Where it is practicable to re- 156 F 182.

01. Missouri Pac. R. Co. v. Brinkmeier \[Xa.\] 93 P 621.

01. In determining when carrier is engaged in interstate commerce within act, language of interstate commerce act is not controlling. United States v. Colorado, etc., R. Co. \[C. C. A.\] 157 F 221. Hailing of empty car from one state to another for purpose of repair held engaging in interstate commerce within act. United States v. Chicago, etc., R. Co., 157 F 616.

01. United States v. Colorado, etc., R. Co., 157 C. A.\] 157 F 821.

01. United States v. Southern Pac., 154 F 897; United States v. Chicago, etc., R. Co., 156 F 180.

01. Violation of safety appliance act renders railroad company liable absolutely, and hence it need not be alleged or proven that defendant was negligent in falling to disclaimed against repair. United States v. Atlantic Coast Line R. Co., 158 F 918. Where car becomes defective during trip, company does not become liable under act unless it falls to repair at first opportunity after actual discovery or after it would have been disclaimed.

covered by use of the utmost care of a highly purulent man. United States v. Illinois Cent. R. Co., 156 F 182.

40. Evidence held insufficient to show that proper inspection was made. United States v. Indiana Harbor R. Co., 157 F 565. Where defendant's car came into its yards loaded with interstate traffic, with one handhold missing. and was moved from there to other yards, and then for delivery to connecting carrier, two inspections being made in mean-time without discovering defect, held that company failed to exercise care required by safety appliance act. United States v. Louis-Ville, etc., R. Co., 166 F 198.

01. No defense that car was on way to repair shopa, supecally where it could have been repaired before starting. United States v. St. Louis, etc., R. Co., 154 F 576. Where defective coupler was capable of repair at any stage of journey without serious inconcem.

01. Action to recover penalty for violations of safety appliance act of March 2, 1893

01. Production of safety appliance act renders railroad company liable absolutely, and hence it need not be alleged or proven that defendant was negligent in falling to disclaimed against repair. United States v. Atlantic Coast

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. No defense that car was on way to repair shop, supecally where it could have been repaired before starting. United States v. St. Louis, etc., R. Co., 154 F 576. Where defective coupler was capable of repair at any stage of journey without serious inconcem.

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. Production of safety appliance act of March 2, 1893

01. No defense that car was on way to repair shop, supecally where it could have been repaired before starting. United States v. St. Louis, etc., R. Co., 154 F 576. Where defective coupler was * 10 Cur. Law. RAILROADS SS 11A 1389

therewith unless the unreasonableness of such ordinances or the want of necessity therefor clearly appears.\[48\] Such ordinances, however, must not unreasonably interfere with the speedy transportation of the mails.\[50\] A city may limit the speed of steam cars without limiting that of street cars.\[81\] An ordinance limiting the speed until gates and signal bells are erected and operated becomes inoperative upon the erection and operation of such gates and bells, and is not revived by a discontinuance thereof.\[82\] The violation of a speed ordinance is usually held negligence.\[58\]

Penal statutes regulating the speed of trains should be so construed as not to give cumulative penalties unless the legislative intent to the contrary is clear.\[54\] Where a speed ordinance does not embrace any offense made criminal under the laws of the state, a suit to recover a penalty for a violation thereof is a civil action.\[58\]

_Obstructions at crossings.\[58\]_ & C. L. 1014

_Stops at railroad crossings.\[58\]_ & C. L. 1014

_In some states a railroad company, where no interlocking systems are maintained, must stop all trains and ascertain that there is no approaching train before crossing,\[58\] and is liable to any one \[57\] injured by a failure so to do._

_Conveniences at depots.\[58\]_ & C. L. 1017

_By statute in many states, railroads are required to keep waiting rooms at stations comfortably heated and supplied with drinking water \[58\] and to provide proper water closets.\[59\] While the Texas statute is valid in so far as it requires the railroads to keep water closets in a reasonably sanitary condition and lighted at night \[60\] it is unconstitutional so far as it relates to the construction of closets,\[61\] and hence no liability attaches for the construction of an unsuitable closet.\[62\]_

An indictment for failure to provide statutory convenience must be certain \[58\]

streets and roads crossing railroad tracks

W7. Under Burns' Ann. St. 1901, SS 2293, in sparsely settled portion, city may reason-

making it an offense for engineer to cross

ably limit speed. Kunz v. Oregon R. &

tracke of another road without stopping. Nav. Co. \[Or.\] 94 F 804.

etc. railroad visiting same is liable for in-

40. Peterson V. State \[Neb.\] 112 NWV 306,

jury resulting from collision though it did

50. Ordinance limiting speed of trains

with city limits to 10 miles per hour held

to one injured. Cincinnati, etc., R. Co. v. not void as unreasonably restricting speeds

across \[Ind.\] 82 NEN 1009.

transportation of mall. Peterson v. State

58. Acts 1903, p. 803, SS 2, held not viola-

tive of Const. U. S. Amend. 14. State v. St.

\[Neb.\] 112 NWV 306.

Louis, etc., R. Co. \[Ark.\] 103 SWV 625.

trolled being sufficient ground for classification. Indianapolis Union R. Co. v. Waddingston \[Ind.\] 82 NE 1030.

52. Hecker v. Illinois Cent. R. Co., 231 III,

01. 83 NE 456.

01. Louisville, etc., R. Co. v. Christian

etc., R. Co. \[Ark.\] 103 SWV 623.

Morelion Brew. Co. \[Ala.\] 43 S 722.

54. State v. Wisconsin Cent. R. \[V'la.\] 107 SWV 525.

113 NWV 952. St. 1898, SS 1809, 1819, Impos.

61. Act April 17, 1905 (Acts 1905, p. 224,

held to authorize recovery of cumulative

c. 133). Houston, etc. R. Co. v. State \[Tex.\]

penalites. Id.

55. Proof beyond reasonable doubt is not

required. Peterson v. State \[Neb.\] 112 NWV 180.

k. Co. v. State \[Tex.\] 100 SWV 1197.

kod as cr post facto and as a deprivation

36. Instruction on statutory duty of rail-

of property without due process of law

road company, where no interlocking fixtures

(State v. Texas & N. O. E. Co. \[Tex. Civ. are maintained, to stop before crossing

Arp.\] 19 Tex. Ct. Rep. 560, 103 SWV 683), and

tracks of another road and to ascertain that

there is no approaching train, held not er er-

"suitable closets" within a "reasonable and

convenient distance" (Id.).

charge of train. Cincinnati, etc., R. Co. v. State \[Tex. Civ. Acrea \[Ind.\]. pp.\] 82 NEN 1009. Rev. St. 1885,

Appl.\] 19 Tex. Ct. Rep. 673, 103 SWV 449.

art. 4507, requiring engines approaching

63. Indtment, under Acts 1803, p. 308,

place where two lines cross to stop, held ap-

3. for failure to keep waiting room properly heated and and not duplicitous.44 An action to recover a penalty, being in the nature of a civil action, the violation need not be proven beyond a reasonable doubt.45

(SS 11) \_B. General rules of negligence and contributory negligence.\_See * c. L. 1031--A railroad owning and operating another 66 the autonomy of which is preserved for convenience is liable for its negligence.67 Where an injury results from the concurrent negligence of two roads, both are liable therefor.68 While a master is not usually liable for acts of the servant wholly beyond the scope of his employment, a railroad is liable for the actual damages resulting.from a want of and unnecessary blowing of the whistle,69 but not for exemplary damages unless the act is authorized or ratified.70 Ordinarily a railroad owes reasonable care to avoid injury to persons and animals.71 As in tort cases generally, defendant's negligence must be the proximate cause of the injury,72 and this is true although the negligence relied

separate rooms being required, held void 70. Stewart v. Cary Lumber Co. \[N. C.J\] for uncertainty. State v. St. Louis, etc., R. Co. \[Ark.\] 103 SWV 625. Indictment, under Acts 1903, p. 303, $ 2, requiring railroads to see the following subsections of this section. Instruction as to degree of care males and to properly letter same, charging required of railroad in operating its cars that defendant failed to maintain two water closets and to designate same by proper let- 60., 137 Ill. App. 406. Instruction as to duty terms, is void for uncertainty, for If it 60. maintain such closets it could not fail to properly letter same. State v. St. Louis, Louis, etc., R. Co. \[Ark.\] 103 SWV 623.

46. Indictment under Acts 1903, p. 303, $ 2, for failure to keep waiting room at station comfortably heated and supplied with drinking water held duplicitous. State v. St. Louis, etc., R. Co. \[Ark.\] 143 SWV 625. Indictment under Acts 1903, p. 303, $ 2, for failure to provide separate closets for males and females and to properly letter same held to charge two offenses. State v. St. Louis, etc., R. Co. \[Ark.\] 103 SWV 623.

01. Action under Acts 1905, p. 324, c. 133, for failure to maintain water closets in sanitary condition. Houston, etc., R. Co. v. State \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 678, 103 SWV 449. Where in action under Code 1906, $ 2282, for failure to provide suitable water closets, evidence shows that a water closets in maintained, but falls to disclose conditions and circumstances from which its suitableness can be determined, judgment against defendant must be reversed. State v. Baltimore, etc., R. Co., 61 W. Va. 634, 57 SE 44. In action for penalty under Acts 1905, p. 324, c. 138, for failure to maintain water closets in sanitary condition, where evidence tended to show that \[Inclosure about closets proper was frequently used for closets proper was frequently used for closet purposes, question of unsantantanty condition held for jury. Houston, etc., R. Co. v. State \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 673, 103 SWV 449.

01. Where evidence makes prima facle case of such ownership and operation, railroad must show contrary case to escape. Hollins v. New Orleans, etc., R. Co., 119 LA. 418, 44 SE 159.

01. Hollins v. New Orleans, etc., R. Co., 119 LA. 418, 44 S 159.

01. Collision. Cincinnati, etc., R. Co. v. Acrea \[Ind. App.\] 82 NE 1009.

01. Stewart v. Cary Lumber Co. \[N. C.J\] 69 SHE 545. Action for negligently blowing whistle at street crossing. Paris, etc., R. Co. v. Calvin \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 890, 103 SWV 428.

01. Stewart v. Cary Lumber Co. \[N. C.J\] 69 SHE 545. Action for negligently blowing whistle at street crossing. Paris, etc., R. Co. v. Calvin \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 890, 103 SWV 428.

01. For the duty owed in particular cases, see the following subsections of this section. Instruction as to degree of care males and to properly letter same, charging required of railroad in operating its cars that defendant failed to maintain two water closets and to designate same by proper let- 60., 137 Ill. App. 406. Instruction as to duty terms, is void for uncertainty, for If it 60. maintain such closets it could not usual and extraordinary duty held proper. Id. fault to properly letter same. State v. St. Louis, etc., R. Co. \[Ark.\] 103 SWV 623.

01. For the duty owed in particular cases, see the following subsections of this section. Instruction as to degree of care males and to properly letter same, charging required of railroad in operating its cars that defendant failed to maintain two water closets and to designate same by proper let- 60., 137 Ill. App. 406. Instruction as to duty terms, is void for uncertainty, for If it 60. maintain such 10 Cur. Law. RAILROADS SS 11B. 1391

upon is the violation of a rule of the company 7" or the failure to discharge a statutory duty,14 and notwithstanding a statute allowing recovery despite plaintiff's negligence, but diminishing the amount thereof.7" Defendant's negligence, however, need not be the sole cause of the injury.7" Except where the doctrine of comparative negligence obtains,7" negligence on the part of plaintiff proximately contributing to the injury 7" will defeat recovery 7" unless defendant is guilty of willful or wanton negligence,"o or after discovering "i plaintiff's perilous position "a" defendant could by the means at hand,"a in the exercise of ordinary care,"a" have avoided the in-

contributory negligence authorizing reovy-
approaching on both tracks, attempted to ery unless injury to decedent was caused

"by his own fault" held erroneous, since it

to cross, held not negligent as matter of decedent was only partially in fault and it

law. Central of Georgia R. Co. v. Motz contributed there could be no recovery.

\[Ga.\] 61 SE 1.

Southern R. Co. v. Hanbenowski's Adm?

\[Va.\] 60 SE 58. In action for injury caused

negligence in being too near track, and is by horse taking fright at blowing of

not discovered in time by trainmen to

whistle at crossing, whether plaintiff's neg-

avoid injury by use of ordinary care, there

ligence in driving near to crossing if negligence, Texas, etc.,

gence, was proximate cause, held properly

\[Tex. Civ. App.\] 19 submitted to jury. Paris,

etc., R. Co. V. Cali.

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 828, 104 SW 408. In walking

\[Vm \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 890,

down steps and onto track without looking.

103 SWV 428. Where evidence shows that

enquireer saw plaintiff in time to stop train,

bhe would stop before going onto track or

\[Ala.\] 43 S 48.

\[Ala.\] 43 S 867. Russell V. Oregon Short

question for jury whether her negligence

\[Ala.\] 43 S 867. Russell V. Oregon Short

was proximate cause of injury. Duncan v.

\[Couvillle, etc., R. Co. \[C. A.\] 155 F 22; Lacey v.

St. Louis, etc., R. Co. \[Ala.\] 44 S 418. One

attempting to drive horse by car negligierty

read shall be liable for injuries at crossing

left in street, after seeing that she was

rrightened threat, held not precluded from

unless party injured was grossly negligent,

recovering on ground of voluntarily

conventering a known danger, since it does

fence is no defense to willful injury.

not follow from fact that she was fright-

\[Ala.\] 44 S 867. Russell V. Oregon Short

end that it would be dangerous to urge

\[G44. "Villillill intelligence" rendering rail-

forward. Pt. Worth, etc., R. Co. v. Morris

road liable notwithstanding plaintiff's neg-

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 527, 101

\[S SW 1088. Where employ on track is re-

dered unconscious by lightning, but train

turnning over him was far enough away to

that, although trainmen knew, or in exer-

have been stopped had a lookout been mal-

cise of ordinary care would have known, of

tamed, negligence in going onto track in

plaintiff's perilu, they failed to check speed,

first instance held not proximate cause of

etc., does not charge such negligence. And-

injury. Sawyer v. Roanoke R. & Lumber

\[Vm.\] 50 S8 589.

\[Vm.\] 514 NWV 1128. Hold that alternative allega-

79. Louisville, etc., R. Co. v. McNary's

Adm?r \[Ky.\] 108 SWV 898; Rogers v. Rio

\[C\]idence that conductor, knowing that

Grande Western R. Co. \[Utah\] 90 P 1075.

plaintiff and her husband living in car on

Cmpaint showing that plaintiff stood upon

side track, but not knowing whether she

or so near tracks as to be struck by train

\[Vm.\] 514 NWV 1128.

while watching excavations held to show

contributory negligence. Anderson v. Minna-

into such car, held aufflement to submit is-

neapolis, etc., R. Co. v.

\[Minn.\] 144 N 1128.

One passing behind train without being able

\[Ala.\] 45 S 57. Whether making of

to see, because of smoke and steam, that

\[Vm.\] 514 NWV 1128.

another is following, held negligent.

\[Vm.\] 514 NWV 1128.

\[Vm.

jury. \[85\] Railroads must exercise reasonable care to avoid injury after discovering another's peril, \[86\] but the doctrine being based upon the rule of sole proximate

does not excuse a failure so to do. Louis-

proaching train in time to avoid injury. ville, etc., R. Co. v. Young \[Ala.\] 45 S 238. Chesapeke, etc., R. Co. v. Wilson's Adm'r, 84. Hovius V. Cincinnati, etc., R. Co. \[K.Y\]. 131 Ky. Z. R. 500, 102 SW 810. Evidence that 107 SVW 214: Texas Mexican R. Co. v. De

train was running at speed in excess of Hermandes \[Tex. Civ. App.\] 108 SWW 765.

N Resilience after discovering one in peril.

plaintiff walking on track with head down

ous position through own negligence con-

and paying no need to warning signals, but

sists of failure to promptly use every ap-

that no attempt was made to stop train

pliance at hand known to skilled engineers

until within 25 feet of plaintiff. Smith v.

to avoid injury, and is dependent upon

Yubash R. Co. \[Mo. App.\] 107 SWW 22. Where

fact whether engine could have been sooner

one walking along space between was stopped. Louisville, etc., R. Co. v. Young \[Ala.\] 45 S 238. Evidence of failure to blow

stepping to side to avoid steam from pass-

whistle held sufficient to require submiss-

tion of question of discovered peril. Texas,

R. Co. v. Tucker \[Tex. Civ. App.\] 20

**Held** not to authorize submiss-

Fix-

Tex. Ct. Rep. 689, 106 SWW 764. Where en-

dence that after discovering that object on

gineer discovered one on track immediately

track was human being it was too late to

in front of train, negligence in sounding

stop train held not to raise issue of dis-

alarm instead of devoting whole effort to

covered peril. San Antonio, etc., R. Co. v.

stopping train held for jury. Louisville,

McMillan \[Tex.\] 18 Tex. Ct. Rep. 431, 102

etc., R. Co. v. Yeung \[Ala.\] 45 S 238. En-

SWW 703. Where engineer kept constant

gineer held not negligent in shouting war-

lookout and applied emergency brakes,

ing instead of blowing danger whistle, cars

sandeed the tracks and shut off steam upon

being almost onto plaintiff. Jones v. Sibley,

etc., R. Co. \[La.\] 46 S 61.

etc., R. Co. v. Baker \[Ind. T.\] 104 SWW 1182.

**58**, St. Louis, etc., R. Co. v. Cahn, 84 Ark.

Deced stepped onto track immediately

623, 104 SWW 533: Zipperlein v. Southern Pac.

In front of train. Edwards Adm'r v. Ches-

Co. \[CaL\] App.\] 38 P 1048; Jones v. Sibley,

apeake, etc., R. Co. \[Ky.\] 108 SWW 303.

etc., R. Co. \[La.\] 46 S 61; Houston, etc., R.

\*\*Evidence held to authorize recove-

Yi. For Co. v. Finn \[Tex. Civ. App.\] 107 SWW 94. In-

in jury at crossing. Zipperlein v. Southern

struction on discovered peril and liability

Pac. Co. \[CaL\] App.\] 93 P 1049. One struck

for killing of one attempting rescue held

by train from behind while stepping from

to properly submit issues. Texas, etc., R.

Spoec between tracks to avoid steam from

Co. v. Scarborough \[Tex. Civ. App.\] 19 Tex.

Passing engine. Houston, etc., R. Co. v.

Ct. Rep. 828, 104 SVW 408. Instruction on

Ginn \[Tex. Civ. App.\] 107 SWW 94. Ev

discovered peril held not erroneous as fall-

dence held to authorize finding that oper-

ing to require that peril should have been

discovered in time to avoid injury, respe.

valid injury, train running very slowly at

cially when considered with special instructe-

time. Naroogdenes, etc., R. Co. v. Beene

tion. Houston, etc., R. Co. v. Finn \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 249, 106

Civ. App.\] 107 SWW 94. Instruction on

ef-

foot of contributory negligence held prop-

ing to signal train to stop on discovering

erly refused as ignoring defendant's duty to

perilous position of one on track held negil-

exercise reasonable care to avoid injuring

gence of company. Texas, etc., R. Co. v.

decased in position in which he placed

himself. Riley v. Northern Pac. R. Co.

(Monti.\] 93 P 94. After discovering peril,

it is duty of opertaytes to use all means at

hand, consistent with safety of persons on

train, to avoid injury, and though court

improperly submits only negligence in fail-

ing to cause 87 does not authorize recovery where plaintiff's negligence contributes therewith.88 While in most states defendant must have actual knowledge of plaintiff's peril,89 in others it is sufficient if defendant in exercising the care owed to plaintiff would have discovered the same.90 One in a position of peril is not bound to choose the course which ultimately will prove safest,91 but an emergency will not excuse failure to exercise the care required under ordinary circumstance where plaintiff's own negligence aided in creating the same.92 A child,93 however, is only required to exercise the care ordinarily to be expected of one of his age and discretion.94 While a railroad company is not ordinarily liable for the negligence of mail clerks, it may become liable where it permits them to continue a dangerous custom.95 Negligence of a parent contributing to the injury of a child will bar a recovery for the parent's benefit,96 and whether a parent is guilty of negligence is usually a question for the jury.97

(SS 11) _C. Injuries to passengers and freight.98_

(SS 11) _D. Injuries to employees.98_

(SS 11) \_E. Injuries to licensees and trespassers. General rules.\_See S C. L. 1619

As a general rule the only duty owed to trespassers 1 and bare licensees 8 is not to

jury. Norfolk, etc., R. Co. v. Dean's Adm'x

train, but was not killed until engine struck

\[Va.\] 59 SE 388.

87. Instruction on proximate cause held

could have been stopped was admissible, in effect to charge last clear chance doctrine, and correct. Harbert v. Atlanta, etc.,

of his position, where exercise of care

R. C. (S. C.) 59 SE 644.

88. Contributory negligence to be & defense to a failure to exercise due care after

case ordinarily exercised by one of his age

disovering plaintiff's peril must be a negresignent act or omission with a knowledge of

the present and impending peril. Southern

R. Co. v. Steward (Ala.) 45 S 51. Where

638, 105 NFS 547.

pedestrian approaching railroad crossing

49. Help inapplicable where plaintiff

attempts to cross without looking or listen-

neglimetry approached crossing. Smith's

ing, and by looking or listening approach-

min would have been discovered, com-

56.

pany is not liable though it failed to give

signals, Matteson v. Southern Pac. Co.

\[Ca1. App.\] 93 P 101.

89. Instruction on discovered peril held

not objectionable as making defendant

il-

40.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.

10 Cur. Law. RAILROADS SS 11E. 1395 willfully or wantonly injure them,3 and hence no duty is owed to keep the premises safe,4 to give warning of approaching trains,5 or to maintain a lookout to discover their presence on the track.6 Where, however, the road runs through a thickly populated locality or place where the presence of people on the track is to be anticipated, a higher care is required.7 After discovering a trespasser, ordinary care must be exercised to avoid injury,8 and a railroad is liable if his peril was, or by the exercise

Implied licensee. Thompson v. Cleveland, {table held not entitled to recover. Thompson etc., R. Co., 226 Ill. 542, 80 NE 1054. V. Baltimore, etc., R. Co., 218 Pa. 444, 67 A **Held not a trespasser:** One on crossing 768. Where railroad erects turn-table on generally used by public with consent of its own land, it owes no duty to take special railroad company owning tracks is not precaution to protect children though it may trespasser. St. Louis Nat. Stock Yards v. tend to attract them. Id. Brennan, 126 Ill. App. 601. One using foot S. Thompson, Cleveland, etc., R. Co., 226 **H1**. 542, 80 NE 1054. No duty to employ lic. Minot v. Boston, etc., R. Co. \[N. H.\] 66 **A 825**. Plaintiff, in standing on railroad convenient path of travel to give notice by track while waiting for train to pass on parallel track at private crossing, made by to run at particular rate of speed. Daniel company under contract with his grantor, A. Byrekt v. Lake Shore, etc., R. Co., 10 an adjoining landowner. Hoving v. Clin. Onlo C. C. (N. S.) 73. **G**. Hence liable only for willful or wanton road having tracks in street has no rights therein superior to those of a pedestrian. Jaffl v. Missouri Pac. R. Co., 205 Mo. 450, 103 SVV 1026. Z. Party remaining-at depot unreasonable time after leaving train or before train time is mere license. Illinois, etc., R. Co., 10 a. M. Million, 129 Ill. App. 27. Where plaintiff was injured while walking along beaten path between railway tracks, which had been so used by a great number of people for many years, it is not error for trial judge to refuse to declare as matter of law 1052. Z. Party remaining-at depot unreasonable time after leaving train or before train time is mere license. Illinois, etc., R. Co., 10 a. M. Million, 129 Ill. App. 27. Where plaintiff was injured while walking along beaten path between railway tracks, which had been so used by a great number of people for many years, it is not error for trial judge to refuse to declare as matter of law 1052. Z. Party remaining-at depot unreasonable time after leaving train or before train time is mere license. Illinois, etc., R. Co., 10 a. M. Million, 129 Ill. App. 27. Where plaintiff was injured while walking along beaten path between railway tracks, which had been so used by a great number of people and requiring lookout to be maintained for trespasser. Naocgdoches, etc., R. Co. v. that plaintiff was a trespasser, and to allow jury to determine whether or not railway 106 SWV 456. Z. Hardy to keep lookout. Duncan v. passing through its yard and had extended permission to public to use path as foot 1052. Z. Hardy to keep lookout, must use use, and notwithstanding presence of warn. Z. Hardy cane to keep a lookout to discover ing signs as to danger and against trespassing. Harmon v. McGuire, 6 Ohio N. P. (N. S.) 697. Z. Illinois, etc., R. Co. v. McMillion, 129 **H**. Cop. 27. Trespasser. Grand Trunk R. (A.) 18 Tex. Ct. Rep. 882, 103 SVV 457. Co., P. Flagg (C. C. A.) 106 FF 259. L.icense. Z. Health v. Illinois, etc., R. Co., 127 Ill. App. 285; Norfolk, etc., R. Co., 10 a. M. Martin, 129 **H**. Cop. 285. Z. Hardy, 109 **H**. Cop. 291. Z. Hardy, 109 **H**. Cop. 291. Z. Hardy, 110 **H**. Cop. 291. Z. Hardy, 110 **H**. Cop. 291. Z. Hardy, 111 **H**. Cop. 291. Z. Hardy, 112 **H**. Cop. 291. Z. Hardy, 113 **H**. Cop. 291. Z. Hardy, 114 **H**. Cop. 291. Z. Hardy, 115 **H**. Cop. 291. Z. Hardy, 116 **H**. Cop. 291. Z. Hardy, 117 **H**. Cop. 291. Z. Hardy, 118 **H**. Cop. 291. Z.

1396 RAILROADS SS 11E. 10 Cur. Law.

of the care required in operating trains might have been, discovered in time to avoid injury.\*

_Employes of other roads and independent contractors_,See * C. L. 1822--A railroad company must exercise reasonable care for the safety of employees of other roads rightfully on the premises,10 and to servants of independent contractors working on the road,11 and such persons must exercise due care for their own safety.12 By statute in some states a train must be stopped before crossing the tracks of another road,13 and a customary disregard of such duty does not relieve from liability for injuries resulting therefrom.14 Rules of intersecting roads regulating the movement of their trains must be observed,18 but in the absence thereof the train arriving first has precedence.16 In Pennsylvania any person lawfully employed on or about the road of a railroad company of which company he is not an employee or passenger has the rights of an employ.17

use all means known to skillful engineers, \[ing with which train collided. Prosser v. "such as applying brakes and reversing engine," to stop their trains, requires doing of 68 A & 68.

all things known to skillful engineers, and 12. Operatives of train having right of \[t\] train can be stopped sooner upon applying air brakes without reversing engineer must \[t\] track will be operated with due care (El Id.

Paso, etc., R. Co. v. Polk \[Tex. Civ. App.\]

108 SW 761), and that rule giving their train \[t\] 31 Ky. L. R. 1105, 104 SW 774. Where circumstances were sufficient to apprise en- \[t\] 300 will be observed (El Paso, etc., R. Co. gineer of a peril ahead which might involve \[t\] 4 * 10 Cur. Law. RAILROADS SS 11E. 1397

Persons at station.See 8 C. L. 1628--While a trespasser 11 and a licensee 19 on the platform or about the station must take the premises as he finds them,20 the company must exercise ordinary care 21 to keep in a safe condition its station and all parts of its grounds 22 to which patrons will naturally resort,23 and to avoid injuring them.24 Where a passenger train is stopped with tracks between it and the depot, the duty owed to 28 and by one having business with the same 28 is the same as if intervening space was a platform.27 No liability, however, is incurred where the person injured is himself negligent.28

Persons loading and unloading cars.See 8 C. L. 1624--Persons engaged in loading or unloading cars are not trespasers or bare licensee,29 and the company owes ordinary care 30 to furnish them reasonably safe cars 31 and to avoid injuring them,32 but they must exercise due care for their own safety.33

to mall agent in car of company owning form onto side track to avoid same, and road injured by another company having that brakeman on car making flying switch use of track, but not rightfully there at parlance to stop car until within a few ticular time. Delaware & Hudson Co. v. Yarrington \[C. C. A.\] 153 F 396. Held to negligence. Lange v. Milsouri Pac. R. Co., make railroad's liability to Pulman car conductor same as to employ, and no re-vorey can be had for injury due to servants entering with revolver, causing it to dis-in charge of train. Scott v. Pennsylvania \[c. R. Co., 151 F 931.

18 Where child accompanying passenger etc., R. Co. \[Mils.\] 43 S 473.

to station steps from platform onto side track to escape steam jokingly allowed to escape from engine, held that she was not chison, etc., R. Co. v. McElroy \[Kan.\] 91 P 4.

a trespasser. Lange v. Milsouri Pac. R. Co., 208 Mo. 458, 106 SWV 660.

19 One entering on depot grounds to see a friend off is a licensee, and not a trespasser. Banderob v. Wisconsin Cent. R. Co. v. McElroy \[Kan.\] 113 NW 738.

20. Licensee. Rowley v. Chicago, etc., R. Co. v. McElroy \[Kan.\]

Co. \[Vis.\] 115 NW 865. Trespasser. Watson \[v. Manitou, etc., R. Co. \[Colo.\] 92 P 17.

21. Instruction exacting highest practic-able degree of care held erroneous. Louis-ville, etc., R. Co. v. Brown \[IX.\] 107 SWV 321.

VWhere depot agent testified that he left truck in particular place, which was one of

safety, but each truck ran down inclined

station platform, and there was no evidence that any third person moved it from such place onto incline, held that question whether he- or he so left it is for jury. Rowley v. Chicago, etc., R. Co. \[Vis.\] 115 NW 865. In action for injuries received while on lawn

adjacent to platform by being tripped over wires thereon, evidence held to sustain finding of negligence in maintaining wires, there

being insufficient light. Banderob v. Wie-consin Cent. R. Co. \[Vis.\] 113 NW 738.

22. Does not extend to streets and side-walks not under its control but abutting on

in property, and as to them railroad owes

same duty as abutting owners generally,

W Webster v. Chesapeake, etc., R. Co. \[Ky.\] 115 NWV 865. In

568, 104 SWV 44. Where cars are reasonably

23. Banderob v. Wisconsin Cent. R. Co. \[Vis.\] 113 NW 738. What grounds are so

not be discarded because newer and better

near that public would naturally resort

therto 1s usually a question for jury. Id. Co. v. Fritts \[Ark.\] 108 SWV 841.

24. Where by long acquiescence railroad

01. Where rules of company require its has licensed public to use its station platform to

employes to give warning to men in and form or ordinary travel, it must conduct its

about cars before moving same, and such business with ordinary care to avoid injury.

warnings are customarily given, it is negili-

Rowley v. Chicago, etc., R. Co. \[Vis.\] 115

sense to move a car without warning. Fitz.

NW 865. Evidence that engineer jokingly

patrick v. Michigan Cent. R. Co., 149 Mich.

blew steam from engine, causing plaintiff

194, 14 Det. Leg. N. 415, 112 NWV 915. Where

and other children to step from station plat-

railroad in delivering cars on declining pri
Children on or near tracksSee C. L. 1825--A railroad company is not required to take extraordinary precautions for their safety * until their presence is discovered, * although due care must be exercised where children are likely to be on the track.\*Ordinarily a company owes no duty to so fence its right of way as to exclude children therefrom. \*

Adults walking on tracksSee C. L. 1826--Ordinarily a company owes no duty to a trespasser * or bare licensee except to abstain from willfully or wantonly injuring him, * and hence owes no duty to him to run its train on time or at a particular

vate side track was accustomed to set brakes * him in close proximity to train, that train on each car so that front one could be run * could be stopped almost instantly, held to down to bottom as required, it is liable for * make negligence for jury. International, etc., injury to one relying on such custom where * R. Co. v. Vallejo \[Tex. Civ. App.\] 108 SVW brakes are left mnset, Kesterson v. South- * 1187. Where engined testified Loulivesty that * can fasoming fire engine knew that car * away and too close to stop train, which tes- * was to be incorporated into train, held not * timony was uncontradicted except by evl- "cross" negligence to back train against car * done merely raising inference that child * for coupling without warning. Nauss v. * load wicked for some distance on track, no * R. \[Mass.\] 81 NE 280. Where * employees of railroad company engaged * In moving cars on private track are under control of railroad company, company is liable * for their negligence. Fitzpatrick v. Michigan Cent. R. Co., 149 Mich. 194, 14 Det. * leg. N. 415, 112 NUV 915. * leg. N. 416, 112 NUV 915. * leg. N. 417, 1874 (Rev. St. 1874, c. 114, off discharge pipe of oil car, erroneously * leg. N. 418, 112 NUV 915. * leg. N. 419, 14 Det. Leg. N. 415, 112 NUV 915. One injured by door * leg. N. 418, 112 NUV 915. One injured by door * leg. N. 418, 112 NUV 915. One injured by door * leg. N. 418, 112 NUV 915. One injured by door * leg. N. 418, 112 NUV 915. * leg. N. 419, 112 NUV 915. * leg. N. 419, 112 NUV 915. One injured by door * leg. N. 418, 112 NUV 915. * leg. N. 419, 112 NUV 915.

speed,40 nor does the company owe any duty to him to observe crossing 41 and station 41 regulations. While trainmen may assume, until the contrary appears,43 that one walking on the track will leave the same in time to avoid injury,44 and that one beside the track will not heedlessly place himself in danger,45 after discovering his perilous position and that he is not going to extricate himself therefrom 46 they must exercise all reasonable means at hand to avoid injury.47 Where, however, the train runs through a populous community where people are likely to be upon the tracks, a higher duty is owed,48 and those operating trains must moderate the speed,

is not seen until too late. Delaware, etc., R. \[Adm'x \[Va.\] 59 SE 389. Evidence that deCo. v. Wilkins \[C. C. A.\] 163 F 845. 40. Harden v. Georgia R. Co. \[Ga. App.\] 59 that signals were given, but that he threw SE 1122. 41. Harden v. Georgia R. Co. \[Ga. App.\] 59 SE 1122. As to checking speed and ring-ing of bell. Georgia R. & Banking Co. v. Williams \[Ga. App.\] 60 SE 808: Id. \[Ga. App.\] 59 SE 846. Failure to givo statutory signals held not negligence per se. Missouri, etc., R. Co. v. Saunders \[Tex.\] 20 Tex. Ct. Rep. 291, 106 SWV 321. 42. Failure to stop at station for one-half minute as required by Code Pub. Gen. Laws, art. 23, & 266. Chesapeke Beach R. Co. v. Donahue \[Md.\] 68 A 507. 43. Trainmen cannot assume that one on track will leave in time to avoid danger where situation is such as to suggest to or-dinarily prudent person that he is unaware of approaching train. Smith v. Wabash R. Co. \[Md. App.\] 107 SWV 22. Evidence held to warrant finding that brakeman was aware that plaintiff who with others was following officers in charge of prisoner was oblivious to danger. St. Louis, etc., R. Co. v. Caln, 84 Ark. 623, 104 SWV 533. 44. Southern R. Co. v. Gullatt \[Ala.\] 43 S 571: Norfolk, etc., R. Co. v. Dean's Adm'x \[Va.\] 59 SE 389. 45. St. Louis, etc., R. Co. v. Caln, 84 Ark. 623, 104 SWV 533. Need not slow down train, and not liable where he suddenly steps onto track just ahead of train. Bookman v. Seaboard Air Line R. Co. \[C. C. A.\] 152 F 686. 46. It is not necessary that engineer have actual knowledge that pedestrian on track is not going to get off before it becomes high duty to attempt to check train, it being sufficient if he knows that deedent is in place of peril and cannot or will not restrict a himeself in time. International, etc., R. Co. v. Munnt \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 548, 102 SWV 442. 47. Texas, etc., R. Co. v. Patterson \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 519, 102 SWV 138; Norfolk, etc., R. Co. v. Dean's Adm'x \[Va.\] 59 SE 889. Instruction as to when it became duty of engineer to attempt to stop train to prevent injury to pedestrian held correct when considered with other instructions, International, etc., R. Co. v. Munnt \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 548, 102 SWV 442. Where engineer discovers that attention of pedestrian on track cannot be attracted by warning signals, it becomes duty to use every means at hand consistent with safety of train to stop. Id.

**Evidence held sufficient:** To show that trainmen discharged full duty after discovering that decision-making is not going to get off track, Norfolk, etc., R. Co. v. Dean's 105 SWV 138. 44. 45. 46. 47. 48. 49. 40. 41. 42. 43. 44. 48. 49. 41. 42. 44. 45. 46. 47. 48. 49. 42. 45. 48. 49. 40. 41. 43. 44. 49. 42. 45. 46. 48. 49. 40. 41. 44. 45. 47. 48. 49. 41. 42. 45. 49. 42. 46. 48. 49. 40. 41. 44. 41. 44. 42. 45. 46. 47. 48. 49. 41. 45. 48. 49. 42. 49. 43. 44. 45. 46. 47. 48. 49. 44. 48. 49. 45. 49. 46. 47. 49. 48. 49. 49. 40. 41. 49. 41. 44. 42. 49. 42. 49.

give notice of approach, and maintain a lookout.49 While a mere passive acquiescence by a railroad company of occasional use of its tracks as a pathway does not change its duty,50 where it permits a general use of its tracks it must exercise commensurate care.51

One going upon or walking on the tracks of a railroad company must exercise due care for his own safety,52 and the failure of the company to maintain a lookout

49, Louisville, etc., R. Co. v. McNary's

upon track in full view of approaching

Adm'r \[Ky.\] 108 SW 898. Must keep look-

train. Chicago, etc., R. Co. v. Bunch, 82

out and use ordinary care to avoid injuring

Ark. 522, 102 SW 369. Stepping off track to

persons theorem. Louisville, etc., R. Co. v.

allow train to pass, but remaining so near

Hioskins' Adm'r \[Ky.\] 108 SW 365. Must as to be struck. Delaware, etc., R. Co. v.

observe a reasonable lookout to prevent in-

Wilkkins \[C. C. A.\] 153 F 845.

jury when attention is not directed to other

Negligence for jury: Whether one on

dates. Teakle v. San Pedro, etc., R. Co.

track by sufference if not by invitation was

\[Utah\] 80 P 402. Failure to keep lookout

neglient in failing to look and listen for

cannot be inferred from failure to stop or

train, where circumstances were such that

to give signals where decedent and com-

be might not expect train at time. Mis-

panions were in place of safety until decedent attempted to cross immediately in

souri, etc., R. Co. v. Bratton \[Ark.\] 108 SW

518. Negligence in stepping in darkness

front of train. St. Louis, etc., R. Co. v.

from track to avoid approaching train onto

rell, 84 Ark. 270, 105 SW 268. Where train

parallel track in front of backing train

passes through cut and emerges from a

without warning signals. Oliver v. Roach,

curve within a town where presence of

31 Ky. L. R. 284, 102 SW 274. Evidence that

persons on track is to be anticipated adequate notice of approach must be given and

house looked for train from station plat-

speed so regulated to render lookout

form and again when he reached steps near

avail. Louisville, etc., R. Co. v. McNary's

track and saw no train, but walked about

Adm'r \[Ky.\] 108 SW 898. Signal of train's

thirty feet and then stepped onto track

approach ordinarily sufficient to give notice

without looking. Sealey v. Southern R. Co.

to persons exercising ordinary care for own

\[C. C. A.\] 151 F 736. Where path along

safety and in possession of their faculties.

track was not obviously dangerous, negli-

Id. Evidence that deceased child was run

gence in pursuing same instead of another

down on straight track, habitually used for

equally convenient route. Missouri, etc., R.

foot passage, held to make question of negli-

Gence for jury. Louisville, etc., R. Co. v.

Hoskins' Adm'r \[Ky.\] 108 SW 505.

Rep. 133, 101 SW 464. Knowledge of

fective condition of track, without knowl-

50, Chesapeake Beach R. Co. v. Donahue

edge that such condition makes travel on

\[Md.\] 68 A 507. Signals or lights or watch-

men are not required on backing trains for

protein of one using track as root path.

Melton v. Chesapeake, etc., R. Co. \[W. Va.\]

61 SE 39.

Were, after allighting from

\[G1\], Where public were allowed to use

track for passageway to depot, which usage

had prevailed for long time and was no-

torious, railroad owed duty of operating

cars with due care for safety of persons

using same, and such duty involved duty to

anticipate presence of people at any time.

International, etc., R. Co. v. Howell \[Tex.

Civ. App.\] 20 Tex. Ct. Rep. 123, 105 SW 560.

Where well defined footpath across track

has been used for years by pedestrians with

knowledge of railroad and without objec-

tion on its part, held that one using same

was a licence to whom railroad owed same

duty as it owed to one using public cross-

ing. Calvell v. Minneapolis, etc., R. Co.

\[Iowa\] 115 NW 605. Existence of stakes

along tracks used in proper construction

and maintenance of road held not negli-

gence. St. Louis, etc., R. Co. v. Ferrell, 84

Ark, 270, 105 SW 268.

52. Licenses on tracks must exercise re-

sonable care to avoid injury. Teakle v. San

Pedro, etc., R. Co. \[Utah\] 80 P 402.

Negligent per sei: Valkking on track,

knowing that train was soon due, and with-

cut taking any precautions. Chesapeake

Beach R. Co. v. Donahue \[Md.\] 68 A 507.

One in full possession of his faculties, going

so that the 10 Cur. Law. RAILROADS SS 11E. 1401 and to give signals does not excuse a failure so to do.\[53\] One crossing the tracks where the presence of persons on the track is to be anticipated may assume that due notice of approaching trains will be given.\[54\]

_Persons standing, sitting, or lying on tracks.\[55\]_ \*\*C. L. 1829--Unless the presence of persons on the track is to be anticipated,\[58\] railroad owes no duty to maintain a lookout for persons standing or lying on the track,\[59\] and liability attaches only upon failure to exercise due care after discovering the peril.\[57\] Trainmen discovering one standing on track owe no duty to stop the train until they discover that he cannot or will not leave the track.\[58\]\_

_Persons in switch yards.\[55\]_ **S. C. L. 1831--Where the presence of persons in the yards is to be anticipated, due care must be exercised to avoid injury,\[59\] especially if a licensee,\[60\] but ordinarily no statutory duty to fence the yards exists.\[61\] A party in switch yards must exercise care commensurate with the increased dangers.\[62\]**

SE 927. Evidence held Insufficient to sup-port verdict for plaintiff. Id. **Co.** \[N. C.\] 58 SE 58. Guard, whose duty it was after dark to walk ahead of train and warn travelers as it came into narrow street, held not negligent in walking on side of track which was mostly traveled and falling to discover plaintiff lying on other side with hand over rail, Johnson v. J. M. Guffrey Petroleum (Mass.) 83 NE 874. Fact that plaintiff was not discovered lying in darkness with his hand over rail held insufficient to show negligence where it appeared that a lookout was maintained. Id. **Co.** \[N. C.\] 58 SE 58. Hence no liability where everything was done that was possible to prevent injury after discovering that object on track was a man. Cincinnati, etc., R. Co. v. Reyn-old's Adm'r, 31 Ky. L. R. 529, 102 SW 888. **57. Where trainmen discover trespasser lying on track 80 or 90 yards ahead and there is nothing to show that train can be stopped in such distance, railroad is not, as matter of law, negligent in not stopping.**

Southern I. Co. v. Gullatt \[Ala.\] 43 S 577. **Held not liable** where, when trainmen discovered deceded on track, they did not recognize object as a human being and when they did so recognize it was too late to stop. San Antonio, etc., R. Co. v. McMillan \[Tex.\] 18 Tex. Ct. Rep. 431, 102 SWV 888. \*\*103. In action for death of trespasser on track, evidence held to require submission of liability based upon negligence of agent notified of decedents' presence on track in state of helpless intoxication. Glinn's Adm'r v. Louisville, etc., R. Co. \[IKy.\] 105 SWV 437. **105 SWV 437.**

In action for death of trespasser where there was no evidence of speed of train, nor position of engineer, nor that train could have been stopped quicker, nor that engineer was looking forward at place where decedent could have been discovered in time to avoid injury, fact that track was straight and day bright held insufficient to 1403 RAILROADS SS 11E. 10 Cur. Law.

Persons on trains.See S C. L. 1691.--While a railroad is liable to a trespasser 69 only for injuries willfully or wantonly inflicted 69 by its servants,69 it owes reasonable care to a licensee 69 to avoid injury.67 Where boys habitually catch onto cars, however, reasonable care must be exercised although company has attempted to break upon the practice.68 In general, in absence of statute or ordinance, company may run its trains at such rate as it deems convenient,69 but condition of track or other fact may limit such rule.70 Trainmen cannot eject a trespasser in a dangerous place or in dangerous manner,71 and company is liable if they do so provided they act within their authority.72 After'discovering one on train in a perilous position, company must exercise reasonable care to avoid injury.73 Contributory negligence precludes recovery,74 but a lower degree of care is required of immature children.75

63. **Held a trespasser:** One riding at in-

trespasser from moving train is not charge-

vitation of brakeman who had no authority

able with knowledge of his crippled con-

to give same. Johnson v. Great Northern

R. Co. \[Wash.\] 94 P 85. Positive testi-

of reasonable care. Doggett v. Chicago,

mony of conductor of logging train that he

had not accepted rare of plaintiff and had

where brakeman, authorized to eject tresp-

agreed to permit him to ride, under facts of

passers, used such violent and threatening

case, held to show that he was trespasser.

Parker v. Louisiana, etc., R. Co. \[La.\] 44 S 98. Where minor is upon train as a stu-

tall is neggment as matter of law. Texas,

dent fireman through misrepresentation

that he was of age, he is a trespasser or at

most a mere licensee. Norfolk, etc., R. Co. \[Fe., R. Co. \[Wash.\] 59 SE 1091. \]

show that threatening words and actions

v. Bondurant's Adm? \[Va.\] 59 SE 1091. \]

64. De Vane v. Atlantic, etc., R. Co. \[Ga. App.\] 60 SE 1079; Johnson v. Great North-

aren R. Co. \[Wash.\] 94 P 85. Trespasser attempting to board moving train cannot

complain of signal cord being out of order,

red examination that while on ladder

delaying stopping. Illinois Cent. R. Co. v.

v. Potter, 31 Ky. L. R. 679, 103 SW 279. \]

65. While fact that one on train wore a cap and uniform of the kind usually worn

ty employees a circumstance to show that

the was an employe, the law raises no

consive presumption therefrom. De Vane v.

Atlantic, etc., R. Co. \[Ga. App.\] 60 SE 1079. \]

66. One who, while in employ of contractor for feeding men engaged in construction

inyard by different train while at publlo

work, rides in caboose with express or im-

piled consent of company, held licensee, and

not trespasser. Gulf, etc., R. Co. v. Walters

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 616, 107

SW 369. \]

67. Gulf, etc., R. Co. v. Walters \[Tex. Civ. App.\] 10 Tex. Ct. Rep. 616, 107 SW 369. \]

01. Pt 89. Where evidence failed to show

that trainmen knew of plaintiff's presence

or that train was improperly handled, held

insufficient to take case to jury. Id. Evidence in

dence in action for injury to licensee from

falling from train held insufficient to show

negligence, it not appearing what caused

fall. Jones v. Pt. Worth, etc., R. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 83, 105 SW 107. \]

68. Texas, etc., R. Co. v. Buch \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 406, 102 SW 124. \]

01. Without being per se negligent in

case derailment occurs and injures licensee

on train. Chicago, etc., R. Co. v. O'Brien

\[C. C.\] 153 P 511. \]

70. Negligence held for jury In running

train at rate of 70 to 75 miles per hour

down a grade ending at a six degree curve,

resulting ln derailment. Chicago, etc., R. Co., V. Orlien \[C. C.\] 153 P 511. \]

71. Gates v. Quincy, etc., R. Co., 125 Mo. App. 384, 102 SW 50. \]

01. Understand the assumption that the number of false positives is 1 10 Cur. Law. RAILROADS SS 11G1. 1403

\_Persons using hand cars or railroad tricycles.\_See * C. L. 1983.--A railroad company is liable to a trespasser * only for injuries willfully or wantonly inflicted," and where section men without authority place a child on a hand car for a ride, company is not liable however grossly negligent they may be.\* Parties using such means of transportation must exercise commensurate care."

(SS 11) \_F. Accidents to trains.\_See * C. L. 1983.--A railroad owes ordinary care to avoid injuring passengers of other roads at intersecting points.\*

(SS 11) _G. Accidents at crossings._ 1. \_Care required on the part of the company. General rules.\_See * C. L. 1983.--Although in approaching a public crossing * in a railroad has a superior right of way over a traveler on the highway,\* it must exercise a degree of care commensurate with the danger * and consistent with a practical operation of the road,\* but it is not required that the means adopted shall

prove effective.\[88\] A railroad is only liable for negligence,\[89\] and trainmen may assume that one approaching in apparent possession of his faculties will not heedlessly place himself in danger \[87\] unless they have so conducted themselves as to lead him to believe that the train will yield the right of way.\[88\] Ordinarily a railroad is not liable for injuries caused by horses taking fright at noise incident to the ordinary operation of the train,\[89\] but where they are peculiarly likely to endanger life and operation of its road. Held not liable for injury inflicted by backing of train where ordinary precautions were taken to prevent accidents, Pittsburgh, etc., R. Co. v. Pusz-failing to stop train in time to avoid coll-draikewicz, 129 III. App. 295.

- S. Clinchnati, etc., R. Co. v. Changm, 31 Ky. L. R. 1054, 104 SWP 898.
- 86. Railroad is not liable for injuries caused by team taking fright at carcass of 25 or 30 yards away and that train could horse on right of way near crossing unless it knew, or by exercise of ordinary care could have known, of its presence in reasonable time to have enabled it to remove Co. v. Fuller \[Ala.\] 45 S 156. General instance. Louisville, etc., R. Co. v. Armstrong \[Ky.\] 105 SWP 473. Where knowledge was not communicated to defendant until within hour before accident and was removed within two hours thereafter, removal was within reasonable time after notice. Id. Fact that two freight trains had passed held not sufficient to charge defendant with knowledge where it did not appear that carcass was wholly upon right of way, or that its situation was such as to make it apparent to trainmen that its proximity to crossing required its immediate removal, or that it was their duty to watch for dead stock. Id. Defendant held not liable if paintDiffs horse took fright and ran into train at crossing. Cincinnati, etc., R. Co. v. Champ, 31 Ky. L. R. 1054, 104 SWP 988. Eyl-dence as to failure to exercise reasonable diligence to stop train on signal held not to make case for jury. Hummer v. Lehigh Valley R. Co. \[N. J. Err. & App.\] 67 A 1061. Where person in charge of train sees, or by exercise of ordinary care could see, that team on highway is unmanageable and running in direction of railroad crossing and situation is such as to appraise ordinarily prudent man of danger of collision, he must exercise reasonable care to avoid injury. Chesa-peake, etc., R. Co. v. Pace \[Ky.\] 106 SWP 1176.
- 87. Held negligent: In failing to stop train where child approaching track was discov-ered in time so to do. Duggam v. Boston, etc., R. Co. \[N. H\] 66 A 829. In not stopping train after discovering runaway horse coming toward crossing. Denver, etc., R. Co. v. Mitchell \[Colo.\] 94 P 289. In failing to discover child approaching track and in using corresponding care. Holmes v. Mla-gouri Pac. R. Co., 207 Mo. 149, 105 SWP 614. Where engineer discovered plainDiffs performs position in time to avoid injury and failed to do so. Tuscaloosa Belt R. Co. v. Fuller \[Ala.\] 45 S 156. Evidence held to warrant finding that engineer in exercise of due care could have discovered street car in time to avoid injury. Lindenbaum v. New York, etc., R. Co. \[Mass.\] 84 NE 129. Evidence held not to show affirmatively that company was not negligent in approaching crossing at which decedent was killed. At-S 1161.
- 88. Held negligent: In failing to stop train in time to avoid injury and failed to do so. Tuscaloosa Belt R. Co. v. Duggam v. Boston, etc., R. Co. v. Duggam v. Boston, etc., R. Co. v. Mitchell \[Colo.\] 94 P 289. In failing to discover child approaching track and in using corresponding care. Holmes v. Mla-gouri Pac. R. Co., 207 Mo. 149, 105 SWP 614. Where engineer discovered plainDiffs performs position in time to avoid injury and failed to do so. Tuscaloosa Belt R. Co. v. Fuller \[Ala.\] 45 S 156. Evidence held to warrant finding that engineer in exercise of due care could have discovered street car in time to avoid injury. Lindenbaum v. New York, etc., R. Co. \[Mass.\] 84 NE 129. Evidence held not to show affirmatively that company was not negligent in approaching crossing at which decedent was killed. At-S 1161.
- 89. Held negligent: In failing to stop train in time to avoid injury and failed to do so. Tuscaloosa Belt R. Co. v. Duggam v. Boston, etc.

10 Cur. Law. RAILROADS $ 11G1. 1405 can be temporarily suspended without material inconvenience, they must be stayed." Cities have been empowered in some states \[91\] to require railroads to maintain lights at street crossings,\[62\] but such requirements must be definite \[98\] and reasonable.\[94\] Railroad has an equal right with the public to use the highway for purposes incidental to the operation of its road.\[95\] Company owes no legal duty to cut down trees upon its right of way obstructing view of the crossing.\[96\] Railroad owes reasonable care at a private crossing \[97\] or a crossing used with its acquiescence.\[98\] _Lookout._--Trainmen must keep a lookout for persons on or near crossings,\[99\] and on seeing teams approaching must make no unnecessary noise calculated to frighten them.\[10\] \_Duty to signal.\_See $. C. L. 1888--Railroad must give adequate notice of approaching trains,\[2\] and, where the crossing is unusually dangerous, it must, in addition to 90. Williams v. Chicago, etc., R. Co. \[94\]. Heald invald because it limits \[Neb.\] 111 NWF $56. Heald Habble for suddenly starting without warning a locomotion. Pittsburgh, etc., R. Co. v. Hartford City crossing. Id. Evidence held to sustain Ingglence in starting and operating engine, seeing plaintiff crossing ahead of engine, thereby frightening team. St. Louis S. W. R. Co. v. Moore \[Tex. Civ. App.\] 107 SWV $68. Instruction predicting negligence in starting engine, sounding of whistle, escaping of steam, which caused team to run away, confining the noises to time plaintiff was in act of crossing track, held sustained by evidence. Id. $91. Burns' Ann. St. 1901, $ 6NT3, held to authorize adoption of ordinance requiring railroad to maintain light at intersection of street and tracks. Pittsburg, etc., R. Co. v. Hartford City \[Ind.\] 82 NE $77. Term "kind of light" as used in Acts 1905, p. 219, c. 129, authorizing town trustees to require railroad companies to light street crossings, providing that they shall not be required to maintain any different kind of light than that maintained by the town, has reference to general class of lights, as electric, gas, etc., Chicago, etc., R. Co. v. Salem \[Ind.\] 82 NE $13. 92. Police regulation and not invalid as taking of property without just compensation or due process of law. Pittsburg, etc., R. Co. v. Hartford City \[Ind.\] 82 NE $78. Complaint charging violation of ordinance requiring railroad to light its crossings with 2,000 candle power electric light for thirty minutes before passing of train held sufficient in form. Chicago, etc., R. Co. v. Salem \[Ind.\] 82 NE $13. 92. Provision that lights shall be "of sufficent power to light entire crossing" does not render ordinance invalid for indefiniteness (Pittsburg, etc., R. Co. v. Hartford City \[Ind.\] 82 NE $78), nor is it invalid because of provision that such lights need not exceed power of city lights as making company look outside of the ordinance to determine whether it is being violated (Id.). Ordinance requiring railroad to maintain electric light of 2,000 candle power at every point where main track crosses street for thirty minutes prior to passage of trains during nonmonlight nights held not void for uncertainty. Chicago, etc., R. Co. v. Salem \[Ind.\] 82 NE $13. 94. Heald not invalid because it limits character of lights and requires them to be lighted five minutes before train passes. Pittsburg, etc., R. Co. v. Hartford City \[Ind.\] 82 NE $78. Where ordinance requiremony to maintain electric lights where its tracks intersect public streets does not fix the height thereof, it is not invalid as impairing efficiency of headlights, since they may be placed at a height so as not to interfere. Id. $95. Webster v. Chicago, etc., R. Co. \[C. v. A.\] 185 F 76. Heald not liable for injuries caused by horse taking fright at hand car of section foreman removed from track to highway to allow train to pass. Id. $9. Cowles v. New York, etc., R. Co. \[Conn.\] 66 A 1020. \[Conn.\] 66 A 1020. \[77\]. San Antonio, etc., R. Co. v. Meritnk \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 201, 102 SWV 152. 153. 98. Missouri, etc., R. Co. v. Hollam \[Tex. Civ. App.\] 107 SWV $42. One using road un-der bridge commonly and habitually used by public with knowledge of railroad company is more than a licensee. Id. Evidence held to authorize submission of question whether road under bridge was commonly and habitually used by public with knowledge and acquiescence of railroad company. Id. $9. Louisville, etc., R. Co. v. Taylor's Adm'r, 31 Ky. L. R. 1142, 104 SWV 776. Holmes v. Missouri Pac. R. Co., 207 Mo. 149, 105 SWV 624. Where plaintiff in exercise of due are attempted to cross but horse took fright and stood upon track and plaintiff was injured without fault on her part by reason of failure of defend to keep look-out, recovery may be had. Zippelen v. Southern Pac. Co. \[Cal. App.\] 83 P 104. Field question for jury whether it friatmmer had kept lookout as required they would have distinguished decededed from group supposed piece of paper. Snowball v. Sea-board Air 1406 RAILROADS $ 11G1. 10 Cur. Law. the usual signals, provide such signals as are reasonably necessary. Signals must be given at such distance as to be effective.4 The giving of crossing signals is regulated by statute in most states 6 and a failure to comply therewith 6 constitutes negligence,7 but a recovery cannot be based thereon unless such negligence is the proximate cause of the injury.8 Ordinarily the duty to give signals is owed only to one using the crossing,9 although it has been held to apply to one using a crossing near to the one for which signal was given.10 Railroad must give warning of approach to persons crossing at points other than crossings where danger is to be apprehend,11 and it must exercise due care to give warning before starting an engine

Footnote 10: Cur. Law. The usual signals, provide such signals as are reasonably necessary. Signals must be given at such distance as to be effective.4 The giving of crossing signals is regulated by statute in most states 6 and a failure to comply therewith 6 constitutes negligence,7 but a recovery cannot be based thereon unless such negligence is the proximate cause of the injury.8 Ordinarily the duty to give signals is owed only to one using the crossing,9 although it has been held to apply to one using a crossing near to the one for which signal was given.10 Railroad must give warning of approach to persons crossing at points other than crossings where danger is to be apprehended,11 and it must exercise due care to give warning before starting an engine

Footnote 10: Where person crossing private cross- and leg could hear signals required for public crossing and relied thereon, company is taking for failure to give same without regard to distance between crossings. Chesa-peake, etc., R. Co., V. Wilsen's Adm'r. 31 K.-L. R. 500, 102 SW 810. Where cattle are killed at crossing, failure to give statutory signal at another crossing, i.12 feet distant may be considered on insigeence. Hiese v. Wilsen's Adm'r. 31 K.-L. R. 500, 102 SW 810. Where cattle are killed at crossing, failure to give statutory signal at another crossing, i.12 feet distant may be considered on insigeence. Hiese v. Chicago G. W. R. Co. \[Iowa\] 114 TWT 180. 102 SW 450. 104 SW 988. 105 SW 1125. Under Texas statute requiring whistle to be sounded on insigeence. Hiese v. Wilsen's Adm'r. 31 K.-L. R. 500, 102 SW 810. 104 SW 988. 106 SW 1125. Under Texas statute requiring whistle to be sounded on insigeence, Hiese v. Wilsen's Adm'r. 31 K.-L. R. 500, 102 SW 810. 107 SW 114 SW 116. 108 SW 117. 109 SW 118. 111. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 141. 142. 128. 131. 143. 144. 145. 146. 147. 148. 149. 150. 151. 161. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 191. 192. 193. 194. 195. 196. 197. 198. 199.

10 Cur. Law. RAILROADS SS 11G1. 1407

standing near a crossing over which one is driving.\[12\] In determining whether the signals were given, affirmative evidence is usually of greater weight than negative.\[14\]

_Speed_, See 8 C. L. 1637--While ordinarily a railroad may operate its trains at such speed as it may choose through rural districts\[14\] and owes no duty to slacken the same for ordinary crossings,\[18\] in running through cities\[16\] and over other crossings particularly dangerous\[17\] due care must be exercised for the safety of persons using the same, and the fact that a high speed will make it easier to ascend a grade beyond does not justify such speed as to unnecessarily endanger life.\[18\] The violation of a statute or ordinance regulating speed is usually negligence,\[19\] but must be the proximate cause of the injury to authorize recovery.\[20\]

_Gates_,See 8 C. L. 1638--The maintenance of gates at city crossings is frequently required by statute or ordinance,\[21\] but independent thereof the dangerous character of the crossing may make it the duty of the company to provide them\[24\] during particular hours of the day,\[25\] and where gates are erected they must be operated with point where with its consent its tracks are so as not to unnecessarily impair safety of crossed daily by a large number of people, persons using same. Cincinnati, etc., R. St. Louis Nat. Stock Yards v. Brennan, 126

Co. v. Champ, 31 Ky. L. R. 1054, 104 SVW 98.

11. App. 601.

**12.** Heid negligent to start without warning, thereby frrightening horse. Atchison, etc., R. Co. v. Wilkie (Kan.) 90 P 775. Held

Davis v. Pennsylvania R. Co., 34 Pa. Super.

question for jury whether trinman were negligent in starting engine standing near

18 miles per hour held not negligence where crossing without warning, thereby frrightening, tiream crossing tracks. Williams v. Champ

structed. Giacoma v. New York, etc., R. Co. (Mass.) 81 NE 899.

**13.** Where witnesses testify that they were giving their attention to approaching

Adm't. 31 Ky. L. R. 1142, 104 SVW 776.

train, that they could have heard whistle if it had been blown, and that they did not

considered. Brackcu Y. Pennsylvania R. Co., hear it, such evidence held sufficient to over-

32 Pa. Super. Ct. 22. Speed of 20 or 30

come positive testimony that it was blown. Shubars v. Delaware, etc., R. Co., 218 Pa. 187, 67 A 213.

**14.** Instruction making excessive speed the basis of recovery rather than failure to give sufficient warning held erroneous. Schwartz v. Delaware, etc., R. Co., 218 Pa. 187, 67 A 213.

15. Hummer's Ex'x v. Louisville, etc., R. Co. v. People, 182 III.

Co. \[Ky.\] 108 SVW 885. While failure to re-

they, with proof of ordinance regulating

due speed on approaching crossing is not ordinarily negligence, held proper to submit

part of the plaintiff, establishes a prima. Issue to jury where it appeared that no bell

fade case. Wabash R. Co. v. Kamradt, 109

was rung, that headlight was insuffent,

Ill. App. 203.

20. Cleveland, etc., R. Co. v. Dukemhn, 130

and that there was no crossing sign board.

Texas, etc., R. Co. v. Tucker (Tex. Civ. App.)

Ill. App. 105; Southern R. Co. v. Flansbough's

20 Tex. Ct. Rep. 689, 108 SVW 764.

Addm't (Ya.) 60 SE 58. Where plaintiff

16. Louisville, etc., R. Co. v. Taylor's

tesstified that he did not see train which

Adm'r, 31 Ky. L. R. 1142, 104 SVW 776. Rapid

cullideed with his wagon, he cannot be heard

running of trains over streets or crossings

which will render unavalling signals that

ordinance. Westerkamp v. Chicago, etc., R. may be given its evidence of negligence.

Co. \[Col.\] 92 P 687.

Clincinnati, etc., R. Co. v. Com., 31 Ky. L. R. 2113, 104 SWW 771. Speed from 15 to 25

miles per hour around abrupt curve at much

have a flagman at a railroad crossing has

used city crossing at which no gate or

watchman was maintained held sufficient to

maintain gates there. Chicago & A. R. Co. make case of negligence for jury. Serrano v. Averili, 127 III. App. 275.

v. New York Cent., etc., R. Co., 188 N. T. 22. Davis v. Pennsylvania R. Co., 34 Pa.

156, 80 NE 1025. Running of train at speed

Super. Ct. 388. Evidence that five electric

of 40 to 50 miles per hour over city street

can lines ran along streets which crossed

crossing in violation of speed ordinance

nine tracks held to sustain finding that

held negligence. Wamsley due care.24 Where the gates are not otherwise sufficiently lighted,25 the company may be required to place lights thereon.26 Where gates are necessary, a company using the track is liable though the gates are maintained by the proprietary road27 or by an independent contractor.28 A lowered gate serves as a warning of the approach of as many trains as may be used on the several tracks.29

10 Cur. Law. RAILROADS SS 11G2. 1409

ing trains,\[90\] or running switch engines \[40\] over a public crossing, must exercise due care for the safety of travelers.

_Blocking crossings.--A railroad must not unduly occupy a public crossing,\[41\]_ and where it does so one attempting to cross over the ears is not a trespasser \[42\] but is entitled to reasonable care,\[43\] although he is not relieved from exercising due care for his own safety,\[44\] A brakeman has no implied authority to invite pedestrians to climb between ears blocking a street.\[45\]\_

(SS 11G) 2. _Contributory negligence. General rules.\[See 5 C. L. 1859--One approaching a crossing must exercise such care as an ordinarily prudent person would exercise under the same or similar circumstances,\[46\] and a failure so to do will defeat recovery.\[47\]_ The unusually dangerous character of a particular crossing may,

39. Heid negligence per se to back train (Gesas v. Oregon Short Line R. Co. \[Utah\] over crossing on dark night without warn- 93 P 274. Evidence that train had blocked ing. Bowles v. Chesapeake, etc., R. Co., 61

crossing for nearly an hour and that men (W. Va. 272, 67 SE 131. Where in backing engine and tender over much used crossing (finding that trainmen in exercise of ordinary engineer merely watched by looking through one might be in act of crossing and that not unable to see within 10 feet of engine, held

to give warning before moving train would negligence. Houston, etc., R. Co. V. Kauff, -result in injury \[Id.\], and it was their duty mann \[Tex., Civ. App.\] 18 Tex., C. Rep. 238,

to give warning before starting \[Id.\]. Neg. 101 SW 817. Evidence that defendant back.

drain over public crossing on dark night (partural person injured was passing be- without warning signals or lights held to sustain finding of negligence. Gerringer v. North Carolina R. Co. \[NC.\] 95 SE 152. Negligence in closely following train by engineing is attached held negligent as engine running backwards, without lockout on tender, and over crossing without watch- (T.). 105 SW 84), and cannot recover for man or gates, held for jury, Barnum v. (Grand Trunk Western R. Co. \[143\], M. \[370\], 14 Dot. Leg. N. 287, 111 NIV 1034. Evidence that one struck by backing train could see same, that brakeman shoutard warning, that she hesitated and then attempted to go around moving train, that brakeman then tried to stop, held insufficient to show negligence in not sooner attempting to stop train. Matteson v. Southern Pac. R. Co. \[Czl. App.\] 92 P 101. 40. Negligence in not properly guarding crossing while passing of switch engine held for jury, Riley v. Northern Pac. R. Co. \[Mont.\] 93 P 948.

41. Where horse was frightened by blowing off of steam by engine standing, and which had been standing, for 30 minutes and projecting into street, held that negligent leaving of engine in street was proximate cause of injury, and that escape of steam (T.). 92 P 1095. Degree of care required was but an incident. Pay v. Minneapolis, etc., R. Co., 131 Wils. 633, 111 NIV 683.

01. Gesas v. Oregon Short Line R. Co. \[Utah\] 93 P 274. One attempting to climb (-between cars before same have blocked crossing unreasonably is a trespasser.

Southern R. Co. V. Clark \[Ky.\] 105 SW 834. At which train usually crossed same or with Civ. Code 1902, 1 3175, providing that if any (T.). 92 P 1095.

fullroad company or its employee unnecessary.

ily obstructing any public road, etc., it shall be liable for penalty, does not affect rule (R.). 94 P 504. Traveler ap- (T.). 92 P 1095. Degree of care required to have according to their familiarity with lo- 42. Gesas v. Oregon Short Line R. Co. \[Utah\] 93 P 274. One attempting to climb (-between cars before same have blocked (T.). 92 P 1095.

One living two miles from railroad crossing crossing unreasonably is a trespasser.

held not chargeable with knowledge of time (Southern R. Co. V. Clark \[Ky.\] 105 SW 834. At which train usually crossed same or with Civ. Code 1902, 1 3175, providing that if any (T.). 92 P 1095.

fullroad company or its employee unnecessary.

ily obstructing any public road, etc., it shall be liable for penalty, does not affect rule (R.). 94 P 504. Traveler ap- (T.). 92 P 1095.

that company may become trespasser by un- (T.). 92 P 1095.

reasonably blocking highway by standing (T.). 92 P 1095.

train, and one attempting to pass through (T.). 92 P 1095.

or over cars is not a trespasser. Walker v.

Southern R. Co., 17 S. C. 161, 57 SE 764.

however, require commensurate care,48 and in some states only "gross" 49 negligence will preclude recovery where the defendant violated a statutory duty.50 Whether a person injured at a crossing exercised the proper degree of care for his safety is a question of fact51 or law,52 according to the particular circumstances of the case.

One attempting to cross in face of warnings is usually held guilty of negligence.\[53\] A child is ordinarily held only to the degree of care to be expected of a child of similar age and discretion,\[54\] and, where a child exercises the care of an adult, negligence for jury in going onto traeks in front of approaching train, there being a driving rain at time and decedent was holding to cross in front of stationary engine engine umbrella towards train. Central of projecting into street six or ten feet. Fay. v. Georgia R. Co. v. North, 129 Ga. 105, 58 SE 817. Negligence of husband not being Im-putable to wife, evidence held to authorize recovery. Southern R. Co. v. King, 128 Ga. 383, 57 SE 687.

Facts to be considered: Fact that train was not on time. Wrightsville, etc., R. Co. v. Armstrong's 129 Ga. 20, 58 SE 769. Proper speed of train may be considered in determining decedent's negligence in going onto traek ahead of train running at a negligent speed. Hummer's Exx v. Louisville, etc., R. Co. \[Ky.\] 108 SW 885. In action for injuries caused by team taking fright at carcass of horse on right of way near crossing, plain-tiff's failure to report same to town authority-ties for removal held provable to establish assumed risk. Louisville, etc., R. Co. v. Armstrong \[Ky.\] 105 SW 473.

52, Nonsuit should not be ordered on ground of contributors negligence unless negligence of party injured is manifest. Kunz v. Oregon R. Co. \[Or.\] 93 P 14L. Where surrounding circumstances are such that in exercise of due care one crossing tracks must have been able to avoid train, court may differ / verdict. Allen v. Boston, etc., R. Co. v. Passdarkiewicz, 129 IIL App. Co. \[Mass.\] 83 NE 863.

Negligence as matter of law: Struck by train approaching on straight track in broad daylight. Houston, etc., R. Co. v. Kaufman \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 238, 101 SW 817. One possessing unimpaired faculties, in going onto crossing ahead of train approaching in full view. Lake Shore, etc., R. Co. v. Brown \[Ind. App.\] 84 NE 25. Unobstructed view of track for 200 feet, attempted to cross in face of approaching train and in d'hegard of warnings and signals. Chicago, etc., R. Co. v. Blake, 125 III. App. 336. Knew that train was due, view unobstructed except for a few scattered trees, notwithstanding he testified that he looked and did not see train. Westerkamp v. Chicago, etc., R. Co. \[Coo.\] 92 P 687. Where plaintiff, knowing that team was afraid of carcass of horse on right of way near crossing, attempted to compel them to pass by use of whip. Louisville, etc., R. Co. v. Armstrong \[Ky.\] 105 SW 473. Evidence that plaintiff's sight and hearing were unimpaired, that he had clear view of track for long distance, that headlight of engine was burning brightly and was seen by one crossing ahead of plaintiff. Aethison, etc., R. Co. v. Baker \[Ind. T.\] 104 SW 1182.

Not negligence as matter of law. Louisville, etc., R. Co. v. Molloy's Adm'x \[Ky.\] 107 SW 217. Driving automobile 12 to 15 mlles per hour and colliding with Iron tril-ley pole while trying to avoid closed gates (Record v. Pennsylvania R. Co. \[N. J. Law\] 67 A 104), nor was act of turning car per ee negligence (Id.). In going onto track, knowing that train was approaching about quarter of mile away, accident being caused by the presence of a child of a single person.

The main goal of this work is to investigate the effect of the presence of a child of a single person. The main goal of this work is to investigate the effect of the presence of a child of a single person.

gence of parents in permitting him to go alone is negatively.\[15\] The fact that plaintiff, knowing of the presence of a carcass of a horse on defendant's right of way and within town limits, did not report same to the town authorities, does not preclude recovery for an injury caused by his team becoming frightened threat.\[86\]

_Acts required of traveler.\[86\]_ & C. L. 1041.--The care exacted of one approaching a crossing requires that he should use his faculties of sight and hearing to avoid injury,\[87\] but the failure to "stop, look and listen" is not usually negligence per se 58

ligence of eight year old child in attempt-

Boston, etc., R. Co. \[Mass.\] $3 NE 88. Fading to cross between cars of train which had

millar with location of railway tracks, at-

obstructed street for over half hour. Gessas

tended to cross without looking for ap-

v. Oregon Short Line R. Co. \[Utah\] $9 P

proaching train, which might have been seen

274. Child nine years old held not negligent

two thousand feet away. Cincinnati, etc.,

as matter of law in crossing ahead of train

R. Co., V. Bokenkotter, 10 Ohio C. C. (N. S.)

though she saw same approaching. Dinggan

448. One approaching crossing in closed

v. Boston, etc., R. Co. \[N. LI.\] $6 x $29. Tess

wagon and observing headlight in fog, but

timony of switchman that switching was

believing it to be at station, crosses without

being done in front of plaintiff, eleven-

further investigation and without writing

old boy, as he entered onto right of way,

horse of walk. Hambulin v. New York,

held not to show conclusively that he was

etc., R. Co., 195 Mass. 555, 81 NE 258. Evl-

neglient in not discovering and avoiding

dence that decodent looked, and must have

car kicked across highway. Olson v. Minne-

seen that heavy freight train was slowly

apolits, etc., R. Co., 192 Minn. 395, 113 NW

1010.

0001. Serrano v. New York Cent., etc., R. Co., 198 XNES 169.

188 N. Y. 156, 80 NE 1025.

Evidence that boys approaching crossing in

56. Louisville, etc., R. Co. v. Armstrong

not so clear as to require reversal of ver-

\[Ky.\] 105 SW 418.

gr. Illinois, etc., R. Co. v. McMillion, 129

dict against defendant. Sherwood v. New

11. All, Apr. 27: Ghephiny v. Atlantic City R. Co. \[N. J. Err. & App.l 68 A 61; Smith's Adm'r v.

105 NYS 547. Man thirty-six years of age,

Norfolk, etc., R. Co. \[Va.\] $6 x $6. Insurance

seated in rear seat of automobile on side of

tion as to duty of plaintiff to look and listen

before crossing railroad tracks held proper.

neglient, as matter of law, in not looking

Senian v. Chicago Union Trac., 127 Ill.

for train. Read v. New York Cent., etc., R.

App. 406; Ravavatt v. Cleveland, etc., R. Co., 128

Co., 123 App. Div. 288, 107 NYS 1068. Where

IIl. App. 220; Cleveland, etc., R. Co. v. Wuest

evidence is clear that had plaintiff taken

\[Ind. App.\] $8 NE 620. Rule that one ap-

proper precautions he could have seen train

proaching crossing mustardity look and

liten to stop, fact that he testified that he

listen applies to one riding in vehicle in

looked some distance from track and did

charge of another. Noxkes v. New York

net see approaching train held not to re-

Cent. etc., R. Co., 121 App. Div. 116, 108 NYS 522. In-

11,7 plaintiff could have

New York Cent., etc., R. Co., 108 NYS 245.

seen and heard train in time to have avoided

it had he looked and listened, he cannot re-

crossing had looked and listened he would

cover though he testified that he looked and

have discovered approaching train pre-

listened and neither saw nor heard train,

sumption of the care is destroyed (Rogers

held erroneously refused. Aichson, etc., R.

v. Rio Grande Western R. Co. \[Utah\] $90 P

Co., V. Baker \[Ind. T.\] 104 SW 1182.

1075), and it will be presumed that he did

Negligence held for years stopped, looked

not look and listen or that he did not need

and listened three times, view much ob-

what he saw-and heard (Wamsley v. Cleve-

structed. Weston v. Pennsylvania R. Co.,

land, etc., R. Co. \[Ind. App.\] $2 NE 490). In-

\[N. J. Err. & App.\] $5 A 1015. Negligence of

struction held correct. Rogers v. Rio Grande 10 Cur. Law. RAILROADS SS 11G2. 1413

and may be excused by the peculiar circumstances of the case. \[59\] The rule requires that the duty be exercised at such point as to render it effective, \[60\] and is not satisfied by looking one way only. \[61\] A failure to stop, look and listen, however, will not defeat recovery unless it is the proximate cause of the injury. \[62\]

\_Duty where view of track is obstructed._See * C. L. 1643_--Where the view of the tracks is obstructed, commensurate care must be exercised. \[63\]

\_Parallel tracks._See * C. L. 1643_--While one unnecessarily waiting on one track for a train to pass on a parallel track is per se negligent, \[64\] it is generally a question for the jury whether one is negligent in not stopping and looking after passing the first track. \[65\]

\_Right to rely on crossing signals, gates, flagmen, etc._See * C. L. 1643_--While one approaching a crossing may ordinarily assume that trains will be operated with due 1414 RAILROADS SS 11H. 10 Cur. Law.

care (*) and that statutory regulations as to speed (*) and signals (*) will be observed; he is not excused from exercising due care for his own safety.(*) Likewise, open gates and signals of flagman to proceed do not as a matter of law excuse a traveler from exercising due care.(\*)

(SS 11) _H. Injuries to persons on highways or private premises near tracks._ See * C. L. 1644.--While a railroad must exercise reasonable care to avoid injuring one rightfully on a highway,(*) it is not liable for injuries caused by teams taking right at the ordinary operation of its trains.(*) Where a traveler on the adjacent highway is seen in apparent danger, it becomes the duty of the railroad to exercise reasonable and practicable care to avoid injury.(*) A railroad in the public street has a right of way over travelers,(*) but where it maintains a platform thereon, the public may use the same.(*) Rules and regulations as to crossings are generally held inapplicable to persons on highways,(*) and a violation thereof in any event must be, the proximate

66. Schwannfeldt v. Chicago, etc., R. Co. \[of safety gates driver should stop, look and \[Neb.\] 115 NW 285, Crossing track in front of standing locomotive. Williams v. Chl-Gasco, etc., R. Co. \[Neb.\] 111 NW 596. Fact Super. Ct. 22. Motorman held not negligent that electric alarm well did not bring may be considered in determining contributory negligence in going onto track. Cleveland, etc., open, Louisville Ridge Co. v. Moroney \[Ky.\] R. Co. v. Schneider \[Ind. App.\] 80 NE 985. One approaching crossing has no right to assume that defendant will not in any way be negligent in operation of trains. Hustong v. Southern California R. Co., 150 Cal. 701, SS 8P 1093.

01. Chicago, etc., R. Co. v. Wilson, 128 III. App. 88; Cleveland, etc., R. Co. v. Dukeman,

130 III. App. 105; Kenny V. Oregon R. & Navi,

Co. \[Or.\] 94 P 604. In absence of notice to the contrary. Kunz v. Oregon R. Co. \[Or.\] 93 P 141. No right to assume that train is running at lawful rate of speed where by looking the contrary would be evident. Stotler v. Chicago, etc., R. Co., 204 Mb. 619, L03 SW 1. Decedents negligence in attempting to cross after hearing whistle, he assuming that train was approaching at lawful rate of six miles per hour, held for jury under all the evidence. Kunz v. Oregon R. Co. \[Or.\] 93 P 141.

68. Chicago, etc., R. Co. v. Louderback, 125 Co.,

111, App. 323; Chicago, etc., R. Co. v. O'Leary,

126 III. App. 311; Lake Shore, etc., R. Co. v. EMPIH,

148. In spite of this,

001. Complaint considered and held not departable as showing that plaintiff relief solely on electric bell to give warning. Cleveland, etc., R. Co. v. Schneider \[Ind. App.\] 80 NE 985. Reliance on giving of statutory signals does not justify approaching crossing at such speed as to be unable to stop before reaching crossing after reaching point where train can be seen or heard. Smith's Adm'r v. Norfolk, etc., R. Co. \[Va.\] 60 SE 86. Fact that crossing signals were not given held not as matter of law to cause failure to listen. Morrow v. North Carolina R. Co. \[N. C\] 58 SE 185.

001. Open gates. Schulte v. Louisville, etc., R. Co. \[Ky.\] 108 SW 941; Shafer v. Lehhigh Valley R. Co. \[N. J. Law\] 60 A 1072. Signal of gamma. Union Pac. R. Co. v. Rosewater

\[C. C. A\] 157 F 168. Whether after opening 10 Cur. Law. RAILROADS SS 11L. 1415

cause of the injury to sustain a recovery.11 Contributory negligence defeats recovery.11

(SS 11) _I. Injuries to animals on or near tracks. How far liability extends._ See 6 C. L. 1944.--While it has been held that a railroad owes only the duty to abstain. from willfully and wantonly injuring a trespassing animal,11 and hence owes no duty to keep a lookout11 or to maintain its roadbed in a safe condition,12 the more general rule seems to be that it must exercise reasonable care to avoid injury 12 and is liable for negligence 12 proximately causing injury.13 While trainmen must have due regard for the known habits of animals,14 they may operate the train in the usual manner,15 and ordinarily a high rate of speed is not of itself negligence.15 After discovering an animal in peril, reasonable care must be exercised to avoid injury.16 What constitutes actionable negligence is usually a question of fact for the jury.17

Footnote 12: The 10 * 80. Negligent instruction on hypothesis that engineer could not have sounded bell and whistle because engaged in stopping train held properly refused, correct rule with reference to date car having been given. Atlantic Coast Line R. Co. v. Way-cross Elec. L. & P. Co., 1 Ga. App. 483, 57 SE 1017. Where circumstantial evidence is refined upon to show negligence in killing of stock, circumstances must negative every hypothesis save negligence. Gibson V. Iowa Cent. R. Co. \[Iowa\] 113 NWP 927. Where cow had been standing on track for five minutes before she was struck by train, liability depends upon whether ordinary carre required employees to keep lookout and whether, if one had been kept, she would have been discovered in time to have avoided injury. Tex-arkana, etc., R. Co. v. Bell \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 401, 101 SWV 1167.

- 81. Evidence held for jury: Where conflicting as to whether it was foggy and as to distance of train from cattle when they were discovered, etc. Carr v. Minneapolis, etc., R. Co. \[N. D.\] 113 NWP 912. Where animals were killed in cnt and on straight track, negligence in failing to keep lookout or in falling to stop train after discovering animals. Cockburn v. St. Louis, etc., R. Co. \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 965, 102 SWV 740. Whether ordinary care required employees to keep lookout while backing train through part of town where cattle run at large (Texarkana, etc., R. Co. v. Bell \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 401, 101 SWV 1167), and whether ordinary care required ringing of bell and blowing of whistle (Id.). Evidence that cow was killed in cut where track was straight for long distance. Haardt v. Central of Georgia R. Co. \[Ala.\] 44 S 547. Where train was being switched backward through part of town where cattle were allowed to run at large, held that jury could consider failure to ring bell in determining whether railroad had exercised ordinary care to prevent injury. Texarkana, etc., R. Co. \[Ia. App.\] 59 SE 595. Fact that cow was killed at point where track was straight for 101 SWV 1167.
- 82. Evidence. held sufficient: To show negligence in running at reckless speed at place where stock was liable to be on track. Gulf, etc., R. Co. v. Anson \[Tex. Civ. App.\] 102 SWV 136. To support finding that horse was thrown onto fence by train or was so brightened thereby that the jumped onto it. Meier v. Northern Pac. R. Co. \[Ior.\] 92 P 691. Evidence that mule could have been seen as it came onto track about quarter mile ahead of train, that whistle was not sounded until within ten steps of mule, and that speed of train was increased until he was struck, having run for about 260 yards ahead of train, held to support finding of negligence. St. Louis, etc., R. Co. v. Scott, 84 Ark. 623, 104 SWV 1103. Bruised condition of maze found dead near tracks together with evidence of blood on track held sufficient to sustain finding that she was killed by collision with train. Dees v. St. Louis, etc., R. Co. \[Ia. App.\] 105 SWV 455. Evidence of condition of horse found dead on right of way held to authorize finding that it was killed by train. Ft. Worth, etc., R. Co. v. \[N. D.\] 113 NWV 553. Failure of defend-at to give proper crossing signals held not to render railroad liable for killing of trexpasing animals twenty-five rods from crossing, in absence of showing train was within 150 feet of her, when she studying of same. Muller v. Chicago, etc., R. Co. v. \[N. D.\] 111 NWV 553. Failure of defend-at to give proper crossing signals held not 10 Cur. Law. RAILROADS SS 11I. 1417

existence "1 of "stock law" does not ordinarily preclude recovery." Where cattle are shipped from a quarantine district, ordinary care must be exercised to prevent their escape outside of the district."

\_Place of entry on right of way.\_See _s C. L._ 1831--The place of entry may be material on the question of liability under the fence laws," and in Indiana a railroad is not liable for injury to stock entering at a private crossing " unless caused by its negligence."

\_Duty to maintain fences.\_See _s C. L._ 1831--At common law a railroad owes no absolute duty to fence its tracks," but in many states it is required " by statute " to fence its right of way 1 except in cities," at depot grounds," switch yards," and pub-

proximate cause of injury to mare frightened

road liable for injury to animals on track from track into fence by blowing off of - steam. St. Louis S. W. R. Co. v. Conger, 84

Marthin v. Chicago, etc., R. Co., 15 Wyo. 493, Ark. 421, 165 NW 1177. Evidence held to 89 P 1025. Where there is no statute requir- show that flesh wounds inflicted in December for killing of stock cannot be based in April. Southern R. Co. v. Purpear, 2 Ga. App. 15, 58 SE 806.

Orienas, etc., R. Co. \[Mis.\] 45 S 864. Comma-

91. Validity of stock law election may be inquired into action for injuries to stock. Missouri, etc., R. Co. v. Tolbert \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 454, 101 SW 1014.

01. Comp. Laws N. M. 1897, SS 98. Porter

v. El Paso S. W. R. Co. \[Tex. Civ. App.\] 107

93. Pkw. \[Tex. Civ. App.\] 107

01. Sury 927. \[Existence of "stock law" does not change degree of duty owed to avoid injury to stock. Atlanta, etc., R. Co. v. Hudson, 2

01. Act July I, 1874 (Rev. St. 1874, c. 114, Ga. App. 352, 58 SE 600. Fact that stocking

law election has been declared to be in force and f is being observed does not affect abs-,

fence as therein provided or to assume liability liability under Rev. St. 1895, art. 4528, for stock killed by trains upon unfered

C., 232 III. 446, SS NEE 948.

tracks. Missouri, etc., R. Co. v. Tolbert

90. Acts 29th Leg. (Laws 1905, p. 226, c.

\[Tex.\] 18 Tex. Ct. Rep. 94, 101 SWV 206.

93. Reynolds v. Galveston, etc., R. Co.

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 388, 99 SWV

659. Where it appears that gate was not defective, that it was properly shut, and

that cattle had never worked it loose, held

that finding of negligence was unwarranted.

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 237, 104 SWV

142.

001. Plea that failure to fence was not proximate cause held unavailable in action under statute for killing of mule where it

appeared that mule entered at point where road was not fenced and was thereafter

struck and killed. Cleveland, etc., R. Co. v. Miller, 40 Ind. App. 165, 81 NE 517.

95. Field entry at private crossing within

Burns' Ann. St. 1901, $282, where stock first entered at point where company failed to maintain fence, but thereafter passed onto

private land and again entered at private crossing. Chicago, etc., R. Co. v. Ramsey,

168 Ind. 390, 81 NE 79.

90. Since Burns' Ann. St. 1901, $522, exempting company from liability where entry

is at private crossing in the absence of neg-,

Ilicence, does not define negligence, it must

be determined by rules of common law. Chicago, etc., R. Co. v. Ramsey, 168 Ind. 390, 81

168 Ind. 390, 81 NE 79. Where, on discovering cattle 400 feet

1784, so that land must be improved or in-,

178, to show that liable, and notice in

178, to show that liable, and note in
lic crossings,\* and absolute liability is frequently imposed by statute * for injury.to stock entering upon the right of way at an unfenced point.7 Natural barriers effective to turn stock frequently relieve the company of its statutory duty to fence.\* Where a fence law is intended for the protection of stock as well as the abutting landowner,\* a contract between the company and such owner relieving the former from its duty to fence does not affect the rights of another whose stock is injured.10 Generally a railroad is only liable for common-law negligence in maintaining a fence,11 although in come states a fence so out of repair as to be ineffective as a

\*\*8. Where there was about one and one-half miles of unfenced track from depot extending towards next station, and it appeared that it was three-quarters of a mile to head of switch running back toward station used for storing engines, etc., and about 150 yards further was a branch line forming head of a "Y," held question for jury whether such untenced portion could be considered * * 8. Where there was about one and one-half miles of unfenced track from depot extending towards next station, and it appeared that it was three-quarters of a mile to head of switch running back toward station used for storing engines, etc., and about 150 yards further was a branch line forming head of a "Y," held question for jury whether such untenced portion could be considered * 8. Where there was about one and one-half miles of unfenced track from depot extending towards next station, and it appeared onto lands of another and thence entered onto railroad. Smith v. Chicago, etc., R. Co., 127 Mo. App. 160, 105 SW 10. In * 8. Where this was the first time, the second time, the * 10 Cur. Law. RAILROADS SS 111. 1419

fence is regarded as no fence.12 The Wyoming statute defining a lawful fence and making the company liable for injuries resulting from an illegal fence is applicable only to injuries from fence itself.13 One seeking to recover under the statute must allege and prove all facts necessary to impose the liability.14

_Gates._\[See * C. L. 1658--While in some states a railroad is absolutely liable for injury to stock entering through a defective gate,15 the duty usually rests upon the 'adjacent owner to keep a gate maintained for his convenience in repair and closed.16

_Cattle guards._\[See * C. L. 1654--Railroads are generally required to maintain efficient cattle guards at fence terminals,17 and are frequently made absolutely liable 18 for injuries to stock passing over the same.19 While the construction of a cattle guard dangerous to animals attempting to cross is not in itself negligence, it becomes such if of an inviting nature.20 Where a cattle guard is located at the place required by law, no negligence can be predicated on the location.21

_Contributory negligence of owner._\[See * C. L. 1654--Contributory negligence of owner of stock usually 12 defeats recovery,18 but the existence of "stock law" does not

nearly a month, held to make prima facte \[same. International, etc., R. Co. v. Russell case; hence demurrer was properly over- ruled notwithstanding contradictory evil- done of company. Rinehart, V. Kansas City gates closed, held not liable where securely g. R. Co., 204 Mo. 265, 102 SW 958. Evidence that some of posts were rotten and would person. Id. not hold stapples, and that section foreman had promised to rebuild, etc., held to make

Footnote 18: To escape absolute liability under Acta cage, etc., R. Co., 15 Wyo, 492, 89 P 1025, 117, railroad is not required to erect guards except at points where fence has been erected. Parrish v. maintain sufficient fence, Church v. Chi-Coa, etc., R. Co., 102 Minn. 258, 113 NW 868. SVW 690. Railroad held under no statutory duty to maintain cattle guards to prevent little liability, held applicable. Missouri, etc., R. Co. v. Tolbert \[Tex. IXE, Ct. Rep. 94, 101 SSV 206. 13. Rev. St. 1889, $ 1973. Martin v. Chal- cagp, etc., R. Co., 15 Wyo, 492, 89 P 1025. 14. To recover under $ Mills' Ann. St. $ 8712a (Laws 1902, p. 23, c, $ 8), for failure to fence, plaintiff must show that period allowed for construction had expired. Colo-rado, etc., R. Co. v. Neville \[Colo.\], 92 P 956; C. Dewer, etc., R. Co. v. Nekiso \[Colo.\], 92 P 956; C. Evidence that road was built in 1872, and that plaintiff had done business with "Rio Grande" for twenty-five years, held insuffment that defendant, the Denver & Rio Grande Railroad Company, had road open for use at time of passage of the act. Id. In action under statute for killing of stock, caused by failure to fence, omission must be alleged in some manner to sustain recovery, though action is before justice of the peace. St. Louis, etc., R. Co. v. Hoff \[Kam.\], 82 P 539, 111, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 211, 222, 231, 240, 241, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 1420 RAILROADS SS 11J. 10 Cur. Law.

make it negligence, as matter of law, to permit stock to run at large.\[24\] Such negligence, however, must be the proximate cause of the injury.\[25\]

(SS 11) \_J. Fires.\[See e. C. L. 1655.--A railroad company must exercise reasonable care to prevent the communication of fires to adjacent property,\[26\] and is liable only for negligence.\[27\] Negligence is usually a question of fact for the jury.\[28\] A rail-

neglience. Central of Georgia R. Co. v. Sullivan \[Ind. App.l 83 NE 1024. In or-

23. Owner of cattle killed in collision with

ter to recover for loss by fire because of

traffic cannot, in absence of proof of Wilfult

improperly constructed engine or improper neglect, recover from the railroad company

operation, plainit must show negligence.

where it appears that cattle reached right

Hawley V. Sumpter Valley R. Co. \[Or.\] 90 of way because of his failure to keep gate

1106. Allgections in effect charging neg-

closed. St. Louis, etc., R. Co. v. Frankboneer,

ligence in placing "cook car" near building

128 III. App. 284. Where duty rests on rail-

containing combustible materials held propro-

road to keep fence in repair, it cannot predil-

ery stricken, as such act in itself, without

cate contributory negligence on failure of

regard to construction thereof, etc., is not

plainit to repair, especially where plainit

neglience. Talmadge v. Central of Georgia

had no control of adjoining premises. FT

gia R. Co., 125 Ga. 400, 54 SE 128. Instrucu-

worth, etc., R. Co. v. Hickox \[Tex, Civ. App.l\]

tion, "If you do not find that defendant,

18 Tex. Ct. Rep. 691, 18 SW 302.

through its officers or agents, caused the

Held for jury: Negligence in not driving

fire, then you should find for defendant,"

stitle from main track first. Jackson V.

held not objectionable, when considered

Sumper Valley R. Co. \[Or.\] 95 PS 358. Negil-

with other instructions, as making defend-

gence in turning stock out to graze on un-

and liable, though it used reasonable care.

lincosed lands near railroad track. Id. Neg.

Fireman's Fund Ins. Co. v. Northern Pac.

ligence in allowing cattle to run at large

R. Co., 46 Wash. 859, 91 P 18.

buildings being a mile from track, and cat-

28. Under Comp. Laws, 6 6295, providing

the not being in habit of going on track,

that railroad shall not be liable for fire if

Carr v. Minneapolis, etc., R. Co. \[N. D.\] 112

11 prove that it originated from an engine

mvp 972.

properly equipped and operated, negligence

becomes question of law for court where

tended and until near track, they having

uncontroverted evidence shows that appli-

run away before. Galveston, etc., R. Co. v.

or "uses were such as law and good railroad-

Graham \[Tex. Civ. App.l\] 19 Tex. Ct. Rep. 1

ing require and properly managed. Dolph

895, 911 SW 846. Where owner ordered com-

v. Lake Shore, etc., R. Co., 149 Mich. 278,

pany employees who were rebuilding fence on

14 Det. Leg. N. 426, 112 NW 981. Undistributed

line of original to design, claiming that line

evidence of proper equipment and manage-

was wrong, which they did, held that he was

ment held to render question of negligence

guilty of contributory negligence in turning

for court, notwithstanding tranminer failed

horse into pasture while in such condition,

to give in detail manner of operation. Clark

and cannot recover for horse injured by be-

v. Grand Trunk Western R. Co. 149 Mich.

coming entangled in wire. Baltimore, etc.,

400, 14 Det. Leg. N. 486, 112 NW 1121.

R. Co. v. Mcffay, 17 Onto St. 891, 88 NE 497.

Evidence held sufficient To warrant find-

Not negligent. In turning of rule into

ing that fire was caused by negligent opera-

pasture, knowing of defective cattle guards

tion of engine or defective condition of

Texas, etc., R. Co. v. Sports \[Tex, Civ. App.l\]

spark arrester. Southern R. Co. v. Mc-

20 Tex. Ct. Rep. 27, 105 SW 521. In action

footingy, 31 Ky. L. R. 291, 102 SW 270.

for killing of stock, plea that plainit was

Evidence that in effort to pull derailed car

gulfity of negligence in that, with knowledge

back onto track engine emitted apparks

of existing condition of cattle gap, he turned

stock into lane leading by same, giving them

was discovered on adjacent building, held

opportunity to cross it, held to state no

to sustain finding for plainit. Missouri,

fense. St. Louis, etc., R. Co 10 Cur. Law. RAILROADS SS 11J. 1421

road company must exercise reasonable care to keep its right of way \[29\] free from combustible material,\[30\] and, if it fails to do so, it is immaterial that it is not negligent in other respects.\[41\] In some states, company is absolutely 'liable for fires' communicated by its locomotives.\[42\] Where trainmen, having knowledge \[85\] that a fire hose is laid across the track, unnecessarily run over and sever the same, the company is liable for the loss proximately caused thereby.\[34\] The duty of trainmen to leave the train and extinguish a fire negligently set by sparks is 'subject to the greater duty owed to the public.\[35\] The South Carolina statute making railroads liable for fires started by an act of their authorized agents does not apply where the agent is off duty.\[36\] Ordinarily a railroad cannot relieve itself for fires negligently started while burning fire guards by employing an independent contractor,\[37\] especially where it interferes with the work,\[38\] and in some states the liability is affected by statute.\[38\] Company's negligence must be the proximate cause of the loss.\[40\]

\_Duty as to equipment and operation of engines.\_See S C. L. 1056--Ordinary care must be exercised in equipping locomotives with proper appliance for the prevention of fire \[41\] and in keeping the same in repair;\[42\] it is usually sufficient, however, if the

handled, though warranting a finding that sufficient to show that trainmen knew that fire was set by spark from engine. Sven lose was lying across track. Phenix Ins. Co. v. Vicksburg, etc., R. Co., 15S F. Co. v. New York Cent., etc., R. Co., 12E 774. 29. When track is in Highway, duty extends to such portion thereof as may be properly regarded as its right of way. Smith v. Ogden, etc., R. Co. \[Uttah\] 93 P 185. Ins. struction considered and held erroneous as relieving company from such duty, 14. 20. 50. 51S. V. Thompson, 129 Ga. 567, 58 SE 1044: Smith v. Ogden, etc., R. Co., 15S. V. Thompson, 129 Ga. 567, 58 SE 1044: Smith v. Ogden, etc., R. Co., 15S. V. Norton Pae, R. Co., 46V. Walsh, 65, 51P 13. Independently of statute, question whether railroad company is negligent in permitting combustible material to ac-cumulate on right of way is for jury. Illinois Cent. R. Co. v. Siler, 219 Ill. 390, 83 NE 83E. Evidence held to authoring finding of negligence in permitting combustible material to accumulate along right of way. Hrawley v. Sumpter Valley R. Co. \[Or.\] 90 P 1106. Evidence that defendant permitted tail grass to grow in right of way, that same was dry, and that fire was discovered by after passing of train, held to sus-tain verdict for plaintiff. Fireman's Fund Ins. Co. v. Northern Pac. R. Co., 48Wash. 63E. That its engine was properly equipped and operated. Hawley v. Sumpter Valley R. Co. \[Or.\] 90 P 1106. Fireman's Fund Ins. Co. v. Northern Pac. R. Co., 46Wash. 88E, 91 P 1 13. Where negligence charged is in permitting combustible material to accumulate along track and in permitting fire set by engine to spread, it is not necessary to show that engine was defective or negligently operated. Smith v. Central Vermont R. Co., 58V. 128, 67A. 58S. 82. Rev. Laws, e. 111, 870, held not to apply to dummy engine used in construction of road. Fay v. Boston, etc., R. Co. \[Mass.\] 82 NE 7. 33. Railroad is not chargeable -with neg-licence in not looking for and discovering fire hose laid across tracks. Dolph V. Lake Shore, etc., R. Co., 149 Mich. 278, 14Det. Leg. N. 426, 112 NWV 981. Evidence held 1432 RAILROADS SS 11J. 10 Cur. Law.

engines are equipped with the most approved practical appliances in general use.\[49\] Locomotives must be operated with reasonable care.\[44\]

\_Contractual exemptions from liability.\_See & C. L. 1657.--\_Exemption from liability may ordinarily be imposed as a condition upon the right to place property within the right of way,\[45\] but a contract by a warehouseman to save the railroad harmless does not affect the right of recovery of one depositing goods therein.\[46\]

\_Contributory negligence.\_See & C. L. 1657.--\_While adjacent property owners may cultivate the same in the ordinary way, without taking extra precautions,\[47\] and owe no duty to keep their premises free from grass, weeds, etc.\[48\] They must exercise reasonable care to save their property after a fire has started.\[49\] and may recover for injuries received in so doing \[so\] independent of statute.\[51\]

contradicted, credibility of interested wtt-

nesses held sufficient to take issue to jury.

berg negligent operation of engine, held

Ross V. St. Louis S. W. R. Co. \[Tex. Civ.\].

proper. Southern R. Co. v. McGeoushey, 81

App.J 19 Tex. Ct. Rep. 650, 103 SW 708.

Ky. L. R. 291, 102 SW 270.

Evidence that sparks were blown 40 feet

45. Where continus is deposited on premises

high coupled with testimony of fireman and

engineer that no such thing could occur if

it remain on premises without company's

spark arrester was in good condition, held

consent and at sole risk of shipper until

to authorize jury to find that engine was

tendered and accepted for shipment, case

not properly equipped, notwithstanding

false within exception of Civ. Code 1902,

evidence tending to show proper equipment.

Southern R. Co. v. Elliott, 129 Ga. 705, 59

losses by fires set by locomotives, etc., un

SE 786. Verdict for plaintiff held against

self property is on right of way unlawfully

evidence where undigputed evidence showed

and without company's consent, contract

engine .were properly equipped with

matter being against public policy, German-

resters in good order. Goodman v. Lehigh

American Ins. Co. v. Southern R. Co., 77

Valley R. Co. N. J. Lawf 68 A 63.

S. C. 467, 58 SE 337.

42. Southern R. Co. v. Thompson, 129 Ga.

01. C. W. Charleston, etc., R. Co. \[S.

367, 58 SE 1044. Evidence of size and qu-

C.J. 60 SE 1123.

tity of coals emitted, distance they were

47, Walker V. Chicago, etc., R. Co. \[Kan.\]

thrown, and the time they remained alive,

90 Y 772. Held not negligent in leaving

held to sustain finding of defective spark

dry corn stalks and grass in field as was

arrest. Toledo, etc., R. Co. v. Sullivan

custom. Id. '

\[Ind. App.\] 83 NE 1024. Charge that prima

48. Contributory negligence cannot be

facle cases made by proof of free set by

sparks could be rebutted by proof that

v. Beeler, 31 Ky. L. R. 750, 103 SW 300.

gine was equipped with proper spark arrester

49, Illinois Cent. R. Co. v. Siller, 239 III.

rester and that engine was properly operated.

40, 82 NE 362; Hawley v. Sumpter Valley

ated held erroneous as Ignoring negligence

R. Co. \[Or.\] 90 P 1106. Plaintiff held not

in keeping arrester in good condition. Ross

liable for mere mistake of judgment as to

v. St. Louis S. W. R. Co. \[Tex. Civ. App.\]

19 Tex. Ct. Rep. 650, 103 SW 708. Instruction to find for defendant if they believed

that engine was properly constructed and

operated held erroneous as ignoring evitis

is not required to keep fire hose therein

done warranting finding that it was in defective condition. Shertl v. Louisville,

sfines. Id. Failure of employee in charge

etc., R. Co. \[Ala.\] 44 S 153.

43. Southern R. Co. v. Thompson, 129 Ga.

01. S. Co. v. Thompson, 129 Ga.

01. S. Co. v. Thompson, 129 Ga.

01. S. Co. v. Thompson, 129 Ga.

47, 58 SE 1044; Toledo, etc., R. Co. v. Suli-

van \[Ind. App.\] 83 NE 1024. Instruction

requiring engines to be equipped "with the

the most modern and best known appliances"

held too stringent. Southern R. Co. v.

Thompson, 129 Ga. 367, 58 SE 1044.

44. Southern R. Co. v. Thompson, 129 Ga.

01. S. C. 1657.--\_While adjacent property owners may

567, 58 SE 1044. Evidence 10 Cur. Law. RAILROADS SS 11J. 1433

\_Pleading.See * C. L. 1687.--The general rules of pleading relative to pleading facts \[32\] and evidentiary matter, \[83\] certainty, \[44\] and amendments, \[85\] apply. Plaintiff must plead all ultimate facts essential to recovery. \[86\] Contributory negligence must be specifically pleaded. \[87\]_Evidence, burden of proof, and presumptions._\[88\] See * C. L. 1687.--Plaintiff has the burden of proving ownership of the property destroyed \[88\] and defendant's negligence, \[89\] but proof that the fire was started by an engine \[60\] raises a presumption of

posts destroyed. Smith v. Ogden, etc., R. deamurrer. Alabama Great Southern R. Co. Co. \[Utah\], 93 P 185. In determining whether ordinary care was used by em-players, fact that cook car was placed on track near warehouse containing combusti- \[P. S. Smith v. Ogden, etc., R. Co. \[Utah\] 93 bk material may be considered. Talmadage v. Central of Georgia R. Co., 125 GA. 400, 64 SB 128. 500. Railroad company is liable to one who in the exercise of due care is injured while attempting to put out fire which through defendant's negligence was communicated from its right of way to his premises. Talinois Cent. R. Co., %IEEE, 229 II. 390, 82 NE 361. Defendant's negligence through which fire was communicated from its right of way to plaintiff's premises is the proximate cause of injuries to plaintiff resulting from his efforts in the exercise of due care to put it out. Id. 51. Illinois Cent. R. Co. v. Siller, 229 II. 390, 82 NE 362. 52. Complaint charging negligence in conjunction of engine in failing to keep same in repair and in operating it held not de-unvariable for want of facts. Pittsburgh, etc., R. Co. v. Through, 168 Ind. 378, 81 NE 57. Allegation that injury was caused by sparks emitted by engine and "was caused by the carelessness and negligence of defendants' agents and servants" held to admit proof of negligence in operation of train. Southern R. Co. v. Herring, 128 Ga. 438, 57 SE 694. 58. In action for negligently burning or, chard, it is unnecessary for, defendant to plead that engine was screened as required by statute, and plaintiff need not join is- \[P. S. Loulaville, etc., R. Co. v. Beeler, 31 Ky. L. R. 750, 130 SW 300. 54. Complaint alleging that plaintiff owned certain specifically named property, situated on plaintiff's premises, which was destroyed by fire communicated to certain changes of cotton by sparks from defendants' engine, through negligence of its servants, etc., held not denarmarkle on ground of un-certainty and indenfiteness. Alabama Great Southern R. Co. v. Paintiff. 55. Where original petition alleged that the "servants, agents, and employees did negligently set fire to brush," etc., thereby bashing cause of action on common-law neg- \[P. S. Loula, etc., R. Co. v. Noland, 75 Kan. 691, 90 P. 273. Where plaintiff pleads own- \[P. S. Loula, etc., R. Co. v. Noland, 75 Kan. 691, 90 P. 273. Evidence that \[P. S. Loula, etc., R. Co. v. Noland, 75 Kan. 691, 90 P. 273. Evidence that engine passed just before fire, that it was emitting sparks, and agents or employees, negligently set fire to Southern R. Co. v. Elliott, 129 Ga. 705, 59 belonging to plaintiff and on plaintiff's where fire was discovered about two hours premises in named town, held sufficient on prior thereto and was emitting sparks.

negligence 61 as charged,62 which casts the burden 63 upon the company to negative every fact which would authorize a finding of negligence.64

_- Admissibility of evidence._ See 5 C. L. 1658. There must be no material variation between the allegations and the proof.65 The general rules of evidence are applicable.66

Hawley v. Sumpter Valley R. Co. \[Or.\] 90 P defendant was negligent as charged. (South-) 1106.

**Held for jury:** Where building near tracks was discovered to be on fire about 15 or 20

**evised reasonable care and diligence in re-minutes after passing of train, there being** **gard to the matters charged (Id.).**

**evidence that engine was puffing hard.**

**G3. Where engine is shown to have emit-Clark v. Grand Trunk Western R. Co., 146**

**icd sparks in unusual quantity, and size and Mich. 400, 14 Det Leg. N. 48, 112 NV 111.**

**Hre resulted therefrom, burden is on de-Evidence at train passed about 10 min-fund to clear itself of negligence. Louis-utes before starting of fire in dry cut grass**

**ville, etc., R. Co. v. Sherrell \[Ala.\] 44 S 631: adjacent to right of way. Louisville, etc.,**

**Steward v. Iowa Cent. R. Co. \[Iowa\] 13 NVW R. Co., v. Beeler, 31 KY. L. R 750, 103 SWP 764: Guif, etc., R. Co. v. Blakeney-Stevens-300. Evidence that train passed shortly before fire, that other engines had been seen**

**Jackson Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 473, 106 SWP 1140. Where plaintiff's to throw sparks farther than destroyed**

**proof shows that fire was started by spark**

**property and that there was no other**

**known fire about 'building. Big River Lead**

**Oo. v. St. Louis, etc., R. Co., 123 Mo. App. make case of negligence. Id.**

**34, 101 SWP 636.**

**61. By engine while in operation of road.**

**Jackson Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 1473, 106 SWP 1140. May be overcome SE 786. While communication of sparks to**

**by proof that locomotive was equipped with adjacent property by passing engine raises**

**best spark arrester, that it was in good presumption of negligence, proof of emis-order and repair, and that locomotive was**

**sion of sparks in unusual quantity and size being carefully managed by competent emis-is only evidence of negligence. Sherrell v.**

**loulsville, etc., R. Co. \[Ala.\] 44 S 153.**

**ill. 480, 78 NE 833, affs. 117 Ill. App. 41: Under status: Under Gen. St. 1946, 5 4148.**

**Guit, etc., R. Co. v. Blakeney-Stevens-Jack-**

**making proof of damage by fire from loco-motive prima fade evidence of negligence,**

**1473, 106 SWP 1140.**

**instruction requiring plaintiff to show that**

**65. Where petition alleged that the "serv-" fire was started from locomotive and that**

**a, agents, and employees did negligently**

**defendant was negligent held too favorable**

**set fire to brush," which spread to plaintiff's to defendant. Florida East Coast R. Co. v. premises, etc., held error to admit evidence**

**Welch, 53 Fla. 145, 44 8 250. Presumption of**

**of fire set by sparks from engine. Riley v. of negligence from fire under Civ. Code**

\*\*St. Louis, etc., R. Co., 124 Mo. App. 278, 101 1895, 8 2321, does not arise where not occa-is

**SVP 16. Although the negligence charged**

**aional "by the running of the locomotive**

**or cars or other machinery" of company.**

**facamadge v. Central of Georgia. R. Co., 125 Gu. 400, 54 SE 128. Presumption of new-son where it is alleged that it was started**

**ligence arising under Civ. Code 1895, 1 221,**

**from proof that fire was started by locomotive.**

**builtff's evidence,**

**builtff leads ownership of property**

**Southern R. Co. v. Thompson, 129 Ga. 367,**

\*\*58 EB 1044. Under Code, **55**

**2055, 2056,**

**proof of loss by fire set by railroad raise a Woodward V. Northern Pac. R. Co. \[N. D.\]**

**presumption of negligence which amounts**

**to substantive evidence, and does not oper- Steven allegation that locomotive set fire to**

**ate merely to shift burden of proof.**

**start v. Iowa Cent. R. Co. \[Iowa\] 113 NWP 764. Instruction held to be misleading in that jury might infer that only effect was**

\*\*R. Co. v. Welch, 10 Curr. Law. RAILROADS $ 11J. 1425

###### Abstract

The first attempt to construct a new class of problems, which are solved by a variety of problems. The first attempt to construct a new class of problems, which are solved by a variety of problems, is to construct a new class of problems. The second attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The second attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The second attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The second attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The second attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The third attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The third attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The third attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The third attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The third attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems. The third attempt to construct a new class of problems is to construct a new class of problems, which are solved by a variety of problems, which are solved by a variety of problems. The third attempt to construct a new class of problems is to construct a new class of problems, which are solved by issues raised by the pleadings and supported by the evidence,68 they must not refer the jury to the pleadings for the same.69 They must not assume liability,70 invade the province of the jury,71 be misleading,72 or argumentative.78

_Damages.74_

(SS 11) \_K. Actions for injuries.\_See 8 C. L. 1861--Venne is usually regulated by statute.76 The action must be instituted within the period of limitations.76 One injured through the joint negligence of two roads may sue them jointly.77 \_Pleadings.\_See 8 C. L. 1861--While a complaint must show a duty and a violation thereof,78 after the former is shown the latter may be alleged in general terms.79

68: Instruction on intervening indepen- -- leading in leading jury to conclude that fire of such dimensions could not have arisen Smith v. Ogden, etc., R. Co. \[Utah\] 83 P. R. Co. \[Ala.\] 44 S 153, Charge on duty to: 69. Instruction that if plaintiff was owner -- keep right of way free from combustible that, it sue property was destroyed by fire -- might infer that defend ower reasonable from one of defendant's engines, defendant was liable without regard to question of negligence, held not erroneous as referring jury to pleadings for issue. Big River Lead Co. v. St. Louis, etc., R. Co., 123 Mo. App. 394, 101 SSV 686.
76\. Instruction that if jury believed from the evidence that plaintiff's property was destroyed by fire emitted from a negintly operated engine of defendant therapy -- must find for plaintiff held not objectionable as assuming that plaintiff should have a verdict. Louisville, etc., R. Co. v. Sherrill \[Ala.\] 44 S 631.
71\. Instruction that if jury "believe" the evidence" that engine was not working steam then it could not throw sparks 30 to 35 feet -- as testified to by witness held to invade province of jury in omitting wrong --from" before words -- the evidence." Louisville, etc., R. Co. v. Sherrill \[Ala.\] 44 S 631.
72\. Where engineer testified that engine was not working steam, but there was evidence that engine was throwing sparks 30 to 35 feet, and that engine not working steam would not emit sparks, instruction that, if jury believe the evidence, the engine was not working steam, held invasion of province of jury. Id. Heid error for court to say that fact that locomotive threw sparks of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of safety of of safety of 10 Cur. Law. RAILROADS SS 11K. 1427

A presumptive rule of evidence does not relieve plaintiff from pleading specific acts of negligence.\*2 Pleading must be definite \*21 and charge defendant with the negligence \*22 and show that such negligence was the proximate cause of the injury.\*23 Evidentiary matter need not be pleaded,\*24 and negligence may be predicated on speed in excess of an ordinance without pleading the ordinance \*25 or alleging its validity.\*26 Matters of res gestae may be pleaded.\*27 "Discovered peril" \*28 and "willful and wandton" negligence \*29 must be specifically pleaded to warrant a recovery thereon. Where

ening plaintiff'e team, but failing to allege caused by being struck by lee kicked from that defendant knew thereof or that it had remained there an unreasonable length of fedants with negligence, acting through time, held denurnarble. Louisville, etc., R. servant (Mayasville, etc., R. Co. v. Willis, Co. v. Armstrong \[Ky.\] 105 SW 473. Alle- gation that horse "was killed by tratm held ischionable as failing tb charge that servant insuffleent to charge knowledge, since vas acting within scope of his authority (Id.).

(Id.).

or that horse was killed thereby. Id.

(Id.).

(Id.

1428 RAILROADS SS 11K. 10 Cur. Law.

an action is based upon the violation of a statutory duty, sufficient facts must be pleaded to show the duty,90 but ordinarily plaintiff need not negative exceptions and provisos of the statute.91 As a general rule, freedom from contributory negligence need not be affirmatively shown,92 but must be specifically averred in the answer 98 and admitted or denied by the reply.94

\_Burden of proof.\_Soe & C. L. 1661--Except as to matters of which the courts will take judicial notice 98 or are admitted,94 plaintiff has the burden of proving by a preponderance of the evidence 97 all facts essential to a recovery, including negligence,98 proximate cause,99 and ownership of property injured.1 The burden of

plain alleging that-defendant's engineer, in that "certain cows of plaintiff, being then utter disregard for safety of persons pasang at that point, and without giving any and control of plaintiff," etc, held not to signal, etc., willfully and wantonly prepalled engine against plaintiff, held insuffententent when they went onto right of way and track. Jackson V. Bumpter Valley R. Bence, Duncan v. St. Louis, etc., R. Co. \[Or.\] 83 P 386. Pleas to contributory negligence alleging that plaintiff's team be-caused by mule taking fright at train, peeting held to fail to allege cause of action , as excusing failure to stop, look and for willful and wanton wrong. Alabama

Listen, held not denurnable. Southern R. Great Southern R. Co. V. Fulton \[Ala.\] 43 S 84.

85. Court of civil appeals will take judicial notice that cov catcher and cars ex- $1105 (Ann. St. 1906, p. 845), requiring railroads to maintain lawful fences where 2012, 102 SWW 183, and that rapidly moving fields, and making them labile for injury where they fail to do so, held sufficient.

It objects nearby, with a force proportion by Chicago, etc., R. Co., 127 Mo. App. 160, 105 SWV 10. Allegation that defendant failed and neglected to erect and maintain good and lawful fences held sufficient within 80 or 90 yards. Southern R. Co. v. out specifying in what particular fence was defective, Till v. St. Louis, etc., R. Co., 124 Mo. App. 281, 101 SWV 624. Petition under 17 was stipulated that defendant owned and Rev. St. 1889, $1 110 (Ann. St. 1806, p. 945), substantially following statute and reiting (c) need not prove that train which every duty imposed and the elements of neglect, held sufficient though it did not part- (d). \[Or.\] 93 P. 681,

theirize what constituted a lawful fence.

Marion V. St. Louis, etc., R. Co., 127 Mo. App. 129, 104 SWV 1125. Where it is alleged that stock went on railroad, where it "passed through, along and adjoining inclosed and cultivated fields" inference is that such fields are inclosed by lawful fence. Smith v. Chicago, etc., R. Co., 127 Mo. App. 160,

105 SWV 10.

94. In action under Burns' Ann. St. 1894,

8 $31, for killing of mule which had entered on track at point where it was not fenced, complaint need not aver that place 2012 SWV 920. Evidence that shortly before ac- (did not come wthin exception to statute requiring railroads to fence. Cleveland, etc.,

track a few-feet from train and was found R. Co. v. Miller, 40 Ind. App. 165, 81 NE 517.

92. Hence too general allegations in repeated.

spect there to do not render complaint de- (d). \[Or.\] 93 P. 1187.

93. However, in action for killing of cows,

01. Where, in action for cattle killed, defendant alleged contributory negligence in (c). \[Or.\] 93 P. 1188.

01. Hence failure to call conductor or en- (d). \[Or.\] 96.

01. However failure to call conductor or en- (d). \[Or.\] 97.

01. However, in action for killing of cows,
    10 Cur. Law. RAILROADS SS 11K. 1439

proving contributory negligence usually rests upon the defendant,2 though he may utilize plaintiff's evidence in so doing.3 Where doctrine of discovered peril is relied upon, plaintiff has the burden of showing that defendant knew of the perilous position in time to avoid injury.4 A prima facie 5 presumption of negligence as alleged 6 arises in some states from proof of injury by a train,7 especially where de

ner of accident as against that of plaintiff etc., R. Co. v. Beene \[Tex. Civ. App.\] 20 held insuffent to show negligence. Gulf, Tex. Ct. Rep. 249, 106 SWV 456. etc., R. Co. v. Walters \[Tex. Civ. App.\] 107 S. Instruction that proof of injury from SWV 869. Where, in action for negligent running of train is prima facie evidence of killing of dog, evidence afforded inference of negligence, affirmative charge is properly denied. Moble, etc., R. Co. v. Glover \[AlIa.\] 48 S 78. Positive test-

\[AlIa.\] 43 S 719.

89. To require submission of case to jury, present of negligence arising from there must be substantive proof that negligence was proximate cause of injury. Mere occurence by physical facts and circum-

conjecture is insufficient. Payne v. Illinois (Cent. R. Co. \[C. C. A.\] 155 F 73. Evidence held to indicate deliberate suicide rather

\[Presumption held overcome: Evidence that.

\[A.\] 1. In action for death of horse and dam-

\[A.\] 1.0.10 1430 RAILROADS SS 11K. 10 Cur. Law.

fendant fails in a statutory duty.\[8\] Where two roads are using the same track, there is no presumption from fact of injury that defendant's train caused the same," but plaintiff must prove such fact.\[10\] In the absence of evidence,\[11\] there is a prima facie \[12\] presumption of due care.\[18\] The question of negligence \[14\] and of contributory negligence \[18\] is usually one of fact for the jury.

\_Evidence.\[See S C. L. 1852--While there must be no material variance between the allegations and the proof,\[10\] only the substance of the issues need be proven.\[17\] While

to whistling and ringing of bell. Louisville, set aside finding of due care. Unger v. etc., R. Co. v. Christian Moerlein Brew. Co., Philadelphia, etc., R. Co., 217 Pa. 106, 66 A. \[Ala.\] 43 S 723. Where child is run over 235.

In daylight by backing train upon which there was no lookout and without knowl-

ers v. Rio Grande Western R. Co. \[Utah\] edge of raimmen, it is for defendant to 90 12075.

show that accident was caused by some

14. If there is any evidence of negligence other excusable cause than negligent fail-

in crossing in front of train, question is

ure to have lookout. Hollins v. New Or-

for jury, scintilla rule applying. Louis-

leans, etc., R. Co., 119 La, 418, 44 S 159.

Vhere one standing on station platform six

108 SVW 898. Plaintiff's evidence as to bump-

or eight feet from track is hit by some

ing of stationary cars against deceased

swings object hanging from train, doc-

child and then in dragging him under cars

time of res 1psn loquitur is applicable.

held not so inconsistent with admitted

Eaton v. New York Cent., etc., R. Co., 190 physical facts and so contrary to reason as

NYS 419. Instruction that if jury believe

that defendant negligently ran its train

Jaffh v. Milsouri Pac. R. Co., 205 Mo. 450,

sgainst stock, etc., to find for plaintiff, but

108 SVW 1026. Where no duty rested on de

fendant to keep lookup for plaintiff and

ant, held erroneous as placing burden on

undisputed evidence shows that trainmen

plaintiff. Trouvitne, Louisville, etc., R. Co.

do not see plaintiff until after his mule

Co. \[Ky.\] 105 SVW 142.

had become rignfented, court erred in re-

S. Rev. St. 1899, SS 1102 (Ahn. St. 1906, p.

fusing to charge that there could be no re-

938), makes proof of injury at crossing and

cover under count alleging that engineer

of failure to ring bell a prima facie case,

unnecessarily permitted steam to , escape

and casts burden on defendant to prove

thereby frrightening plaintiff's mule, etc., that failure to ring bell was not the cause

Alabama Great Southern R. Co. v. Fulton

of injury (McNulty v. St. Louis, etc., R. Co., 203 Mo. 475, 101 SVW 1082); hence instruction

15. **Eled for jury:** Evidence being con-

tion requiring plaintiff to prove "the fact

inctime as to whether day was foggy and

in support of case" by a preponderance of

as to whether plaintiff stopped, looked and

the evidence is erroneous as casting on her

listened. Wentstein v. Toledo, etc., R. Co.

burden of showing that failure to ring. was

cause of injury (Id.). Where one is

linf was guilty of "gross negligence" where

jured at crossing and company has failed

some of witnesses were contradicted and

to give statutory signals, it has burden of

evidence was of character to leave credibl-

proving gross negligence on part of plain-

ity for jury. Kelsail v. New York, etc., R. Co. \[Mass.\] 82 NE

Co. \[Mass.\] 82 NE

v. New York, etc., R. Co. \[Mass.\] 82 NE

8. Fact that horse is found dead besides

track raises no presumption that it was

killed by licensee using road jointly with

another. St. Louis, S. W. R. Co. v. Heinrich,

etc. R. Co. v. Brown \[Tex. Civ. App.\] 18

82 Avr. 459, 102 SVW 221.

10. Evidence in action against railroad,

operating on tracks used jointly with an-

plaintiff was on crossing and in act of cross-

other, held Insufficient to show that defendant's train killed horse. St. Louis S. W. R. Co., v. Heintz, SS 221.

11. Where facts and circumstances tend

to show negligence on decedents' part, is-

sue must be determined therefrom, and not

from any presumption of due care. South

ern R. Co. v. Hansbough's Adm's \[Va.\] 60

Sep 18.

12. Presumption that decedent stopped,

looked and listened is not * 10 Cur. Law. RAILROADS SS 11K.

- 1431
- 101
- 1031
- 1043
- 1051
- 1061
- 1071
- 1081
- 1091
- 1101
- 1111
  1438 RAILROADS $ 11K. 10 Cur. Law.

accident and as bearing on contributory

negligence, although it was unusual to have

Conclusion of Witness. Admissible: Question whether mare was frightened by ap-gate-keeper there at such time. Rogers v.

Weat Jersey, etc., R. Co. \[N. J. Err. & App.\]

V. Wababah R. Co., 134 Iowa, 736, 112 N NVW

68 A. 148. Where plaintiff was triipped by

201. Statement by witness who had experi-wires on lawn adjacent to platform, fail-

mented with gate that by working it back

ure of railroad to properly light place is

and forth slat holding it shut would work

admissible on issue of negligence. Ban-

out. Brown v. Qutney, etc., R. Co., 127 Mo.

derob v. Wisconsin Cent. R. Co. \[Wie.\]

119 App. 614, 106 SWV 551. Testmony that en-

NVW 758. Where engineer jokingly caused

gine could be seen from road. Central of

steam to escape and plaintiff stepped from

Georgia R. Co. v. Hyatt \[Ala.\] 48 S 867.

platform onto side track to avoid same,

Inadmissible: Where engineer and fire-

such fact may be considered in determin-

man admit that they do not remember

ing -plaintiff's negligence. Lange v. Mis-

whether crossing signals were given, not

souri Pac. R. Co., 208 Mo. 458, 106 SWV 660.

error to exclude testimony that they

Evidence as to what kind of a whistle was

thought that they were given. Cheapeake,

bown at orassing held admissible in action

etc. R. Co. v. Wilson's Adm?, 21 Ky. L. R.

for collision at crossing. Southern R. Co.

500, 102 SWV 810. In action for injury while

v. Hobbs \[Ala.\] 43 S 844. Evidence to show

unloading old tank, evidence as to proper

at what points train could have been seen

maner of unloading same, which was

had plaintiff looked held admissible under

merely witness's conclusion as to what or

either phase of testimony that team became

dinary care required, held properly

frightened and unmanageable and ran onto

cluded. Gulf, etc., R. Co., Wiltunbert

track or that they were deliberately driven

(Tex. Civ. App.) 19 Tex. Ct Rep. 636, 104

thereon. Id. Where plaintiff excuses bits

SWV 424. As was evidence as to what

presence on crossing at time of collision on

ness would have done and as to how an

ground that team, became frightened and

unmanageable, question as to how far he

Id.

was from track at time they began run-

\*\*Prior Conditions, Acetations, Acts, etc. Ad-

ming held admissible as tending to show

that he drove too close before they became

while crossing tracks of movement of trains

frightened, as defendant contended. Id. m

at such point is material, evidence of train's

action for collision with train at crossing.

movements for four or five years held ad-

question as to whether plaintiff heard any

missible where deceased was in position to

train whistle before leaving home held ad-

message as to might serve to identify train

\[N. L.\] 66 A 826. Where plaintiff, while

which struck plaintiff, several having

passage from platform to grass plat to

passed about same time. Id. In action for

avoid truck on platform, tripped over wires,

educate that at times there were four

railway from switch to crossing held ad-

tracks on platform is admissible as bear-

missible as explanatory of locality. Har-

ing on negligence in maintaining wires,

bert v. Atlanta, etc., R. Co. \[E.\] 59 SE

then thother was only one truck thereon

644. In action for death of pedestrian

at time of injury. Banderob. v. Wisconsin

strucly by backing train, question whether

ent. R. Co. \[Wie.\] 113 NvW 782. Evidence

witness saw any person on end of train

that prior to accident another horse's foot

with lantern is pertinent. Matteson v.

had become caught between rail and plank-

Southern Pac. R. Co. \[Cal. App.\] 92 P 101.

ing held admissible on issue whether place

Inadmissible: Where issue relates only to

existence of lights on rear car, and witness

testfiles as to lights on that car, question

\[643, 105 SWV 21.

whether he saw lights on other cars. Mat.

teson v. Southern Pac. R. Co. \[Cal. App.\]

52 P 101. Rules of company having no ap-

plication to issues raised. Wabasha K. Co.

v. Keeler, 127 Ill. App. 265. Where it ap-

failure to give warnings on prior occasions,

pears that plaintiff reached point of injury

Southern R. Co. v. Winchester's Ex'x \[Ky.\]

by traveling along defendants' right of way,

105 SWV 167. In action for death at crossing,

presence or absence of gates at such points

is immaterial. Chicago Terminal Trans. R.

C. v. Korando, 129 Ill.

###### Abstract

The current study of the effects of the various mechanisms of the formation of a new asteroid belt are presented. The main conclusions are that the asteroid belt is a belt of the form of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt of a belt 1434 RAILROADS SS 11K. ~10 Cur. Law.

It is sufficient, however, if the instructions as a whole fairly submit the same,\[28\] and

of negligence, held that instruction submit-

Isat clear chance. Southern R. Co. v. Hansting negligence irrespective of wantonness and recklessness was not erroneous as de-

Is at to racing of trains to reach crossing,

parting from petition. Lange v. Missouri

evidence showing that train stopped, etc.

Pac. R. Co., 208 Mo. 458, 106 SWV 666. Mo-

Di Paso, etc., R. Co. v. Murtle \[Tex.\] 108

tion to strike tow ordinance prohibiting

SWV 988. Instruction authorizing jury to

blocking of street for more than 10 min-

uses held proper where it is alleged that

leadlight in determining issue of contrib-

violation thereof in connection with other

tary negligence where there is no evidence

neglent acts caused homicle. Southern

R. Co. v. Mouchet \[GA. App.\] 59 SE 927.

thereby, although there was general ev-

26. Evidence held to authorize Instruc-

tion on discovered peri. Chesapeke, etc.

R. Go. v. Perkins, 31 K.y. L. R. 1550, 16 SWV 1075. Instruction submitting question of

148. Where evidence tended to show that

leglegence in causing mule to be driven

defendant maintained flagman at crossing,

then he failed to warn plaintiff, and that,

St. Louis, etc., R. Co. v. Scott, 84 Ark. 623,

relying thereon, plaintiff went onto crossing

104 SWV 1108. Instruction injecting issue

and was struck by engine, held error to

whether cow entered onto track too close

refuse instruction submitting negligence in

to train to avoid injury. Texarkana, etc.,

falling to give warning. Buchanan v. Mis-

R. Co. v. Bell \[Tex. Civ. App.\] 19 Tex. Ct.

souri, etc., R. Co. \[Tex. Civ. App.\] 107 SWV 1167. Instruction that en

552. In action by licensee for injuries while

siner had right to assume that one walk-

alighting from train, defendant held

tied to instructions presenting its theory

where there was no evidence that plaintiff

of time, place and manner of accident, such

they being supported by practically all

can v. St. Louis, etc., R. Co. \[Ala.\] 44 S. 418.

evidence except plaintiff. Gulf, etc., R.

Where there was nothing in surroundings

Co. v. Walters \[Tex. Civ. App.\] 107 SWV 369.

Evidence that cow killed was on way home

into, belief that he could safely cross,

to her eail, and hence less liable to turn

function on theory that decedent was with-

from path on blowing of whaltz or sound-

out fault and was confronted with sudden

ing of bell than stock generally, held

sument to require requested instruction that

pernna fade case under Rev. St. 1889, SS 1102

(Ann. St. 1906, p. 938), made by proof of

in jury at crossing and failure to give

stat-
the heart bell ring and of another living

vity signal, could be overcome by proof

that failure to give signals did not cause

injury. Midgett v. St. Louis, etc., R. Co.,

124 Mo. App. 540, 102 SWV 56.

27. Charge held not objectionable as stat-

ing as one of grounds of negligence defend-

ant's failure to blank crossing. St. Louis

S. W. R. Co. v. Hawkins \[Tex. Civ. App.\] 108 SWV 736.

109 SWV 736.

Not supported by pleading or evidence

Willful negligence. Atchison, etc., R. Co. v. Baker \[Ind. T.\] 104 SWV 1182. In action

for injury at hore taking right at blow-

ing of whistle at crossing and running into

train where defense is that it was not

sounded until after crossing was passed,

and there was no evidence that it was done

in necessary operation of train, instruction

that if it was blown malioly and for pur-

sue to jury. Missouri, etc., R. Co. v. Phun-

pose of frightening the horse defendant is

not liable unless done in scope of employ-

swe 988. Instructions with

ment and in necessary operation of train

held inapplicable. Paris, etc., R. Co. v. Calvin

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 830, 103

S. W. 428.

Not raised by pleading: Instruction on

willful injury. Mobilie, etc., R.Co. v. Glo-

thery, although there was general ev-

ver \[Ala.\] 48 S 719. Where repetition charged

that while plaintiff was in act of alighting,

with knowledge of conductor, defendant's

agents caused train to start, hold not to

authorize charge predicating liability upon

starting of train by conductor with knowl-

edge that plaintiff was alighting. Gulf,

etc., R. Co. v. Walters \[Tex. Civ. App.\] 107 SWV 369.

Not supported by the court may refuse requested instructions covered by those given.\[19\] They should not invade the province of the jury,\[30\] single out facts \[81\] and give undue prominence to them,\[82\] be ambiguous,\[33\] argumentative,\[34\] misleading,\[88\] on the weight of the eviations.

neous because prefacing a long series of tn- \[ rect verdict. Chicago, etc., R. Co. v. Turck, structions. Scanlan v. Chicago Union Trac. Co., 127 Ill. App. 406. In action for death

Held not erroneous: Charge that if defe of engineer killed in collision with engine

fendant unnecessarily sounded whistle when of defendant, instructions as a whole held

It was reasonably apparent that it would not to properly submit daceto's negligence in

rightsion plain dence," assume facts in issue," or ignore material evidence,"89 grounds of recovery,"

\[Aln.\] 43 S 844. Instruction authorizing jury to assume that although there was no evidence of defect in switch, yet they might take such defect as existed into consideration in determining negligence in operating. Floody v. Great Northern R. Co., 102 Minh. 81, 112 NW 875. Where, in action for injury caused by truck running down inclined platform colliding with train, and then striking plaintiff, only negligence relied on was placing of truck in dangerous position, instruction requiring defendant to keep "viggiant lookout" to avoid injury held calculated to mislead jury in considering negligence of train crew. Rowley v. Chicago, etc., R. Co. \[IVi.s\] 115 NW 865. Where evidence shows what was done by engineer and that everything was done that was possible to stop train before striking male, instruction that it is insufficient for railroad engineer to "simply guess" that he could not do anything to avoid collusion. Central of Georgia R. Co. v. Thwent \[Aln.\] 44 S 80. In action against railroad for injuries received in collision with street car, instruction specifically submitting questions of negligence of street car company in not stopping car and going ahead onto track to look held properly related to be-fused as it might have misled jury to be-live that in mind of court such was proper method of observation. St. Louis, etc., R. Co., V. Wilkersing \[Tex. Civ. App.\] 107 SW 893. Where evidence shows that by rising in his seat decedent would have clear view of track, instruction that he is presumed have exercised due care is misleading in that jury might infer that there was no evidence of negligence and render verdict on presumption. Southern R. Co. v. Hans-brough's Adm'x \[Va.\] 60 SE 58. Instruction on contributory negligence in crossing behind train on side track held to divertt attention from effect of decedent's knowful edge of customary movements of such train. Minot v. Boston, etc., R. Co. \[N, LL\] 64 A 825.

**Held not misleading:** Beginning of instruction on contributory negligence with words "Now in this case I charge you," etc., held not misleading in that jury might infer that such negligence was only issue in case. Wrightsville, etc., R. Co. v. Gornto, 129 Ga. 204, 58 SE 769. Instruction on presumption of negligence from injury caused by running of train held not to mislead jury to believe that it could be rebutted only by evidence coming from defendant. Brunswick, etc., R. Co. v. Hoodenpyle, 129 Ga. 174, 58 SE 705. Instruction that all persons running railway trains must keep lookout for stock held not objectionable as requiring every member of train crew to keep lookout. St. Louis, etc., R. Co. v. Ewing \[Ark.\] 107 SW 191.

**36.** Held on weight:\*\* Where duty to stop, look and listen did not exist as matter of law under facts, instruction that ordinary care required decedent to stop, look and listen. International, etc., R. Co. v. Howell \[Tex. Civ. App.\] 139 Tex. Ct. Rep. 123, 105 SW 560. Instruction on what would create implied license to use passway held on weight of evidence because it negatively 10" Cur. Law. RAILROADS SS 11K. 1437

or defenses.\[40\] Defenses should be submitted in the disjunctive rather than in the conjunctive,\[41\] and technical words and phrases should generally be defined.\[42\]

crew. Missouri, etc., R. Co. v. Thomas \[Tex.\] 40. Instructions as to care necessary to be Civ. App.\] 107 SWF 868. Instruction on dis-covered peril, as assuming plaintiff's peril track as well as time of injury. Chicago, and that trainmen discovered same in time etc., R. Co. v. Sack, 129 Ill. App. 58. In- to avoid injury. Nacogoches, etc., R. Co. v. Beene \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 249, 106 SWF 456. Instruction beginning "if" the jury believe from the evidence," and "negligence is erroneous. Cleveland. etc, R. Jaffl v. Missouri Pac. R. Co., 205 Mo. 450. 108 SWF 1026. Designating lawn on which injury occurred as "depot grounds," in questions for purpose of identifying the place, held not reversible error. Bancero Cv. Arac \[Ind. App.\] 82 NEB 1009. In- v. Wisconsin Cent. R. Co. \[VWs.\] 118 NVF

738. Where evidence is clear that boy was dind card not to get onto wagon crossing tracks,

(instruction "we recollect no legitimoy" to "warrant conclusion that he was forbidden. "nooked and listened. Atchison, etc., R. is error. Bracken v. Pennsylvania R. Co., 32 Pa. Super. Ct. 22. Instruction that "tion that if engineer, after observing that whether engineer used all means at hand" plaintiff was about to go upon tracks, could to avoid injury after discovering decedents' "peril "may be shown by circumstances, and "and he failed to do so, and plaintiff as resume must be determined by the circum-

(in "suit of such failure went onto tracks in "stances at the time," held not to direct jury to consider circumstantial evidence only. "hard" to look and listen. Id. Instruction "Circ. App.\] 18 Tex. Ct. Rep. 548, 102 SWF 442. Instruction in action for injury at crossing that sheds obscuring view of approaching train in no way affected plaintiff's case

(in "no way affected plaintiff" case "hard" to 1438 RAILROADS SS 12. 10 Cur. Law.

Double damages and attorney's feesSee S. C. L. 1685--Under the Missouri statute making railroads liable in double damages for injuries to stock entering right of way where it is required to fence or maintain cattle guards, it is the condition of the fence and guards at place of entry that determines the liability.43

8 12. Railroad corporationsSee S. C. L. 1685--Many of the general principles of corporation law are applicable to railroads.44 By statute in some states the charter 45 or certificate of incorporation 44 must definitely state the termini of the proposed road. In New York railroads must prove the public necessity for the proposed road and obtain from the railroad commissioners a certificate of public necessity and convenience.47 The action of the commissioners may be reviewed by cortiorari if the same is timely prosecuted.48 In New York ten per cent of the capital stock must be paid in cash 49 at the time of filing of the certificate of incorporation. While a mere failure to exercise corporate powers is not a surrender thereof,50 it is frequently provided that a failure to complete the road within a specified time shall work a forefeiture of the charter.51 Though a railroad charter is a contract within the Federal constitution, its inviolability may be surrended.52

defining "discovered perll" or in telling 57 Misc. 164, 107 TXYS 933. Where proposed when it would arise. Nacegrodches, etc., R. Co., v. Beene \[Tex. Civ. App.\] 20 Tex. Ct., only a small locality and would probably Rep. 249, 106 SWY 466. Where instruction missengers that it was necessary and con-employment" in respect to ordinary brake-man, held not error to refuse to define some, Maysville, etc., R. Co., v. Willis, 31

8. Although railroad commissioners sign, and date certificate of public convenience and necessity for road as required under claimed was not a lawful one, held not error

1. As a result, a new "completed" is a new 10 Cur. Law. RAILROADS SS 14. 1489

\_Powers of corporations and authority of officers.\_See * C. L. 1866--Where a railroad by its charter is invested "with all the powers, rights, privileges and immunities granted to" another, the charter of the latter must be looked to in determining its powers. \[85\] Railroads incorporated under the general railroad incorporation act of Georgia must hold the regular election of officers annually, and a minority of stockholders in number and interest may elect on the day set, \[54\] but if no election is held, any stockholder may compel directors holding over to call a meeting for such purpose. \[85\]

SS 13. \_Actions by and against railroad companies.\_See * C. L. 1866--The venue of actions against railroad companies is usually regulated by statute, \[54\] as is the service of process." In an action against a railroad for the negligence of a logging company using its tracks as a licensee, the latter is not a necessary party. \[85\]

SS 14. \_Offenses relating to railroads.\_See * C. L. 1667--In some states a corporation owning a railroad \[85\] and failing to equip its engines with proper warning devices is liable to a penalty, and a company running its train through a city at an unsafe speed without sufficient warning signals \[85\] may be guilty of a public nuisance. \[85\] The operation of trains on Sunday has been prohibited in some states, \[85\] but a train running on a bona fide, practical schedule does not violate the Georgia statute by completing its run on Sunday where unavoidably delayed, \[85\] the burden, however, resting upon the company to excuse the delay. \[85\]

While the stealing of a ride is not a crime \[85\]

SS 1170, 1171, brings itself within such secion. Louisville, etc., R. Co. v. State \[Aln.\]

SSW 199.

45 S 296. Hence, though railroad was of the nuisance in running trains through \[n-\] to amend another charter granted before adopt.

corporated town at unsafe rate of speed \[n-\] to amendment, thus exempting charter without sufficient and necessary warning from amendment without its consent, com.

signals, evidence must show insufficient pany could enjoy benefits of Code 1894, warnings as well as rapid speed. Chen-\] 81170, 1171, authorizing domestic railroads natl, etc. R. Co., Com., 21 Ky. L. R. 1113, to contract for operation of their roads by foreign companies, by surrendering invivo.

rected verdict for defendant. Id. Where liable character of its charter as content-\] placed by **3**, 25 of art. 14 of Const. Id. And where stockholders held regular meet-\] faith, to show that he is maintained purings for nearly 30 years after acceptance of benefits under Code 1894, 1171, 1171, through they exceeded authority in, making without objecting, sufficient acceptance of provisions by stockholders is shown. Id.

61. Indictment held to charge public nuls-\] 63. Southern R. Co. v. Howell \[S. C.\] 60 SE

01.

54, 55, Srivarna, etc., R. Co. v. Hoge, 129

62. Legistature may prohibit running of \[n-\] 734, 59 SE 806.

01. See Venue and Place of Trial, $ C. L. 2236. Where suit to foreclose a mortgage, to work on Sunday except to perform "cus" brought against mortgaged railroad com.

untary household duties of daily necessity, pany and mechanale's lien claimants, 1s

comfort, or charity" (Barefield v. State brought to country where railroad has the \[Ark\] 107 SW 393), and set alone that certain labor is performed in connection with principal place of business or where its land operation of train does not bring case within exception (Id.).

63. Pen. Code of 1895, $ 420, subsec. 2, con-\] of Item claimants to enforce lien in country

01. Brand v. State \[Ga. App.\] 60 SE

1440

RAPE $ 1A. 10 Cur. Law.

in West Virginia,\[85\] it is made a misdemeanor in many states.\[66\] In Arkansas a railroad failing \[67\] to post the killing of stock is liable to a penalty. An indictment under the Iowa code for throwing rocks at a train need not name any person injured, or attempted to be injured,\[88\] or allege ownership of the train,\[89\] and, where a con-spiracy is shown,\[90\] it need not be proven that defendant was the one who threw the stone.\[71\]

RAPE.

- 1. Nature and Elements, 1440. A. In General, 1440. B. Female Under Age of Consent, 1441. C. Attempts and Assaults With Intent to Commit Rape; and Foredible Detection, 1441. D. Trial and Punishment, 1448. New Trial., 1448.

Matters applicable to crimes generally are elsewhere treated,\[72\] as are civil actions for damages.\[78\]

SS 1. _Nature and elements. A. In general.\[88\]_ See * C. L. 1667.-Rape is unlawful

carnal knowledge of a woman without her consent.\[74\] The essential elements are

force,\[78\] actual, constructive or implied,\[76\] and the absence of consent by the female.\[77\]

Preterminiting the question of consent, any unlawful force is sufficient \[78\] if reasonably adapted to the purpose to be accomplished,\[79\] but from the standpoint of the resistance required of the female, there must be force sufficient to overcome her utmost efforts.\[80\] Where the force used by the man is not actual but constructive, the true

delayed. Id. Not sufficient to show that

schedule was capable of being carried out

and usually was where it is admitted that

there were frequent delays and no effort has

been made to remedy evil, Id.

- 65. Held not to amount to malicous mis-

chief under $ 27, c, 145, Code 1906. Daviu

v. Chesapeake, etc., R. Co., 61 W. Va. 246, 56

SE 400.

66. Evidence that defendant was seen on

top of box car and was arrested after jumping therefrom held sufficient to sustain con-

viction of riding on freight car without authority of conductor or permission of engineer, and with intention of being transported free. Gains v. State \[Ala.\] 48 S 137. In prosecution charging a person not an employee in discharge of his duties and without authority of the conductor or by permission of engineer with riding on top of

freight car with intention of being transported free, burden of, proving negative

averments is not on state. Id.

7. Evidence that for more than month

after killing plaintiff examined all sides of

depot building for notice almost daily and

failed to find same held sufficient to show

failure to post. St. Louis, etc., R. Co. v.

Ewing \[Ark.\] 107 SWV 191.

68. State v. Leansman \[Iowa\] 114 NWV 1022.

01. If necessary, allegation that train was

on tracks of particular railroad is sufficient.

State v. Leansman \[Iowa\] 114 NWV 1032.

70. Where, immediately after rock struck

train, accused and another were discovered

near end of platform, one with rock in his

hand as if in act of throwing and other

standing near with his mouth to ear of on

with stone, held sufficient evidence of con-

spiracy to warrant an argument on such

theory. Lacy v. State \[Ala.\] 45 S 680.

71. Where there is evidence from which

conspiracy to rock the train might be in-

and usually was where it is admitted that

fired, instruction basing conviction upon

finding that defendant throw rock held

been made to remedy evil, Id.

progressively refused. Lacy v. State \[Ala.\] 45 S 680.

72. See Criminal Law, 9. C. L. 851; Indirect-

ment and Prosection, 10 C. L. 57.

73. See Assault and Battery, 9 C L 257.

01. Art. 638, Pen. Code 1895. Collins v.

State \[Tex. Cr. App.\] 107 SWV 852. Unlawful

carnal knowledge of woman forcibly against

her will. Section 2004, Burns' Ann. St. Supp.

1905, Rable v. State, 168 Ind. 615, 81 NE

84. Section 4964, Rev. St. 1893. Ross v. State

(Vy0.) 33 S 293.

75. Section 2004, Burns' Ann. St. Supp. 1905.

(Vz0.) 33 S 293.

76. Section 2004, Burns' Ann. St. Supp. 1905.

Rahke v. State, 168 Ind. 615, 81 NE 654.

77. Rahke v. State, 168 Ind. 615, 81 NE 654.

01. Freeman v. State \[Tex. Cr. App.\] 107 SWV 1127. Consent by the woman at any

summer during the assault condones it. Evi-

decence insufficient to show consent. Lindville

v. Green, 125 Mo. App. 289, 102 SWV 87.

10 Cur. Law.

RAPE SS 1C.

1441

inquiry is not the nature of the injury feared by the woman, nor the particular ground for the fear, but her actual mental condition as indicating her power to act voluntarily or give her consent.\[81\]

(SS 1) _B. Female under age of consent._ See s C. L. 1688--Carnal knowledge of females under a specified age is generally made rape by the statutes regardless of the consent of the female,\[82\] and regardless of the fact that the defendant believed the female to be over the age of consent,\[83\] the law conclusively presuming that a female under the statutory age is incapable of assenting.\[84\] Consent being immaterial in such cases, it follows that resistance by the female is unnecessary.\[85\]

(SS 1) _C. Attempts and assaults with intent to commit rape; and forcible detection._ See s C. L. 1688--To constitute an attempt to commit rape there must be an actual assault with intent to use whatever force is necessary to overcome resistance.\[86\]

The incapacity of a female under the age of consent to consent to sexual intercourse extends to and renders her incapable of assenting to an assault with intent to rape,\[87\] and the intent of defendant to use force \[88\] and physical resistance on her part are unnecessary.\[89\]

stances make reasonable, proper. Rahke v.

$7. Consent no bar to prosecution for assa-state, 168 Ind. 615, 81 NE 584.

$8. Insertion that defendant was not guilty if woman consented short of fear of people v. Chamblin, 149 Mich. 638, 14 Det. death or great bodily harm, Improper.

Lee. N. S. 528, 113 NW 27. Under Rev. St 1859.

State v. Grove, 61 V. Ya. 597, 87 SE 296.

$8. Robertson v. State \[Tex. Cr. App.\] 19 4958, punishing assault with intent to com-Tex. Ct. Rep. 208, 102 SSV 1136. Section 2004,

Durus' Ann. St. Supp. 1995. Rahke v. State,

committed although female under age of 168 Ind. 615, 81 NE 584. Section 4964, Rev. St.

$89. Ross v. State \[Vyo.\] 93 P 299. Comp.

Laws, 811,489. People v. Chamblin, 149 Mich. 653, 14 Det. Leg. N. 528, 113 NW 27.

Carnal knowledge of child under ten com-clusively presumed rapa, and of child under twelve and over ten presumptively so. Tutte v. State, 83 Ark. 379, 104 SSV 135. Carnal knowledge of female under age of consent unlawful and constitutes violent injury under Rev. St. 1897, 1 4957. Ross v. State \[Vyo.\] 83 P 289.

$8. Robertson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 208, 102 SSV 1130. That prosure-curtx stated that she was over age of consent, inadmissible. Renfroe v. State, 84 Ark.

16, 104 SSV 542.

$84. Baxter v. State \[Neb.\] 115 NW 534.

Proper to charge that child under twelve cannot give legal consent under Act No.

115, p. 165, 1896, State v. Mehobovich, 113 SSV 1136.

$8. Insertion requiring resistance improper. Ross v. State \[Vyo.\] 93 P 299.

$8. Insufflectni Mere solitulation. Woodson v. Com. \[Va.\] 95 SE 1097. Assault with intent to induce female to have sexual intercourse. Rahke v. State, 168 Ind. 615, 81 NE 584. Where after use of insufficient force defendant resorted to persuasants. Warren v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 254, 103 SW 888. Under Pen. Code 1895,

art. 634, race placing of hand on Girls leg where accused fled on discovery. Cotton v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 912, 105 SW 155.

Sufflectni Where defendant struck prose-curtx and threw her to ground. Bowman v. Com., 31 Ky. L. R. 828, 104 SW 263. As-sault with intent to have carnal knowledge forcibly, against her will, sufficient. Fields v. State, 2 Ga. App. 41, 58 SE 227.

10 Curr. L. -- 91

$7. Consent no bar to prosecution for assa-state, 168 Ind. 615, 81 NE 584.

$87. Consent no bar to prosecution for assa-state, 168 Ind. 615, 81 NE 584.

$81. Insertion that defendant was not guilty if woman consented short of fear of people v. Chamblin, 149 Mich. 638, 14 Det.

$8 1442

RAPE SS 2A.

10 Cur. Law.

_Forcible detention_ is a less offense than that of rape or attempt to commit rape.\* It need not involve the use of any physical force such as either laying hold on, catching, or seizing, prosecutrix, or any covert act evincing a determination to carnally know the woman against her will, but is sufficient if she is detained against her will with the intent to have carnal knowledge of her or that she is caused to flee.\* SS 2. \_Indictment and prosecution. A. Indictment or information.\_See * C. L. 1008

The information should state the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.\* Where the information is otherwise sufficient, words

244, 38 NPV 440: State v. Dancy, 83 N. C. 608; used in overcome such resistance in rape, Hays v. People, 1 Hill (N. Y. 351; Brown) where the female is over the age of consent, v. State, 6 Barat (Tenn.) 422; Fizell v. State, 6 either under the common law or under the 25 WIs, 364; People v. Lourints, 114 Cal. 14; and carnal knowledge of a female 628, 46 P15; People v. Vann, 185 Cal. 118, under the statutory age of consent, and also 61 P '76; State v. Vrayk, 109 Mo 594, 19 at the common law when such female is un- 85; State v. Grossheim, 79 Iowa, 75, 44 her the age of 10 years, is conclusively pre- 85; Polson v. State, 137 Ind. 151, 53 N5 N4; and against consent, and in an indictment 14; Folscher v. State, 69 Neb. 395, 85 NV 870; or information therer under and following State v. Sargent 30 M. 110, 49 P89; Par- the words of the statute, the word "ravish" rell V. State, 64 N. J. Law, 416, 24 A T3; in \[s unnecessary and may be treated as sur- 85; Elayod, 51 Kan. 501, 33 P 807; Addison v. \].

Ppeople, 193 110, 405, 62 NE 235; A. Am. A. are not, however, dealing with the corn- 85; Eng. Enc. Law (24 Ed.), 878, and page 85, 141, yet 1 of Supp, and cases cited in the foot- charging force may be disregarded as surplusage in an indictment for statutory rape. \[98\] An information charging a conspiracy to commit rape, and also the commission of such offense in pursuance thereof, is good, \[99\] and if the charge of conspiracy is unnecessary it may be eliminated as surplusage where what remains is sufficient to charge rape. \[98\] Slight errors in chirography may be disregarded. \[99\] The statutory intent must be charged. \[97\]

(SS 2) _B. Evidence._ 1. _Admissibility._ See S C. L. 1011.--Evidence is admissible to show the physical condition of prosecutri \[98\] and declarations of defendant before the alleged crime showing intent. \[99\] Acts and declarations of the family of prosecutri are not admissible. \[1\] The appearance, condition, and demeanor of prosecutri immediately after the assault are admissible as part of the res gestae. \[2\] Her reputation for virtue prior to the offense is always competent as bearing on the reasonableness of her story, the probability of consent, \[9\] and defendant's intent, \[9\] as is also defendant's reputation as to virtue and morality if he puts it in issue. \[9\] As affecting her credibility, prosecutri's character both before and after the offense may be attacked, \[9\] but not by proof of specific acts of immorality. \[9\] Since prompt complaint is

Horchler, 231 IIL 566, 83 NE 438. Informa- tion exists. State v. Winnett \[Vash.\] 92 P 904. That prosecutri's husband learned lent injury upon female under age of consent, with ability and intent to rape, coupled with argument of felonious intent, sufficient \[Tex. Cr. App.\] 80 Tex. Ct. Rep. 845, 106 SWV under Rev. St. 1899, 1 4957. Ross V. State \[Wyo.\] 93 P 399. Indictment charging that defendant did unlawfully make an assault with intent to rape prosecutri by attempting to have crank knowledge of sail prosecutri not insuffent in faltings to embargo assault on particular person. Myers v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 309, 103 SWV 859.

93. Baxter v. State \[Neb.\] 115 AV 534. Conviction may be bad under information charging rape with force committed with consent of child. Id. Word "ravish," In information for assault of child under age of consent, may be rejected as surplusage. Ross v. State \[Wyo.\] 93 P 599.

01. Conspiracy may be involved and included, not as substantive offense for which punishment is sought, but as ground or means by which some of parties charged may be convicted. State v. Grove, 61 Wy. Va. 697, 67 SE 296.

01. State v. Grove, 61 W. Va. 697, 67 SE 296.

01. Fact that Indictment charged Dove Smith with committing offense, and that copy reading Dave Smith was served on Dave Smith, no ground for quashing indictment where the "a" though not plain could be read as "a". Smith v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 845, 106 SWV 1161.

01. The word feloniously sufficiently changes criminal intent. Feloniously means done with a mind bent on doing that which is wrong, or with a guilty mind. State v. Connors \[Mon.\] 94 P 199. Charge that defendant assaulted with intent to have sexual Intecourse willfully, feloniously, violently, and unlawfully, alleges intent to accomplish act by force, State v. Neft, 13 Idaho, 539, 860.

01. Testimony of attorney present when doctor examined private parts of prosecutri as to their appearance. State v. Symema \[Iowa\] 115 NWV 870. Testimony of physician as to pregnancy where no confidential rela- affect credibility. Under Code Civ. Pro an important test of the sincerity of the woman,\* the state may show by the proseccurix and other witnesses that she made complaint soon after the commission of the alleged act and show when, where, to whom, and under what circumstances she did so, and her appearance, demeanor, and physical condition at the time; * but the details of the conversation had and the name of the person accused by her may not be given by the witness.10 However, though the particulars of the complaint are not admissible, enough may be given to show the nature of the complaint even though it involves to some extent the particulars thereof.11 The detailed account as given by the proseccurix to a third party is only admissible in cases where the defendant has attempted to impeach her, on the theory that it corroborates her,12 or,where defendant previously called out same facts.13 While the general rule is that evidence of complaint is inadmissible as hearsay unless the prosecuting witness testifies,14 the rule does not apply where the prosecuting witness is a child of too tender age to testify.16 But in North Dakota, if the statement was made immediately following the commission of the crime, the particulars of the complaint may be proved as part of the state's case in chief the same as any facts which are a part of the res gestae.16 Complaints by proseccurix as to previous familiarities by defendant have been held admissible to disprove encouragement by her.17 Since previous chastity 18 and consent are immaterial when the child is under the age of consent, the ordinary rules of evidence as to outery, pursuit of offender, and complaint, as facts going to show consent, and previous reputation for chastity, are usually inapplicable,19 though such evidence has been held admissible under peculiar circumstances.20 Whether or not the appearance of the defendant should go to the jury as evidence of his age is in the dis

- 1847. People v. Mitchell, 5 Cal. App. 45, 89 P 853. Intercourse of child under age of consent with other Chinnem prior to alleged offense to repel inference that defendant conveyed disease to her and to show mistake of identity. People v. Fong Chung, 5 Cal. App. 587, 91 P 105. 7. Evidence of proseccurix's alleged illicit intercourse with other young men not at time when child might have been conceived. State v. Blackburn \[Iowa\] 114 NUV 631. Spefic acts of adultery with others and evidence that on one occasion she exhibited to a male companion photograph of herself nude. State v. Arnold \[N. C.\] 60 SE 504. 8. Commonwendish V. Mynarczyk, 34 Pa. Super. Ct. 256. 9. State v. Fowler, 12 Idaho, 317, 89 P 757. Admiss\*Domic plant by child of eight to mother of pain in private parties and her physical condition. Adams v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 853, 105 SW 197. That proseccurix complained to mother that accused had sexual intercourse with her against her will. State v. Symens \[Iowa\] 115 NUV 878. Complaint made few minutes after assault while still sobbing and trembling from effects. Younger v. State \[Neb.\] 114 NUV 170. Complaint given less than half hour afterwards. State v. Neil, 13 Idaho, 538, 80 P 860. Complaint by five year old proseccurix where offense was committed in latter part of January, shortly before and after February fifth. People v. Blanchino, 5 Cal. App. 633, 91 P 112. 112. Landmissible: Complaint by child of eleven six weeks after leaving home after assault. People v. Gonzales \[Cal. Ap.\] 91 P 103. 10. State v. Fowler, 13 Idaho, 317, 89 P 757. 11. Statement by mother that daughter

## 10 Cur. Law. RAPE SS 2B2.

cretion of the trial judge, which should be exercised with due caution,\[2\] and when the appearance of the defendant is relied upon to sustain a material ingredient of the offense charged, as age, the defendant should be identified and his appearance, if relied on, put in evidence in the regular manner of offering other evidence.\[22\] Defendant is entitled to testify directly as to his intent.\[23\]

(SS 2B) 3. \_Weight and sufficiency.\[See * c. L. 1873 --Each of the essential elements, as the age of the defendant, where material,\[24\] penetration,\[25\] nonconsent,\[26\] force,\[27\] and previous chastity,\[28\] must be proved by the evidence.\[29\] And in presecution for assault with intent to commit rape, every fact necessary to constitute rape except penetration must be proved,\[30\] and in such case the evidence of the specific intent is particularly essential.\[21\] While the female assaulted is not an accomplice within the statute requiring corroboration of the testimony of accomplices,\[32\] the statute frequently requires that the prosecutrik be corroborated by such other evidence as tends to convict the defendant of the commission of the offense.\[33\] The corroboration need not be by direct evidence, but is sufficient if the facts and circumstances support her testimony and a reasonable inference of.\[34\] In Georgia and

Where no evidence introduced as to defendant's age, and jury were instructed to judge age from appearance. Commonwealth 167.

Mississippi the testimony of the prosecutri alone is sufficient to authorize conviction for assault with intent to rape \[46\] unless there are numerous and serious contradictions therein,\[84\] but the rule is otherwise in the case of rape.\[97\] Whether there is any corroborating evidence is a question for the court,\[88\] but the weight and sufficiency of corroborating evidence is solely for the jury under ordinary circumstances.\[99\] The uncorroborated confession of the defendant is insufficient to establish the corpus delicti,\[40\] but where there are circumstances corroborating the confession, the corpus delicti may be thus established.\[41\] Concealment for any considerable time after an opportunity to complain justifies a strong, but not necessarily conclusive, inference against the truthfulness of prosecutri's testimony, particularly so far as it relates to the grade of the crime.\[42\] Where direct evidence is amply available, indirect evidence of nonmarriage of prosecutri and defendant is insufficient.\[43\] The burden of showing nonconsent is on the prosecution where female is under no legal disability to give consent.\[44\]

(SS 2) \_C. Instructions.\_See S C. L. 1674.--The charge must embrace the law applicable to every phase of the case made by the evidence and every legitimate deduction to be drawn therefrom,\[45\] and a charge which as a whole guards against the

alone had opportunity for intercourse. Harris v. State \[Neb.\] 114 NW 168. Where witnesses testified to dislabelled and bloody condition shortly after assault, to seeing defendant in vicinity, and defendant was found dressed in clothes described by prosececurity and others. Younger v. State \[Neb.\] 114 NW 170. Where accused was seen with prosececurity at late hour of night, after which they entered darkened room. State v. McCausland \[Iowa\] 113 NW 852. Where prosececurity had veneal disease short time after abbes by defendant. Lam Yee v. State \[Wis.\] 112 NW 425. Where defendant assisted in procuring abortion. Linville v. Green, 125 Mo. App. 283, 102 SW 67. Complaint and description of assistant. Pecipe v. Bianchino, 5 Cal. App. 833, 91 P 112; Younger v. State \[Neb.\] 114 NW 170; State v. Werner \[N. D.\] 112 NW 60.

Inasmilement Teathmony of physician that prosecutri had extended intercourse with someone. State v. Jones \[Was.\] 92 P 899.

Fact that child was born prosecutri. State v. Blackburn \[Iowa\]. 114 NW 531. Where defendant had objected to reputation as cause of prosecutri's condition by saying "The first time was too long ago and the second time it would be impossible," and that prosecutri told prosecutri attorney in connection with another case that she had had sexual intercourse with others. Burk v. State \[Neb.\] 112 NW 573.

SS. Under Pen. Code, SS 991, proper to refuse instruction that accused could not be convicted on testimony of witness alone, unless there were other corroboratory circumstances. Fields v. State, 2 Go. App. 41, 58 SE 327; Parker v. State \[Ga. App.\] 59 SE 823.

SS. Allen v. State \[Miss.\] 45 S 833.

SS. In Georgia the Davis Case, 120 Ga. 435, 48 SE 186, requiring corroboration of prosecutri, applies only to rape, and not assault with intent to rape. Scott v. State \[Ga. App.\] 60 SE 112.

SS. Not error to refuse to instruct jury that there was no corroborating evidence. State v. Bricker \[Iowa\] 112 NW 645.

possibility of conviction of any crime barred by the statute of limitations is sufficient.46 The instructions should be based upon the evidence.47 The instructions should not single out, emphasize, or give undue prominence to particular parts of the evidence.46 An instruction which assumes to state all the essential elements of an offense and omits one or more of them is erroneous,48 and this omission is not corrected by an ample statement as to the omitted elements in another instruction where the two instructions when considered together are misleading.50 But an instruction collating matters the jury might consider as bearing on corroboration is not necessarily defective.51 Where the court fairly submitted the question of consent 52 and the necessity of corroboration, it may refuse requested instructions thereon; 53 nor is it necessary to instruct conversely on these points.54 The court need not instruct as to the meaning of corroboration.55 A charge that defendant might be found guilty of lesser offense if jury failed to find him guilty of rape is not erroneous as tending to impress jury that they should convict if possible.56 Failure of the court to charge the jury that they may convict of the lesser offense may be error.67

be presumed to relate only to one offense.

On female under age of consent with intent to know her, and is not objectionable as de-

46. Fact that charge did not expressly

state that crime must be found to have been

unknown to law. Ross v. State \[Vyro.\] 93 committed within eighteen months preced-

P 299.

ing return of indictment harmless where in-

idcment returned October 1904 and charge

expressly instructed that offense must have

been performed on or about June 3, 1906.

State v. McCausland \[Iowa\] 113 Nvw 852.

82. Lake v. Com., 31 Ky. L. R. 1222, 104 SWW

01. Where, on trial for rape alleged to

have been committed on certain date, state's

evidence showed but one act of intercourse

and testinomy did not disclose finding an-

other indictment charging offense on the

next day, court did not err in charging jury

to mind defendant guilty if they believed offense to have been committed at any time

within one year before measurement of

increment. Robertson v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 208, 102 SWW

103. Where

case was tried as assault with intent to rape

and defendant was convicted thereof,

instructions inapplicable to case telling jury

what constituted attempt to commit a crime

in absence of statute punishing such attempt, etc., not erroneous. People v. Horell,

162.

001. State v. McCausland \[Iowa\] 113 Nvw

001. Proper to refuse instruction that if

jury find existence of veneral disease in de-

fendant material existence thereof must be

proved to convict. State v. Mehojovich, 118

La. 1013, 43 8 660. Error to call attention of

jury that no witness had testified to prosec-

cutrix's consent. State v. Fowler, 13 Idaho,

317, 89 P 757. Error to instruct verbaler if

jury believed defendant pulled witness to

ground, pushed her over and had inter-

course with her, she resiting, etc., where

acts mentioned were but few of those given

in testimony, State v. Grove, 61 W. Va. 697,

57 SSE 296.

40. Instruction omitting element of intent

to use force necessary to overcome woman's

will, erroneous. Rahke v. State, 168 Ind. 615,

81 NE 584. Instruction that attempt to car-

maly know female under age of consent

whether with or without consent is attempt

to do violent injury to her charges but one

element of assault charged in information

charging attempt to commit violent injury

on female under age of consent with intent

to know her, and is not objectionable as de-

46. Fact that charge did not expressly

infing attempt to commit felony or offense

unknown to law. Ross v. State \[Vyro.\] 93

committed within eighteen months preced-

P 299.

ing return of indictment harmless where in-

50. Where element of force was omitted.

idcment returned October 1904 and charge

Rahke v. State, 168 Ind. 615, 81 NE 584.

expressly instructed that offense must have

51. State v. McCausland \[Iowa\] 113 Nvw

01.

01. Lake v. Com., 31 Ky. L. R. 1222, 104 SWW

01. Instruction that if jury found defendant did not commit rape because prosecutri

and testinomy did not disclose finding an-

connect, or if they believed such consent

other indictment charging offense on the

to commit rape defendant would be guilty,

norper. State v. Symens \[Iowa\] 115 NWW

878.

Instruction as to consent properly refused

when female is under age of consent. State

v. Mehojovich, 118 La. 1013, 43 S 660.

53. Harris v. State \[Neb.\] 114 NW 168.

01. Lake v. Com., 31 Ky. L. R. 1232, 104 SWW

01. Instruction that if jury found defendant did not commit rape because prosecutri

and testinomy did not disclose finding an-

55. Corroboration word in ordinary use

and generally understood. Austin v. State

\[Tex. Cr.

(SS 2) D. Trial and punishment.See * c. L. 1975.--On a trial for rape, it is not error to permit the prosecuting attorney to state in opening the case that the knowledge of the prosecutri, seventeen years of age, was limited and that she compared in information with a child between ten and eleven,88 or to allow as interpreter the superintendent of the deaf and dumb asylum where prosecutri was a pupil.88 Con-siderable latitude should be allowed the defense in its cross-examination of the prosecutri going to affect her credibility.89 Though not the general rule, the courts sometimes review the punishment inflicted.90

New trial.--Where the fact of pregnancy was used by the state as a corroborative circumstance, and the lapse of time and nondelivery of the child has destroyed and dissipated its effect as a circumstance against defendant, such fact may be treated as newly discovered evidence warranting new trial.89

RATIFICATION, see latest topical index.

## 11 Real Actions.89

This topic includes only the most general rules, matters relating to particular real actions being treated under appropriate titles.89

10 Cur. Law. REAL PROPERTT $ 2C. 1449

C. Restraints, 1460.

ments, Taxes, Incumbrances, Etc.,

$ 5. Rents and Charges, 1460.

$ 6. Mutual and Relative Rights and Reme-

$ 7. Rights and Remedies Between Third

des of Present and Future Tennis,

Persons and Present and Future

1460. Possession is Not Adverse to

Tennis 1463.

RemaIndermen, 1462. Improve-

$ 8. Proof of Title to Reality, 1464.

$ 9. Merger and Abhandoumen, 1464.

_The scope of this topic is noted below._${}^{\\clubsuit}$

$ 1. \_Definitions and nature of real property.\_See s C. L. 1871.--Real property is land and generally whatever is growing upon or affixed thereto.${}^{\\clubsuit}$ A mere right to plant and take oysters is not "real estate" within the meaning of a statute authorizing the quieting of title.${}^{\\clubsuit}$

$ 2. \_Present and future estates. A. In general.\_See s C. L. 1871.--What kinds of estates are created by the use of particular words in grants or devises is shown in a subsequent section.${}^{\\clubsuit}$

($ 2) B. Freeholds.--A perpetual easement is a freehold.${}^{\\clubsuit}$ The assignability of a freehold estate results from the nature of the estate and is not dependent upon independent permission from the grantor.${}^{\\clubsuit}$

($ 2) C. Estates in fee.--Essential to a fee simple is the quality that it passes to the owner's heirs generally upon his death.${}^{\\clubsuit}$ An estate in fee may be conveyed to commence in futuro without the creation of any intermediate estate.${}^{\\clubsuit}$

\_Entails.\_See s C. L. 1871.--The word "body" or other words of procreation are necessary to the creation of an estate tail.${}^{\\clubsuit}$ An estate to the grantee and his children not in esse creates an estate tail at common law and a fee conditional in South Carolina.${}^{\\clubsuit}$

_Base or determinable fees.${}^{\\clubsuit}$_--These are estates in fee which, though limited to heirs general, are subject to divestiture on the happening of some future contingent

67. This topic treats of the nature of real

$ 68. State v. Wolf \[Del.\] 66 A 739.

property, and the general rules applicable to

$ 69. Catchot v. Zeigler \[Miss.\] 45 S 707.

the different estates therein except estates

$ 70. See post, SS.

for years (see Landford and Tennat, 10 C. L. 571). Buildings and Building Restrictions

$ 17. Funston v. Hoffman, 232 IL. 360, SS NE

$ 17.

($ 0 C. L. 441): Hornesteads (9 C. L. 1629); Trusts (8 C. L. 1639); Estates of Decedents

before acquisition of complete title 1s not

$ (9 C. L. 1154): Descent and Distribution

$ (9 C. L. 970): Lower (9 C. L. 1012); Curtesy

$ (9 C. L. 857): Essements (9 C. L. 1017); Tenants in Common and Joint Tennis (8 C. L. 2114): Adjoining Owners (9 C. L. 28), and principles peculiar to specific kinds of

$ 71. Funston v. Robinson \[Tex. Civ.

reality (see Emplements and Natural Products, 9 C. L. 1072; Forestry and Timber, 9

$ 74. White v. Willard, 232 IL. 464, SS NE

$ 54.

$ 55.

$ 75. Such estate held not created by devise

kinds of property (see Property, 10 C. L. 1830), and estates in personal property (see

$ 180), are elsewhere dis-

emused, as are also perpetuities and Ac-

$ 10 C. L. 1167), convergences

$ 76. L. 1871.--Reeal property is

$ 10 C. L. 1258), liens on (see Mortarges, 10 C. L. 1361), and

$ 8. Proof of Title to Reality, 1464.

$ 9. Merger and Abhandoumen, 1464.

$ 149.

$ 150.

$ 160.

$ 171.

$ 172.

$ 173.

$ 174.

$ 175.

$ 176.

$ 177.

$ 178.

$ 179.

$ event.78 Unlike a life estate, a base fee may last forever and terminates only if the contingency happens.79 A conveyance of standing timber creates a fee therein determinable on failure to remove within a reasonable time.80

(SS 2) _D. A life estate_ See * C. L. 782 is a freehold limited to determine with the life or lives of particular persons or at an uncertain time which may be postponed for life.81 Whether it was intended that there should be a life estate in the property itself without a trustee will depend largely upon the terms of the devise or grant.82

(SS 3) \_E. Estates upon condition or limitation.83--Conditions must be at least substantially performed.84 Nonperformance of a condition which must be performed during the lifetime of a testator is not excused by devise's ignorance of the condition.85 In general, waiver of performance of a condition precedent to the vesting of a devise must be shown by the will itself.88 Conditions subsequent are not favored.87 An estate during widowhood is terminated by marriage.88

(SS 2) \_F. Hereditaments.--\_The right of an appropriate of water, for irrigation, to have it flow in the stream to the head of the ditch, is an incorporeal hereditament apprutenant to the ditch.89

(SS 2) _G. Future estates.88_ See * C. L. 1877_May be created in the alternative.90 In New York an expectant estate is descending, devisable and alienable in the same manner as an estate in possession.91 The statute so providing does not prevent a testator from making an expectant estate subject to be defeated by the exercise of a

78. An estate to A and, should he die -- trary to that theretofore inelucated by sald without leaving children, then to revert or -- mission, government knowing that mission go over, is a base or determinable fee -- was founded to convert Hawailams to Chris-feasible on A's death without children. Lowrey v. Ter. of Hawai, 206 U. S. Kinard v. Hale, 128 Ga. 485, 57 SE 761. Will held to create a fee for benefit of certain daughters subject to divesture upon their death without issue. Maynard v. Greer, 129 Ga. 709, 59 SE 798. Children held to take conditional fee subject to divesture by death before widow and absolute in survivors after her death. In re Carney's Estate \[Ind. App.\] 84 NE 506.

01. Devise to "A, then to her hers," but -- if no "heirs of her own" then to others, is a base fee. Ahlfeld v. Curtis, 229 Ill. 139, 82 NE 276.

01. Warren v. Ash, 129 Ga. 529, 58 SE 858. See, also, Forestry and Timber, 9 C. L. 1408.

01. Robb v. New York & Cleveland Gas Coal Co., 216 Pa. 418, 65 A 383. Will construct to give life estate to daughters subject to annual charge in favor of grandchildren, with remainder to grandchildren. In re Haines' Estate, 150 Ca. 460, 89 P 66.

01. Gift of "use" of reality for life (Little v, Coleman \[N. H.\] 66 A 483) and of "income from all the rest" of the estate (Id.) held to create life estates in property itself, without trustee (Id.).

01. See, also, Deeds of Conveyance, 9 C. L. 943.

01. Will construed to create devise on condition precedent that devise support testator, requiring substantial performance to -- vest title in the former. Fisher v. Fisher \[Neb.\] 113 NW 1004. Evidence insufficient to show substantial performance. Id. Man-tenance of a mere technical school, excluding all religious instruction, held not to satisfy condition that government should continue a mission for cultivation of sound literature and solid science and teach no religion con-

1450 REAL PROPERT SS 2D. 10 Cur. Law.

event.79 Unlike a life estate, a base fee may last forever and terminates only if the contingency happens.79 A conveyance of standing timber creates a fee therein determinable on failure to remove within a reasonable time.80

(SS 2) _D. A life estate_ See * C. L. 782 is a freehold limited to determine with the life or lives of particular persons or at an uncertain time which may be postponed for life.81 Whether it was intended that there should be a life estate in the property itself without a trustee will depend largely upon the terms of the devise or grant.82

(SS 3) \_E. Estates upon condition or limitation.83--\_Conditions must be at least substantially performed.84 Nonperformance of a condition which must be performed during the lifetime of a testator is not excused by devise's ignorance of the condition.85 In general, waiver of performance of a condition precedent to the vesting of a devise must be shown by the will itself.88 Conditions subsequent are not favored.87 An estate during widowhood is terminated by marriage.88

(SS 2) \_F. Hereditaments.--\_The right of an appropriator of water, for irrigation, to have it flow in the stream to the head of the ditch, is an incorporeal hereditament apprutenant to the ditch.89

(SS 2) _G. Future estates.88_ See * C. L. 1877_May be created in the alternative.90 In New York an expectant estate is descending, devisable and alienable in the same manner as an estate in possession.91 The statute so providing does not prevent a testator from making an expectant estate subject to be defeated by the exercise of a

78. An estate to A and, should he die -- trary to that theretofore inelucated power of sale in trustees which must be exercised before the owner of the expectant estate becomes vested with absolute title.\[92\]

\_A reversion.\_See a C. L. 178--A conveyance in trust to the grantor's use for life remainder to his heirs subject to testamentary disposition leaves no reversion to merge with the life estate.\[94\] A mere stranger may not question the method of forfeiture of the particular estate.\[94\]

\_A remainder_See a C. L. 178 is vested in one when he or his heirs have the right to the immediate possession, whenever or however the preceding estate may determine.\[98\] It is contingent when limited to a dubious or uncertain person or on a dubious or uncertain event.\[98\] If there is a present right to have the estate the instant the prior estate shall determine, it will not be rendered contingent by uncertainty of enjoy-

92. Real Prop. Law 1896, p. 567, SS 49.

the wife a life estate and the daughter a

based remainder. Deadman v. Yantis, 230

93. Grantor could not convey fee. Frank

Felhr Brew. Co. v. Johnston, 30 Ky. L. R. 211,

97 SWV 1107.

94. One claiming lumber sold on credit to

tenant could not contend that there was

no judgment of court or reconveyance to

ververisoner. Mosca Town Co. v. Wellington,

846. Trust for use of named children for

116, remainder to such of their children or

descendants of deceased children as might

used remainder is one that is so limited to

persons in being and ascertained that it is

capable of taking effect in possession or

environment on a certain determination of a

riage of widow, among testator's children

particular estate, without the concurrence

of any collateral contingency. Voorhees v.

Fender children's remainders uncertain both

Singer \[N, J. Eq. 1\] 68 A 217. Where there is

as to person and quantity, and not subject

no uncertainty in the capacity of a device

to take, the devise is vested in him, though

SE 106. Request in trust for benefit of tests-

there may be uncertainty in the happening

or's wife for life, remainder to such children

of the event on which the devise is conditional

Storrs v. Burgess \[R. I\] 67 A 781.

child who did not to the issue of such de-

Estate to be divided equally, afted death or

cased child, creats a contingent remainder

marriage of widow, between testator's

in the children. Brechleller V. Wilson, 228

children surviving him and issue of such as

III. 502, SS 11 NE 1094. Where testator gave

should have died, held vested at testator's

property to his children and provided that

death. Runyon v. Grubb, 119 App. Div. 17,

on death of last survivor it should be divided

103 NYS 549. Interest on mortgages to W.

for life, on his death principal to go to his

my aforesaid children," gift to grandchildren

children, if any, If none then to "F. or her

was a contingent remainder which could not

heirs," held to give vested remainder to F.

vest unless there were grandchildren living

on testator's death which passed by her will,

at time of death of last surviving child,

though she died before W. In re Allison

Sellly v. Bristow, 105 Md. 326, 68 A 262, Willi

53 Music. 222, 102 NYS 887, affd. 122 App. Div.

constructed to create interests in testator's

898, 107 NYS 1119. Entire property to wife

"after diposing of enough to pay debts,"

then same "or so much thereof as shall

Boston Safe Deposit & Trust Co. v. Blanchard

remain unexplored" to four eons equally,

\[Mass.\] 81 NE 654. In trust for C, trustee

held to create vested remainders. Jonas v.

having power to use principal if necessary

Weirea, 134 Iowa, 47, 111 NPV 458. Request

for C's support, at C's death remainder to

of entire estate to wife during minority of

go to her children if living, gave tatter only

younger child, after which wife should

contingent remainders. Collins v. Crawford

have one-third for life, remaining two-thirds

\[Mo.\] 103 SWV 537. Devise of life estate to

to be divided between his eleven children,

E, remainder to A or A's surviving issue,

held to create vested remainders in children

but if A died without issue then to C, B and

subject to widow's estate for years and life

W. or their lawful issue, held to create only

state in the one-third. Shafer v. Tereos, 133

comtingent remainders in A and B. Voorhees, 342, 110 NPV 846. Will held to create

heas v. Singer \[N. J. Eq. 6\] 68 A 217. Where

a vested remainder in children subject to

the percons who are to take under a

divestiture as to any who might die child-

will are uncertain, as where it depends on

less. Tocomb v. Spratlin, 127 Ga. 766, 57 SE

so be living at death of life tenant, remainder ment "" or as to quantity or value." A remainder to unborn children may be made to vest on birth of the first subject to opening to let in successive ones."" A remainder subject to an estate for life vests in possession on death of the life tenant." That there may be an acceleration of a remainder, the entire particular estate must terminate and not merely the interest of one of several persons.1 The death of a life tenant before that of a testator under whose will he claims does not defeat the devise over." A devise to one's wife with direction that so much as remains in her hands on her remarriage shall go to testator's children is valid,2a and by statute in some states a remainder will not fail for want of a particular estate." Remainders are alienable 4 and, where vested, they may be partitioned or sold on execution.5

\_Executory interests.--\_An executory devise in an estate permitted at common law to be created by will to commence in the future, either with or without a preceding estate." If an estate can take effect as a remainder, it will not be held to be an executory devise.7 Where a fee is mounted upon a fee by way of executory devise, a conveyance by both takers extinguishes their contingent rights.8

\_Expectancies.--\_While the sale of a mere expectant interest by an heir is presumed fraudulent, it will be sustained if made for a fair price and with the ancestor's consent,9 though the contrary is also held.10 A court of equity in its ordinary jurisdiction cannot protect a mere expectancy.11

97. Shafer v. Tereso, 133 Iowa, 342, 110 NWV 4. Conveyance by life tenant and children 846; Voorhees v. Singer \[N. J. Eq.\] 68 A 217. Uncertainty of "right" to enjoyment of re-mallero as distinguished from uncertainty of employment distinguishes vested from con-tangent remainders. Weil v. King, 31 Ky. L. R. 1010, 104 SWV 380. Remainder to testator's heirs after termination of a life estate is vested. Id. Property to write to divide between herself and two children equally when latter became of age gave vested remainders to children. Roberts v. Herron \[S. C.\] 58 SE 968. Estate unaffected by provision that debts of remaindersnet are should be adjusted before their shares should be turned over to them. Jonas v. Weeves, 134 Iowa, 47, 111 NWV 453.

98a. To F, wife of G, so long as she remains his wife, and to children she might have by him, property to go to G's children on "F's death or ceasing to be G's wife, held to create contingent remainder till birth of a child, then vested in that child and all others afterwards born to F and G opening to let in each successive child as it was born. Greenlaw v. Dillon \[Tex. Civ. App.\] 108 SWV 705.

99. Where trustees did not exercise a power of sale as to share of a life tenant, her children became vested with title thereto on her death and entitled to partition from share of others. Bascom v. Weed, 53 Misc. 496, 105 NYS 459.

01. Election of widow who was life tenant to take dover did not cause acceleration where executor held particular estate to hold until death of widow for benefit of children. Toombs v. Spratin, 127 Ga. 766, 67 SE 59.

01. Thompson v. Thornton \[Mass.\] 83 NE 880.

2a. Littler v. Dielmann \[Tex. Civ. App.\] 106 SWV 1137.

3. Civ. Code, $ 5099, Toombs v. Spratin, 127 Ga. 766, 57 SE 59.

10 Cur. Law.

11452

10 Cur. Law. REAL PROPERTY SS 3.

## 3 Estates created in particular cases and principles of classification

Of primary importance is the intention of the parties, to be gathered from the particular language of the entire instrument creating the estate \[13\], and this intention will

79 NE 230. Statute applleable though death of husband occurred prior to its enactment. Id.

10. Son's release to father of claim to latter's estate held void. Elliott v. Leslie, 30 K5Y. L. R. 743, 99 SW 619. Contract held not violattive of Code, art. 1887, as an attempt to dispose of an interest in the succession of living person. Rudolf v. Costa, 119 La. 781.

01. Owner of executory devise held not entitled to enjoin owner of base fee from cutting timber, nor to taxes voluntarily paid, nor to certain condemnation money. Fifer v. Allen, 228 Ill. 507, 81 NE 1106.

01. See Willis, 8 C. L. 2305.

01. Fee simple estates: Devise to children with provision that if either should die childless its share should go the survivors except as the law provides otherwise held to devise a fee simple estate in the first takers. Connor v. Gardner, 230 Ill. 258, 82 NE 640.

Will held to show intention to give a house and lot without limitation, testator having described other land which was given for life only. Pauley v. Dils, 31 Ky. L. R. 1151, 104 SW 717. Estate to write "to have, to hold, and to use" as she might wish, gave fee. Scott v. Scott \[KY.\] 105 SW 896. Reality and personality to nicee "absolutely," and if nicee should die without issue then to others, gave niece an absolute and not a defeasible fee. Prichet v. Corder \[KY.\] 105 SW 910. Will as a whole held to give children fee simple title despite useless provision that in case of their death property should go "to their children and not to any husbands or wives which their consorts may again have by re-marriage." Williams V. Nea's Guardian \[KY.\] 105 SW 851. Devise to wife, coupled with certain requests, held to give estate in fee, and not a mere life estate. Wood v. Wood \[KY.\] 106 SW 226. Deed to one, "his heirs and assigns, forever," gave fee simple though habendum clause was to him "his v. Hagan LN. C.1 60 BE 909.

children, forever," and it closed with reservation of lot, barn, etc., to grantors for life, crews v. Glasseek \[KY.\] 107 SW 237. Will v.

10.0 not be defeated by the misuse of technical terms.14 An estate devised in decisive

mainder to children surviving grantee. Clubb

to apply to a certain lot, though separated v. King, 30. Ky., L. R. 830, 99 SWV 935. Will

by a period, so as to give only a life estate.

giving money in trust to be invested in land

O'Malley v. Loftus \[Pa.\] 69 A 819. Convey-

at daughter's request, and decoded to her and

and decade to her and

helfs of her body at her death if she had

any, held to give daughter only a life estate,

"into said E and her her hers," carries a life

with remainder to children, free from inter-

estate. Windham v. Howell \[S. C.\] 59 SE

est in daughter's husband. Reeves v. Mor-

85. Dead providing that grantors should

ran, 30 Ky., L. R. 1158, 100 SWV 836. To wife

enjoy "free use, benefit and possession" for

for life, then to children, to be equally divided "between all male and female of them

from will or wish" of grantees, held to re-

and their offspring, they are only to have

see to grantees. McDonald v. Jarvis \[W. Va.\]

property after widow's death to children for

1968 SE 980. Interest to two sons annually

life, remainder to such of their offspring as

would take by descent. Emner n V. Air, 31

Ky. L. R. 1184, 104 SWV 960. Where money

was given to a trustee to be invested, at

daughter's request, in land to be decided to

her and "heirs of her body" at her death if

she had any, daughter took life estate in

land so bought, with remainder in fee to her

children taking under the will. Reeves v.

Morgan, 30 Ky., L. R. 1158, 100 SWV 836.

Este to wife "during her natural life" after

late to wife "during her natural life" after

sale of sufficient to pay debts, "to own and

do with as she pleases." Howard v. Cole, 30

Ky. L. R. 1027, 100 SWV 228. To sister and

niceline all property to use or sell for their

support, with gift over of what was left

after their death, held to give life estate

convertible into fee by conveysance. Hos

man v. Willett \[Ky.\] 107 SWV 334. To daughter for life, then to daughter's two sons for

life, remainder in fee to son's children, gave

only life estate to one of the sons though

he acquired the interests of daughter and

other son by conveysance. Forsman v. Hof-

stetter \[Ky.\] 107 SWV 796. All property to

wife for life except forced portion to father

and mother. Succession of Verneuille

\[Las.\] 45 S 520. A outage, etc., for "term

of five years or longer." Dow v. Abbott

\[Mass.\] 84 NE 96. Will directing widow

in case she should marry to sell reality and

divlde proceeds between herself and sons

constructed to create In her a life estate, and

not a determinable fee. Peek v. Grimls, 148

Mich. 682, 14 Det. Leg. N. 311, 112 NWV 722.

Antenuptial conveyance to grantor's affancel

wife and heirs of her body by him begotten

created estate tall in grantee, converted by

statute into life estate in wife, with contin-

gent remindators to "heirs of her body" on

her death. Summet v. City Reality & Bro-

kerage Co., 208 Mo. 501, 106 SWV 614. "To

daughter for her natural life, but if she has

lawful hers then it is at her own disposal

'at her decease," gave a life estate which did

not become a fee simple on birth of issue.

Early v. Coleman, 34 Pa. Super. Ct. 267.

Rents and profits for life without power to

sell or incumber, but with power to devise,

grave life estate only. Schoyer v. Kay, 217 Pa.

32, 66 A 141. Devise to sons "in trust to make

their living," and to their "children" after

them, held to create only a life estate in

sons, with remainder to children in fee. Emnerlck v. Emerlck \[Pa.\] 68 A 183. To son for

life, then to son's children living at his

death, with devise to others should son die

without leaving children, gave life estate

only to son. McDaniel v. McDaniel \[Pa.\] 68

A 847. Limitation to "blood relations" held

held to apply to a certain lot, though separated

by a period, so as to give only a life estate.

O'Malley v. Loftus \[Pa.\] 69 A 819. Convey-

at daughter's request, and decoded to her and

halfran named to have and hold in warranty

ahlfran named to have and hold in warranty

any, held to give daughter only a life estate,

with remainder to children, free from inter-

estate. Windham v. Howell * 10 Cur. Law. REAL PROPERTY SS 3. **1455**

terms will not be reduced by subsequent clauses not equally decisive; **18** and the converse is also true that where an estate less than a fee is given in clear terms it will not be enlarged by general language in a subsequent item unless such intent is plain.16 After an absolute devise in fee, a devise over in case of death of first taker, or his death without issue, is generally held to refer to his death in the lifetime of the testator,17 but not where a different intent is shown,18 as where the estate is preceded by

determinable fee intended. Smoot v. Kirk, & 1Ky, L. R. 1081, 104 SWV 716. & 1S. All property to wife, and provision that if anything was left wife should divide that after her death "I will that all property & 1I among children did not annex condition belonging to her at that time" be equally divided among children, held to create fee by deed it should go to children at her death. In wife, Hume v. McHane, & 40 Ind. App. 703, & 1I. Fee simple created by devise to one and & 1NE 117. Legacies to persons living at & helers of his body held not reduced by limitation over on failure of such heirs, such tion that legates be part of household at & 1Imitation merely creating a conditional estimate by way of executive devise. Sessions A 926. Estate to M and his heirs, subject to & 1Imitation under his division of all & 1Imitation under his division of all & 1Imitation under his division of & 1

## 1456 Real Property 8

Ice simple remainder to daughter on her surviving testator. Hannon v. Fliedner, 216 Pa. 470, 65 A 944.

\*\*NOTER. "Dying without issue" construed in devises of real property: At common law, a devise in fee, followed by the words "but if he die without issue," followed by a "bution over, raised an estate tail by implICATION (Brice v. Smith, 1 Willes Rep. 1), and the failure was construed as an indefinite failure of issue. Unless the limitation could take effect as a remainder, it was void for remoteness. Cadagon v. Ewart, 1 Adol. & El. 636; Bigge v. Bensley, 1 Bro. C. C. 187. This result was obviated by statutes which provided for a construction as a definite failure. Stat. I Vict, c. 26, 8 295: Laws N. Y. 1896, c. 647, 8 38. After the statutes the first lega-tee has a determinable fee, and the limitation over takes effect as an executory devise. But the phrase today has assumed a new character and a new meaning. Formerly it was a phrase of limitation used by the testator to guide the devolution of the estate after it might leave the hands of the first beneficiary. But the context of the will may have regard merely to the time of the testator's death, and so used the phrase is not one of limitation but a mere substitutionary devise, in case one of the legates dies before the will takes effect; it is a provision against instetacy, and the testator provides for no further devolution than the first taker. If the devise takes at all, he gets an absolute fee. The question is no longer one of definite or indefinite failure, but whether the words import a limitation engrafted on the estate already given, or whether the testator has in mind one of the many contingencies liable to cause a lapse and in describing it and providing a substitution has used words which happen to be identical with the stock phrase of limitation.

The development of this rule was comparatively late and was due to several causes. The chief of these was probably the influence of two early English cases which applied such a construction. Doe v. Sparrow, 13 East, 359, and Clayton v. Lowe, 5 Bern. & A. 636. These cases were plainly decided on their facts. In the former, the limitations in one clause were read over into a succeeding clause; the latter case involved incon-guous provisions. These cases are far from establishing a fixed rule. Both were followed in Caldwell v. Skilton, 13 Pa., 152. The rule in Caldwell v. Skilton was recognized in Jessup v. Smuck, 16 Pa. 327; Karker's Appeal, 60 Pa. 141, and Fahnrey v. Holslinger, 65 Pa. 388, and was solidified in the later Pennsylvania cases. Engel's Elstate, 180 Pa. 215; Flick v. Forest Oil Co., 188 Pa. 317. Another cause of the development of the rule was the failure or refusal (Mickley's Appeal, 92 Pa. 514, 518; Hancock's Elstate, 13 Phila. \[Pa.\] 283), to recognize the distinction in the English cases (Smith, Exec. Int. **3** 662, 665, 666) between real property and personal property in this connection. So, too, courts have confused English cases where there was an alternative limitation to the issue besides a limitation over in default. As in Fowler v. Duhme, 143 Ind. 248, where the court, besides relying upon Doe v. Sparrow, 12 East, 359, and Clayton v. Lowe, 5 Bern. & A. 636, cited Gee v. Manchester, 17 Q. B. 717. These English cases stand on a special situation: Around. The devise is to the first legates in fee; the limitation to the issue cannot raise an estate tail because if there are issue they all take, not merely the edest son. The other limitation over is by way of executory devise, upon the happening of the continuity. But because of both limitations over, there is no contingency at all, for one of the events specified must of necessity happen, and thus it is impossible for the first taker to keep the whole estate. The possibility, however, of keeping the estate 'is a necessary element to make a limitation over operate by way of executory devise. While the alternative devises determine the first taker's estate in fee at his death, this may not necessarily give him a strict life estate.

While the court itself could so cut down his fee, by rejecting the words of inheritance and thus give effect to the devise over as a remainder, it is loath to do so. It gives effect to all the words by treating the phrase as a substitutionary devise. Another element which has added the growth of the rule has been the employment in the later American cases of the general principle that a devise in fee will not be cut down by subsequent provisions unless the latter are clear and certain. See Biddle's Estate, 28 Pa. 59, This is illustrated by the long line of New York cases dealing with the rule (Vanderzee v. Slingerland, 103 N. Y. 47), although the rule was not applied in Buel v. Southwick, 70 N. Y. 58, and in Nellis v. Nellis, 93 N. Y. 505. It may be noted, however, that two cases often cited are not in point. Moore v. Lyons, 25 Wend. \[N. Y.\] 119, involving a question of survivorship, and Livingston v. Greene, 52 N. Y. 118, a question ofvesting of remainders. The New York courts are eager to seire upon slight expressions to defeat the rule and to give the words their "natural import." Benson v. Corbin, 145 N. Y. 351, 569; Washbon v. Cope, 144 N. Y.

another one for life or years.10 In some jurisdictions it is held that a provision in case of death "without issue" as distinguished from one merely in case of death refers to death at any time,20 and under such holding a base or determinable fee usually results.21 Where distribution is to be made in the future, words of survivorship will be construed as referring to the time of distribution, in the absence of a contrary intention.22 While the law favors the early vesting of estates,23 intention must con-

contingency. Id. To son for life, and in case of his death without issue and leaving widow surviving then estate to be divided, estate to go to his issue if he left any, referred to son's death after testator's. Ches-

Lash of devises without husband or wife wife whofriend issue" held to refer to death before or for youngest child should be 28, so that estate vested absolutely at that time, in child-

rem then living. McCauley's Guardian v. Dale \[Ky. 1-108 SW 268.\]

19. In such case, general rule is that reference is made to death during period of intervening estate. In trol in this as in other matters.\[24\] If futurity is made of the substance of a gift or devise, the vesting is suspended; \[25\] otherwise if it relates only to the time of payment or division.\[26\] Under a direction for payment to or division among a class, only those who are members of the class at the time fixed for payment or division take, and their interests do not vest until that time.\[27\] An estate to one if or when he shall attain a given age, with limitation over on his death under such age, is vested and defeasible only in the event of such death.\[28\] That implications may raise an estate, they must be necessary to carry out the intention of the testator.\[29\] Where a life estate is devised or conveyed with absolute power of disposition, it amounts to the creation of a fee,\[30\] but not where the power is qualified or contingent.\[31\] Power to

Held to create vested interests in grandsons

Id. Where will gave property in trust for in fund for education and advancement sub-

ten years, one-half of income to be paid an-

ject only to divlestitute by death under 21,

minally to four children, other half to be

emitting them to enjoy same after arriving

added to principal, one-half of which was to

at that age. Hayes v. Robesen \[R. L.\] 68

be paid to them at end of the ten years, and

A 886.

provided that remainder should be so paid at

end of twenty years, the share of any one

of children as might survive wife who was

dle tenant gave children only contingent re-

tock vested devisable interests. Pearson v.

manders. Brechbeller v. Wilson, 228 Ill. 602,

Hanson, 230 Ill. 610, 82 NNE 818. Devise in

81 NNE 1094. Will construed to pass interests

trust for the benefit of four persons, or upon

to children only after widow's death or re-

their death for their heirs, held to give a

marriage, so that one becoming of age had

vested interest. Id. Where possession of an

no right to possession or income. Beans'

sota for the postponement is the position of

Committee v. Megival \[X.Y.\] 107 SW 1186.

contracted not to give vested interests to

the fund, the estate in remainder is vested.

persons provided for in regulatory clause

Id. But if the postponement is.controlled

til death of beneficiary in trust created by

by the position of the devise, a contingent

previous paragraph. In re Murphy, 121 Arp,

remainer is devised. Id. After death of

Div. 426, 108 NYS 183. Interest on trust found

to one for life, principal then to heirs

at the age of twenty-one," vested title to

tesstator's body then surviving, did not vest

tripel in children on death of both sons,

title to fund until death of life beneficiary.

with right to interest from that time and to

In re Wilson, 53 Music. 238, 140 NYS 480.

Certain annuities held a mere charge upon

property and not intended to postpone vest

til death of life tenants and vested from that

ing of fee until death of annuitants. Driggs

v. Plunkett \[Ky.\] 105 SW 976. A legacy is

vested rather than contingent when intention

is doubtful. Crawford v. Engram \[Ala.\] 45 S 584.

25. A legacy will be held contingent when

the time of division is of its substance, Craw

ford v. Engram \[Ala.\] 45 S 584. Where only

words of gift are a direction to pay or di

to stay at a future time, gift it future and com

tingent. Olsen v. Youngerman \[How\] 113 NWV 938; Hess v. Zahm, 57 Misc. 515, 107 NYS

961. Where, however, postponement is

merely to let in a preceding estate, gift

vested though no words of present gift are

used, as an estate to a wife for life or widowhood, and in case of her death or remar-

riage whole estate to be divided between

testator's surviving children, Runyon v.

Grubb, 119 App. Dlv. 17, 108 NYS 94.

26. Gift of money to daughter to be paid

In future held vested futurity, being an

nexed merely to enjoyment and not to gift

itselfelf. Hall v. Ayver's Guardian \[Ky.\] 105

sWW 911. Vested If mentioned only as quall

fying clause of payment or division. Crawv-

for v. Engram \[Ala.\] 45 S 584. Where a

gift is to legatees by name, it will not be

held contingent so as not to vest until arrival

rival of time for payment or division, es-

pecially where the will shows a different

intent. Id. Direction to sell after death

of wife and divide proceeds among named

children created vested Interests in children.

use the principal of real and personal property given for life includes power to convey the reality.\[32\] A void provision for a fee after a fee will be treated as if not written.\[88\] A conveyance to a woman and her children creates a life estate in the mother with remainder to the children.\[24\] A husband's deed to his wife, her and his heirs and assigns, creates a life estate in the wife with remainders resting in interest in his heirs at his death, subject to the life estate.\[88\] A devise during widowhood, but in case of marriage then over, vests in remainder on death of the widow though she did not marry.\[88\] A devise to a widow conditioned only against remarriage vests a fee title in her descending to her heirs where the condition is observed.\[87\] A power of appointment does not necessarily convert a life estate into a fee.\[88\] A provision that if a devisee should sell a portion of the proceeds shall go to another does not require the devisee to sell.\[88\]

_The rule in Shelley's case_ See * C. L. 1677 gives the ancestor the whole estate when it is limited to him and his heirs or the heirs of his body,\[40\] but the two estates must be of the same quality,\[41\] and words of progeny will not invoke the rule unless used in the sense of heirs generally.\[42\] It is a rule of law, not of construction,\[48\] hence a testator's intent is immaterial in cases clearly within its operation. "Heirs" is a word of limitation,\[44\] and "children" one of purchase,\[48\] except where other words show that it was used in the sense of heirs.\[48\] The rule has been abolished in New Day Baptist Memorial Board, 232 II. 608, 83 \[son, with legal remainders to his children, barring rule. Xander v. Easton Trust Co., 217 PA. 485, 64 A76. 32. All real and personal property to wife for life, with power to use part of principal if necessary, and direction for sale of all real and personal estate not used by wife, kalen. Falson v. Adam, 144 N. C. 107, 66 SE authorized wife to convey the reality. Kenn. 793. Deed to H and her two children and only v. Pittsburg, etc., R. Co., 216 Pa. 675, 65 A110. 33. To son absolutely after death of wife and daughter, "or" in case he should die before that time to his heirs at law, to be distributed as if it were his intestine property, vided that on the death of the last survivor told to give son a vested remainder in fee. Cody v. Staples \[Conn.\] 67 A 1. 34. Salyer v. Johnson \[Ky.\] 107 SW 210. 35. On death of life tenant, children of husband's child by a first wife, such child having died intestine, were entitled to a manled. Reilly v. Bristow, 105 MAd. 326, ch. Akkerman v. Ackerman, 34 Pa. Super. 65 A 262. To vote sons "in trust to make their living" and to their children after them creates life estate in sons, with fee remainder and grante in common. Id. 36. Haab v. Schneeberger, 147 Mich. 683, 14 Det. Leg. N. 13, 111 NWV 185. 37. Busby v. Busby \[Iowa\] 114 NW 559. 38. Where owner conveyed in trust for own use for life, remainder to heirs subject to disposition by will or deed in nature of will. Frank Fehr Brev, Co. v. Johnston, 30 Ky. L. R. 211, 97 SW 1107. 39. On his death without sale, interest of legate ceased. In re Walker's Estate \[Pa.\] 68 A 58. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 43. 45. 47. 48. 49. 42. 44. 46. 48. 49. 43. 44. 47. 48. 49. 44. 45. 46. 47. 48. 49. 45. 48. 49. 46. 49. 47. 49. 48. 49. 49.

1460 REAL PROPERTY SS 4A. 10 Cur. Law.

Jersey only with respect to estates created by will.47 It does not extend to personality.48

Footnote 48: The term $\\mu$ is not included in the term $\\mu$.

SS 4. _Covenants and restraints. A. Restrictive covenants_ See 8 C. L. 1678 are very often building restrictions.49 While an owner who files a map of his land showing its division into lots and streets and sells lots as shown thereon does not thereby covenant not to sell the land except in parcels delimiated on the map 50 or to retain the land for private uses,51 he does covenant not to use the land designated as streets,52 and a purchaser of a lot may enjoin a change either in the location or width of the streets.53

10 Cur. Law. REAL PROPERTITY $ 6. 1461 entitled to rents and profits,"53 emblements,"44 and sometimes to minerals,"65 he may not impair or dispose of the corpus of the estate,"66 since this must be held intact for the remaindermen." It follows that he is liable to the remaindermen for waste,"67 and his interest may be terminated if the damages exceed the value of the life estate."68 So, also, a life tenant will not be permitted to acquire an outstanding title and hold it adversely to the remaindermen."69 Equity will enjoin equitable waste by an owner of a base or determinable fee only when the determining contingency is reasonably sure to happen and the waste is of a character to charge the owner with wanton and unconsciousious abuse.71 Under the Wisconsin statute, tenants in common of a life estate may have par.

323. Widow to whom legacies were be-quested for life, remainder to others, held by the manufacturer. Lester v. Kirtley, 83 Ark. 554, so that her executor could see for accounting and direction of court as to proper disposition of fund. Leggett v. Stevens, 185 N. Y. 70, 77 NE 874. 68. Life beneficiaries for whose sole benefitors, etc. How must be credited to entity income, and same could not be added to corpus. Sever v. Woodson, 205 Mo. 202, 104 SWV I. Where will gave wife a life estate, she was entitled to the income and to dispose of such income, and if she gave same to her daughter it could not be charged against daughter's interest in the estate left after wife's death. Gibbes v. Watson \[Miss.\] 45 S S. The fact that in pro-ceedings by a judgment creditor of the life tenant a portion of rents and profits which might have been appropriated in satisfaction of the judgment are directed to be paid by a receiver to the remaindermen will not relieve the latter from a contract obligation to turn them over to the life tenant. Ellis v. Cole, 188 N. Y. 395, 81 NE 230. Interest on mortgage which had been satisfied by proceeds of sale of a parcel as provided in contract between father and daughters. Id. 64. See, also, Emblements and Natural Products, 9 C. L. 1072. Civ. Code 1895, 8 392, relating to right of life tenant to emblements, is merely declaratory of common law. Story v. Butt. 2 Ga. App. 119, 58 SE 388. The legal representatives of a life tenant who appoints the fee by will are entitled to growing corps. Keays v. Bilm \[III.\] 84 NE 628. Exercise of power did not enlarge life estate. Id. Life tenant is not liable to remaindermen for crops used for his support and maintenance. Wilson v. Gordon \[S. C.\] 61 SE 85. Where, on death in August of life tenant of agricultural land a son took entire title and possession subject to charge of one-half its value in favor of a daughter, he was liable for interest on the daughter's share from beginning of next calendar year. Bowen v. True, 74 S. C. 486, 54 SE 1018. 65. Where grantee of land on which was an open coal mine agreed that grantors could remain on the premises during their natural lives, and they remained and m.med coal for 11 years, one claiming under grantee could not dispute grantors' life interest in the coal. Robb v. New York & Cleveland Gas Coal Co., 216 Pa. 418, 65 A 938. 66. McDonald v. Jarvis \[V. Va.\] 60 SE 930. That will directed that entire estate should be controlled and managed for use and sup- .

001. See, also, 146, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 211, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 2 tition of the life estate, but not of the interests of reversioners." Land in possession of a life tenant should not be sold and proceeds reinvested unless it is shown that minor remaindermen will be benefited thereby.13 Under a statute merely authorizing a sale of real estate for investment of the proceeds in other property, the court may not divide the proceeds between life tenant and remainderman and reinvest only the remainderman's portion.74 In the absence of a contrary understanding, the relation of life tenant and remainderman will continue as to new property bought with the proceeds of the old.75 Under statute, when land has been converted into cash by forced sale, a life tenant may be paid a gross sum as the value of his interest without the consent of the remaindermen.76

In the absence of statute,77 death of a life tenant terminates his lessee's right of possession,78 such right going to the reversioner subject to the lessee's right to reenter for the purpose of cultivating and harvesting growing crops.79 Where the life tenant dies during a term created by him, neither the remainderman nor the estate of the life tenant could recover unaccrued rents at common law, but in Ohio the rent will be apportioned between remaindermen and the estate of the life tenant according to equity.80 A life tenant who is also trustee with full power of disposition for purposes of income may make a lease of reasonable duration which will not expire upon his death though it occur before the last year of the term,81 and the rights of a transferee of the rents will be superior to those of the remaindermen even after death of the life tenant.82 Remaindermen are not entitled to possession until the death of the life tenant.83 The remedy of a life tenant for the recovery of possession from the remainderman is adequate at law.84

_Possession is not adverse to remaindermen_ See 8 C. L. 752 pending the life tenancy,88 and hence limitations will ordinarily not run against them until the death of the life tenant;89 but this rule does not apply under statutes authorizing suits by remaindermen to quiet title during the continuance of the particular estate.87

**S1, SS2.** Hines v. McCombs, 2 Ga. App. 675, 58 SE 114.

**S2.** Could not sue to recover property conder Civ. Code Prae, $492, subsec. 4. Lilly v. Clay, 31 KY. L. R. 317, 102 SWY 278.

**74.** Civ. Code Prae, $491. Lilly v. Clay, 31 Key. L. R. 317, 102 SWY 278.

**75.** Evidence held out to authorize court's reversal of referee's finding that father and son did not intend that new property purchased with proceeds of land of which father was life tenant should belong to son absolutely. Jenson V. Jenson \[Kan.\] 91 P 86, 76, Chancery act, Revision 1902, $60 (P. L. 531, 532), passed after accrued of husband's interest as remainderman, held not unconstitutional. Leach v. Leach \[N. J. Eq.\] 96 A 595.

**77.** By statute in some states a lessee of a life tenant is entitled to the land until the end of the year upon compliance with the contract with the tenant for life, and not-withstanding the latter dies during the year. Under Civ. Code 1895, $309, if undertaken compiles with contract with life tenant, he years had not elapsed since death of life tenant is not accountable to remainderman for any portion of year's rent, though life tenant dies before crops are sown. Story v. Butt, 2 Ga. App. 119, 68 SE 388.

**78.** By 79.\*\* Edghill v. Mankey \[Neb.\] 112 NWV

**76.** Nou attute being applicable. Capelle v. Mankey \[Neb.\] 112 NWV

**80.** No statute being applicable. Capelle v. Mankey \[Neb.\] 107 SWV

**710.** Had not run against remaindermen

**711.** Had not run against remaindermen * 10 Cur. Law. REAL PROPERTY SS 7. 1463

\_Improvements, taxes, incumbrances, etc.\_See * C. L. 1782--Improvements made by a life tenant inure to the benefit of the remaindermen.\* As a general rule a life tenant must stand claims for ordinary repairs, taxes, insurance and interest on incumbrances,\* but where by force of circumstances an investment is changed from personality to reality and yields no income for many years above what is necessary to preserve the fund for the remaindermen, the life tenant will not be required to stand such expense,\* and there should be an equitable apportionment between life tenants and remaindermen as to municipal assessments *1 and other governmental impacts of mutual benefit.* A statute providing for the forfeiture of a life tenant's estate to the remainderman on failures to pay taxes and redeem after a valid tax sale would seem to be ineffective in any case to vest title in the remainderman.\* A life tenant is not required to pay the principal of a mortgage.\* If he does so for his own protection he will be subrogated to the rights of the mortgage,\* and since in the making of interest payments he represents the entire estate,\* such payments operate as new admissions of indebtedness, postponing limitations of his suit against the remaindermen to foreclose.\*

- 11 Rights and remedies between third persons and present and future tenants.See
- C. L. 1782--While at common law a life tenant cannot maintain trover for conversion of trees \*8 nor trespass de bonis,
- both life tenant
- and remaindermen
- may sue third persons for injury to the inheritance. A remainderman has no present right to be injured by mere laches in one to assert courtesy against life tenants.\*

Under a deed signed by a life tenant and his heirs in remainder, all improvements during existence of life tenancy. Penn v. | keep a strict account thereof in order to Rhoades, 30 Ky. L. R. 997, 100 SWP 288; Meu-

charge them against the estate at the ex-

rin v. Kopplin \[Tex, Civ. App.\] 18 Tex. Ct.

Rep. 601, 100 SWP 984. Some courts hold that

229 Ill. 47, 82 NE 267.

a suit by a remainderman for conversion by

\*\*00. In re Menzle's Estate, 54 Misc. 188, 105

**13758** 925.

\*\*01. Brown v. Brown \[N. J. Eq.\] 65 A 739.

**02. Where board of health required fencing in of certain lots. Brown v. Brown \[N. J. Eq.\] 65 A 739.**

**03. Rev. St. Ohio, $ 2852. Anderson v.**

\*\*04. Messenger \[C. C. A.\] 168 F 250. At any rate,

Nat. Bank v. Pluger \[Neb.\] 110 NWP 704; Hobson v. Huxtable \[Neb.\] 113 NWP 658. In such case, limitations will commence to run at the time adverse claim attaches, First Nat. Bank v. Pluger \[Neb.\] 110 NWP 704; Hobson v. Huxtable \[Neb.\] 112 NWP 658. Rehearing denied. First Nat. Bank v. Pluger \[Neb.\] 111 NWP 361. 1152.

\*\*05. Vannata v. Carr, 229 Ill. 47, 82 NE 267; Gaulbaugh v, Rouae, 81 Ky. L. R. 1195, 104

\*\*06. V. Zimmerman Mfg. Co. v. Daf-

SWP 595. Where husband of life tenant borrowed money on note of himself, life tenant, and one of possible remaindermen, and improved property therewith, notes could not be paid out of proceeds of property on sale for reinvestment, though improvements enhanced value. Frederick v. Frederick's Adm'r, 31 Ky. L. R. 583, 102 SWP 858.

\*\*07. In re Menzle's Estate, 54 Misc. 188, 105

**08.** Must pay taxes while in possession and has no claim thereor, Gaulbaugh v, Rouse, 81 Ky. L. R. 1195, 104 SWP 959. Ordinary taxes and expenses of upkeep must be paid by the life tenant. Brown v. Brown \[N. J. Eq.\] 65 A 739. His duty to pay inter-

est on mortgages. Bonhoff v. Wiehorst, 108

**09.** Must pay taxes. In re Menzle's Estate, 54 Misc. 188, 105

**00.** Must pay taxes. In re Menzle's Estate, 54 Misc. 188, 105

**01.** Must pay taxes. In re Menzle's Estate, 54 Misc. 188, 105

**02.** Must pay taxes. In re Menzle's Estate, 54 Misc. 188, 105

**03.** Must pay taxes. In re Menzle's Estate, 54 Misc. 188, 105

**04.** Must pay taxes. In re Menzle's Estate, 54 Misc. 188, 105

**05.** Must pay 1164 REAL PROPERTY SS 8. 10 Cur. Law.

ments pass with the property conveyed.4 Where a widow's conveyance is in legal effect only a grant of her homesetead and dower rights, the fact that the grantees make improvements and do not have notice of the rights of the remaindermen cannot operate to defeat such rights.5 Infant contingent remaindermen conveying their interests are not bound to disaffirm on arriving at age pending the life tenancy.6 Children who are remaindermen may be concluded by a conveyance by order of court.4 A statute absolving a purchaser from a trustee from the duty of looking to the application of the proceeds applies where a life tenant is authorized to sell on condition that the proceeds be reinvested.7

SS 8. \_Proof of title to reality.\_8--A warranty deed without proof of possession or title in the grantor is not proof of title in the grantee,9 neither is a tax deed without proof of judgment or precept.10 However, a warranty deed with proof of continuous possession and payment of taxes for twelve years is sufficient evidence of title as against one asserting no title.11 By statute a certified copy of a will is prima facie evidence of title.114 Tax receipts are admissible to show that the party making the payments claimed the land.11 Title to land cannot be established by parol evidence.18

SS 9. \_Merger and abandonment.\_See * C. L. 1079--Merger is the annihilation of a lesser estate by union with a greater in the same person or right.14 A life estate may merge in the fee to the destruction of an intervening contingent remainder.14 A limited estate may be converted into a fee where absolute power of disposition is given,18 but statutes so providing do not apply where title is vested in a trustee and a subordinate power is given to the beneficiary,17 and a provision that a life tenant may convey the fee if a remainderman dies before maturity does not vest the fee in the life tenant on death of remainderman after maturity.18 Merger will not take place contrary to the intention of the parties,19 and this rule obtains both at law and in equity.20 Per contra, equity will not keep alive a mortgage acquired by the owner of the fee where to do so would give effect to a fraudulent act.21 Intention to prevent merger need not be proven by express agreement.22

Footnote 24: https://www * 10 Cur. Law. RECEIVERS SS 1. 1465

_Abandonment_ See $ C. L. 1977 must be established by legal and satisfactory evidence.23

Reasonable Doubet; Recaption; Recaptors; Recaptors; Recaptors, see latest topical index.

## 1. Nature, Grounds, and Subjects of Reclewership, 1465. Liability for Wronseful Appointment, 1468.

- 2. Appointment, Quantification, and Tenure or Property, 1474. Debts Created of Reclewers, 1468.

A. Proceedings for Appointment and Quantification, 1475. A Receiver's Qualifications, 1468.

B. Who May Be Appointed, 1471.

C. Tenure or Receiver, 1471.

- 3. Title and Rights in and Ponsession of the Property, 1471.

A. Title in General, 1471.

B. Rights as Between Receivers, Claims, or Licensors, 1472.

C. Possession and Restitution, 1473.

$ 4. Administration and Management of the Property, 1473.

Rules peculiar to receivers of foreign 24 or domestic 28 corporations and to those appointed in mortgage foreclosure 28 or supplementary proceedings 27 are treated elsewhere.

Nature, grounds, and subjects of receivers, See $ C. L. 1880. The word "receiver" is defined by statute in some states.28 Receivership proceedings being ancillary, appointment will not ordinarily be granted where that is the ultimate relief sought.29 The purpose of a receivers is to preserve the property pendente lite until the final disposal of all questions involved in the action,30 and it will not be allowed in the absence of reasonable probability that the party seeking it is entitled to the ultimate relief sought.31 The appointment of a receiver rests in discretion 32

- 29. Received where the only valid ground given was insolvency and the proceeding was not ancillary to another action. Hobson v. Pacific States Mercantile Co., 5 Cal. App. 94, 89 P 866. Receivership held not to be sole object of the suit, but to be to some extent ancillary to a decree for an accounting and the ascertainment of the complainants share of rents wrongly collected and appropriated by his cotemants. Bilder v.

which will not be controlled by mandamus,"" nor will it be disturbed on appeal unless clearly abused.34 The remedy lies in the extraordinary power of chanery 35 and will not be exercised if any other remedy is adequate 36 or if the necessity is not imperative 37 or the inconveniences attending such appointment would be very great." Like other equitable remedies it must be sought with diligence.39 A receiver will ordinarily be appointed only on behalf of one having a property right 40 or lien,41 or entitled to satisfy his claim from a particular fund.42 The remedy is most frequently granted in case of insolvency 43 or to preserve rights in property in danger of loss from waste or removal.44 Appointment is usually authorized by statute in connec tion with the dissolution of firms or corporations; " such receivers being more fully treated in other topics." The propriety of appointing a receiver cannot be collaterally questioned."

of wife, where part had been removed from \[Ga.\] 60 SE 869. Receiver should not be the state and the rest was about to be disposed of, held proper under Texas statute \[Ga.\] 60 SE 869. Receiver should not be applied to take the assets out of the hands of, held proper under Texas statute \[Ga.\] 60 SE 869. Received should not be applied to take the assets out of the hands of, held proper under Texas statute \[Ga.\] 60 SE 869, authorizing the appointment of a receiver in \[Ga.\] 61 case of manifest danger of loss or de-an action between joint owners where there is danger of removal. Merrell v. Moore \[Mc.\] 62 Icar. Civ. App.\] 104 SW 514. Receiver appeared where there was a contest over the estate of a decedent, the property was in danger of loss owing to tax sales and threatened foreclosure, with no one to protect it. McCarter v. Clavin \[N. J. Eq. 66 A 589. Appointment held proper where the defendant had wrongfully delayed the lawful sale of land 7 years and the land had so dimin-ished in value that there was danger of loss to the execution creditor. Smith v. Zachry, 106 NYS 639.

128 Ga. 290, 57 SE 513. Appointment of receiver by the judge in vacation held warranted. McKee v. Murphy \[Lov1\] 118 NW 499. As a general rule, where a mortgage is in peaceable possession, a receiver will not be appointed unless the mortgage is irrelevant to have authority to appoint re-profits will be lost, or that the mortgage is committing waste and materially injuring the property. Harding v. Garber \[OKL.\] 83 P 538. Court found that there was no operation is dissolved or is insolvent or in actual wrong, injustice or injury in the management of the business and refused to appoint a receiver. Green v. Felton \[Ind. App.\] 84 NE 166. Receiver for a corporation at the instance of a stockholder refused where it was not shown that the corporation and its officers are insolvent, where no rights of creditors are involved or any danger of removal or loss. Hastings v. Tousey, 121 App.\] 106 SW 474. Under Codec Civ. Proc. \[G.\] 815, 106 NYS 639. Civ. Code Prac. \[G.\] 829, providing that the court "may" appoint a receiver where there is danger of loss, re-moval or injury, construed, and held that "may" is not equivalent to "must" and that an appointment was Improper where remedies of claim and delivery and special at-tachment were open to "le plaintiff. McCure v. McGee \[Ky.\] 108 SW 341. Appointment held proper where one partner fraud-unently consigned to defrained the other of his interest in certain land and in the partner-ship. Whipple v. Lee, 46 Vash. 266, 89 P 712. Mandate by superior to inferior court directing an order which will not disturb the possession of a mortgage held not to de-in case of manifest danger of interest. Harding v. Garber \[OKL.\] 93 P 639. A corporation was organized by the heris and legates of an estate to hid at executors' sale such of the property as might otherwise be sold at a sacrifice. Subsequently certain of the heris brought action against the executors and the corporation for accounting, cancellation of sales, appointment of a re-ecured, and other relief. The court enclined sale of any of the real estate until final decree and required defendants to give bond, but refused to appoint a receiver. The executors were men of ample means to secure all claims of the estate. Held that the court did not abuse its discretion in refusing re-ecured for the corporation. West v. Mercer
\_Liability for wrongful appointment.\_See * C. L. 1683--One who procures the appointment of a receiver is liable for the legitimate expenses of the receivers if the appointment is wrongful.48

\_SS 2. Appointment, qualification and tenure of receivers. A. Proceedings for appointment and qualifications.\_See * C. L. 1683--Except in cases of emergency, notice of the application must be given.49 The failure to give notice may be cured.50 In Illinois the giving of notice by the auditor to a bank whose capital stock has become impaired is a condition precedent to an application for appointment of a receiver to wind up its affairs.51 The Federal statute providing for appeals from interlocutory orders appointing receivers affords sufficient relief to defendant where receivers are improperly appointed without notice,52 except in a case of collusion between the parties.58 Where, upon the application of foreign plaintiffs, the Federal court has

reciver by the comptroller of the currency \[St. 1901\], requires sufficient cause to be cannot be attacked either collaterally or, dhiron by a deflavit. Continental Clay & directly by a deflor of the bank. Lyons v. Min. Co. v. Bryson, 168 Ind. 485, 81 NB8 New York Bank of Discount, 154 F 39L 210; Henderson v. Reynolds, 168 Ind. 522, 81 Where the averments in the petition were of such a character as to authorize the apptentment and a demurrer thereto was not lief of the affant, or "to the best of his well taken, it was held that the evidence being conflicting the discretion of the court would not be interfered with. Burgess v. Glimpson Grocery Co., 128 Ga. 423, 57 SE 717.

48. Where a temporary receiver was impr properly appointed ex parte, the plaintiffs were taxed with all the costs of every nature and kind from the date of appointment to the time when the defendant acquiesed in a decree making the appointment permanent. Huff v. Bidwell \[C. C. A.\] 151 F 563.

01. The power should be exercised only in a clear case of imperions necessity when the rights of the plaintiff and the relief to which he shows himself entitled can be secured and protected in no other way, Huff v. Bidwell \[C. C. A.\] 151 F 563. No such necessity shown in bill or record. Id. Appointment will not be made without notice save in the case of irreparable injury. Robson v. Pacific States Mercantile Co., 5 Cal. App. 94, 89 P 866. Compilant held insufficient to justify an appointment without notice in that it did not show that irreparable injury or any loss or destruction of propo-ery would have resulted if notice had been given. Continental Clay & Min. Co. v. Bryson, 168 Ind. 485, 81 NE 210. City. Code Ga. 1895, 81 4904, providing that under extraordinary circumstances a receiver may be appointed without notice, is confirmatory merely of the principle of equity procedure. Mann v. Gaddie \[C. C. A.\] 168 F 42. Appointment without notice held improper where it appeared that the defendant was solvent and willing to give a bond to secure complainant's interests. Id. The rule applies to a receivers suit between parties. Id. An appointment without notice may be made where the defendant is beyond the jurisdiction of the court or cannot be found (Id.; Henderson v. Reynolds, 168 Ind. 522, 81 NE 494), or where interference, before illinois the giving of notice by the auditor to a bank whose capital stock has become impaired is a condition precedent to an application for appointment of a receiver to wind up its affairs.51 The Federal statute providing for appeals from interlocutory orders appointing receivers affords sufficient relief to defendant where receivers are improperly appointed without notice,52 except in a case of collusion between the parties.58 Where, upon the application of foreign plaintiffs, the Federal court has appointed a receiver for a domestic corporation operating properties under lease from another domestic corporation, it is without authority to extend the receivership to include the lessor corporation upon the application of such corporation to be allowed to intervene as defendant or upon the application of a third domestic corporation when there is no diversity of citizenship or cause of action under Federal laws and the action is in no sense ancillary and relief could be granted in the state courts.\[54\] A Federal court has jurisdiction of a proceeding for the appointment of a receiver based on diverse citizenship, although the defendant admits the allegations of the bill and unites in the application for receivers.\[58\] Where a state court and a Federal court \[56\] or co-ordinate state courts may each take jurisdiction to appoint a receiver, the court which first acquires jurisdiction holds it to the exclusion of the other until its duty is fully performed,\[57\] which is retained by an appellate court during appeal,\[58\] and the actual seizure of the property by the receiver is not necessary to give the exclusive jurisdiction.\[69\] The remedy for the unlawful interference with such exclusive jurisdiction, by co-ordinate court, is by a writ of prohibition.\[60\] A foreign court having jurisdiction of the parties and the subject-matter, and having in the exercise of its discretion appointed a receiver, his appointment will not be questioned in an action in another court.\[61\] The question of venue is governed by statute,\[62\] and rights as to venue may be waived.\[63\] Ordinarily a receiver will not be appointed where the averments of the bill are denied.\[64\] Where an ex parte application is made, the usual mode of procedure is to set a time for the hearing of the application and meantime, if the necessities of the case are shown to require it, to appoint a temporary receiver.\[65\] An order vacating an ex parte appointment is not appealable,\[60\] and in Indiana no

Reisenberg, 28 S, Ct. 219. Evidence held not 61. Jenkins v. Purcell, 29 App. D. C. 209. to show collusion. Id. 62. A suit to have the property of a railroad lying in different Federal districts in the same state is one of local character, and under Rev. St. 742 (U. S. Comp. St. 1901. 588) may be brought in any of such districts. Horn v. Pere Marquette R. Co., 151 F 626.

63. Where, in a proceeding for the appointment of a receiver in a county other than that in which the corporation had its trially to interfere with the jurisdiction of the state court, the decrees being equally broad. Vaters-Pierce Oil Co. v. State \[Tex. \[Civ. App.\] 18 Tex. Ct. Rep. 840, 103 SV 836. 57. State v. Reynolds \[Mo.\] 107 SV 847. If the court has ju. Where such a court takes jurisdiction, there remains nothing to which the jurisdiction of another court can attach. Id. 65. Although because of the supersedeas bond the receiver was unable to take posseses. It is waived by appearance, answer to the sign, it was held that by reason of his qual. merrits and jolander in the prayer for the iras so far subject to the juris.

diction of the appellate court, which held the trial court's jurisdiction of the res, that he could be directed by it to appear before the interfering Federal court and urge and insist upon the jurisdiction of the state court. Vaters-Pierce Oil Co. v. State \[Tex. \[Civ. App.\] 18 Tex. Ct. Rep. 840, 103 SV 836. 59. Filing the petition, issuance of notice, its service and the formal order appointing the receiver and granting an injunction, held to be sufficient. State of Texas v. Palmer \[C. C. A.\] 18 FS 705. The fact that the Federal receiver was first appointed and in possession held immaterial. Vaters-Pierce Oil Co. v. State \[Tex. \[Civ. App.\] 18 Tex. Ct. Rep. 840, 103 SV 836.

right of appeal is given from an order overruling a motion to vacate the appointment of a receiver.67 If on appeal from an order appointing a receiver it appears that there is no equity in the bill 68 or that the court has no jurisdiction, the appellate court should make final disposition of the case.69 An appeal from an order appointing a receiver merely suspends the functions, but does not vacate the appointment of the receiver.70 After an appeal from an interlocutory order appointing a receiver has been perfected, filing a motion in the lower court to set aside the interlocutory decree appealed from is not a waiver of the appellant's right further to prosecute the appeal.71 On an appeal from an interlocutory decree appointing a receiver, the question of the consolidation of two suits will not be considered.72 Simply to file affidavits used on the application for a receiver with the clerk is not the proper manner to bring them before the appellate court.73 The question whether a receiver can be reinstated after an order discharging him should be considered in an appeal and not in a writ of certiorari and prohibition.74 An order of appointment may be conditioned on the filing of the bill and answer.75 In a supplemental proceeding for the appointment of a receiver, the court may take judicial notice of the facts established in the main case.76 An application for the appointment of a receiver must be predicated upon pleading in the nature of a petition or bill.77 The court appointing a receiver has power to accept his resignation 78 or remove him and appoint a

p. 28, c. 31, authorizing an appeal from an order appointing or removing receiver, since an ex parte appointment is only temporarily valid as an emergency order until notice can be given, an order vacating it is not appealable, as the court could not restore or continue the emergency order. Libert v. Unfried \[WHash.\] 91 P 774.

67. Where exception to the overruling is made, the appeal is not from the ruling on the motion, but from the order appointing the receiver. Continental Clay & Min. Co. v. Bryson. 188 Ind. 485, 81 NE 210.

68, 69. Mann v. Gaddie \[C. C. A.\] 158 P 42.

70. Where, after the appointment of a receiver by a state court, the defenant app-pealed as provided by Rev. St. Tex. 1895, art. 1404, and filed a supersedeas bond, call=d for by art, 1838, it was held that the jurisdiction of the state court was not lost or abandoned by the appeal and supersedeas. State of Texas v. Palmer \[C. C. A.\] 158 F 705. An appeal with supersedeas merely suspends the power of the lower court to make any order tending toward an execution or enforcement of the order appelated from, but does not interfere with the power of the court to give orders to its receivers looking toward the preservation of the fund. McKinnon-Young Co. v. Stockton, 53 F14, 734, 44 S 237. The legal custody of the property is not lost by the granting of an appeal from the appointment. State v. Reynola \[Mo.\] 107 SW 487.

01. On an appeal from an interlocutory decree appointing a receiver, no question will be considered except such as immediately led to the appointment, leaving all other matters in the court below. Continental Clay & Min. Co. v. Bryson, 168 Ind. 485, 81 NE 210.

01. Rlpy v. Redwater Lumber Co. \[Tex. Civ. App.\] 106 SWV 474.

01. They should be either briefed and 1a-cluded in the bill of exceptions as exhibits 10 Cur. Law. RECEIVERS SS 3A. 1471 successor." Where joint receivers become hostile, they should be removed." A receivers may be extended to an intervening defendant." In some states, in certain cases, the court may appoint a receiver of its own motion independent of any request." The appointment of receivers by judges in vacation," or in chambers, is governed by statute."

_Bonds._\[85\] & C. L. 1884--Where a receiver is appointed, the court should require a bond to be filed."

(SS 2) _B. Who may be appointed._\[85\] & C. L. 1884--As a rule the receiver should be a person wholly impartial and indifferent towards all parties interested in the fund or property." Whether a party should be appointed receiver, however, rests in the discretion of the court."

(SS 2) _C. Tenure of receiver._\[85\] & C. L. 1888 SS 3. _Tille and rights in and possession of the property. A. Title in general."_

The effect of the appointment of a receiver is not to Gust any party of his right to the property but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it," whose rights and interests are paramount to those of the receiver," nor does the appointment extinguish titles or rights." The qualified title

79. It is a discretionary matter. State v. concern who by their bad management con-Reynolds \[Mo.\] '107 SWP 487. tributed to its ill success should not be appointed. Id.

01. Where joint receivers could not agree upon their counsel, it was held that they be appointed receiver of the trust estate, and failing that should have been removed. This rule may be departed from if it appears People v. Brooklyn Bk., 109 NYS 634. that such appointment would be for the 81. Such an order is not of a jurisdiction. In re Rela-Northern Trust Co., 280 Ill. 334, 82 NEB 837. embere, 28 S. Ct. 219. Extension to a second street way so tied up with the first that that the current version was necessary, upheld. Id.

receiver of an equitable interest of another wherein, especially where the owner's inter-hands of a receiver, it was held proper to alters do not conflict with the interests of the key to intervene and extend the creditors of the other. Jenkins v. Purcell, receivers to it. Pennsylvania Steel Co., 28 App. D. C. 29.

88. See 8 C. L. 1684. See, also, Abatement and Revival, 9 C. L. 1,

forfeiting corporate rights, the court may, in the exercise of its judicial discretion, ap-point a receiver without a request therefore.

able property into cash, in order that the Waters-Pierce Oil Co. v. State \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 840, 103 SWP 826.

83. Iowa Code. 8382, expressively author- \[Ismail: 11\]. In a petition for a receiver of a \[Iowa\] 113 NWP 49.

01. By Rev. St. 8 & 838 (U. S. Cohn. St. 1901, p. 619), and Rule 3 of supreme court equity rules, in a pending case, Federal assets for the benefit of those to whom they judges may appoint receivers in chambers.

Horn v. Pere Marquette R. Co., 161 F 626,

19 Tex. Ct. Rep. 838, 101 SWP 849. The ef-A circuit judge may do chamber business feet upon the creditor of the taking over of this nature at any place within his circuit, regardless of the district where the debtor is to substitute for a right of action, case is pending (Id.), or on a bill and sworn in personasm, therefore existing, a right answer joining in the application (Id.).

85. An ex parte appointment, which in sets, a right to receive such part thereof substance directs the receiver to seize and as its total proved demand bears to the to-retain the property without giving bond, is void. Libert v. Unified \[Iowah.\] 91 P 774.

01. Generally speaking, the officers and of its debt. In re Benem't Sona, 160 Micha, directors of the corporation involved in in- \[S\] 530, 414 NWP 827.

01. If the receivers cannot subordinate Copy v. Title Guarantee & Trust Co., 157 F their views to such paramount rights, the court should change the receivers. People report and vice-president, but had given his \[Bk.\] 109 NYS 634.

01. The possession of the receiver is but moved. Id. While this rule is not inflexit, the possession of those having a right to the property, and does not defeat any title of a receiver "2" and 'his right to possession relates back to the time of his appointment,"33 although proceedings may not be perfected until a later date."4 A receiver has no power to take possession of property outside of the jurisdiction in which he is appointed." The appointment of a receiver is an equitable attachment of the defendant's property."4 A receiver by taking possession of demised property does not become the assignee for the term, and is entitled to a reasonable time in which to ascertain the value of the lease and determine whether or not he will accept it."4

(SS 3) _B. Rights as between receivers, claimants, or licensors._"8 s C. L. 1888_As before stated, the appointment of a receiver in no way affects the title to the property,"8 all interests and valid liens thereon being preserved,"8 as of the date of the appointment." While the property is in the custody of the court by the receiver, a lien cannot be perfected without permission of the court," the proper procedure being a petition in intervention setting up the lien." A license to use lands is terminated by the appointment of a receiver."4 Actual manual seizure by the receiver is not essential to prevent the acquisition of liens after the appointments." An assignment by a corporation to its receiver has no extraterriitorial force."4 A receiver appointed in a 10 Cur. Law. RECEIVERS SS 4A. 1473

mortgage foreclosure is entitled to hold the property as against a trustee in bankruptcy who is only entitled to the excess value above the mortgage debt.7

(SS 3) _C. Possession and restitution.Sec * C. L. 1888--A receiver is an officer of the court appointing him,8 his possession being deemed that of the court.9 Where property or its proceeds in the possession of a receiver is claimed by a third person, a petition should be made to the court appointing for an order for its restitution,10 but interest will not necessarily be allowed.11_

Footnote 10: Where necessary and sufficient conditions are imposed on the court, and the court is not allowed.

SS 4. \_Administration and management of the property. A. Authority and powers in general.Sec * C L. 1880--A receiver represents both the insolvent 11 and the creditors.13 A receiver is an officer or agent of the court 14 and has only such authority or powers as are conferred on him by said court.15 Where legal services are required, a receiver may retain counsel without previous authority from the court.16

Footnote 10: Our Law.

In New Jersey, by statute, a receiver of a corporation has power to summon and examine persons as to the corporation's affairs,\[17\] but this power is no broader than the analogous power vested in the courts.\[18\] In some Federal circuits, it is not the practice for receivers to concern themselves for plans for reorganization.\[19\] A corporation and its receiver cannot act jointly in the operation of corporate property, and hence cannot be jointly guilty of tort in such operation.\[20\]

(SS 4) \_B. Payment of claims against receiver or property.\_See 8 C. L. 1887--A receiver has no discretion, generally speaking, as to the application of funds which are in his hands by virtue of the receivership. He holds them strictly subject to the order of the court to be disposed of as the court may direct.\[21\] It is for the court appointing and that court alone to determine who are creditors and what is due to them respectively.\[22\] Whether a debt sought to be proved is or is not barred by limitation depends upon its status at the date of the decree sequestrating the assets.\[28\] The right of a receiver to compromise claims and suits with the sanction of the court is generally recognized.\[24\] A secured creditor is entitled to receive dividends on his entire demand as proved until the dividends, together with collateral collected, have extinguished the entire debt, principal and interest.\[25\] As a rule a receivership suspends the running of interest even as to secured claims.\[26\] Claims for injuries received in the operation of a road before a receivership are claims against the property and rank with claims of general creditors.\[27\] It is within the discretion of the court to refuse to allow a third person to intervene and take testimony after it has acted on a claim.\[28\] A claim for improvements to property, made by a claimant thereto without 17. P. L. 1886, p. 200, provides for this and also that if the person summoned re- the constitution of the United States. Id. fuses to be sworn the court of chasery may, on the receiver's report, commit such new General v. Supreme Council A, L. H. \[Mass.\] 81 NE 966. v. MacAfee Co. \[N. J. Eq.1 65 A 879.

**18.** Where the service was made by the receiver on a person without the state, the court had no jurisdiction to commit the Maryland Trust Co. \[LM.\] 64 A 836. Where person for failure to appear. Fidelity & Casualty Co. v. MacAfee Co. \[N. J. Eq.1 65 A 879.

**19.** Circuit S. D. of New York. Their sole function is to hold the property intact, operate it as efficiently as possible, ascertain the liabilities, marshal the assets, and eventually sell it to the best advantage and apply the proceeds rationally to the payment of the liabilities. Pennsylvania Steel Co. v. New York City R. Co., 187 F 440.

**20.** Eckels v. Farley, 131 Ill. App. 557

**21.** Though money in the hands of a re-colev may be applicable to the payment of a judgment against him, yet the order of the court protects him for expenditures made in reliance upon it during Its life, though it may be later reversed. Coe v. Patterson, 122 App. Div. 76, 106 NYS 659.

**22.** While judgments against the corporation in courts of another state without order of the court appending cannot be proved against the funds in the hands of the court appending, through its receiver (Attornay General v. Supreme Council A. L. H. \[Mass.\] 81 NE 966), yet the claim which is the basis of the judgment is not so merged in the Judgment that it can not be proved in the court appending (Id.), and so much of the claim as appears to that court to be due may be proved (Id.). If the judgments had been obtained before the date of sequestration of the funds by the court, they would 10 Cur. Law. RECEIVERS SS 4B.

an order of court, will not be allowed.29 In a receivership for the settlement of a partnership, claims of third parties should be adjudicated and settled before the discharge of the receiver.80 Money in the hands of a receiver which by decree is payable to a plaintiff will not be impounded upon the application of a general creditor of the plaintiff, without judgment or other lien or interest in the fund, until such creditor can institute suit for judgment.81

Footnote 81: The author is grateful to the anonymous referee for the support of the author.

\_Debits created by receiver and expenses of administration._See S. C. L. 1688_--Taxes and levies due the state and its municipalities have priority over claims of a receiver and creditors.82 Courts of equity have the power to appoint receivers and direct them to care for, protect, and preserve the property and decree the charges and expenses therefor as prior or preferred liens,83 but except in the case of a public service corporation, have no authority to direct the receiver to carry on the business of the insolvent and charge the expenses of the business and operations as a prior or preferred lien on the property over that of prior existing liens thereon.84 Legitimate expenses of a receivership should be taxed as costs.85 A receiver should be allowed all disbursements properly made.86 A receiver wrongfully appointed cannot be allowed to reimburse himself and pay expenses of receivership out of the funds improperly in his possession.87 While the cause is still pending, an order directing a receiver to reimburse himself and pay expenses of receivership out of funds in his possession is not final and appealable.88 The expenses of a receiver for the settlement of a partnership should be borne by both parties equally.88 The complainant is not personally liable for the costs and expenses of a receivership where the assets are insufficient therefor,80 but may be held for the costs and expenses of a receivership where the appointment was wrongful,81 and where he is priy to a wrongful and illeg

#### 1476 Receivers $ 4B.

gal act by receiver, committed for his benefit and resulting in losses, he is liable for such losses,\[42\] but where the appointment was legal and warranted, he cannot, in the absence of fraud or collusion, be held for indebtedness created by the receiver in the management of the property.\[48\] An action against a receiver in his official capacity for misrepresentation of a sale merely establishes the amount of the claim against him as receiver,\[44\] and ordinarily such a claim is not entitled to preference over other creditors in the same class.\[45\]

_A receiver's certificate_ See $ C. L. 1890 is not payable by the complainant personally where the assets of the receivers are insufficient.\[45\] The holder of receiver's certificates need not, upon foreclosure, show the application of the proceeds thereof.\[47\] In the case of receivers of public and quasi public corporations, the court may authorize the issuance of receiver's certificates for carrying on the business,\[48\] but in the case of private corporations that power is restricted to the issuance of certificates for expenses arising out of the administration and preservation of the property only,\[49\] except by consent of the lienholders.\[50\] The purchaser of corporate property at mortgage foreclosure subject to claims, if any, on certificates issued by a receiver of the corporation in sequestration proceedings, has the same defenses against the certificates, as did the mortgages, and no more.\[51\]

_Counsel fees_ See $ C. L. 1890 constitute part of the costs \[52\] and should be allowed out of the assets in the receiver's hands \[53\] before other demands.\[54\] The question of their allowance is in the first instance, solely for the court which appointed the receiver,\[55\] and in the absence of statute, the question of amount is within the jurisdiction.

Liable for procuring contract whereby made parties to the application for the 19-receiver turned management of property over to third party, resulting in loss, McClean v. Gillespie, 180 Ill. App. 356.

43, McClean v. Gillespie, 180 Ill. App. 356.

44, Gee v. Patterson, 122 App. Div. 76, 106 XYS 659.

46. Atlantic Trust Co. v. Chapman, 28 S.

01. Rochester Trust & Safe Deposit Co. v. Oneonta, etc., R. Co., 122 App. Div. 192, 107 NYS 237. When the mortgages have received the proceeds of mortgage sale without diminution, they cannot be heard to object to the allowance of receiver's receipts which were prior claims to the mortgage.

01. International Trust Co. v. Decker Bros. \[C. C. A.\] 152 F 78. While the Hepburn Act of June 29, 1906. (24 Stat, 584, a 1581), forbidding railroad companies to transport from state to state any commodity received or produced by it or in which it has an interest, applies to a receiver, yet it is no ground for forbidding the receiver to issue certificates and expend money to open and develop a new mime and extend the railroad where it does not appear that the receiver of the railroad which owned all the stock in a mime could not market the obal within the state or sell the stock. Central Trust Co. v. Pittsburg, etc., R. Co., 52 Misc.

195, 101 NYS 837. Receiver's receipts may issue under some contingencies for additional construction and equipment when necessary for the protection and preservation of the property only,\[49\]

1960 SE $ 5.3 Berry v. Rood \[Mo.\] 108 SWV 22. They should be allowed out of the general assets. In re Bk. of Newcastle \[Vyvo.\] 89 P 1035.

54. They are preferred on the theory that the services rendered are for the benefit of creditors or those otherwise interested in the property, and therefore payment for the same is a proper charge on their interest.

Berry v. Rood \[Mo.\] 108 SWV 22, Counsol fees are part of the receivership expenses and are to be paid prior to other liens on the property. Hulings v. Jones \[Vv. Va.\]

60 SE $74.

55. Not the court where a suit to enforce stockholders' liability is pending (Berry v. Rood \[Mo.\] 108 SWV 22), although after al10 Cur. Law. RECEIVERS SS 4C.

tion of that court. \[86\] The court may, in its discretion, grant additional allowances for extraordinary services of counsel made necessary in the progress of the receiver-ship. \[87\]

(SS 4) _C. Sales by receivers._ See * C. L. 1890--The power to order a sale rests in the sound discretion of the court. \[58\] The purchaser at a receiver's sale cannot demand damages for breach of contract where there is a defect in the title, but must rely on the court to do equity. \[50\] Without the consent of the parties to the suit or

lowance has been made by the court ap-
ties muts adjudicate on its terms and in pointing, the receiver may ask the court in

case of breach award damages (Wampler the other case for a judgement against the

v, Shtpley, 3 Blanl \[Md.\] 182), is perhaps stockholders to cover said allowances (Id.).

not an insuperable objection to the theory

A receiver is entitled to be allowed for fees of foreign counsel. Strauss v. Casey Mach.

is of course bound to determine in accord-
& Supply Co. \[N. J. Eq. 66 A 558.

sce. It should be judicially determined and

juechaser might be powerless to compel allowed upon a basis of what is reasonable

performance by the court, for this would

and commensurate with services rendered

simply be due to the failure of the court

and to be rendered. In re BK. of Newcastle

to exercise its ordinary judicial functions,

\[Vw.q.\] 89 P 1035.

and not to the lack of any binding quality

57. While the allowance of compensation

in the contract under the rules of law,

to receivers and their attorneys, fixed by

the act of appointment, may generally be

unbold a contract where one of the parties

considered sufficient fully to compensate

them, it is with the discretion of the court

extend to the case where such party is a

to make additional allowances for extraordinary services. State v. Germania BK.

contract would exist, nevertheless, only in
\[Minn.\] 114 NPV 651.

sce. Direction held to be abused because

scope of ordinary contracts.

of the questionable irregularity in the ap-

pointment of the receiver and in allowing

awarded as if a contract actually existed

him to issue certificates for carrying on the

\[People, V open Board, etc., Co., 92 N. X.

business which supplanted mortage liens

\[85\]; Drake, V. Goodridge, & Blatch, 531), the

without holders' consent and because of the

existence of alleged adverse claims and

cisions are inconsistent with the contract

determined priorities. International Trust

conception. Sales are set aside at the re-

Co. v. Decker Bros. \[C. C. A.\] 152 F 78.

quest of the purchaser where the latter

58. It is within the discretion of the court

would have no right to demand relief under

to allow compensation (People v. New York

the principles of equity as applied to ordi-

Hdg. Loan Banking Co., 189 N. Y. 223, 82 N 184) and to

381; Clayton v. Glover, 3 Jones Eq. 371;

382; Clayton v. Glover, 3 Jones Eq. 371;

Code Civ. Proc. & 2340 (Id.), and also to

disallow interest and costs of examining

it is generally held that mere inadequacy

tle, etc. (Id.), and the matter being discrete

of price is not a sufficient ground for set-

tionary cannot be reviewed by the 'apellate court (Id.).

496), yet if any other ground appear which

NOTE. Nature of receivers' contracts of

make such action equitable, this ground

sale The English and American courts

is sized upon, and sales are set aside, after

agree that a receiver in making contracts

cannon be considered as the agent of the

dependent. Burt v. Bull, L. R. J. Q. B. 276;

Riggs v. Pursell, 66 N. Y. 193. The English

courts hold further that "It is of course

Mound City Life Ins. Co. v. Hamilton, 3

impossible to suppose that the relation of

principal and agent exists between" the re-

every and the court, and that it must

therefore be the intention that the receiver

tracts on his own responsibility, "because

otherwise no one would be responsible for

his acts." Burt v. Bull, L. R. I. Q. B. 276.

The American courts almost uniformly

state that a receiver contracts as agent of

the court (Lelight, etc., Co. v. Central R.

Co., 35 N. J. Eq. 426; People v. Open Board,

etc., Co., 92 N. Y. 38), and that a contract

is entered into between the court and the

purchaser. If the court be conceived of as

an entity capable of holding property in

trust (Laws N. Y. 1893, e. 701, 8 1; McCos-

ker v. Brady, 1 Barb. Ch. \[N. Y.\] 329, 343),

no reason appears why it may not have the

capacity to contract. That one of the par statutory provision therefor, the court has no jurisdiction to make an order of sale outside the county in which the action is pending.60 A deed of a receiver is not admissible in evidence without proof of his authority to execute it.61 While a receiver is prohibited from purchasing any of the property himself,62 yet a sale in which the receiver is interested is not void per se,63 but voidable merely at the election of the beneficiary.64 A deposit at a receiver's sale which the court declares forfeited becomes part of the receivers assets.66 Upon a motion to set aside a receiver's sale, the court may, in the absence of any statute, in a proper case, direct a reference or jury trial,66 or deny the motion with leave to bring an independent suit in equity.67 The expenses of a receiver's sale, which is, in fact, a conversion of a third party's property, cannot be charged against the third party.68

(SS 4) \_D. Actions by and against receivers.\_See S. C. L. 1691--The court which appoints a receiver holds and administers the estate through the receiver as its officer and must decide whether it will determine for itself all claims or allow them to be litigated in other courts.69 Generally, where it is desired that a receiver shall bring suit, application is made to the court of his appointment setting out the grounds for suit, and upon proper showing the court passes an order giving direction to the receiver.70 Where a receiver is made a party to an action by leave of court, he is in the 62. On the ground of public policy Jackson or, First State Bk, \[S- D.\] 113 NW 876, 63. Jackson v. First State Bk, \[S. D.\] 113 Y. 199; Allen v. East, 4. Baxt. \[Tenn.\] 308), NW 876.

which acts on general equitable principles

64. Under Rev. Civ. Code, $ 1619, by which is beneficiary, having capacity to contract, 78 N. Y. 887; Strong v. Caton, 1 Wits, 47.

with full knowledge of the motives of his trustee and of all the facts, may allow the York Building-Loan Banking Co., 18 N. Y.

later to take part in a transaction in which he has an interest hostile to the beneficiary, thus holding (People v. Open Board, etc., Co., 92 N. Y. 98), illustrates this theory. A

of a bank allowed the assets to be purchased asked to be relieved from his

chased by a bank in which the receiver was purchase because of defect of title. The court set aside the sale and ordered the

sale would not be vacated because of the respayment of the deposit, but refused inter-

ecelver's interest. Jackson v. First State Bk, \[S. D.\] 113 NW 876.

est thereon and costs of examination of

65. Bladder failed to comply with his bid

purenser cannot demand damages as for breach of a contract made by the court

v. Patterson, 121 App. Dlv. 76, 106 NYS 659.

through its officer or agent, but has to rely

on the court to do equity under the cir-

comstances." Therefore his claim for com-

pensation "is founded upon equity and not

upon the breach of contract."--From 8 Co-

lumbia L. R. 46.

60. The consent of the parties should ap-

per as of record. Atlantic Nat. Bk. v. Peregoy-Jenkins Co. \[N. C.\] 61 SE 68, Motion and order of sale made without notice

and outside of county where case pending

held void. Id. Such a motion is one in the

cause, as distinguished from a motion for

anclillary remedy, which may be made by

the judge anywhere in the district. Id.

61. The bare recitals in the deed are in-

sufficient to prove his appointment and authority. Hagan v. Holderby \[V. Va.\] 57 SE 289. Enough of the record of the court

appointing must be introduced to show that

the court did authorize the conveyance of

the property in question, that it had juris-

diction of the person whose property is or-

dered to be conveyed, and jurisdiction of

the subject-matter (Id.), and also that the

receiver qualified by giving bond, a certifi-

cate of the clerk of court to the fact of

such qualification being insufficient (Id.). In this direction enter an order nuno pro 10 Cur. Law. Receivers $ 4D. 1479 same position as any other litigant." In the absence of some conveyance or statute vesting the property of the debtor in the receiver, he cannot sue in courts of a foreign jurisdiction upon the order of the court appointing him to recover property of the debtor." The right to object to the maintenance of an action by a foreign receiver may be lost by estoppel." In an action by a receiver to recover property of the debtor, the complaint should allege with sufficient clearness that the property in suit was included in the order of appointment." A receiver may sue stockholders on their statutory liability in a forum other than that in which he is appointed if he is authorized so to do by statute," or where he is appointed as part of a procedure to enforce the liabilities of stockholders," but an order in receivership proceedings will not bind stockholders not served with process or appearing unless the corporation can be considered as representing them." The necessity for and the amount of an assessment on stockholders levied by the court after the appointment cannot be attacked in a collateral proceeding." The statute of limitations does not begin to run

tune submitting the question so litigated to court did not deny him the privileges of a the court where the action was brought and allowing the judgments to be proved, court will not pass on the question of his Attorney General A. Supreme Council A. L. right to sue Id. A foreign receiver can-

H. \[Mass.\] 81 NE 966. Where the legal it-

not maintain a plea of intervention to va-

the to personal property which was con-

cate a final judgment, although the was an

verted was in a corporation, a receiver

intervening party in the suit in which the

thereafter appointed was held entitled to

judament was rendered. Malone v. John-

sue for the conversion. Smith v. Texas, etc., son \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 255, R. Co. \[Tex.\] 108 SV 59. A. received ap-

pointed by the comptroller of currency by

- 78. Right held not to be lost by the mere

virite of the national banking act may sue

fact that the foreign receiver was allowed

in any Federal court for the collection of

to intervene without objection and make an

assets. Lyons v. Bank of Discount, 154 F

agreement to an order of court not going

391.

- 71. Where a receiver was made party de-

App.\] 18 Tex. Ct. Rep. 255, 101 SW 503.

fendant, held that the other parties could

file cross bills against him without leave

- 74. Compaint held sufficient in the ab-

of the court appointing. Venner v. Denver

Ins. & Trust Co. V. Grider \[Cal.\] 94 F 601.

Union Vater Co. \[Col.\] 90 F 628. Under

75. Receiver held entitled to sue outside

Mills' Ann. Code, $ 222, providing that Judge-

of Minnesota by virtue of Minn. Gen. Laws

ment may be given for or against ones or

1899, e. 272, as being a quasi assignee and

more of several defendants, and when jus-

tive requires it the ultimate rights of par-

v. Converse, 206 M. S. 516, 61 Law. Ed. 1163.

ties on each side, as between themselves,

76. Receiver appointed to enforce liability

may be determined, it was held proper

arising under Neb. Const. art. 11b, $ 7, held

where a receiver was a party to determine

to hold legal title to the trust fund created,

the ultimate rights of all the parties in the

and entitled to sue in Texas. Goss v. Car-

subject-matter of controversy. Id.

ter \[C. C. A.\] 156 F 746.

77. Nonresident stockholders in a Ne-

pointed by a court having jurisdiction of

braska corporation held to be represented

the parties and subject-matter, to whom

by it and bound by valid proceedings in ref.

the corporation has delivered all its pro-

erence to it. Goss v. Carter \[C. C. A.\] 156

erty and who is authorized to bring suit

F 746. Const. of Neb. art. 11, $ 4, prescribes

by the court appointing, may bring suit, in

a time when cause of action against stock-

that state if the policy of state in protect-

luders of an insolvent corporation accrues,

ing resident creditors is not litigated. Ed-

and applies to the liability of stockholders

wards v. National Window Glass Jobber-

of a bank under $ 7, so that the appearance

As/n \[N. J. Law\] 68 A 800. Comity re-

quires the various states to allow foreign

the insolventary of a bank and for the ap-

recovers to exercise their powers therein

(Stone v. New Jersey & H. R. R. & Ferry

Co. \[N. J. Law\] 66 A 10728, provided no

disadvantage to resident results thereby

(Id.). A foreign receiver cannot sue in an

other state to recover property which was

never in his individual possession. Dilling-

ham v. Traders' Ins. Co. \[Tenn.\] 108 SW

1148. A foreign receiver has no right to

bring suit in a foreign jurisdiction, it be

; ing a matter of commity whether he will be

;

permitted to or not. Hazlett v. Woodhead \[R.\]

I.\] 67 A 736. Where a foreign receiver

brought suit in favor of a stockholder until the decree of assessment is rendered and the receiver appointed." The court may in a proper case direct its receiver to dismiss a suit brought by him." Where it is sought to bring an action against a receiver as such, permission of the court appointing must be obtained," but failure to obtain leave of court which appointed receiver to commence suit against him does not oust other state courts of jurisdiction," and objection on that ground may be waived by the receiver, or by the court where the action is brought in the court controlling the receiver, or by a deprivation of his possession of the receivers property." The power to grant leave that a receiver may be made a party defendant in the forum of his appointment or elsewhere carries with it the authority to revoke such leave." Suits in respect to acts or transactions of the receivers in carrying on the business " and suits for damages resulting from the operation of a road by receivers may be brought against the receivers in any court without leave of the court appointing." The court which appoints the receiver has jurisdiction to determine all claims against him and provide for payment thereof." The rule of the Federal courts is that a receiver is not personally liable for injuries, arising through negligent operation of the property, not due to his personal negligence;" an action for such injuries being against the receivers" and a judgment therein payable only from the funds in the receiver's hands." Such a suit is not maintainable against the receivers after the termination of the receivers and transfer of the property," but may be maintained against the purchaser of the property in certain cases." A receiver may not be both party plaintiff and party defendant." In New Jersey the right of set-off

Det. Leg. N. 525, 113 N TW 17. Adequate re-

1lef can be had by vacating it or securing

Stat. 433; U. S. Comp. St. 1901, p. 608). The

1st, however, is subject to the general

the assessment. 1d.

79. Goss v. Carter \[C. C. A.\] 156 F 746.

The cause of action does not accure so as

Amidav of defense of a receiver sued in a

to set the statute of limitations running

against the receiver's right to sue for an

assessment until the receiver can sue upon

the assessment after the stockholder's fail-

into to pay as required by order of court.

Bernheimer v. Converse, 206 U. S. 516, 51

Law. Ed. 1163. Minnesota receiver held to

1st. Conf. Phys. 1901, p. 608).

10 Cur. Law RECEIVERS SS 6.

against a receiver does not rest upon the statute of set-off, but upon the provisions of the corporation act as to settlement of debts by receivers.94 The defense of accord and satisfaction is open to a receiver.95 A judgment against a receiver which disposes of all the parties and issues involved and provides methods for its execution is a final judgment 96 and cannot be vacated at a subsequent term by plea intervention.97

**SS 5.**\_Accounting by receivers.\_See * C. L. 1693--The court appointing has and retains exclusive jurisdiction to settle or adjust the accounts of a receiver,98 and the exercise of it will not be interfered with by an appellate court unless there has been an abuse of discretion.99 Due notice of the filing of accounts by receivers, must be given.1 In a proper case, a receiver is not accountable for uncollected book accounts " or for failure to recover unpaid subscriptions.3 In certain cases a master will be appointed to take evidence with reference to a receiver's account and report to the court.4 An account must be alleged in order to relieve the receiver from liability for a balance shown in a prior account.5 If the account of a receiver is correct and undisputed, he is not accountable for the misapplication of money paid by him to the plaintiff's attorneys,6 nor for the costs of the reference.7

**SS 6.**\_Compensation of receivers.\_See * C. L. 1694--A receiver is entitled to reasonable compensation for the services performed,8 to be determined by the appointing court.9 An order allowing compensation to a receiver requires notice to parties in:

\*\*94.\*\*A member of an insolvent mutual in- and the items are supported by evidence, surname company not allowed to set off a debt due him for a loss against an assess- things v. Jones \[Vr. Va.\] 60 SE 874.

ment due from him (Stone v. New Jersey & H. R. & Ferry Co. \[N. J. Law\] 66 A) elevers account, the legal notice given by 1072), and the fact that the suit is brought by a foreign receiver is immaterial (Id.).

\*\*95.\*\*Heid that there was no accord and satisfaction. Attorney General v. Supreme in the judgment of homologation that duc Council, A. L. H. \[Mass\], 81 N. E. 966.

\*\*96.\*\*Such a proceeding will be regarded as an original proceeding for review, especially action of nullity will not lie. Id. A list of by a foreign receiver, against objections of creditors filed the day before the account another party, although he was an intervening party to the suit. Maione v. Johnson \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 255, 101

SSV 503. The fact that the suit is retained on the dedcets for the purpose of carrying ration of the account held to be null. Id. out the judgments and to wind up the re- cievership held immaterial, Id.

\*\*97.\*\*Maione v. Johnson \[Tex. Civ. App.\] 18 N. E. 966.

\*\*98.\*\*No other court has concurrent or other jurisdiction. State v. Germanna BK. \[Minn.\]

poveries to set. Strauss v. Casey Mach. 114 Nw 651. This exclusive authority and jurisdiction includes the surcharging of the accounts for losses incurred through the mismanagement or negligence of the bank and liability was made for receiver. Id. The final accounting shall include all charges of mismanagement by which the estate is alleged to have suffered

**R. Co., 158 F 460.**

question should have an important bearing on the amount of the receiver's compensation

**(Id.), and is essential to fixing the liability of**

**(Id.). Controversed**

**questions as to the receivers negligence may**

**be submitted to a jury (Id.), but the issue**

\*\*should be framed and jury impaneled in the particular proceeding and not referred to

**used part of the money paid them to pay**

**another action (Id.). It was held error for their fees. Adams v. Elwood, 108 NYS 138, court to refuse to determine the question as to whether the receiver's accounts should be**

\*\*s.\*\*Wherent v. Henrici, 127 III. App. 350.

\*\*99.\*\*Where an account has been allowed of amount is within the jurisdiction of the terested and a hearing at which they may be heard.10 The compensation of a receiver should be taxed as part of thegeosts,11 and as a general rule should be paid out of the funds in his hands,12 and is a preferred claim.13 Interest is not allowable on the compensation of a receiver which is classed as court costs.14 A receiver may waive or limit his right to compensation.15 A final order denying or allowing compensation to a receiver is appealable.14 A receiver is not entitled to commissions both on the property received and on money afterwards paid in lieu thereof.17 The compensation of a receiver for the settlement of a partnership should be borne by both parties equally.18 The question of the receiver's negligence and mismanagement has an important bearing on the amount of his compensation.19

court (In re Bk. of Newcastle \[Vyo.\] 89 P 1985), and should be judicially determined (died adversely to them, it was held that and allowed upon a basis of what is reasonable and commensurate with the services rendered and to be rendered (Id.). While (the court may order compensation by partial allowance from time to time, it may not fix compensation for services to be rendered (Rivordan v. Horton \[Vyo.\] 94 P 448); (Tex. Civ. App.\] 19 Tex. Ct. Rep. 944, 105 such compensation does not accrete and be-come a charge against the property until the services have been rendered (Id., in effect overrules statement in re Bk. of Newcastle \[Vyo.\] 89 P 1985). Allowance (the between the receiver and the stockhold-ers and creditors that when the work was done the court would then fix a reasonable fee held not to preclude the allowance of partial compensation from time to time.

10 Cur. Law. Receivers $ 8. 1483

**SS 7.**_Liabilities and actions on receivers bonds._\*\*20--Before resort may be had to the sureties on a receiver's bond, all available remedies against the receiver must be exhausted,21 and there must be an accounting and a decree establishing the inability of the receiver to pay.22 Sureties on a receiver's bond are not concluded by a judgment recovered against him in his official capacity,28 nor are they responsible for his failure to pay a judgment recovered against him personally,24 nor for his application of funds which are not assets of the receivers.25

**SS 8.**_Foreign and ancillary receivers._\*\*26--Ancillary receivers will be appointed by state " or Federal courts when necessary.28 In Massachusetts by statute, the appointment of an ancillary receiver dissolves an attachment made within four months of the appointment,29 and in such case the ancillary receiver may not remit assets to the receiver in another jurisdiction, leaving resident creditors whose attachments are dissolved unpaid or unsecured.30 The orders and decrees of the court which appointed the receiver in the original action bind the court of another state which appointed an ancillary receiver.81 An ancillary receiver takes only the assets to which the defendant has title at the time of the appointment.82 The appointment of a foreign receiver has no effect on actions against the defendant, either pending 88 or brought subsequent to the appointment, provided the defendant corporation is not dissolved as well.34 A foreign receiver or assignee cannot hold property of which he

$$\\begin{array}{l}\\mbox{\\rmous order It had fixed the compensation at}\\ \\mbox{\\rm a certain rate. State v. Germania Bk.}\\ \\mbox{\\rm\[Minn.\] 114 NV 651.}\\ \\mbox{\\rm\[20. See 8 C. L. 1955.}\\end{array}$$

28, Public notice of the application must first be given. Haydock v. Fisheries Co., receivers, see Railroads, 10 C. L. 1365. Valid: 156 P 898. There is no necessity for the ap-optiment of an ancillary receiver by a Federal court in one of the several districts in the same state. Horn v. Pere Marquette R.

22. A judgment against a receiver, at Co., 151 F 626. His authority runs through most, establishes his official obligation, and the various districts and such ancillary ap-optiment but confirms his authority. Id.

29, Rev. Laws, c. 167, $ 126, held to in-659. Where, after a judgment against a receiver, an order was made.for him to pay it, W. J. C. Lappe Tamning Co. \[Mass.\] 84 upon notice to him, but not to his sureties, and without any accounting or ascertainment of the condition of the fund, the order was ineffectual against the sureties. Id.

30. The words "fully distributed," in Rev. Laws, c. 167, $ 127, providing that where an attachment has been dissolved by the ap-optiment of a receiver the receiver shall not $1,200, a subsequent account, which was not allowed, showing an expenditure of more than that sum, held inflecthant to support the receiver in another jurisdiction (Second plant in an action against tweties held in-sufficient in not alleging that an accounting had been had, or a lack of assets in the receiver's hands or his inability to pay. Id.

The question of the mismanagement or negligence of a receiver is essential to fixing the liability on his bond. State v. Germania Bk.

\[Minn.\] 114 NV 651. It should be determined in the final accounting in the court appointng. Id.

23. Their undertaking being that the receiver "shall faithfully discharge the duties of his trust," they are entitled to contest the judgment on a suit upon the bond (Coe v. Patterson, 122 App. Div. 76, 106 NYRS 659), and they may introduce evidence by way of defense that the sum recovered was not in fact due In that amount (Id.).

24, 25, Coe v. Patterson, 122 App. Div. 76, 106 NYRS 659.

26. See 6 C. L. 1267. Suits by and against foreign and ancillary receivers, see ante, $ 4D.

01. Stone v. New Jersey & H. R. R. & S. certain rate. State v. Germania Bk.

Ferry Co. \[N. J. Law\] 66 A 1072.

28, Public notice of the application must first be given. Haydock v. Fisheries Co.,

recerves, see Railroads, 10 C. L. 1365. Valid: 156 P 898. There is no necessity for the ap-optiment of an ancillary receiver by a Federal court in one of the several districts in the same state. Horn v. Pere Marquette R.

22. A judgment against a receiver, at Co., 151 F 626. His authority runs through most, establishes his official obligation, and the various districts and such ancillary ap-optiment but confirms his authority. Id.

29, Rev. Laws, c. 167, $ 126, held to in-659. Where, after a judgment against a receiver, an order was made.for him to pay it, W. J. C. Lappe Tamning Co. \[Mass.\] 84 upon notice to him, but not to his sureties, and without any accounting or ascertainment of the condition of the fund, the order was ineffectual against the sureties. Id.

30. The words "fully distributed," in Rev. Laws, c. 167, $ 127, providing that where an attachment has been dissolved by the ap-optiment of a receiver the receiver shall not $1,200, a subsequent account, which was not be discharged until all the assets which allowed, showing an expenditure of more came into his hands have 1484 RECEIVING STOLEN GOODS SS 1. 10 Cur. Law.

has not obtained possession in the jurisdiction appointing him as against attaching creditors of the insolvent estate who are citizens of this state,\[85\] but if he has taken possession of the property or has given notice to the debtors of the estate, his claim, if not resulting from proceedings contrary to the public policy of this state, will be protected against attachment unless the attachment is by a citizen of this state.\[86\] He cannot defeat a garnishment by attaching creditors unless he has given notice of his claim to the debtors of the estate,\[87\] nor can he obtain the assistance of the courts of this state to secure the possession of chattels within their jurisdiction.\[88\] A foreign assignee or receiver whose office and power are statutory and to whom no voluntary conveyance is made cannot effectively convey real estate in this state.\[89\]

## Receiving Stolen Goods.

### 1. Nature and Elements; Other Crimes Dis. & 2. Indictment and Prosecution, 1484.

Matters applicable to crimes generally are elsewhere treated.\[40\]

SS 1. \_Nature and elements; other crimes distinguished.\[86\]\_S C. L. 1990--The offense consists in receiving \[41\] stolen goods\[42\] with felonious intent,\[43\] knowing \[44\] or believing \[45\] them to be stolen, acting either for self or as agent of another.\[46\] At common law it is essential that the intent \[47\] and the guilty knowledge \[48\] shall be concurrent with the act, but where statutes define the offense as "receiving or concealing," subsequent knowledge may support a conviction.\[49\]

SS 2. \_Indictment and prosecution. Indictment.\[86\]\_S C. L. 1990--Information or indictment must allege that the goods were stolen \[50\] and must describe the property as particularly as indictment for larceny.\[51\] While larceny is an exception to the common-law rule that indictment must be found in the county in which the offense is committed, such exception does not extend to receiving of stolen goods.\[52\] The common-law rule that a foreign larceny will not support the charge is not modified by a statute making the receiver accessory after the fact,\[53\] and a continuance of the felonious intent, not being an essential of the offense, will not give jurisdiction in the county into which goods are carried by receiver.\[44\]

\_Evidence.\[86\]\_S C. L. 1990--The prosecution must prove the essential facts of larceny.\[86\]

### 35. Smith v. Berz, 125 Ill. App. 122.

36. Smith v. Berz, 125 Ill. App. 122.

rights of a receiver who takes personal property into another jurisdiction will, upon the principle of commy, be protected in the latter jurisdiction or against a creditor of the owner seeking to attach. Jenkins v. Purcell, 29 App. D. C. 209.

37, 38, Smith v. Berz, 125 Ill. App. 122.

38. Smith v. Berz, 125 Ill. App. 122.

recuyer appointed for the benefit of credits by a consent decree is not appointed in invitman. Id.

40. See Criminal Law, 9 C. L. 851; Indictment and Prosecution, 10 C. L. 67.

01. Owner of house into which goods are carried is not a receiver. Dalton v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 316, 103 SVP 95. Control over property must be assumed. Booker v. State \[Ala.\] 44 S 560.

01. Wright v. State, 1 Ga. App. 158, 87 SE 1050.

01. Oddo v. State \[Ala.\] 44 S 546; State v. Pray \[Nev.\] 94 P 218.

01. Suspicion Insufficient, Minor v. State \[Fla.\] 45 S 818: State v. Feiss \[N. J. Err. & App.\] 68 A 418.

01. Commonwealth v. Kronick \[Mass.\] 82 NEW 39.

as would put a man of ordinary intelligence upon inquiry. Minor v. State \[Pla.\] 45 S 818.

46. Commonwealth v. Kronick \[Mass.\] 82 NEW 39.

01. State v. Pray \[Nev.\] 94 P 218.

01. Minor v. State \[Fla.\] 45 S 818.

01. Oddo v. State \[Ala.\] 44 S 546; Common-wealth v. Kronick \[Mass.\] 82 NEW 39.

01. Taken "with intent to permanently deprive the owner," fatally defective. State \[Av. Mayer \[Mo.\] 107 SVP 1085.

01. Wells v. State \[Miss.\] 43 S 610.

01. State v. Pray \[Nev.\] 94 P 218.

01. Penal Code 1895, 117. Golden v. State, 2 Ga. App. 440, 58 SE 657.

01. Under Crim. Prac. Act, 8 85 (Comp. Laws, 4055), providing that either county has jurisdiction of a public offense committed partly in both. State v. Pray \[Nev.\] 94 P 218.

10 Cur. Law. RECOGNIZANCES.

1485

oeny in the original taking, \[58\] and usually the value of the goods is such a fact. \[58\] Proof of value is also essential where the punishment is prescribed or that fixed for the larceny, \[87\] but such evidence may be excluded if immaterial. \[58\] Proof of other similar offenses is admissible on the issue of scienter. \[59\] The owner of the stolen goods may testify as to their value, \[60\] but the court will not take judicial notice that a commodity is of value. \[61\] The thief and the receiver are guilty of separate, distinct offenses, and neither is the accomplice of the other. \[62\] An accessory may testify for the prosecution, \[68\] and circumstantial evidence of the original felonious taking is admissible. \[64\] The testimony of an accomplice, supported by circumstantial evidence, may sustain a conviction, \[68\] but mere possession, even if purchased at price far below value, is insufficient. \[64\] Evidence of admission of guilt by another than defendant is incompetent. \[67\] Admission of irrelevant testimony not tending to incriminate the defendant is harmless, \[64\] and error, if any, in the admission of evidence of similar offenses, immediately following the offense charged, is cured by withdrawal from the jury. \[69\] The offense may be established by circumstantial evidence. \[70\] _Instructions._ See * C. L. \[68\] --It is sufficient if all the essentials of the offense are specified in the charge read as a whole, \[71\] but the omission of an essential element in in an instruction undertaking to define the offense is error. \[72\] It is proper to refuse a requested charge which is confused and tends to mislead the jury, \[73\] and a requested charge need not be given in the language in which it is framed, \[74\] nor is it error to refuse to call the jury's attention to a particular part of the evidence. \[75\] _Verdict._--In Florida the verdict must find the elements of the offense. \[76\] RECOGNIZANCES. \[77\] _The scope of this topic_ is noted below. \[78\] A recognizance is an obligation of record in a case, and the cognizors by entering into it submit themselves to the jurisdiction of the court with respect to proceedings \[68\] **85**.: \*\*Wright v. State, 1 Ga. App. 158, 57 SE 1050. Conversation between party stealing goods and one assisting him is admissible though not had in defendants's presencen. Lapsev, People, 227 Ill. 364, 81 NNE 548. Written in prosecution for receiving stolen goods. Id. \[69\] **87**.: \*\*Wright v. State, 1 Ga. App. 158, 87 SE 1050. \[70\] **87**.: \*\*Booker v. State \[Ala.\] 44 S 58. Where no assessment of value was made as costs against defendant under Code 1886, 5 5052. Oddo v. State \[Ala\] 44 b 646. \[59\] **90**.: \*\*That defendant previously received proofs of the same character from the same party. Lapsev v, People, 227 Ill. 364, 81 NNE 548. \[60\] **88**.: \*\*State v. Feiss \[N. J. Err. & App.\] 66 A 418. \[61\] **61**.: \*\*Cotton. Wright v. State, 1 Ga. App.\] 64 A 418. \[62\] **88**.: \*\*State v. Scott \[Iowa\] 113 NW 758. \[63\] **88**.: \*\*State v. Scott \[Iowa\] 113 NW 758. \[64\] **88**.: **State m. App.\] 62**.: \*\*State v. Scott \[Iowa\] 113 NW 758. \[65\] **88**.: \*\*receiver not an accomplice in the larceny. \[66\] **88**.: **Bradely v. State, 2 Ga. App.\] 62**.: **58**.: \*\*SII 1064. \[67\] **88**.: \*\*Thief. Oddo v. State \[Ala.\] 44 S 646. \[68\] **89**.: \*\*Burglar. State v. Rabens \[S. C.\] 60 SE 442. \[69\] **89**.: \*\*Standing of burglaries tools, etc. State v. Rabens \[S. C.\] 60 SE 442. \[70\] **88**.: \*\*State v. Oxias \[Iowa\] 113 NW 761. \[71\] **88**.: \*\*Minor v. State \[Fla.\] 45 S 818. \[72\] **89**.: \*\*By defendant's wife that she alone was guilty. Oddo v. State \[Ala.\] 44 S 646. \[73\] **44**.: \*\*States v. Rabens \[S. C.\] 60 SE 442. \[74\] **89**.: \*\*States v. Rabens \[S. C.\] 60 SE 442. \[75\] **89**.: \*\*States v. Rabens \[S. C.\] 60 SE 442. \[76\] \*\*89 1486 RECORDS AND FILES SS 1. 10 Cur. Law.

for estreat.78 It is not to be construed with the same strictness as a bond, but so as to give effect to the intent and meaning of the statute.80

RECORDS AND FILES.

## 1 What Are Records, 1486.

- 2. Keeping and Custody, 1487.
- 3. Publicity and Access, 1487.
- 4. Proof of Records and Use in Evidence, 1487.
- 5. Amendment and Cancellation 1488.
- 6. Crimas Relating to Records, 1489.

_The scope of this topic_ is noted below.81

SS 1. \_What are records.\_See S C. L. 1897.--Documents filed by order of the court, though no proceedings were had thereon, are public records,82 but reports required to be submitted for the information of public officers are not necessarily so.83 A document is filed when it is delivered to the proper officer and lodged by him in his office,84 and such filing is not affected by delay or failure to make record entry,85 and if the entry is obviously out of its proper sequence, it will be presumed that the facts occurred in their regular order;88 but, while for many purposes judgment relates back to time of announcement and is properly entered as of that date, for purpose of appeal it has no validity until actually entered of record.87 In the absence of statute, file marks upon the document are not essential 88 and are considered merely a private memorandum 89 or an evidence of filing.80 While it is important that clerk of court should identify the record and attest its correctness by his signature, in the absence of

billty of cognizors not differing from those board required by Rev. Laws, c. 102, SS 42, of other sureties (Suretyshlp, $ C. L. 2050). amended by St. 1907, p. 160, c. 211, are not 79. State v. Johnson, 77 S. C. 252, 67 SE 846. The proceeding to extract a recognizance is not a civil action and no jurisdiccloton of the person need be obtained, and the rule to show cause why the recognizance should not be estreated may be served on a nonresident by leaving a copy thereof with him in another state, under Cr. Code 1802, SS 85 est seq. Id. Where the affladvir declares the cognizor to be a resident of the state, it will be presumed that he is such at the time of estreat proceedings. Id. 80, Salomon v. Buehler, 129 III. App. 176. A recognizance given by several defendants to release an attachment against them is not discharged by a discontinuinance of the action as to one of the defendants, since it is substituted for the attachment. Id.

**SL. It** Ineludes matters relating generally to public records and files. It excludes matters peculiar to judgment records ( judgments, 10 C. L. 467), records on appeal or error (Appeal and Review, 9 C. L. 108), records of title and transfer (see Notice and Record of Title, 10 C. L. 105), municipal records (see Municipal Corporations, 10 C. L. 881), public statistics (see Census and Statistics, 9 C. L. 542), the restoring of lost or destroyed records (see Restoring Instruments and Records, 10 C. L. 1526), and the filing of motions and other proceedings in court (see Motions and Orders, 10 C. L. 873; Pleading, 10 C. L. 117s and toplce treating of particular proceedings).

SS2. In re Freeman \[N. J. Law\] 68 A 232. Amdavits In a matter of disabarment presumed to be lifted by order of the court. Id.

SS3. Pawnbroker's reports to licensing 10 Cur. Law. RECORDS AND FIES SS 4. 1487

statute it is not essential, nor will omission to sign disqualify him from subsequently certifying to the correctness of copies of the record."

SS 2. \_Keeping and custody.\_See * C. L. 1608--The filing and custody of public records is largely regulated by statute." Where the duty to keep up records is reciprocal with a duty to pay for such service, failure of the latter excuses the former." The right to custody of the records kept by the clerk of the United States court of Indian Territory in his ex officio capacity as recorder, upon that office becoming functus officio by reason of the admission of Oklahoma as a state, vests in the register of deceds." An officer receiving records without authority acts in his private capacity," and mandamus will not lie to compel their surrender to the proper custodian."

SS 3. \_Publicity and access.\_See * C. L. 1608--Public records other than court records are open to inspection for any lawful purpose," but the court may refuse inspection of its files to one who fails to show that he is actuated by proper motives."

SS 4. \_Proof of records and use in evidence.\_See * C. L. 1701--As in other instances, legislation controls the extent to which certified copies of records are admitted in evidence, and a constitutional provision that such copies shall be admitted in certain cases is not exclusive." In certain cases the record is conclusive of the fact 1 and cannot be affected by subsequent contradictory entry 2 or varied by parol evidence," but where the admission of records in evidence is regulated by statute, such records as fail to comply with statutory requirements will not be received.4 Indorsement of filing is only prima facie evidence of the date of filing, especially when such indorsement is not required of law.5. * Record of judgment in another state may be proved by

91. Thomas v. Goodwin \[La.\] 45 S 406. 1. Marengo Sav. Bk. v. Byington \[Iowa\]

01. Burns' Ann. St. 1901, $ 6519, makes it 112 NW 192. 2. Unqualified record of court's adjourn-paper in a case. Masters v. Southern R. 1.0.

1488 RECORDS AND Files $ 5. 10 Cur. Law.

certified copy conforming with Federal statutes "." or, in the absence of local regulation, by examined copy according to common law," but the statute does not include the records of courts of limited jurisdiction,10 nor does such record become the record of a court of general jurisdiction by reason of its having been filed in that court.11 Long acquiescence in title based upon a destroyed record will raise every inference in favor of the validity and regularity of the proceedings.12

SS 5. _Amendment and cancellation._--A court has the inherent right to modify its records to make them speak the truth,13 and when such amendment is necessary it should be made by an entry nune pro tune 14 unless judgment is still pending.15 In general, such amendment may be made at any time,16 even during appeal,17 either from the memory of the presiding judge or upon proper showing,18 but a memorandum which would authorize an amendment after the adjournment of the term must have been made by the judge or by his order or pursuant to law 19 and should be clear, decisive and unequivocal to the effect that the written memorial does not reflect the facts.20 In general, amendment can be made only when there is something in the record to amend by,21 and where this rule obtains no notice to the parties is necessary upon making corrections, even after final adjournment,22 nor is notice required when correction is made during pendency of suit;23 but records should not be amended after a long lapse of time without notice and opportunity for hearing.24 The power to amend and correct court records after adjournment is in the court and cannot be exercised by the clerk.25 Failure to note time of making a nune pro tune entry is not an error by the clerk, and date may be supplied without regard to statutory restrictions provided in case of mistake or omission.26 The court has no power to change its records contrary to the truth.27 An obvious omission which the court

7,8. U. S. Stat. $ 905 (U S. Comp. St. 1901, p. 677). Wolf v. King \[Tex. Civ. App.\] 107 SWP 617.

9. Wolf v. King \[Tex. Civ. App.\] 107 SWP 617.

1. Neither U. S. Rev. St. $ 905 (U. S. Comp. St. 1901, p. 677), nor Rev. Code 1905,

1. In re McQuerow \[OK1\] 91 P 689.

1. Wexley Hospital v. Strong, 233 Ill, 155,

84 NE 205. Private memorandum by an attorney insuffent. Id.

19. Abstrated of justice court record filed with and certified as of record by the district court of another state. Strecker v.

01. Sheriff's deck of which all record has been destroyed for forty years presumed a valid title. Gallup v. Flood \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 861, 108 SWP 426.

01. Code, $ 4127, is declaratory of the common law, Psap v. Howard \[Ala.\] 45 S 881; Puckett v. Gunther \[Tow1\] 114 NWP 34; In re MoQuow \[OK1\] 91 P 689; Ashway Nat.

Bk v. Superior Ct. \[R. I.\] 67 A 528.

14. Marengo Sax. Bk. v. Byington \[Iowa\] 112 NWP 192. Clark's failure to enter a special finding may be corrected nune pro tune,

Papot v. Howard \[Ala.\] 45 S 851. Failure to record a filing at the time filed. Masterson v. Southern R. Co. \[Ind. App.\] 82 NE 1021.

15. When the court upon granting a motion noted that it had been continued over the term by consent of the parties, such entry cured the omission of such consent in record of the previous return. Oak Hall

Clothing Co. v. Bagley \[N. C.\] 60 SE 648.

16. In re MoQuow \[OK1\] 91 P 689.

01. That amendment was made at subse

## 10 Cur. Law. Reference.

might have supplied from evidence upon the face of the record will be deemed corrected, \[28\] and an immaterial error may be disregarded, \[29\] while a useless amendment will not be granted. \[30\] A municipal body may not without notice amend the records of its proceedings nunc pro tunc so as to materially alter their legal effect, no facts warranting such amendment appearing of record. \[31\] A person deprived of private property for public use may dispute the record of an officer's ministerial acts and raise jurisdictional facts. \[32\] Without statutory authority a former officer may not amend records made by him while in office, \[33\] and statutes granting such authority must be strictly followed. \[34\] Equity will grant relief from a fraudulent record upon suit of one whose interests are immediately \[35\] or prospectively threatened \[36\] by enjoining the use of the record or original document in evidence, by canceling the record, and by directing the recording officer to make certificate of cancellation; \[37\] but injunction will not issue to prevent the collection of a judgment on account of in-curable error in the record. \[38\]

## 6 Crimes relating to records. \[56\]

\[\]

**SS 1.**\_Definitions and distinctions, master and referees, referee and umpire or arbitrator.\_See 6 C. L. 1272

**SS 2.**\_Occasion for reference.\_See 8 C. L. 1705.\_The authority of courts to appoint referees is largely statutory, although the practice of referring certain matters to them is ancient.\[42\] The court need not make a reference in the absence of request therefor.\[43\] Nor, to justify an order of reference authorized by the pleadings, need the court specifically find the facts admitted therein.\[44\] In the absence of statutory inhibition, the court may refer cases of doubt and difficulty where it is called upon to weigh contradictory testimony, determine the credibility of witnesses,\[45\] or examine a long account, and a jury trial is impracticable.\[46\] Compulsory reference can be made only when the case comes fairly within the statute \[47\] and the application therefor is addressed to the sound discretion of the court,\[48\] but where the whole issues should not be so tried, the court cannot refer a particular issue to a referee and leave the remainder to a jury.\[49\] To authorize such a reference, it must affirmatively appear that the trial will necessarily require the examination of a long,\[50\] complicated account \[51\] arising between the parties \[52\] and directly and not merely collaterally, involved at the trial,\[53\] and in New York only when the obtaining of the account is the immediate object of the suit.\[54\] The court may also direct a reference to take an10 Cur. Law. REFERENCE SS 7. 1491 account where necessary to do so for its information "5 before judgment or for carrying judgment into effect "6 and where a question of fact other than upon the pleadings shall arise." The statute of New York authorizes evidence to be taken by a referee in cases of excessive tax assessments,"6 and in Massachusetts the appointment of a referee is not proper in case of a suit against the state."

SS 3. \_Time and stage of proceedings.\_See 0 C. L. 1278.--Where the right to a reference depends upon the determination of preliminary issues, it is error to order a reference without first determining such issues,"6 and if an order of reference is made in such a case it is immediately appealable."

SS 4. \_Motion and order for reference, and stipulations or consents on voluntary reference.\_See 0 C. L. 1704--A party desiring to object to the form of an order of reference "2 or that it was improvidently or improperly made "8 should take such objection at the time it was made by motion, if ex parte, or by appeal, if on notice."

SS 5. \_Selection and qualifications of the referee; his oath and induction into office. Removals and substitutions.\_See 0 C. L. 1704 SS 6. \_General scope of reference and powers of referees or masters.\_See 0 C. L. 1704 The powers and duties of the referee are measured by the order of reference,"6 and a referee has full power under a reference for such purpose to decide all questions arising, both of law and fact." But since the referee cannot enter judgment, an order permitting such action must be deemed one only to hear and report."

SS 7. _Appearance before referee, hearing and adjourments, trial and practice_

delphia Casualty Co., 54 Misc. 630, 104 NYS 810. Where main issue is whether defend-

118 App. Div. 199, 38 Civ. Proc. R. 351, 103 NYS 437.

120, 86 Misc. 606, 107 NYS 612.

135, 1493 REFERENCE SS 8. 10 Cur. Law.

\_thereon.\_See 8 C. L. 1708_The strict rules of evidence applicable to trials do not prevail in proceedings before a referee,\[88\] and the admissibility of evidence is largely a matter of judgment for the referee.\[89\] But in Georgia it seems to be held that the ordinary rules as to the admissibility of answers to interrogatories and admissions made in another case, refreshing memory from written memorandum, and subpoenas duces tectum, apply.\[10\] Where a case is referred to a master to take and report testimony, he cannot order an amendment to the pleadings \[11\] or grant a new trial.\[22\] Where the Federal statute is silent as to the method of procedure on reference, it is competent for the parties to agree to proceed under the state statutes or under the common law, and when they have so agreed they are bound thereby.\[78\]

SS 8. \_The report, its form, requisites and contents, and return and filing.\_See 8 C. L. 1708_The referee must pass on all matters submitted in the manner prescribed by statute,\[74\] and where the statute so requires, the report of the referee which fails to state the facts found and conclusions of law separately is insufficient to constitute the basis of a valid judgment.\[78\] The court has no discretion in imposing the statutory penalty for failure of the referee to report his finding within the statutory period,\[78\] but such statutes are to be strictly construed and the motion to impose the penalty denied unless the case is clearly within the letter of the statute.\[78\] Such a motion will be denied where the party has not elected to terminate the reference as provided by statute \[78\] or has waived the right to do so \[78\] or the referee has in good faith held the reference open at the request of any party to enable him to submit material matter.\[89\] The referee must find the facts and not merely make legal conclusions.\[91\]

SS 9. \_Revision of report before the court.\_See 8 C. L. 1708_The referee should announce his findings and conclusions to the interested parties a sufficient length of time before making his report to enable the defeated party to prepare and present his exceptions and preserve his record for review.\[82\] The referee has authority and it is his duty where a proper bill of exception is presented to him before he files his report to allow and sign the same and file with his report.\[88\] Amendments to the exceptions can only be made after the statutory period therefor has expired when

68. People v. Onderkirk, 120 App. Div. 650, 75. Finding that plaintiff loaned, advanced, 105 NYS 134. 69. Refusal to receive certain evidence matter for judgment referree. Harper Mach. Co. v. Sinclair \[N. J. Law\] 68 A 890. Where defendante whole case depended upon action of court on exceptions to report of commisioner authorized to hear whole proof, defendant, on court finding some of her 'witness incompetent, could not object to deter-mination of whole case on such exceptions and claim the right to a resubmission to engage. In re Robinson, 53 Misc. 171, 104 NYS 688. 70. Sizer v. Milton, 129 GA. 143, 58 SE 1055. 71. Cannot amend complaint to bring in another party. Dixon v. Roessler, 76 S. C. 416, 57 SE 203. Cannot amend original annover to permit setting up counterclaim material affecting result of action. Collins v. St. Lawrence Club, 108 NYS 287. 72. Court alone can grant new trial. Iranl-eon v. Stang, 18 OKL. 423, 90 P 446. 73. United States v. Ramsey, 185 F 488. 74. Where asked to indicate person to receive legates share of estate, not error for auditor to distribute share "to truste appointed or hereafter to be appointed of legate mentioned." Garman's Estate, 32 Pa. Super. Cl. 494.

10 Cur. Law. REFERENCE SS 10. 1493 some good and sufficient reason is shown why they could not have been made within that period.\[84\] The judge of the court has no authority to allow and sign a bill of exceptions, preserving the evidence heard before a referee, or to incorporate the same into a case made, unless first authenticated and made a part of the record by the bill of exceptions signed by the referee.\[85\]

SS 10. _Decree or judgment on the report, confirmation or overruling, recommittal or additional findings, modification, conformity of judgment with report.\[86\]_ **c. L. 1788**\_--\_Since the court must determine the controversy and may order a reference only for its assistance,\[88\] it is necessary that the referee's report be presented to the court for confirmation.\[87\] And when so presented the court is called upon to confirm or reject it and decide the matter for itself \[88\] where it appears that the referee has acted fraudulently \[88\] or been guilty of gross misconduct.\[90\] But where the referee has acted in good faith,\[91\] has reported findings of fact which are certain and consistent,\[92\] which respond to all the issues \[88\] and the order of reference,\[94\] and the errors complained of are at most but the mistakes of an honest judgment, the statutes clearly contemplate that they can be reviewed only upon motion for a new trial \[88\] or upon appeal.\[96\] Where such is not the case, the court may refer the matter back to the referee with instructions to remedy the defects and make the findings certain and complete and comply with the original order of reference.\[97\] After affirmation, inaccuracies in the referee's report become immaterial,\[98\] and findings of fact and conclusions of law not authorized by the order of reference become binding as the determination of the court when expressly adopted thereby.\[98\] The referee's finding of facts and conclusions of law generally have the effect of a special verdict,\[1\] and in the absence of fraud, prejudice or mistake are final \[2\] and reviewable only by the statutory

84. Section 4589, CIV. Code 1855. Sizer v. 88. Inaccuracies in discussing what would Melton, 129 Ga. 143, 58 SE 1055. 85. Iraslson v. Stanz, 18 Old, 423, 90 P 446. 88. Error to authorize referee to hear, de-termine and enter judgment. Cartier v. Spooner, 18 App. Dlv. 342, 103 XTS 805. 88.

modes of reviewing verdicts of juries and the findings of a court,\* and the court is powerless to review the evidence on the exceptions filed.\* In some states, however, the facts found by the referees are prima facie correct only and may be given in evidence to the court or jury trying the case * and will not be disturbed in the absence of exceptions thereto.\* Where an auditor merely finds the facts, the court may draw its own conclusion.\* In certain instances the determination of the referee is not final on disputed claims, nor is the claimant concluded by the order approving the receiver's accounts.\* **SS 11.**\_Appellate review.\_See * C. L. 1708.--The ordinary rules as to assignments of error apply.\* Either party may apply to the appellate court to set aside the award and grant a new trial without first applying to the judge or justice of the court which ordered the reference.\[10\] Where the referee's findings are apparently inconsistent, the court will reconcile them and give effect to the real meaning and intent of the referee if possible.\[11\] The court will not pass upon assignments of error on the rulings of a referee in the absence of proof of the action of the lower court thereon,\[12\] nor consider the question of the sufficiency of the evidence to support the findings of the referee in the absence of a bill of exceptions allowed and signed by the referee preserving the evidence.\[13\] In the latter case the referee's finding will be presumed to have been based on sufficient evidence,\[14\] and the appellate court will only determine whether the conclusions of law are warranted within the pleadings by the facts found.\[15\] Where facts have been found and the discretion of the auditor properly exercised, and his report has been confirmed by the lower court appointing him, the general rule is that the appellate court will not interfere * unless the findings are

execution, except such as were by referees\* or of filing account until after order of ap-report submitted to court, refused. Stewart

proval was made, although its attorney filed v. Leonard \[Mc.\] 68 A 688. In common-law

notice of general appearance on receiver's reference, where referee has exercised his

attorney, People v. Federal Bk. of New

honest and Incorrupt judgment in finding

York, 1122 App. Div. S10, 107 NYS 811. Where

facts after full and fair hearing, court can-

purpose is to have account so made that un-

not decline to accept report on ground that

disputed items on either side may be elimi-

reference erred in his judgment. United States

nated from contest and issue narrowed to

v. Ramsey, 158 F 488. Findings of referee

questions in dispute, items of account not

should not be reversed where necessary to

vary findings to do so. Eddy v. Lamb, 150

which exception is made are

Mich. 624, 14 Det. Leg. N. 667, 113 NPV 282.

witness effect. Lone Star Salt Co. v. Blount

s. Section 4421, Rev. St. Idaho 1887. United

States v. Ramsey, 158 F 488. VIII be passed

upon only when facts stated in reports are

wherich evidence was insufficient to support

totally insufficient to constitute legal justifi-

dindings not considered. Smith v. Kunert

cation for rule applied. Finding as to prac-

tial construction of contract and wavivers of

10. Supreme court rule No. 50 held not to

certain portions thereof by parties. Eddy v. Lamb, 150 Mich. 624, 14 Det. Leg. N. 667, 113

11. Moore v. Martinez, 107 NYS 652.

01. Eddy v. Lamb, 150 Mich. 624, 14 Det.

01. Lfaslo v. Stang, 18 Okl. 423, 90 P 446.

01. Usage v. Martinez, 107 NYS 652.

01. Moore v. Martinez, 107 NYS 652.

01. Where auditor appointed to pass upon

creceptions and distribute intestate estate

charges costs to estate. Garman's Estate, 32

6. Eddy v. Lamb, 150 Mich. 624, 14 Det.

Pa. Super. Ct. 494. Referes' finding of fact

10 not subject to review. Eddy v. Lamb, 150

11. Greenbaum, 150

01. Eddy v. Lamb, 150 Mich. 624, 14 Det.

01. Lfaslo v. Stang, 18 Okl. 423, 90 P 446.

01. Usage v. Martinez, 107 NYS 652.

01. Moore v. Martinez, 107 NYS 652.

01. Where auditor appointed to pass upon

creceptions and distribute intestate estate

charges costs to estate. Garman's Estate, 32

6. But Super. Ct. 494. Referes' finding of fact

not subject to review. Eddy v. Lamb, 150

17. Greenbaum, 150

01. Under Laws 1902, pp. 115, 116, c. 60,

01. If the answer is manifestly totally unsupported by the evidence \[17\] or a question of law is manifestly involved.\[18\] If there is sufficient competent evidence to support the findings, the judgment will not be disturbed because incompetent evidence was admitted.\[19\] Generally an appeal from an order of reference will not be entertained unless it operates to deny a litigant the mode of trial to which he is entitled by law or unless the order is assailed for want of jurisdiction.\[20\] In such a case it is not necessary to make a statement of the case on appeal where the appeal itself and the exception noted in the record sufficiently raises the question of the validity of the order.\[21\]

In New York exceptions to referee's reports must be filed and served within eight days after service of notice of filing such report, otherwise the report becomes absolute and stands as confirmed,\[22\] and under the statute the court will review an order confirming a referee's report, although no case was made or exceptions taken.\[23\] And such an appeal brings before the appellate court both the decision of the special term on the facts and on the law, and the appellate court must correct any error and grant the proper relief.\[24\]

SS 12. \_Compensation, fees and costs.\_See & C. L. 1708--In some states the auditor's compensation is fixed by statute,\[21\] and while the appellate court will not reverse the action of the lower courts in the matter of compensation to auditors unless error clearly appears, they are nevertheless bound to do so in obedience to statute.\[26\] Although as a general rule all the litigants,\[27\] even those objecting to the reference, are liable for the fees of the referee,\[28\] the liability may be avoided by express contract or by stipulation of one party solely assuming them,\[29\] and in such a contract the attorney has power to bind his client for their payment.\[30\] Failure to file his report in the time prescribed by statute forfeits the referee's right to his fees.\[31\]

Ings of law and fact where referee's report was not in strict compliance therewith. Id. \[H\] In finding that certain acts of strikes were committed in the interest and for benefit of union, conclusion of law improper under reference to find facts. Russell v. Stampers & Gold Leaf Local Union No. 22, 57 Misc. 96, 107 NYS 303, 17. Preston v.Albee, 120 App. Div. 89, 105 NYS 83. Saal v. South Brooklyn R. Co., 122 App. Div. 864, 108 NYS 98. Liability established by estimate of referee without evidence not binding, Baldwin v. Patrick, 39 Colo. 347, 91 P 828. 18. Conclusion made from facts totally unsupported by evidence presents question of law. Preston v. Albee, 120 App. Div. 89, 105 NYS 83. 19. Claim for wages quantum merit against decedents' estate held sustained by competent evidence. Bossi's Estate v. Baehr \[VWs.\] 113 NWV 433. 20. Reference under $ 293, Code Civ. Proc., does not prevent jury trial and is nonappealable. Jones v. Haile Gold Min. Co. \[S. C.\] 60 SE 35. 21. Duckworth v. Duckworth, 144 N. C. 620, 57 SE 396. 22. People v. Federal Bk. of New York, 122 App. Div. 810, 107 NYS 811. 23. Section 997, Code Civ. Proc., making case necessary on appeal from judgment, inapplicable to special proceedings, such as enforcing attorney's Iien. Sullivan v. McCann, 108 NYS 909. 24. Digregard of certain accounts corrected, Sullivan v. McCann, 108 NYS 909. 25. Under Act June 4, 1879 (P. L. 84), five hundred dollars excessive for six days' hearing, allowing maximum of fifteen dollars per day. In rs Mansfield, 34 Pa. Super. Ct. 413. 26. Where, under statute (Act June 4, 1879, P. L. 84), allowance cannot be sustained unless it be presumed that time required was beyond bonds of reason. In rs Mansfield, 34 Pa. Super. Ct. 413. Compensation allowed referees within discretion of trial court and will not be disturbed in absence of abuse of discretion. Scott v. Bay dence not binding, Baldwin v. Patrick, 39 Civ. 150 Mich. 694, 14 Det. Leg. N. 868, 114 Colo. 347, 91 P 828. 18. Conclusion made from facts totally unsupported by evidence presents question of law. Preston v. Albee, 120 App. Div. 89, 105 NYS 83. 19. Claim for wages quantum merit against decedents' estate held sustained by competent evidence. Bossi's Estate v. Baehr \[VWs.\] 113 NWV 433. 20. Reference under $ 293, Code Civ. Proc., does not prevent jury trial and is nonappealable. Jones v. Haile Gold Min. Co. \[S. C.\] 60 SE 35. 21. Duckworth v. Duckworth, 144 N. C. 620, 57 SE 396. 22. People v. Federal Bk. of New York, 122 App. Div. 810, 107 NYS 811. 23. Section 997, Code Civ. Proc., making case necessary on appeal from judgment, inapplicable to special proceedings, such as enforcing attorney's Iien. Sullivan v. McCann, 108 NYS 909. 24. Digregard of certain accounts corrected, Sullivan v * 1. The Remedy, 1496. A. Nature and Office, 1496. B. Right to Kennedy, 1496. C. Instruments Reformable, 1498. D. Tral and Judgment, 1501.

What constitutes mistake and the proof thereof is more fully treated in another topic, \[32\] as is the reformation of insurance policies. \[85\]

- 1. The remedy. A. Nature and office. See $ C. L. 1708. The power conffided to courts of equity of reforming written instruments is universally conceded to be an extraordinary one whose exercise must be guarded with zealous care and granted only in a clear case. \[34\] Where an instrument is drawn and executed which professes or is intended to carry into execution an agreement previously entered into, but which by mistake either as to fact or law does not fulfill that intention, or which violates it, equity will correct the mistake so as to produce a conformity with the instrument intended. \[35\]

($ 1) B. Right to remedy. See $ C. L. 1709. Equity will correct a mistake of the scrivener whereby a different estate than that intended was conveyed, \[36\] or a misdescription occurring in all of the court papers and the master's deed if no rights of innocent third parties have intervened. \[37\] As between the parties, equity will grant relief at the suit of either against the mistake of both whereby the writing intended to evidence their agreement fails truly to state the terms of the contract between them \[38\] and also against third parties with notice, \[39\] but not when the rights of innocent third parties acquired for valuable consideration and without notice will be affected. \[40\] In general, to authorize reformation, there must be a valid agreement \[41\] which can be specifically enforced after reformation. \[42\] It should appear that the omissions were material \[43\] and that injury or loss will occur unless correction be made. \[44\]

- 32. See Mistake and Accident, 10 C. L, 853.
- 33. See Insurance, 10 C. L, 835.
- 34. Miller v. Stuart \[M.I\] 68 A 273.
- 35. Here neglect, carelessness or oversight insufficient. Galley v. New Castle Elastic Pulp Plaster Co., 34 Pa, Super, Ct. 633. Where description of property conveyed omitted one to line and confused others. Smith v. Owens \[Tex. Civ. App.\] 20 \[Tv. Va.\] 59 SE 762. Where instrument sought to be enforced through mistake and commissions as deemed of sale, and not mortgage as intended. Nelson v. Spence, 129 Ga. 35, 68 SE 697.
- 36. Where by mistake of servivener a life estate is granted when it is the intention of the respective parties to purchase and convey an estate in free simple, equity will re- form the deed. Teel v. Dunnhoo, 230 Ill. 476, 82 NE 844. Mistake in respect to land conveyed. Peacock v. Bethne \[Ala.\] 43 S 864. Where description of land different from that pointed out inserted without act of either party. Flynn v. Finch \[Iowa\] 114 NWV 1063. Where deed described converging instead of square tract. Coleman v. Thibodaux, 119 La. 474, 44 S 269. Where purchaser bought lot by title bond and after building house thereon received deed incorrectly describing same and bond correctly describing was lost. Hill v. Clark \[Ky.\] 160 SW 805.
- 37. Where, through mistake common to all parties to proceedings, master's deed described less properly than purchased, and purchaser took possession, equity will cor- 10 Cur. Law. REFORMATION OF INSTRUMENTS SS 1B. 1i97

In general, reformation depends upon mutual,\[48\] not unilateral," mistake of fact," or where there has been a mistake by one party, accompanied by a fraud by the other." Fraud or mistake to be the basis of a reformation must be in the execution of the instrument.\[49\] Relief is generally withheld unless the parties can be restored substantially to their position at the time the contract was made,\[50\] and if this cannot be done the court will relieve only where the clearest and strongest equity imperatively demands it.\[61\] The complaining party must have exercised at least the degree of diligence which may fairly be expected from a reasonable person,\[52\] and a demand for reformation should generally be made.\[48\] The right may be lost by estoppel and ratification,\[54\] be barred by statute of limitations\[55\] and laches.\[56\] But as between the original

\\begin{tabular}{l|l} whom defendant was surety, insufflement & 9. FItekinger v. Farmers' Mut. Fire & Light- \\ where bill alleges that property attached &ning Ins. Ass'n \[Iowa\] 113 NW 824. \\ was that of third party and not bank and & Insufflement. Redding v. Badger Lumber \\ there was no allegation that property attached was released after bond was given. & Co., 127 Mo. App. 625, 106 SWV 657. To show \\ mistake or fraud in paying contract. Ful- \\ Drovers' Live Stock Commission Co. v. Custert County State Bk. \[OkI\]. 91 P 850. & 49. Capps v. Edwards \[Ga.\] 60 SE 455. \\
45\. Miller v. Stuart \[Md.\]. 68 A 273. & Miltake must be in preparation or execution. Mitchell Mfg. Co. v. Kempner, 84 Ark. \\
49\. C. Carey \[Md.\]. 66 A 673. Erroneus & 50, Tefused where corporate stock has \\ description inserted without act of either & passed into hands of new holders, ignorant \\ party. Flynn v. Finch \[Iowa\] 114 NWV 1085. & of omitted conditions of deed sought to be \\
**Evidence** smiffleent to show mutual omis- & reformed. Galley v. New Castle Elastic Pulp \\
**of** reservation from conveyance. Red- & Plaster Co., 34 Pa. Super. Ct. 633. Where \\
**of** way. Badger Lumber Co., 127 Mo. App. 625, & owner of two lots is deckely by third \\
**106** SWV 657. Mutual omission of provision & son to believe that his decked for two lots is \\
**of** payment of **taxes** in deed. Meddav v. for one only, and purchased decelved to \\
**Wight** \[Mo. App.\] 107 SWV 421. Mutual omis- & live both lots were to be sold, owner must \\
**ion** as to method of payment. Merritt v. & tender purchase price and note in order to \\
**Coffin** \[Ala.\] 44 S 622. Mutual omission of & reform. Horwitz v. La Roche \[Tex. Civ. App.\] 107 SWV 1148. \\
**statement** that construction of underground & App.\] 107 SWV 1148. \\
**crossing** was part consideration for convey- & 51. Refused where evidence shows lack of \\
**ance. Stafford v. BiS Sandy R. Co. \[KY.\]** & diligence. Galley v. New Castle Elastic Pulp \\
**105** SWV 839. Where shown that mill was & Plaster Co., 34 Pa. Super. Ct. 633. \\
**constructed** on disputed tract without objection of parties. Stephenson v. Garner, 84 & 52. Oversight, neglect and carelessness \\
**at**. Galley v. New Castle Elastic Pulp \\
**Ark. 623, 105 SWV 672. & Plaster Co., 34 Pa. Super. Ct. 633. Failure to \\
**Evidence** insufflement to show mutual mis- & read contract sought to be reformed as not \\
**take** as to parties to be bound by contract. & containing alleged warrants, fatal. Mitchell \\
**Smith** v. Interior Warehouse Co. \[Or.\] 94 P & Mfg. Co. v. Kempner, 84 Ark. 349, 106 SWV 880. \\
**46**. Morgan v. Owens, 628 III. 698, 81 NE & 53. Unnecessary where suit in ejectment \\
**had** been previously brought. Peacock v. \\
**Held** anl**niteral where plaint filmed contract to deliver 37,000 sacks wheat, intending & Bethea \[Ala.\] 42 S 84. \\
**that** others than himself should furnish port- & take, parol agreement was entered into to \\
**then** thereof, of which defendant had no & purchase additional land alleged to have \\
\*\*knowledge. Smith v. Interior Warehouse Co. \[Or.\] 94 P 508. Where one party claimed & possession taken under latter agreement \\
**reservation** omitted from contract clear and & building erected. Urlich v. Watts, 69 \\
**definite** in terms. Horne v. J. C. Turner Cy. & N. J. Eq. 604, parties, no rights of third parties having intervened, mere lapse of time does not deprive one of the right to a reformation,67 and one in possession of land as against one not in possession is not chargeable with laches,68 nor affected by the statute of limitations, however long his delay.69 The fact that the contract has been fully executed and delivered,69 or that the defect might have been aided by parol and made available as a defense at law, does not necessarily bar the right.61

(SS 1) \_C. Instruments reformable.\_See 8 C. L. 1711.-A contract62 or deed which by fraud or mistake does not properly embrace part of the agreement may be reformed.68 As may an insurance policy where the agent neglected to incorporate an agreement permitting concurrent insurance.64

It is not necessary to reform an equitable mortgage in order to enforce it.69

Equity has no jurisdiction to reform a sheriff's deed executed pursuant to a sale under a tax judgment, the remedy in such cases being generally prescribed by statute,69 and as a general rule equity will not reform or correct a voluntary deed,67 particularly where such a correction would interfere with the rights of third persons,69 even though the recipients of the bounty had enjoyed the benefits thereof for a period of years.69

Footnote 69: The author is grateful to the anonymous referee for the support of the 1990s.

SS 2. \_Procedure. A. Jurisdiction and form of proceedings.\_See 8 C. L. 1711.-The remedy in equity on the ground of mutual mistake is concurrent with the statutory remedy authoring proof of the same facts when pleaded as an equitable defense.70

(SS 2) \_B. Parties.\_See 8 C. L. 1712.-The general rule is that all parties affected by the reformation are necessary parties.72 But this rule will not be applied to defeat

\[Ala.\] 43 S 84. Where relief sought promptly on discovery of excusable mistake arising from fraudulent insertion of wrong number in deed by other party. Venable v. Burton, 129 Ga. 537, 59 SE 253.

67. Not barred: Right to have deed corrected by inserting name of wire. Radeburgh v. Scanlan \[Ind. App.\] 82 NE 544.

Where deed to west half erroneously decribed east half of quarter section and vice versa. where suit to correct deed was brought eight months after discovery and owners of west half described as east had not changed position to their prejudice. Union Ice Co. v. Doyle \[CaI. App.\] 92 F 112, 58. Smith v. Owens \[Vr. Va.\] 59 SE 762.

59. Ten years' delay no bar to reformation by one in possession. Hilli v. Clark \[Ky.\] 106 SW 805.

01. Where renewal fire insurance policy dated June 5th instead of July 1st, date of expiration of old policy. Flickinger v. Farmers' Mut. Fire & Lightning InAs. Ass#

### 10.1. Law.

Reformation of instruments SS 2C.

justice if, consistent with the merits of the case, the court can proceed to a decree as to the parties before it," but in such cases, as a matter of practice, the plaintiff should amend by joining the nonresident party, make proper service, and if the party does not appear, or appears and moves to dismiss for want of jurisdiction, the court then has jurisdiction to proceed as before stated." The grantor of a warranty deed which either by fraud or mistake embraces land not intended to be conveyed has the right to have the deed corrected even if he has no title to such lands." A corporation's trustee in bankruptcy is a proper, if not necessary, party."

(SS 2) _C. Pleading and evidence._" See e C. L. 1111--In general the allegations must be as full and satisfactory as the proof required," and all essential averments " as that of a previous contract between the parties to the deed, founded on a valid consideration, requiring the execution of a deed of the kind, character, and terms the plaintiff claims should have been made " and the execution of a deed substantially different in character and terms from the one called for in the contract of the parties." It must be alleged that in executing such deed all the parties thereto meant and intended thereby to execute a deed in character and terms called for by the contract between them," and that a mistake common to all of the parties to the deed, either as to the legal effect of the instrument they had executed," or a mistake of some fact with reference to the form, terms, or conditions contained in the instrument, was made." Misrepresentation by one party of the contents of an instrument cancel deed prevents attack on mortgage tempted to convey sufficient. Radebaugh v. until decree of cancellation is had against Scanlan \[Ind. App.\] 82 NE 544. More allegations of prior negotiations as basis for re-
\[Wis.\] 115 NW 188. Where bill alleges that

B owning certain lots sold same to, mins-

\[Ga.\] 60 SE 455. Allegation that plant and describe block where situate, and E mart-

land in question were sold to secure pay-

gaged same, likewise misdescribing, and

meror ran through foreclosure suit, decree,

cient allegation of receipt of consideration, and deed to complainant, B and E necessary

\[Union Ice Co. V. Doyle \[Cal. App.\] 82 F 112\],

parties to reformation proceedings, Gates v.

Union Naval Stores Co. \[Miss.\] 45 S 879.

73. Inapplicable where other persons who

01. Inapplicable where other persons who

01. Inapplicable by interested, but over whom court

pressa Lumber Co. \[YTa.\] 45 S 1016. Contract

does not possess jurisdiction, are absent.

Buests Mfg. Co. v. Sacco Brick Co. \[Mas.\] 84 NE 445. Since, in case of foreign corpora

tion doing business in state interested in

reformation contract of sale, such corpora-

tion though made party would not be con-

cluded by decree in suit unless it appeared;

St. 1903, p. 443, c. 437, & 68, relating to service

of writs on such corporations, being inapplicable. Id.

74. Eustis Mfg. Co. v. Sacco Brick Co. \[Mas.\] 84 NE 449.

01. Grannot entitled to relief from hard-

ship of defending title to lands he did not

own. Dean v. Hall, 81 Ky. L. R. 1306, 105

SWP 98.

76. Where corporation defendant in suit to

reform contract. Merritt v. Coffin \[Ala.\] 44

8 622.

77. Horne v. J. C. Turner Cypress Lumber

Co. \[YTa.\] 45 S 1016.

78. Cannot set up deed as foundation of

title and without amendment of complaint

attack same by parol. Webb v. Borden, 145

N. C. 188, 58 SE 1083. Complaint seeking

reformation of description in administrator's

deed held to sufficiently allege essential legal

steps authorizing the making of such deed and the error to be corrected, Nolan v.

Hughes \[Or.\] 82 P 362.

1500 REFORMATION OF INSTRUMENTS SS 2C. 10 Cur. Law. must be alleged,"4 but averments of freedom from negligence are unnecessary where facts in bill show that no negligence is imputable to them."5 It is sufficient if the excuse for the nonjoinder of parties, where one party is out of the court's jurisdiction, appears generally from the bill without being specially pleaded."8 In other cases the general rules apply." The complaint should not seek the enforcement of inconsistent rights."8 Amendments may be allowed in the court's discretion."

The burden is on the party seeking reformation."9 The testimony must be clear, precise and indubitable, and of such weight and directness as to carry conviction to the mind."1 To entitle a party to reform a deed for mistake, it must clearly be shown

take in deed which transferred west half story. Id. Mere preponderance insufficient. Instead of east, sufficient to charge mutual mistake. Union Ice Co. v. Doyle \[CaI. App.\]

NWF 916. Preponderance. Coleman v. Thibo-daux, 119 La. 474, 44 S 269. Such full and strict evidence as will satisfy minds of court. Co. v. Kempner, 84 Ark. 349, 105 SWV 880. Evidence sufficient where deed uncorrected is meaningless in certain participants. Coggins v. Carey \[Ad.\] 66 A 673. Must be of intended in deed of one partitioners, and stronger character and be convincing. Mill-that there was specific agreement as to its partition by lot. Peacock v. Bethea \[Ala.\]

convening. Dougherty v. Dougherty, 204

43 S 84.

Mo. 228, 102 SVW 1099. Satisfactory. Smith

V. Interior Warehouse Co. \[Or.\] 94 F 508.

Must clearly appear by testimony of witnesses who distinctly remember facts that

title to lands not owned by grantor, but or mistake was made, and that writing does

noously conveyed to former by latter but

not express agreement. Galileo v. New Cas-only claim of title to all lands owned by grantor, insufficient to warrant judgment for

53. Not probability or preponderance, but

grants, since it left in issue grantor's ownership of tracts in question. Dean v. Hall,

P 1076. Clear, convincing and free from reac-

31 Ky. L. R. 1306, 105 SVW 98. Variance be-tween alleged of complaint to correct deed.

signed and acknowledgeged by grantor and

wife, but from body of which wife's name was omitted, that they sold land, and find-

that the mistake was common to both parties,"22 which usually requires that the preceding agreement be shown."33 It must be shown in the clearest and most satisfactory manner exactly and precisely the form to which the deed ought to be brought."34

Parol evidence is admissible, not to vary or explain the terms of the instrument as executed, but to show the intention of the parties to add certain stipulations omitted by mutual mistake."35 Delay in recording the instrument may be admissible to show fraud."36 Self-serving declaration of grantor's agent inadmissible to show intent to convey only certain property."37 In an action at law for an alleged breach of contract, extrinsic evidence to show that the parties to be bound made a mutual mistake, and that the written instrument embodied a different contract from that which they actually made, can be admitted only when the plaintiff pleads an equitable defense under the statute."38

(SS 2) \_D. Trial and judgment.\_See * C. L. 1712--An agreement may be reformed: and then enforced as reformed."39 The instrument reformed takes effect from the time when it was originally executed, except as to bona fide purchasers without notice and those standing in like relations.30 The court is not limited to one form of remedy,31 but may, when put in possession of the merits of the controversy, decide as to the measure of relief to be granted.40 The decree should set out the details of the reformation so that it will show how the instrument, when corrected, will read.41

Footnote 39: The author is grateful to the anonymous referee for the support of the manuscript.

The ordinary rules as to payment of costs apply.41 Where the decree of reformation:

pal llable. Griffin v. Societe Anonyme la \[sonable doubt. Miller v. Stuart \[Md.\] 68 A: Floridlenne J. Buttgenbach & Co., 63 Fla. 273. 801, 44 is 842. To show granting of permafrost instead of temporary passageway over land was mistake. Patterson v. Skaggs \[KS.\] 105 SW 889. To show mutual mistake or fraud in municipal parsing contract. Fuli lerton v. Des Moines \[Iowa\] 115 NW 607. To show that party signing contract of employ. \[Mas.\] 107 SW 107 SW 107 SW 108. To show that party signing contract of employ. \[Mas.\] 108 SW 108. To show anti-party signing contract of employ. \[Mas.\] 109 SW 108. To show anti-party signing contract of employ. \[Mas.\] 111 SW 110. To show anti-party signing contract of employ. \[Mas.\] 111 SW 1110. To show anti-party signing contract of employ. \[Mas.\] 111 SW 11111. \[Mas.

1508 RELEASES SS 1. 10 Cur. Law.

grants relief according to the claims of each party, it is proper that each pay his own costs.6

REFORMATORIES; RERISTERS OF DEEDS; RERISTATION; I0 Cur. Law. RELIGIOUS SOCIETIES SS 1. 1503

specific obligations cannot discharge other liabilities then existing 21 and leaves co-obligor liable as if no release had been given.24 Release to one of several persons liable releases all,25 even if the party with whom the settlement was made was not legally liable,28 unless otherwise stipulated in the release,27 but it must be shown that the entire claim was satisfied.28

SS 4. \_Defenses to, or avoidance of, releases.See 8 C. L. 1715--The essentials and proof of fraud and mistake are elsewhere treated.29 A release under seal may be impeached for fraud in like manner as one resting in parol.80 A release cannot be re-scinded unless releasors offer to refund money received thereunder 81 promptly.81 A jury having determined that a release was obtained by fraud, tender of sum received is not a prerequisite to the suit.28 It is no defense to a release that=a party did not read or understand its contents before signing.44

SS 5. \_Pleading, proof, and practice.\_See 8 C. L. 1717--Release as a defense must be pleaded,28 and the pleading by one subsequently sued is treated as a ratification of a settlement.28 Satisfaction may be pleaded as matter of inducement.29 A releases under seal can be reformed or set aside only by a court of equity.28

\_Evidence.\_See 8 C. L. 1717--A finding that a release as pleaded was never signed renders question of fraud immaterial.29

RELIEF FUNDS AND ASSOCIATIONS, see latest topical index.

RELIEGIOUS SOCIETIES.

$ 1. Organization as a Corporation and $ 5. Property and Funds, 1505.

$ Status of Society, 1503.

$ 6. Jurisdiction of Contrts, 1507.

$ 2. Membership and Meetings, 1504.

$ 7. Actions by or Against Society or Mem-
$ 3. Ministers, 1504.

$ 4. Powers and Liabilities of Society in

General, 1504.

SS 1. \_Organization as a corporation and status of society.\_See 8 C. L. 1718--Where a portion of a church's members have taken the necessary statutory steps and received a certificate of incorporation, a subsequent attempt by another portion to incorporate so as to defeat the former is void.40 A voluntary religious association owes its ex istence to the compact between its members, and where a written constitution is adopted it will be presumed to contain the terms by virtue of which the association was formed and is to be conducted.\[41\] And a dissolution, abandonment, or substitution of another contract so essentially different as to practically constitute a new association can only be effected by the original parties, their successors, or others to whom such power has clearly been delegated,\[42\] or by abandonment and nonuser of its powers and privileges by all its members.\[43\]

SS 2. \_Membership and meetings.\_See * c. L. 1718--While one becoming a member of a voluntary religious organization subscribes to all its rules and regulations and consents to and is bound by the exercise of all powers conferred on its managing officers,\[44\] yet the fact that church members are dissatisfied with the pastor, disapprove of the control into which the church has fallen, and cease to attend services, affords no ground, without some church rule or law, for their dismissal or expulsion without notice or opportunity to appear and defend; and a vote of expulsion under such circumstances does not terminate membership.\[45\]

A quorum of the legal members of a church, meeting after due notice, constitutes a legal meeting with authority to do any proper acts or transact any proper business connected with church affairs.\[46\] The statute provides that the rector shall be the presiding officer of election meetings of the Protestant Episcopal church, and that he shall be the judge of the qualifications of the voter, receive the votes cast, and declare the result.\[47\] If a meeting be called without authority, matters done thereat are void.\[48\]

_Officers._--The office of church trustee is not one coupled with such an interest that the church body in its corporate capacity may not, at a meeting of its members duly called and held, terminate the tenure of such office.\[49\]

SS 3. _Ministers._\[50\]--A minister may be suspended by the proper church tribunal without any action on the part of the congregation.\[51\]

A pastor illegally suspended, by the proper church body without any action by his congregation, who obtains other employment and does not offer to resume the pastoral relation, cannot recover for his services during such suspension.\[52\]

SS 4. \_Powers and liabilities of society in general.\_See * c. L. 1718--The general powers of church officers are not materially different from those exercised by managing directors of private corporations or managing partners of a partnership association.\[53\] Where the powers of the various church officials and agencies are enumerated by the constitution, they possess no powers except those expressly given.\[54\] Hence whatever requirement the general church assembly may promulgate, it may I0 Cur. Law. RELIGIOUS SOCIETIES SS 5. 1505 also enforce upon all subordinate bodies and members (*) on pain of expulsion,\[56\] but a decree made without authority is not binding and may be disregarded exactly as an unconstitutional law.\[47\] Since the rule that the powers bestowed in written constitutions must always be construed to have in view the preservation and continuity of the entity constituted applies to religious corporations,\[88\] when the power to alter or amend provisions of the organic, contract is delegated to association agencies or officers it is implied that this power shall be used to further the objects for which formed and in harmony with its general plan of organization.\[89\] Church authorities, therefore, have no implied power to unite with another though similar denomination (*) without the consent of every member,\[61\] though it has been otherwise held.\[42\]

Where a minister is suspended by the proper church tribunal without any action by the congregation, the liability of the congregation for the minister's compensation ceases pending a determination of the regularity of the suspension.\[88\]

SS 5. Property and funds.See * C. L. 1710--The trustees of a religious society may accept a bequest in trust for the benefit of its members though the society is not incorporated.\[54\] The rights of members of churches in the property held for the common use is one of user only which interest cannot be assigned or transmitted by inheritance or enjoyed except as a member of the organization,\[95\] and whatever operates to dissolve membership, no matter what its form, ipso faeto terminates and destroys the right to the use of the common property.\[96\] Since members of voluntary unincorporated associations can hold property in no other way than through the medium of trustees,\[97\] officers of a church corporation organized to support the faith and be connected with a certain ecclesiastical organization take title to the property purchased by it charged with a trust and cannot divert it to inconsistent uses against the protest of any member,\[98\] though the grantor imposed no such trust.\[99\] This right, however, is subject to the right of the authorized church judicatories to make such changes in the laws, usages, and customs as are authorized or are not fundamental departures from the general plan and purposes of the organization, and the further power to enforce upon the subordinate members of the organization duc observation

58, 56. Clark v. Brown \[Tex. Civ. App.\] 108 62. General assembly Cumberland Presby-SVV 421. 62. Clark v. Brown \[Tex. Civ. App.\] 108 63. Clark v. Brown \[Tex. Civ. App.\] 108 64. Cantor divert church organized In af-SVV 421. Grant of power "to concert measures for promoting prosperty of church", unite therewith under such terms and under and "to receive under its jurisdiction other seclesiastical bodies whose organization is "v. Xime, 129 Ga, 1, 58 SE 184."

conformed to its doctrine and order" confers no authority to unite with denomination 51. 64. Miller v. Riddle, 130 III. App. 392. 65. Id. 65. 66. Clark v. Brown \[Tex. Civ. App.\] 108 67. Clark v. Brown \[Tex. Civ. App.\] 108 SVV 421. 68. 69. 68. 68. 69. 68. 69. 68. 69. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 71. 73. 75. 78. 79. 70. 71. 74. 76. 78. 79. 71. 75. 79. 72. 74. 76. 79. 70. 71. 76. 78. 79. 70. 71. 77. 78. 79. 71. 79. 72. 73. 74. 76. 78. 79. 70. 71. 78. 79. 70. 71. 79. 72. 74. 79. 73. 75. 76. 77. 78. 79. 71. 79. 70. 71. 79. 70. 72. 74. 79. 71. 78. 79. 70. 72. 75. 79. 71. 79. 72. 76. 79. 73. 77. 78. 79. 70. 73. 79. 74. 79. 75. 76. 77. 78. 79. 71. 79. 70. 71. 79. 71. 79. 72. 74. 79. 75. 76. 77. 79. 71. 79. 70. 71. 79. 72. 77. 78. 79. 71. 79. 70. 72. 79. 73. 79. 74. 79. 75. 76. 77. 78. 79. 71. 79. 70. 72. 79. 70. 73. 79. 71. 79. 70. 73. 79. 71. 79. 72. 74. 79. 75. 76. 77. 79. 71.

1506 RELIGIOUS SOCIETIES SS 5. 10 Cur. Law.

of these changes and modifications." Hence the right to property is dependent upon the right of succession, and in case of a divided congregation only that party which can identify itself with the organic continuation of the original church through its present ecclesiastical connections has the right to the use and control."

Where the terms employed to designate the beneficiaries identified the body of individuals or organization that was to take, the congregation for whose benefit the conveyance was made, take the property unincumbered by any conditions or trusts so far as the grantors were concerned."

The funds of a club composed of members of a church, acquired for such church purposes as the club members may determine, do not belong to the congregation or the church officers, but are under the control of the club."

Under the Maryland declaration of rights, a conveyance to the trustees of a church which was a religious order not sanctioned by the legislature and not showing that it was for any of the purposes named is void," but in such a case title may be secured by adverse possession." The courts will enforce a trust imposed upon the property of religious societies " and prevent a diversion of the property, from trust purposes." Ordinarily, if property is acquired in the ordinary way of purchase or gift for the use of a religious society, the civil courts will only inquire as to who constituted that society or its legitimate successors and award to them the use of the property, but will not, in case of a schism in the organization, inquire into the existing religions of those who adhere to the acknowledged organization." The court will, however, inquire into the religious faith or practice of the parties claiming property where necessary to prevent the diversion of property from the trust imposed," the rule being that interference will only be had when it is manifest that what the church tribnals have adjudicated is not a difference of opinion as to doctrine but an attempt in the form of such adjudication to utterly abandon the purposes for which the church was organized," and where the officers undertake fundamental changes affecting the status of the entire membership, the courts after proper application will

70. Clark v. Brown \[Tex. Civ. App.\] 108 SW 421.

01. Where conveyance was to those com-

open, Dickerson v. Kirk, 105 Md. 638, 66 A

1494.

resentatives of original organization, property prima facie plaintiffs. Clark v. Brown \[Tex. Civ. App.\] 108 SW 421.

72. Clark v. Brown \[Tex. Civ. App.\] 108 SW 421.

01. Where grantee of land purchased for

site of new building for Roman Catholic

church declared he held same in trust s-

security for the payment of price and for

secret on price being paid in certain time,

and club composed of members of society

used its funds to pay part of price and re-

ceived an undivided halt interest in pre-

less, which funds did not belong to and were

not under control of bishop of decees, the

blshop could not maintain bill to enforce

-specific performance of trust on theory that

the acquired rights because of payments made

by club. Eis V. Croze, 149 Mich. 62, 14 Det.

Leg. N. 357, 112 N79 843.

74. Art. 38, Declaration of Rights, provid-

ing that every sale of land to every religious

denomination without prior or subsequent

function of legislature shall be void except

claim to be trustees and one of them to be

sale not exceeding five acres for church

mecting house, other house of worship, par-

being contract of the church property or their

sonage, or buying ground. Dickerson v. Kirk, 105 Md. 638, 66 A 494.

75. Possession for forty-three years gives

approximately obtainable title which purchaser must

cept, Dickerson v. Kirk, 105 Md. 638, 66 A

494.

001. Marien v. Evangelical Creed Congrega-

ton \[Vis.\] 118 NW 66.

77. Clark v. Brown \[Tex. Civ. App.\] 108 SW 421.

01. Chester v. Brown \[Tex. Civ. App.\] 108 SW 421.

01. Chester v.

I0 Cur. Law. RELIGIOUS SOCIETIES SS 7. 1507 ascertain their authority to do so.\[81\] The courts in determining whether there has been an abandonment of the tenets and doctrines of the church,\[82\] and where a right of property is dependent upon an ecclesiastical question and that question has been decided by the highest tribunal within the organization to which it has been properly carried, will accept that decision as conclusive and be governed by it in its application to the case before it.\[83\]

**SS 6**. \_Jurisdiction of courts.\_See s C. L. 1711--The constitutional guaranty of freedom of religious profession and worship forbids judicial control of proceedings of ecclesiastical bodies which do not violate civil or property rights,\[84\] and a bill which fails to show that property rights will be affected is demurrable.\[85\] It has been held, however, that mandamus will lie to secure the reinstatement of a member unlawfully expelled.\[86\]

**SS 7**. \_Actions by or against society or members.\_See s C. L. 1711--Religious associations having rights of property and of contract come before the courts in practically the same attitude as private corporations and are equally under the protection of the law and the action of their members subject to the same restraints.\[87\] Where a religious association acquires by gift or purchase property for the maintenance of the faith of a recognized denomination, every member thereof may resist the diversion of the property to other uses.\[88\] But a church officer cannot maintain an action to enforce specific performance of a trust to convey lands on payment of certain price at a certain time merely because the purpose of the trust was the benefit of the church and the money was paid by a society composed of members of the church where officer had no right to or control of funds.\[88\] The burden of showing that those who prima facie represent the original organization no longer are entitled to the same is on the aggressor.\[89\]

**S1. Where officers attempt to unite with**

store to membership in a church when no another denomination, dissolving relation.

temporal rights are involved. Hundley v., ship heretofore existing among members and subordinate bodies. Clark v. Brown \[Tex.

People v. Ger. A. Ev. Ch., 53 N. Y. 103. The City. App.\] 108 SW7 421.

**S2. Mack v. Klime, 129 Ga. 1, 58 SE 184.**

by the constitution of the society. Grosve-

classified matter is the that concerns doco-

or y. Un. Soc. of Believors, 118 Mass. 78;

trine, cred, or form of worship of church, or adoption and enforcement within religious

Mich. 542. An expulsion by the church is association of needful lays and regulations

not a corporate act and does not affect any

for government of membership, and power of

property interest or other valuable civil

excluding from such associations those

fight of the expelled member. Salex, by Bap-

deemed unworthy of membership by the

tigally constituted authorities of church; and

Soares v. Hebrew Congregation, 31 La. Ann.

all of such matters are within the province

of church courts and their declisions will be incorporated societies the courts will grant

respect by civil tribunal. Clark v. Brown

mandamus to settle controversies when the

(Tex. City, App.\] 108 SW7 421.

- 84. Courts will not interfere in matters of

first of all there must be a penal decision by church organization, cred and discipline,

the proper authorities in the society. Lam-

constructe constitution, canons or rules, or

prevente V. United Workmen, 47 Mich. 429;

- 17, 84 NE 42; Marien v. Evangelical Creed

S7. Clark v. Brown \[Tex. Civ. App.\] 108

Congregation \[Vrs.\] 118 NW 66.

Court con con.

every only with property rights. Clark v.

S8. Marien v. Evangelical Creed Congrega-

Brown \[Tex. Civ. App.\] 108 SW7 421.

S8. Will not interfere to prevent union of

S8. Elis V. Grave, 143 Mich. 62, 14 Det. Leg:

churches with central church by Presbytery,

N, 357, 112 NW 943.

Evidence of purpose for

Fussel v. Hall, 233 Ill. 78, 84 NE 42.

which property was purchased competent' in

86. Hughes v. North Clinton Baptist

determining legal effect of action of club

Church of East Orange \[N. J. Law\] 67 A 66.

which contributed money toward purchase

**Note:** The New Jersey courts alone seem

of church site now sought to be claimed by

to have held this point; the courts of Li:

church officials. Ida.

other states have refused mandamus

90. Clark v. Brown \[Tex. Civ. App.\] 108

grounds that mandamus will not lie to re-

SW7 421. Compilant alogging that church Quo warranto is the proper method of questioning the right of a church corporation to act as such." Mandamus is the proper action to compel the proper official to issue a certificate of election to a church official," and also to secure the reinstatement of one who has been unlawfully deposed from membership in a church without cause, without charges, and without hearing." A judgment entered against an incorporated religious congregation will not be opened where it appears that the note on which the judgment was entered was signed by the president and secretary of the corporation who had full authority to execute the note; and that the note was given for a valid consideration, and that the debt which it represented was due and unpaid."

Remailers; Remedyt at Law; Remitittur, see latest topical Index.

**REMOVAL OF CAUSSES.**

**SS 1. Right to Remove From State to Federal**

**SS 6. Amount in Controversy, 1511.**

**SS 7. Procedure to Obtain and Effect the Recknowy, 1511.**

**SS 8. Transfer of Jurisdiction and Other Consequences of Removal, 1513.**

**SS 9. Practice and Procedure After Removal; 1505.**

**SS 4. Diversity of Citizenhip and Allenage of**

**SS 10. Transfers Between Courts of the Same Party, 1509.**

**SS 5. Prejudice and Local Influence and Denial of Civil Rights, 1511.**

While the rule that a cause to be removable to a Federal court must be one within its jurisdiction is here treated, the nature and extent of that jurisdiction pertains to another topic."

\*\*SS 1. Right to remove from state to Federal court.\*\*See # C. L. 1722.\*\*The right of a nonresident corporation to remove to the Federal courts cases commenced against it in a state court can not be restricted by the state," and, at the instance of the corporation, the Federal court will restrain proceedings to enforce such a law."

\*\*SS 2. What is a "suit" or "action" so removable,"\*\*See # C. L. 1723.\*\*The phrase, "a suit of civil nature at common law or in equity," includes all proceedings at law or in equity as distinguished from proceedings in military, admiralty, and ecclesiastical courts." Condemnation proceedings so partake of the character of a suit at law as to render them removable to a Federal court."

\*\*SS 3. Nature of controversy or subject-matter and existence of Federal ques-

**SS 4. Hughes v. North Clinton Baptist**

**which of East Orange \[N. J. Law\] 67 A 66.**

\*\*which of East Orange \[N. J. Law\] 67 A 66.

10 Cur. Law. REMOVAL OF CAUSES SS 4. 1509

\_tion.\_See 8 C. L. 1738--Under the removal acts of congress, causes may be removed from state to Federal courts whenever the latter have original jurisdiction of the subject-matter of the action, although such jurisdiction may be concurrent with that of the state court.1 The cause must be within the jurisdiction of the Federal court.2 Where the right to recover rests upon the operation of the Federal statute, Federal courts have original jurisdiction,s and the fact that such a case might also be determined on common-law principles, and that, independent of the statute, the case presents a good cause of action, does not arrest Federal jurisdiction.4 Over actions arising under the postal laws, the jurisdiction of state and Federal courts is concurrent.5 The Federal court to which removal is sought is the sole arbiter of jurisdictional facts,6 though questions of law may be determined also by the state court.7 A case is removable as arising solely under the constitution, laws, or treaties of the United States, if from the bill it appears that some right, privilege, or immunity on which recovery depends, may be defeated or sustained by one or another construction of the constitution or laws of the United States.8 But, to authorize removal on the ground that a Federal statute is involved, a substantial defense thereunder must be shown.8

Footnote 1: The author is grateful to 1510 REMOVAL OF CAUSSS $ 4. 10 Cur. Law. whether it may acquire jurisdiction by consent or waiver in such a case, the authorities are in conflict.\[18\] The joinder of a resident with a nonresident, when proper, and the cause is not severable, bars the latter's right to remove,\[14\] even though the resident was joined solely to accomplish that purpose.\[15\] Where the liability of the resident and nonresident is both joint and several, plaintiff may elect to sue them jointly,\[16\] and if he does so, the right to remove is destroyed, though they have separate defenses and might have been sued separately,\[17\] or even though an instructed verdict is rendered for the resident defendant.\[18\] Whether a case is joint or several must be determined from plaintiff's pleadings,\[19\] and when they fail to show\[20\] or the evidence to prove that any real cause of action exists against the resident defendant,\[21\] the mere fact of his joinder is no bar to a removal,\[22\] for it is the duty of the court, in determining this question, to disregard all but indispensable parties.\[28\]

F 530. U. S. Comp. St. 1901, p. 508. Baxter, Straw & Storrs Const. Co. v. Hammond Mfg., 18. Where there was reasonable cause to Co., 154 F 982; Southern Pac. R. Co. v. Belve him Ilabe. Illinois Cent. R. Co. v. Burton \[C. C. A.\] 152 F 168. The "proper Shsegog"s Adm?, 31 Ky. L. R. 681, 103 SWV district" to which a suit may be removed 232. is that in which plaintiff resides. Under U. S. Comp. St. 1901, pp. 508-59, 81, 12, 3. McAllister v. Chenaspakee, etc., R. Co. \[C. C.\] Hill V. Woodland Amusement Co., 158 F 830. But, where plaintiff's assignor might have terrs Irr. Co., 158 F 346; Hough v. Southern brought suit in a Federal court, the asr. Co., 144 N. C. 692, 87 SE 469. Unless de-signed may sue in the Federal court for defendant in his pettition for removal both the district of which either he or defendant alleges and proves a fraudulent joinder. is a resident, and the fact that the assignor is not a resident of the district in which 57 SE 1089. When this is done, the court will determine the question on its merits. Stimson v: United Wrapping Mach. Co., 156 McGuire v. Green Northern R. Co., 153 F F 298. 434. An allegation that defendants and each and every one of them failed to carry out hg to trial on the merits, Louisville, etc., and perform and has abandoned and refused further to comply with the contract, for breach of which suit is brought, states a joint liability. Davis v. Rexford \[N. C.\] deffenant. Corwin Mfg. Co. v. Henriel 19 SE 1002. Washer Co., 151 F 938. By permitting case 20, Chicago, etc., R. Co. v. Stepp, 151 F 908; Atlantic Coast Line R. Co. v. Bailey, amending pleadings and arguing the case 151 F 981; Louisville, etc., R. Co. v. Newman, 128 Ga. 28, 57 SE 515. 211. As soon as this appears, the action should be dismissed against the resident and upon application the cause removed to the Federal court, though it does not appear until the evidence is all in. Under-wood's Adm? v. Illinois Cent. R. Co., 31 Ky. L. R. 595, 103 SWV 322. Action against a company and its employee to recover damages for negligent injuries resulting in death against whom no recovery is provided for by the statute. R. Stepp, 189, 2864, Am. Laws 1905, pp. 135-7. Chicago, 151 F 908. 22. As where resident and nonresident railway companies joined in an action to recover for goods shipped under separate and distinct contracts with each, there is no joint liability, and the joinder is no bar to removal. McGuire v. Great' Northern R. Co., 153 F 34. In suit to have railroad bonds declared vold, joinder of resident stockholders, etc., where railroad is only necessary party, no bar to removal. Politz v. Wabash R. Co., 153 F 941. 23. Rogers v. Penobscot Min. Co. \[C. C.\] A.J. 154 F 606. On a pettition for removal, the court should arrange the actual parties on opposite sides of the real controversy according to their Interests and if there appears to be a controversy between citizens of different states and other jurisdic * 10 Cur. Law. REMOVAL OF CAUSS SS 7. Where the petition for removal alleges a fraudulent joinder, it must state the facts showing it,24 and whether or not it does so may be determined by the Federal court only.25

Footnote 25: The author is grateful to the anonymous diction at once attaches, regardless of the state court's refusal to grant the order of removal,\[38\] and plaintiff may thereupon be enjoined from proceeding further in the state court.\[34\] Upon such removal, the regular course of procedure in the Federal court is stayed until the day on which the transcript is required to be filed,\[85\] and where the Federal court is in session at the time the application for removal is made, a transcript is filed in time if filed on the first day of the next succeeding term.\[86\] Removal may also be accomplished by filing in the Federal court a certified copy of the record, together with a good and sufficient bond.\[87\] Since the state court has no jurisdiction to determine questions of fact raised by the petition,\[88\] it must take the allegations thereof to be true\[89\] and, if a case for removal is stated on the face of the petition, the state court must order its removal,\[40\] but if a prima facie case is not made out, the state court retains jurisdiction.\[41\] Whether or not the case is removable must be determined from the pleadings and record as they appear at the time the petition is filed.\[42\] The rule that all parties on the side of the controversy offered to plaintiff must join in the petition for removal does not apply where the suit is separable,\[48\] and the fact that one not entitled to removal joins in the petition therefor does not require a removal of his case with the other where the action is divisible.\[44\] The as of the day on which the motion for extension was filed, Quilhot v. Homer, 158 F 188.

**38.** Atlantic Coast Line R. Co. v. Bailey, 151 F 891.

**34.** The injunction proceeding is not against the state court (Chicago, etc., R. Co. v. Stepp, 151 F 908), until the Federal court shall hear and determine the question of its own jurisdiction (McAllister v. Chesa-peake, etc., R. Co. \[C. C. A.1 157 F 740). Where the injunction bill raises issues of fact. Atlantic Coast Line R. Co. v. Bailey, 151 F 891.

**35.** Judgment by default in the interim will be set aside. Goldberg, Bowen & Co. v. German Ins. Co., 152 F 831.

**36.** Such a contingency not being provided for by U. S. Comp. St. 1901, p. 512, relating to time for filing transcript. Goldberg, Bowen & Co. v. German Ins. Co., 152 F 831.

**37.** Stockley v. Cisana \[Tenn.\] 104 SW 792. When, in such case, counsel for complain-ant appears, moves to remand and argues the case, defendant cannot be heard to complain of a subsequent refusal to remand on petition since he has had the full benefit of a removal. Id.

**38.** They must be tried in the Federal court. Gibbs v. Santee River Cypress Lumber Co. \[R. C.\] 60 SE 689. The only question for the state court is one of law, whether, admitting the allegations of the petition to be true, the course is a removable one. Boatmen's BK. v. Fritzl, 75 Kan. 479, 89 P 915.

**39.** Vha-Lewiston Land & Water Co. v. Lewiston-Sweetwater Irr. Co., 158 F 137. In the absence of denial by answer or by comparison with the record. Atiana, etc., R. Co. v. Southern R. Co. \[C. C. A.\] 153 F 122. An allegation that more than $2,000 is involved, though denied under oath in a replication, the latter having no place in the record in determining the question of jurisdiction, is sufficient. First Nat. Bk. v. Glasser \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 686, 102 SW 171.

**40.** Allegations show that \<\< resident co-defendant was joined for the sole purpose of preventing a removal and with no intention to prosecute the alleged cause of action against it make out a prima facie case. McAlister v. Chesa-peake, etc., R. Co. \[C. C. A.\] 157 F 740. Whether a case is a removable one is for the Federal court to determine. Id.

**41.** Such a case is not made by a general allegation in the petition that more than $2,000 exclusive of interest and costs is involved where the complaint shows the amount to be less than that amount. Gibbs v. Santee River Cypress Lumber Co. \[S. C.\] 60 SE 689. Where the petition falls to state with sufficient jurisdictional facts, the defect can not be aided by evidence. Illinois Cent. R. Co. v. Sheegg's Adm'r, 31 Ky. L. R. 691, 103 SW 323.

**42.** Davis v. Rexford \[N. C.\] 59 SE 1002. It must, as a rule, be determined solely from plaintiff's bill or declaration. Blunt v. Southern R. Co., 155 F 499; McAllister v. Chesapeake, etc., R. Co. \[C. C. A.\] 157 F 740; Southern R. Co. v. Miller, 1 Ga. App.\] 616, 57 SE 1090; Davis v. Rexford \[N. C.\] 59 SE 1002, Especially where the issue arises solely under the Federal constitution, laws, or treates of the United States. State of Oregon v. Three Sisters Irr. Co., 158 F 346. The cause is whatever plaintiff declares it to be, and denial by defend * 10 Cur. Law. REMOVAL OF CAUSS SS 9. 1513

burden of showing jurisdictional facts in the Federal court, on the hearing of a petition to remand, is on the defendant, \[45\] and every inference is to be adjudged against and not in favor of Federal jurisdiction, \[48\] but plaintiff will not be allowed to defeat Federal jurisdiction, after removal, by reducing the amount of his claim. \[47\] By submitting to the jurisdiction of the state court, defendant estops himself from the right to removal, \[48\] and, by a fraudulent attempt to prevent a removal, plaintiff will be estopped from objecting that the petition therefor was not filed in time. \[49\]

SS 8. \_Transfer of jurisdiction and other consequences of removal.\_See 8 C. L. 1729

Where the state court has jurisdiction of a case and rightfully retains it; or where a case is remanded to it by the Federal court, the trial or hearing in such court is in no way affected by any proceedings which may have been had in the Federal court. \[50\]

The dismissal of a suit in the Federal court is no bar to institution of the same suit in a state court, where other proper parties are joined, and there is no obligation on the one whose case has been either voluntarily or involuntarily dismissed in a Federal court to pay the costs therein accrued before commencing the same suit in a state court. \[51\] The removal of a cause does not estop the remover from questioning the jurisdiction of the court originally having the case. \[52\]

SS 9. \_Practice and procedure after removal; remand or dismissal.\_See 8 C. L. 1730

Upon removal of a cause, the Federal court takes it as it finds it, accepting all decrees and orders as adjudications. \[53\] But its own rules and practice, rather than those of the state court, will be invoked to determine the validity of service of the summons and complaint. \[54\] A cause improperly removed to the Federal court will be remanded to the state court, \[55\] and the action of the Federal court in so remanding a cause is final and conclusive upon the state supreme court. \[56\] While the refusal of the Federal court to remand, when based upon its judicial determination that the cause was separable as to the removing nonresident defendant, may be reviewed on

- 49. As where he fraudulently joins a resident defendant. Boatmen's Bk. v. Fritz-F 824. \[50\] The facts that a petition and bond for removal and transcript of record to Federal court were duly filed, and the latter assumes jurisdiction of a case, will not be considered on appeal from the state court which properly refused to transfer the case to the Federal court, and Itself tried and disposed of it. Johnson v. R. Joseph Ter-minal R. Co., 203 Mo. 381, 101 SWP 441, The fact that a case has been removed to a Federal court and there tried is no defense to a motion to dismiss in the state court after the case has been remanded by the Federal circuit court of appeals. Flinney v. American Bonding Co., 13 Idaho, 534, 90 P 859. \[51\] Southern R. Co. v. Rowe, 2 Ga. App. 557, 59 SE 462. \[52\] Lewis Pub. Co. v. Wyman, 152 F 200. \[53\] But a motion pending at the time of removal or decided by state court without prejudice to a renewal may be heard in the Federal court. Guernsey v. Cross, 153 F 827. \[54\] Case v. Smith, Lineaweaver & Co., 152 F 730. \[55\] Blunt v. Southern R. Co., 155 F 499. As where all the property whlch a judgment of the Federal court could affect is in the custody of the state court. Goldberg, Bowen & Co. v. German Ins. Co., 152 F 831. \[56\] Stockley v. Cisana \[Tenn.\] 104 SWP 792.

1514 REPLEVIN SS 1.10 Cur. Law. appeal or error, mandamus will not lie to compel the remand.${}^{\\text{\\tiny\\textregistered}}$ As to whether, after removal, the petition may be so amended as to show the requisite diversity of citizenship, the authorities are unreconciled.${}^{\\text{\\tiny\\textregistered}}$

SS 10. \_Transfer between courts of the same jurisdiction.${}^{\\text{\\tiny\\textregistered}}$\_See_s_C. L. 1732--The action of a justice of one municipal court in transfering a case to another, under the Municipal Court Act of New York City,${}^{\\text{\\tiny\\textregistered}}$ will not be reviewed on mandamus, though such transfer was not applied for in season.${}^{\\text{\\tiny\\textregistered}}$

REPLEVIN.

\_Scope of topic.--\_This topic is confined to a treatment of the common-law action of replenvin in its original form and as modified by statute, and of the statutory actions which are practically identical therewith, such as claim and delivery, to the exclusion of other distinctive forms of action for the possession of personalty or its value.${}^{\\text{\\tiny\\textregistered}}$ These actions, however, have many principles in common with replenvin, and may be consulted to advantage in connection with the topic here treated.

SS 1. \_Nature and form of action. Distinctions.${}^{\\text{\\tiny\\textregistered}}$\_See_s_C. L. 1738--Replevin is in the nature of an action ex delicto ${}^{\\text{\\tiny\\textregistered}}$ and to a certain extent in rem,${}^{\\text{\\tiny\\textregistered}}$ though, in some jurisdictions, not local.${}^{\\text{\\tiny\\textregistered}}$ The gist of the action is the unlawful or wrongful detention ${}^{\\text{\\tiny\\textregistered}}$ of personal property,${}^{\\text{\\tiny\\textregistered}}$ and its primary object is the recovery of possession of such property,${}^{\\text{\\tiny\\textregistered}}$ the issue of the right of immediate possession sometimes being the only one involved,${}^{\\text{\\tiny\\textregistered}}$ though a recovery may usually be had of damages for the detention - and alternately for the value of the property detained,${}^{\\text{\\tiny\\textregistered}}$ and in some jurisdictions the rights and interests of the parties to and in the property sued for may and should be determined.${}^{\\text{\\tiny\\textregistered}}$ In some states the remedy exists in general and special forms, with distinct differences.\[12\] The statutory action of claim and delivery is practically identical with replevin.\[13\]

SS 2. \_Right of action and defenses.\[See * c. L. 1788--The right of action in replevin is dependent upon the right to immediate possession,\[14\] or, as it is sometimes expressed, plaintiff must have a property interest, general or special, in the property saved for and the right to immediate possession thereof,\[15\] and where he has neither he has no right of action.\[78\] At common law an unlawful taking was essential,\[17\] but this element has very generally been eliminated by 'statute,\[78\] and the rule now generally obtaining is that a right of immediate possession in the plaintiff and a wrongful detention by the defendant is sufficient to sustain the action,\[78\] though the plaintiff has never had possession.\[80\] The plaintiff's right of possession, however, must be so immediate as to render the defendant's detention unlawful without any prior demand for the property,\[81\] or if demand is necessary to render the detention unlawful, such demand is essential to the cause of action\[82\] unless it has been waived;\[83\] as is also any other step necessary to render the detention unlawful.\[84\] The plaintiff's right of possession must also be exclusive.\[85\] The plaintiff can recover only upon the strength of his own title and right of possession,\[86\] and the right of possession may

property and damages for detention where plaintiff has taken possession, and $ 10, 0 depend upon title and ownership," but actual possession alone is sufficient as against a wrongful dispossessor." Some of the particular persons whose right to maintain the action has recently been adjudicated are: Seller of goods with reservation of title as against the purchaser;" seller who has fraudulently been induced to sell;" seller as against purchaser's receiver;" "lienors;" "pledgor as against pledge;" personal representatives of decedents."

The action does not lie to recover intangible property " or property capable of use only in violation of law or to the injury of morals." It generally lies to recover

87. Evidence held to show that plaintiff | reserved, against purchaser, Gravert v. was owner of cow. Elliott v. Elliott \[Iowa\] | Goothard \[Neb.\] | 115 NW 569. | 114 NW 1074. | 116. | 117. | 118. | 119.

10 Cur. Law. REPLEVIN SS 3. 1517

personality only," but the right of action will not be defeated by the wrongful attachment of personality to reality," and in such case the personality may be relevied even in the hands of a bona fide purchaser of the reality." In order to maintain replevin for property severed from reality, the plaintiff must have had actual or constructive possession of the reality,1 and adverse possession by the defendant will defeat the action.2 Property in custodia legis cannot be relevied," but this rule does not apply to every seizure by officers of the law,4 and the exemption does not follow the property into the hands of private individuals claiming in their own right, though as successors to or through the legal custody.5 Where several articles are wrongfully.

milk watered in violation of law (Deems v. not only the right of possession but of the haltimore, 80 Md. 164, 80 A 648, 45 Am. St. ten. 339, 25 L. R. A. 541); the "blind tiger" aresa relevied cannot be maintained by a. keeper, as to his liquars (State v. O'Neal, 88 Yt. 162, 2 A 586, 56 Am. Rep. 557); the inde-cant individual, as to his obscene prints and lastvolus pictures; the gambler, as to his entry and sold it the replevin proceedings-slot machine (Board of Police Com's v. Wagner, 93 Md. 182, 48 A 458, 86 Am. St. ten. 425, 52 L. R. A. 775), or as to his poker chips (Bales v. State, 3 W. Va. 687); the burglar, as to his kit, or the counterfeit, can help repair against purchaser. Id. as to his molds and coins (Spalding v. Preston, 21 Vt. 9, 5 Am. Dec. 68); the highway-man, as to his spoils (opinion of Lord El-lenborough, referred to on page 16 of case last cited); nor will it protect the Keeper of a gambling house, as to his paraphemina and implements crime (Kneeland v. Con-nally, 70 Ga. 424). This specific doctrine herein announced is not referable so directly to the legal maxim, "Ex dolo taken by a single trespass, the owner may maintain replevin for the part undisposed of and trover for the balance.6

Replevin lies only against one in possession at the commencement of the action,7 but this rule cannot be invoked by one who has wrongfully disposed of the property of another without the latter's knowledge.8 The defendant may defeat the action by showing title and right of possession in a third person 9 or by proof of a lien entitling defendant to retain possession of and payment out of the property,10 but the pendency of another replevin action by the defendant against a third party is no defense.11 A conditional purchaser cannot set up a mortgage executed by him as a defense to an action by the seller.11 In an action by a purchaser to recover the property of which he has been dispossessed, the terms of the sale affecting the right of possession are unavailable as a defense where they have been waived by unconditional delivery,11 and where no instalment of the purchase money is due, a seller who has taken the property from the purchaser cannot set up an equitable mortgage for the purchase money as a defense.14 In the absence of fraud or misleading circumstances, the good faith of the defendant in seizing and causing to be seized the property of the plaintiff as that of another is no defense.15 Set-off of accounts cannot be had.16

Footnote 11: The author is grateful to the anonymous referee for the support of the paper.

SS 3. _Jurisdiction and venue._ See * C. L. 1308 --Jurisdiction is not dependent upon the execution and filing of papers designed to secure delivery of the property,10a but in some states jurisdiction is acquired only by seizure of the property, the action being to this extent in rem.17 The amount in controversy is the value of the property seized, and not the money claim upon which the seizure was based.18 In jurisdictions where the action is not considered as being local in its nature, the place of detention is not necessarily the venue of the action.19

SS 4. _The affidavit._ See * C. L. 1785 --The essential contents of the affidavit are dependent more or less upon statutory enactment.20 Where the affidavit is made on information and belief, the information should appear to be derived competently,21 and the sources thereof must be disclosed in such a way as to enable the court to decide

upon the probable truth of the statements and the authenticity of the jurisdictional facts.${}^{22}$

**SS 5. Plaintiff's bond.** See * C. L. 17188

**SS 6. The writ and its execution.** See * C. L. 17188

**SS 7. Custody and delivery of property.** See * C. L. 17188

Failure to file the affl-davit required by statute as the basis of an order for the delivery of the property before the issuance of such order ${}^{23}$ is ground for quashing such order.${}^{24}$ The remedy for a wrongful delivery by the officer is mandamus and not certiorari.${}^{28}$

\_Forthcoming bond.\_See * C. L. 1718

A forthcoming bond is generally required as a condition to the right of either party to possession.${}^{28}$ The obligation of a redelivery bond filed with an afflafavit of illegality is to redeliver the goods at the time and place of sale.${}^{27}$ The execution of a delivery or forthcoming bond operates as an estoppel to deny the possession of the property at the time of its seizure.${}^{28}$

**SS 8. The pleadings and parties to the action.** See * C. L. 1718

The petition should contain the allegations required by statute,${}^{28}$ and where demand is necessary the petition should allege it ${}^{28}$ or a waiver thereof,${}^{21}$ or at least facts sufficient to let in proof thereof.${}^{28}$ An allegation of ownership is not determinative of the right of possession,${}^{34}$ and hence where the action is based on a wrongful detention, without any allegation of wrongful taking, an allegation of ownership is not alone sufficient.${}^{34}$ The action, furthermore, being based solely upon the right of immediate possession at the commencement of the action, it is not sufficient to allege title and wrongful detention without alleging such right of possession.${}^{34}$ The right to immediate possession need not, however, be expressly alleged where the legal equivalent thereof is alleged.${}^{34}$ An allegation that plaintiff is entitled to immediate possession without any statement of general or special ownership is insufficient as being a legal conclusion,${}^{37}$ as is also an allegation of ownership by virtue of an alleged conveyance.${}^{38}$ An allegation of ownership by way of a conclusion from the facts recited is tested by such facts,${}^{39}$ but recials of the conveyance incorporated in the complaint cannot supply the want of allegations of ownership and possession.${}^{40}$ The declaration need not anticipate and negative defendant's claim of title.${}^{41}$ Failure of the plaintiff, holding full legal title, to allege beneficial interests in the property owned by others, cannot

**22. Letters and conversations constitut-**

ing basis of belief should be set out. As-\*\*

new v. Latham, 54 Misc. 61, 105 NYS 366.

**23. K:Irb's Dis. 91 6853, 6854. Schattler**

v. Heismann \[Ark.\] 107 SWP 196.

**24. Schattler v. Heismann \[Ark.\] 107 SWP 196.**

**25. Detroit & M. R. Co. v. Alpena Circuit**

Judge \[Mich.\] 115 NWV 724.

\*\*26. Under K:Irb's Dis. $ 6857, plaintiff is not entitled to have property delivered to him until he has executed the bond required by the statute. Southern Orchard Planning Co. v. Gore, 83 Ark. 78, 102 SWP 709. Execution of bond required by Kirby's Dis. $ 6857, as condition of delivery to plaintiff, held not shown by allegation in suit on officer's bond of failure to deliver "as required by law." Id. Under Comp. Laws 1897, 10.

685, as amended by Pub. Acts 1899, p. 384.

Act No. 246, $ 11, the property cannot be delivered to either party without defendant's written consent until expiration of forty-eight hours after appraisal. Detroit, etc., R. Co. v. Alpena Circuit Judge \[Mich.\] 115 NWV 724.

**27. Kaminsky v. Horrigan, 2 Ga. App. 332, 58 SE 497.**

**28. Indiana Union Trace. Co. v. Bick, 40 Ind. App. 451, 81 NE 617.**

**29. Where there is no afflavit for re-**

**28. K:Irb's Dis. 91 6853, 6854. Schattler**

**20.** We have the record, and the petition is not positively verified and omits all the allegations required by Code Civ. Proc. $ 182, subd.

**34.** It is Insufficient. Racine-Sattley Co. v.

**4.** M:Genen \[Neb.\] 113 NWV 321, following J. L.

Case Threshing Mach. Co. v. Rosso \[Neb.\]

\*\*26 be raised by objection to the plaintiff's capacity to maintain the action." An allegation of wrongful taking should state that the property was taken from the plaintiff,"48 but a defect in this regard is cured by the verdict.44 An allegation that the detention is "wrongful" is a sufficient allegation of the illegality of the detention.48 A description in general terms may be sufficient where the location of the property is given,48 and the particular nature of the property may be proved on the trial.47 Where the plaintiff claims as owner movable property held by a third person asserting title thereto, he is bound to identify such property as that owned by him.48 In jurisdictions where the action is not a local one, venue need not be alleged.49 Juris-diction in a justice's court may be conferred by a very informal pleading.50 The plaintiff must rely on his title as alleged.51 Unless alleged and proved, no recovery can be had for the value of the property 52 or for damages.53 A counterclaim may or may not be necessary to authorize a recovery of damages by the defendant, according to the practice in the various courts.54 A special denial puts in issue all the essential aberrations of the complaint, and puts the burden of proving them upon the plaintiff,55 and under such denial the defendant may offer evidence to controvert plaintiff's evidence, to disprove his allegations, and to prove other and inconsistent facts.56 Under a general denial, anything may be proved which tends to prove the defendant's right of possession or disprove that of the plaintiff.57 An allegation that the defendant did not at any time wrongfully or unlawfully retain possession of the property is a mere conclusion.58 An allegation that the defendant parted with possession prior to the suit raises no issue on the plaintiff's allegation that defendant had possession when the suit was brought.59 Defendant's pleadings cannot be aided by the allegations of his claim and delivery affidavit.60 The facts constituting a special property claimed by defendant must be fully alleged.61 One entitled to possession may alone maintain replevin though another holds the legal title,62 but where the right of possession is dependent upon title, a plaintiff

42. McDonald v. Daniels \[Kan.\] 92 P 51. court. Gurley Bros. v. Bunch \[Mo. App.\] 108. 43, 44. Brown v. Lewis \[Or.\] 92 P 1058. SV 1109, Counterclaim necessary to recovery of damages by defendant in case original. 624. 46. Description of property as "a car plant" in defendant's possession at a certain place held sufficient. Indiana Union Trac. Co. v. Bick, 40 Ind. App. 451, 81 NE 617. 47. Indiana Union Trac. Co. v. Bick, 40 Ind. App. 451, 81 NE 617. 48. Daniels v. Tauubenblatt \[La.\] 45 S 273. 49. Under Rev. St. 1899, $ 3805, 4146, 4158. 4159, the venue of the detention need not be alleged. Boswell v. First Nat. Bak. \[Vyv.o\] 92 P 624. 50. Paper purporting to be affdavit filed in justice's court, and claiming delivery of the property under Kirby's Dig. $ 6853, 6854, held sufficient complaint to confer jurisdiction of the subject-matter. Schather v. Heisman \[Ark.\] 107 SW 196. 61. Palmer v. Hurst \[S. D.\] 115 NWV 516. Where plaintiffs use as co-owners of several items of property, they can recover only upon proof of co-ownership, and not upon proof of ownership of all by one, or of sole ownership by the several plaintiffs of different items. Id. 62, 83. Hollback v. Greene, 120 App. Div. 671, 105 NYIS 915. 64. Under Rev. St. 1899, $ 3921 (Ann. St. 1900, p. 2163), no counterclaim or verbal claim is necessary to a recovery of damages by the defendant in repelvin in justice's 10 Cur. Law. REPLEVIN SS 9. 1531

suing alone must have the sole title." One having actual possession and one having constructive possession may be joined as defendants." The rights of nominal parties cannot be determined." A total substitution of plaintiffs cannot be allowed by way of amendment." As a general rule the title and right to possession must be determined as of the date of the commencement of the action," but this rule has been more or less modified by statutory provisions for intervention by parties interested."

SS 9. \_Evidence.\_See * C. L. 171"--The plaintiff must prove his immediate right of possession." The burden is also on the plaintiff to identify the property where it was in the hands of third persons when replevied." Where the defendant sets up a prior title or claim, the burden is on him to prove it " and also plaintiff's notice thereof when he acquired his title."

Possession and exercise of ownership rights is some evidence of title " ordinarily making a prima facie case of title in the possessor," and if evidence is introduced to control it the whole evidence is to be considered." Evidence that plaintiff had listed the property for taxation in severalty is admissible against his claim of co-owner-ship," and evidence of the former possession by the plaintiff is admissible in a proper case." A tender of money is not conclusive upon the issue of right of possession." At best it is only an admission " which may be explained." On an issue of abandonment of the property by the plaintiff and acceptance of its value from the defendant, the plaintiff's admissions as to the worthlessness of the property are admissible."

a party. Brumfield v. Hoover \[Miss.\] 43 S 95L.

70. Replevy of cotton in hands of comminism merchants on ground that it was covered by mortgage held by plaintiff. Lundee, Chapman & Co. v. Talbot, 83 Ark. man v. Gault State Bk., 126 Mo. App. 64, 105 SWV 73L. Mortgage of cotton which sorrorgage might raise or which he might acquire as rents did not sufficiently identity the cotton, replevied by merely proving that it came from places more or less under mortgagor's control, when the same witnesses by whom this was proved also testified to indebtedness between the mortgagor and the persons from whom the cotton came other than indebtedness for rent. Id.

71, 72. Pease v. Margill \[N. Dj.\] 115 NWV 260.

73, 74. United Shoe Mach. Co. v. Bresnna-

were made defendants were only nominal defendants, and neither their rights nor the rights of others in the estate of the seller would be determined in the replevin suit. Van Buren v. Stubbings, 149 Mich. 206, 14 Det. Leg. N. 402, 112 NWV 706.

74. That at the time of the death of the defendants's intestine the horses replevied were on a farm rented by the plaintiff from the intestine held admissible as tending to show that plaintiff had possession of the horses at such time, plaintiff claiming to have purchased them from such intestine. Cobb v. Holloway \[Mo. App.\] 108 SWV 109.

75, 79. McWhirter v. Penny, 82 Ark. 244, 101 SWV 742.

80. Explained as being merely an offer to pay plaintiff the amount constituting the basis of his claim to the property. McWhirter v. Penny, 82 Ark. 244, 101 SWV 742.

01. Where it appeared that plaintiff's manager had authority to accept value of property from plaintiff's lessee and allow latter to sell such property, when damaged, as junk, statement of one designated by man-

ager to determine whether the property was damaged by fire to such extent as to justify its abandonment, that the property was worthless, held admissible in replevin by lessor against purchaser from junk dealer.

Whether a reasonable person could have known of the plaintiff's control of the property seized as belonging to a third person calls for a mere conclusion." In repelvin for goods conditionally sold, receipts given to defendant by the purchaser are admissible, as admissions, on issue as to nature of the transaction," but where the plaintiff claims the goods under the defendant's written order wherein title is reserved in the seller, the execution of such order must be proved as a condition to its admissibility." The defendant may prove anything tending to show that the plaintiff did not have the right of possession when the action was brought," and where the defendant claims under legal process against a third person, any evidence tending to show the passing of title and right of possession from the plaintiff to such person is admissible," but in repelvin by a third person to recover property attached, the attachment record is not admissible where the defendants do not attempt to justify the seizure under the attachment writ." In repelvin for property severed from reality, deeds to the reality are admissible in connection with the defendant's claim of adverse possession." That defendant has mortgaged the property to a third person is without any probative force on the issue of title, and is also inadmissible as being a self-serving act." Where the property is described in general or technical terms, evidence of what it consists of is admissible." In connection with testimony as to the value of the property, the court may sometimes take judicial notice of the adaptibility of such property to certain uses, so as to dispense with the necessity of proof thereof." Where no judgment is sought or rendered for the value of property not returned, the admission of evidence as to the value of certain items is harmless to the defendant." The sufficiency of the evidence is determined according to the usual rules." The court is not bound by statements of any one or more witnesses, but may find the value from all the evidence."

**SS 10**.: _Trial._," & C. L. 1788--Either party is entitled to a jury," but if they agree upon the determinative facts, the judgment to be entered becomes a question of law for the court."

Instructions inapplicable to the issues are properly refused." It is not an invasion of the province of the jury for the court to tell the jury that the description of the property in the complaint is technical, and that such property is susceptible of detailed description." Where written evidence of the plaintiff's title is admitted

United Shoe Mach. Co. v. Bresnahan Shoe

table to use as a work horse. Gurley Broa. Mach. Co. \[Mass.\] 83 NE 412. Evidence that

v. Bunch \[Mo. App.\] 108 SVV 1109.

lessee pald "lease premiums" to full value

92. Indiana Union Trac. Co. v. Bick, 40 of all property of leasor not insured held

admissible to explain dealings of parties. Id.

82. Taylor v. Brown \[Or.\] 90 P 673.

01. Lazarovich v. Tatiblum \[Mc.\] 69 A

01. Anderson Carriage Co. v. Bartley, 102

01. Idano Placer Min. Co. v. Green \[Idano\] 93 P 93 P 954.

01. In repelvin by lesser to recover sheep

slezed under legal process as belonging to

lessee, evidence that certain of the sheep

had been set off to lessee pursuant to terms

of lease was admissible. Lemmon v. Beat-

tle \[Co.\] 91 P 1102.

87. Taylor v. Brown \[Or.\] 90 P 673.

01. Richboury v. Rose, 53 Fla. 173, 44 S 69.

01. Lazarovich v. Tatiblum \[Mc.\] 69 A 275.

01. Where property was described as "a clar plant." Indiana Union Trac. Co. v. Bick, 40 Ind. App. 451, 81 NE 617.

01. That horse 5 or 6 years old was adap-

table to use as a work horse. Gurley Broa. Mach. Co. \[Mass.\] 83 NE 412. Evidence that

92. Indiana Union Trac. Co. v. Bick, 40 Ind. App. 451, 81 NE 617.

01. Held sufficient to sustain verdict for defendant. Demmons v. Booker, 128 Ga. 83, 57 SE 108.

01. Finding of $300 sustained where one witness stated value at $500 and another at $200. Pratt v. Welcome \[CaI. App.\] 93 P 600.

95, 96. McKinney v. Grant \[Kan.\] 93 P 180.

97. Where, in repelvin by lesser for machinery sold by lessee after a fire, the jury was not permitted by the instructions given to find for defendant on theory that plain-

iffs title was divested by acceptance of insurance, requested instructions as to effect of such acceptance under mistake as to extend of damage to the machinery were properly refused as inapplicable. United Shoe Mach. Co. v. Bresnahan Shoe Mach. Co. \[Mass.\] 83 NE 412.

98. Indiana Union Trac. Co. v. Bick, 40 Ind. App. 451, 81 NE 617.

without proof of execution, but without objection, and the case is reported to the law court and it appears from the whole record that such evidence was duly executed, the appellate court will not consider the absence of preliminary proof of execution."

\_Verdict and findings.\_See & C. L. 178e--The verdict must respond to the issues,1 and hence where the right of possession is in issue a verdict merely for a sum of money is insufficient to sustain a judgment.2 It must be such as to support the judgment prescribed by statute,3 and is usually required to be in the alternative for the recovery of the property or its value,4 and hence an assessment of value is usually required,5 but a provision that the verdict must assess the value of the property does not require such assessment where the property has been returned to the successful party.6 The value assessed by the verdict is presumed to have been assessed as of the time fixed by statute.7 Where the verdict finds the value at the time of the trial the same as at the date of the repley, the verdict carries with it a finding that there has been no intermediate depreciation in value.8

Footnote 17: http://www.wolf.com/

SS 11. \_Judgment and award of damages.\_See & C. L. 1740--At common law the judgment was in the alternative for the property or its value if the property itself could not be returned or obtained,9 and this requirement has been generally retained by the statutes 10 with more or less modification,11 but an alternative judgment is unnecessary where the property is already in the possession of the successful party 11 or where a return is not demanded 18 or is impossible.14 In some states the judgment must be for the whole property or its value as a whole, and the various items need not be specified,18 and special forms of judgment are sometimes provided in actions by particular persons.18 Failure to follow the statutory form is fatal to the validity

of the judgment \[17\] if the question is properly raised and saved.18 A money cred:it cannot be allowed on a judgment for the return of the property.19 As in other actions, the judgment is conclusive of only the issues in the replevin action \[20\] and upon the parties to such action and their privities.21 In the absence of special grounds of equitable jurisdiction, equity cannot interfere with the replevin judgment:22 As a general rule the prevailing party must accept the property if a return thereof is tendered,23 and a proper tender of the property in a proper condition constitutes a satisfaction except as to damages for detention,24 but the property must be returned in substantially the same condition as when taken.25 In states where the judgment must be for the whole property and the value assessed as a whole,26 a pro tanto satisfaction of the judgment cannot be had by a return of part of the property.27

It is sometimes provided that damages may be assessed without a jury.28 Loss of profits may be considered in a proper case,29 but such a case arises only where the loss is the necessary consequence of the wrongful seizure,30 and the same rule applies to any other loss claimed,31 and the plaintiff must have used reasonable diligence to avoid the loss.32 A recovery for loss of profits which would have been earned by the use of the property precludes a recovery for the value of such use.33 Damages for detention include depreciation in value.34 Independently of statute, attorney's fees are not recoverable,35 and the word "damages," as used in a statute, is not sufficiently

c. 580), one claiming Hen'on property for labor or material furnished thereon or there- for is only entitled to judgment for value of work or material, except that if such sum be not collected he may recover the property itself. Haehnel v. Trostier, 54 Misc. 262, 104 NYS 534.

17. Johnson v. Clutter Musule House \[Fla.\]

46 S 1.

18. Nonconformity of the judgment to the statutory form must be objected to below in order to be available on appeal. Judgment not in alternative for value in case delivery cannot be made, as required by Mills Ann. Code, # 227. Klug v. Munce \[Colo.\] 90 P 603.

01. Where purchaser recovered judgment against seller for possession of the property which latter had wrongfully sized, the latter could not be allowed credit for unpaid purchase money. Murdouch v. Tuten, 76 S. C. 502, 57 SE 547.

01. Judgment in replevin in favor of seller under conditional sale with reservation of title held not conclusive of rights of purchaser as to payments made in account of the purchase. Roach v. Curtis \[N. Y.\] 84 NE 283.

01. A judgment against an agent in replenv to which the principal is not a party does not bind the principal in a subsequent action of replevin by him. Northwestern State Bk. v. Silberman \[C. C. A.\] 154 F 809.

01. Allegation that complainant's inability to return whole property as required by replenv judgment was due to acts of defendant held insufficient to confer equity jurisdiction. Jones v. Messenger \[Colo.\] 90 P 64.

01. Under Code Civ. Proc. # 1722, 1726, the prevailing party must take the property if it can be had, with damages for its depreciation up to the date of the trial, subsequent injuries being remedable by 10 Cur. Law. REPLEVIN SS 14. 1585

comprehensive to cover such fees.\[36\] Punitive damages are not recoverable in the absence of willful wrong, fraud or malice.\[97\] In an action by a purchaser against the seller who has seized the property, the measure of damages is not limited to the amount of the purchase money paid,\[88\] but where a conditional purchaser has assigned his interest, and the original seller repleives the property without tendering the amount of the purchase price paid, less compensation for use and damages, the defendant is entitled to damages to the extent of such amount.\[84\]

While the plaintiff may have his damages assessed in the replein action,\[30\] it is held that he is not bound to do so, and, having regained possession, may maintain an independent action for his damages;\[41\] but on the other hand it is held that damages recoverable in the replein action cannot be recovered in an independent action.\[42\] Where the judgment does not assess the value of the property, it does not bar an action against the unsuccessful party for conversion.\[43\]

SS 12. _Costs._,\[88\] S C. L. 1741

SS 13. _Review._,\[88\] S C. L. 1741.--A judgment is not converted into a consent judgment, and as such unappealable, by a stipulation whereby a money credit is allowed to the defendant against the assessed valuation of the property.\[44\] A demurrer to the evidence saves the question as to the sufficiency of the plaintiff's interest,\[45\] and such point is not waived by subsequent requests for instructions on other theories.\[46\] The usual rules apply as to waiver of objections,\[47\] review of discretionary rulings,\[48\] and harmless error.\[46\]

SS 14. \_Liability of plaintiff or his bond, and of receeptors.\[88\] S C. L. 1741.--No recovery can be had except for breach of conditions of the bond,\[50\] and in determining such breaches the court will look alone to the judgment in the replein action.\[51\] Failure to return the property is not a breach of a condition to return it if restitution is adjudged where there is no such judgment,\[88\] nor is failure to pay damages a breach of a condition to perform the judgment where no damages are adjudged.\[88\] A condition to "duly prosecute" the action is satisfied by a prompt trial and does not extend to the success or failure on the merits.\[44\] In a suit on a redelivery bond, the burden is on the principal and surety to show why the identical property is not forthcoming.\[88\] Damages for injury to the property while in the replein plaintiff's possession may be recovered,\[88\] but, under some of the statutes, damages for detention cannot be

ss. As used in Rev. St. 1892, $ 1724. Greg-ory v. Woodberg, $ 51a, 566, 43 S04.

App. 664, 105 SW 674.

37. Gregory v. Woodberg, $ 51a, 566, 43 S04.

43

1526 RESTORING INSTRUMENTS AND RECORDS SS 1. 10 Cur. Law. allowed to the defendant unless they are assessed in the replenvin action.57 Where the defendant elects to treat the alleged wrongful seizure by the plaintiff as a conversion, of which he notifies the plaintiff, the latter may dispose of the property as his own, subject to his liability for its value when taken in the event of judgment against him,58 and in such case interest should be allowed on such value from the time of the conversion.59 Issue of execution against the plaintiff and return thereof unsatisfied is sometimes made a condition precedent to the right to sue the sureties.60

REPLICATION; Reported Questions; Reports; Representations; Reprieves; Res Adjudicata; Rescission; Rescue; Res Gestae; Residence; Resistino Officer; Respondentina; Restitution, see latest topical index.

## 8 1. Evidence and Proof of Loss and of Con-

8. Proceedings to Restore Lost or Detents, 1526.

1. Proceedings to Restore Lost Papers or Instruments, 1526.

_The scope of this topic_ is noted below.61

SS 1. _Evidence and proof of loss and of contents_,See 8 C. L. 1742.-The rule that proof of execution of a paper to be used upon is essential applies in the case of lost instruments,62 but such proof need not be by preponderance of the evidence.63 In proceedings to prove by circumstances the execution of a lost ded, any evidence tending to prove the main fact is admissible.64 Another paper executed at the same time, tending to show an admission of the execution of the lost instrument by defendant, is properly received in evidence,65 as is the testimony of a third party to whom both papers were delivered at the time as identification of the paper and to show the loss,66 but not testimony of third party that he received a sum of money at the same time as res inter alios acta.65 A judgment substituting lost files is conclusive and cannot be attacked by affidavit,66 but it may be shown that such substituted files are incorrectly copied into the record.66 In re-establishing ancient documents, the rule of strict proof is somewhat relaxed and cannot be applied with technical nicety.67

SS 2. _Proceedings to restore lost papers or instruments_.See 8 C. L. 1743.-The court may re-establish its records in an undetermined suit and appeal from such order will

57. Under Clv. Code Proc. 8 388, author-

01. Acts, claims, and general reputation

izing defendants' damages for detention to

of ownership by claimant and acquessence

be assessed and recovered in the prelpvin

by those who would be owners had deced not

action where the plaintiff has taken posses-

son under bond. Mounts v. Murphy, 81 Ky.

L. R. 11920104 SWV 978.

58, 59. Elaul v. Wandel \[Iowa\] 114 NWV

89.

01. Under Municipal Court Act, Laws

192, p. 1581, c. 580, $ 126. De Veaux v. Holliday, 107 NYS 747.

61. The admissibility of parol evidence to

prove the contents of a lost instrument (see Evidence, 9 C. L. 1228) and recovery on lost

instruments without restoration (see Nego-

table Instruments, 10 C. L. 962, and Ilke

topics) are elsewhere treated.

62. Suit on lost note, defense non est faucum. Martin v. Jesse French Piano & Organ Co. \[Ala.\] 44 S 112.

01. Instruction refused. Martin v. Jesse French Piano & Organ Co. \[Ala.\] 44 S 112.

01. Acts, claims, and general reputation

of ownership by claimant and acquessence

be assessed and recovered in the prelpvin

by those who would be owners had deced not

action where the plaintiff has taken posses-

been executed. J. M. Gutfey Petroleum Co.

slon under bond. Mounts v. Murphy, 81 Ky.

V. Hooks \[Tex. Civ. App.\] 20 Tex. Ct. Rep.

254, 106 SWV 690.

255. Contract executed at the same time

as lost note. Martin v. Jesse French Piano & Organ Co. \[Ala.\] 44 S 112.

66. Martin v. Jesse French Piano & Organ Co. \[Ala.\] 44 S 112.

01. Error to admit Martin v. Jesse French Piano & Organ Co. \[Ala.\] 44 S 112.

01. All papers filed in a criminal case dis-

appeared and were substituted ln part upon

motion of the state and in part upon defendants' motion and judgment entered so

declaring. Davis v. State \[Tex. Cr. App.\] 107 SWV 828.

69. Davis v. State \[Tex. Cr. App.\] 107 SWV 828.

01. Campbell v. Skinner Mfg. Co., 83 Fla.

63, 43 S 874.

not lie pending final judgment."1 Restoration may be of separate documents and files or of the entire record,"2 but, if all proceedings have been destroyed, the court should be careful to re-establish the entire record and include records omitted in the application but necessary to complete the files, upon proper showing by the adverse party."3 The omission of a portion of the record sought to be restored is properly set up in an answer to the application for re-establishment,"4 and the burden is then upon the applicant to show by a preponderance of the evidence that the exhibits offered are not substantial copies of the originals or that no such originals existed."5 A court of equity has jurisdiction upon proper showing to restore a lost deed or de-eree a reconveyance."6 Laches is no defense in an action to compel re-execution of a lost deed,"7 nor can it be set up that deed was withheld from record to defraud creditors when in fact no creditors were defrauded."8 In an action to compel re-execution of a lost deed, plaintiff is not estopped to deny pecuinary consideration by reason of his declaration of consideration stated in the instrument,"9 and defendants are not entitled to a vendor's lien for the stated consideration when the absence of pecuinary consideration is shown."9 Where statute requires indemnifying bond by one who recovers upon lost negotiable paper, it is not necessary to offer bond before commencing action."10 Proceedings to show execution of a lost instrument by circumstances must be predicated upon a search for, and failure to find, the original."11

Footnote 10: http://www.liv.org/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liv/liviv/liviv/liviv/liviv/liviv/liviviv/liv * 1. Nature and Definition, 1528.

- 2. The Offer, 1528.

This topic treats only of rewards offered to the public generally.

- 3. Nature and definition,See 8 C. L. 1521
- 4. The offer.See 8 C. L. 1743
- 5. Earning reward.See 8 C. L. 1744.-Public policy forbids that an officer should claim a reward for performing an act within the scope of his duty,\* but neither public policy nor positive law forbids him to receive a reward for an act which he is not required to perform.\*

RIGHT OF PRIVACY; Right OF PROPERITY, see latest topical index.

- 4.1

Matters common to all crimes * * and liability of municipalities for mob violence * are elsewhere treated.

Riot is a disturbance of the peace by three or more persons assembling with a common intent to do an unlawful act of violence or some other act in a violent and tumultuous manner.\* * 5. Not only must there be a common intent, but it is necessary to show a concert of action in furtherance of the common purpose,\* * 6.1 but positive proof of a common purpose or of predetermination to riot is unnecessary; purpose and intent may be implied from the acts of the parties.\* 6.1 Where statute prescribes a higher degree of punishment for riot when committed under enumerated aggravating circumstances, the court is without power to inflict the higher punishment when the indictment fails to charge such circumstances.\* 6.1

1. _Scope of title._--This topic includes matter relating to ownership and use of the soil bordering on and under water, accretion, reliction, erosion, and avulsion, and rights incidental thereto. Matters relating to water, navigable or otherwise, are treated elsewhere.\* 6.1

- 6.1. _Persons who are riparian owners and title to lands under water.See 8 C. L._

10 Cur. Law. RIPARIAN OWNERS $ 1. 1539

${}^{174}$-A riparian owner is one whose lands border "\* upon a watercourse " or lake. Unless previously granted," a state upon its admission into the Union becomes vested with tide lands "\* and lands under and in navigable streams 1 in trust for the public," and in some states cannot dispose of the same except in furtherance of public navigation." In others, however, it may convey the shore lands and subaqueous lands." A change of title is effected with a change of sovereignty." In some states, the grant of lands bordering upon a navigable stream carries title to ordinary low-water mark," but in others only to highwater-mark." A deed, however, calling for the edge of a stream as a boundary passes no title to the bed." Under the common law of New Jersey, a riparian owner improving the shore upon tide waters acquired title to the low-water mark." So long as the title is held by the state in trust for public purposes," title thereto cannot be acquired by adverse possession." The ownership and control of lakes and ponds, in Maine, of more than ten acres in extent are vested in the state and hence their waters may be diverted for public uses without compen 1530 RIPARIAN OWNERS SS 2. 10 Cur. Law.

sation to abutting owners.\[12\] Title to lands under water may be divested by the exercise of the power of eminent domain,\[13\] but not otherwise.\[14\]

SS 2. \_Bights attendant on change in bed of stream or in shore line.\_See 8 C. L. 1148

A riparian owner has no title to lands formed adjacent to his own by an avalusion,\[15\] but the title of the original owner follows the same.\[16\] Where the boundary lines between individuals, states, or nations, are marked by streams, and the location of the stream is altered by erosion and accretion,\[17\] it continues to be the boundary line,\[18\] but where the change results from an avalusion, the boundary line remains as before.\[19\] Where water recedes or land is formed upon the bed of navigable waters as in the case of islands, the title to such dry land is in the state,\[20\] but upon the drying up of a non-navigable lake, the riparian owners acquire title to the center thereof according to their respective frontage.\[21\] Where land becomes submerged by the gradual shifting of the river, the title reverts to the state,\[22\] but land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, on which the ownership, temporarily lost, will be regained.\[23\]

SS 3. \_Bights incidental to riparian ownership.\_See 8 C. L. 1148--An owner of flats has in them an estate in fee, subject only to the public rights of fishing, fowling, and passing over them in boats, and may maintain trespass quare clausum for any injury done to his lawful possession of said flats.\[14\] Where land is "granted, bargained, sold, and conveyed," it carries all water rights and riparian rights apprutenant to the land.\[24\] The mere fact that a water course was artificially dug would not necessarily prevent the existence of rights in it, after a long time, like those pertaining to a natural watercourse.\[26\]

SS 4. \_Subjection to public easements.\_See 8 C. L. 1149

SS 5. \_Action for protection of riparian rights.\_See 8 C. L. 1149

A riparian owner

12. American Woolen Co. v. Kennehee Water Dist., 102 Me. 15A, 66 A 316. When legislature has directly granted authority to divert water for public purposes, with-

01. Where change in channel of river is out requiring as a prerequisite any proceed-

made isensibly, by gradual and imperceptins for condemation or for ascertainment

ible washing away, it is by erosion. State

and payment of damages, grantee can be-

y. Muncele Pulp Co. \[Tenn.\] 104 SVW 437.

gin such diversion at once, and a bill in

where soil is gradually and imperceptibly

equity to restrain such diversion until such

deposited against the shore, it is an acere-

proceedings are had cannot be sustained.

Id.

18. State v. Muncele Pulp Co. \[Tenn.\] 104

01. State v. Muncele Pulp Co. \[Tenn.\] 104

compensation. Kalama Eiec. L. & P. Co. v. Kalamma Driving Co. \[Vash.\] 94 P 469.

14. Where a city under the statute takes

any land, property, or privileges for its

waterworks' plant, it must make compensation. Beckerle v. Danbury \[Conn.\] 67 A

371.

001. Hence, constructive possession does not attach there through actual possession of the contiguous land. Stockley v.

Cissma \[Tenn.\] 104 SVW 792. Where change

In channel is sudden and violent and cer-

tain in effect, it is by avalusion. State v.

Muncele Pulp Co. \[Tenn.\] 104 SVW 437. Where

in two days river abandoned old channel and took an entirely new one, nearly 20 miles shorter, held, an avalusion. Id.

16. That land is swept away by an avalusion, Id.

01. When the land is swept away by an avalusion, Id.

01. State v. Muncele Pulp Co. \[Tenn.\] 104

simon does not extinguish the owner's title, for, when the land reappears above the

19. State v. Muncele Pulp Co. \[Tenn.\] 104 SVW 437.

01. State v. Muncele Pulp Co.

10 Cur. Law. ROBBERY SS 2A. 1531 has the same remedies for the protection of his property as land owners in general," but he cannot enjoin a threatened injury unless it will result in irreparable injury." He cannot recover for an act to which he has consented."

**ROBBERY.**

**SS 1. Nature and Elements, 1531.**

**SS 2. Indictment and Prosection, 1531.**

**A. Indictment, 1531.**

Matters common to other crimes are elsewhere treated.${}^{\\tt 80}$.

**SS 1:**. _Nature and elements.${}^{\\tt See~{}8~{}C.~{}L.~{}1749}$_--Robbery, at the common law, is the felonious taking ${}^{\\tt 81}$ from the person or possession of another ${}^{\\tt 82}$ of goods or money to any value by violence ${}^{\\tt 83}$ or intimidation ${}^{\\tt 84}$ of such a nature as would overcome the resistance of a reasonably courageous person,${}^{\\tt 85}$ or both.${}^{\\tt 86}$ Attempted larency becomes robbery when force is used to complete the unlawful act.${}^{\\tt 87}$ Statutory definitions of the offense are usually mere declarations of the common law.${}^{\\tt 88}$ Several states prescribe additional punishment for robbery by one armed with a dangerous weapon,${}^{\\tt 89}$ and a difference in degree is sometimes made between robbery by force and by intimidation.${}^{\\tt 40}$ In some instances a particular act is defined as constituting an element of the offense.${}^{\\tt 41}$

**SS 2. _Indictment and prosecution. A. Indictment.${}^{\\tt See~{}8~{}C.~{}L.~{}1750}$_--Indictment or information must allege ownership ${}^{\\tt 42}$ and all the essential elements of larency,${}^{\\tt 43}$\_**

**SS 3. May sus in 'tort. Stimeon v. Brook-**

**SS 4. May sus in 'tort. Stimeon v. Brook-**
as well as the essential facts of robbery,\[44\] but need not set forth nonessential particulars.\[45\] The offense need not be charged in the exact language of the statute if what is tantamount is fully set out,\[46\] and it is not sufficient to charge in the language of

not demurred to, but after a verdict cf the property of the defendant' If the in-guity defendant moved in arrest of judgement on the ground that the ownership of the property was not stated in the indictment, which motion was denied. On appeal the apreme court held the indictment fatally defective for the want of such all:ga- tion and reversed the judgment. And in People v. Jones, 53 Cal. 58, it was held that an indictment for robbery must aver every fact necessary to constitute larency, and more. And in People v. Ammerman, 118 Cal. 23, 50 P 15, the defendant was informed against for robbery and pleaded former acquittal, once in jeopardy, and not guilty. The opinion reeles that an information against the defendant for the crime of robbery involving the same transaction had previously been filed, and under it defendant was arraigned and pleaded not guilty. A jury was impaneled, the information was read, and the plea stated. After the jury was sworn, and before any evidence was offered, upon motion of the district attorney the information was dismissed and the defendant discharged. The ground for the motion was that the information did not allege the ownership of the property stolen, which was in fact true. It was held that the first information was invalid because it failed to allege the ownership of the property taken, and there was no jeopardy, and that the court did not err in instructing the jury to find for the people upon the plea of former acquittal and once in jeopardy. The California cases on the question are cited and reviewed in a later case by the court of appeal of California (People v. Cleary, 1 Cal. App. 50, 81 P 753), and it was again held that an information for robbery, which failed to allege the ownership of the property, did not charge an offense. We find nothing in the case of In re Myrtle, 2 Cal. App. 383, 84 P 335, in conflict with the rule as stated in the other California cases. It is there said: Tn the Ammerman Case the taking of the property might have been for some other purpose, for the language of the information does not intimate that the object was to steal it, any more than the mere naming the crime "robbery" might tend to indicate a tierl; and there being no allegation of ownership, and no words used by which any inference could be drawn of ownership in one other than the defendant, except the mere possession Richard Johnson had of the money taken by Ammerman at the time. We think the decision in that case was correct.' Further on in the opinion, in commenting on the case of People v. Cleary, 1 Cal. App. 50, 81 P 753, it is said: "We retiterate all that was said in this opinion of People v. Cleary as applied to the facts in that case and in all cases of Ilke character, where there is a plea of not guilty and a motion in arrest of judgment, and we still maintain that in all cases of robbery it must appear, either from the language of the information or the plea of the defendant, that the property taken is not the statute unless it states all the essential elements of the offense to be punished." An allegation of facts which constitute an element of the offense supplies an omission to allege that element in terms.\[48\] An averment of the denomination of a stolen bank bill is sufficient allegation of value.\[49\] Force and intimidation may be charged conjunctively under a statute using the words disjunctively,\[50\] or even where each constitutes a different grade of the offense.\[51\] Where the taking is from the person, intimidation need not be alleged.\[53\]

(SS 9) \_B. Evidence.\[See * C. L. 1756--Corpus delici being established, identification by the complainainant and evidence of proximity of the accused will sustain the charge of robbery.\[63\] Property taken at the same time though not charged in the indictment is admissible as part of the res gestae.\[54\] A conductor's pass issued to an alleged train robber is admissible in evidence,\[55\] and a display of money by complainant shortly before he was robbed may be proved,\[56\] as may the fact that defendant's attorney spirited away defendant's baggage, preventing search.\[57\] Cases involving sufficiency of evidence are cited in the note.\[54\] Loss of money by the victim of an unprovoked assault, together with testimony that accused put his hand into the pocket, sufficient to sustain verdict.\[59\]

(SS 8) \_O. Instructions.\[See * C. L. 1751--A charge that unexplained possession of stolen goods tends to show guilt is proper, especially when given in connection with an instruction that possession alone is insufficient to authorize conviction,\[60\] and a charge that possession was too remote to be an incriminating circumstance is properly refused where the jury is instructed upon circumstantial evidence.\[61\] Instructions must define the essential elements of the offense,\[62\] but the statutory definition is sufficient,\[63\] and defendant cannot be heard to complain of an instruction overstating the essential elements to the disadvantage of the prosecution.\[54\] As in other instances, an alternative charge may be omitted or refused when not warranted by the evidence,\[65\] as also may be an argumentative charge.\[66\] A valid theory of defense advanced by the accused must be presented to the jury." Where the evidence tends to show assault with intent other than robbery, an instruction that intent to rob is essential to conviction is not neutralized by a subsequent charge on the theory that such was the intent," and an instruction that robbery might be committed though assault was begun with another motive does not advise the jury that intent to rob is nonessential."

Rules of Couct; Safre Defosists, see latest topical index.

- 1. Definition: Distinction From Other Transactions, 1534.
- 2. Contract Requisites of a Sale, 1535.
- 3. Modification, Recission and Revival, 1538.
- 4. General Rules of Interpretation and Construction, 1539.
- 5. Property Solt, 1540.
- 6. Transition of Title, 1541.
- 7. Delivery and Acceptance Under the Terms of the Contract, 1542.
- 1543.
- 8. Efficiency of Delivery; Actual, Symp-bolical, 1544.
- 9. Acceptance: Necessity; Time; What is, 1544.
- 10. Execuse For and Waiver of Breach, 1545.
- 11. Warranties and Conditions, 1546.
- 12. Express and Implied Warranties and Fullment or Breach Thereof, 1548.
- 13. Conditions and Fullment or Breach, 1549.
- 14. Conditions on a Warranty 1550.
- 15. Wraiver of Warranties and Conditions: Excuse for Breach, 1550. Conditions, 1550.
- 16. Remedies, 1551.
- 17. Payment, Tender and Price as Terms of the Contract, 1551.
- 18. Remedies of the Seliers, 1552.
- 19. Resission and Retaking of Goods or Action for Conversion, 1552.
- 10. Response in Transit, 1554.
- 11. Conditional Sales, 1569.
- 12. Remedies, 1564.
- 13. Remedies and Retaking of Goods or Action for Conversion, 1552.
- 14. Conditional Sales, 1569.
- 15. Propose in Transit, 1564.
- 16. Remedies, 1565.
- 17. Right of Participants to the Contract, 1570.
- 18. Action for the Price and Quantum

_The scope of this topic_ is noted below."

- 1. Definition: distinction from other transactions." See
- C. L. 1781.-A contract of sale is a contract by which one agrees to transfer title to a certain thing to another, by accused after the alleged robbery might raise a reasonable doubt was properly refused. Boyd v. State \[Ala.\] 45 S 591.
- 19. Where conviction hinged upon legality of an arrest by accused, held error to ignore testimony to effect that act was done at the request of an officer. Burnisides v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 132, 102 SWP 118.
- 20. Rebbery and rape. People v. White, 8 Cal. App. 329, 90 P 471.
- 21. People v. White, 8 Cal. App. 329, 90 P 471.
- 22. Valuebat, 1555. Defenses and Election Between Them, 1555. The Complaint, 1556. Answer and Counternal, 1557. Variance, 1557. Pre-sumptions and Burden of Proof, 1557. Evidence; Admissibility and Sufficiency, 1558. Trial and Instructions, 1560.
- 23. Action for Branch, 1561.
- 24. Action for Damages for Goods Not Accepted, 1561.
- 25. Choice and Election of Remedies, 1561.
- 26. Remedies of Parchaser, 1561.
- 27. Rescieslon, 1561.
- 28. Action to Recover Purchase Money Paid or to Reduce Price, 1563.
- 29. Action for Breach of Contract, 1563.
- 30. Action for Breach of Warranty, 1563.
- 31. Recovery of Chattel; Replevin or Conversion, 1563.
- 32. Remedies of Parchaser, 1564.
- 33. Remedies of Parchaser, 1569.
- 34. Remedies of Parchaser, 1565.
- 35. Remedies of Parchaser, 1569.
- 36. Remedies of Parchaser, 1569.
- 37. Remedies of Parchaser, 1569.
- 38. Remedies of Parchaser, 1569.
- 39. Remedies of Parchaser, 1571.
- 30. Remedies of the Seliers, 1562.
- 31. Remedies of the Seliers, 1562.
- 32. Remedies of the Seliers, 1563.
- 33. Remedies of the Seliers, 1564.
- 34. Remedies of the Seliers, 1565.
- 35. Remedies of the Seliers, 1562.
- 36. Remedies of the Seliers, 1 10 Cur. Law. SALES SS 2. 1535

who engages to accept the same from him and pay a price therefor.\[11\] Whether a transaction is an assignment,\[72\] pledge,\[78\] option,\[74\] bailment,\[78\] or sale, is to be gathered from its terms \[78\] and circumstances surrounding it.\[77\] It is not complete so long as there is anything to be done by the seller,\[78\] hence, a mere agreement to sell does not constitute a sale,\[79\] nor is it such from the fact that a consignee may fix the price at which to sell consigned goods \[80\] or pay interest on the value thereon,\[81\] but retention of profits by the seller does not take it out of that class of transactions.\[82\]

SS 2. _Contract requisites of a sale.\[80\]_ See 8 C. L. 1788--The contract requisites must exist,\[83\] which may be determined by an inspection.\[84\] Though in a proper case the

Corporations, 9 C. L. 733), and standing timber (see Forestry and Timber, 9 C. L. 1408). Of lessee to purchase, is a Baliment and not 71. An agreement by which seller undertakes to sell an interest in his business in consideration of a certain amount cash, and buyer undertakes to pay such cash and deduces his time and skill to the business, is a complete contract of sale, notwithstanding the cash to be paid to a fraction of the true value and only a portion paid on making contract. Stum v. Hadrich \[Ca1\], 94 P 85. 72. A sale is generally distinguished from an assignment by the absence from it of the trust element. Jackson v. Citizens' Bk. & Trust Co., 53 Fla. 265, 44 S 516. 73. On transfer of shares of stock, agreement recited that transfer made, that party owner shares of stock, that it was pledgeed as additional security for party's debt, that option was desired binding party to sell stock within a year. No other considera- tion. Field, a pledge, Kefler v. Myers, 54 Cal. App. 688, 91 P 163. Stock placed with parties who had declined to buy with express agreement to redeem is a pledge and not a sale. In re United Educational Co. C. A.153 F 169. 74. An option is a contract by which the owner agrees to sell to another at a fixed price and time. Simpson v. Sanders \[Ga\], 90 SEE 541. An agreement to sell conditioned on the payment of a certain sum at a specified date, the prospective purchaser promising in case of his failure to pay, to return the property delivered to him, is an option to purchase, and not a contract to pay the price or to return the property purchased. Smith v. Ivey Bros, 119 L. 357, 44 S 126, 75. The distinction between a baliment and sale is that in the former the Identiel thing delivered is to be restored or its proceeds after sale, while in the latter there is an agreement to pay money or its equivalent for the thing delivered, with no obligation to return. B. F. Sturtevant Co. v. Cumberland Dungan & Co. \[MM.\] 68 A 351. contract under which is delivered property, with provision that title to it and its proceeds, when sold, remain in the party deliv.

Corporations, 9 C. L. 733), and standing timber (see Forestry and Timber, 9 C. L. 1408). Of lessee to purchase, is a Baliment and not a sale. American Car & Foundry Co. v. Al- t 1536 SALES $ 2. 10 Cur. Law. law will imply a contract,\[85\] it must be definite \[85\] and made by parties having authority,\[87\] but the seller need not inform the buyer of his ownership.\[88\] The contract must not be in furtherance of an illegal purpose \[89\] and must be free from fraud \[90\] or mistake.\[91\] However, promissory representations do not constitute fraud.\[92\] The contract must be mutual,\[93\] that is, the minds of the parties must meet,\[94\] but want of

\\begin{tabular}{l|l} \\multicolumn{1}{l}{} & \\multicolumn{1}{l}{} & \\multicolumn{1}{l}{} \\ \\multicolumn{1}{l}{} & \\multicolumn{1}{l}{} & \\multicolumn{1}{l}{}

VOL X. No. 7. CURRENT LAW, NOVEMBER, 1908. **1537**

(Copyright, 1908, by The Keefe-Davidson Company.)

SALES--Cent'd.

this element in the inception of the contract may be remedied by subsequent conduct of the parties. \[95\] There must be a consideration, \[96\] but, if deliberation is essential it will be presumed to have been exercised. \[97\] To fully complete the contract, \[98\] there must be an offer \[99\] and acceptance, \[1\] promptly, \[9\] or within a reasonable time. \[9\] Both the acceptance, which is an assent to any qualifying conditions, \[9\] and the offer will receive a reasonable construction. \[9\] The offer may be withdrawn \[9\] or canceled before delivery \[9\] or before the contract becomes mutual, \[9\] but not before the period of acceptance has expired, \[9\] nor is a mere conditional threat to withdraw effective. \[10\] Where

Cable Co. v. Hancock, 2 Ga. App. 73, 58 SE

tering into a contract, it will be presumed 319. A executed to B, an instrument, under that they did their duty. Good Roads Mach. seal, reciting that for consideration named and acknowledged A. Would sell to B. certain

98. Greenwood Grocery Co. v. Canadian property, to be delivered at a certain time, at

County Mill Elevator Co., 77 S. C. 219, 57 SE

certain price. B. did not agree to purchase

or assume any obligation. Held, contract

0. Parks v. Morris, Layfield & Co. \[W. v.\] 59 SE 753. A proposal that a prospective an offer or proposal to sell. Slimp-

tive purchaser buy and an acceptance do not

son v. Sanders \[Ga.\] 60 SE 541.

1. Parks v. Morris, Layfield & Co. \[W. v.\] 59 SE 753. Letters. one of which is not

to defendant that it buy certain stock and

a reply to the other, do not constitute a contract. Godkin v. Weber \[Mich.\] 14 Del. Leg.

Defendant not liable on count for goods sold

N. 860, 114 NW 924. In contract by correspondence, the seller believing the price was

(C. C. A.) 156 F 959.

to be a certain amount and the buyer's think-

1. Where a contract of sale is subject to

ing it a different amount, there was no metering of minds. Estey Organ Co. v. Lehman

mutality. Contract to sell 600 bags peas-

\[Wv.\] 111 NW 1987.

98. When so remedied, the original agree-

subject to acceptance. Order filed for 100

ment, purged of its defect, is to be treated

as valid from the beginning. Eaton V. Wear

ble for part of order received and retained,

Coal Co., 125 Mo. App. 14, 101 SW 1140.

96. J. A. Fay & Eagan Co. v. Dudley, 129

that was absolute as to 600 bags. Suffolk

Ga. 314, 58 SE 826: Globe Bk. & Trust Co. v. Levant, 32 Pa. Super. Ct. 603.

Riggerberger \[Ky.\] 109 SW 333; Staugh-

A mere proposal, subject to approval is not

ter v. Ditto \[Ky.\] 108 SW 882. After breach

by seller, caused by purchaser, a promise

vote Co. v. Allis-Chimera Co. \[Tex. Civ. that seller would do all be could to perform

controlract, notwithstanding buyer's short-

ownages needed will be gathered from the terms

comings, held voluntary, and to add nothing

of the reply. Miller v. Tanner's Supply Co.,

to his obligation. Townes v. Oklahoma Milli

561 Meph. 292, 14 Det. Leg. N. 789, 114 NW

Co. \[Ark.\] 109 SW 548. A promise is a good

consideration for a promise. But in order

the model for a promise. But in order

that it may constitute such consideration it

must impose an obligation on the promisor

which, if not performed, will afford the

minion Line v. Boston Medical Inst., 126 III.

promise a cause of action arising from its

App. 104, 101 SW 1140. The agreement to

sell furnishes the consideration for the

agreement to buy. Capps v. Edwards \[Ga.\]

ceived at 11:30, is not promptly answered at

60 SE 455. A pre-existing indebettness

is a valuable consideration. Virginia Timber

& Lumber Co. v. Glenwood Lumber Co., 5

Cal. App. 256, 90 P 45; Bradley V. Kingman

Implement Co. \[Neb.\] 118 NW 346. A benefit

received is a valuable consideration. Pur-

chaser bought stock on promise of president

of the company to take it back. On refusal

to buy back, pas of failure of consideration

not sustained as, though president received

no benefit, corporation did, and buyer did

what he otherwise would not have done but

for the promise to buy back. Moench v.

Bower \[Iowa\] 115 NW 228. A promise to

perform that which

#### 15.2.2 The 1538

The 1538 is a 100.00000 computer, and the 1538 is a 1000 computer. The 1538 is a 1000 computer.

10 Cur. Law. SALES SS 4. 1589 will grant this relief 26 if asked for within a reasonable time " after an actual return of the property; 28 but, where time is of the essence of the contract, notice that it will be treated as breached is not required," nor will the contract be held terminated unless the terms used justify such construction."

**SS 4.**\_General rules of interpretation and construction.\_See a C. L. 1789--If the contract is capable of intelligent interpretation, its construction is for the court," 31 but where it is ambiguous 32 or the provisions indefinite, it may be left to the jury," 33 and they may also determine the meaning of certain words," 34 or which of two instruments is the contract." 35 The intention of the parties, generally founded on the usual course of affairs," 38 is the guiding star," 37 and the agreement will be so construed as to give effect to it," 38 and the evident contemplation of the parties is as much a part of

**26.** As a rule, equity will not avoid a con-

party named, intention held to be that if tract of sale on the ground of drunkenness,

test not satisfactory, seller to furnish a but will grant relief where such is the case

piano that would be satisfactory, or refund. coupled with gross inequalities in values

Garvin v. Montenegro-Riehm Music Co., 81 exchanged. Hence, where one intoxicated

Ky. L. R. 1182, 104 SWV 964. Wholesaler sold for $200 property valued at $12,000,

asked for samples and prices of commins-

equity will grant relief. Swan v. Talbot

sion merchant, who replied, quoting grades

\[CaL\] 94 P 238.

and prices, but sending no samples. Whole-

27. Buyer retained goods for more than a

sarf answered that what commission mer-

year before returning as unsatisfactory. No

chiat said about quality and price was noted,

relief from liability. Rumsey & Slkemeier

and directed him, if he could not buy for

Co, v. Jacob \[Miss.\] 45 IS 169.

75 cte. to pay 71 - 2 cts, and have an at-

28. An agreement to accept a return will

tractive label. Heid to constitute a full

not reached the contract. Johnson, Berger

order. Rowland v. Ely, 120 App. Dlv. 628,

& Co. v. Hughes, 83 Ark. 105, 103 SWV 184.

10 NYS 211. Agreement to sell goods at

A recession of a contract is an effect proven

certain price and to carry same to a cer-

duced by a return of the things received un-

det it when it can be done. Kingman-Moore

ing privilege to countermand all or part of

Implement Co. v. Ellis, 125 Mo. App. 692,

order before then. Heid, an option, and that

103 SWV 117.

agreement for interest was a part of price

29. Weatherford Mach. & Foundry Co. v.

of goods. Moise v. Rockt Springs Distilling

Tate \[Tex. Cyr. App.\] 109 SWV 406.

30. Contract to furnish 1,700 cords of

that he had agreed with another to deliver

brush. A telegram by buyer that another

certain character of wood, and would deliver

had 600 cords, and directing seller not to

buyer under before mentioned contract at

send more than 1,000, held not terminative.

a certain price, if advised of amount desired,

Montgomery v. Thomson \[Cal.\] 92 P. 866.

Held, not an offer't so sell all the wood cov-

31. Lydia Cotton Mills v. Prarife Cotton

ered by seller's contract with party furnish-

Co. \[C. C. A.\] 156 F 215; F. L. Moss Mfg. Co.

ving wood to him. Miller v. Tanners' Sup-

v. Carolina Portland Cement Co., 1 Ga. App.

114 NWV 61. Selier had coal stored and

23. W. E. Caldwell Co. v. Steckol \[Iowa\]

sought to sell to purchaser the whole lot, but

112 NWV 228.

no definite contract made. Later buyer told

33. Ryley-Wilson Grocer Co. v. Seymour

his foreman to take so much of the coal as

Channing Co. \[Mo. App.\] 108 SWV 628.

34. The jury were properly left to deter-

riner to bring more. Selier told carrier if

mine the words "invoice cost" contained in

any were taken, all must be. Foreman re-

the contract for the reason that the stock of

fused to receive it on this condition. Car-

goods had been sold by invoice twice, and it

rher said he thought it would be all right.

was an issue of fact between the parties as

Buyer liable only for so much coal as he

to which invoice was to determine the cost

took. Cunningham v. Allen, 46 Wash. 560,

and value of the article. Clark v. Empire

90 P 920. Contract to sell and deliver at

Mercantile Co., 2 Ga. App. 250, 58 SE 363.

seller's factory certain tons of asphalt, to

35. On action for purchase price, buyer

be purchased and paid for by buyer, and

and seller each produced 1540

SALES SS 5. 10 Cur. Law. the contract as if expressly stipulated in it.\[88\] The nature of the contract,\[40\] whether divisible or entire,\[41\] executed or executory, is also a question of intention.\[42\] By applying the local law,\[43\] and reading the contract as a whole,\[44\] to arrive at this intention, the courts will consider its purpose,\[88\] the situation of the parties,\[48\] and surrounding circumstances;\[47\] they will also look to the construction the parties have put on it,\[48\] to custom,\[49\] to the law of the place,\[50\] and even to an exception in a subsequent contract.\[51\] But the court will not adopt a harsh or unreasonable construction,\[52\] nor one that will work a forfeiture or preclude the exercise of a right,\[88\] unless no other interpretation is reasonably possible.\[54\] And, where the contract is susceptible of two constructions, one of which will render it valid and the other invalid, the court will adopt the former\[50\] or that one which will tend to support it and carry out the intent of the parties.\[88\]

SS 5. _Property sold._\[See SS 5. L. 1763\] The property must be susceptible of sale \[67\] and

other prices had been offered by the defendants which were not accepted by the plaintiff. Daniel v. Slegel-Cooper Co. \[Fla.\] 44

SA 94. Although the contract does not provide that hemp shall be shocked, stacked, and taken care of in a prudent manner, it is the duty of the seller to do so. Summers Fiber Co. v. Walker \[Ky.\] 109 SW 883.

40. Missouri Smoke Preventer Co. v. St. Louis, 205 Mo. 220, 103 SW 513.

01. When an executory contract for the sale of goods provides in one distinct paragraph for the sale of articles of a given character at a stated price, to be delivered during a given period and in a stated manner, and in another distinct paragraph, beginning with the words, "we have also sold No." provides for the sale of articles of a separate and distinct character, to be delivered in a given manner, but no time for delivery started, the contract is divisible. And this is true though it conclude with a guaranty that as to articles referred to in the second paragraph local prices shall not be less than a given amount for the balance of the season, and an agreement to handle only cash trade, except car load lots out of town. Searden Mercantile Co. v. Madron Oil Co., 128 Ga. 695, 85 SE 200.

01. The question of intent, in a case at law, is one of fact. Windmuller v. Fleming, 129 Ill. App. 476.

01. The Federal courts in construing contracts will apply the local law. In re Morris, 156 F 597.

01. Dunham v. H. D. Williams Cooperage Co., 83 Ark. 395, 103 SW 386; San Miguel Consol, Gold Min. Co. v. Stubbs, 39 Colo. 359, 90 P 842; Brown Bros. v. Korns, 184 Iowa, 693, 112 Nw 195.

01. To prevent incongrurutles the word "and" may be read "or," or vice versa. Mansson v. Dayton \[C. C. A.\] 183 F 258. Whether a contract between a machine company and a dealer is a contract of sale or one of agency is to be determined from a consideration of the entire instrument. To determine its real character, its purpose rather than its name is to be looked to. Where the contract throughput indicates an absolute sale, there being no limitations or restrictions as to locality, price, terms, or conditions of resale, such contract does not become one of agency as to creditors of the sufficiently designated.\[88\] However, the seller need not have the goods in his possession,\[89\] but he must have a property right in the chattel,\[60\] and his mark on the goods is evidence of ownership.\[61\]

SS 6. _Transition of title._See 6 C. L. 1765__.--The transition of title, in order to determine the locus of crime, as in sales of inhibited articles, is largely treated elsewhere.\[62\]

_Meaning and effect of contract,_See 6 C. L. 1768__.--The time when title passes,\[88\] and whether it does so or not, is a question of intention 64 to be left to the jury on conflict of evidence.\[88\] An executive sale passes no title.\[86\]

_Separation and designation of the goods._See 6 C. L. 1768__.--Title does not pass till the goods are properly designated or segregated,\[87\] and whether or not there has been an appropriation is a question of fact.\[88\]

_Payment._See 6 C. L. 1767__.--Until payment, where that is concurrent with delivery, neither title 69 nor the right of property pass,\[70\] unless there has been a waiver.\[71\]

_Delivery and acceptance._See 6 C. L. 1767__.--Delivery is prima facie proof of the intention to pass title 72 and coupled with inspection and acceptance,\[88\] does so generally,\[88\] yet, while not always essential,\[88\] when it is so, it must be made unconditionally,\[88\] to the vendee,\[88\] in some manner,\[88\] at the place designated.\[88\]

Is personal property. Manson v. Dayton \[C.\] Ct. Rep. 474, 102 SWV 435. Delivery of bill C. A.J 153 F 258.

of sale and consideration passed completes the sale and transfers title. James M Music that no question can arise as to the thing. Co. v. Bridge \[VWs.\] 114 NWV 1108. Under intended, it is sufficient. Hence, a sale of a contract of sale or return, title passes to 20 tons of hay, 10,000 cubic feet from the east end of a move is a sufficient designation of return is exercised. In re Landis, of the property sold. Barber v. Andrews \[R. I.\] 69 A. I.

65. Watson v. E. E. Naugle Tie Co., 148 C.o., 128 Ga. 695, 58 SE 200.

01. This is the rule even in cases of a distinct and specified chattel. Windmuller v. Fleming, 129 Ill. App. 476.

01. The appropriation must be made with the consent of purchaser. American Metal Co. v. Dangherty, 204 Mo. 71, 102 SWV 538.

01. Contract for goods, portion to be delivered promptly, the balance later, contract numbered, packed in numbered bales, paid for as invoched. Heid, goods set apart for buyer. Schwab v. Oatman, 56 Misc. 393, 106 NYES 741.

01. Coleman v. Reynolds, 207 Mo. 468, 105 SWV 1070; Masoner v. Bell \[Okl.\] 95 P 239.

On sale of animal, five dollars paid on purchase price, and animal left in possession of seller, where it died. In action against buyer for balance, held no recovery could be had. Sharp v. Hawkins \[Mo. App.\] 107 SWV 1087.

70. But the seller must reclaim his goods promptly, otherwise he will be held to waive his rights. French v. Lewis, 218 Pa. 141, 67 A. 45.

01. After three months from delivery, and treating buyer as a debtor, right of property in the chattel is waived. French v. Lewis, 218 Pa. 141, 67 A. 45.

01. Barber v. Andrews \[R. I.\] 69 A. I.

01. Title does not pass bill on inspection and acceptance, and whether the inspection was fair and honest is a question of fact. Dunham v. H. D. Williams Cooperative Co., 88 Ark. 395, 108 SWV 386.

01. Delivery to be made at E., and reshipment to P. Loss after reshipment falls on purchaser. Mark v. H. D. Williams Cooper-age Co., 204 Mo. 242, 103 SWV 20.

- \[1542\] SALES SS 7A. 10 Cur. Law. _How proved._ See
- C. L. 1768
- \[155\]_Divesitive of title._ See
- C. L. 1769._Leaving a portion of the goods in the hands of the seller does not divest title._ See
- C. L. 1769
- \[156\]\_S 7. Delivery and acceptance under the terms of the contract. A. Necessity, time, place, amount, etc.\_See
- C. L. 1769.\_Where the contract calls for it, delivery," which is a question of fact," is necessary " to complete the sale," but the intention of the parties may dispense with it." Where time is not of the essence of the contract, a delivery after the designated period is not material," but where it is," delivery must be made according to its terms," unless the time has been extended." The buyer, however, does not waive his right by insisting on delivery after the time agreed on." When to be made," and whether made in time limited, is for
- \[157\] SAL. Brinn v. Cohen, 107 NYS 37. Sale of SE 235.
- \[158\]_T6._ Colean Mfg. Co. v. Blanchett \[N. D.\] 113 NPV 614. Under some circumstances, bit may pass by conditional delivery, even in those jurisdictions where payment is necessary to pass title, as where possession allowed to be retained by buyer in consideration of new promise to pay. Frech v. Lewis, 218 Pa. 141, 67 A 45.
- \[159\]_T7._ Lake v. Combs, 84 Ark. 21, 104 SWV 544.
- \[160\]\_The rule is not affected by seller receiving a small part of the purchase money at time contract executed. Young v. Edwards \[W. Va.\] 60 SE 982. The rule is not affected by the fact that a feed to the property was held in escrow, and purchaser in possession, conditions precedent to delivery not having been compiled with. Bright v. Hanover Fire Ins. Co. \[Wash.\] 92 P 779. Under contract of sale and purchase in the future, title does not pass. Phenix Nat. Bk. V. Waterbury, 108 NYS 391. On sale of wool to be delivered when severed, title remains in vendor till delivery and payment. Northwestern State Bk. v. Silberman \[C. C. A.\] 164 F 809.
- \[161\]_T8._ Delivery of a bill of lading passes title to the purchaser. Gass v. Astoria Veneer Mills, 131 App. Div. 182, 105 NYS 794.
- \[162\]\_Unloading cargo on the whart is such delivery as to pass title. William H. Perry Co. v. Klosters Aktie Bolag \[C. C. A.\] 152 F 967. Delivery to carrier, properly consigned to the purchaser, passes title. Star Union Line v. Boston Medical Inst., 126 III. App. 106.
- \[163\]\_Fact that goods were improperly consigned is immaterial, where it is shown that the carrier was not misled thereby. Rabinowitz v. Hall, 123 III. App. 66. Cancellation after delivery to carrier is ineffectual to prevent transition of title. F. H. Earl Mfg. Co. v. Summit Lumber Co., 125 III. App. 391.
- \[164\]_T9._ Matheson v. Southern R. Co. \[S. C.\] 60 SE 437.
- \[165\]_B0._ Buyer bought, and paid for, a lot of goods, left a portion in hands of seller in accordance with a custom of the business. Held, buyer could recover from seller's pledgee. Schwab v. Oatman, 56 Misc. 393, 108 NYS 741.
- \[166\]\_Armstrong v. Poe, 35 Mont. 557, 90 P 758.
- \[167\]_S2._ De Laval Dalry Supply Co. v. Steadman \[Cal. App.\] 92 P 877; Wholesale Mercantile Co. v. Jackson, 2 Gha. App. 776, 59 SE 106.
- \[168\]\_Armstrong v. Poe, 35 Mont. 557, 90 P 758.
- \[169\]_S2._ De Laval Dalry Supply Co. v. Steadman \[Cal. App.\] 92 P 877; Wholesale Mercantile Co. v. Jackson, 2 Gha. App. 776, 59 SE 106.
- \[170\]\_Armstrong v. Poe, 35 Mont. 557, 90 P 758.
- \[171\]_S3._ Brinn v. Cohen, 107 NYS 37. Sale of catalogues not delivered and order cancelled, when new contract made by which buyer was to pay for catalogues used. Delivery made too late to be of use. Held, not liable to seller. Chase v. Rosenwald, 107 NYS 35.
- \[172\]\_Past Brew. Co. v. Com. \[Ky.\] 107 SWV 728.
- \[173\]_S5._ Dillman Bros. v. Patterson Produce & Provision Co., 2 Gha. App. 213, 58 SE 365.
- \[174\]_S6._ Montgomery v. Thomson \[Cal.\] 9
  10 Cur. Law. SALES SS 7A. 1543

the jury."2 When delivery is dependent on some concurrent act of the buyer, it need not be made until such act is performed,"8 nor is the seller chargeable with delay caused by the purchaser,"9 and where delivery has been delayed by the buyer, the seller is entitled to reasonable notice of the time it is required." Where delivery is to be made shortly,"9 or no time is fixed for it or the demand therefor," a reasonable time is allowed." What is a reasonable time for delivery, and the sufficiency of the demand therefor, usually depend on the circumstances of the particular case." And whether the time is unreasonable is a question for the jury,1 as are the terms of the demand, in the light of the contract." Where no place of delivery is agreed upon, the place of sale is the place of delivery," but this rule may be made to yield to circumstances." Authority in an agent to contract as to the place of delivery may be inferred by the jury." The quantity or amount to be delivered is governed by the contract." If the contract is entire and all the goods cannot be delivered, the seller need not deliver a part," but a continued delivery, after breach, is no waiver of rights

ton Oil Co. v. Farmers' Supply Co. \[Ga. 1. Olson v. Wabash Coal Co., 126 Ill. App.\] 59 SE 713. 92. Purchasers wrote seller, "If you will get up this material promptly, however, deliverable at his option. Demand for deduces will be no question of damages of any kind, and we hope you will do so." Held, for jury to say, in light of circumstances and exigencies of parties, whether delivery was within time limited. Gude v. J. F. Balley Co. \[Ga. App.\] 61 SE 135. 93. Contract to deliver lambs, when price of them was to be credited on note held by purchaser. Seller not bound to deliver while note out of possession of buyer, hence out of his power to make the credit. Longfel- low v. Huffman \[Or.\] 90 P 807. 94. Wheeling Mold & Foundry Co. v. Wheling Steel & Iron Co. \[Vv. Va.\] 67 SE 826. 95. Contract to purchase potatoes to be delivered on cars Nov. 1, or before, buyer to take them as soon as price advanced. Price advanced a week before Nov. 1, but potatoes not called for till Oct. 28. Sellers were entitled to notice of arrival of cars. Pinkham v. Haynes \[Me.\] 68 A 642. 96. Where delivery is to be made "shortly," the seller has a reasonable time. Cincinnati Glass & China Co. v. Stephens \[Ga. App.\] 60 SE 860. "As soon as possible." means "without unreasonable delay," Childs v. Omha Paraphenarla House \[Neb.\] 114 NW 941. 97. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 58 SE 200. 98. I. H. Earl Mfg. Co. v. Summit Lumber Co., 125 Ill. App.\] 931: Robinson-Clay Product Co v. American Locomotive Co., 56 Miss. 589, 107 NYS 69; Standard Interlock Elekurev Co. v. Wilson, 218 Pa. 280, 67 A 462. On- tract to deliver a specified number of tons of coal between two dates may be performed at any time up to the latter date, though it contemplated delivery from time to time. Harman v. Washington Fuel Co., 28 Ill. 298, 81 NE 1017. 99. Order to ship "earliest possible" meant as soon as seller could send them. Order, Nov. 19, delivery, Dec. 29. Buyer had notice delay might be necessary. Held, delivery in reasonable time, Robinson Clay Prod- cut Co. v. American Locomotive Co., 65 Miss. 589, 107 NYS 69, 117, 126, 131, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 211, 222, 231, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 27 under the contract.\* A proper delivery pursuant to order constitutes an executed sale.\* (SS 7) \_B. Sufficiency of delivery; actual, symbolical.\_See * C. L. 1771.--The delivery must be of the thing agreed on,10 and when made at the place designated, after inspection and acceptance, it is complete,11 but where the goods are in the hands of the buyer, no further delivery is required.12 A delivery made in the same manner as others, which had been accepted, is sufficient,13 and a delivery of a bill of lading is an actual delivery of the goods.14 Delivery of a warehouse receipt is constructive delivery,15 so, also, in the absence of instructions,16 is delivery to a carrier,17 designated by the purchases and acceptance of the bill of lading by him,18 subject, however, to vendor's right of stoppage in transitu.18 Whether or not there has been a delivery may depend on the contract of sale.20

(SS 7) \_C. Acceptance; necessity; time; what is.\_See * C. L. 1771.--Acceptance which is necessary to consummate the sale,21 unless waived,22 means retention of the goods and acknowledgment that the delivery is satisfactory.23 It must be made by one having authority,24 within a reasonable time after delivery,25 and follows necessary.

- After breach by buyer, If seller con-

ttric, and such purchaser received such

tinues to deliver and deliveries are accepted,

package, pays the price for the same and

there is no waived by seller. Graves v. Medina, 81 Ark. 847, 99 SW 80,

express company for the seller, the sale is

0. Engeldinger v. Stevens \[VWs.\] 112 NWV 501.

1. Delivery of the thing purchased means

delivery of that answering description in

the agreement, and any other delivery is

8. Atler breach by buyer, If seller con-

tinues to deliver and deliveries are accepted,

package, pays the price for the same and

there is no waived by seller. Graves v. Merkela, 81 Ark. 847, 99 SW 80,

express company for the seller, the sale is

0. Engeldinger v. Stevens \[VWs.\] 112 NWV 501.

1. Delivery of the thing purchased means

delivery of that answering description in

the agreement, and any other delivery is

8. Atler breach by buyer, If seller con-

tinues to deliver and deliveries are accepted,

there is no waived by seller. Graves v. Merkela, 81 Ark. 847, 99 SW 80,

express company for the seller, the sale is

0. Engeldinger v. Stevens \[VWs.\] 112 NWV 501.

1. Deployer of the thing purchased means

delivery of that answering description in

the agreement, and any other delivery is

no delivery at all. Roquemore v. Vulcan

Iron Works Co. \[Ala.\] 44 S57. Purchaser

100; Rhodes, Dolvin & Co. v. Continental

is not bound to accept wet, dirty potatoes

when contract called for dry and clean

Gaines v. Perry Bros. \[Tex. Civ. App.\] 18

Tex. Ct. Rep. 649, 102 SW 755.

11. Watson v. E. E. Naugle The Co., 148

Mich. 675, 14 Det. Leg. N. 334, 112 NWV 753.

12. Godkin v. Weber \[Mich.\] 14 Det. Leg. N. 860, 114 NFV 924.

01. Montgomery v. Thomson \[Cal.\] 92 P

01.

01. Gass v. Asteria Veneer Mills, 121 App.

Div. 182, 105 NYS 794.

15. Constructive delivery will not suffice

if actual delivery at time of sale is impossible. Livingston v. Anderson, 2 Ga. App.

274, 68 SE 505.

16. The railroad company is buyer's agent

to receive and carry the goods, but not to

inspect and pass upon the quality. Bloom's

Son Co. v. Haas \[Mo. App.\] 108 SW 1078. A

delivery to the carrier, with instructions to

deliver on seller's order, is not, in law, a

delivery to purchaser. Lepman v. Woldert Grocery Co., 183 III. App. 365.

17. Olson v. Wabash Coal Co., 126 Ill. App. 253. The bill of lading is evidence of delivery

or, and failure to receive does

not show nondellvery. Main v. Jarrett, 83

Ark. 426, 104 SW 163. This is not affected by the fact that the freight is subject to

adjustment after arrival of the car at its

destination. Chicago Lumber & Coal Co.,

McCann \[VWs.\] 93 P 216. When a pur-

chaser, living in a local option district,

orders, in writing by mail, from a person law-

fully engaged in the liquor business outside

of such district, a package of liquor to be

sent to him for his own use by express C.

O. D. to a station within the prescribed dis-

1544 10 Cur. Law. SALES $ 7D.

sarily on the impossibility of rejecting.26 The buyer may reject if delivery is postponed an unreasonable time 27 or if goods are not within the contract,28 or he may accept the goods ordered and reject those not ordered 29 unless the contract is entire.20 Reasonable notice of rejection must be given,21 and if goods are delivered under a parol sale, void under the statute of frauds, it is the buyer's duty to repudiate immediately.22 The buyer is not bound to inspect, before acceptance, goods sold under an express warranty,23 but where acceptance depends on the result of inspection, such inspection must be conducted in accordance with the contract of sale,24 and an inspection by an agent of both parties is conclusive in the absence of fraud.25 Generally the question of acceptance is one of fact.26 It may be implied 27 from conduct of purchaser,28 and receiving and using the article had been held an acceptance,29 but whether payment will constitute an acceptance may depend on circumstances.20 (SS 7) _-D. Excesses for and waiver of breach.290 & C. L. 1773_--Delivery is excused

26. If seller delivers exactly what he has contracted to deliver as to quantity and payment -by buyer, shows an acceptance. quality, at the stipulated time and place, Mississippi Lumber Co. v. Smith \[Ala.\] 44 and for the stipulated price, the buyer has no right to object, nor any reason for imposition. Jackson v. Porter Land & Water Co., 151 Cal. 82, 90 P 122; Wholesale Merriante Co. v. Jackson, 2 Ga. App. 776, 69 SE 106.

01. Where delivery to be made "shortly," a delivery made after 9 or 10 weeks was properly rejected. Cincinnati Glass & China Co. v. Stephens \[Ga. App.\] 60 SE 860.

01. Eddy v. Fay Fruit Co. \[R. I.\] 67 A 586. Contract provided safe of lummer, and excluded mill culls that might be among it. The buyer had the right to reject the culls. Godkin v. Weber \[Mich.\] 14 Det. Leg. N. 860, 114 NWP 924.

01. Goldstant-Powell Hat Co. v. Cuff \[Okl.\] 91 by 862. If the contract is severe, ble, the buyer may accept a part and reject a part. Canton Lumber Co. v. Liller \[Md.\] 68 A 500.

01. Contract for lummer to be shipped 3,000 miles to purchaser is an entire contract. Pacific Timber Co. v. Iowa Windmill & Pump Co. \[Iowa\] 11 NW7 711. Purchaser is not obliged to accept a portion if the contract be entire. Main v. Simmons, 2 Ga. App. 821, 59 SE 85.

01. What is reasonable notice is ordinarily a mixed question of law and fact. Missouri Smoke Preventing Co. v. St. Louis, 205 Mo.

220, 103 SW 518. The right to reject for unreasonable delay is not waived by failure to give the seller notice of rejection. Cincinnati Glass & China Co. v. Stephens \[Ga. App.\] 60 SE 360.

32. Godkin v. Weber \[Mich.\] 14 Det. Leg. N. 860, 114 NW 924.

01. If, upon receipt of the goods, he does inspect and discovers defects before acceptance, it has duty to reject them. Christiam v. Knight, 128 Ga. 501, 57 SE 763.

01. Action for damages for alleged breach of contract in sale of lummer. Canton Lumber Co. v. Liller \[Md.\] 68 A 500.

01. Gorham v. Dallas, etc., R. Co. \[Tex. Civ. App.\] 106 SW 930.

01. Keeping a horse beyond 48 hours, the limit allowed by the seller's custom, held an acceptance. Fissa, Doerr & Carroll Horse Co. v. Kiernan, 108 NYS 1105. Shipment to and possession by a third person, to whom his by buyer's refusal to perform \[41\] or by declaration of a breach,\[42\] and the seller is not bound to deliver goods not contemplated by the contract.\[43\] Under some circumstances, impossibility of delivery is no excuse,\[44\] nor is failure to pay when payment is to be made as goods are delivered,\[45\] nor is want of notice where the true cause is the seller has not the goods;\[46\] but whether a strike will excuse delivery depends on the wording of the contract.\[47\] Though the buyer cannot take advantage of a breach caused by his own conduct,\[48\] a mere acceptance does not waive damages for failure to deliver\[49\] in the absence of contract.\[50\] A premature delivery, however, may be waived by acceptance,\[61\] but an offer to waive on certain conditions becomes valid only on compliance with the conditions.\[52\] The burden of proving waiver by the buyer is on the seller.\[53\]

SS 8. _Warranties and conditions. A. In general._ See * C. L. 1714\_--The warranty is the contract upon which the purchaser relies.\[54\] It is a statement or representation of facts made by vendor as to character and quality of article sold or title thereto, whereby he promises that it is or shall be as represented.\[58\] It need not be simultaneous with the sale,\[50\] though it has been held otherwise in some jurisdictions,\[57\] nor are any particular words required to constitute it, though whatever the seller represents at the sale is a warranty as a general rule,\[58\] but mere seller's talk is not a warranty.

**41.** Refusal to accept excuses delivery. \[\] colldated Coal Co. v. Jones & Adams Co., Feisberg v. Moore, 84 Ark. 399, 106 SWV 197. \[23\] III. 326, 83 NE 851. \[3\] Where contract repudiated, seller is ab- 48. Nor is his breach waived by seller's solved from making further deliveries. Ingram v. McCaskey Register Co. \[Ga. App.\] form contract. Townes v. Oklahoma Milli 60 SE 291. A tender of the goods is not request where the buyer has given notice that he will not perform. Vwood, Curtis & Co. v. Seurich, 5 Cal. App. 262, 90 P 51; Carolina. \[56\] The Guardian 156 Mich. 118, 14 Det. Leg. N. 626, 113 NVV \[Ga. App.\] 60 SE 279; Longfellow v. Huff- 591. \[7\] 90 P 907. \[8\] 42. That seller used all possible diligence to deliver, and before he was able to do so buyer declared a breach, is a good defense. Seller claimed that delivery was to have been made to purchaser as soon as he could make a delivery to a third person, that he used all diligence in his power to do this, but before he could do so buyer declared a breach and sued. If such defense established, seller entitled to verdict. Earnest v. Vasegore \[Tex. Civ. App.\] 108 SWV 495. \[8\] If an order for a large number of like articles as given is in part clearly beyond or outside of the contract under which parties are dealing, the seller is under no duty to separate the necessary from the unneces- \[46\] any number, but may safely refuse the whole order. Park Steel Co. v. Staver Carriage Co., 125 IL. App. 105. \[47\] Where party by his own contract puts an obligation on himself without qualification or exception, he is held liable for non- \[8\] the contract upon which the contract is allowed to be a warranty. Seller claimed that he could not be a warranty.

10 Cur. Law. SALES SS 8A. 1547

ranty, express or implied," nor is a mere delivery of the goods.\[60\] The warranty may be made by an agent " and may be by parol,"\[62\] notwithstanding oral and implied warranties are merged in the writing.\[63\] And while the extent of the warranty is to be gathered from its terms " and its existence from the contract," yet, an express warranty may be created by particularity of description," and fraud may be equivalent to an express representation." While the terms of it may be shown by parol,"\[63\] a warranty can neither be introduced nor modified in that way." Whether representations constitute a warranty," or whether the warranty has been complied with, is

Mastin v. Bartholomew \[Co10.J 92 P 682; a warranty that glued would be equal to Heath Dry Gas Co. v. Hurd, 108 NYS 410. Offering food for sale is in itself a representaton that it is believed to be sound. But 616, 14 Det Leg. X80, 114 NUV 895. Where where there is no implied term or condition- one goes to a seed store purchase a certain variety of a species of seeds, and they unless he knew of the fact that the food are given him without comment, with the solid was not fit to be eaten. Farrell v. 1.2 name printed on the package in which they Manhattan Market Co. \[Mass.\] 84 NE 481. 124.

for the jury," but the construction of the contract, unless dependent upon conflicting extrinsic facts, is for the court.\[12\]

(SS 8) _B. Express and implied warranties and fulfillment or breach thereof_. See s C. L. 1778-Express warranties are gathered from the terms used by the seller.\[78\] An implied warranty is a guaranty against latent defects,\[74\] and whether or not there is such warranty depends on the terms used by the seller.\[75\] There can be no implied warranty, however, if there is an express one,\[78\] nor where it is precluded by the very nature of the contract,\[77\] but this exclusion does not necessarily extend to every feature of the contract.\[78\] The mere sale of chattels in possession of the vendor implies a warranty of title " and the right to use.\[80\] The delivery of a receipt, even, warrants the articles to be in existence and in certain hands.\[81\] Generally the seller implied warrants merchantability \[82\] and fitness for use,\[83\] especially where his knowledge \[84\] and judgment are relied on,\[85\] or where the selection is left to him,\[86\] or where the article is food for immediate use,\[87\] but the burden is on the buyer to 10 Cur. Law. SALES SS 8C. 1549 show that his skill and judgment were relied upon.88 And a warranty of fitness is implied where the sale is for a particular purpose,89 but it is otherwise if article ordered is of a general character and not for a specifically indicated purpose, although the seller may know it is to be used in the process of further manufacture,90 or where both parties have equal means of knowledge as to its fitness.89 or the seller is not disposing of his own manufacture.92 But where goods are sold by description, no such warranty exists,93 though the purchaser state it is for a particular purpose.94 The seller of a particular kind of seed, however, warrants them as such.95

_A warranty will be limited to the matters See 8 C. L. 1718 to which it is directed 96 or meant to apply.97_

(SS 8) \_C. Conditions and fulfillment or breach.\_See 8 C. L. 1719.\_When there is a condition that seller have a reasonable time to remedy defects, what is a reasonable time is for the jury,98 and acting on verbal notice of such defects waives written notice by the purchaser.99 The seller is entitled to a reasonable time to fulfill the guaranty,1 and whether it has been fulfilled may be left to an arbiter.2

Footnote 98: A. M. P. K. and S. S.

1550 SALES SS 8D. 10 Cur. Law.

(SS 8) \_D. Conditions on a warranty.\_See * C. L. 1780--The contract may fix any reasonable conditions to the existence of any rights under the warranty,\* which must be complied with,\* but a party need not comply with an immaterial condition.\* (SS 8) \_E. Waiver of warranties and conditions; excuse for breach.\_See * C. L. 1781 \_Conditions.\_See * C. L. 1785--The waiver of conditions or breach of warranty is a question of intent\* to be determined by the jury.\* While a corporation cannot divcst itself of the power to waive conditions,\* and accepting a note for the purchase price will not have that effect,\* yet, even in case of latent defects,\* with some exceptions,\* a waiver of breach of warranty may be implied from the conduct of the vendee,\* such as failure to comply with contract provisions,\* or to inspect,\* or to reject within a reasonable time,\* especially where so provided by the contract.\* As a general rule, which may be modified by the acts of the parties,\* acceptance\* after knowledge of defects\* or after full opportunity to discover the condition of the goods,\* or accept-

Brooke v. Laurens Milli. Co. \[S. C.\] SS SE 806. \[S. C.\] SS SE 14 A failure to perform the duty to inexpressly or by implication. Campbell v. Lodge No. 99, A. F. & A. M. \[Kan.\] 92 P 63. \[A.\] 92 P 63. \[A.\] 92 P 58. \[A.\] 92 P 58. \[A.\] 92 P 58. \[A.\] 96. Where contract was to make and set up showcase, payment to be made when set up, the fact that buyer allowed the parts of said showcase, whitle in crates, to be placed in his house, is not a waiver of the duty to set up the showcase. Diamond Glass Co. v. Ladwig, 38 Pa. Super. Ct. 506. \[M.\] 97. Affleck v. Streeter, 135 Mo. App. 703, 103 SW 118. \[A.\] 98. Contract of corporation provided that all subsequent contracts had to be in writing and signed by its president. Held, such provision ineffective to prevent corporation waiving notice, Nichols & Shepard Co. v. Maxon \[Kan.\] 92 P 545. \[A.\] 90. Contract that title remained in seller until payment made in money, and that note may be given for price. Acceptance of note did not waive conditions. Anderson of inferior box board, and with knowledge of its inferiority used it for box purposes, and for that reason vendor would not be answerable in damages for loss acerung from making the box board into boxes, has no application in a case where recoupment is not pleaded nor damages asked. Whitle, as a general rule, a vendee cannot complain, after acceptance of an article with knowl-edge of its defects, that it is inferior to quality contracted for yet, where seller upon complaint made expressly authorized vendee to use the article, admitting it was not up to warranty, and leaving the entire matter in hands of vendee, and, after knowl-edge that vendee claimed the goods were inferior, accepted payment on the goods sold, such state of facte presents an exception to the general rule. Burr v. Atlanta Paper Co., 2 Ga. App. 52, 58 SE 373. \[A.\] 98. Delay of three months in rejecting property, during which buyer operated It for his own benefit, is equivalent to acceptance, and waives defects. Jackson v. Porter Land & Water Co., 151 Cal. 39, 0 P 122. \[A.\] 99. Christian v. Knight, 128 Ga. 501, 57 SE 763; Sizemore v. Woolard \[Ga. App.\] 59 SE 833. \[A.\] 98. \[A.\] 99. \[A.\] 99.

tance and user," or disposing of the goods without objection," operates as a waiver of open and patent defects." A warranty may, however, survive the waiver,"44 and an express warranty ordinarily does so." In such case the waiver goes only to the extent of purchaser's knowledge, and not to discoveries which reasonable diligence might have brought to light,"28 and does not reach defects which though patent were concealed by the ordinary method of shipment "7 or which the buyer was not in a position to detect."28 Breach is not excused by accident or unavoidable delay due to causes existing anterior to the contract."29

(SS 8) _F. Remedies_ See s c. L. 1785 on the warranty and breach of conditions are treated in other sections of this topic,"30 as are also damages for breach "81 and rights of third persons."22

SS 9. _Payment, tender and price as terms of the contract,_"So s C. L. 1785--Unless waived,"" payment is due, from which time interest is recoverable,"44 where the goods are delivered, in the absence of any agreement to the contrary,"45 and if time is of the essence of the contract, payment then is indispensable,"88 but if no time is fixed "7 or, if misled by the seller as to the manner of payment, the law will accord the purchaser a reasonable time in which to pay."28 Where, however, there is a condition precedent,

and in condition to work was sale by words

he does so he had knowledge of the breach.

of description and not express warranty.

North Georgia Mill. Co. v. Henderson Elekenshire Lumber & Box Co. v. W. M. Ritter Lumber Co. \[C. C. A.\] 153 F 578.

27. In such case it is for the jury to determine from the evidence whether the defects

loo, etc., R. Co. \[Iowa\] 118 NW 144. Implied

w warranty may be deemed waived where the

article purchased, after full opportunity for

28.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.

it cannot be demanded until the condition is performed." A payment is effective to no greater extent than it is intended to be,"40 and its character is to be determined by the contract,"41 or may be presumed,"42 but after goods are paid for and bill settled, buyer cannot return the goods and receive a credit on another bill due,"43 nor is a promissory note a payment unless agreed that it shall be,"44 nor is a check a payment in full, though it so states,"45 unless it is accepted as such."46 Payment made in ignorance of legal rights does not waive fraud 47 nor the right to recover damages for a breach."48

Tender of payment is unnecessary until delivery 49 or when it would be useless."46

Tender of a check is not sufficient."41

The contract may furnish evidence of the price to be paid,"42 if not, the law does not fix one, if there is a misunderstanding as to it;"43 but by receiving and retaining the goods, the buyer is estopped to question the price of them."44

SS 10. \_Remedies of the seller. A. Rescission and retaking of goods or action for conversion.\__Becission._See _S C. L. 1787__-_ The right to rescind depends on the nature of the contract, whether divisible 45 or separable.56 It may be waived by the seller's 39. Where, in a contract for sale of goods, seller agreed to send to the bank for the buyer a bond, in which seller was to guarantee gross profits in sales by buyer to certain amount upon condition that buyer pay for goods at fixed time, the sending of bond contract. Strum v. Hadrich \[Cal. App.\] 94

by such fixed time was condition precedent to requirement of payment. Equitable Mfg. Co. v. J. B. Davis Co. \[Ga.\] 60 S8 262.

40. Conditional sale of elevator and mortgage on building where installed, and property In hands of receiver. Purchase price $2,400. Receiver paid seller $500 for release of lien. Heid not a release of claim for balance of purchase money. Reedy Elevator Co. v. Berman, 107 NYS 59.

01. In re People's Department Store Co., 159 F 286; Northwestern State Bk. v. Sill-berman \[C. A.\] 154 F 809.

01. Where sale is to be completed by delivery, the presumption is that payment is to be made in cash at the time and place of delivery. Northwestern State Bk. v. Sillberman \[C. C. A.\] 154 F 809.

01. Roach v. Warren, Neely & Co. \[Ala.\] 44 S 103.

01. But an action may be maintained on the note, even though property never delivered and title never passed. Acme Food Co. v. Alder \[W. Va.\] 61 EE 235.

01. It was undisputed that the indebtedness was greater than amount of check. Roach, V. Warren, Neely & Co. \[Ala.\] 44 S 103. The fact that buyer remitted check re-citing "In full to date," which was accepted by seller, does not constitute payment of a disputed claim, there being no intention to offer or receive it as a compromise. Canadian Flash Co. v. McShane \[Ne.\] 114 NW 894.

01. A check sent in full payment for an instalment of goods, two more being due but refused because defective, which was accepted, held to be a satisfaction. Schwartz v. Hirsch, 56 Misc. 618, 107 NYS 796.

01. Slaughter v. Ditto \[Ky.\] 108 SW 882.

01. Seller breached contract by failure to properly care for article. Buyer had paid a large portion of the purchase price and was unable to procure a delivery so as to learn the extent of the damage. Summers Fiber Co. v. Walker \[Ky.\] 109 SW 883.

conduct," but a suggestion not acted upon by the purchaser to keep the contract open," or acceptance of payment, will not have this effect." The seller must on rescission put the purchaser in statu quo " and give sufficient " and reasonable notice when such notice is necessary." The right to rescind may arise from failure of the purchaser to comply with his contract " or from fraud," and is not affected by the consideration, and does not give the injured party the right to rescind the whole contract. The American cases are hopelessly in conflict, although the case of Norrington to return them (Kingman-Moore Implement ",") has probably cast the weight of authority in favor of the rule that the failure on the part of one party. to perform a separable part of a contract justifies the other in re- ",". Letters by seller to buyer stating that "," the entire agreement. The latter case decided that the failure of a vendor to deliver as much iron in one instalmant as re- 1554 SALES SS 10B. 10 Cur. Law.

pendency of bankrupt proceedings; \[65\] but the seller is not obliged to rescind for fraud of buyer's agent. \[66\] Mere insolvency of purchaser, however, and his concealment of the fact, will not justify rescission \[67\] unless the purchaser was guilty of fraud. \[68\]

_Recovery of chattels. \[69\] C. L. 1780--The seller cannot recover for fraud of the buyer unless it is shown that the intention not to pay existed at or prior to the sale, \[69\] but the right cannot be affected by a short delay unless someone is prejudiced thereby. \[70\] Where it is impracticable to restore the property, a personal money judgment will be rendered against the purchaser. \[71\]_

_Replevin. \[69\]_ See 8 C. L. 1780--If he has title \[72\] the seller may maintain an action of replevin in a state court to obtain property in the possession of a bankrupt, \[73\] but the necessity of an affidavit and its sufficiency are to be determined from the statute, \[74\] and the evidence should be confined to the issue. \[75\]\_

(SS 10) _B. Stoppage in transit. \[69\]_ See 8 C. L. 1780--As prerequisite to the existence of the right to stop in transit, the goods must be in the possession of a carrier between the parties and the buyer actually insolvent. \[69\]\_

(SS 10) _C. Lien. \[69\]_ See 8 C. L. 1355--The lien of the seller must be enforced as the statute provides. \[70\]\_

(SS 10) _D. Resale. \[69\]_ See 8 C. L. 1780--Where the buyer is bound to accept at place of delivery and refuses to do so, the seller may resell and recover the loss, \[69\] but the resale must be made without unreasonable delay, after an honest effort to get the best price obtainable, \[69\] and though the purchaser is not bound by a resale made before the

such fraud as will justify rescission unless there was a secret intention not to perform, the premise having been relied on by seller, and was a material inducement to the sale. \[70\] 9 P 238.

**2.1** If title had been lost, the action can- **2.1** We made \[69\] A. vendor who has made a fair contract of sale to another through the latter's agent \[69\] A. Author after adjoliation in bank- **2.1** Another \[69\] A. Author to the author is given to the author, but before appointment of trustee, a one on ground that the afterwards disocu- **2.1** Another \[69\] A. Author to the author is given to the author, but before payment of trustee, a one on part of agent toward his print. \[69\] A. Author to the author is given to the author, but before payment of trustee, a one on ground that the afterwards disocu- **2.1** Another \[69\] A. Author to the author is given to the author, but before * 10 Cur. Law. SALES SS 10E.

- 10 day fixed for performance, \[80\] the vendor is not bound to resell at the contract place nor within the contract time of delivery. \[81\]
- (SS 10) \_E. Action for the price and quantum valebat.\_See S. C. L. 1790.--The form of the action will depend on whether title has passed, \[82\] for unless it has the price of the goods cannot be recovered. \[83\] In such action the seller is entitled to interest from date of sale. \[84\]
- \_Right of action and conditions precedent.\_See S. C. L. 1700.--The party who first breaks his contract cannot recover upon it, \[85\] but where the seller establishes the contract and shows performance, he is entitled to recover \*\* if statutory \[87\] and contractual conditions are complied with. \[88\] Hence a tender of the goods should be made to the buyer, \[89\] and, if the contract is entire, there must be a delivery \[90\] unless action is brought on an independent covenant. \[91\]
- \_Defenses and election between them.\_See S. C. L. 1701.--Lack of information is no defense, \[92\] nor is ignorance in method of discounts \[88\] nor defects in goods, known at the time of purchase, \[94\] nor the fact that the buyer thought he was dealing with another party, \[96\] nor the violation of a penal statute by the seller and defendant's agent, \[89\]
- 80. Brooke v. Laurens Mill. Co. \[S. C.\] 88 669, 107 NYS 379. Necessity for tender, SE 86. \[S. North Georgia Mill. Co. v. Henderson as by express refusal, in advance, to receive Elevator Co. \[Ga.\] 60 SE 258. \[S2\] If title passed, but goods not delivered, a common indebitatus count for goods bar- gained and sold is appropriate. Neither an action for goods bar- gained and sold nor for goods sold and delivered will lie if title has not passed. Acme Food Co. v. Older \[V. Va.\] 61 SE 285. \[S3\] Contract price cannot be recovered under count in assumpslit for goods bargained and sold. The remedy is for damages for breach of contract. River Spinning Co. v. Atlantic Mills, 155 F 466. A breach of an executory contract will not support an action for the price. Dillman Bros. V. Patterson Produce & Provision Co., 2 Ga. App. 213, 58 SE 365. \[S4\] Marx v. Raley \[Cal. App.\] 92 P 519. \[S5\] Hall v. Frick Co. \[Ky.\] 106 SW 1186, 86. Morgan v. Heitmann, 121 App. Div. 568, 106 NYS 253. \[S7\] Sess. Laws 1897, pp. 248, 249, c. 65, require that persons doing business as partners under any other name than the personal names of the members shall file for record in the county where the business is carried on anflavi setting out full Chris- tian and surnames and addresses of parties represented. Until this is done, no action can be maintained. Elgin Jewerly Co. v. Wilson \[Colo.\] 93 P 1107. Foreign corpora is in some jurisdictions required to perform certain statutory conditions in order to sue. Generally it shall have a public of face in the state, shall appoint an agent resident therein to accept service of process, and, perhaps, pay a license. But such statates do not apply to actions in the Federal courts. Dunlap v. Mercer \[C. C. A.\] 156 F 545. \[S8\] Contract reelted that defendant would purchase goods in his hands on request by plaintiff. Such request was a condition precedent to right of action. Hollowell v. Smith Agricultural Chemical Co. \[Ind. App.\] 83 NE 772. \[S9\] Stammerman v. Kelly, 122 App.

especially if defendant knew of the intention to violate the law." Whether misrepresentations and fraud are available defenses depends upon the circumstances," but, that the contract proved is not the true one," and, although the buyer may be estopped to set it up,1 failure,2 or partial failure of consideration,3 and a return of the goods * and their acceptance are good defenses.6

10 Cur. Law. SALES SS 10E 1557

time for performance must be shown to have elapsed.\[14\] While the defendant may require the plaintiff to make the complaint more definite and certain or serve a bill of particulars,\[18\] it is sufficient if it will apprise a person of common understanding of the nature and extent of the claim,\[18\] nor is he bound to anticipate answers and objections of defendant.\[17\] An amendment averring substantially a different cause of action will be denied.\[18\]

\_Answer and counterclaim.\_See s C. L. 1702--The answer must be definite,\[19\] alleging fraud, if relied on,\[20\] set up facts\[21\] unless the action is on contract,\[22\] and be verified\[28\] by sufficient affidavit.\[24\] The counterclaim must show by the facts averred that the purchaser sustained damage.\[26\]

\_Variance.\_See s C. L. 1703--As a variance will defeat the plaintiff's action,\[20\] the evidence must conform to the pleadings\[27\] and sustain the allegations\[28\] if they lie at the foundation of the action.\[29\]

\_Presumptions and burden of proof.\_See s C. L. 1702--An adequate consideration\[20\] and that vendor had the property on hand may be presumed.\[81\] The burden is on the party relying upon a contract\[32\] or defense to establish it,\[83\] but after a prima facie

14, Pinkiert v. Kornblum, 5 Cal. App. 522, and Interlock Elevator Co. v. Wilson, 218 90 P 869.

15. In this way the seller may be required to elect his measure of damages. Isaacs v. tract by purchaser must allege facts show- Terry & Tench Co., 56 Misc., 107 NYS 136.

01. Hanson v. Gronlle \[N. D.\] 115 NW 668. arrived at. Benjamin v. Maloney, 155 F 47.

01. Hastings v. Speer, 34 Pa. Super. Ct. 49.

01. Diamond Glass Co. v. Ladwig, 33 Pa.

01. In action for purchase price of name hooks, answer alleging buyer had lost the cost of many hames on account of defective hooks is insufficient. Dublin Hame Works v. Ross-Mchan Foundry Co., 128 Ga. 399, 57 SE 683. An answer alleging that defendants returned the goods to the seller in reacission of the contract, and that they were accepted, sufficiently pleads a reesision. National Cash Register Co. v. Price \[Ind. App.\] 83 NE 776.

01. Where fraud is relied on as a defense, the scietter must be alleged. Bromonia Co. v. Greenwood Drug Co. \[S. C.\] 59 SE 263.

01. Fraud must be alleged where a inspection is to be attacked on that ground. Dunham v. H. D. Williams Cooperative Co., 83 Ark.

18.5, 189 SW 386.

21. The plea must set up facts, and not defendants' construction of the agreement, but Daniel v. Siegel-Cooper Co. \[FTa.\] 44 S 94,

01. Where the action is not quantum vale- tion. Hastings v. Speer, 34 Pa. Super. Ct. 478.

01. Agreement to sell and purchase, a fractional part of the value paid in cash.

01. Alignations in the affdavit of defense that the contract was induced by fraud is sufficient to take the case to the jury. Stand- 60 bags, burden on defendant to show such case made, the burden is shifted.34 The burden is on the seller to establish his case by a fair preponderance of the evidence,35 hence he must prove the contract,35 the consideration if alleged,37 that the goods would not have been sold but for the promise made by the seller,38 and performance of 39 or willingness to perform the contract,40 but the burden to show delay cannot be discharged by showing that an act of defendant caused it.41 While the buyer is only required to introduce sufficient testimony to place the matter of the making of the contract alleged by the seller in equipoise,42 he must establish the defenses relied on,43 such as breach of warranty,44 delay in delivery,45 the right to return the goods because defective,46 that he is an innocent purchaser without notice,47 noncompliance with statutory regulations by seller,48 and nonacceptance.49

to the sales and its falsity may be shown.54 It may be shown also that the seller failed to comply with his contract 55 and the construction the parties placed on it.56 Evidence is admissible to connect the note sued on with a purported cash sale of goods made by seller's manager in his own name.57 A settlement by the parties to determine the question of damages may be shown.58 It may be shown that certain property was not included in the sale,59 or that the article exhibited to the buyer was but a sample of that intended to be delivered,50 or that the article was defective 61 in particulars covered by the warranty.62 Telephone communications stand on the same footing as conversations,63 and a letter from buyer to seller demanding delivery is admissible.64 The effect of delay may also be shown,65 as well as that seller knew of the necessity of immediate shipment and probable loss for failure to do so.66 Parol evidence is admissible to show that the contract sued on is not the real effective contract,67 and though, where such evidence is admissible, it must be clear and convincing,68 it may be introduced to prove the entire contract where the writing does not contain it 69 or where it is uncertain on its face 70 owing to the use of terms with doubtful meaning,71 in which case custom and usage may be also relied on.72 Parol evidence is likewise admissible to show fraud 78 where it is pleaded 74 and in issue,75

same goods. Seligmann v. Greif \[Tex. Civ.\] W. Wilson Stave Co. v. Webb, 84 Ark. 623, App.l 109 SW 214. 54. In action to recover purchase price of machinery, buyer may show that purchase was made on representations of vendor that machinery would do work required and that it failed to do so. Fairbanks, Morse & Co. v. Burgerl \[Neb.\] 118 NW 35. 55. On contract to furnish metal, seller used buyer for breach. On denial by buyer that seller had performed, evidence that metal furnished prior to breach by buyer was unsatisfactory was admissible. Lehnier v. Standard Specialty & Tube Co., 108 NYS 402. 56. Consolidated Coal Co. v. Jones, 232 Ill. 526, 83 N5 851. 57. Iberia Cypress Co. v. Von Schoeler \[La.\] 46 S 105. 58. Action for balance of purchase money and damages claimed by defendant by reason of loss incurred in settlement. Rogers v. Petrified Bone Min. Co. \[C. C. A.\] 158 F 799. 59. Little Rock Cooperative Co. v. Gunnels, 82 Ark. 286, 101 SW 729. 60. Action for breach of contract for failure to deliver the identical property purchased. Schwartz v. Roberts \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 581, 102 SW 924. 61. Roquemore v. Vulcan Iron Works Co. \[Ala.\] 44 S 567. 62. Defendant having pleaded and relled on an express warranty. Burr v. Atlanta Paper Co., 8 Ga. App. 5, 88 SE 373. 63. Star Bottling Co. v. Cleveland Faucet Co. \[Mo. App.\] 109 SW 802. 64. Fitzgerald Cotton Oil Co. v. Farmers' Supply Co. \[Ga. App.\] 59 SE 713. 65. Buyer, in action for the price, may show that delay in delivery prevented completion of work for which goods intended, whereby damage resulted. Gorham v. Dalias, etc., R. Co. \[Tex. Civ. App.\] 108 SW 930. 66. Gorham v. Dalias, etc., R. Co. \[Tex. Civ. App.\] 106 SW 930. 67. Birley v. Dodson \[Nd.d\] 68 A 485. Evidence tending to prove which of two contracts is the true one will be admitted. W. W. \[M.A.\] 105 SW 577. 68. De Laval Dairy Supply Co. v. Steadman \[Cal. App.\] 92 P 877. 69. And if there is a collateral parcel agreement as to the same matter, parol evidence is admissible if not contradictory of the writing. Roquemore v. Vulcan Iron Works Co. \[Ala.\] 44 S 557. 70. Ryley Wilson Grocer Co. v. Seymour Canning Co. \[Mo. App.\] 108 SW 628. 71. Contract to furnish "heart of yellow pine." Circumstances under which contract was made, and conversations with reference to it, to show meaning of term. San Miguel Consol. Gold Min. Co. v. Stubbs, 89 Colo. 359, 90 P 842. 72. Admissible to explain meaning of words and phrases in contract and annex to it incidents which circumstances indicate the parties intended when the words used do not necessarily exclude the operation of the usage and custom. Lima Locomotive & Mach. Co. v. National Steel Castings Co. \[C. C. A\] 155 F 77. 73. El Dorado Jewelry Co. v. Hopkins, 34 Pa. Super. Ct. 446; United States Gypsum Co. v. Shields \[Tex. Civ. App.\] 30 Tex. Ct. Rep. 671, 106 SW 724. 61. Roquemore v. Vulcan Iron Works Co. \[Ala.\] 44 S 567. 62. Defendant having pleaded and relled on an express warranty. Burr v. Atlanta Paper Co., 8 Ga. App. 5, 88 SE 373. 63. Star Bottling Co. v. Cleveland Faucet Co. \[Mo. App.\] 10 or to show mistake in executing the contract." But this class of evidence, where the agreement is clear \[77\] and complete," or where such agreements are waived by the writing," is not admissible to vary its terms." Nor, in the absence of such issue, is evidence of grade admissible; \[81\] nor evidence of fictitious value; \[82\] nor an offer to compromise; \[83\] nor statements of seller's agent; \[84\] nor recitals in a bill of lading; \[85\] nor a sworn account when denied."

The sufficiency of the evidence to show the contract," breach of warranty," failure of consideration," delivery \[80\] and value," is determined in the particular case.

_Trial and instructions,_\[85\] & C. L. 1786--While the questions pertaining to trial and instructions are fully and more properly treated elsewhere in this work," it may not be amiss to note that, where a prima facie case is made out, the complaint should not be dismissed; \[93\] that the instructions should not introduce issues not pleaded," nor be contrary to pleading and proof," nor be conflicting," nor misstate the defense," but clearly present the issue." On issues of fact," when the evidence is con-

75. Where fraud is the issue, parol evl-dence as to the original contract is admissible. Comparable Des Metaux Unital v. Victoria Mfg. Co. \[Tex. Civ. App.\] 107 SVW 651

01. Northwest Thresher Co. v. Hulburt \[Minn.\] 115 NWP 159.

01. Morrison Mfg. Co. v. Fargo Storage & Transfer Co. \[N. D.\] 113 NWP 605.

01. Where the contract is complete, a warranty resting in parol cannot be engrafted upon it. Johnson, Berger & Co. v. Hughes, 83 Ark. 105, 103 SVW 184; Arden Lumber Co. v. Henderson Iron Works & Supply Co., 83 Ark. 240, 103 SWW 185.

01. Victor Safe & Lock Co. v. O'Neill \[Vash.\] 93 P 214.

01. Commercial & Sav. Bk, v. Pott, 150 CAL 358, 89 P 431.

01. Blut City Lumber Co. v. Hilson \[Ark.\] 107 SVW 161.

01. In sale of stock, the purchaser cannot show that stock generally may have a fictitious value. Commercial & Sav. Bk, v. Pott, 150 CAL 358, 89 P 431.

01. Boyylan v. McMillan \[Iowa\] 114 NWP 630.

01. Statement made by an agent as to his discounts on sales of goods given generally by his principal is not admissible to contradict the terms of discount offered by the principal in a particular transaction negotiated by principal with purchaser. Bernsteinv. Koken Barbers' Supply Co., 1 Ga. App. 445, 67 SE 1017.

01. Bloom's Son Co. v. Haas \[Mo. App.\] 108 SVW 1078.

01. Pitman v. Bloch Queensware Co. \[Tex. Civ. App.\] 10 20 Tex. Ct. Rep. 789, 106 SWW 724.

01. The correspondence of the parties, especially when taken with the fact that plaintiff treated the letters as a contract and attempted to carry out the agreement by filling defendant's order, is sufficient to establish a contract. Bailey Co. v. West Lumber Co., 1 Ga. App. 398, 58 SE 120.

01. Evidence that a horse, there weeks after purchase, showed evidence of founder, is not sufficient evidence of unsoundness at date of purchase, it being shown he was apparently well then and was exposed to rain by buyer. Wendel v. Goldsmith, 109 NYS 233.

01. On plea of failure of consideration, that the machine should be used according flicting, the case should be submitted to the jury,1 but on the issue only.2 A verdict, which cannot be waived by omissions of counsel,3 should not be directed for plaintiff if the evidence shows a rescission by defendant.4

Footnote 2: The author is grateful to the anonymous referee for his comments.

(SS 10) _F. Action for breach._ See 8 C. L. 1977.--The seller may sue for the breach as soon as it occurs,5 but the complaint must allege how the damage was caused.6

Footnote 2: The author is grateful to the anonymous referee for his comments.

(SS 10) _G. Action for damages for goods not accepted._ See 8 C. L. 1982 (SS 10) _H. Choice and election of remedies._ See 8 C. L. 1978.--The purchaser's remedies are several, and depending on whether the purchaser refuses to accept ' or has been guilty of fraud.8 The election to pursue any one of these remedies must be made within a reasonable time,9 and, when made, he must stand upon it.10

Footnote 2: The author is grateful to the anonymous referee for his comments.

SS 11. _Remedies of purchaser. A. Rescission._ See 8 C. L. 1979.--A rescission is not necessary when the sale has been procured by mistake 11 or when the purchaser is under no obligation to accept,12 and, when it is necessary, the burden is on the vendee to show sufficient cause to warrant it.13 He must act promptly,14 within a reasonable time,15 and after definite 16 notice,17 and by placing the seller in statu quo,18 as far as to printed directions. An Instruction that "the questions are whether the machine was of good material and well made and did good work with proper management when set up and operated according to directions," was sufficient. Hein v. Mildebrandt \[VWs.\] 115 NPV 121.

Footnote 2: The author is grateful to the anonymous referee for his comments.

Footnote 3: The author is grateful to the anonymous referee for his comments.

Footnote 4: The author is grateful to the anonymous referee for his comments.

Footnote 5: The author is grateful to the anonymous referee for his comments.

Footnote 6: The author is grateful to the anonymous referee for his comments.

Footnote 7: The author is grateful to the anonymous referee for his comments.

Footnote 8: The author is grateful to the anonymous referee for his comments.

Footnote 9: P. N. & F. M. Roots Co. v. New York Foundry Co., 107 NYS 742.

possible or the merits demand,19 by returning 20 or offering to return the property,21 without unreasonable delay.22 The right may be exercised, where the vendor fails to comply with the contract 23 or has, by his own act, put it out of his power to do so;24 or has broken the warranty;25 or acted fraudulently;26 but matters that have

great that under the circumstances the jury would not be warranted in holding the time reasonable, the court may decide the question as a matter of law. Mattauch v. Riddell Automobile Co. \[Iowa\] 115 NWV 509.

16. Notice tenders assignment of all buyer's right, title and interest of, in and to bonds and order on trust company to deliver same. Insufficient as not showing what the right, title and interest was at time of notice. Erwin v. Devtwiler \[N. J. Law\] 67 A 932. Sale by American Locomotive Co. to Robinson Produce Co. Notice to seller, signed "Van Alstyne," who sellers did not know and was unable to connect with buyer, insufficient. Robinson Clay Product Co. v. American Locomotive Co., 56 Misc, 589, 107 NTS 69.

01. Notice and return made to agent from whom purchase made, although not the agent of seller at time of the notice and return, is sufficient. Rutter v. Devwagic Mfg. Co., 102 Minn. 367, 113 NWV 910.

01. Mundt v. Shmplinkins \[Neb.\] 115 NWV 315. To place in statu quo means, that the injured party shall restore whatever he has received that he can restore, and surrender any advantage he may have received. Whiting v. Derr, 121 App. Div. 239, 105 NYS 854.

01. Fairbanks, Morse & Co. v. Walker \[Kam.\] 92 P 1129.

01. An actual redelivery is not essential where it would be useless. Pitcher v. Webber \[Mc.\] 68 A 593: Crosby v. Wells, 72 N. J. Law, 790, 67 A 295. The buyer need not make actual delivery to the seller of a piece of machinery weighing 18,000 pounds, erected by seller on buyer's premises (P. H. & F. M. Roots Co. v. New York Foundry Co., 107 NYS 142), nor need the vendee first repair damages which were due to the imperfections of the article (Pitcher v. Webber \[Mc.\] 68 A 593). That purchaser turned the chatlet over to the seller shows a return of it. Walker v. Grout Bros. Automobile Co., 124 Mo. App. 628, 102 SWV 25.

01. The buyer is not required to make more than one tender. Robert v. Hefner \[Neb.\] 116 NWV 36. The effect of notice and offer to return is not affected by the seller's refusal to accept a return of the property. A 593.

Crosby v. Wells, 73 N. J. Law, 790, 67 A 295.

22. Sale, with right to purchaser to return if the machine could not be made to work well, return to be made immediately. Purchanger, after using machine part of two har- vests, could not resend, though it did not work well. Acme Harvesting Co. v. Carroll \[Neb.\] 114 NWV 780. Seller cannot insist on purchasing other than been waived are not ground for rescission." Demanding and receiving back the purchase money is a rescission," and accepting and retaining the property returned without objection, is a consent to it," where the seller becomes liable for payments made by the buyer," but an unaccepted offer to return is not a rescission."

(SS 11) \_B. Action to recover purchase money paid or to reduce price.\_See * C. L. 1800--If the right is not waived," the purchase money may be recovered on breach." In action for reduction of price, the liability of the vendor is measured by the difference in value between a sound and an unsound article."

(SS 11) \_C. Action for breach of contract.\_See * C. L. 1804--If the breach, which is a question for the jury," is not due to providential cause " or nonperformance on his part," the purchaser has the right to recover for it," the right accruing on failure of the seller to accept the purchase price," and demand for performance is not a prerequisite to action when it is obviously useless."

(SS 11) \_D. Action for breach of warranty.\_See * C. L. 1805--Tort for false warranty, as well as action of contract, lies for warranty broken," and the vendee may sue as soon as the warranty is broken."

(SS 11) \_E. Recovery of chattel; repelvin or conversion.\_See * C. L. 1807--In an action by the buyer to recover purchased property, he must show a valid agreement for the purchase," and, in repelvin, unless waived," the purchase price must be paid " or tendered before the action will lie. The buyer must also prove a general or special case.

27. Contract waiving all verbal agree-

sale of stock of merchandise, parties having ments, verbal representations of seller's submitted questions as to cost price and agent no ground for resession. Victor Safe

what was good bankable paper within mennam-

& Lock Co. v. O'Neill \[Wash.\] 9S P 214.

ng of contract to arbitrators, and arbitra-

28. Matheson v. Southern R. Co. \[S. C.\] 60

tx having decided that certain note was

SE 437.

\*\*29, 30.\*\*Greder v. Stehl \[S. D.\] 115 NW 1129.

31. R. T. Stone Tobacco Co. v. Allen, 1 Ga.

Ag. 43.\*\*Greder v. Stehl \[S. D.\] 115 NW 1129.

32.\*\*Greder v. Stehl \[S. D.\] 115 NW 1129.

33. R. T. Stone Tobacco Co. v. Allen, 1 Ga.

Ag. 43.\*\*Greder v. Stehl \[S. D.\] 115 NW 1129.

34.\*\*Greder v. Stehl \[S. D.\] 115 NW 1129.

35.\*\*Greder v. Stehl \[S. D.\] 115.

36.\*\*Greder v. Stehl \[S. D.\] 115.

37.\*\*Greder v. Stehl \[S. D.\] 115.

38.\*\*Greder v. Stehl \[S. D.\] 115.

39.\*\*Greder v. Stehl \[S. D.\] 115.

38.\*\*Greder v.

property interest in and right to the immediate possession of the goods,"48 and the defendant must be in possession.47 The buyer may maintain trover against the seller 48 or conversion against a third party,49 but not against the seller out of whom title has not passed.50

(SS 11) \_F. Lien for price paid.\_See 2 C. L. 1176.--As between the parties, the vendee has a lien for the purchase money paid.51

(SS 11) \_G. Recoupment and counterclaim.\_See 6 C. L. 1871.--Recoupment applies where the abatement claimed springs out of the very contract or transaction on which the recovery is sought,52 but it cannot be had if the contract was abandoned through fault of the purchaser 53 or after acceptance with knowledge of the defects.54 Demand is not required when the action is brought by the seller,54 por need the buyer return the goods unless at fault,54 but whether he should give notice depends on circumstances.57 If supported by evidence,58 for failure to perform an entire contract the buyer may counterclaim for damages,50 recovering the natural and proximate consequences of the breach and such as were reasonably within the contemplation of the parties at the time of the contract 50 in a separate suit.61 In a proper case, breach of warranty may be relied on as set-off also,62 the extent of which may be determined by the contract of sale.63

(SS 11) \_H. Choice and election of remedies.\_See 4 C. L. 1008.--In the absence of agreement,64 the buyer may elect to pursue one of several remedies,65 and when his

46. American Metal Co. v. Daugherty, 204 machinery. Butck Motor Co. v. Reid Mfg. Mo. 71, 102 SVF 588. Co., 150 Mich. 118, 14 Det. Leg. N. 626, 113 NW 691.

01. Replevin will not lie against one not in possession. Runge v. Wilson \[Cal.\] 96 P buyer could use glue until satisfied that failure of work to hold was due to defects possession is no defense. New Liverpool Salt Co. v. Western Salt Co., 151 Cal. 479, 91 P 152.

01. After sale complete, seller sold goode to third party who recovered goods in action of televin against purchaser's agent. Purchaser had right to sue for conversion. Northwestern State Bk. v. Silberman \[C, C. A.\] 154 F 809.

01. Hall v. Friek Co. \[Ky.\] 106 SWV 1186.

01. Summers Fiber Co. v. Walker \[Ky.\] 109 SWV 883.

01. Dalton v. Buun \[Ala.\] 44 S 625; Gem Knitting Mills v. Empire Print. & Box Co. \[Ga. App.\] 60 SE 365. But for articles de- livered under contract of Mar. 3, 1904. Counterclaim cannot be set up for failure to perform contract of Dec. 7, 1903. Barry- Wehmiller Mach. Co. v. Thompson, 83 Ark. 283, 104 SWV 137.

01. The purchaser cannot have recoupment for failure to complete contract where seller properly abandons it because of his default. Patten v. Iroquols Furnace Co., 124 III. App. 1.

01. Purchase of stalllon warranted to be certain thoroughbred stallion, imported, registered, pedfered, and marked in a certain way. Marks did not correspond with description. Buyer having accepted, and the discrepancy being patent, he was liable for the purchase price. Northfield Nat. Bk. v. Arndt \[Viv.\] 112 NWV 451.

01. Bailey Co. v. West Lumber Co., 1 Ga. App. 395, 68 SN 129.

01. Buyer, through no fault of his, did not discover defects until machinery had been set up and sold He was not bound to return * 10 Cur. Law. SALES SS 12B.

- election is made, which may be presumed from any unambiguous act,66 he is bound thereby.67 Where election may be made within a reasonable time, what is a reasonable time depends on the circumstances of the case,68 and the relief given will be in accordance with the election.69

Footnote 68: The \_L. L.

to delay. \[77\] Nor is eviction from use \[78\] or conviction of the seller a necessary prerequisite to the maintenance of the action. \[79\]

_On the seller's failure to deliver_, \[80\] **e** S. C. L. 1810--On full compliance by purchaser with the terms of the contract, \[81\] unless it is waived \[82\] or the goods sold under a mistake, \[90\] damages may be recovered for the failure to deliver within a reasonable time. \[91\] If the contract does not fix the damages, \[92\] the measure, as a general rule, is the difference between the market price at the time and place of delivery and the contract price, \[93\] and such as the seller had reason to know would ensue, \[94\] with interest thereon until the case is tried. \[95\] Hence, if not speculative and remote, \[96\] profits may be recovered, \[97\] but not extra clerk hire. \[98\]

jection, damages measured by what profits take of which the purchaser had knowledge would have been if goods were quality or-dered. Eddy V. Fay Fruit Co. \[LR. I\] 67 A 586. In addition to the excess of value the property sold would have had at the time to which the warranty referred, if it had been compiled with, over its actual value at that time, the buyer may recover for the breach of warranty on the sale of horses warranted against an infectious disease, cost of medicine, feed, and attendance between the time of sale and when the horse was killed, under a law providing theretor. Larson v. Calder \[N. D.\] 113 NWV 103. The seller is not liable for damages according to the goods after giving them proper attention and which were due to the purchaser's failure to remove them. If, however, seller had failed to use reasonable care as to the goods, the measure of damages is the depreciation in value by reason of such failure. Summers \[99\] Fiber Co. v. Walker \[Ky.\] 109 SW 883. \[99\] **f**. On sale of engine, buyer allowed to recover extra expense incident to trying Imperfect cylinder at sellers request. Wayness-ville Wood Mfg. Co. v. Berlin Mach. Works, \[99\] **f**. Plaintiff, contract to construct buildings, purchased lumber suitable for same which, on inspection, found unit and obliged to purchase other lumber, and delayed in work. Canton Lumber Co. v. L'uller \[Md.\] 68 A 500. \[99\] **f**. Sale of screens and paramount outstanding title or patent in a third party. National Metal Edge Box Co. v. Gotham, 109 NYS 450. \[100\] **f**. Convito under a statue making sales in certain cases criminal is not necessary before an action on warranty of the soundness of a horse will 11fe, nor need the purchaser allege and prove the seller had knowledge of the unsoundness. Larson v. Calder \[N. D.\] 113 NWV 103. \[101\] **f**. An action for damages for breach of contract for the delivery of a certain amount of coal "as ordered" must be based on full compliance by the plaintiff of all the things required of him under the contract. Riszer Co. v. Hesser, 6 Ohio N. P. (N. S.) 411. \[102\] **f**. Bulk Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 14 Det. Leg. N. 626, 113 NWV 591. \[103\] Order to be filled Oct. 1, so as to enable buyer to do business. On failure to deliver, seller loaned buyer similar goods on the 12. Accepting loan no waiver, but may be considered in assessing damages. Biele v. Levy, 107 NYS 607. \[104\] **f**. No damages can be recovered for seller's failure to deliver goods sold under mts- 10 Cur. Law. SALES SS 12D. 1567 (SS 12) \_C. Breach by purchaser.\_See 1. 1811--On breach by the purchaser, the seller may recover that which will indemnify him,91 and this may be the contract price,92 the difference between the market price and the contract price,93 or, if goods are to be manufactured, the difference between the contract price and the cost of manufacture and delivery,94 or, if the goods are not on hand, the actual profits he would have made,95 or the cost of moving,96 and, perhaps, interest.91

\_For nonacceptance.\_See 1. 1811--For purchaser's refusal to accept, unless such refusal was brought about by seller's conduct,98 he may recover the full purchase amount99 or the difference between market price and contract price 1 at time and place of delivery,9 with interest,3 deducting freight, where reshipment is necessary.4 Profits may also be recovered,8 but no recovery can be had for goods sent with the article delivered, which were returned by the buyer,9 nor for railroad expenses incurred in the effort to collect the debt.1

from the breach, and such as may reasonably be supposed to have been in contemplation of the parties,\[11\] not exceeding purchase price with interest,\[12\] but there can be no recovery for loss of profits.\[13\] Nor need he, in order to recover, allege or prove the scienter,\[14\] nor tender back the property,\[15\] but he must not have brought about the breach by his negligence.\[16\]

(SS 12) \_E. Evidence as to damages.\_See * C. L. 1814_The question of damages cannot be left to conjecture,\[17\] but the burden is on the purchaser to prove them \[18\] by competent\[19\] and sufficient evidence.\[20\]

Mark v. H. D. Williams Cooperage Co., fit for practical use, the cost of procuring 204 Mo. 242, 103 SWV 20; Wright v. Computing Scale Co. \[TWash.\] 91 P 571. On an express warranty, the measure of damages is the difference between the value of the article, if it had been as warranted, and the actual value. Lesvitt v. Fiberlid Co. \[Mass.\] 82 NOS 682; Isaacs v. Vannamaker, 189 N. Y. 122, 81 NNE 753; Ames v. Norwich Light Co., 122 App. Div. 319, 106 NYS 952; Mayer v. Auto-mobile Exch., 125 Ill. App. 648. Where goods of specified grade are sold and inferior goods delivered, the damages to buyer is the difference in price between the two grades. A mistake in delivering the inferior grade is no defense. Missouri & Illinois Coal Co. v. Consolidated Coal Co., 137 Mo. App. 320, 105 SWV 682. On sale of hose, the damage is the difference between the market price, had it come up to the warranty, and its market value in the condition it was delivered. In the absence of proof it will be presumed the market value had it compiled with the warranty, was the contract price. Gutta Percha & Rubber Mfg. Co. v. Cleburne \[Tex. Civ. App.\] 107 SWV 157. On the purchase of & locomotive, measure of damage is difference between value, if it had been as warranted, and its value as deduced.

livered, together with reasonable costs in giving it a test, but no damages because aanvmill was stopped for want of logs. Marbury Lumber Co. v. Stearns Mfg. Co. \[Ky.\] 107 SWV 200. Seller held liable for license tax paid by purchaser to dispose of goods. Haymer Mfg. Co. v. Davis \[N. C.\] 61 SE 54. On breach of warranty of seed, buyer may recover damage for loss of use of land and cost of putting it back in former condition. Or, he may recover the difference in value between the crop grown and that which would have been grown had the seeds been as warranted. Depew v. Peck Hardware Co., 121 App. Div. 28, 105 NYS 90. On sale of range with warranty that if it did not -bake and cook well seller would refund money, on breach buyer properly recovered price and freight charges. Failure of either of the warranties constituted a breach. Thompson v. O'Neil \[Ala.\] 46 S 229. Machine, warranted for one year, got out of order soon after delivery, and returned after unsuccessful attempts to remedy it. Beecoror v. Van Schaick, 104 NYS 458. Where buyer paid 8200 and executed his notes for the balance, which notes were never paid, a judgment including the notes ls erroneous, the buyer being entitled to recover the $200, only. Strumpf v. Jordan, 104 NYS 766. On breach of warranty of machinery, the damages recoverable by buyer are the difference between that to be furnished and the one actually furnished or, if that furnished not to be furnished, the amount of money is not allowed to be furnished.

10 Cur. Law. SALES SS 12.

SS 13. \_Rights of bona fide purchasers and other third persons.\_See * C. L. 1615--Innoement purchasers take a good title,\[21\] notwithstanding fraud of the vendee,\[22\] unless the article was stolen, when no title passes as against the true owner.\[28\]

SS 14. \_Conditional sales. Definition, validity and formation.\_See * C. L. 1816--A conditional sale is one in which the vesting of the title in the purchaser is subject to a condition precedent, or in which its reresting in the seller is subject to a failure of the buyer to comply with a condition subsequent.\[24\] In determining the nature of the contract, courts will look beyond the mere terms used,\[25\] to the intent of the parties \[26\] as evidenced by the contract \[27\] and the local law.\[28\] An actual delivery is not necessary,\[29\] nor does it avoid the contract that the seller is doing business in the state in violation of statute.\[30\] And while a contract for "sale or return" \[31\] or that the vendee may sell the property in the usual course of business is valid,\[22\] a reservation in a sale to a retailer that the title shall remain in the seller until the goods are paid for is not.\[33\] The validity of so-called conditional sales is denied in some jurisdictions.\[34\]

tion for failure to deliver rice, letter of money constitutes a conditional sale. An buyer's correspondent in London as to price derson Carriage Co. v. Bartley, 102 Me, 493, not competent. Davis v. Retisinger, 120 App. 67 A 567.

Div. 766, 105 NYS 603. Where the purchaser 27. Racine-Sattley Co. v. Meinen \[Neb.\] Is not a retail dealer, the retail price of the 114 NNV 602. An option in the purchaser to goods cannot be shown. Tutte-Chapman pay, or refuse to pay, for the goods, is not Coal Co. v. Coaldale Fuel Co. \[Iowa\] 113 NWP 827.

20. Davis v. Retisinger, 120 App. Div. 766, Contract for sale of engine provided for payments running for six months, that when brach of contract to sell and deliver tama- pack timber, that he made diligent effort to be exempted from claims of landiod, on procure the timber according to the contract, but failed and obliged to buy hemlock, the cheapest he could procure to take the place of the tamarack at a certain price. Heid * Super. Ct. 158. Goods shipped under contract that retention for a given time should crr v. Kenny, 150 Mich. 159, 14 Det. Leg. N. 697, 114 NWP 228.

01. S sold tobacco to N, who notified S that it was held subject to his order, but got no reply. He sold to C, who sold to D, and I'llen's to E. In suit by S against B, held not entitled to recover. R. T. Stone Tobacco Co. v. Allen, 1 Ga. App. 434, 57 SE 967; Runge v. Wilson \[Cel. Appl. 85 P 178.

01. HIckey v. McDonald \[Ala.\] 44 S 201.

01. Unger v. Abbott \[Miss.\] 46 S 68.

01. Contract by which title retained by seller until goods paid for, and buyer permitted to sell in regular course of trade on condition that he apply proceeds in payment or as security for purchase price, is a valid agreement of conditional sale. Dunlop v. A delivery of personal property for sale, or Mercer \[C. C. A.\] 157 F 545.

01. The fact that it is called a rent contract does not make it other than a conditional sale. A. G. Rhodes & Son Furniture Co. v. Jenkins, 2 Ga. App. 475, 58 SE 897. A contract purporting to be a release or ball- ment will be construed to be a conditional sale if it appear that the terms used were employed as a disguise of the real intent of the parties. In re Morris, 156 F 897.

01. A stipulation reserving title until sale or until paid for, and providing that pro-ceeds of sale shall be and remain property of vendor until accounted for, are consistent with a conditional sale. Morrison Mfg. Co. v. Fargo Storage & Transfer Co. \[N. D.\] 118 NWP 605. Order for goods stipulating that come at once unconditionally bound for the title to remain in seller until paid for In price, and the vendor is to continue to be 1570

SALES SS 14. 10 Cur. Law.

_Bights of parties to the contract._ See s c. L. 1817--Unless the contract is rescinded, \[38\] payment which is a question of fact \[38\] and may be made by note \[37\] is necessary to pass title \[38\] if not waived. \[39\] If not accepted, the vendor should return the goods within a reasonable time \[40\] and may be estopped to deny delivery, \[41\] nor can he set up as a defense a mortgage lien created by himself. \[42\] Vendee may recover the money paid if the goods have been retaken by vendor and he fails to resell them \[48\] or makes an illegal sale of them, \[44\] the value of the articles being left to the jury. \[45\] Unless he has waived title \[46\] or unless caused by himself, \[47\] default of the vendee entities the vendor to the posssion of the property, \[48\] which he may take in repleniu, \[49\] the jurisdiction being fixed by statute \[50\] and trial by jury denied unless there is an issuable defense. \[51\] The burden is on plaintiff to show title. \[52\] The seller may also sell the property and recover the difference if the contract so provides, \[53\] but he cannot keep the goods and the owner until the price is paid, is not possible under the laws of Louisiana. Barber action. Anderson Carriage Co. v. Bartley, Asphalt Pay. Co. v. St. Louis Cypress Co. \[102 Me. 492, 67 A 567.

\[La.\] 46 S 193. 43. 44. 45.

10 Cur. Law. **SALES SS 14.**

also recover the contract price therefor,\[54\] nor recover rent for the chattel while in possession of the buyer,\[65\] nor retake the property and recover unpaid installments unless such was the agreement; \[66\] nor, after property is paid for by purchaser, will advancements thereafter made to him by seller be a charge against it,\[67\] and when he takes possession the vendee is relieved of liability.\[68\]

\_Bights of third persons.\[See e C. L. 1620.--Contracts of conditional sale cannot affect innocent third persons,\[69\] nor does the fact that the purchaser from the conditional vendee offered to assist the vendor to collect the unpaid money affect his purchase,\[60\] but where the contract is recorded, the vendor's rights cannot be affected by a subsequent mortgage\[61\] unless he consented to it,\[62\] or by a lien \[68\] or attachment,\[64\] and he may recover the property even against a purchaser at judicial sale.\[65\] An assignee of the purchase-money note \[68\] or of the instrument upon which a conditional sale is based takes title to the property.\[67\] The description should be such as to designate the property.\[68\] A deed must be signed by the seller,\[69\] but it need not be witnessed or acknowledged,\[70\] and whether it should be recorded depends on the jurisdiction.\[71\] Failure to record does not affect the title as between seller and purchaser's trustee in bankruptcy.\[72\]

Salyage; Satisfaction and Discharge, see latest topical index.

sell it, and apply proceeds as credit on note, \[62\]. Where seller consents to a mortgage The law in this case would not imply a re-vocation of sale by the taking and selling, his rights as against the mortgage. Hyatt nor that there was no consideration remain-v. Bell, SS 2 Ark. 360, 103 SW 748.

ing to support a recovery in action on note for balance due. Christie v. Scott \[Kan.\]

sale, it cannot be defeated by a subsequent 94 P 214.

54. The most seller can recover is damages for the breach. Rouse v. Rose \[Ind. App.\]

63 NNE 263.

55. This, in effect, would permit the seller to retake the property and recover the purchase price. Hoffman v. White Sewing Mach. Co., 108 NYB 258.

01. The double remedy is so harsh and un-just that courts will not enforce it unless so clearly provided for as to have no reasonable doubt of the intention of the parties. Manson W. Dayton \[C. C. A.\] 153 F 258.

01. Black Raven Coal Co. v. Edmonson \[Ky.\] 108 SVP 956.

01. Vendor, pending action on purchase-money note, took possession of the property, with consent of vendee to repair and deliver to surev and failed to redilev to vendee.

01. The double remedy is so harsh and un-just that courts will not enforce it unless so clearly provided for as to have no reasonable doubt of the intention of the parties. Manson W. Dayton \[C. C. A.\] 153 F 258.

01. Black Raven Coal Co. v. Edmonson \[Ky.\] 108 SVP 956.

01. Vendor, pending action on purchase-money note, took possession of the property, with consent of vendee to repair and deliver to surev and failed to redilev to vendee.

01. Vendor was relieved of obligation to pay. Fredrickson, Schmitritch \[Neb.\] 112 NWV 564.

01. Sale of goods, title to remain in seller until paid for, and contract unrecorded, passes title to buyer as to third persons. In re Perkins, 155 F 237; In re Burt, 155 F 267; In re Morris, 156 F 597.

01. The fact that the purchaser without record notice of a conditional vendee in possession, such possession having remained more than two years before purchase, tenders his good offices in assisting the conditional vendor to collect the unpaid money, does not avoid the latter purchase. Onyx Soda Fountain Co. v. L'Engle, 53 Fla. 314, 48 S 771.

01. And this is true though the contract of conditional sale is not filed, a mortgagator not being a purchaser within the meaning of the statute. Racine-Sattley Co. v. Menen \[Neb.\] 114 NWV 602.

01. Where seller consents to a mortgage on the property sold, there is a waiver of his rights as against the mortgage. Hyatt v. Bell, SS 2 Ark. 360, 103 SW 748.

01. Seller having recorded his contract of sale, it cannot be defeated by a subsequent 94 P 214.

01. Where goods are sold and delivered on condition that the title shall not pass to vendee until price paid, vendee has no attachable interest until performance of condition, and when attached by creditors, vendors may recover them. McIver v. Williamson-Halsell-Frazier Co. \[Kl.\] 182 P 170.

01. James V. Avery \[Ga. App.\] 59 SE 1118.

01. An unconditional assignment of note given for purchase of personality, wherein seller retains title to property until paid for, does not extinguish security, but carries it along, and title retained by seller vests in assignee until purchase debt is paid. Lau-rens Banking Co. v. Bales \[Ga. App.\] 60 SE 1014.

01. Lazarovich v. Tatibl
    Saving Questions for Review.

Sove of title.--This title covers the things that must be done in the lower court to save matters for review in the appellate court. It does not, however, include bills of exceptions, statements of the case, or any of the formal steps incidental to the transmission of the case to the appellate court; \[78\] nor does it include the manner of objecting to pleadings.\[74\] Objections to jurisdiction and waiver thereof are more fully treated elsewhere.\[78\]

Sove of title.--A party cannot complain of error which he himself invites.\[79\] He cannot complain of instructions given at his own request,\[77\]

jurisdiction, the failure to record makes the eale voldable as to bona fide purchasers, attaching creditors, and judgment creditors only. Dunlop v. Mercer \[C, C, A.\] 156 F 548.

72. Statute varding recordations as to subsequent creditors without notice, purchasers and incurbraners, does not apply to trustees in bankruptcy, they being neither of these, and taking just such ttile as bankrupt had. In re Pierce \[C, C. A.\] 157 F 755.

01. See Appeal and Review, 9 C. L. 108.

01. See Pleadings, 10 C. L. 1173.

01. See Jurisdiction, 10 C. L. 512; Appearance, 9 C. L. 232.

01. Macloon Sav, BK, v. Cronin \[Neb\]. 116 NIV 150; Chicago, etc., R. Co. v. Stillwell

77 Lex. Civ. App.\] 18 Tex. Ct. Rep. 760, 104 SW

1071. Error in a decree entered by consent or invited by a party will not be reviewed. Martin v. Houck Music Co., 19 Ark. 85, 94

SVV 332. A party cannot complain of offer to introduce evidence where such offer was provoked by the complaining counsel. City of Chicago v. Didier, 131 Ill. App. 406. Permission of court that papers introduced could be considered as read cannot be objected to on appeal, where done by agreement of parties, Arkansas S, W. R. Co. v. Dickinson, 78

78. A.k. 83, 85 SW 802. He cannot complain of ruling similar to those which he induced court to make. Reisch v. People, 229 Ill.

01. Hamilton V. Joseph Schlitz Brew. Co. 574, 82 NE 321. Brinig about false Issue to be tried. Aetna Indemity Co. v. J. R. \[Iowa\] 115 NW 32; Lully v. The New Voice, Crowe Coal & Min. Co. \[C, C. A.\] 154 F 545.

128 Ill. App. 455; Hummer's Ex'x. Louis-Errors in a judgment invited by instructions, while, etc., R. Co. \[Ky.\] 108 SW 885; Lacks v. Judgment in relpicun failing to read in the alternative, Boswell v. First Nat. Bk. \[Vyo.\]

782 P 624. Implied admission of fact held to Chicago, etc., R. Co. v. Stillwell \[Tex. Civ.\], render failure of proof thereof immaterial.

Giacoma v. New York, etc., R. Co. \[Mass.\]

81 NE 899. If a party mislead the court, he must abide the result, whether it be done intentionally or unintentionally. By modify-ing Instruction leading court and opposing to a party cannot complain of error, but he could have been asked for him her answer. Pinkney v. Young \[Tex. Civ. App.\] 107 SWV 622. In an action on an insurance policy, defendant by asking for a credit for unpaid premiums held barred from objecting that premiums had not been paid. Clark v. Home Fund Life Ins. Co. \[S. C.\] 61 SE 80. Error induced by the adoption of his theory of the case. City of Chicago v. University of Chicago, 228 Ill.

606, 81 NE 1188. Where party presented amendment of bill of particulars, he cannot complain of variance which would have been obviated thereby. McKinnie v. Lane, 230 Ill.

544, 82 NE 878. Appellants held not prejud- or invited by a party will not be reviewed.

diced by instruction relative to the measure of damages, since they requested and the court gave a special instruction embracing the same proposition as to liability. Mis-souri, etc., R. Co. v. Kyser \[Tex. Civ. App.\]

15 Tex. Ct. Rep. 891, 95 SW 747. Requiring

an injunction bond differently conditioned from that originally approved is no ground for complaint in error, where such prerequisite, Arkansas S, W. R. Co. v. Dickinson, 78

site was compiled with and such new bond given. Reed v. New York Nat. Exch. Bk.,

181 Ill. App. 484.

77. Hamilton V. Joseph Schlitz Brew. Co. 574, 82 NE 321. Brinig about false Issue to be tried. Aetna Indemity Co. v. J. R. \[Iowa\] 115 NW 343; McDermott v. Mahoney Crowe Coal & Min. Co. \[C, C. A.\] 154 F 545.

128 Ill. App. 455; Hummer's Ex'x. Louis-Errors in a judgment invited by instructions, while, etc., R. Co. \[Ky.\] 1 10 Cur. Law. Saving Questions for Review $ 1. 1573

or of instructions substantially the same as those which he himself has requested," or subject to the same objection," or which are in accord with his own theory of the case," A party requesting the court to charge on a subject may complain that the court erroneously stated the law, where it was not stated as requested." The rule that one party cannot complain of the giving for the other of an instruction like the one given for him does not apply to an instruction directing a verdict, if the jury find certain facts, omitting facts essential to recovery." A party cannot complain of evidence which he himself introduces," or which is similar to that which he introduces," or for which he opens the way," or which he himself brings out," or of the absence of evidence excluded on his own objection," or invitation." One cannot comma plain of a nonsuit, \[89\] or of judgments * or orders which he, himself, invites. One cannot complain of an order vacating a verdict and judgment, the order being entered on his own motion. \[91\]

**SS 2.**\_Acquiescing in error.\_See **e C. L. 1824**.\*\*As a general rule there can be no error in the absence of an asserted right, \[92\] and only questions raised in the trial court will be considered on appeal. \[93\] Some of the questions to which this rule has been applied are: Qualification of the trial court or tribunal; \[94\] prematurity; \[95\] laches; \[98\] status

**S9. Patterson v. Sams, 2 Ga. App. 755, 59**

\*\*S9. 114 NWF 788. Defense of state-

**SE 18. Voluntary nonsuit. Adamson v. Metropolitan St. R. Co., 126 Mo. App. 127, 103**

**S9V 1097. Plaintiff taking a nonsuit upon**

\*\*Wheelon \[N. D.\] 115 NWF 596; Subgroup in court declaring its intention to give an in-

**s**rinsche action that judgment had not been

**s**ruction in the nature of a denumer. Lewis

**s**enter \[N. D.\] 115 NWF 79. Sufficiency of affl-

**s**oft \[N. D.\] 115 NWF 79. Sufficiency of affl-

**s**oft \[N. D.\] 115 NWF 79. Sufficiency of

**s**oft \[N. D.\] 115 NWF 79. Sufficiency of affl-

**s**oft \[N. D.\] 115 NWF 79.

10 Cur. Law. Saving questions for review SS 2.

of parties; "? joinder and nonjoinder of parties; "8 misnomer of party; "9" manner of procedure; 1 wrongful election of remedies; 2" sufficiency 3 and verification 4 of pleadings; order of reference; 5" errors of referee; 6" right to set off; 7" failure to swear a witness; 8" admission, exc'usion, sufficiency 9" and competency 10" of evidence; credibility of witness; 11 variance between pleadings and proof; 12" indefiniteness in stipulations; 13 misconduct of party; 14 arguments and remarks of counsel; 15 remarks of trial judge, 10 including misstatements in the charge; 17 giving and refusal of instructionale

Contra: The disqualification of the judge

S. See post, SS 4, Necessity of Objection T0

may be raised for the first time on appeal.

Pliedings.

Bliss v. Caille Bres. Co., 149 Mich. 601, 14

4. Phoenix v. Bijelich \[Nev.\] 95 P 351.

Det. Leg. N. 590, 113 NW 317.

95. Tanenbaum v. Federal Match Co., 189

01.

N. Y. 75, 81 N28 565.

6. Errors by referee must be first attacked

1. Not regarded with favor. Helm v.

Brewster \[Colo.\] 93 P 1101.

97. Right of consigner to sue for injury to

freight. Brennelson V. Pennsylvania R. Co., 101 Minn. 120, 111 NWV 945. Right of bank to

8. The failure of a party or his counsel to

sue on notes indexed to its cashier individu-

validy. First Nat. BK. v. McCululough \[Or.\] 93

P 366. Right of county commissioners to

raise question as to constitutionality of stat-

ute. State v. Holmes, 53 Fla. 226, 44 S 179.

That complainant in an action to cancel a

dead could not bring the action as executor

of the deceased grantor. Reason v. Coleman

\[Miss.\] 46 S 49. Failure of plaintiff to prove

its corporate existence. Combs v. Virginia

Pro, Coal & Ocke Co. \[Ly.\] 105 RV 815.

Legal incorporation of defendant company.

Fact of incorporation being admitted in

piedings. South East R. Co. v. Evansville

R. Co. \[Ind.\] 82 NNE 765.

Note! In Season v. Coleman \[Miss.\] 46 S

49, the court says: "Of course, in any case

where the subject-matter of the litigation

was such that a final decree could not be

made without materially affecting the inter-

est of parties not before the court, it would

make no difference when the objection might

be taken so far as its effectiveness would be

concerned."

Questions of the character in which plaintiff asses cannot be raised for the first time

on a motion for judgment non obstante.

Speckman v. Smedley Bros., 153 F 771.

98. See post, SS 4, Necessity of Objection T0

Parties.

99. University of Louisville v. Hammock

\[Ly.\] 106 SW 219.

1. Failure to first file an account in pro-

ceedings for dissolution of partnership. K11

ger v. Rosenfeld, 120 App. Div. 366, 105 NYS

214. By motion or petition. David Bradley

Mfg. Co. v. Burrhus \[Iowa\] 112 NWV 766. That

issues raised on cross complaint and answer

were not tried before the issues raised by

the complaint and answer. Garvey v. La

Shells, 151 Cal. 526, 91 P 498. On motion in-

stead of on trial on pleading. Ellison v. Focke \[Kan.\] 94 P 805. A property owner

who has submitted without exception to a

joint trial for the assessment of damages for

various properties appropriated for railway

purposes cannot be heard to complain in the

reviewing court that he was not given a

separate trial. Cincinnati Iron Store Co. v. Trus-

tees Cincinnati Southern R. Co., 9 Ohio C. C.

(N. S.) 103.

2. Action for rescission instead of breach

Krebs Hop Co. v. Livesley \[Or.\] 92 P 1084.

16. Gehlert v. Quinn, 35 Mont. 451, 90 tions; \[18\] defects in verdict,\[19\] and irregularities in receiving same,\[20\] rendering a judgment non obstante; \[21\] form,\[22\] provisions \[23\] and amount of judgment; \[14\] costs; \[25\] attorney's fees; \[26\] defects in a motion for a new trial,\[27\] or bond on appeal; \[28\] failure to give a cost bond; \[29\] sufficiency of motion to dismiss appeal; \[30\] and in general'all clerical misprisions.\[31\] One is estopped to predicate error upon matters to which he has, with knowledge of the facts,\[32\] consented,\[33\] or in some \[34\] but not all \[35\] cases upon rules.

01. Statement of case to jury. Rimmer V. Wilson \[Colo.\] 93 P 1110; Eckels v. Mutt-schul, 23 011, 452, 82 NE 872.

01. Uniform fact. Pennsylvania R. Co. P 273.

v. Donora Southern R. Co. \[Pa.\] 68 A 845.

18. Dotson V. Milliken, 28 S. Ct. 489; Taylor V. Barnett, 39 Colo, 469, 90 P. T. Greenlee P. A. Greenlee P.

10 Cur. Law. Saving questions for review SS 2. 1577

ings to which he has submitted. Exceptions to conclusions of law admit the correctness of findings of fact.36

Questions involving fundamental errors apparent on the face of the record will be considered though not saved below.37 But an objection made for the first time on appeal is not favored though it is one which may be properly raised at any time during the case.38 When evidence is received or pertinent to the issues in a given case, and that evidence would also be pertinent to another issue which might have been, but was not, made by the pleadings, its reception is no waiver of an objection to the consideration of such other issue.39

\_Change of theory.\_See 8 C. L. 1826--The case will be tried on appeal on the same theory on which it was tried below,40 whether such theory relates to the pleadings,41

the evidence,42 the issues,43 grounds of recovery44 or defense,45 dismissal of parties,44

bIII for injunction gives bond required by Oolithic Stone Co. v. Ridge (Ind.! 83 NDE court, he cannot on appeal claim that it is excessive. Reed v. New York Nat. Exen. BK, 1901, $ 1088, subd. 2, that theory must be added to, and the act being unconstitu-had ruled against his client and they should find for the opposing party held not to estop tsunami. Id. Sufficiency of indictment. him from complaining of the judgment as to errors in the submission. Mexican Cent. R. C. v. De Roseer \[Tex. Civ. App.\] 109 SWP 849.

36. Hamrick v. Hoover \[Ind. App.\] 84 NE 28. See Henry v. Central Trust Co., 40 Ind. App. 869, 82 NE 120.

01. Though no motion in arrest or review was made below. Walton v. Catron, 125 Mo. App. 501, 102 SWP 1058. Failure to object to oral evidence held not to waive benefit of statute of frauds, answer denying existence of any contract and complaint showing on its face a contract within the statute. Brady Jes Real Exstate Co., V. Robbins \[Ind. T.\] 108 SWP 177. That tax ded did not contain in-dorsements specifically and expressly required by Rev. Code 1880, 562. McLemare v. Anderson \[Miss.\] 48 S 878. Statement in claim against state showing on its face that it was not allowable. Beall v. Graham, 125 Mo. App. 38, 102 SWP 686. Diversity of citizenship; Federal-court. Rogers v. Penobscet Min. Co. \[C. C. A.\] 154 F 606.

01. Sk. Edward Malley Co. v. Londener \[Colo.\] 93 P 488.

01. Hostetter v. Illinois Cent. R. Co. \[Min.\] 115 N NV 748.

01. Matory v. Randolph \[Cal. App.\] 94 P 403; Stratation Cripple Creek Min. & Development Co. v. Ellison \[Colo.\] 94 P 303; Henry County v. Citizens' BK, 208 Mo. 209, 106 SWP 622; City of St. Louis v. G. H. Wright Cont. Co. \[Mo.\] 109 SWP 6; Carlson v. Barker \[Mon.\] 95 P 646; National Soc. D. B. Daughters of 1512 v. American Survey Co., 57 Mike, 627, 107 NYS 820; Pease Plano Co. v. Sarles, 109 NYS 813; Blackwell, etc., R. Co. v., Gist, 181 Ok. 616.

90 P 889. Trial of plea in bar without re-forming it to the merits. Gilbert v. Mazerat \[La.\] 46 S 47. Action at law for damages arising from nuisance cannot be changed to one in equity for abatement. Cushing-Wet-more Co. v. Gray \[Cal.\] 92 P 70. That one partner cannot bind another to a guaranty. Adler v. Miles, 108 NYS 1011. Suit in equity transferred to common-law docket but tried as an equitable action. Phillips v. Stewart, 19 Ky. L. R. 1199, 97 SWP 64.

41. Studabaker v. Faylor \[Ind.\] 88 NE 747; measure of damages," or effect of decree." Statement by counsel on the trial as to his understanding of the law does not estop him from urging on appeal that the law is not in harmony with that understanding."

Under the same rule only such objections will be considered on appeal as are urged below."

**SS 3.**\_Mode of objection, whether by objection, motion, or request.\_See **s C. L. 1880**

Misjoinder of parties apparent on the face of the record should be raised by de-

point, failure to prove such point will not warrant reversal. O'Keefe v. United Railways Co., 124 Mo. App. 613, 101 SWV 1144. Where one tried case on the theory that policy of insurance had been forfeited and forfeiture waived, he cannot raise the issue on appeal that policy had not been forfeited. Industrial Mut. Indemnity Co. V. Thompson, SS3 Ark. 574, 104 SWV 200. Grounds for objecting to guardian's account. Hudson v. 388, 103 SWV 582. Newton, SS3 Ark. 223, 108 SWV 170. Action to enforce stockholder's liability; question of whether or not corporation's stock was sub-

Sept to assessment not raised. Nor w. Lamon, SS9 Minn. 115, 108 NW 849. Evidence being introduced without objection cannot urge that findings based thereon are not respon-

sive to the issue. Colegrove Water Co. v. Hollywood, 151 Cal. 425, 90 P 1063. Effect of deed. Ault v. Hollywood 115 NW

SWP 11. If a cause of action for injury to

1030. A motion to certify an unlawful de-

talner action to the county court on the

ground the title is in issue, under Gen. St.

1883, SS 1495, should be made before a trial

on the merits and appeal from an adverse

judgment. Bonnell v. Gill \[CoLo.\] 92 P 13. That district court should try case de novo,

In re McVay's Estate \[Idaho\] 93 P 28. That he

both sides desired case treated as involving

questions of law alone. Dolsen v. Phoenix

Ghico C. C. (N. S.) 11 Ch. 894, 115 NWV 50. Suit to quit title based

on a delimquent tax sale cannot be changed

so as to rest on sale under a statement act

and on limitations. Kennedy v. Sanders

\[Miss.\] 48 S 913.

44. Westinghouse, Church, Kerr & Co. v. Remington Salt Co., 189 N. Y. 515, 81 NE

01. Slander. Laughlin v. Schnitzer \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 830, 106 SWV 908. Grounds of invallidity of bonds. Streator v. Linscott \[Cal.\] 95 P 42. Action for money

lent cannot be changed so as to recover for

failure of defendant to account as agent

Young v. Anthony, 119 App. Dif. 612, 104

NYYS 87.

45. Hayes v. Atlanta, 1 Ga. App. 25, 57 SE

01. Matters not pleaded as a defense can

not be taken as ground for reversing the

judgment. Haywood v. Scarborough \[Tex. Civ. App.\] 10 Tex. Ct. Rep. 472, 102 SWV 469. Payment. Marshall v. U. S. Acc. Assn

\[Mich.\] 14 Det. Leg. N. 892, 114 NWV 1028. Dures. Friedman v. Erste Kaiser Franz

Joseph Unterstutzungs Verein, 104 NYS 908. Slander; words privileged. Slater v. Walter,

148 Mich. 650, 14 Det. Leg. N. 314, 112 NWV

682. Whether defense of self-defense could

be asserted under a general denial. Mittel-

ell v. United Railways Co., 135 Mo. App. 1, 102 SWV 661. Construction of lease. Gens.

ler v. Nicholes \[Mich.\] 15 Det. Leg. N. 13, 115 NWV 458. That defense of assumption of

102 SWV 661. Construction of lease. Gens.

ler v. Nicholes \[Mich.\] 15 Det. Leg. N. 13, 115 NWV 458. That defense of assumption of

103 SWV 661. Construction of lease. Gens.

115 NWV 458. That defense of assumption of

104 SWV 661. Construction of lease. Gens.

115 NWV 458. That defense of assumption of

116 SWV 661. Construction of lease. Gens.

117 SWV 661. Construction of lease. Gens.

118 SWV 468. That defense of assumption of

118 SWV 661. Construction of lease. Gens.

119 SWV 661. Construction of lease. Gens.

120 SWV 661. Construction of lease. Gens.

121 SWV 661. Construction of lease. Gens.

122 SWV 66 murrer.\[51\] Capacity of parties' plaintiff to sue should be raised by demurrer or by answer.\[52\] The question of variance is not raised by a demurrer to the pleadings.\[53\] An order denying a motion for leave to file an amended complaint is as effectively excepted to by mandamus proceedings to compel the trial judge to vacate the order as though it had been formally excepted to on the record.\[54\] The improper character of evidence not appearing until after its admission, it may be reached by a motion to strike out.\[55\] A motion to strike out the testimony of a witness should be denied if any part is admissible for any purpose,\[56\] the proper method being to strike out merely the inadmissible part.\[57\] In some states, improper argument being made to the jury, a motion for a mistrial should immediately be made.\[58\] The remedy for a failure to make findings is by a motion therefor.\[59\]

**SS 4.**_Necessity of objection. In general.\[58\]_\*\*Se S C. L. 1822--A timely "0" objection is essential to the preservation of questions for review, and only such questions as are thus saved will be considered by the reviewing court,\[61\] though in some states a motion for a new trial will raise the question.\[62\] Where a motion for a new trial has been made, overruled and exception taken, further objection to the ruling of the court is unnecessary.\[63\] Failure to object to remarks by the court is not excused because of the belief of counsel that to make objection would rapake a bad matter worse.\[64\] It has been stated that objections and exceptions do not lie to the admission of points constituting mere argument to the court.\[65\]

_To jurisdiction.\[58\]_\*\*Se S C. L. 1832--An objection below is essential to the saving of certain questions as to jurisdiction,\[66\] but not questions relating to jurisdiction of the subject-matter.\[67\]

\*\*SS1.\*\*Wavled by answering over. Rev. St. \[Kline \[Iowa\] 113 NWV 504; Redfield v. Reid, 1899, SS 588 considered. Hudson v. Wright, 124; Boswell v. First Nat. Bx. \[TVyo\] 92 P 52. Not by demurrer to the evidence. \[Maeler v. Swan, 75 Kan. 496, SS 702; SS 73. Ryv n. Rogers \[Idah\] 94 P 427. \[St. Jones V. Pendleton \[Mich.\] 15 Det. Leg. N. 49, 115 NWV 468. \[St.\] If objectionable character of evidence given in chief does not appear until cross-examination, it may be reached by motion to strike out. Chicago Union Trac. Co. v. Giese, 229 Ill. 260, SS 223. Where the answer of a witness, as distinguished from the question asked, is objectionable, the remedy of the party complaining is by motion to strike the answer. Supple v. Suffolk Sav. Bx, \[Mass.\] 84 NE 432; Smith v. New York Anti-Saloon League, 121 App. Div., 600, 108 XYS 251. Where whole answer of witness was objectionable. \[O'Brien v. New York City R. Co., 55 Misc. 228, 105 NYS 238. An exception does not lie to an improper answer to a proper question. Sheldon v. Wright, 80 Vt. 298, 67 A 807. So, also, testimony wybeth becomes incompetent by reason of an amendment of the pleadings should, on motion to strike out, be with-drawn from the jury. Thaxter v. Missouri Pac. R. Co., 123 Mo. App. 636, 100 SWV 1102. \[St.\] Platt v. Rowand \[Fla.\] 45-S 32. \[St.\] Keys v. Wimshoro Granite Co., 76 S. C. 284, SS 594. \[St.\] Southern R. Co. v. Dean, 128 Ga. 366, 67 SP 702. \[St.\] Eagle Min. & Imp. Co. v. Hamilton \[N. M.\] 91 P 718. \[G0, See post, this section, subd. Time of Objection. \[G1. Egoff v. Children's Guardians of Madigan County \[Ind.\] 84 NE 151; Hansen v. \[Kline \[Iowa\] 113 NWV 504; Redfield v. Reid, 148 Mich. 545, 14 Det. Leg. N. 281, 112 NWV 204 M. 412, 103 SWV 8. \[K.\], Beweil v. First Nat. Bx. \[TVyo\] 92 P 624. Improper argument of counsel. South-cern R. Co. v. Dean, 128 Ga. 366, 57 SE 702; Person v. Illinois Cent. R. Co., 149 Mich. \[K.\], 174 Det. Leg. N. 405, 112 NWV 932. Emnient domain proceedings; allowance for interruption of business. \[Vest Chicago Park Com'rus v. Boal, 232 Ill. 248, SS 824. So held where no objection was made to refere's report, appeal being from judgment entered theeron. Armstrong v. Munster \[Me.\] 67 A 573. Action to enforce stockholder's liability. Question of whether or not corporation's stock was subject to as-sessment not raised. Neff v. Lamm, 93 Minn. 115, 10
To parties.Sae S. C. L. 1833--An objection below is necessary to save any question or to the joinder or nonjoinder 68 of all but, perhaps, necessary parties.89

To pleadings.See S. C. L. 1833--As a general rule, objections to pleadings 70 and to rulings thereon 71 cannot be made for the first time on appeal. No objection below is necessary, however, to save the question as to whether the declaration or complaint states a cause of action,72 though, if it is apparent from the complaint that the defects were passed over when they might have been cured by amendment during trial, the parties will not be permitted to take advantage of them on appeal.73

has no jurisdiction because controversy in-

Defective description of land. Rocks v. volves a partnership account. Fish v. Laps-

Tucker, 129 Ga. 744, 59 SE 778; Farmers' ley, 128 Ill. App. 611. That cause is not

Co-op. Ditch Co. v. Riverside Trr. Dist,

within jurisdiction of a court of equity.

\[Idahol 94 P 761. Failure to allege non-

Shedd v. Seefeld, 126 Ill. App. 375.

payment. Action on insurance policy, Na-

67. City of Aurora v. Schoberlein, 230

Ithal Mut. Fire Ins. Co. v. Sprague \[Colo.\]

III. 49. 82 NS 860; Stemmetz V. G. H. Hammond Co., 167 Ill. 153, 78 NE 628; Baltimore,

V. Benthall \[Va.\] 68 DS 765. Carrying

etc., R. Co. v. Hollenberger, 76 Ohio St. 177.

81 NE 184; Hunter v. D. V. Alderman &

States fidelity & Guaranty Co. v. Paxton

Sons Co. I. C.1 61 SE 202; West v. Martin

\[Wash.\] 92 P 834. See, also, Cable v. Duke,

plain. San Gabriel Valley BK, v. Lake

208 Mo. 557, 106 SW 643. Want of jurisdic-

Vive Town Co., 4 Cal. App. 630, 83 P 360.

tion may be raised at any time, Schaller

Right to counterclaim. Barry-Vehmiller

v. Marker \[Iowa\] 114 N NV 43. But see

Mach. Co. v. Thompson, 83 Ark. 283, 104 SWV

United States Health & Acc. Ins. Co. v. Clark

\[Ind. App.\] 83 NE 760.

68. Dowie v. Sutton, 227 Ill. 183, 81 NE

1395; Taylor v. Southerland \[Ind. T.\] 104 SWV

\[Ringler \[Iowa\] 112 N NV 543. Duplicity, no

874: Haley v. Cochran, 31 Ky. L. R. 515, 102

67.55; Bauman v. Kuhn, 108 NYS 773:

\[Mass\]. 83 NE 8. Indefiniteness. Carlson v. Henderson v. Rushing \[Tex. Civ. App.\] 20

Barber \[Mont\]. 93 P 646. Multifarolusness. Tex. Ct. Rep. 115, 105 SW 840; Budhos v. Litz v. West Hammond, 230 Ill. 310, 82 NE

Rudlong \[Vash.\] 94 P 478. That defend-

634. Question whether contempt proceed-

ants were not joined as parties plaintiff.

Van Gordon v. Goldamer \[IN. D.\] 113 N NV 609.

Counsel representing defendant had admit-

ted upon the trial that right parties had

been named defendants. West Chicago

St. R. Co. v. Mutstehall, 131 Ill. App. 639.

since with domestic statutes. Valley Lumr-

In an action against insane person's trustee and committee. Objection that insane

person was not a party. Cecil's Trustee v. Robertson \[LKy\] 105 SWV 926. Failure to

demur to misjoinder of parties plaintiff

waives right to move to dismiss the action

enemy of specifications in hearing before

on that ground on trial. Wolverton v. Rogers, 123 App. Div. 45, 107 NYS 883,

234 Ill. 21, 84 NE 622. Sufficiency of a con-

69. Objection held not indispensable to

taking advantage of absence of indispensable

ble party. McConnell v. Dennis \[C. C. A.\]

153 F 547. Want of necessary parties is not

wavled by failure to assign it specially as

a ground of demurrer, and when a demurrer

has been interposed and oververted and a

decree entered without such special assignment either on the demurrer or at the hearing, it may nevertheless be relied upon in

the appellate court. Thompson v. Hern \[W. Va.\] 69 SE 504.

70. Union Sav. Bx. v. Rinaldo \[Cal. App.\]

92 P 873; Brady v. Ranch Min. Co. \[Cal. App.\]

App.\] 94 P 85; Cone v. Knight, 5 attacked for the first time on appeal will be liberally construed "\* and, in some instances, formal amendments will be considered as made."

\_To evidence._See * C. L. 1834_--The admission " and sufficiency " of evidence will not be reviewed on appeal when no objection was made below, though in some states a motion for a new trial will raise the question." Where in an equity suit an exception is reserved to the judgment and properly preserved, the evidence as a whole is reviewable to determine whether it sustains the judgment, though no objection was interposed to its reception." The judgment should be objected to in the trial court."

\_Time of objection._See * C. L. 1835_--Objections must be timely." Obljections to

74. Carlson v. Barker \[Mont.\] 93 P 646; -- mer v. Brooklyn Heights R. Co., 120 N. Y. Nelson v. Modern Brotherhood of America 810, 83 NE 35. --. --Influiciency of evidence to
    \[Neb.\] 110 N NV 1008. -- 75. United States Fidelity & Guaranty Co. -- D. 112 NWF 243. Failure of plaintiff to

prove its corporate existence. Combs v. Trif-

76. Powers v. Hatter \[Ala.\] 44 S 859; In

ginia Tron, Coal & Coke Co. \[Ky.\] 106 SWv Johnson's Estate \[Cal.\] 93 P 1016; Union

815. Where evidence corresponds to plead-

Sav, BK. v. Rinaldo \[Cal.\]. App.\] 92 P 873; --Bono v. Bevis, 53 Pfa, 642, 83 P70; Cross v.

Bmur v. Atlanta Paper Co., 2 Ga. App., 52, 58

Aby \[Fla.\] 45 S 820; Legris v. Marcotte, 129

SE 373. To support submission of question

ll. App. 67; Chesapeake, etc., R. Co. v. Perkins, 31 Kx. L. R. 1380, 106 SVV 148; Dolsen

M.\] 68 A 867. That signature was not shown

v. Phoenix Preferred Acc. \[Tha.\] 10 have indicated defendants. Adler v. Miles,

115 NWF 60; Von Trebra v. Lacelele Gashlight

108 NYS 1011. Whether evidence of dam-

Co. \[Md.\] 108 SVV 559; Forest v. Rogers \[Mo.\],

ages is too indefinite. Vandalia R. Co., v. App.\] 106 SWV 1015; Hancock v. Beasley

\[N. Md.\] 91 P 735; Boyd v. St. Louis S. W. R.

118 made to evidence showing special dam-

Co. \[Tex.\] 108 SVV 813; Mings v. Griggsby

ages, a finding thereon is conclusive. Moody

Const. Co. \[Tex. Civ.\]. App.\] 20 Tex. Ct. Rep.

368, 836, 106 SWV 192; Massuced v. Tomassi,

action at law when no instructions are asked

80 Vt. 186, 67 A 551; Pelton v. Spider Lake

Sawmilli & Llamber Co. \[Vis.\] 112 NWF 29.

mission or rejection of evidence, the court on

Competency of witness. Mitchell V. Chicago,

etc., R. Co. \[Iowa\] 114 NWF 622. Testimony

taken at former trial. Anthes v. Schroeder

\[Newb.\] 112 NWF 638. Not within pleadings.

Louisville R. Co. v. Gaddie \[Ky.\] 106 SWV 454; Dunn v. Taylor \[Tex. Civ. App.\] 107

79, Tubbs v. Roberts \[Colo.\] 92 P 220,

SWV 952. A challenge to the sufficiency of

the evidence must be denied the evidence

makes a case against the challenging party

whether such case falls strictly within the

pleadings or not. Meyers v. Syndicate Heat

& Power Co. \[Vwash.\] 91 P 542. Method of

proving mortgage. Neff v. Elder, 84 Ark.

277, 105 SVV 260. No objection. No motion

to exclude evidence introduced on same issue. Talliaferro v. Shepherd \[Va.\] 57 SE

586. Oral evidence to contradict written contract. Jackson v. Till, 103 NYS 110.

Failure to object to the admlasion of evidence renders it discretionary with the trial

count whether it will afterwards strike out

such evidence. Hitt v. Woelever \[N. J. Err. & App.\] 68 A. 237. An objection that a

hypothetical question calls for an answer

which would invade the province of the jury

should be made in trial court (Chicago Union

Trac. Co. v. Roberts, 131 Ill. App. 476, and

its ruling thereon is not subject to review

(Efitt v. Woelever \[N. J. Err. & App.\] 68 A

287). Not error to refuse to strike it out

Churchill v. More, 4 Cal.

amendments of pleadings must be asserted when the amendment is allowed." An objection to the form of the remedy first made on a motion for a new trial is too late.88 Objections to arguments and remarks of counsel should be taken when the cause of objection arises.84 Objections to evidence should be made when the evidence is offered,85 and a ground of objection not urged at such time will not be considered.88 So, also, an objection to a question must be made after the question is put 87 and before it is answered 88 unless answered so quickly as to preclude a prior objection.89 Where, however, it is not apparent from a question the answer will be inadmissible, the question need not be objected to, to entitle the opposing party to move to strike out the answer.80 Where evidence is introduced which surprises a party, he should move for a continuance of the trial, and not wait until after verdict against him and then apply for a new trial.91 Objections to instructions should be made at time the instructions are given.92 Objections to the verdict should be made before the jury is discharged.88

**SS 5.**\_Necessity of motion or request.\_In general.\_See 8 C. L. 1888--Errors correctible on motion below are not reviewable where no such motion was made,84 and a mo- v. Wetzel, 228 III. 253, 81 NE 864. Objection to exhibits attached to deposition should be made at the time the deposition was taken if the party objecting is present. McIlwain v. Gaebe, 128 III. App. 209. Objections to master's fees is timely if made after his report is returned Into court. Gottschalk v. Noyes, 225 III. 94, 80 NE 72 Where the court appoints a person to point out property in controversy to a jury during a view, objections to the personnel of the person. In such appointed or that he was not sworn must be taken at the time of the appointment. In re Jackson St. in Seattle \[Wash.\] 91 P 970.

82. Bundle v. Crawford, 125 Ga. 677, 64 SE 677.

01. American Tobacco Co. v. Werekmeister, 28 S. Ct. 72.

01. Southern R. Co. v. Dean, 128 Ga. 366, 57 SE 702. Too late after verdict. Cleveland, etc., R. Co. V. Hadley \[Ind.\] 82 NE 1025. Complaint of opening statement of counsel, not being made until the motion for a new trial, is too late. Hilt v. Griffin \[Kan.\] 90 P 808.

01. Birmingham R., L. & P. Co. v. Wise \[Ala.\] 42 S 821; Southern R. Co. v. Hardeman \[Ga.\] 60 SE 839. Qualification of witness to give a opinion. Pratt v. Welcome \[Cal. App.\] 92 P 500. After evidence has been offered and admitted without objection, it is, unless counsel were unaware of the ground of objection, too late for the court to Instruct the jury that it was not admissible or to grant a motion to strike it out. Darrin v. Whittingham \[Md.\] 68 A 269. Objection to competency is waived where not made until after witness has given consid- erable of his testimony. Adams v. Atlas Mut. Ins. Co. \[Iowa\] 113 NW 651. Cannot complain of denial of subsequent motion to strike out. Anghey v. Whorthern \[Iowa\] 114 NW 1047. Cannot have it struck out as a matter of right. Platt v. Rowand \[Fla.\] 45 S 32. Motion denied when made after admission of testimony without objection and after witness had been examined and cross-examined. Id. Not error to strike it out. Not best evidence. Giffen v. Selma Fruit Co., 5 Cal. App. 50, 89 P 855.

01. Birmingham R., L. & P. Co. v. Taylor \[Ala.\] 44 S 80. Oral evidence without sufficient proof of loss of instrument. Holly St. Land Co. v. Beyer \[Vdash.\] 93 P 1065.

01. Collection to testimony before question is put to witness is unavailable. Pennsylvania- nia Co. v. Barton 130 Ill. App. 573.

01. Birmingham R., L. & P. Co. v. Turner \[Ala.\] 45 S 671. Baltimore, etc., R. Co. v. State \[Md.\] 69 A 439. Motion to strike in-effectual. Spiking v. Consolidated R. & Power Co. \[Udash\] 93 P 838. A party suffering an Improper question to be asked a witness without objecting thereto may not afterwards complain of an unfavorable answer. Seevic V. Brewer \[Colo.\] 90 P 508.

01. See Birmingham R., L. & P. Co. v. Turner \[Ala.\] 45 S 671.

01. Johnson v. Beadle \[Cal. App.\] 91 P 1011.

01. Jones' Adm' v. Louisville, etc., R. Co. \[Xy.\] 108 SW 865.

01. Johnson v. Capital Fire Ins. Co., 218 Pa. 421, 67 A 748.

01. Form of verdict. Maritanna Mfg. Co. v. Boon \[Fla.\] 45 S 754. To courts receiving general verdict and in not requiring jury to answer special questions submitted. Taylor, Parnett, 39 Colo. 469, 80 P. 74; Kubl tion or request is often necessary to invoke the action of the court so as to predicate error upon its failure to act."3

\_Motion for judgment or nonsuit, or direction of verdict.\_See s C. L. 1830.\_The rule that a plaintiff failing to ask for a nonsuit cannot complain of a directed verdict against him does not apply, where the failure to make out the case is caused by rulings of the court excluding evidence of plaintiff." A motion for a nonsuit or a directed verdict is necessary to save any question as to the sufficiency of the evidence." A motion for a nonsuit must specify the grounds on which it is demanded," and grounds not specified will not be considered on appeal."

\_Motion to strike out.\_See s C. L. 1830.\_A motion to strike is necessary where the grounds of objection do not appear until the evidence is in,1 or even in some cases where the question has been objected to,2 or where the evidence was admitted temporarily or subject to agreement to furnish other evidence.3 The rule that a motion to strike out is essential to preserve the right to complain of a ruling admitting an answer to a question, over a general objection, is applicable only when it is not apparent from the question alone that the answer thereto will not be admissible and the inadmissibility is disclosed for the first time by the answer itself,4 and, where applicable, the rule applies to questions in a deposition.5 A motion to strike out evidence must be predicated upon some feature of irrelevancy, incompetency, legal inadmissi-

234, 106 SWV 421. An appeal, under $ 795, of the General Statutes of 1902, as from the Line R. Co. \[S. C.\] 60 SE 441; Sun Pub. Co. finding or refusal to find certain facts as requested by the trial court, is defective un-less based on a motion to correct made in need to prove that court. Jacobs v. Reilly \[Conn.\] 68 non obstante is not error. Missouri, etc. R. A 251.

85. Peremptory instruction. Louisville & N. R. Co. v. Davis \[K.Y.\] 105 SWV 456. Right to punitve damages claimed. Harbert v. Atlanta, etc., R. Co. \[S. C.\] 59 SE 644. Absence of a witness is not ground for reversal, coun-self falling to ask for a postpement of the trial or to show what he expected to prove by the witness. State v. Powell \[Iowa\] 113 NVV 761. Failure to have jury resrown after lifting of amendment. Indianapolis St. R. Co. v. Fearnath, 40 Ind. App. 333, 82 NE 102. A party who wishes the court, under Code 1899, c. 116, $1 (Code 1906, $ 3731), to state to the jury that a juror knowing anything relative to a fact in issue must disclose the same in open court must ask the court to make the statement. Truex v. South Penn Oil Co. \[W., Va.\] 59 SE 617. Where after rejection of a certain paper counsel states that others are similar, and the court offers to rule on them one at a time but n${}\_{0}$ others are tendered, compliant of erroneous ruling is without merit. Bird v. Benton, 127 Ga. 371, 56 SE 450. Where one withdrew objection and asked that evidence be admitted subject to a motion to strike out, and no such motion made, he cannot complain of error in, admission. In re Dominici's Estate, 151 Ca. 181, 90 P 448. A question not presented to the trial court on a motion in arrest cannot be considered in reviewing the court's ruling on the motion. Massucco v. Tomassi, 80 Vt. 186, 67 A 551.

01. Proctor & Gamble Co. v. Blakely Oil & Fertillizer Co., 128 Ga. 606, 57 SE 879.

01. Illinois Southern R. Co. v. Hayer, 225 III. 613, 80 NE 316; Dowie v. Button, 227 III. 183, 81 NE 295; Coles v. Boston, etc., R. Co.

1584 SAVING QUESTIONS FOR REVIEW $ 5. 10 Cur. Law.

bility, or impertinency in the evidence itself, and not upon the ground that it is not sufficient.\* In some states, a motion to strike out is necessary to review instructions based on improper evidence,\* but the rule is otherwise as to surplusage in a judgment.\* The motion must be definite and specific.\*

\_Motion for continuance.--\_In some states a refusal to grant new trial on the ground of accident or surprise cannot be reviewed unless motion for continuance is made.\*

\_Motion for new trial.\_See * C. L. 1856--\_Lack of uniformity in the practice in the several states precludes the formulation of any general doctrine as to the necessity of a new trial, and the local statutes and decisions must be consulted in this regard.\*

- \[Fla\] 45 S 32. \[necessary to review rulings on pleadiings
- T. Donk Bros. Coal & Coke Co. V. Thil, 228 (Swift v. Gaylord, 126 Ill. App. 281), nor InIll. 233, 81 NE 857.
- S. Myers v. Lederer, 119 App. Div. 332, 104 (cage City R. Co., 126 Ill. App. 152). It is NYS 238.
- \[necessary to review rulings on admissibility
- B. A. motion to strike out "the latter part" of evidence (Elliott v. Egyptian Power Co., of a long explanatory answer to too indel- 128 Ill. App. 159: Variety Mfg. Co. V. Landmitte. Colorado Springs Elec. Co. V. Soper, 128 Ill. App. 630) and refusal to exclude 38 Colo. 141, 88 P 165. Motion to strike out (estimony (Fish v. Lapsley, 128 Ill. App. 611)). all of certain evidence is too broad, where Failures to make motion for new trial waves part of the evidence is admissible, Darwin (Phil to review admissibility of evidence and v. Whittingham (Md.) $ & A 268. Motion to strike out evidence of delivery of goods in Derby v. Peterson, 128 Ill. App. 494. Nees-controversy on the ground of a variance be- (chicago).
- S. Myers v. Lederer, 119 App. 608, and to raise question of prudication that declaration pleadi s a joint con- (chicago).
- S. Myers v. Post (vis) with them upon retirement (Crubey v., a motion to strike out an amended state- (Richardson, 224 Ill. 136, 78 NE 592), and to ment before a justice that no statement had been filed on which to base an amendment, and the amended complaint did not state a cause of action, held insufficient to raise the objection that the statement was not signed.
- S. Myers v. Lederer, 128 Ill. App. 305, and the findings of such (court, where the basis upon which trial court has figured amount of judgment has not been preserved (Alexander v. Loeb, 230 Nichols v. Hicklin, 127 Mo. App. 672, 106 SW), 1109.
  Where the motion is required, the grounds of objection must be specifically stated therein,\[12\] though in some states general grounds are sufficient, proper objections and exceptions having been saved.\[13\] The grounds stated must be sufficiently broad to cover the errors assigned.\[14\]

_Request for instructions._\[See 8 C. L. 1888\] As a general rule, error cannot be predicated upon failure to give instructions in the absence of a request therefor,\[15\] though

neglected to offer evidence which he might otherwise have offered, and inadvertently failed to except to ruling, and such reasons were not raised on the motion for a new Civ. App.\] 19 Tex. Ct. Rep. 92, 95 SW 61. Amount of rational, held no ground for objection on wrtt of error. North Michigan Land & Live Stock Co. V. Theeland, 149 Mich. 495, 14 Del. Leg. N. 509, 112 NW 114.

Missouri: Necessary to review errors committed by trial court. Grisham V. National Life Ins. Co. \[Mc. App.\] 109 SW 96; Meissner v. Standard R. Equipment Co. \[Mc.\] 109 SW 750. Change of venue. Gloney v. St. Louis Transit Co., 204 Mo. 704, 108 SW 43. Necessary in equity case. Berry v. Rood \[Mc.\] 108 SW 22. Failure of court to rule on motions. Coleman v. Reynolds, 207 Mo. 468, 106 SW 1070. To review matters of exception occurring on the trial. Cantwell's Admi v. Cassville \[Mc. App.\] 108 SW 1084. Necessary to review improper conduct of counsel. St. Louis Belt & Terminal R. Co. V. Cartan Real Estate Co., 204 Mo. 565, 103 SW 519.

Necessary to review refusal to compel plain-tiff to elect whether to proceed on contract or quantum mervt. Phillips v. Gelser Mfg.

Co. \[Mo. App.\] 107 SW 471. Necessary to re-view alleged errors not appearing on the face of the record. Lynch v. Chicago & A. R. Co., 208 Mo. 1, 106 SW 68.

Momans: Necessary to review sufficiency of evidence. Harrington v. Boutte & Boston Min. Co., 35 Mont. 58, 90 P 748.

Nebraska: Shelton Implement Co. v. Parlor Furniture & Mattress Co. \[Neb.\] 112 NW 618. Errors in instructions must be called to the attention of the trial court in the motion for a new trial, before they will be consid-ered on appeal. Tarpenning v. Knapp \[Neb.\] 112 NW 290.

New York: Instructions. Smith v. New York: Instructions. Smith v. New York: Anti-Saloon League; 121 App. Div. 600, 108 NYS 251.

Norton Dakota: To raise question of insuf-ficiency of evidence. McLain v. Nurnberg \[N. D.\] 112 NW 248.

Ohie: The filling of a motion for a new trial and the entering of exceptions to its overriding is indispensable to a review of findings of facts on a petition in error. Cincinnati, etc., R. Co. v. Keliall, 6 Ohio N. P. (N. S.) 487.

Oklahoma: Grounds for a new trial will not be considered on appeal unless presented by a motion for a new trial. Misconduct of counsel. Woods County Bk. v. Bensing \[Ok.\] 91 P 842. The rulings, findings, and report of a referee can only be made the subject of review in an appellate court when first presented to the trial court by a motion for a new trial, or by motion to set aside and vacate the findings and conclusions for errors set forth in such motion. Howe v.

Hobart, 18 Okl. 248, 90 P 481.

Texns: A motion for a new trial must point out specifically the grounds of objection to the verdict sought to be raised on 10 Curr. L.--100.

the general rule is that the court must give proper instructions on all the issues, whether requested or not, a failure to instruct with reasonable fullness being prejudicial error \[16\]. This rule is peculiarly applicable to errors of omissions in the instructions given \[17\], but the rule is not without exception \[18\]. A request is likewise necessary to invoke a more specific instruction \[19\].

_Request for findings \[8\]._\[See 8\].\_ C. L. 1840--Error cannot be predicated upon failure to make findings of fact when none were requested \[20\].

\_Propositions of law under Illinois practice.--\_Where a jury case is by consent tried without a jury \[21\], questions of law other than those relating to pleadings and the admission and sufficiency of the evidence \[22\] can be preserved only by submitting propositions of law \[23\], and this requirement is not obviated by the fact that the case was submitted on a stipulation of facts \[24\].

**SS 6**. _Necessity of ruling \[8\]._\[See 8\].\_\[See 1840--Questions not presented to nor ruled on in the trial court will not be considered on appeal \[25\].

Ark. 74, 104 SWW 835; Felsberg v. Moore, 84

**18**. Failure to instruct on issue clearly and Ark. 359, 106 SWW 197; Newton v. Cardwell

**18**. Failure to instruct on issue clearly and Blue Print A Supply Co. \[Colo.\]. 92 P 914;

**19**. Stewart v. Walker, 82 Ark. 803, 102 SWW 1056; Fierson v. Illinois Cent. R. Co. 104 SW 695; Bodenw Lumpdor Cw. Ford, 82 Ark. 555, Mich. 167, 14 Det. Leg. Neg. 405, 112 NW 892;

**102** SW 896; Wholesale Mercantile Co. v. Sutton v. Great Northern R. Co., 99 Minn. 376, 105 NW 815; Joy Cale, 244 Mo. App. 569, 102

**103** SW 816; Joy Cale, 241 Mo. App. 569, 102

**128**. The 105 NW 81

## 8 Necessity and time of exceptions

See 8. C. L. 1841.-Generally a ruling must be excepted to in order to be reviewed.26 That taking an exception may prejudice

\[C. C. A.1 154 F 484; Barham v. Weeems, 129 \]

\[A. T04, 69 SE 803; Gillette v. Aurora Ralli-

\[A. T05, 228 Ill. 261, 81 NE 1005; Legris v. The cause, will be disregarded as not having Marcotta, 129 Ill. App. 67; Hammond, etc., Elco. R. Co., v. Antonolia (Ind. App.). 83 NE 768; Pierson v. Illinois Cont. R. Co., 149 Mich., v. Hannan \[W. Va.\] 60 SE 618. If a party

\[A. T05, 112 NW 923; Wil-

\[A. T05, 112 NW 924; Wil-

\[A. T05, 112 NW 921; Wil-
one's case before the jury makes no difference." In some jurisdictions, however,

\[S. D.\] 115 NWV 1129. See Wallace v. New

Albion, 121 App. Div. 66, 105 NYS 524. Instructions not written. Moit v. Hover \[Ind.\]

Apr.\] 81 NE 221. Admitting or rejecting

evidence. Sun Pub. Co. v. Lake Erie Asphal

Black Co. \[C. C. A\] 157 F 80; Martin v. Hertz, 241 Ill. 84, 79 NE 558; City of Chicago

Y. McNally, 128 Ill. App. 375. Exclusion of

evidence. Cook v. Enterprise Transp. Co.

\[Mass.\] 83 NE 325; Gorlitzer v. Levenson,

107 NYS 130. Admission of evidence. Cleveland, etc., T. Co. v. Hadley \[Ind.\] 82 NE 1025;

Chesapeake & O. R. Co. v. Perkins, 31 Ky. L.

R. 1350, 105 SWV 148; Daniel v. Atlantic Coast

Line R. Co., 145 N. C. 51, 58 SE 601. Rulings

on objections to testmony taken by a master,

Patrick v. Kirkland, 53 Fla. 768, 43 8 969.

Objections taken to testmony before a master should be called to the attention of the

court before final hearing, and exceptions

duly reserved to the timings thereon.

Jurisdiction over subject-matter, United

States Health & Acc. Ins. Co. v. Clark

\[Ind. App.\] 83 NE 760. Denial of new trial

\[Elliott v. Egyptian Power Co., 128 Ill. App. 159: Graham v. Grady, 121 Ill. App. 400; Mofet v. Sebastian, 149 Mich. 451, 14 Det. Leg. N. 511, 112 NW 1120), except where the cause

is tried without a jury (Myreen v. Smith, 127

Ill. App. 426). To reasons contained in decision denying new trial. Taylor v. Zigm, 148

Mich. 329, 14 Det. Leg. N. 235, 111 NWV 1076.

Nousst. Adamson v. Metropolitan St. R.

Co., 126 Mo. App. 127, 103 SWV 1091. Denial

of motion for directed verdict. Fidelity &

Causality Co. v. Thompson \[C. C. A\] 154 F

484. Granting motion for judgment on m-

terrogatories. Masterson v. Southern R. Co.

\[Ind. App.\] 81 NE 780.

**Remarks or argument of counsel.** Paige v. Illinois Steel Co., 233 Ill. 313, 84 NE 283;

Bennett v. Greenwood \[Mich.\] 14 Det. Leg. N. 940, 114 NWV 1019; Lattimer v. Metropolitan

St. R. Co., 126 Mo. App. 70, 103 SWV 1102;

Overton v. White, 124 Mo. App. 489, 105 SWV 309.

**Remarks of trial judge.** Hough v. Clay-

ton, 127 Ill. App. 294; Variety Mfg. Co. v. Landacker, 129 Ill. App. 360, 127 Ill. 22, 81

NYS 47; Gehler v. Quinn, 35 Mont. 451, 90 P

168; Pelton v. Spider Lake Sawmilli & Lummer

ber Co. \[Wis.\] 112 NWV 29. Statement of case

by court to jury. Rimmer v. Wilson \[Colo.\]

93 P 1110. Overruling of special exceptions

to prayers. Baltimore Briar Pipe Co. v. Elsenhauer \[M.\] 66 A 623. Failure of jury

to answer special interrogatories. Preferred

Masonic Mut. Acc. Ass'n v. Harrington, 10

Ohio C. C. (N. S) 134. Refusal to require

physical examination. City of Cedartown v. Brooks, 2 Gm. App. 583, 59 SE 836. To plain-

tiff constantly weeping in sight and hearing

of jury, Warren, etc., R. Co. v. Shine \[Tex.\]

Civ. App.\] 20 Tex. Ct. Rep. 47, 105 SWV 518.

That judgment was for less than he was entitled to. Gloor v. Allen \[Tex. Civ. App.\] 20

Tex. Ct. Rep. 13, 105 SWV 639. Judgment for

both husband and wife. Henderson v. Rush-

ing \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 115, 105 SWV 84.

**Dismissal of suit against a codefendant**

though apellant subsequently made motion

to have said codefendant joined as a party.

Sexton Rice & Irr. Co. v. Sexton \[Tex. Civ.\]

C. v. Smith, 53 Fla.

10 Cur. Law. SAVING questions for review SS 8.1589

certain matters need not be excepted to.\[28\] In some states and cases,\[29\] but not all,\[30\] specifications of error on a motion for a new trial may take the place of exceptions. In others, by statute, exceptions are only necessary to save and bring up errors transpiring upon the trial that cannot be preserved in the record without a bill of exceptions.\[31\] On a trial de novo, exceptions to the rulings of the lower courts are generally,\[32\] though not always,\[38\] unnecessary.

\_Time of taking exceptions._See SS 8.1545_. Exceptions must be timely,\[34\] though delay in making a record of the exception will not necessarily vitiate it.\[35\] Failure to except to an order denying a motion informally entered does not waive the right to present it on appeal where proper exceptions were afterwards taken to a formal denial of the motion.\[36\]

SS 8. Form and sufficiency of objection. See SS 8.1548\_.-An objection must not be

questions. Dreyfus v. St. Louis & S. R. Co., 124 Mo. App. 585, 102 SWV 53.

28. Findings of fact in a case tried without a jury. Witte v. Koerner, 108 NYS 560. Exceptions to manner of reducing verdict are

Failure of trial court to find on a counter-motion for a new trial. Seaboard Air Line

exception. Id.

32. So held in equity appeals except where court refused to permit testimony offered to be taken over its rulings. B & C. Comp. SS 406, 555, construed. Sutherland v. Bloomer

01. In equity cases trlable de novo, a ruling upon a demurer cannot be reviewed upon

01. Evers apparent upon the endorsement roll or

remiling and error assigned thereon. Exception to a cause will be considered on ap-

peal, although no exceptions were taken

thereon in the trial court. Goodwin v. Bick-

ford \[OkL\] 93 P 548. A judgment pronounced

an motion to aausal a notice for judgment

may be reviewed without exception being taken. State v. Keadle \[W. Va.\] 60 SE 788.

Where record shows court was fully advised

and matter was urged, held objection to

jusfiedition was not waived though record

did not, show a formal exception. West v. Martin \[Twals\] 92 P 348. Exception is unnecessary to preserve a ruling on plealings. George B. Swift Co. v. Gaylord, 126 Ill. App. 281. Where, in cause tried by jury, exception

is taken to order denying motion for new

trial, an exception to the entry of judgment

is unnecessary. Myreen v. Smith, 127 Ill. App. 426.

29. Salmon v. M. E. Blasier Mfg. Co., 108

NYS 448. Sufficiency of evidence to sustain

findings. Henry v. Central Trust Co., 40

Ind. App. 369, 82 NE 120. Under court and

practice act and Rule 17 of rules of practice

of the superior courts, sufficiency of verdict

may be considered on appeal, though appeal-

lants attorney was absent when it was ren-

dered and entered no exceptions to it at the

time, the objection being urged in his motion

for a new trial and in the bill of exceptions

which was allowed by the court without

comment. Reid v. Rhode Island Co. \[R. L\] 67 A 328.

30. Where cause is tried without a jury and

no exception is taken to the entry of judge-

ment, exception to the order overruling motion for new trial is unavailing. Myreen v. Smith, 127 Ill. App. 426. The failure to except

to ruling on a motion to dismiss is not cured

by motion for a new trial and arrest of

judgment and exceptions to orders denying

1589 1590 Saving questions for review SS 8.10 Cur. Law. a mere statement as to future actions \[87\] and must point out specifically the matter objected to and the grounds of the objection.\[38\] All the grounds of objection which a party wishes to urge on appeal should be specified, for only those grounds urged below will be considered.\[39\]

_To evidence._\[See 8 C. L. 1844.--Objections to evidence must designate the evidence objected to and specifically point out the ground of objection,\[40\] general objections on

S7. Statement by counsel that he will ob-

cient to raise rule of inadmissibility of conn-

ject to a given line of testimony is insuffi-

sel fees as an element of damage in a suit

cient. City of Charleston v. Newman, 130 Ill.

on an injunction bond. National Soc. of U.

App. 6.

S. Daughters of 1812 v. American Surved Co.

S8. Brady v. Ranch Min. Co. \[Cal. App.\] 94

56 Misc. 627, 107 NYS 820. In an action by

P 85; Hammond, etc., R. Co. v. Antonia \[Ind.

Appl.\] 83 NE 766; Chicago Tel. Supply Co. v.

Marse de Elkhron Tel Co., 134 Iowa, 2852, 111

Nv 835; Smith v. Chicago, etc., R. Co., 127

Mo. App. 160, 105 SVV 10; Hagins v. Aetna

Life Ins. Co., 75 S. C. 225, 55 S23. The

constituituitly of a static is not raised

by a mere objection that it is unconstitution

fromey to her by the testrix. Morgan v.

tional without mentioning any article or

section of the state or federal constitution

alleged to have been violated. State v. Hefefernan \[R. L\] 65 A 284.

tion of the court and that no sufficient reas-

39. See ante, $ 2, Acquiescing in Error.

Subd., Change of Theory. An objection must

date the ground upon which it was made

Semiuness of the signatures of the parties

District of Columbia v. Dryweg, 29 App. D. C.

327. Where a variation is asserted, counsel

v. First Nat. Bk. \[Wyo.\] 92 P 624. Objection that anfakui was "incompetent, immn-

Chicago Union Trac. Co. v. Roberts, 131 Ill.

Lil.

App. 476. In action for accounting of moneys

under the pleadings," does not raise the issue

claimed to have been delivered to defendant

that it was not certified by the secretary of

to be held in trust for plaintiff. held that

demand for jury trial was not sufficient to

point out that complaint was defective in

that existence of trust was only alleged in-

ferentially. Dillon v. Cross, 5 Cal. App. 766,

91 P 439.

46. Birmingham R., L. & P. Co. v. Landrum

\[Ala.\] 45 IS 198; Mnshet v. Fox \[Cal. App.\] 91

P 534; Katathion Pulp & Paper Co. v. Pelletan

onna \[C. C. A.\] 165 F 342; Smith v. Piliber

\[Ga.\] 60 SE 1000; Donk Bros. Coal & Coke

Co. v. Tetherington, 128 Ill. App. 256; City

of Chicago v. Didier, 131 Ill. App. 406; Bali-

more & O. R. Co. v. State \[Md.\] 98 A 439;

Churchill v. Mace, 148 Mich. 456, 14 Det. Leg.

N. 213, 111 NV 1034; Harker v. Detroit United

R. Co., 150 Mich. 687, 14 Det. Leg. N. 871,

114 NVW 667; Taylor v. Jackson \[Mich.\] 115

NW 971; Wilson v. Moss \[S. C\] 60 SE 313;

Plunket v. Clearwater Blacher & Mfg. Co.

\[S. C.\] 61 SE 431; Hammond v. Decker \[Tex.

Civ. App.\] 18 Tex. Ct. Rep. 556, 102 SW 453;

State v. Hood \[W. Va.\] 59 SE 971. Admission of deposition. King v. Green \[Cal. App.\] 94 P 777. Testimony read from a deposition.

Short v. Frink, 151 Cal. 83, 90 P 200. General objection does not reach improper cross-

examination (Levering v. Miller, 127 Ill. App. 235), an improper case for an hypothetical

question (Chicago Union Trac. Co. v. Rob.

certs, 229 Ill. 481, 82 NE 401), that question is

leading (Hilton v. Santelman, 129 Ill. App. 109), propriety of attaching exhibit to deposition after the taking thereof had been closed

(McIlwain v. Gaebe, 128 Ill. App. 20 account of irrelevancy, immateriality, and incompetency, being insufficient unless the evidence is inadmissible on any ground or for any purpose whatever,\[41\] and a general objection being held sufficient when and only when the evidence is wholly inadmissible for any purpose whatever.\[42\] But the mere fact that an objection is specific does

tion was irregular, in that it provided for the collection of a compound interest or justify -- materiality of the subject-matter of a quesa-review thereof on appeal. Doeha v. Philion -- tion waves any defect in its form. Hilde-lips, 151 Cal. 488, 91 P 230. A objection to -- evidence of plaintiff's earning capacity as -- video -- reaction -- video -- reaction -- and -- to mean that the time and place of such earning are too distant in time -- and space from where he was injured to -- have any relevancy to the issue as to -- implement of earning capacity by reason of -- his injuries. El Paso Elec. R. Co. v. Murthy -- by -- T\[Tex Civ. App.\] 109 SW 489. An objection to -- a hypothetical question must state -- why the question is not proper, what neces--ary essentially are omitted, and what it -- states which is not proven. Orr v. Bradley, 126 Mo. App. 146, 108 SW 1149.

41. Short v. Frink, 151 Cal. 83, 90 P 200; Platt v. Rowland (Fla.) 45 S 32; John Schoen Plumbing Co., Empire Brew, Co., 126 Mo. App. 268, 102 SW 1064; Noyes v. Clifford -- \[Mont.\] 94 P 842; Hammond v. Decker \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 566, 102 SW 458; Paris, etc., R. Co. v. Calvin (Tex. Civ. App.) 18 Tex. Ct. Rep. 890, 108 SW 428.

01. Bodew Lumber Co. v. Ford, 82 Ark. 555, 102 SW 896; Galveston, etc., R. Co. v. Janert (Tex. Civ. App.) 107 SW 963. When a question is susceptible of a good answer, general objections are insulficient. Never -- Lumber Co. v. Fields \[Ala.\] 48 S 81. Objections must separate admissible matter from the inadmissible. Objections to interrogates. Goodloe v. Goodloe \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 960, 105 SW 523. An objection to evidence as a whole is not enable -- where part of it is admissible. Wandelohv v. Grayson County Nat. Bk. \[Tex. Civ. App.\] 120 Tex. Ct. Rep. 270, 106 SW 413; International, etc., R. Co. v. Cuneo (Tex. Civ. App.) 20 Tex. Ct. Rep. 672, 108 SW 714. Objection to whole document, part being admissible. Eisliminger v. Stanton \[Mo. App.\] 107 SW 460; Boylan v. McMillan \[Iowa\] 114 NW 620. Letter considered and general objection held good. Id. Part of a letter being objectionable as hearsay, the objection must be specific. Cobb v. Dunleve \[W. Va.\] 60 SE 384.

01. Objection that no foundation is laid does not reach speculative character of expert testimony. Chicago City R. Co. v. Foster, 128 Ill. App. 571, aff. 226 Ill. 288, 80 NE 762. Objections held not to raise the point that statement by injured person made to a physician were made during the course of an examination arranged for the purpose of making the declaration. El Paso, etc., R. Co. v. Polk \[Tex. Civ. App.\] 108 SW 761. On objection to admission of exemplification of the record of a court of a sister state, an objection that the court had no jurisdiction to enter a decree affecting real estate in Missouri held not to otherwise challenge the jurisdiction of the court. McCune v. Good-willille, 204 Mo. 306, 102 SW 987. Nor to raise the question that the decree was not final -- led. Nor that the record showed that the decree had been appealed from, Id. An -- deduced, offered and read in evidence, and the 1593 Saving Questions for Review SS 8. 10 Cur. Law. not necessarily make it sufficient, since it may fail to reach the point desired to be saved,\[43\] and only grounds properly specified below will be considered on appeal.\[44\] In the absence of the opposing counsel calling for a statement of the objections, a general objection has been held sufficient, the evidence being objectionable on any ground,\[45\] and where its admissibility depends upon whether the jury believes certain other testimony, an instruction conditioning its consideration upon such belief is necessary.\[46\] An objection to an improper question is all that is necessary.\[47\] Where after objection the court suggests that the question be changed and as so changed, it is asked without objection, error in its admission will not be considered.\[48\] One sufficiently raising objections to a certain line of evidence need not keep continually repeating his objection to each question.\[49\] The same rules also apply to objections to the sufficiency of the evidence.\[50\] Where a stenographer's report of evidence at a former trial is introduced on a subsequent trial and objected to generally, it will be presumed on appeal that the party making the objection intended to incorporate the ground of objection made by him at the former trial as set forth in the stenographer's report.\[61\]

\_To exclusion of evidence.\[50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 141, 142, 131, 143, 144, 145, 146, 147, 148, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 211, 222, 234, 235, 246, 247, 251, 252, 261, 262, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 311, 320, 321, 333, 341, 342, 343, 355, 361, 362, 373, 374, 375, 376, 377, 378, 379, 380, 391, 392, 301, 393, 394, 395, 396, 397, 398, 399, 400, 411, 42, 433, 444, 45, 46, 471, 48, 490, 42, 44, 46, 48, 491, 40, 44, 492, 40, 44, 493, 41, 44, 494, 41 10 Cur. Law. Saving questions for review SS 9. 1593

To instructions.\[86\] **e** C. L. 1847--An objection to instructions must be specific,\[80\] an objection to an instruction as a whole not reaching particular defects therein.\[81\] Where evidence is admissible for a limited purpose, objection should be made by requesting an instruction limiting it to such purpose.\[82\]

SS 9. \_Sufficiency of exception.\[86\] **e** S. L. 1847--Formal exceptions may be dispensed with in the discretion of trial court.\[88\] Under some circumstances an objection may be treated as an exception.\[84\] An exception must point out specifically the error complained of,\[88\] the reason on which it is based,\[89\] and should not be in gross.\[87\] But in some cases the exception not being sufficiently definite, the remedy is by motion.\[88\] Exception to order denying a motion preserves all questions raised by the motion,\[89\] though the court pretermitted the grounds on which it was made.\[10\] As a general rule exceptions only lie to rulings of the court.\[71\] Though an appeal is dismissed as premature, its entry may be equivalent to "noting an exception."\[72\] Failure of the court to hear the exception is immaterial.\[73\]

To evidence.--An exception to the admission of evidence relevant to any issue generally raises no question of law.\[74\]

that It contradicted any material evidence | dision of the court and reserves nothing by the witness. Gorham v. Moor \[Mass.\] 84 Sheldon v. Wright, 80 Vt. 298, 67 A 807. NE 436.

59. Chiopeck v. Chiopeck \[Wash.\] 91 P 966.

01. Beck v. Umshler \[Iowa\] 116 N NV 138.

v. Yeager \[Ind.\] 83 NE 742.

68. Exception to paragraph of return in ha-

dence of instructions refused. Sample v. Chiogo, etc., R. Co. \[Ill.\] 84 NE 643. Although an instruction was not in good form

in the absence of a specific objection calling the court's attention to the particular matter of objection, there was no prejudicial

error. Burcka Stone Co. v. Knight, 82 Ark.

164, 100 SW 878. To be available on error,

record must not only show that the ruling

complinated of was objected to, but also that

the ground of objection relied upon for re-

versal was fully presented to the court below. Stein v. Goodenough, 73 N. J. Law, 812,

64 A 961.

61. Inaccuracy of certain words. Midland

Valley R. Co. v. Hamilton, 84 Ark. 81, 104 SW

62. Bodcaw Lumber Co. v. Ford, 82 Ark.

555, 102 SW 896.

63. City of Chicago v. McNally, 128 III. App.

01.

01. Where the parties treat objections to

master's report as exceptions, they will be

so treated here. Otis v. Octtage Grove Mfg. Co., 121 Ill. App. 235.

65. Harper v. Rastain Fertilizer Co., 148 Ala.

66, 42 S 550; Clark v. New York Cent., etc.,

R. Co. \[N. Y.\] 84 NE 397; Davis v. Reynolds,

75 N. C. \[255\], 67 SN 550; Douglas Lead Co. v. Thayer Co. \[Va.\] 58 SE 1101. Exception that

the court "erred in admitting in reply any-

thing not strictly in reply to the testimony

not given in direct evidence," held too general. Wilson v. Moss \[S. C.\] 68 SE 313. Spec

file exception followed by general exception

to judgment is sufficient. Lyndon v. Geor-

73. It is the duty of the court to hear and

gia. R. & Klec. Co., 129 Ga. 353, 58 SE 1047.

66. Katahdin Pulp & Paper Co. v. Peltomas

01. In the taking of test-

tions dictated to the stengraphs in open

mony the occasional ejaculation of the word

"exception" is merely in the nature of a run-

916.

ing and unfavorable comment on the pro-

54. Robinson v. Stahl \[N. H.\] 67 A 577.

To instructions,88e & C. L. 1847--Exceptions to instructions must designate the particular instruction or part thereof excepted to 75 and must state the grounds of exception,78 and must not be multifarious 77 or indefinite,78 and apply to the instruction taken as a whole.79 Except, perhaps, as to instructions given at the request of the parties,80 a general exception will not be considered.81 The ruling of the court involving several propositions, a general exception is available only when the entire ruling is erroneous.82 Exceptions should be taken to instructions separately,83 a general exception being insufficient unless the entire charge is erroneous.84 A special exception to a charge will not be extended beyond the precise point to which it refers.85 While an exception to a refusal of rulings is not an exception to instructions given on matters to which the rulings relate,86 still where an instruction

The refusal of the court to charge as requested and to the charge as given, upon the subject of the requests, and to those portions of the charge detalled herein," is too sufficient. Southern R. Co. V. Miller \[Ga.\] general to allow of consideration, except as App.159 SE 1115. Must challenge the propriety or legal accuracy of some definite therein and called to the attention of the court. Williams V. Norton Bros. \[Vl.\] 69 A. Stauss, 131 Wiss, 94, 111 NW 216. Doubt as to the application of an exception defeats it. Clark v. New York Cent, etc., R. Co. \[N.Y.\] 84 NE 387. Exception to charge held insertion is not defined in an action for injuries due to defects in car couplings. Id In an action against a railroad exception held too general to raise question as to whether words "depot grounds" were the most appropriate to be used in a question of a special verdict. Ban-deroh v. Wisconsin Cent. R. Co. \[Wis.\] 113 NW 783; Timlan v. Dillworth \[N. J. Law\] 67 A. Austin v. Austin \[CooL.\] 94 P 309; Wilson v. Moss \[S. C.\] 60 SE 313. That a party "excepts" to instructions is insufficient. Higgins v. Street \[Okl.\] 92 P 163. Exception to charge "for errors contained therein" is insufficient. Streator v. Streator, 145 N. C. 387, 59 SE 112. That court charged in respect to matters of fact. Love v. Turner \[S. C.\] 59 SE 529. Exception to charge as not being "full enough to clearly explain to the jury the law as to the distinction between a corporation and a partnership, and did not fully set forth the contention of the defendant" held insufficient. Davidson V. Waxelbaum, 2 Ga. App. 432, 58 SE 687. Timlan v. Dillworth \[N. J. Law\] 67 A. 433.

78 Exceptions containing only extracts from a charge will not be reviewed unless they contain only a single proposition, the mere reading of which would indicate the point on which the opinion of the court is sought. Fludr v. Equitable Life Assur. Soc., 75 S. C. 518, 56 SE 762.

79 Held untenable where objection did not apply to instruction as a whole. Graham v. Edwards \[Tex. Civ. Appl.\] 99 SWV 436.

80 Miller v. Fireman's Fund Ins. Co. \[Cal. App.\] 92 P 832. So held where exception was "To the giving of the foregoing instructions and to each and every portion thereof, the defendant excepts." Walteufel v. Pacific Vineyard Co \[Cal. App.\] 92 P 747.

81 G. Graves v. Waitsfield \[Vt.\] 69 A 137. Insulin chetent as to those given by the court of its own motion. Miller v. Fireman's Fund Ins. Co. \[Cal. App.\] 92 P 332. An exception "to 10 Cur. Law. SAVING QUESTIONS FOR REVIEW SS 10. 1595 as given is defective and a requested but refused instruction would have cured the error, an exception to such refusal saves the question.\[87\] An exception to an instruction, generally, will not avail as an exception to such instruction as subsequently modified.\[88\] Exceptions must be preserved in the statutory manner.\[88\]

_To the findings and judgment.\[89\]_ & C. L. 1848--An exception to the findings or judgment must be specific.\[90\]

SS 10. _Waiver of objections and exceptions taken.\[89\]_ & C. L. 1849--Objections and exceptions may be waived by compliance with \[91\] as distinguished from mere submission to \[92\] the ruling, by withdrawing the grounds of objection,\[93\] by failure to follow up the objection or insist upon similar objections in subsequent proceedings,\[94\] answering over,\[95\] going to trial on the merits,\[98\] making inconsistent objections,\[97\] by the introduction of evidence,\[98\] by assuming inconsistent positions,\[99\] submitting ques tions to the jury,1 by requested instructions,2 by filing motion for a new trial,2 and by failure to report the objection 2 or renew the motion.3 Giving bond for interest and amount of verdict is a waiver of errors.4 Reiteration of an exception is not al-

Footnote ways necessary.7 Modifying an objection waives it as first made.8 The exception must be to the ruling of the court as finally made.9 Generally,10 though not always,11 a motion for a directed verdict or to dismiss at the close of plaintiff's evidence, if overruled, must be renewed at the close of all the evidence in order to be reviewable on appeal,12 unless defendant introduces no evidence.13

SAVINGS Banks; Scandal and Impertinence; School Lands, see latest topica! Index.

SCHOOLS AND EDUCATION,

**8 7. Tenchers and Instruction, 1613.** Constructs of Employment, 1613.\*\* Licenses and Certificates, 1613.\*\* Dism 1598 Schools and Education SS 3.10 Cur. Law.

private schools is not always permitted as an equivalent.17 In North Carolina the compulsory education law applies to Indian children,18 and hence a law creating a special school district and requiring Indian children residing therein to attend school is not invalid because applying only to one locality,19 nor as class legislation.29 The New York statute opening the public schools to persons "residing" in the district is not restricted to those domiciled therein,21 and an orphan child sojourning in the district is entitled to school privileges although the term of his abode in the district is not determined.22

\_Separate schools for races.\_See * C. L. 1851--In the absence of statutory authority no child can be excluded from any public school solely because of its color.28

Under the Oklahoma separate school law, separate school buildings erected by the board of county commissioners are under the control of the district school officers,24 and when the county commissioners have only complied with the law by acquiring a site and erecting a school building thereon, and the same has been accepted, furnished and made use of by the district, the authority of the county commissioners over such building is concluded so long as used for the purpose for which erected.28

_Vacination of pupils.28_

\_Duty to furnish school facilities.\_See * C. L. 1852--The statutes of some states provide that if there are children for whom it will be more convenient, by reason of distance, to attend school in another district,27 or there will be a saving of expense to the district and the children will secure increased advantages,28 the annual school meeting may order them sent to some other convenient school district and issue warrants for the extra expense not exceeding a certain amount.29 However, a trustee of a school district whose school has been abandoned cannot be compelled to furnish a conveyance for pupils to another district school.30 But unless the conditions of the statute are fulfilled the district to which they are sent need not admit such children,21 and where a parent seeks to avail himself of such a statute, he must show that the board found that the statutory requirements would be satisfied.32 The remedy on the 25. School Dist. No. 71 v. Overholser, 17

evening schools, etc., authorized by $10, Okl. 147, 87 P 665. County commissioners

11, 12, 15, 16, 6, 42, does not take place of attendance at public schools. Commonwealth wille class of children shall attend either building, or in any NE 19.

18. Laws 1905, p. 227, e. 213, requiring certain Indian children to attend school, not invalid. State v. Wolf, 145 N. C. 440, 59 SE 40.

19, State v. Wolf, 145 N. C. 440, 59 SE 40.

19 Where law does not compel attendance at p 768.

28. Code, $ 2774; Queeny v. Higgins \[Iowa\]

trlet, but permits them to be sent to some other school. Id.

20. State v. Wolf, 145 N. C. 440, 59 SE 40.

01. Laws 1894, p. 1225, e. 556, ttt. 7, $ 36.

People v. Hendrickson, 54 Misc. 337, 104 NYS 122, affs. 109 NYS 403.

22. Orphan child placed in district by society furnishing its board and clothing. People v. Hendrickson, 54 Misc. 337, 104 NYS 122, affs. 109 NYS 403.

01. Chapter 227, p. 329, Laws 1889, special act making full provision for Wienhita public schools, renders all other statutory provisions Inapplicable and does not authorize maintenance of separate schools for white and colored children. Rowles v. Board of Education of City of Wienhita \[Kan.\] 91 P 88.

01. School Dist. No. 71 v. Overholser, 17

Okl. 147, 87 P 665.

25. School Dist. No. 71 v. Overholser, 17

Okl. 147, 87 P 665. County commissioners

11, 12, 15, 16, 6, 42, does not take place of attendance at public schools. Commonwealth wille class of children shall attend either building, or in any NE 19.

18. Laws 1905, p. 227, e. 213, requiring certain Indian children to attend school, not invalid. State v. Wolf, 145 N. C. 440, 59 SE 40.

19, State v. Wolf, 145 N. C. 440, 59 SE 40.

27. School Dist. No. 12 v. Hill \[Kan.\] 90 P 768.

01. Code, $ 2774; Queeny v. Higgins \[Iowa\]

114 Nvy 51.

29. Under Gen. St, 1901, $ 6133, order of meeting showing intention to allow such extra expense sufficient, though minutes not full and specific, School Dist. No. 12 v. Hill \[Kan.\] 90 P 768.

01. Nelson v. State \[Ind.\] $1 NE 486.

01. Under Rev. St. $ 4022a, board of education need not admit children unless school in their own district is more than mile and hair from their residence and more remote than school to which admission is sought. Boyce v. Mt. Carmel Special School Dist. Board board's refusal to make such arrangements is by appeal to the county superintendent."

Change of text books and publisher's bonds.See a C. L. 1888--In Ohio text books adopted at a regular meeting of a board of education cannot be lawfully changed within a certain period from the date of such adoption except by a three-fourths vote of all the members of the board at a regular meeting of the board," and an injunction will lie to prevent making a change under an illegally adopted order." A publisher having a contract with a school board cannot compel such board to continue or renew his contract on the ground that the board has changed books without a sufficient vote." Nor can a majority of the patrons of a school district determine what books shall be used in opposition to the will of the teacher where the directors, if possessed with power, failed to select books."

In Missouri the statute now leaves such matters to a school book commissioner."

In Kentucky the publisher is required to give a bond to guarantee the quality of the books furnished " and that they will be sold at as low a price as the publisher sells them for anywhere in the country." It has been held that the judicial forfeiture of such bonds and the infliction of the full penalty for a breach is not denying the publisher the equal protection of the laws " or depriving him of property without due process of law." Only one recovery may be had on the same bond, but an action as to a breach in county as to one book is not barred by the pendency of a prior action in another county for a breach as to another kind of book," and the amount recovered goes to the school fund of the county first obtaining judgment." In action for breach of such bond, it is proper to exhibit the books and to permit persons who have used them or were familiar with them, the date of purchase or extent of their use, to state how they had been used, and to permit others who had bought and used books to testify as to the character and quality of binding, although the books were not exhibited to the jury." It is also proper to permit the defendant's representative to testify that book binderies, including his own company, occasionally sent out imperfectly bound books," and it is immaterial in such an action whether the board of examiners in the county where the breach occurred took oath of office when they were appointed or whether the superintendent of common schools in the county after the adoption of the book as to which the breach occurred caused it to be adopted in all common schools of the country."

SS 3. _School districts, sites and schools.See a C. L. 1888--The power to establish_

83. _Mandamus not remedy, since matter_

involves discretion and judgment of board.

Queeny v. Higgins \[Iowa\] 114 NW 61.

84. _Majority vote_ _insufficient to change_

within five years. \_Lenhart v. Board of Education, 5 Ohio N. P. (N. S.) 129.

85. \_Where action was not taken at regular meeting of board. _Lenhart v. Board of Education, 5 Ohio N. P. (N. S.) 129._

01. \_Provision requiring certain number of votes was to prevent frequent changes solely in interest of public and not to subserve ends of publishers. \_Ginn v. School Book Board \[_V. Va.\] 59 82 177._

01. \_Parents cannot resist selection of teacher where directors failed to act under $ 9764. _Ann St._ 1906, p. 474. _State v. Millasp \[_Mo. App._\] 108 SW 113._

01. _State v. Millasp \[_Mo. App._\] 108 SW 113._

01. _Rev. St._ 1903, $ 4423-4. _Rand, McNally & Co., v. Com. \[_Ky._\] 108 SW 892._

01. _Ky._ St. 1903, $ 4424. \_Maynard, Merrill & Co. v. Chowning, 31 public schools within its borders may properly be included in municipal powers.\[48\] The directors of a school district cannot erect a school \[49\] or make any alterations or enlargements \[50\] without submitting the question to the voters for their approval,\[51\] but in Illinois the cost of the building need not be submitted to the voters.\[62\] The Kentucky statute provides that when the county superintendent notifies the trustees that a new site is necessary, a school house or inclosures have been condemned and need repairing or additions, or that the furnishings are insufficient, the trustees shall levy a capitation or ad valorem tax, or both, to be applied to the purposes required,\[33\] or they may do so in their own discretion without order from the superintendent.\[54\] In Indiana proceedings to erect a graded school building for the use and at the expense of one school township are not governed by statutory provisions concerning the erection of joint school buildings or joint graded school buildings by more than one school corporation or a graded high school building by a single township.\[55\] In Nevada the board of school trustees is authorized and required to supply school houses with necessary furniture and to pay for the same out of the county school moneys belonging to the district.\[58\]

_Formation, alteration, consolidation and dissolution of districts.\[59\]_ See e C. L. 1853 The formation and conduct of school districts are generally governed by statute.\[57\] In Texas the constitution authorizes the formation of school districts within all or any of the counties of the state by general or special law without the local notice required in other cases of special legislation,\[58\] and having this power, the legislature also can by general statute validate all such corporations which for any reason are not valid;\[50\] with the exception that the legislature cannot create a new district and make part of the indebtedness of the old district a charge upon the taxpayers of the added territory not originally liable for its payment without their consent,\[60\] nor incorporate a district containing more than a certain area.\[61\] The petition for the formation of such a district bearing the required number of signatures is sufficient under the statute whether the signers reside in the different counties or all in the same county,"2 and when an independent school district has been incorporated under color of authority, its corporate existence cannot be collaterally questioned in any event,"3 but only in a direct proceeding instituted for that purpose."4

In Kentucky the statute provides that no school district established shall have less than forty-five pupils except in extreme emergencies,"6 and leaves the determination in such cases to the county superintendent who acts judicially, subject to an appeal to the superintendent of public instruction," and when these officials have acted, the courts will not interfere unless the power to act did not exist for lack of statutory notice or unless the power was manifestly abused." The statute also requires certain specifications as to boundary in the petition for the formation of the district."8

In Iowa the school board to whom a petition to form a school is addressed has no alternative but to proceed in accordance therewith and follow the lines marked out by the statute where the petition is in proper form, properly signed and presented to the proper board as directed by statute."9 In such a case an independent district may be formed including territory theretofore part of a school township even though the board of directors of the school corporation out of which the new district is formed do not concur in the formation."0

In Minnesota, where boards of county commissioners have acted upon a petition to organize a new school district out of parts of other districts lying in different counties, appeal may be taken by any qualified person residing in any part of the proposed new district to the district court of any county in which is located any part of the new territory,"1 and where an appeal is thus perfected, that court acquires jurisdiction of the subject-matter and the county commissioners of the other counties have no interest therein,"2 and on such appeal it will be presumed that the acts of the board were properly and regularly taken; "3 but in Indiana such an appeal should be to the county superintendent."4

**62.** Act 1st Sess. 27th Leg. $ 2 (Laws 1901, by courses and distances but according to p. 29, c. 15) makes no distinction in ordering, well known roads and dividing lines between holding, and declaring result of election to cerium wall known farms, and survey subsecincoporate town or village located near district was founded, described same by more counties and Incorporation of independence and embraced territory within boundary de-Parks v. West \[Tex. Clv. App.\] 108 SW 466.

**63.** Cannot be attacked in suit to restrain tablished according to boundaries set out in trustees thereof from issuing bonds and levy-petition. McGinnis v. Board of Trustees \[Ky.\] 108 SW 289.

**64.** Parks v. West \[Tex. Clv. App.\] 108 SW 466.

**65.** Petition sufficient. School Tp. of Bloomfield v. Independent School Dist. of Castala, 134 Iowa, 349, 112 NW 5.

**76.** Code, $ 2794. School Tp. of Bloom-field v. Independent School Dist. of Castala, 134 Iowa, 349, 112 NW 5.

**71.** Chapter 125, p. 152, Laws 1901. Bloom-

**65.** Under Ky. St. 1903, $ 4428, where parent

**72.** Counts commissioners not chargeable

that children were outside immaterial in

**whence of evidence of intention not to return.** Gividen v. Trustees of Common School

**by served and no bond filed therein by them.** Dist. No. 54, 31 Ky. L. R. 683, 102 SW 1191.

**66.** Gividen v. Trustees of Common School

**73.** Though minutes of county board did not state precise question acted upon, it not

**74.** School trustees have no authority whatever of their own motion to make any changes in the boundary of school districts," the statute providing that no change shall be made unless petitioned for by the majority of the voters of the district and limiting the power of the board to the granting or refusing of the particular change petitioned for without change." The boundary of a school district cannot be changed unless notice in writing be given to the trustees of the affected districts," or if the town board contemplates the change they must notify the clerks of the affected district stating therein when and where they will be present to decide upon such change," and such clerks shall immediately notify the other members of the board."

In Kentucky the authority to canvass the returns of the election for a change of boundary and make the certificate showing the amount of tax voted as well as the names of the trustees elected has been vested in the board of election commissioners."

A petition in compliance with the statute signed by a certain number of voters residing in any district affected thereby " is necessary to confer jurisdiction on the board of trustees to consolidate school districts." The notice in such a proceeding is sufficient, where showing how the district is to be affected and what particular territory will be lost," and need embrace the disposition of the property in the old districts only when the new district intends to surrender to the old districts all its claim thereto." At an election to consolidate districts lying in different counties, polls should be opened in each county, but failure to do so is immaterial where it does not appear that the result could have been changed " since the constitutional provision requiring an elector to vote in his own precinct is inapplicable in such cases." The board of arbitrators provided for by the statute permitting an appeal to arbitrators in such proceedings need not be sworn;" and they acquire jurisdiction only after certain statutory requirements have been satisfied," but their action is then conclusive in the absence of fraud."

same on ground appealed from, namely, that

80. Subsection 5, $ 446sa, Ky. St. 1903; it was not in accord with best interests of inhabitants of proposed new district. Bloom-

nis v. Board of Trustees \[Ky.\] 108 SW 289.

quist v. Washington County Com'rs \[Alinn.\]

81. Need not be signed by ten voters residing in each district affected but by ten voters residing in any affected district. State v. Job, 205 Mo. 1, 103 SW 493.

county superintendent, remedy of persons aggregated by refusal to establish new school

179.

district is to county superintendent, and not

by mandamus. Nelson v. State \[Ind.\] 81 NE

486.

001. Nolting v. Batterton, 231 Ill. 394, $8 NE

001.

001. Petition cannot confer authority upon trustees to make such changes as in their discretion they may deem best, or authorize trustees, if they do not grant its prayer, to

part if they refused to consolidate all, insuffin-

take some other action. Trustees can only do specific thing petitioned or refuse petition. Nolting v. Batterton, 231 Ill. 394, 83 NE 179.

84. State v. Job, 205 Mo. 1, 103 SW 493.

01. Under Ky. St. 1903, $ 447, proper notice

served only on chairman sufficient. Glyiden

v. Trustees of Common School Dist. No. 54,

31 Ky. L. R. 633, 102 SW 1391.

78. Under St. 1988, $ 418, record should show at least written proof or admission of service of notice on district school clerks.

State v. Cary \[VWs.\] 112 NW 428. Afflavit

by A that notice incorporated was true copy of notice served on school clerk named in

pleadings insufficient under St. 1889, $ 418,

for failure to state time, place or manner of service, and does not purport to be made by party serving same. Id.

79. State v. Cary \[VWs.\] 112 NW 428.

01. Subsection 5, $ 446sa, Ky. St. 1903; it was not in accord with best interests of inhabitants of proposed new district. Bloom-

nis v. Board of Trustees \[Ky.\] 108 SW 289.

81. Need not be signed by ten voters residing in each district affected but by ten voters residing in any affected district. State v. Job, 205 Mo. 1, 103 SW 493.

01. Nolting v. Batterton, 231 Ill. 394, $8 NE

01. Notices specifying things to be considered to be whether two districts be consolidated and to decide change in boundary

lines sufficient under Rev. St. 1899, $ 9742.

State v. Job, 205 Mo. 1, 103 SW 493. Petition

76. Petition cannot confer authority upon trustees to make such changes as in their discretion they may deem best, or authorize trustees, if they do not grant its prayer, to

part if they refused to consolidate all, insuffin-

take some other action. Trustees can only do specific thing petitioned or refuse petition. Nolting v. Batterton, 231 Ill. 394, 83 NE 179.

84. State v. Job, 205 Mo. 1, 103 SW 493.

01. Under Ky. St. 1903, $ 447, proper notice

01. Parks v. West \[Tex. Civ. App.\] 108 SWV

served only on chairman sufficient. Glyiden

v. Trustees of Common School Dist. No.

10 Cur. Law. SCHOOLS AND EDUCATION SS 3. 1603

\_Establishment of high schools.\_See $ C. L. 1854--In Montana the establishment of county high schools is generally provided for by statutes,90 which require a submission of the matter to a popular vote after the issnance of the required proclamation and notice 91 distinctly specifying the places which are candidates in the forthcoming election.92 Such election shall be conducted in accordance with the general election laws of the state.93 In California all defects in the organization of high schools have been cured by statute.94

\_Sites.\_See $ C. L. 1854--Prior action by a majority of the voters and taxpayers in the district is generally required 95 both as to the designation of the school site and the authority to purchase the same.96 In Nebraska the removal of the school house to a new site can only be authorized by a two-thirds vote,97 after which the directors may accept a site as a gift, though they may not purchase one with school funds unless authorized to do so.98 While a school district may authorize the removal of a school house to a new site before acquiring title to same and may thereafter authorize the acquisition of title, it cannot remove the schoolhouse to such site until title is acquired.99 In Iowa the statute prohibits a school district from holding land within a certain distance of the residence of one objecting to its nearer location.1 The statute provides for the review of the act of the school directors fixing a new school site by the county superintendent * and, where their action is reversed on appeal, the district no longer has any right to hold or use the site purchased.9 In Texas, however, the appeal in such cases is taken to the superintendent of public instruction, and from his decision to the state board of education,4 and a petition for an injunction to restrain the change of location must allege that such appeal had been taken.5

Footnote 93: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 94: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 95: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 96: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 97: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 98: The author is grateful to the anonymous referee for the support of the National Science Foundation.

1604

SCHOOLS AND EDUCATION SS 4. 10 Cur. Law. to condemn land for public school purposes,6 and the conferring of such powers upon existing boards of education in cities is not special legislation as to cities.7

SS 4. \_Organization, meetings, and officers.\_See * C. L. 1854--The statute generally designates the person or persons who should give, and prescribes the form and manner of giving notice of a call of regular and special school meetings ordered to be made by the board.\*_Trustees and boards of education._--The central board of education of a city is a creation of the legislature and has only those powers authorized by statute,9 and powers given to it requiring the exercise of its discretion cannot be delegated.10

A town school district under the statute is a corporate body by necessary implication, separate and distinct from the town whether coterminous with it or not 11 with authority to contract in its own name.12 Such districts have only those powers specifically prescribed by statute,12 cannot exercise the powers conferred upon them in any other mode than that prescribed by the statute,14 and are generally limited to controlling such matters as relate either wholly or partially to the administration of school affairs during the particular school year and within the particular district in and for which the board was organized.18 The fact that the directors of a school district had no notice of a meeting is immaterial if they were all present at the meeting and participated therein,16 and the recital of the record book of common school district trustees required to be kept by statute that a meeting was held after due notice may be attacked only for fraud or mistake.17 In Ohio the

6. Wendel v. Board of Education of Hooken \[N. J. Law\] 66 A 1075. 100. 100.

10 Cur. Law. SCHOOLS AND EDUCATION SS 4. 1605

statute authorizes the boards to fix the time of their meetings by resolution.18 The legal adoption of a resolution by a board of education can only be shown by the entry upon the minutes of the names of the members of the board voting "aye" and the names of members voting "may,"19 and a clerk of a board of education cannot by his own act, after the expiration of his term, lawfully correct his official entries in public records when he has failed to comply with this requirement.20 In Oregon, although the statute nowhere expressly provides that there shall be such an office as chairman of the school board, such office is held to be implied by the statute.21 In Kentucky certain irregularities in the selection of trustees do not affect the validity of their proceedings.22

Footnote 18: http://www.math.wisc.edu/~hose/

\_Selection of officers.See $ C. L. 1855--The appointment of one to be a school district trustee is a nullity where no vacancy exists in the office.23 In Illinois while the general election of school directors must take place on the third Saturday of April,24 and elections to fill vacancies must also be held on a Saturday,25 the manner and legality of the election of school directors cannot be collaterally attacked.26

Footnote 23: http://www.math.wisc.edu/~hose/

\_Qualification of officers.See $ C. L. 1855--In Michigan the office of county commission of schools is a statutory office and certain statutory qualifications are requisite to eligibility.27 The Iowa statute requires the county superintendent to be the holder of a first grade certificate, or a state certificate, or a life diploma,28 and in California he must be a resident of the county where elected.29

Footnote 23: http://www.math.wisc.edu/~hose/

\_Tenure of officers.See $ C. L. 1856--Under the North Dakota statute holding over pending the election and qualification of a successor is as much a part of the term of office to which the superintendent is elected as are the first two years where he continues in office.30 In Pennsylvania the tenure of the officers of altered or detached districts is governed by statute.31

Board of Trustees, 31 Ky. L. R. 379, 102 SWW

18. Under resolution providing that meetings shall be held on first Monday in each of proceedings. McGinnis v. Board of Trustees \[Ky.\] 108 SWW 289.

mentship which schools are in session and on alternative months after schools are closed for year, meeting held on first Monday of month in which any schools of township are in session is regular meeting. Lenhart v. Board of Education, 6 Ohio N. P. (N. S.) 129.

20. McDanell v. District No. 16 School Di-Meeing held after all but one school was closed held regular. Id. Second adjourned meeting from a called meeting not regular meeting. Id.

01. Under Rev. St. $ 3982, statement in minutes that all members were present at roll-call and later on that all voted "aye" on given question, insuffclient. Beck v. Rocky River Village Board of Education, 9 Ohio C. C. (N. S.) 551.

01. Where law required names of members voting "aye" and "no" to be entered in record, clerk cannot amend record to show votes after expiration of office. Beck v. Rocky River Village Board of Education, 9 Ohio C. C. (N. S.) 551.

01. Implied from B. & C. Comp. $ 388 pro-

01. Viding for signature of chairman to calls for

school meetings, $ 3388 pro-

that old-

est director in point of service snail be chairman, $ 3388, subd. 16 authorizing chairman to draw warrants, and subd. 31 providing that all bonds shall be signed by chair.

32. Where trustees cast lots to determine

33.5.5.5.6.7.8.9.9.

1606 SCHOOLS AND EDUCATION SS 5. 10 Cur. Law.

In Kentucky when one duly elected has qualified as school trustee, he cannot be deprived of office through any failure of the superintendent to perform ministerial or clerical duties respecting the recording of the election and qualification." In such a case a school district trustee does not forfeit his office by temporarily removing his residence onto or near the district line." Where the statute indicated no method of determining which of two trustees was elected for the longer term, an agreement between the trustees was a proper method of deciding the question."

\_Salaries.\_See 8 C. L. 1886.--The payment of salary and expenses to an illegal body to which a board of education has attempted to delegate its powers is unlawful." In Arkansas, in the absence of legislation so providing, the board of school directors have no authority to vote a director appointed clerk under the statute a salary." And in North Dakota a county superintendent lawfully holding over and continuing to perform the duties of the office is entitled to the compensation provided by law for the incumbent of such office."

\_Bonds.\_See 8 C. L. 1887.--In Illinois where the bond offered by township treasurer is twice the amount of money and effects on hand when offered, the superintendent cannot refuse to approve it on the ground that a larger sum will come into his hands at a later period." The Wisconsin statute requiring the director of a school district to prosecute an action on the treasurer's bond for a breach thereof and authorizing a school district meeting to make necessary provisions for such prosecution, requires a director to sue on the treasurer's bond and prosecute it only until the electors of the district take control."

\_Supervisory control of officers.\_See 8 C. L. 1887.--In Illinois trustees of schools may remove a township treasurer without formal charge, notice, or trial, and their action in that connection is not subject to review." Also city boards of education have power to try charges against a civil service employee in its service notwithstanding his failure to contribute to the school employe's pension fund."

**SS 5.**\_Property and contracts.\_See 8 C. L. 1887.--Persons dealing with the officers of a school board are charged with notice of the scope of its authority." A school disfaded superintendent, woman elected not being qualified elector of district. State v. Fabrek \[Pa.\] 68 A 1036.

**SS 3.**\_Let April 11, 1862, P. L. 471, which provides that, where portion of a district is de- tached, alteration shall not take effect for school purposes until commencement of school year next after end of that in which it shall have been decrered and confirmed, and that directors of detached portion shall continue to exercise their office until end of year In which alteration occurred, includes appendices of school directors for no fixed term, but not election officers disqualified by fact of such detachment. Commonwealth v. Topper \[Pa.\] 68 A 666. Where office of township collector of taxes including school taxes becomes vacant through collector's loss of residence In district to which elected, under Act July 2, 1886 (P. L. 434). Id.

**SS 3.**\_McGlone V.\_Zornes \[Ky.\] 107 SWP 329.

**SS 4.**\_McGlone V.\_Zornes \[Ky.\] 107 SWP 339.

**SS 4.**\_McGlone V.\_Zornes \[Ky.\] 107 SWP 329.

**SS 4.**_Fact that one received larger number of votes did not entitle him to longer term._ Gilbert v. Lucas \[Ky.\] 107 SWP 751.\_

**SS 5.**\_Property and contracts.\_See 8 C. L. 1887.--Persons dealing with the officers of a school board are charged with notice of the scope of its authority." A school disfaded superintendent, woman elected not being qualified elector of district. State v. Fabrek \[Pa.\] 68 A 1036.

**SS 6.**\_Under K.\_Stony's Dig. \*\*SS 7630-1, takes position with all burdens without pay. Clarke v. School Dist. No. 16, 84 Ark. 514, 106 SWP 677.

**SS 7.**\_Where woman elected was disqualified in that she was not qualified elector. State v. Fabrek \[IN.\] 113 NWP 74.

**SS 8.**\_Hertel v.\_Boismenmen, 229 Ill. 474, 82 NE 298.

**SS 9.**\_Under Rev. St.\_1988, \*\*SS 442, 430, subd.

**SS 17.**\_orders of directors to discontinue suit binding on district attorney prosecuting when court will permit dismissal as not prejudiding public's right. School Dist. No. 11 of Town of Madison v. Edit \[Vl.s\] 113 NWP 1098.

**SS 17.**\_McGlone V.\_Zornes \[Ky.

10 Cur. Law. **SCHOOLS AND EDUCATION SS 5. 1607**

trict cannot acquire, hold or bind the district to pay for real property acquired for any purpose other than as a school site,\[43\] and where their action in acquiring school sites may be reversed, such reversal prevents title from resting in the school district and the situation is the same as if no deed had been given or the property had been abandoned,\[44\] in which case the district is not bound to tender a reconveyance before maintaining a suit to recover the price from the seller.\[45\] In Illinois the trustees of a school may accept and dispose of notes, bonds and other negotiable securities.\[46\] In Wisconsin, as an incident to the power to erect buildings and provide for payment therefor, the school district may contract for the protection of third persons furnishing materials to the principal contractors to be used in the erection of such building,\[47\] although where a school building is being built by a contractor, the laborers and materialmen have no right to a lien upon the property of the district.\[48\]

_School lands.See_ **S C. L.** 1857.--Under the statute of Arizona, providing that actual or bona fide settlers placing improvements on the land shall have the preferred right to lease the same, improvements are defined as anything permanent in character, the result of labor and capital, which enhances the value of the land.\[49\] In Nebraska the board of educational lands and funds is vested with discretionary power in passing on appraisements of school lands,\[60\] but such discretion must be fairly and reasonably exercised, and the arbitrary or unreasonable refusal of the board to approve of a fair appraisalment will not justify the commissioner of public lands and buildings in refusing to issue a certificate of purchase which the purchaser would otherwise be entitled to receive.\[51\] In Texas all matters pertaining to the sale and lease of school lands are strictly regulated by statute or constitution.\[52\] The constitution, however, does not contemplate that the sale of county school lands shall be made directly by the commissioner's court, but that it may sell the same in such manner as it may direct.\[53\] If the commissioners in good faith sell the land for its market value, when

43. Code. SS 2748, authorizing districts to hold property, etc., only confers power to do so for purposes specified by statute. Independent School Dist. v. McClure \[Iowa\] 113\*\*

107 SW 40. Where part of section of school 44, 45. Independent School Dist. v. McClure \[Iowa\] 113\*\*

113\*\*

114\*\*

sold the fact that the purchaser in addition released a claim for damages against the county does not invalidate the sale,\[54\] nor does the fact that the land is subsequently found to have been worth more than it was sold for where sale was fairly made.\[55\]

\_Validity of contracts in general.\_See * C. L. 1888

\_Manner of contracting.\_See * C. L. 1889

\_Contractor's bonds.\_See * C. L. 1889

_Contracts for text books,_ etc.\[50\]

\_Ratification of action of officers.\_See * C. L. 1889

SS 6. \_Funds, revenues and taxes._See * C. L. 1860_-In Idaho it is the duty of municipal officers to pay one-half of all money collected from fines, penalties and all licenses to the trustees of the school districts within their limits, and the fact that a school district comprises a larger territory than the city is no defense for a nonpayment of such money.\[57\]

\_Debt limit._See * C. L. 1880_-The school board cannot levy a tax to pay an indebtedness incurred in excess of the limit fixed by the constitution,\[58\] but in North Carolina the county commissioners may, where the tax levied by the state for the support of public schools is insufficient, levy a special tax sufficient to maintain a school for four months in each year, though it exceeds the limitations fixed in the constitution.\[69\] In Kentucky the constitution provides that no taxing district shall be permitted to become indebted in any year to an amount exceeding the income and revenue provided for that year without the consent of two-thirds of the voters, at an election held for that purpose.\[69\]

\_Tuition and incidental fees._See * C. L. 1880_-Statute sometimes renders school districts which do not maintain certain schools liable for the tuition of scholars who have never completed a course in any such school \[81\] and gives parents and school districts which maintain such schools an action against school districts which neglect or refuse to pay such tuition.\[92\] The Wisconsin statute authorizes the board furnishing such tuition to charge it against the district sending the pupils and entitles it to

them out of proper funds in amount equal or to create or authorise creation of indebtedness In excess of constitutional debt limit. State v. Johns \[Ind.\] 84 NE 1. Bill praying are trustes of county free school land and funds, rule that, if truste so contracts in disposing of trust property as to derive benefit himself, his self-interest renders the transaction voidable at the election of the beneficiary, does not apply to sale of such school lands, since validity of sale depends upon sale In good faith for full market value and application of all proceeds to school found as required by Const. 1876, art. 7, $ 6. Taber v. Dallas County \[Tex.\] 20 Tex. Ct. Rep. 309, 106 SW 332. Where purchaser in addition released claim for damages against county, sustained by reason of its failure to give him possession under former lease to him, and also agreed to recover possession at his own expense. Id.

_S5. Taber v. Dallas County \[Tex.\] 20 Tex. Ct. Rep. 309, 106 SW 332._

_G6. See * C. L. 1859. See, also, $ 2, supra._

_G7. School Dist. No. 27 v. Twin Falls, 13 Idaho. (471, 90 P 735._

_S8. People v. Toledo, etc., R. Co., 223 III._

\_S27, $ 2 NE 420. Township advisory board has no power to make appropriation for construction of school house unless there are funds on hand available for that purpose, have the amount due entered on the tax roll against such district,88 but such tuition is payable to the high school district in which the education is furnished, and not to the city which contains such district.84

\_Levy and collection of taxes.\_See s. C. L. 1880--A tax levy under a void election is void.85 The amount and rate of the school tax which may be raised in any year is generally limited by statutory or constitutional provisions.86 Where the statute so provides, land adjoining a city, included in the city school district, is liable to the city school tax levied by the city trustees.87 The remedy for correcting omissions of property from taxation is by mandamus to compel proper public officials to assess the property as required by law.86 In Florida the county commissioners cannot revise the decision of the county board of public instruction as to the millage required for the maintenance of the necessary county schools when the millage is within constitutional limits and the estimates contain nothing illegal.86 In Georgia a law repealing an act permitting the raising of certain taxes for certain purposes will not be given a retrospective operation where it would impair the obligation of a contract.86 In Illinois all questions in reference to the levy and collection of taxes are statutory.87

63. Laws 1903, p. 525, c. 329, $ 2. City of common school district are coterminous. Columbus v. Fountain Prairie \[WWs.\] 115 People v. Read, 238 Ill. 351, 84 NE 214. NWV 111. 64. Action must be brought by district, and not by city, although the two may be 94 P 888. In action to have city school tax coterminous, though money is to be paid to city treasurer, ex offcola treasurer of dis-, and enjoin sale of lands to pay tax, where trict, and into city treasurer. City of C-, lumbus v. Fountain Prairie \[WWs.\] 115 NWV 111. 65. Tax held void for failure to issue proper proclamation and notice of election. Evere s. V. Hudson \[Mont\] 93 P 462 66. Const. art. 7, $ 3, as amended Sept. 25, 1883, authorized creation of two distinct classes of independent school districts. First, class in which incorporated city or town may be included, together with con-, in the The various needs of the school district should be met by the levy of the proper kind of a tax,71 and the directors are the authorities to levy school taxes.73 Equity will not enjoin the collection of taxes levieed by the board of education because of mere irregularity in the certificate of tax levy,74 nor where upon objections to the application the defects could be cured by amendment;75 neither does the fact that the amount for which a school district tax was levieed is in excess of its outstanding indebtedness render it void, there being no evidence that it had no other indebtedness.76 Where property located in one district has been by mistake taxed in another, the former cannot recover the amount of the tax from the latter.77 The Kentucky constitution provides that every resolution passed by any county, city, town or other municipality levying a tax shall specify the purpose for which the tax is levieed,78 and that any contract or indebtedness contracted in violation of the section shall be void, and that the collection of such a tax may be enjoined by the taxpayers,79 but the trustees may subsequently make a valid levy to correct the prior invalid one.80 In Louisi-ana a special election held to levy a tax for schools cannot be contested after three months.81 In order that a voter may vote at such election, the same qualifications as are required for other elections exist.82 The purpose for which the tax is intended shall be submitted to a vote of the property taxpayers entitled to vote under the election laws of the state,83 though the statute may provide for the ratification of action taken without regard to such provisions.84 In Nebraska, in order to restrain the act of the board of county commissioners in repaying school taxes alleged to have been illegally collected, the petition must show that the board acted without jurisdiction,85 and where a mistake is the ground for such repayment, it must be made clear that such was the fact.80 In New Jersey, where the amount necessary for the purchase of land and erection of a schoolhouse has been properly fixed and determined, it is mandatory under the statute for the body having the power to make the appropria 10 Cur. Law. .

1612

SCHOOLS AND EDUCATION SS 6. 10 Cur. Law.

Orders and warrants for payment of claims.See * C. L. 1884.--The Illinois statute provides that, whenever there is not sufficient money in the treasury of any school district to meet current expenses, the proper authorities may provide a fund to meet such expenses by issuing warrants in anticipation of taxes levied by them,1 and defectively issued warrants may sometimes be ratified.2 The board of school trustees is one of the school authorities authorized to issue such warrants.2 In Indiana a township warrant standing alone creates no liability against the township, and, in order to sustain an action based upon it, the complaint must show by proper averment what it was given for, and, if for goods of any character, that they were suitable, useful, and necessary for the township and that the township received and used them.3 In Nebraska there is no restriction in the school law upon the power of school district officers to issue warrants for proper purposes, and warrants issued for such purposes may be paid out of funds derived from taxes levied and collected during the current year * or, if not paid for want of funds, they may be registered under the provisions of the warrant act and paid in the order of their registration upon the accumulation of money in the fund upon which they are drawn."

_Apportionment of funds.See * C. L. 1884.--The census required to be made by statute annually of the children in the district must be certified to by the majority of the trustees at a meeting of which all had notice.3 In Iowa, since the county auditor merely acts miniterially in apportioning the school tax in proportion to school census taken, he cannot review the census nor be restrained from acting on the census because of the misconduct of any village secretary.4 In California the act providing for the distribution of the state high school fund limits the distribution to schools which have been established according to statutory provisions,5 and which have maintained the grade of instruction required by law.40_

Footnote 3: The author is grateful to the anonymous referee for the support of the National Science Foundation.

I. Hird's Rev. St. 1905, c. 146a, SS 2, confirms however on corporation to defray and meet all ordinary expenses by money borrowed on warrants in anticipation of taxes within limited specified, providing warrants are so drawn as to be payable solely from taxes when collected, and such taxes are set apart to pay them. Gray v. School Inspectors of Peoria, 231 III. 63, SS 3NE 95, Hird's Rev. St. 1905, c. 146a, SS 2, authorizing issuance of warrants in anticipation of taxes levied, not available in anticipation of taxes for building purposes but only for taxes levied to establish and support schools.

G. L. 1884.--The Illinois statute provides that, whenever there is not sufficient money in the treasury of any school district to meet current expenses, the proper authorities may provide a fund to meet such expenses by issuing warrants in anticipation of taxes levied by them,1 and defectively issued warrants may sometimes be ratified.2 The board of school trustees is one of the school authorities authorized to issue such warrants.2 In Indiana a township warrant standing alone creates no liability against the township, and, in order to sustain an action based upon it, the complaint must show by proper averment what it was given for, and, if for goods of any character, that they were suitable, useful, and necessary for the township and that the township received and used them.4 In Nebraska there is no restriction in the school law upon the power of school district officers to issue warrants for proper purposes, and warrants issued for such purposes may be paid out of funds derived from taxes levied and collected during the current year * or, if not paid for want of funds, they may be registered under the provisions of the warrant act and paid in the order of their registration upon the accumulation of money in the fund upon which they are drawn.5

Footnote 27: The author is grateful to the anonymous referee 10 Cur: Law. **SCHOOLS AND EDUCATION SS 7.** **1613**

\_Appropriations.\_See * C. L. 1865\*\*

_Disbursements._--Unless the claim is approved and allowed in the manner and by each and all of the various officials and boards as provided in the statutes, it cannot be regarded as approved or allowed in any respect or to any degree as against the district or its property,\[11\] but, if the boards or persons whose approval is required refuse to approve the payment of a valid judgment or just claim wherein the directors' liability has been established, they may be compelled to do so by mandamus \[12\] except that no purchase of school furnishings shall be valid unless approved by a majority of a board of three citizens and taxpayers of such district.\[13\]

SS 7. \_Teachers and instruction.\_See * C. L. 1888 _Contracts of employment._--Where the directors meet together and participate in the selection of a teacher and a written contract is subsequently signed, the contract is valid,\[14\] but where school trustees in their individual capacity agree to employ one as teacher and afterwards as a board repudiate the agreement, such person is without redress since the agreement was void as against public policy,\[18\] as is also a contract requiring the teacher not to exact pay for attending a teachers' institute.\[16\] In certain exceptional cases, a school board is authorized to enter into contracts not to be fully performed during the school year in which the contract was made.\[17\] But it has been held that the Ohio statute in this regard does not authorize the binding of the district by a contract for a period beginning in a subsequent school year, but only for a term beginning with the year during which directors are in office.\[18\]

_Licenses and certificates._--The issuance of teachers' certificates is generally governed by statute,\[19\] and a certificate issued as provided for in the law after the law

to power to establish same and does not \[\] \*\*aker & Ray Co. v. Roberts, 155 F 882. Power prevent their conduct as part of public \[\] \*\*of such bodies to allow or reject claims, disschelosis and their sharing in high school \[\] **creationary and will not be disturbed in advance of Education of San Francisco**

\*\*v. Hyatt \[**CoL.**\] 93 P 117. Under St 1871-2, \[\] \*\*Id. Comp. Laws New. # 1287, 1338, provides \[\] **d. 846**, **e. 876**, San Francisco board of educa- tion may maintain existing schools and es- \[\] \*\*warrants issued upon orders of county su- \[\] **then** **d**ubils required new ones including high school. Held Humanbold evening high opinion bill is exorbitant, the may refuse to school organized thereunder has been or- \[\] \*\*draw his order until ordered to do so by \[\] \*\*guarlced under the law of the state so as to \[\] **share** in state high school \[\] **Id.**

\*\*as authors of all bills rejected by county \[\] **10. Under Act Mar. 6, 1905, p. 8, c. 65, re- quiring at least two duly certified high school teachers and regular average attend- 882.**

\*\*ance of twenty or more pupils, and Pol. \[\] **Id.**

\*\*Code, $$$ 1670, subd. 12, requiring course of \[\] **& Ray Co. v. Roberts, 155 F 882.**

\*\*study to be such as will prepare graduates \[\] **Id.** Under Kirby's Dig. 7 1615, providing for admission to state university. evening \[\] **that directors shall fire licensed teacher**

\*\*high school maintaining two courses only and make a written contract specifying one of which satisfied statutory require- \[\] **then**s must show the requisite number of \[\] **School Dist. No. 68 v. Allen, 83 Ark. 491, 104**

**Survey 172.**

**of San Francisco v. Hyatt \[**CoL.**\] 93 P 117.**

\*\*Fact that sessions are of shorter duration than those of other high schools does not prevent evening high school from participant-- \[\] **from** **the** **directors'**

\*\*being in high school fund. Id. Under Pol. \[\] **Id.**

\*\*Code, $$$ 1670, subd. 12, providing that course of \[\] **Id.**

**of** **Id.**

**Id.**
1614

schools and education SS 7.

10 Cur. Law was passed, but before it went into effect, is not equivalent to the certificate provided for under the act.2e In New York the board of examiners of the board of education may exercise its discretion and judgment in determining the character of the experience of a teacher in different schools, both rural and urban,21 and the refusal to issue a certificate as provided for by statute will not be reviewed by certiorari.22

Such a license may generally be revoked only for some statutory cause and if action is attempted on other grounds the action is without jurisdiction and equity may interfere, but where the county superintendent proceeds to hear a charge within the statute and on reasonable notice, the accused must follow the procedure provided in the school laws, and if aggrieved must prosecute an appeal to the state superintendent,23 since by accepting and acting under a license the licensee consents to all conditions imposed thereby, including provisions for its revocation.24 Such statutes do not deny access to the courts for injury done to person, property or reputation within the meaning of the constitution, deprive the licensee of his property without just compensation, nor confer judicial power upon a ministerial officer.25 The Indiana statute authorizes a teachers' license to be revoked for general neglect of the business of his school,26 and where a county superintendent has jurisdiction of a proceeding to revoke a teacher's license, his bias and want of judicial capacity are not grounds for interference by the courts.27 In Arkansas the statute requires county examiners to stand the same examination as is required of applicants for first grade teachers' licenses, and provides for the revocation of their licenses by the state superintendent of public instruction, and while the issuance of licenses to such county examiners is not expressly provided for, it is required by implication.28

\_Dismissal, suspension and reassignment,\_28 So & C. L. 1865

\_Breach of contract,\_28 So & C. L. 1865

_Salary,_28 So & C. L. 1865--The right of a teacher to recover compensation for servip._ 87_,\_ _c. 122_, taking effect Oct. 1, 1906, providing for issuance of first-grade certificates and for removals of first-grade certificates and for removals of first-grade certificates issued prior to the various experience was equivalent to certain\_ _yields effect of the act, one holding two years' certificate issued Aug. 30, 1906, is not entitled to a renewal thereof under act before same went into effect. State v. Huegle \[Iowa\] 112 NW 224. Ballinger's Ann. Codes & St. **SS 2322**, 2416, provide that no person may subsequently be reasonably imposed._ _not first received certificate from state board of education, and provide for their insuance to any teacher to whom certificate has been granted by any county board of examiners. Kester v. School Dist. No. 4, \[Wash\], 831 & 987. Under Laws 1897, p. 388, c. 378, & 1081, amended by Laws 1901, p. 469, e. 466, & 1089, provision relating to those duly 11-censed prior to date of act relates to those_ _t_-_taching in the city at time act took effect, and does not entitle one licensed in 1871, and again in 1879, not teaching in city when_ _and to ask effect, to have_ _same placeed on such_ _list. In re Walker, 120 App. Div. 571, 105 NYS 583._ _20_. Where holding first-grade certificate under Act 81st General Assembly, p. 87, e. 122, required of all county superintendents, one issued prior to taking effect of law in-sufficient. State v. Huegle \[Iowa\] 112 NW 234.\_ _21_. Action of board in refusing applicant credit for work in rural schools not exercise of judicial determination, but within their\_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_ _in_ _the_in_ _the_ _in_ _the_in_ _the_ _in_ _the_in_ ices depends upon a contract, express 29 or implied,30 but an action will not lie to recover salary as a school teacher unless the plaintiff shows that he is regularly licensed to teach as provided by law.\[81\] In Ohio a teacher required to do janitor work without specially contracting to do so for compensation in addition to that received for teaching may recover the reasonable value of such services in an action against the board,\[32\] and also recover compensation from the board of education for time occupied in attendance at a teachers' institute, which right of recovery is not affected by the fact that the institute was held during the summer vacation.\[88\]

Greater New York charter operates to permanently protect teachers appointed either before or after the passage of the act in the tenure of their positions unless removed or reassigned for cause and as provided by law,\[84\] though the right to a certain position thereunder and the salary attached thereto may be waived,\[85\] and that statute also provides a minimum salary which can be paid certain teachers.\[86\] It has been held, however, that the provisions of the statute respecting salary and tenure of office must be construed in connection with the provisions respecting appointment and assignment.\[87\] Under this statute a retired teacher, never removed or reduced in rank, is not compelled to resort to mandamus for reinstatement before enforcing her right to back salary and pension to which she is entitled.\[88\] This act, however, does not apply to evening schools or their teachers and,\[89\] in such a case,\[88\]

29. Where private and public school in a lower than statutory rate not waver of same building employed same teachers, forright to compensation at higher rate where mer paying portion of salary of teachers (right did not rest on contract, but was pro-satisfactory to them, where former notified later of refusal to pay any portion of salary, teacher cannot sue on express contract, 121 App. Div. 862, 106 NYS 983, Dickey v. Trustees of Putnam Free School \[Mass.\] 84 NE 140.

No. Where private and public school were administered together, and former though notifying latter of refusal to pay any portion of certain teacher's salary failed to notify him of such decision, but accepted his services, visited his school, signed diplomas with him, etc., be may recover salary on implied contract. Dickey v. Trustees of Putnam Free School \[Mass.\] 84 NE 140.

31. Mere letter from superintendent stating that applicants' papers are sufficient to entitle to temporary certificate, and that it will be granted on application as provided by statute, insuffent. Kester v. School Dist. No. 34 \[VWash.\] 83 P 807.

01. Reid v. Muhlenberg Tp. Board of Education, 6 Ohio N. P. (N. S.) 526.

01. May recover under Rev. St. $ 4079 if actually engaged in teaching at time or be-gan teaching within three months after institute closed. Reid v. Muhlenberg Tp. Board of Education, 6 Ohio N. P. (N. S.) 526.

01. Laws 1897, p. 404, u. 378, $ 1117. Moore v. New York Board of Education, 121 App. Div. 862, 106 NYS 983.

01. Teacher transferred before passage of act from position as principal to that of teacher in another school and on demand recognized as head of department and was paid and accepted and recepted in full for all claims due from board the statutory salary of latter position, right to be retained as principal and receive salary attached to that office waived. Sheehan v. New York Board of Education, 120 App. Div. 657, 104 NYS 1002. More acceptance and recepting for a salary and pension to strictly teacher both parties must be held to have entered into the contract with knowledge of the board's power to reduce the compensation as provided by its by-laws,\[40\] which authority may be implied from the matter of the by-law, although not expressly granted,\[41\] and also from the fact that the power conferred upon board to establish such schools involved the exercise of judgment and discretion in their establishment and management.\[42\]

\_Offenses by teachers or applicants for teacher's license.\_See * C. L. 1866

SS 8. \_Control and discipline of scholars and regulation of attendance.\_See * C. L. 1866

\*\*Fracturities.--If it is the judgment of the school board that membership in secret societies known as Greek letter fraternities or sororities is detrimental to the best interests of the schools, they may adopt reasonable rules and regulations to meet such conditions, and may \[43\] refuse public recognition to such secret societies, refuse to allow their meetings to be held in the school buildings or to allow the name of any school to be used by them,\[44\] and may require teachers to refuse to allow a member of a fraternity or sorority to represent his school in any literary or athletic contest or in any other public capacity,\[45\] but may not deny them any natural right or unlawfully discriminate against them.\[46\] And such regulations will not be interfered with nor set aside by the courts unless there is a clear abuse of the power and discretion conferred.\[47\]

\_Beligious exercises.--The laws of Texas neither require nor forbid the use of the bible in the public schools, and the court will not declare its use unlawful simply because there is misapprehension that the school authorities may abuse its use by attempting to teach a sectarian view.\[48\]\_Corporal punishment.\_See * C. L. 1866.--The presumption is that punishment of a scholar by a teacher was in the exercise of lawful authority and it does not devolve upon the teacher to show his innocent intention \[49\] and, if the punishment was inflicted in good faith without intention to injure the scholar but only to enforce the rules of the school, the teacher is not guilty of assault though he used more force than necessary.\[50\] On the trial of such case, evidence that the scholar was obedient during preceding years while another person was teacher is inadmissible.\[51\]

- 40. Morris v. New York Board of Educa- plis not members, except that of representing tion, 54 Misc. 605, 104 NYS 979. Where by-laws authorized establishment of evening schools and provided for discontinuance of in associations for literary, musical, social, class and discharge of teachers and fixed salary and provided that no by-law could be suspended or repealed except by two-thirds vote of members and that every amendment should be referred to committee on by-laws established by by-law, board could be unanimous vote reduce salaries without reference to committee on by-laws. Id. Where notice of appointment merely fixed term of service and teacher accepted, he cannot complain of decrease in salary in accordance with by-laws. Id.

- 41. By-law authorizing establishment of evening schools, their discontinuance and discharge of teacher if attendance decreased to certain extent, implies power to change compensation, since reserve of power to discharge implies that to change compensation. Morris v. New York Board of Education, 54 Misc. 605, 104 NYS 979.

- 42. Laws 1901, p. 456, c. 466. Morris v. New York Board of Education, 54 Misc. 605, 104 NYS 979.

- 43, 44, 45. Wilson v. Chicago Board of Education, 233 Ill. 464, 84 NE 697.

- 46. Rule denying no privilege allowed punishment.\[47\]\_Corporal punishment.\_See

- C. L. 1866.--The presumption is that punishment of a scholar by a teacher was in the exercise of lawful authority and it does not devolve upon the teacher to show his innocent intention \[49\] and, if the punishment was inflicted in good faith without intention to injure the scholar but only to enforce the rules of the school, the teacher is not guilty of assault though he used more force than necessary.\[50\] On the trial of such case, evidence that the scholar was obedient during preceding years while another person was teacher is inadmissible.\[51\]

- 47. Morris v. New York Board of Educa- plis not members, except that of representing tion, 54 Misc. 605, 104 NYS 979. Where by-laws authorized establishment of evening schools and provided for discontinuance of in associations for literary, musical, social, class and discharge of teachers and fixed salary and provided that no by-law could be suspended or repealed except by two-thirds vote of members and that every amendment should be referred to committee on by-laws. Id.

- 48. Morris v. New York Board of Educa- plis not members, except that of representing tion, 54 Misc. 605, 104 NYS 979. Where by-laws authorized establishment of evening schools and provided for discontinuance of in associations for literary, musical, social, class and discharge of teachers and fixed salary and provided that no by-law could be suspended or repealed except by two-thirds vote of members and that every amendment should be referred to committee on by-laws. Id.

- 49. Only question for court, whether rule to committee on by-laws. Id. Where notice of appointment merely fixed term of service and teacher accepted, he cannot complain of decrease in salary in accordance with by-laws. Id.

- 41. By-law authorizing establishment of evening schools, their discontinuance and discharge of teacher if attendance decreased to certain extent, implies power to change compensation, since reserve of power to discharge implies that to change compensation. Morris v. New York Board of Education, 54 Misc. 605, 104 NYS 979.

- 42. Laws 1901, p. 456, c. 466. Morris v. New York Board of Education, 54 Misc. 605, 104 NYS 979.

10 Cur. Law. --SCHOOLS AND EDUCATION SS 12. 1617

SS 9. \_Torts and liability for the same.\_See 8 C. L. 1888--Under the statute an action may be maintained against a school district for an injury arising from its tortious act or omission,\[52\] and such a statute applies to governmental as well as other duties since it was intended to remove the limitations of the common law and make the district generally responsible for omissions of duty.\[53\]

SS 10. \_Offenses.--In Mississippi the statute provides that any person who sells, offers to sell, or give away the examination questions or answers to the same, properly prepared by the proper authorities for the examination of teachers of public schools before the date of the examination, shall be guilty of a misdemeanor.\[54\] And in Pennsylvania, an act prohibiting school officers of institutions receiving state appropriations from selling or acting as agents for the sale of supplies to institutions of learning has been held constitutional,\[55\] and to apply to private schools receiving money from legislative appropriations.\[56\]

SS 11. \_Decisions, rulings, and orders of school officers, and review of the same.\_See 8 C. L. 1887--Since the jurisdiction of the commissioner of education applies to the common schools of cities of the second class, an appeal from an order dismissing a proceeding to remove a superintendent of schools is properly taken to such commissioner.\[67\] In New Jersey the state school superintendent is clothed with authority to decide all controversies'and disputes arising under the school laws subject to appeal to the state school board,\[58\] and the prerogative writs of the state should not be awarded until the remedies provided by the school law have been exhausted.\[59\] Since the term "public school," as used in the constitution of Oklahoma, does not include the state university, the state board of education is not vested with supervision over the university of Oklahoma.\[60\]

SS 12. \_Actions and litigation.\_See 8 C. L. 1888--A school district is a corporation, and may sue in any court of the state having competent jurisdiction,\[61\] and like other was guilty of assault, must consider acts of both and teacher's guilt must not be meas- under alone by severity of punishment but by his intention in Infieting it. Greer v. C. 557. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 397, 106 SWV 359. --A second district is a corporation, 51. Greer v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 397, 106 SWV 359. --A second district is a corporation, 52. Under Ballinger's Ann. Codes and St. --S 5673, 5674, district liable for \_s_calling child through overturning of unguarded bucket of boiling water negligently left on rcgister. Redfield v. School Dist. No. 3 --S \[Wash.\] 92 P 770. --S 53. Redfield v. School Dist. No. 3 --S \[Wash.\] 92 P 770. --S 54. Under Code 1906, $ 4546, conviction not sustained where not proved that questions were prepared by state superintendent, sealed and sent to county superintendent as provided by Code 1906, $ 4539. Bryant v. State \[Miss.\] 46 S 247. --S 55. Act April 23, 1903, P. L. 285, preventing officers or members of boards of managers of institutions receiving appropriations of state money from selling supplies to such institutions, or acting as agent for sale of same constitutional. East Stroudsburg State Normal School v. Yetter, 33 Pa. Super. Ct. 557. --S 56. Private corporation operating state normal school and receiving moneys from legislative appropriations is within statute, and 10 Curr. L.--I02. --S 57. --S 58. --A second district is a corporation, 52. Under Ballinger's Ann. Codes and St. --S 5673, 5674, district liable for \_s_calling child through overturning of unguarded bucket of boiling water negligently left on rcgister. Redfield v. School Dist. No. 3 --S 58. --A 794. --S 59. --A 79. --S 54. Under Code 1906, $ 4546, conviction not sustained where not proved that questions were prepared by state superintendent, sealed and sent to county superintendent as provided by Code 1906, $ 4539. Bryant v. State \[Miss.\] 46 S 247. --S 55. Act April 23, 1903, P. L. 285, preventing officers or members of boards of managers of institutions receiving appropriations of state money from selling supplies to such institutions, or acting as agent for sale of same constitutional. East Stroudsburg State Normal School v. Yetter, 33 Pa. Super. Ct. 557. --S 56. Private corporation operating state normal school and receiving moneys from legislative appropriations is within statute, and 10 Curr. L.--I02. --S 58. --A second district is a corporation, 52. Under Ballinger's Ann. Codes and St. --S 59. --S 59.

corporate bodies, a service of process upon the chief executive is deemed sufficient," although in New York a service of an alternative writ of mandamus upon a majority of the members of a board of education is also sufficient." The school district is a necessary party to all actions seeking to render it liable on any contract or entering any judgment requiring it to pay out money on property." A taxpayer may maintain an action to restrain a board of education from exceeding its statutory powers." Where the county treasurer has disbursed money illegally, neither the school district nor the state is a necessary party in a suit by him to recover from the person illegally paid, though the school district may not be an improper party."

In Illinois an action of forcible entry and detainer may be brought by the school directors, but actions involving title to land must be brought by the trustees."

SS 13. Libraries, reading rooms and other auxiliary educational institutions. See * C. L. 1869

SS 14. Private schools.See * C. L. 1869

SCIRE FACIAS."

Scire facies to revive a judgment " or to enforce a recogninance of bail " are treated in appropriate topics.

SEALS; SEAMEN, see latest topical index.

SEARCH AND SEIZURE.

# 1. What Is an Unreasonable Search and | | 2. Procedure for Ismnnece, and Execution Setxture, 1618.

of Search Warrants, 1619.

Seizure of property used in violation of law " and search of arrested persons " are treated in other topics, except that their validity is considered generally here.

SS 1. What is an unreasonable search and seizure." See * C. L. 1870--The inhibition against unreasonable searches and seizures applies to the state, and not to unauthorized acts of individuals," and in Georgia it is held, contrary to the general rule, that evidence obtained by unlawful search is not admissible in a criminal prosecution." An act providing for the production of books and papers of a corporation, to be used as evidence before a grand jury," and a proceeding in effect the same as sub-

SS2. Gividen v. Trustees of Common School Dist. No. 54, 31 Ky. L. R. 633, 102 SWV 1191.

SS3. Under Code Civ. Proc. | 2071, fact that two members of board were succeeded by new members after commencement of proceeding, and relator failed to continue proceeding against new members, not fatal wheere service had been on majority as constituted after election of new members and the return did not lead the election of new members in abatement. People v. Hendrickson, 54 Misc. 337, 104 NYS 122, afd. 109 NYS 403.

64. Necessary party in suit for mandamus to compel other boards and persons whose approval is required to approve claim based on contract of school district trustees and approved in whole by them but disapproved in part by others whose approval was necessary. Whittaker & Ray Co. v. Roberts, 155 F 882.

01. To enjoin unlawful delegation of power to and payment of salaries and expenses of 10 Cur. Law. SEDUCTION SS 4. 1619

poena duces tecum,16 are not unreasonable searches and seizures. Neither is an act providing for summary seizure of gambling implements invalid.17

SS 3. \_Procedure for issuance, and execution of search warrants.\_See * C. L. 1488

Seaweed; Secondar Evidence; Secondar Dealers; Secondar Ballot; Security FOR Costs, see latest topical index.

- 1. Nature and Elements of the Tort, 1619. SS 4. Indetermined and Prosecution, 1619. SS 2. Civil Remedles and Prosecute, 1619.

Suspension of Prosecution by Marriage 1620. Burden of Proof, Evidence, and Instructions, 1620.

Related torts 78 and crimes 78 are treated in other topics. The measure of damages is excluded.80

SS 1. \_Nature and elements of the tort.\_See * C. L. 1671

SS 2. \_Civil remedles and procedure.\_See * C. L. 1871.--A statute giving a right of action to the parents though there is no loss of service does not abrogate the common-law right of action 81 which may be maintained by another than the parent who has suffered loss of services.82

\_Pleadings.\_See * C. L. 1871.--A declaration may be good as one for fraud and deceit though insufficient as one for seduction.88

\_Evidence and trial.\_See * C. L. 1871.--When determining the issue of chastity the jury must be confined to direct testimony of acts of sexual intercourse or to circumstantial evidence from which such acts may be inferred.84 Evidence that the unmarried female seduced wore is inadmissible to prove that such female was uncharse.85 Alleged issue of the intercourse may be produced in court.85

SS 3. \_The crime.\_See * C. L. 1871.--Seduction is a statutory and not a common-law offense.87 Previous chastity of the female alleged to have been seduced is required by some statutes,88 while others require only good repute, which may exist notwithstanding previous unchastity.89 If the promise of marriage induced the female to consent, it need not have been made contemporaneously therewith.89

SS 4. \_Indictment and prosecution.\_See * C. L. 1871.--An indictment which charges the offense with the degree of certainty required by the law is sufficient,81 and there fore an indictment in the language of the statute is good."2 It is not necessary to aver that teacher and pupil were not husband and wife."3

\_Suspension of prosecution by marriage.\_See 8 C. L. 1871.--In some states, prosecution for seduction may be stopped by marrying the woman alleged to have been seduced and giving bond for her support,"4 but the fact that the man has subsequently discovered proof exonerating him of the crime is no ground for canceling such bond executed under the statute."5 Nor will a subsequent offer of marriage excuse or defeat the prosecution."6

\_Burden of proof, evidence and instructions.\_See 8 C. L. 1872.--In a trial for seduction, the state need not prove previous chastity of the prosecutri." She is presumed to be virtuous, and the burden is on the defendant to prove her want of chastity at the time of the alleged intercourse "8 by a preponderance of the evidence,"9 but unchastity once shown is presumed to continue." The presumption of previous chaste character of the female seduced is not overcome by the presumption of the defendant's innocence." Testimony of prosecutri as to the parties' conduct toward each other 8 and as to whether she believed at the time that defendant and she were to become man and wife, whether the day of marriage had been set, and whether the time was fixed according to his or her suggestions, is admissible; * nor is it reversible error to admit her testimony on the point that prosecutri welcomed the accused to her home and that he was treated well." Evidence of a former engagement between prosecutri and the defendant, which had been broken before the alleged seduction, may be introduced." Evidence of "subsequent illicit intercourse and the birth of a child resulting therefrom is admissible to corroborate the prosecutri in the statement respecting the initial act." Frequent acts of sexual intercourse between a teacher and his female pupil at times other than that charged in the indictment for such an offense, if such acts are continuous and consecutive with the act charged, may be given in evidence on the trial under such an indictment as reflecting light on the relations between the parties." Evidence as to the character of prosecutri after the seduction is inadmissible," but the admission of evidence as to the reputation of the prosecutri after the date of the first intercourse has been held not prejudicial error."10 The character of members of the family may be shown."11 It is not error to

92. Indictment did not allege that prosecutri was of previous chaste character. Kerr v. U. S. \[Ind. T.\] 104 SW SW 809.

01. Indictment under $ 7024, Rev. St.,

01. Engine a teacher with having sexual intercourse with a pupil. Easley v. Ohio, 10 010 Ohio C. C. (N. S) 169.

01. G. \[N. S) 169.

01. Grimm v. Griffin \[Ga.\] 61 SE 16.

01. G. \[N. S) 161.

01. Subsequent offer made. Code 1906,

$\\lx@sectionsign$ 1372, Ann. Code 1892,

$\\lx@sectionsign$ 1298, defined the ordense as the obtaining of earnal knowledge of a woman of previous chaste character through a false or feigned promise of marriage, etc. Williams v. State \[Miss.\] 45 S 146.

97. Wihilute v. State, 84 Ark. 67, 104 SW

01.

01. Tedford v. U. S. \[Ind. T.\] 104 SW 608;

Kerr v. U. S. \[Ind. T.\] 104 SW 809.

99. Wihilute v. State, 84 Ark. 67, 104 SW

01.

1, 2. Kerr v. U. S. \[Ind. T.\] 104 SW 809.

3. As to whether defendant appeared affectionate or loving, kind, and true towards

1. So held where sister had been unchaste the prosecutri. Faulkner v. State \[Tex. Cr.\] of her unchaste acts when the sisters re 10 Cur. Law. SEDUCTION SS 4.

refuse to admit testimony of physicians to the effect that it was impossible for a woman to carry a child to birth without knowing it.\[12\] In a prosecution for seduction under promise of marriage, the testimony of prosecutri that she yielded on defendant's promise of marriage is competent.\[13\] Admitting testimony of the mother of the prosecutri that the father of the prosecutri was dead and had been fifteen years is not reversible error.\[14\] The positive testimony of a witness of an act of sexual intercourse between a teacher and a female pupil that such act occurred at a certain place on Wednesday is sufficient to sustain a verdict of guilty, even though the complaining witness testified that no such act occurred at that place except on Sunday.\[18\]

A judgment of conviction of a teacher of music of the crime of having sexual intercourse with a female pupil will not be reversed because the evidence fails to disclose that the term of employment was for a definite length of time.\[18\] Where proof of promise of marriage aside from prosecutri's statement largely depended on evidence contained in defendant's letters, written subsequent to the alleged seduction and birth of a child, the court erred in refusing to charge that defendant could not be convicted on promise made subsequent to the birth of the child, and that such testimony could be used only to corroborate the prosecutri's,\[17\] and where prosecutri had several recent acts of intercourse with others than the accused, it was error for the court to instruct the jury that if she had reformed and was leading an absolutely virtuous life at the time defendant became engaged to her, and she had intercourse with him solely because of his promise of marriage, defendant was guilty.\[18\] Prosecurity must be corroborated both as to the prior promise of marriage and the act of intercourse,\[18\] but where defendant admits promise of marriage and sexual intercourse, no other corroboration of the prosecutri on these points is necessary.\[20\] The question as to whether or not there is sufficient corroborative evidence of the promise of marriage is for the jury.\[21\]

sided together. Jeter v. State \[Tex. Cr.\] to marry her was refused as misleading. App.\] 20 Tex. Ct. Rep. 588, 106 SWV 371.

**12.** It was immaterial whether prosecutri statements to the mother when alone with knew she was pregnant or not. Kerr v. U. S. \[Ind. T.\] 104 SWV 809.

**13.** State v. Raynor, 145 N. C. 472, 59 SB 344.

**14.** Howe v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 152, 102 SWV 409.

**15.** Such testimony will not be excluded as not corroborative of the complaining witness. Esley v. State, 10 Ohio C. C. (N. S.) 169.

**16.** Conviction was under $ 7024. Word "term" as used in the statute was not intended to mean a definite period of time, but the time within which he continues to fill his engagement. Esley v. State, 10 Ohio C. C. (N. S.) 169.

**17.** Kerr v. U. S. \[Ind. T.\] 104 SWV 809.

**18.** Instruction was inapplicable to the case. Kerr v. U. S. \[Ind. T.\] 104 SWV 809.

**19.** Instructions on the trial for seduction that to constitute seduction it must appear that the carnal intercourse was accomplished by means of a prior promise to marry prosecutri, that she was an accomplice, and that defendant cannot be convicted on her testimony unless corroborated, are correct. How v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 152, 102 SWV 409. Instruction as to necesity of corroboration held sufficient. State v. Fogge, 206 Mo. 696, 105 SWV 618. A re-quested instruction that it was not sufficient corroboration of the testmony of prosecutri, to show that defendant had promised 1899, $ 930) provides that no person shall be 1632 SEQUESTRATION. 10 Cur. Law. Prosecutrix in a seduction case may have her baby with her while testifying.22 An instruction that "chastity" means "virtue" and that the woman must have been "chaste and virtuous" at the time she was seduced in order to justify a conviction is proper.23

Self-defense; Sentence; Separate Property; Separate Trials; Separation, see latest topical index.

**SEQUESTRATION.24a**

\_In New Jersey.--\_The statute of New Jersey provides that the rents and other receipt from lands held by a cemetery association may be sequestered and applied to judgments recovered against the association 24 and a court of chancery may appoint a receiver for such purpose.25

_In Texas.25_ * C. L. 1874--\_One not seeking to recover property purchased but to recover damages for defendant's failure to deliver the same is not entitled to sequestration.26 The statute provides that an officer retaining sequestered property shall receive compensation and reasonable charges therefor, to be taxed and collected as other costs,27 and, where plaintiff's right to possession of sequestered property is not disputed and no evidence is offered traversing the affidavit for the writ, he is entitled to the costs of the proceedings.28 Since sequestration is an ancillary writ, the sureties of a replenu bond may only attack defects in the affidavit and bond and errors in rendering judgment against them without condemning the principal.29 An interchange of letters in the name of the principal is not necessarily fatal to such bond 20 nor is the use of an improper connection between synonymous words in the affidavit.31

\_Damages for wrongful sequestration.\_See * C. L. 1875--\_A suit for damages for wrongfully suing out or levying a writ of sequestration may be brought in the county from which the writ issued, where the levy was made, or other county where any defendant resides.22 Exemplary damages will not be awarded where there was probable cause for suing out the writ of sequestration,23 and where malice, express or implied,

convicted of having carnal knowledge of any style of case and plaintiff's name was corfemale under promise of marriage unless the remedy stated in beginning and correctly signed by him, but in portion stating condition "Hulbert" was written instead of "Hurl- but," bond not rendered invalid thereby.

23. Kerr v. U. S. \[Ind. T.\] 104 SW SW 809.

01. See. also, Attachment, 9 C. L. 282; Re-

01. Under Act Mar. 21, 1881 (P. L. 1881, p. 158, Gen. St. p. 353, $ 18), where sale of entire tract unused for cemetery purposes, insufficient. Spear v. Locust Wood Cemetery Co. \[N. J. Eq.\] 66 A 1068.

01. Spear v. Locust Wood Cemetery Co. \[N. J. Eq.\] 64 A 1068.

01. Houston v. Booth \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 795, 107 SWP 887.

01. Where defendant is entitled to recover money paid shelf to regain possession of sequestered property, item should be taxed as costs and not determined by jury, under Rev. St. 1895, art. 4871. Hudolph v. Snyder \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 720, 106 SWP 763.

01. Rudolph v. Snyder \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 720, 106 SWP 763.

01. Sureties not parties to try title to property or liable to judgment unless judges ment went against principal. Wandelohar v. Grayson County Nat. Ek. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 270, 106 SWP 413, art. \[Tex.\] 20 Tex. Ct. Rep. 926, 108 SWP 1154.

01. Where caption in bond gave correct 10 Cur. Law. SET-OFF AND COUNTERCLAIM. 1628 is shown, evidence relating to injury to defendant's credit, loss of trade and customers, is admissible on the question of exemplary damages.\[84\]

Where judgment is for actual damages only, it will be presumed that evidence not relating to actual damages was not considered in arriving at a decision,\[85\] and hence, in such a case, all damages in excess of the actual damages are excessive.\[86\]

Where a vendor, retaining a lion on land sold, wrongfully sues out a writ of sequestration, the court should allow the purchaser credit on the unpaid notes for the value of the timber cut, and rent while the vendor was wrongfully in possession.\[87\]

\_In Louisiana.\_See * C. L. 1878--Since the court may ex officio direct the sequestration of property to protect the right of property,\[88\] sequestration is proper for wasting revenues thereof or other act rendering sequestration advisable in the interest of the owner.\[89\] The statute provides that any sequestration of real property whether judicial or otherwise, except in cases of failure, may be released by bond,\[40\] except that, in the case of joint owners as in the case of a partnership, the trial judge may in his discretion refuse to dissolve the writ on bond.\[41\]

There is no law or precedent for supplementing a writ of sequestration by a bill of discovery, or order on the defendant to deliver property disclosed by the evidence to be in his possession\[41\] since the defendant is under no legal obligation to produce property in order that it may be seized,\[43\] but it is the business of the officer to whom such writs are directed to find and seize the same.\[44\] A writ of sequestration, therefore, can be enforced only by the process of contempt issued in aid of the writ not directed to the defendant and not commanding him to do anything.\[45\] Even where the ownership has been adjudicated and the defendant ordered to deliver a specific object to the plaintiff, the writ of possession is the only mode of executing judgment,\[46\] and where the defendant conceals the object or carries it out of the jurisdiction of the court, the remedy is by action of damages or writ of distringas.\[47\]

Service, see latest topical index,

SET-OFF AND COUNTERCLAIM. 1624. 1624. 1624. 1624. 1624. 1624. 1625. 1626. 1626. 1627. 1628. 1628. 1628. 1629. 1629. 1629. 1629. 1630. 1640. 1650. 1666. 1670. 1680. 1681. 1682. 1683. 1684. 1685. 1686. 1687. 1688. 1688. 1689. 169. 169. 169. 169. 169. 169. 169. 169. 169. 169. 170. 171. 172. 173. 174. 175. 176. 1777. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 188. 187. 188. 188. 189. 189. 180. 181. 181. 182. 183. 184. 185. 186. 187. 188. 188. 189. 188. 189. 181. 189. 180. 182. 184. 186. 187. 188. 189. 181. 188. 189. 181. 183. 184. 185. 186. 187. 188. 188. 189. 189. 180. 181. 181. 182. 184. 187. 188. 189. 181. 189. 180. 182. 183. 184. 185. 186. 187. 188. 188. 189. 188. 189. 181. 189. 180. 181. 181. 182. 183. 184. 186. 187. 188. 189. 181. 188. 189. 181. 189. 180. 182. 184. 188. 189. 181. 183. 184. 185. 186. 187. 188. 189. 188. 189. 181. 189. 180. 181. 181. 182. 183. 184. 186. 188. 189. 181. 187. 188. 189. 181. 189. 181. 180. 182. 184. 188. 189. 181. 18 Set-off of judgments 44 and effect of failure to assert set-off 45 are elsewhere treated.

SS 1. _Nature and extent of right in general. Equitable set-off._ See 8 C. L. 1875. Courts of equity are particularly liberal, 50 in so far as consistent with the rights of third parties, in allowing set-offs to minimize loss from insolvency. 51 The right of set-off against the receiver of an insolvent corporation rests upon the receiver's right to settle debts and allow just set-offs under corporation acts, 52 and whether a set-off is just or not depends upon the contractual relations between the parties. 58 Mere

conresidence of plaintiff is not a ground for this sort of relief, 54 nor can unliquidated damages 58 or a claim which requires adjudication in a law court be set off in an equitable suit; 59 nor, where he has been compensated by the value of timber converted, has one evicted a claim for taxes paid 57 or for attorney's fees, 58 nor can un-presented claims be availed of; 59 but the mere fact that counterclaims might have been set up in a former suit does not bar the right to enforce them in a subsequent suit between the same parties. 50

_Statutory set-off and counterclaim._ See 8 C. L. 1876. The right to set-off and counterclaim is now in most states entirely statutory, and such statutes are to be strictly construed. 51 It is generally provided that a counterclaim or set-off must be either a cause of action arising out of the transaction set forth 52 in the complaint as a basis of plaintiff's claim 53 or connected with the subject of the action, 54 or in an action 54. See Judgments, 10 C. L. 467.

49. See Former: Adjudication, 9 C. L. 1422. Co. Citizen's Bk. of Greenville V. Kretsch-

ed by hegllent directors and judgment con-mar \[Miss.\] 44 S 820.

S1. Childers v. Jordan \[Va.\] 58 SE 563. Where one partner buys out another, assuming the indebtedness, and subsequently becomes insolvent, whereupon the retiring

there shall have been mutual dealing between partner pays the indebtedness on of a sum which he owes the insolvent, he is entitled

ment thereof the lawful demands of each party in equity to have the sum so paid applied

on his indebtedness. Id.

52. Not controlled by the statute of set-off.

State of the deceased person shall be in-Stone. V. New Jersey, etc., R. & Ferry Co.

\[N. J. Law\] 64 A 1072.

53. Loss covered by a mutual insurance company cannot be set off in an action by the receiver to recover assessments. To allow

bated. Cohn v. Carter \[Miss.\] 46 S 60. Other this would be a preterm of creditors.

provisions are that where an action is found-Stone v. New Jersey, etc., R. & Ferry Co.

\[N. J. Law\] 66 A 1072.

54. Where there is an agent within the state upon whom service might be made.

Plattner Implement Co. v. Bradley, Alderder-

son & Co. \[Colo.\] 90 P 86. Set-off, however,

dld not arise from the cause of action used

upon. Id.

55. Bramblett v. Shemp \[Ky.\] 108 SW 38.

01. Adjudication that an estate is liable on a claim. Ostheimer v. Single \[N. J. Eq.\] 68 A 281.

57, 58, Citizens' Bk. v. Jeansonne \[La.\]

45 S 87. In an action by an executor or administtor, claims are not available as set-off

which have not been presented for allowance.

Moore v. Gould, 51 C1 728, 91 F 616. But in

an action to foreclose a vendor's lien by

vendor's executor, equity-will permit defend-

ant to set off damages sustained from breach

of warranty though he has not lied his claim

therof against vendor's estate, since both

demands arise from the same transaction.

Crawford v. McDonald, 84 Ark. 623, 106 SWW 208.

on contract any other cause of action also on contract and existing at the commencement of the action,"88 and that it must tend to diminish or defeat plaintiff's recovery."89 Counterclaims will only be allowed to an amount equalling the plaintiff's demand." A statement of facts sufficient to constitute a cause of action is not alone sufficient,"89 nor is it sufficient to state a cause of action identical with plaintiff's." A statute extending the rights to set-off does not alter or modify a statute limiting the right of set-off, in an action against principal and surety, to cases in which the demand is due the principal."9 The right given by statute to plead, in mitigation of damages, liens which have been extinguished by conversion, is not affected by the statute defining matters which may be pleaded as counterclaims."11 In Alabama any demand capable of measurement in a legal sense by a pecuniary standard, not sounding in damages merely, may be set off against that claimed whether the action be ex contract or ex delicto."22 Suit upon an open account is not upon a certain demand,"8 and a counterclaim for unliquidated damages may be pleaded thereto."14

subcontractor against the contractor to re-

action on notes for money loaned, a claim

cover material left at the place of work, un-

for damages arising from plaintiff's false

der $ 5069, Rev. St. Ohio, 1906, since both

statements of the solvency of a partnership,

causes of action arise from the same trans-

by which defendant was induced to become

action. Baer v. Sleicher \[C. C. A.\] 153 F 129.

In an action to recover the price of goods

subject of the suit. Kirby's Dlg. $ 6098,

sold by defendant for plaintiff, defendant

cannot off set commissions due him under a

a suit to adjudge fraudulent certain shares

separate contract for purchasing goods for

of stock, etc., by a corporation, the latter

plaintiff, since this claim does not arise out

cannot plead in counterclaim that plaintiff

of the transactions sued upon and is not con-

holds funds in trust for it, this not being

needed with the subject of the suit.

quired by Code Civ. Proc. $ 86. Allen v.

$ 2656, St. 1898. Braham v. M. C. Gehl Co.

Hodge \[Ky.\] 106 SV 255. Where the subject.

matter of suit is the nonpayment of a claim,

dames caused by the method of enforcing

layered, defendant may set off unearned con-

payment cannot be set off. Vvalable

Pav. Co. v. Morgan Cont. Co., 120 App. Div.

488, 104 NYS 1118. $ 501, Code Civ. Proc. A

cause of action arising out of a modification

Ct. 52. But a cause of action arising out of a

of the contract sued upon is within such a

contract independent of the contract sued

provision where the original contract is the

foundation upon which both parties rely

for provision where it does not defeat or

recovery. Mills' Ann. Code, $ 57, subd. 1.

minish plaintiff's claim. MII's Ann. Code,

Bannerot v. McClure, 39 Colo. 472, 90 P 70.

$ 57, subd. 2. Bannerot v. McClure, 39 Colo,

64. This does not require that the connection

472, 90 P 70. Damages for breach of certain

tion exists at every point of the relief sought

covorant of lease may be set off in an action

by plaintiff. It is sufficient if the facts con-

sitting the counterclaim will defeat or

security for the performance of other condi-

diminish plaintiff's recovery and are such as

centile defendant to affirmative relief.

Code Civ. Proc. $ 601, subd. 2. Jacobowitz

lulau Paper Co. v. Patten Paper Co. \[Wis.\]

v. Strassbourger, 108 NYS 698. In an action

112 NWP 523. If connected with the subject

for conversion of a trust fund, defendant

of the action, it need not arise out of the

contract or transaction set forth in the

to himself in existence prior to the deposit

tion. Schubert v. State Banking & Trust

of the trust fund in the absence of any

Co., & Ohio N. P. (N. S.) 544. The subject of

plaintiff's action is his right and the invasion

of that right by the defendant. Braham v. M. C.

C. Gehl Co. \[Wis.\] 112 NWP 1097. A counter-

claim is "connected with the subject" of

plaintiff's suit and is available where in an

independent action on the affirmative defense

the facts of plaintiff's case would neces-

sarily be involved. Reynolds v. Dickson

\[Wasah\]. 93 S 910. In an action for resension

of sale of farm on cancellation of mort-

gage, defendant may set off damages for

nonpayment of incumbrance on farm and ask

for foreclosure of mortgage. Id. Claims

connected merely with the physical property

or with the relief involved in plaintiff's

action may not be counterclaims. Braham v

M. C. Gehl Co. \[Wis.\] 112 NWP 1097. In an

M. C. Gehl Co. \[Wis.\] 112 NWP 1097. In an action on

## 1686 SET-OFF AND COUNTERCLAIM SS 2.

10 Cur. Law.

\_Recoupment.\_See * C. L. 1878--Recoupment is entirely unlike set-off which is in the nature of a cross action and may rest on an independent demand where it does not sound in damages merely.\[75\] It is also to be distinguished from failure of consideration \[76\] which may be shown under a plea of nonassumpsit.\[77\] Damages which may be recouped are only those which flow from the identical contract breached," and the contract for a breach of which damages are asked in recoupment must arise from or be related to the very contract or transaction sued upon.\[78\] A special plea of recoupment is good as a notice of recoupment if it in fact notifies plaintiff of the claim \[80\] though not filed until the first day of the trial.\[81\]

SS 2. \_To be available as a set-off or counterclaim, a demand must, ordinarily, have been a vested and subsisting cause of action at the time of the commencement of plaintiff's suit.\[See * C. L. 1878--A claim which cannot be adjudicated until the happening of a future event is not a subject of set-off.\[82\] Nor is an unliquidated demand, the amount of which must be determined in another proceeding.\[83\] Set-off against an insolvent will be allowed if it was due when the creditor's rights attached whether the debt sued on was due at the same time or matured subsequently.\[84\]

SS 3. _Demands must be mutual, and the parties must stand in the same right and capacity.\[85\]_--The cause of action alleged in a counterclaim must exist in favor of the defendant who pleads it \[88\] and against the plaintiff," though, in an action by

Bank of Attalla \[Ala.\] 45 S 219. A claim

for conversion of chatels by plaintiff may

be set off in an action for the conversion of other chatels. Id.

73. Suit upon an open account is not upon

a certain demand within Rev. St. 1895, art.

754, providing that when plaintiff's suit is on

a certain demand defendant shall not be permitted to set off an uncertain demand found

ed on tort or breach of covenant. Hallinan

v. Levytransky \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 479, 102 SW 463.

74. Hallinan, V. Levytransky \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 479, 102 SW 463. Verification of the account does not make it a certain demand. Id.

01. Dalton v. Bunn \[Ala.\] 44 S 625.

01. In an action on notes given for the purchase price of a saloon and for the rent of a saloon and the privilege of re-renting, a plea alleging damage from plaintiff's failure to accord such privilege sets up failure of consideration and not recoupment. McClanahan v. Caul \[V. Va.\] 60 SE 382.

01. McClanahan v. Caul \[V. Va.\] 60 SE 382.

01. Gem Knitting Mills v. Empire Print. & Box Co. \[Ga.App.\] 60 SE 386. So where there are several shipments of goods, each under a separate contract, damage from delay in one cannot be set off in an action for the purchase price of another. Id. Overpayments may be recouped in an action to recover wages. Wiseberg v. Novelty Hat Mfg. Co. \[Ga. App.\] 59 SE 1112.

01. A plea which fails to state facts showing this is demurrable. Dalton v. Bunn \[Ala.\] 44 S 625.

01. McClanahan v. Caul \[V. Va.\] 60 SE 382.

01. Since the time of notice required is not specified and plaintiff, if surprised, may have a continuance. McClanahan v. Caul \[V. Va.\] 60 SE 382.

01. In dover proceeding, a claim against the estate cannot be set off before final ad 10 Cur. Law. SET-OFF AND COUNTERCLAIM SS 4. 1627 an assignee, defendant may avail himself of any defense he might have against the assignor," and in an action by undisclosed principal he may set-off any claim he may have against the agent." It is the duty of a personal representative to avail himself of any counterclaim existing in favor of the testator." Though a counterclaim exceeds plaintiff's demand, judgment for such excess may not be had in certain cases." The rule that mutual obligations for the payment of money cancel each other is not altered by the insolvency of either party."

SS 4. \_To admit of set-off or counterclaim the main action must be similar in form and remedy to that required for the other.\_See 5. C. L. 1879--A claim in contract will not off-set one in tort," nor will unliquidated damages, sounding either in tort" or breach of covenant," be set-off in an action ex contractu, unless both causes of action arise out of or are incident to the same transaction." A claim is liquidated whenever the amount thereof is agreed upon by the parties or fixed by operation of law." Damages incapable of liquidation " are never matter of set-off " unless counterclaim against a husband is not avail- signors were insolvent at the time of the assignment. Id. the husband is made a party. Campbell v. Kerns, 13 Idaho, 287, 90 P 108. Nor can a contract sued upon. Durant Lumber Co. v. claim be set off against a partnership which is not against the firm. Clevenger v. Gal-loway \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 858, 104 SW 914. In an action against a shellf" for damages for wrongful sale of property, he cannot set off the amount realized on the caused by a mortgagee occurring both prior and subsequent to mortgagee. If d. party to the suit. The judgment creditor's be set off against the mortgage. Id. rights cannot be interposed, he not being a party to the suit. State v. Dickman, 124 Mo. App. 658, 102 SW 44. But in an action for the purchase price of ties, conversion of them by a third party who claimed title is a proper matter of set-off, since the demand is directly connected with the subject-matter of the action. Hall v. Ayer & Lord Tie Co., 91 Ksy. L. R. 508, 102 SW 867. 988. Durant Lumber Co. v. Sinclair Lumber \[c\]. Action for astigness would be entitled to upon the war-goda sold by one who has filled orders taken by his predecessor in business. Id. Maker of notes may set off liability incurred as indorser of payee when used by assigne of notes. Craighead v. Swartz \[Pa.\] 67 A 100%. In suit on a promisory note by a holder with notice against the maker, the latter may set off any claim against the payee to the extent of the amount due on the note which is in any way connected with the debt used on or the transaction from which it is sprung. Civ. Code 1895, 11 3750, 4944. Butler v. Mitchell, 128 Ga. 431, 57 SE 784. And if the holder is the receiver of an insolvent purchase price of timber, damage arising bank against which defendant also has a claim, and there is an issue as to the bona dides of the holder, and it is rendered doubtful whether defendant will be able to set off the demand against the payee, he may plead both demands by way of counterclaim (Id.). But defendant cannot set off claims against the assignor which he has bought after no- or, though the may set off claims bought up against the assignee. Bramblett v. Slemp \[Ky.\] 108 SW 339. Nor, in an action by assignees to enforce a judgment for the price of land, can defendant's and off set unliquidated damages arising from trespass to the land by the assignors. But defendant cannot set off claims against the assignor which he has bought after no- or, though the may set off claims bought up against the assignee. Bramblett v. Slemp \[Ky.\] 108 SW 339. Nor, in an action by assignees to enforce a judgment for the price of land, can defendant out off set unliquidated damages arising from trespass to the land by the assignors.

1628 SET-OFF AND CONUTERCLAIM SS 5. 10 Cur. Law. the parties have agreed that they shall be,1 nor are vague and speculative damages.\* In an action on contract, damages arising from its breach may be counterclaimed,\* as may any demand, usually growing out of the transaction sued upon; * and, on the other hand, to be a subject of set-off or counterclaim, the demand must arise from the transaction sued upon or be connected therewith,5 though a bank may set-off a matured claim due it from a customer against his general deposit.\* A claim resting in parol may be set-off in a proceeding by scire facias on a mortgage,7 and two distinct causes of action may compensate each other when consolidated.8 While it has been held that a counterclaim is not a defense which defeats a cause of action, although it may defeat recovery by way of recoupment,9 it has also been held that it may be a defense, and the fact that it is one is no objection to its being used as a counterclaim.10 Set-off lies for overpayments,11 and one claim sounding in tort off-sets another when coincident to it.12

Footnote 10: The fact that there was a parol agreement of the same argument as the one of the parties, but it was not clear that the parties have agreed that they shall be,1 nor are vague and speculative damages.\* In an action on contract, damages arising from its breach may be counterclaimed,\* as may any demand, usually growing out of the transaction sued upon; * and, on the other hand, to be a subject of set-off or counterclaim, the demand must arise from the transaction sued upon or be connected therewith,5 though a bank may set-off a matured claim due it from a customer against his general deposit.

of action in favor of the party alleging it \[14\], and is governed as to its sufficiency by the same rules as govern the averments of a declaration \[18\]. While it has been held unnecessary to repeat in each counterexample all the facts necessary to make it complete \[16\], other courts hold that a counterclaim must be complete in itself and that a reference to matter pleaded elsewhere in the same pleading is not sufficient \[17\], and where a plea of counterclaim is entirely dependent upon a preceding paragraph which is stricken, it is properly disposed of in the same manner \[18\]; it should also be stricken when fully covered by another plea \[19\]. More recitals or conclusions are insufficient \[20\]. Where both motion and demurrer are urged against a counterclaim, it is immaterial by which it is disposed of \[21\]. Strict rules of pleading do not apply to defense by way of set-off \[22\], though, where a statute requires a statement of the items of set-off to be filed with the plea, the statement is essential \[23\], and the plea cannot be amended by filing the statement after the cause is at trial \[24\]. However, a defective affidavit of defense may be cured by a supplemental one \[25\]. Error in overruling a demurrer to a counterclaim is waived by answering to the merits \[26\], while by moving for an instructed verdict and obtaining a favorable ruling, defendant waives his counterclaim \[27\]. A counterclaim, defective in that it does not arise out of the transaction sued upon, may become available by the admission without objection, of testimony in its support \[28\]. Under a statute authorizing the court to allow distinct causes of action between the same parties to be consolidated in one suit \[29\], plaintiff, after abandoning his cause of action to which set-off has been interposed, may be permitted on motion to reinstate his complaint \[30\], and plaintiff will be credited with the amount due him on a contract which is a part of defendant's counterclaim, though not al leged in his complaint.\[81\] Judgment on a counterclaim will not be given without a trial merely because plaintiff has withdrawn his complaint,\[22\] and the withdrawal does not oust the court of jurisdiction to try the issues raised by the counterclaim.\[83\] A counterclaim may be docked as a separate cause of action.\[34\] Defendant, in an action by the state, may maintain a counterclaim, though he could not have set it up as an original cause of action, for the reason that a citizen cannot sue the state without its consent.\[35\] One is not obliged to plead his counterclaim, but may reserve it for a cross action.\[36\] Any claim arising from failure to charge an indorser must be asserted either in an independent action or by way of counterclaim.\[37\] One pleading an assigned claim as set-off should allege ownership thereof.\[38\] Where cross complaints have been abolished, the designation of a counterclaim as such is not material when not misleading.\[39\] The appellate court will not qualify or limit defendant's proof or define the extent of the counterclaim.\[40\] Whether a demand is liquidated so as to bar the off-set of an unliquidated demand must be determined from the petition alone.\[41\] The rule that a demurrer reaches the first bad pleading does not apply to a demurrer to a counterclaim.\[42\]

\_Jurisdiction.--\_The district court has jurisdiction to determine the cause of action set up in the counterclaim.\[43\]

_Evidence.\[See & C. L. 1882_

_Instructions.\[See & C. L. 1448_

_Limitations.\[See & C. L. 1449_

_The claim may be barred by the statute of limitations,\[44\] hence, an off-set based on the conversion of property is barred in two years,\[45\] but in an action of accounting, a counterclaim which accrued during the period for which an account is ordered is not barred by the statute of limitations.\[46\] A counterclaim may be set up by an amendment to the answer after a judgment in defendant's favor has been reversed and the cause remanded for a new trial.\[47\]_

Settlement of Case; Settlement; Severeance of Actions, see latest topical Index.

32. Balleisen v. Schiff, 121 App. Div. 285,

105 NYS 692.

33. Balleisen v. Schiff, 121 App. Div. 285,

105 NYS 692.

In an action involving title to real estate when defendant alleges affirmative matter and title in himself, plaintiff

can not nonsuit. Gray v. Granger \[Wash.\]

93 P 912.

84. Thereby jurisdiction may be obtained over a nonresident who is plaintiff in the original action. $ 5089, Rev. St. Ohio, 1906.

Bater v. Sleicher \[C. C. A.\] 163 F 129.

35. Commonwealth v. Barker, 31 Ky. L. R.

648, 103 SWW 303.

36. Schubert v. State Banking & Trust Co., 6 Ohio N. P. (N. S.) 544. When this is done,

$ 817, 818, Code Civ. Proc., does not authorize consolidating the actions since the plaintiffs are not the same. Miller v. Ballard,

108 NYS 973. And the rule that defendant cannot recover his costs in such cross action does not apply where he had no notice of the original action. Schubert v. State Banking & Trust Co., 6 Ohio N. P. (N. S.) 544.

37. Not by vacation of judgment. Schubert v. State Banking & Trust Co., 6 Ohio N. P. (N. S.) 544.

01. Bramblett v. Slemp \[Ky.\] 108 SWW 39.

01. Merrill v. Hexter \[Or.\] 94 P 972.

01. Miller Pulp & Paper Co. v. Bratt, 119 App. Div. 684, 104 NYS 350.

01. Brooks Tire Mach Co. v. Shields \[Tex. Civ. App.\] 108 SWW 1005.

01. Aetna Lifte Ins. Co. v. North Star Mines Co., 56 Misc. 164, 107 NYS 140.

01. That a probate court has no jurisdiction to determine matters pleaded in coun-terclaim is no objection to such a plea in an action in a district court against excem-tor for the establishment of a claim.

Iowa-Minnesota Land Co. v. Conner \[Towa\] 112 NW 820.

44. In an action to foreclose a mortrage, claims for attorney'e fees and for goods sold and delivered, are not such cross demands as compensate the mortgage debt pro tanto, under $ 440, Code Civ. Proc., and when barred by the statute of limitations are unavailable. Moore v. Gould, 151 Cal.

728, 91 P 616. See Code Civ. Proc. $ 438,

subd. 2.

45. Clevenger v. Galloway \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 858, 104 SWW 914.

01. Code Civ. Proc. $ 440. Dillon V. Cross,

6 Cal. App. 766, 91 P 439; Elliott v. Philipal Farmers' Bk., 61 W. Va. 641, 5 * \[10\] Cur. Law. SEWERS AND DRAINS SS 2. 1631

ests, the taking of property for private purposes,\[54\] nor changing the channel nor diverting the flow of running streams or natural surface drains for the purpose of relieving riparian proprietors lower down the stream from periodical overflows.\[65\]

A sanitary or drainage district generally has power to acquire lands and rights of way.\[56\] In Illinois a drainage district should condemn property under the Eminent Domain Act, and may do so independently of any provision of the act under which it was created.\[67\]

Under some statutes the power and duty to lay out, make, maintain, and repair common sewers in a city is vested in the city council,\[88\] and where such is the case, necessity of a sewer improvement is a question for the discretion of the council in the exercise not only of the taxing power, but also of the police power delegated to it by the code,\[59\] and its decision is conclusive upon the people \[60\] and is not exhausted by the establishment of districts and the partial construction of sewers in a district as provided for by a plan for sewers therein.\[41\] Some states hold that such power, where expressly vested by statute in a designated body, cannot be delegated \[62\] A city, however, is not under obligation to provide a system of sewerage sufficient to carry off surface water.\[63\] In Kansas a city of the second class has control of the alleys therein and may extend sewers thereunder.\[64\]

SS 3. _Independent organizations controlling drainage, reclamation, and sanitation._ See 8 C. L.\[88\]--Drainage statutes commonly provide for the establishment of drainage, reclamation, or sanitation districts to which are entrusted the construction of drains and the reclamation of waste lands.\[65\]

**54.** Phrase "with view to promote interest of said drainage district" used in Laws 1907, University v. Wilmette, 230 Ill. 80, 82 NE 615, c. 153, relative to duties of county commis-sioners in establishing district, means.pub-life interest and not private advantage to be gained by any property owner. State v. Hanson \[Neb.\] 115 NW 294.

65. Laws 1881, p. 236, c. 51. Campbell v. Youngson \[Neb.\] 114 NW 415.

01. May acquire lands upon which to erect embankments to prevent damage to lands not taken. Sanitary Dist. Chicago v. Martin, 129 Ill. App. 308. Drainage and levee district is clothed with power of eminent domain. Smith v. Claussen Park Drainage & Levee Dist., 229 Ill. 165, 82 NE 728. Where drainage commissioner fails to obtain right of way from landowner for improvement of ditch, he is justified in proceeding to compel improvement in accordance with Comp. Laws, **SS 4322**, 4325\*\*, 4326. Patterson v. Mead, 148 Mich. 659, 14 Det. Leg. N. 326, 112 NW 742.

01. Provisions of the drainage act for taking of land thementor held unconstitutional City of Joliet v. Spring Creek Drainage Dist., 222 Ill., 441, 78 NE 886.

01. Gogoin v. Lewington \[Me.\] 68 A 594. Legislature may confer authority on municipalities for creation and maintenance of severage system. Anderson v. Lower Merion Tp., 217 Pa. 369, 66 A 111K. Kentucky statute provides that board of council in cities of fourth class shall have power within city to construct and maintain sewers without limitation, except as to amount of indebtedness that may be incurred. Tipton v. Shelbyville \[Ixy.\] 107 SWV 810. Fact that village is connected with sanitary district of Chicago does not deprive it of right to construct relief sewers where It appears that it will take many years before benefits of sanitary district will be available to it. Gage v. Wil 10 Cur. Law. SEWERS AND DRANIS $ 4. 1633

\_Organization and officers.See $ c. L. 1884.--The proceeding for the formation of such a drainage district is sometimes considered analogous to a civil action in equity.See Such a drainage district is not considered such a legal entity as to be a proper party to a suit." Under the Michigan statute, where a drain commissioner is disqualified, a special county drain commissioner must be appointed to act in his stead.See In Illinois, upon the organization of a drainage district, the highway commissioners become vested with the powers of drainage commissioners.See The fact that a drainage district organized under the levee act was previous to its organization under that act illegally created does not give ground for ouster.To Under the act of providing for drainage for agricultural and sanitary purposes, a district comprising two or more towns is illegally organized,71 but the legality of the organization of a drainage district cannot be questioned in condemning proceedings instituted by it.72

Under a statute requiring the town clerk to keep a record of the proceedings of drainage commissioners,73 the record of the proceedings of the town commissioners kept by the town clerk constitutes the only lawful evidence of the acts referred to, and may not be contradicted or supplemented by parol.73

\_Limitation of drainage districts.See $ c. L. 1880.--In some states a drainage district may include a portion of a city not organized as any part of a district for drainage purposes,73 but in Nevada it may not include a railroad company's right of way, depot grounds, and appurtenances.74 In the latter state the establishment of the boundaries of a proposed drainage district is prima facie evidence that the county commissioners proceeded regularly in the establishment thereof, and that all conditions precedent have been complied with.75

_Combined systems.See $ c. L. 1885.--Watercourses which empty one into another and that one into a third are not separate watercourses within the meaning of the statutes relating to the construction or improvement of public ditches, and may be joined in one improvement.75_

\*\*SS 4. \_Procedure in authorization and construction of sewers and drains.See $ c. L. 1885.--These proceedings being based entirely on statute must be in strict conformity

thorizes creation of drainage districts for purpose of draining "margin or swamp lands," by county authorities, Campbell V. Youngson (Neb.) 114 NW 415. Legislature may validly authorize creation of subdistricts for purpose of making additional ditches for benefit of lands inadequately drained, and provide for organization of drainage districts. Dewell v. Comrs Shv Island Levee Drainage Dist., 232 Ill., 215, 83 NNE 811. Act (e. 215, p. 306, Laws 1905) authorizes the formation of districts to include lands subject to injury and damage from overflow as well as lands subject to actual overflow. Roby v. Shungsa-nunga Drainage Dist. \[Kan.\] 95 P 399. Levee constructed by reclamation district on right of way procured for that purpose is part of works and is public property acquired by the state for state purposes. Reclamation Dist. No. 551 v. Superior Ct. of Saeramento Country, 151 Cal. 263, 90 P 545.

66. Confirmation of commissioners report in the one is analogous to announcement of court's findings in the other as regards termination of rights of petlicomers to withdraw from such proceedings and cause its discontinuance. In re Central Drainage Dist. \[Wis.\] 113 NW 675.

01. Gish V. Castner-Williams & Askland DraImage Dist. \[Lowal\] 113 N. W. 757.

10 Curr. L. --103,

\_Organization and officers.See $ c. L. 1884.--The proceeding for the formation of such a drainage district is sometimes considered analogous to a civil action in equity.See Such a drainage district is not considered such a legal entity as to be a proper party to a suit.74 Under the Michigan statute, where a drain commissioner is disqualified, a special county drain commissioner must be appointed to act in his stead.See In Illinois, upon the organization of a drainage district, the highway commissioners become vested with the powers of drainage commissioners.See The fact that a drainage district organized under the levee act was previous to its organization under that act illegally created does not give ground for ouster.74 Under the act of providing for drainage for agricultural and sanitary purposes, a district comprising two or more towns is illegally organized,71 but the legality of the organization of a drainage district cannot be questioned in condemning proceedings instituted by it.72

Footnote 74: See $ c. L. 1885.--In some states a drainage district may include a portion of a city not organized as any part of a district for drainage purposes,75 but in Nevada it may not include a railroad company's right of way, depot grounds, and appurtenances.74 In the latter state the establishment of the boundaries of a proposed drainage district is prima facie evidence that the county commissioners proceeded regularly in the establishment thereof, and that all conditions precedent have been complied with.75

Footnote 75: See $ c. L. 1885.--Watercourses which empty one into another and that one into a third are not separate watercourses within the meaning of the statutes relating to the construction or improvement of public ditches, and may be joined in one improvement.76

Footnote 76: See $ c. L. 1885.--These proceedings being based entirely on statute must be in strict conformity

Footnote 77: See $ c. L. 1885.--The proceedings being based entirely on statute must be in strict conformity

68. Under Pub. Acts 1901, p. 41, No. 27, purpose of drafting "margin or swamp lands," by county authorities, Campbell V. Youngson (Neb.) 114 NW 415. Legislature may validly authorize creation of subdistricts for purpose of thereto, at least as to all substantial matters." There being no common-law right to construct drains over the lands of others," the repeal of a statute authorizing the establishment of a ditch destroys pending causes not already merged in judgment, unless they fall within some saving provision contained in the repealing act." The provisions of the civil code of Indiana are to be resorted to to supply omissions in the drainage statutes," and the rules of practice prescribed thereby are applicable to proceedings to establish drains."

\_Due process of law; notice.\_See * C. L. 1888--A drainage board has no authority to destroy private property without due process of law." Notice to the persons whose property is to be affected in substantial compliance with the statute, and sufficient to constitute due process, is essential " except in certain cases." Otherwise, there is a taking of property without due process of law." The Oklahoma act is not unconstitutional in not providing for notice of construction to property holders other than the notice imparted by the passing of the ordinance, and other proceedings designated in the act." In Illinois the notice may be made returnable on any day far enough in the future to permit the statutory notice' to be given prior thereto." The Michigan statute requiring notice to be given nonresidents of the time and place of letting contracts for the construction of drains " does not require personal service of citation " upon them. Persons liable to be assessed under the drainage laws but whose

\*\*79.\*\*Gable v. Deal, 150 Mich. 430, 14 Det. * to be taken as part of entire chapter apply-Leg. N. 734, 114 NWF 214. Proceedings re-quired by Acts 1901, p. 402, c. 179, $ 3, as to * such matters. McCaeslin v. Perrysburg, * survey and report of engineer to town board of proposed sewer to be constructed by incorporated town, are jurisdictional, and * so muchance renders void subsequent action of board relating thereto. Leibole v. Trauger \[Ind. App.\] 83 NE 781. Ordinance providing for sewer to carry surface water into Lake Michigan is not contrary to spirit of Sanitary District Act. It appearing that sever is so constructed that it can be connected with Sanitary District Channel when completed. Gage v. Wilmette, 230 Ill. 428, 82 NE 656. * so, Hart v. Scott, 168 Ind. 530, 81 NE 481; Kline v. Hagey \[Ind.\] 81 NE 209. * sl. Jaqua v. Harkins, 40 Ind. App. 639, 82 NE 920. Under Acts 1905, p. 456, c. 157, re-paling all prior laws on drainage, but providing that pending proceedings shall not be affected, where there is no attempt to, or which will not lower or affect any lake or body of water that does not exceed ten acres of surface at high-water mark, where proposed drainage did not affect any lake, proceedings, though not having progressed to final judgment when the act took effect, were not annulled. Kline v. Hagey \[Ind.\] 81 NE 209. * sl. Hart v. Scott, 168 Ind. 530, 81 NE 481. * sl. Clarkson v. Wood, 168 Ind. 582, 81 NE 572. * sl. Mandatory injunction issued, ex parte, commanding such destruction by owner, or in default his action by sheinf, within 24 hours, is not due process of law. Board of Co-rs of Petite Anne Drainage Dist. v. Iberla, etc., R. Co., 117 Las. 940, 42 S 433. Sections 4483 and 4484, providing procedure for petitioning by municipality, through its mayor, for improvement of county ditch lying partly within municipal limits, is not unconstitutional for failure to provide for notice to property owners, or for appeal, or for jury, inasmuch as these sections are lands are not traversed thereby have no constitutional right to be heard upon the necessity for the drain and consequently need not be notified."

Notice of drainage proceedings being given to the proper township, the court may adjudicate both matter of benefits and damages to highways affected." Notice to a property owner within the district is sufficient to apprise him that his property is to be assessed, where the description embodied in the notice embraces the entire district in which his property is located."

_Petition or application._ See s c. L. 1858--Under special statutes a petition is not a prerequisite to the laying out of a sewer, the city council having power to act of its own motion."

In Illinois the certificate of the filing of the petition should be signed by the clerk of the county court." The description of land together with the map attached thereto should be at least sufficient to enable a surveyor to locate it definitely," but the failure of the petition to sufficiently state the purpose of the proposed work does not go to the jurisdiction of the court and does not give basis for quo warranto proceedings." A petition for constructing additional drains must show the character and location of the improvement with sufficient definiteness so that objecting land owners can ascertain what property will be taken," and the plans and specifications should be sufficient to enable jury to determine the damage to land not taken." It is unnecessary, however, in this state to file plats and profiles in a proceeding to levy an additional assessment to complete an improvement originally proposed."

The statutes of Michigan require an application for locating and establishment of a drain to be signed by not less than ten freeholders of the township or townships in which the drain or the lands to be drained are located," but the fact that some of the freeholders signed the application under a misapprehension of its effect, where that fact does not appear on the face of the paper, does not render it ineffective to confer jurisdiction upon the commissioner." An application which gives a general description of the begininng, the route, and the terminus of a drain is sufficient."

It is not within the spirit of the drainage law of Iowa that the petition filed contain an accurate description of the lands to be affected, and that no less and no more can be selected to constitute the district." In Ohio petitioners for the im provement of a public ditch may become sureties on the bond for payment of costs which it is required shall be filed with the petition, and the failure of the county auditor to endorse his approval on such a bond is immaterial, where a bond properly executed was filed with him for approval, and he identifies it as the bond then on file, and testifies that he did approve it.' Under the Oklahoma act, a general sewer system may be established and the construction of sewer districts proceeded with when necessary, without a petition by a majority of the resident property holders." Under the Indiana statute, after the dismissal or withdrawal of the only petitioners for a drain, who own land benefited outside the city limits, the remaining petitioners cannot maintain the proceedings."

The Wisconsin statute provides for the withdrawal of a petitioner before final action \[10\] but does not prescribe the practice to be followed in all details,\[11\] but the right to withdraw after the filing of the commissioner's report, merely because of his having changed his mind, is subject to payment of costs incurred up to the time of such withdrawal, if such withdrawal renders a dismissal of the proceedings necessary.\[12\] Under the Michigan statute freeholders who have signed an application for the improvement of a township drain, and launched the proceeding, cannot discontinue it by protesting against the taking of further steps therein.\[18\]

\_Remonstrances.\_See & C. L. \[187\]--A remonstrance which is sufficient to tender an issue is subject to amendment after expiration of statutory period for filing.\[14\] Under the Indiana statute, where the benefits to a highway are to be assessed to the proper township, such township is a proper party to the proceedings, but a county is not a landowner within the statute.\[18\] Under the Minnesota statute the right to be heard in proceedings for the establishment of a county ditch is not confined to those who are strictly parties, but extends to landowners with a well grounded claim for damages, though it may not certainly appear that such damages are recoverable at law,\[18\] and landowners not served with notice or named in drainage proceedings and whose lands are not referred to therein, and demonstrating on ground that water would be brought in damaging quantities on premises, are not restricted to an appeal from the determination of the board to proceed with construction,\[17\] nor is certiorari the only alternate remedy.\[18\] Jurisdiction to order the construction of a drain is acquired by

Vista County Sup'rs \[Iowa\] 114 N NVV 51. Un-

der Acts 30th Gen. Assem. (Laws 1904, p. 61)

c. 68, $ 2, petition is mere preliminary paper and need not be exact with respect to land to be benefited by improvements. Id. Landowners held esotyped to claim inclusion of their lands was without authority of law because not mentioned or described in petition, Mackay v. Hancock County \[Iowa\] 114 N NVV 552.

7. Anderson v. Hicksville, 4 Ohio N. P. (N. S.) 545.

1. Mayor and city council have authority to go proceed. Sess. Laws 1903, art, 1, c. 6, p. 93. City of Perry v. Davis, 18 Okl. 427, 90 P 865.

1. Burns' Ann. St. 1901, $ 5623, as amended by act March 10, 1903 (Acts 1908, p. 594, c. 222). Ownership of outside lands is requisite to court's jurisdiction. Pavev v. Bradock \[Ind.\] 84 NNE S.

1. Chapter 54, St. 1894, authorizes withdrawal before approval of petition as warranting appointing of commissioners and thereafter, until final decision upon commissioner's report, qualified right to withdraw analogous to that of complainal in civil action in equality to dismiss bill. In re Central Drainage Dist. \[Wis.\] 113 NWV 675.

the filing of a petition of the requisite number of landowners and an order of the drainage board establishing the drain after a hearing on the petition upon due notice to all concerned,\[19\] and where jurisdiction is so acquired and the board of drain commissioners has taken action thereunder, it cannot be divested of jurisdiction by action of petitioners in withdrawing their names from the petition.\[20\]

\_Report of viewers or commissioners.\_See & C. L. \[188\].--Under the Ohio acts the county commissioners may locate a ditch substantially along the line of the channel of or adjacent to or in the valley of a living stream or watercourse, though they have no power to convert a living stream of water into a ditch by proceedings for the location and construction of a ditch.\[21\] The viewers are given thirty days from the time of their appointment to act and report and are not limited to thirty days from the filing of the petition.\[22\] It is not contemplated that the commissioners shall actually set foot on the whole line of the ditch, but that they will at the beginning of the improvement hear the complaints of the persons affected and thereafter view the line of the ditch in such a manner that they will understand the situation and can determine the necessity of the improvement and make a proper apportionment of the costs.\[28\] Under the Iowa statute it is improper for the engineer's return to include all lands within the watershed to be drained without showing which will be particularly benefited.\[24\] In Iowa it is discretionary with the board of supervisors to refuse to order an improvement where the cost of construction and the amount of damages are more than should be borne by the land.\[28\]

\_Order, ordinance, or resolution for work.\[28\]_e_ C. L. \[188\].--Sewers in incorporated cities can only be constructed in pursuance of an ordinance passed by the council for that purpose.\[29\] An order that a sewer on a designated street be continued to a designated street is sufficiently definite as to the termini.\[27\] A sewer district is not charged by a reference in the resolution of necessity to a part of the territory only, leaving the remainder for future description and improvement.\[28\]

A drainage district ordinance should describe the drainage district.\[29\] A variance between the resolution and the ordinance in that the former did not and the latter did create and describe a drainage district is immaterial, the statute not requiring that the former do so.\[30\] The fact that the ordinance provides that the work shall be done under the supervision of and to the satisfaction of a designated board does not render it invalid,\[31\] nor does the fact that a member of the board of drainage commissioners owns land in the drainage district benefited by the drain render the proceedings in which he participated void as fraudulent.\[32\] A provision allowing an appeal from the order of county commissioners requiring the construction of a drain by land owners who are benefited is not invalid as devolving legislative functions on a judicial tribunal.\[33\]

\_Validity and performance of contracts.\_See & C. L. \[188\].--These subjects are con-

**19, 20.** Sim v. Rosholt \[N. D.\] 112 NW 50. \[26.\] **26.** Whltworth v. Webb City, 204 Mo. 579, 21. Mason v. Fulton County Com'rs, 10 103 SVV 86. \[27.\] **27.** Gogolin v. Lewiston \[Me.\] 68 A 694. \[28.\] **28.** King v. Dayton, 10 Ohio C. C. (N. S.) \[52.\] **29.** Description held sufficient. Gage v. Wilmette, 230 Ill. 428, 82 NE 656; Northwestern University v. Wilmette, 230 Ill. 80, 82 NE 615. \[30.\] **30.** MacChesney v. Chicago, 227 Ill. 215, 81 NE 410. \[31.\] **31.** Northwestern University v. Wilmette, 230 Ill. 80, 82 NE 615. \[32.\] **32.** State v. Fisk, 15 N. D. 219, 107 NW 191. \[33.\] **33.** Kansas county drainage act (Gen. St. \[1001; 13 2251-2566).\] **33.** Stress v. Gibson \[Kan.\] **34.** **35.** Stress v. Gibson \[Kan.\] \*\*35.

trolled largely by the general rules governing public contracts "4 and public works and improvements.\[35\] Provisions in a statute that the engineer in his report of survey and specifications on which contracts are let shall specify the date for completion of the work does not preclude the letting of contracts after such time.\[36\]

\_Defects and irregularities in general.\_See 6 C. L. 1889--A radical departure by the engineer and county commissioners from the line of a public ditch as demanded by the petition may render the order of the commissioners laying out the ditch and all subsequent proceedings entirely void.\[37\] As to what is a sufficient filing of a plat or schedule for the construction of a sewer, see notes.\[38\] It is not error for a probate court to refuse to send the jury in a ditch improvement proceeding back for a second view of the proposed outlet, though opposing landowners were not satisfied with the first view.\[39\] Where the record made by the council of proceedings showed that the sewer was petitioned for as required by statute the proceedings were not defective because such fact was not also shown in the record of the resolution or because the resolution itself did not refer to the petition.\[40\]

\_Waiver of irregularities.\[35\]\_See 6 C. L. 1889--One who had notice of drainage proceedings and was present during the construction of the improvement is astopped from questioning the constitutionality of the statute under which the proceeding was instituted.\[41\] The failure of county commissioners to find affirmatively and enter upon their docket that a ditch improvement is conducive to the public health, convenience and welfare is an irregularity that may be disregarded or cured, and is not necessarily fatal to the validity of the proceedings.\[42\]

\_Attack on proceedings.\[35\]\_See 6 C. L. 1889--In proceedings to establish a drain, an aggrieved landowner must follow the remedy prescribed by statute.\[48\] Where the proceedings are regular upon their face, the burden is upon the objectors to show their invalidity.\[44\] A party will not be allowed to object to construction of drains on the ground that no right of way therefor has been or can be acquired in the absence of a showing that his property has been or will be taken.\[45\] An individual tax-paper of an unincorporated village having no solicitor cannot bring action in his own name solely on behalf of the municipality and against the county commissioners to restrain them from proceeding under provisions for the improvement of a county

**34. See Public Contracts, 10 C. L. 1885.**

**35. See Public Works and Improvements, 10 C. L. 1807.**

**36. Where contracts were so let and the work completed in accordance with terms and approved by the engineer without objection, a county could not avoid payment on the ground that the letting was illegal.**

**Interstate Drainage & Inv. Co. V. Freeborn County Comrs (IC. A.) 158 F. 270.**

**37. Where petition under $ 3, e. 258, p. 414, Laws 1901, as amended by Laws 1902, p. 90, c. 38, calls for laying out of public ditch and desinmates source and proper outlet, engineer and commissioners have no authority to abandon terminus as petitioned and establish same upon land of private owner.**

\*\*Juries v. Virgens \[Minn.\] 116 N NV 109, where such engineer and commissioners abandoned terminus designated in petition as outlet, and located same upon premises of private owner upon supposition that such owner would construct sufficient outlet, such owner whose lands were damaged by reason of fact that outlet was insufficient to carry off waters was not estopped from enjoining contractors from constructing and maintaining ditch as ordered, even though he volun- * 10 Cur. Law. SEWERS AND DRANS $ 4. 1639

ditch lying partly within the limits of a municipality.44 Where an appeal is taken in proceedings to establish public drains, the court may hear oral evidence and determine as a question of fact if an appeal bond has been filed with the auditor.47 A complaint attacking drainage proceedings collaterally, for lack of notice, must show the contents of the record in such proceedings respecting notice.48 Under the statutes of some states, drains established for a certain time are conclusively deemed to have been regularly established.49 In a proceeding to establish a drainage ditch if the county board possesses jurisdiction and authority to act in the premises, injunction will not lie on account of mere irregularities in the exercise of the power conferred.50

Where there is no appeal therefrom, the order of the board of supervisors based upon the engineer's report establishing the district is conclusive that all the lands included therein will be benefited by the improvement.51 In Illinois the finding of the county court that the petition was signed by a majority of landowners representing at least one-third in area of the lands affected is conclusive in quo warranto testing the legality of the organization;52 as is also the judgment of the county court as to whether certain landowners had so connected their ditches as to make application to be annexed to an irrigation district in such a proceeding.53

\_Incidental remedies and review.\_See $ C. L. 1888--An appeal from the decision of the county commissioners that the ditch is necessary, if premature, may be dismissed.54 Injunction will not lie at the instance of county commissioners to prevent the removal or destruction of bridges in the construction of a drainage ditch 55 or to restrain the construction of a ditch merely because lands are subject to assessments for benefits,56 but continuance and use of a sewer illegally constructed on one's land is a trespass entilting the owner to injunctive relief.57 Under the Ohio statute the final order or judgment from which an appeal lies is the one finally determining that the proposed ditch is necessary and will be conducive to public health, convenience or welfare, that it is the best route, and also determining claims for damages and compensation,58 and such an appeal involves the inquiry as to the sufficiency of the outlet of a drainage ditch.58 In a proceeding before the probate court by landowners on the ground of the insufficiency of the outlet, the jury, having viewed the entire ditch and the outlet and having heard the evidence introduced at the trial, is in a better position to say whether or not the outlet is sufficient than a reviewing court having before it only a transcript of the evidence produced at the trial, and the finding of the jury will not be disturbed when not manifestly opposed to the evidence appearing in the record.60 The statute of Michigan authorizes a review of proceedings to establish drains by a writ of certiorari within ten days after the order of final determination is filed.61 In proceedings for the improvement of a drainage ditch, the court cannot review the facts or evidence upon certiorari.62 The Wisconsin law authorizes an appeal from an order of the drainage commissioner confirming the preliminary report.68

_Costs.See_ * C. L. 1890--Under the Michigan statute, petitioners to construct a drain are liable for the costs on the dismissal of the proceedings,64 but not on a subsequent petition to establish a drain for expenses incurred on a prior petition.65 A statute providing for costs in proceedings to condemn land for railroad purposes is inapplicable to the drainage laws.68

SS 5. _Compensation to property owners for lands taken or damaged.See_ * c. L. 1890--In Ohio applications for compensation and damages by landowners in ditch proceedings are required to be made on or before the day set for hearing of application for compensation and damages and for approval of the report of the county surveyor, and are not barred if not made on or before the day set for hearing upon the petition for the improvement.67

_For what allowed.See_ * C. L. 1890--Loss of profits from failure to complete a ditch within the time specified cannot be recovered by landowners from the contractor and his bondsmen.68

_Amount and ascertainment thereof.See_ * C. L. 1890--Township commissioners may be authorized to appoint viewers to ascertain the benefits of sewer improvements.69

Under the North Carolina act the commissioners are not required to set out the amount to be paid by each landowner, but merely his proportion.70 Under the Iowa statute the assessment commissioners cannot be appointed until after the drainage district has been established 71 and it is not contemplated that the commissioners shall survey the lands though they are not prohibited from doing so,72 nor is it essential that the engineer appointed to survey the lands be designated as one of the assessment commissioners.73 In Illinois it should be shown that there was an attempt to agree with the property holders before the commencement of condemnation proceedings.74 A stipulation by the drainage district for the creation of suitable bridges across its ditch is admissible in evidence as mitigating the damages.75 Under the Pennsylvania statute the foot-front rule may be applied to densely populated sewer districts,76 and the costs assessed, where the properties are of a rural character, accord-

68. Laws included in drainage district. Gen. Laws 1901, c. 258, p. 413. Grams v. Murphy \[Minn.\] 114 NW75. 69. Act Feb. 23, 1905 (P. L. 22), providing for the construction of sewers and drains, not unconsutritional because authorizing township commissioners, instead of the courts, to appoint viewers. Anderson v. Lower Merlon Tp. 217 Pa. 389, 66 A 1115. 70. Adams v. Joyner \[N. C.\] 60 SE725. 71,72,73. Zinser v. Buena Vista County Sup's \[Iowa\] 114 NWV 51. 74. Evidence held sufficient to show attempt to agree with property holders before commencement of condemnation proceedings. Smith v. Claussen Park Drainage & Levce Dist., 229 Ill. 155, 82 NE 278. 75. Smith v. Claussen Park Drainage & Levce Dist., 229 Ill. 156, 82 NE 278. 76. Act. Feb. 23, 1905 (P. L. 22). Anderson v. Lower Merlon Tp. 217 Pa. 369, 64 A 1115.

ing to the benefits.11 Under the Nebraska statute one whose land is traversed by a drainage ditch is entitled to recover the value of the land taken therefor, together with special damages, if any to the balance of his land caused by the construction of the improvement.11 Under the drainage statute of Iowa the board of supervisors has no power to pay a claim for damages to land outside the county caused by establishing a district within the county,11 and in condemnation proceedings for drainage purposes, damages should be assessed at the difference between the value of the land immediately before and after the construction of the ditch.12 In North Dakota the assessment of damages to real estate resulting from the construction of a drain, by a jury, and the benefits to the same property by the drain commissioners, is not unconstitutional.13

Footnote 19: http://www.stsci 1642 sewers and drain's $ 6. 10 Cur. Law. all costs in case of refusal of supervisors to grant the petition is not sustained where such statute is declared unconstitutional."

_Local assessments See # C. L. 1891 are treated more extensively elsewhere." Meetings of the drainage commissioners for the levy of assessments should be held within the boundaries of the drainage district."_

\_Power to assess and property liable._See # C. L. 1891--Lands included in drainage districts may be assessed in proportion to benefits received." Landowners who are injured and not benefited by the construction of a sewer are limited in their relief to enjoining the assessments on their land." The lien of an assessment for construction of a drainage ditch becomes fixed on the filing of the report of the commissioners, though subject to release by the court."_

County commissioners are without power to assess for ditch purposes a greater sum than the amount of benefits conferred by the improvements."\_

Assessments of benefits are not valid where the sewer passes through private lands." Special assessments should be levied upon the land itself, and not upon the improvements thereon."\_

In Illinois lands taken for the construction of ditches for drainage purposes cannot be assessed," nor can a drainage district without its consent assess a city for benefits accruing to its streets,1 and under the Illinois Levee Act, apportioning the costs of ditches draining beneficially public roads to the state, county or township, counties not under township organization are included, though a provision is specifically made for a tax levy to pay an assessment if made against a township, and such provision is omitted in other cases."

In Ohio it is competent for a municipalty to improve with a sewer the unsevered portion of a street or some part of the unsevered portion of a street and assess the cost thereof upon the property abutting on the part of the street so improved."\_

Where the county commissioners clean and enlarge that part of a joint county ditch lying within their county so that better drainage is provided for an upper county, contribution may be had from such upper county to meet the cost of improvement," or

90. Under Code, $ 1940, petitioners held not liable to reimburse county for preliminary expenses incurred on petition. Carroll County v. Cuthbertson \[Iowa\] 114 NWV 17. 91. See Public Works and Improvements, 10 C. L. 1307. 92. People v. Carr, 221 III. 502, 88 NE 269. 93. Lands included within drainage districts found under Act 1905, c. 215, p. 806, which are not, never have been, n 1 canver be, subject to overflow, may nevertheless be lawfully assessed in proportion to benefits to pay for improvements authorized by the act if they are subject to injury and damage from the overflow of other lands. Roby v Shunganungan Dragange Dist. (Kan.) 95 P 89. Under acts 80th General Assembly (Laws 1904, p. 645, c. 65, $ 12), the benefits for which lands may be assessed must be special, and not those which are enjoyed by all citizens alike. Zinser v. Buena Vista County Sup'rs \[Iowa\] 114 NWV 51. Under acts 80th General Assembly (Laws 1904, p. 64, c. 68, $ 12), such commissioners are to assume that all land within district is benefited and to classify and assess accordingly. 1d.

01. Such landowners cannot go to the extent of restraining the public improvement itself and the bonding of the district as provided by law. Cothman v. St. Francis Dralange Dist., 83 Ark. 54, 103 SWV 179. 95. Pierse v. Bronnenberg's Estate, 40 Ind. App. 662, 82 NE 126. 96. State v. Pacific County Com'rs \[Wash\] 93 P 236. 97. Act Feb. 23, 1905 (P. L. 22), so providing, held unconstitutional. Anderson v. Lower Merion Tp., 217 Pa. 369, 66 A I115. 98. McGilivery v. Lewiston, 13 Idaho, 338, 90 P 248. 99. City of Joliet v. Spring Creek Dralange Dist., 221 III. 441, 78 NE 836. 1. Section 40, Farm Drainage Act (Hurd's Rev. St. 1905, c. 42, $ 114), construed. City of Joliet v. Spring' Creek Dralange Dist., 221 III. 441, 78 NE 836. 221 III. 441, 78 NE 836. 22. Levee Act 1885, $ 55 (2 Starr & C. Ann. St. 1896, p. 1528, c. 42, par. 86). People v. Nortrup, 232 III. 303, 83 NE 843. 3. ZErkenbrecher V. Cincinnati, 10 Ohio C. C. (N. S.) 103. 4. Commissioners of Crawford County v. Huron County Com'rs, 10 Ohio C. C. (N. S.) 16. Where It was decided, during proceedings by and before the boards of commissions of three counties convened for the purpose of improving a joint county ditch, that the lower county should do certain work upon the ditch in that county, reserv.ing all rights as to compensation from the other counties, the court of common pleas has jurisdiction, by virtue of $ 4488a, of an action against the other counties for an apportionment of the cost of the improve * 10 Cur. Law. **SEWERS AND DRAINS SS 6.** 1643

where by reason of artificial improvements on their own lands above parties helped make it necessary for the protection of the lands below that improvements be made in a ditch watercourse, they should contribute toward payment therefor,' but where an upper proprietor has drained his lands without exceeding his legal rights and no advantage results to him from a township ditch which he did not enjoy before it was constructed, he is not chargeable with any part of the assessment for the cost of such an improvement, and an injunction will lie against the collection of an assessment level on his land.\* A property owner who is provided with a drain leading to a cess-pool on his own property is not, on the ground that he is already provided with local drainage, exempt from assessment for a sewer laid in the street, having a proper outlet, and built in conformity with the requirements of the statute.\* Also, where the sewer is adequate and so located that it may be utilized in the future, the lands must be regarded as specially benefited, notwithstanding the property is not so improved as to make sewer connections available.\* In this state a pumping station is a necessary part of a sewer equipment and its cost may be included in the assessment.\* In Pennsylvania there can be no assessments of benefits in sewer cases to individual owners to pay land damages.\* Under the statutes of Washington providing for the construction of drains and for the levying of assessments for the cost thereof, where in an action to compel the county commissioners to levy a special assessment it is shown that the project is abandoned, the court may direct the commissioners to levy the assessment or proceed to acquire by condemnation or otherwise property necessary to the completion of the ditch, and then levy the assessment as provided by statute.\* 11

\_Procedure.\_See s C. L. 1892...It appearing that provision has been made for the extension of a water service to every part of a constructed sewer, the benefits conferred may be computed on the basis of the complete water service.12 In proceedings to have lands drained, matters constituting estoppel or res adjudicatea should be pleaded prior to the order appointing commissioners, or at least before final judgment.13 Under the Indiana statute the filing of the petition and the report of the commissioners is notice to all whose lands are named therein.14 In Illinois drainage commissioners of a district organized under the levee act of 1879, who are landowners in the district, cannot make an assessment where their decision on the hearing of objections as to the amount of an assessment was final,15 nor create in advance an indebtedness for completing an improvement and then levy an assessment to meet it.16 No benefits can be assessed by the commissioners until the damages caused by the .-

ment; and voluntary submission to the jurisdiction of such court, by tender of issues in pleadings without questioning jurisdiction therein and by asserting to the Journal entries, is equivalent to an agreement by a majority of the boards of commissioners of the several counties under which the alternative procedure may be had in the court of common pleas under $ 4510-10 to compel contribution for the expense of constructing or improving an outlet for waters from other counties. Id.

**S. Mason v. Fulton County Com'rs, 10 Ohio C. C. (N. S.) 201.**

**G. Pontifical College v. Kleeell, 5 Ohio N. P. (N. S.) 241.**

**Y. Kibler v. Newark, 4 Ohio N. P. (N. S.) 641.**

**S, 9. King v. Dayton, 10 Ohio C. C. (N. S.) 522.**

\*\*10. Presumption raised by assessment of a large sum against the city was that land taking of the property have been assessed by a jury,17 nor can any benefits be assessed where the determination of the jury is other than that no damages have acrued.18 In Iowa under a provision for an assessment in proportion to special benefits conferred on property and not in excess of such benefits, the frontage of the property may be considered.19 So also in Ohio, where the amount of a sewer assessment does not exceed the special benefits to the land, the assessment is not rendered invalid because levied in terms by the abutting foot.20 It is not necessary, under the Michigan statute, that the commissioner file his record with the county commissioner's clerk before the assessment is made by the commissioners.21 A board of supervisors are not justified in refusing to spread upon the rolls the tax assessed for the cleaning out of an existing drain, because of the omission of the drain commissioner to declare the contract void on account of the failure of the contractors to do the work,22 but in Pennsylvania an assessment for cost of a sewer upon abutting property owners according to the foot-front rule is void where the power to so levy is based on an act in conflict with constitutional restriction relating to laws local and special, regulating the affairs of cities.28

\_Validity of assessment and objections thereto.\_See * C. L. 1892_To be valid, a special drainage assessment must be levied in accordance with the statute authorizing it.24 So, also, one aggrived by assessment proceedings has no relief in a court of equity unless he makes use of the statutory remedy.25 A special assessment for a sewer is not affected by invalidity of a general sewer ordinance where the proceedings were referable to a statute providing a detailed method of procedure for construction of sewers.28 Where the provision of a statute for notice is mandatory, assessments against landowners not notified are void.27 Under the Illinois statute, it is essential to the legality of an assessment that there be a legal meeting of the com 10 Cur. Law. SEWERS AND DRAINS SS 6.

missioners,\[28\] and that the record thereof be preserved as therein provided.\[29\] A special assessment for drainage of lands is void in the absence of an affirmative showing of strict compliance with the statute.\[30\] An objection that damages were not properly ascertained in making the original assessment cannot be interposed in a proceeding for an additional assessment to carry out the proposed improvement.\[31\] Where it appears that, if necessary, the sewer system can, by expenditure of a small amount, be made to comply with a contract with an adjoining municipality, the fact that it does not is not a valid objection in proceedings for the confirmation of an assessment for the construction of such system.\[32\] In Ohio an assessment for a county ditch is not rendered invalid by reason of failure to serve notice on the property owners of intention to tile the ditch or its laterals.\[33\] The mere fact that property is supplied with adequate surface drainage is not sufficient to exempt it from a proper sewer assessment.\[84\] In Pennsylvania a property owner assessed for benefits cannot be heard to object that separate juries were not appointed for a trunk sewer and its lateral branches.\[28\]

\_Waiver or correction of irregularities.\_See 8 C. L. 1456--Where a landowner defers his attack upon the legality of an assessment until he has secured a benefit from the full or partial completion of the work for which he was assessed, his laches forbids an equitable redress.\[85\] Defective descriptions in the notice of intention to levy a sewer assessment may be waived.\[37\] General appearance to object to judgment for sale of property for delinquent assessment waives any variance between the delinquent list and published notice of application for sale.\[28\] Where statutory notice is given to one of proceedings for assessment to extend a drain and he waives any objection, he cannot defeat a sale of land for nonpayment of taxes for the cost of the work if the drain commissioner followed the old drain.\[39\] An assessment for a sewer will be regarded as having been made with reference to benefits when the proceedings with reference thereto are all regular, and the property owner enters no complaint until he seeks to enjoin collection of the assessment and there is no showing of fraud or evidence that the assessment as laid unquestionably exceeds the special benefits to the property.\[40\]

_Review of assessment proceedings._\[65\] 8 C. L. 1882--The proceedings of drainage commissioners, who have not acted in accordance with the statute, may be reviewed upon the common-law wrrit of certiorari,\[41\] or they may be compelled to comply with such statute to lay a foundation for the statutory writ of certiorari.\[42\] Where plaintiffs in certiorari to review proceedings to establish a drain occupy the position of affirming the existence of facts not appearing by the files and records in the proceedings, which facts are alleged as reasons why the court should declare the proposed improvement to be illegal, the court will not review the facts.\[43\] Substantial compliance with a statute requiring a written notice of appeal is sufficient.\[44\] An order of the county court confirming the report of viewers of apportionment of costs in a proceeding to open a public ditch is not a final order,\[45\] and an order setting aside an order of confirmation of the viewer's report is not a final order from which an appeal can be prosecuted to the circuit court.\[46\] Under the Illinois statute objection by a property owner, after the special assessment is levied, can first be heard when the matter comes up on application for judgment of sale,\[47\] and an order amending and modifying the report of the commissioners and approving it as modified is not appealable.\[48\] Under the Michigan statute a landowner aggrieved by the action of the board of review in drainage proceedings may appeal to the town board.\[49\] In Ohio there is no jurisdiction in a court of equity to reduce a sewer assessment which is not grossly excessive.\[50\] In that state, also, provision is only made by statute for proceedings between the board of county commissioners of the different counties interested in a suit for contribution for a ditch improvement, and the owners of lands affected by the improvement cannot join in the action and become parties thereto.\[51\]

\_Collection.\_See & C. L. 1893--A suit to enforce levee taxes is the nature of a suit in rem.\[52\] A judgment for sale of land for delinquent assessment not signed by the judge until after the term of court at which it was rendered and after the expiration of his term as judge is invalid.\[53\] One who is benefited by a drain is not entitled to an injunction restraining the collection of a special tax to pay the cost of construction.\[54\] In Illinois no demand need be made for payment of drainage assessments extended on the collector's books with state, county and other taxes.\[55\] The Arkansas statute, authorizing the directors of a levee district to enforce the collection of levee taxes in chancery courts, provides that, any time within three years after the rendition of the final decree of the chancery court, the owner of the land proceeded against may show that the taxes on the land have been paid, and have the decree set aside.\[56\]

SS 7. \_Management and operation; duty to properly construct, maintain, and repair works, and provide drainage.\[56\]\_See & C. L. 1894--Failure of a city to maintain a sewer constructed by it, in a reasonable state of efficiency, is negligence for which it is liable in damages to parties injured.\[57\] The New Jersey borough act does not re-

48. Tuttle v. Blshop \[Mich.\] 14 Det. Leg. 14 Det.

quire sewage disposal works to be constructed to tidewater.\[58\] The proper location of sewage disposal works is determined by public necessity and convenience,\[59\] such location being discretionary with the public authorities of the borough,\[60\] whose decision is conclusive.\[61\] A city is liable for injuries due to the want of proper maintenance or repair of the public sewers by the board of public works, or other municipal agency charged with the duty of maintenance and repair.\[62\] A city is not liable for damages resulting from an overflow from an unusual flood, in the absence of a showing of defects in the sewer or of defects in its construction, or any obstructions removable after notice.\[63\] Under the Massachusetts statute authorizing the use of a brook for sewerage purposes by a city, a riparian propriator injured thereby can recover for loss from the pollution, and not for diversion of water, where a diversion has not been assumed.\[64\] If a city in making an improvement collects surface water which would otherwise find an outlet without injury to property, it becomes its absolute duty both to provide and maintain an adequate outlet for such water.\[65\] Where a city is negligent in failing to keep its drainage system in repair, the burden of proof is upon it to establish by a preponderance of evidence the defense that damage to the plaintiff was caused without the concurrence of such negligence.\[66\] A city is not liable to an individual for damages in consequence of an abutment left in a waterway upon the reconstruction of an avenue, unless it has been guilty of negligence in constructing the same.\[67\] There is no objection to a single proceeding by the county drain commission to open, widen, straighten, deepen, and extend three drains established by township drain commissioners, where it appears that they, in fact, constitute one drainage canal, no portion of which can be disturbed without affecting the entire drain.\[68\] In Ohio where a county ditch has once been established by law, and has been used for a period of over seven years, it does not become a public watercourse in the sense that the right to improve it as an established county ditch no longer exists.\[69\]

## 8 Private and combined drainage

See 8 C. L. 1899.--Where several property owners join in the building of a sewer for the drainage of their property, and enter into a contract for the maintenance and repair thereof, they severally acquire no

Gutter beside a highway is not a "sluce" the premises sickly and unInhabitable, the way" within Laws 1893, p. 47, c. 59, 1, city is liable in damages to the owner. May-rendering towns liable for injuries from de-fective sluiceways. Drew v. Sow \[N. H.\] A city cannot discharge sewage into a river so that it will be carried undiluted and de-gess. Seston 87, borough act 1897 (P. L. p. 327). Philadelphia Trust, Safe Deposit & Ins. Co. v. Merchantville \[N. J. Law\] 68 A 170.

So, 60, 61. Philadelphia Trust, Safe Deposit & Ins. Co. v. Merchantville \[N. J. Law\] 68 A 170.

So, 62. Googin v. Lewiston \[Mc.\] 68 A 694.

So, Judas v. New York, 55 Misc. 259, 105 NYS 96.

So, 64. Mass. St. 1867, p. 541, c. 106, authorizing a city to fix the boundaries of a brook, to change its course, and use for sewerage purposes. Stevens v. Worcester \[Mass.\] 81 NE 907.

So, 65. Under South Carolina Code 190, s 2023, providing that any person who shall receive damages through a defect in any street by reason of mismanagement of anything under the control of the corporation through its negligence may recover the same, where the negligent construction by a city in laying drain pipes so that the water ponded on a lot by raising the street grade was not carried off, but collected thereon, rendering

###### Abstract

The _Office_, Election or Appointment, 1645.

10 Cur. Law. SHERIFFS AND CONSTABLES SS 3.

instatement, show that fact and also that he held the office lawfully.\* In Misouri a vacancy in the office of sheriff is filled by special election, called by the county court.\* Whether one actually holds the office of deputy sheriff, in the absence of positive proof, may be determined by reference to the statute defining the number of appointments permitted.\* The giving of a bond is not a condition precedent to a sheriff's authority to perform the duties of his office.' And a constable, though elected by the voters of a town, is an officer of the entire county.\*

SS 2. Powers, duties and privileges.See 5 C. L. 1897.--Under a statute providing that no officer is required to arrest a debtor on execution unless direction to do so is indorsed on the writ," he may nevertheless arrest without such indorsement.\* The right to require the indorsement is merely a personal privilege which the officer may waive,11 and waiver estops him from claiming absence of the indorsement as a defense to his liability for failure to serve.12 A sheriff or deputy may not make an arrest without a warrant for an offense which is neither a breach of the peace nor a felony.13 In Montana certain deputy sheriffs act as jailors and the appointment of such deputies by the sheriff must be approved by a board of commissioners.14

SS 3. Compensation.See 6 C. L. 1897.--Fees are governed by the statute in force when the services are rendered.18 A sheriff may be allowed compensation for caring for property,14 and where special care is required he will be allowed an adequate amount for that.17 But he can recover only for the period during which the property was actually in his custody,18 and as to the length of such period he is conclusively bound by his return.19 A sheriff is entitled to his fees for executing process regular on its face though subsequently vacated,20 and such fees must be paid by the party on whose initiative the levy was made.21 He may hold an attachment until fees are paid,22 but is not entitled to an order requiring their payment until a determination has been reached as to the party liable therefor.23 A sheriff will not be permitted to

- 4. A statement that he was duly appointed sheriff a mere conclusion and insufficient. Meehan v. Flaherty, 119 App. Div. 128, 103 NYS 1058.
- 5. The amendment (Rev. St. 1899, # 10, 048), providing for appointment of a sheriff pending the result of the special election (State v. Patterson, 207 Mo. 129, 105 SW 1048), did not repeal SS 2 and 3 of Acts 1887, p. 281, providing for the manner and means of holding such election (Id.) The expiration of the time in which the special election may be ordered (Act 1887, p. 281, as amended, Rev. St. 1899, # 10,048) does not deprive the supreme court of the power to compel by mandamus an order to hold it thereafter, under Const. art, 4, # 3. Id. It is governed by the general election law, not the primary. Id.
- 6. Argument on the statute may be made to jury. Texas, etc. R. Co. v. Parsons \[Tex. Civ. App.\] 109 SW 240.
- 7. In Georgia by Acts 1896, p. 287, the sheriff of Johnson county is ex office sheriff of the city of Virgintsville, so his deputy can serve process from such court without filime a bond there. Smith v. Davis \[Ga. App.\] 60 SE 199.
- 8. Greenberg v. People, 125 Ill. App. 526, afd. 225 Ill. 174, 80 NE 100.
- 9. Section 5, c. 117. Rev. St. of Maine. Stewart v. Leonard \[Me.\] 68 A 688.
- 10. Stewart v. Leonard \[Me.\] 68 A 638.
- 12. Stewart v. Leonard \[Me.\] 68 A 638.
- 13. Such as trespassing in a railroad yard and entering a car for the purpose of taking a ride. Texas, etc. R. Co. v. Parsons \[Tex. Civ. App.\] 109 SW 240. He has no greater rights than others except when in discharge of official business, though hired by the company to enforce the law. Id.
- 14. When a statute required appointments of jailers to be approved by commissers in amendment to the effect that the sheriff may appoint deputies who shall act as jailers does not rest such appointment in the sheriff absolutely, but merely increases the number of deputies which he may appoint subject to approval of the commissioners. Hogan v. Cascade County \[Mont.\] 92 P 529.
- 15. Rev. Code 1852, requiring payment of dollars to sheriff on sales of land, is re-pealed by Act March 29, 1907. In re Cross-grove \[Del.\] 67 A 159.
- 16. Dudley V. Clevenger \[Okl.\] 91 P 908.
- 17. Such as crude oil. Cruseal v. Brooks \[La.\] 46 S 214.
- 18. Unolley v. Clevenger \[Okl.\] 91 P 908.
- 20. Zi. Bradley v. Blue Ridge Hoslery recover payments for legal advice, since he is entitled to advice from the court.24 A statute authorizing sheriffs to demand in advance fees allowed by law, and, for convenience, to receive from suitors reasonable deposits in advance, requires only a payment of those fees actually demandable, and it is optional with suitors whether they deposit a greater amount.25 The obligation of paying for the care and custody of prisoners and witnesses, both Federal and state, rests solely upon the county,26 and it may recover surplus fees paid a sheriff for such purpose though voluntarily paid with full knowledge of the facts.27 A sheriff in Ohio is not entitled to poundage on sale of real estate where the purchasers thereof are entitled to the whole of the proceeds arising from the sale and no amount over and above their claim, except expenses and costs of sales, is paid to, or could have been demanded by, the sheriff.28 A statute which provides compensation for "maintaining" horses and vehicles necessary in the performance of a sheriff's duty does not authorize their purchase at the county's expense.29 Sheriff fees in tax proceedings are such only as are provided for in the tax law,30 and where no fee is provided for there, he is not entitled to recover under the general law relating to sheriff's fees,31 and though fees for giving election notices are allowed and paid by the county and required to be taxed by law, they belong to the county and not the sheriff, where the statute does not expressly provide that they shall be the property of the sheriff.32 "In and out fees," so-called, received by the sheriff from the county for committing to and discharging persons from jail, are the property of the county and must be paid by the sheriff to its treasure.33 In Iowa under the maximum compensation act, the maximum is not to be received unless the receipts of the office are equal thereto.34 Fees received by the sheriff when acting as constable are to be considered in fixing his salary under such act.35

**SS 4.**\_Deputies, undersheriffs and bailiffs.\_See S C. L. 1899--A deputy sheriff may hold other offices not incompatible therewith 36 and lawfully receive the emoluments

Mahoning County Com'rs, 10 Ohio C. C. (N. 25. P. L. 1905, p. 19, $ 3. Brockhurst v. Kisier \[N. J. Law\] 67 A 75. An offer to pay the demandable fees is a sufficient basis for amerement where the sheriff refuses to state them and to proceed without a larger deposit. Id. 26. Board of Chosen Freeholders of Hudson County v. Kisier \[N. J. Law\] 69 A 25. The custody of Federal prisoners or witnesses by a sheriff is as sheriff and not as agent of the United States marshal. Id. 27. The rule governing individuals in this regard does not apply. Board of Chosen Freeholders of Hudson County v. Kaiser \[N. J. Law\] 69 A 25. In New Jersey after the law of 1905, P. L. p. 18, went into effect, sheriffs were no longer entitled to any fees under former laws. Consequently, though entitled under former laws to surplus from remaining money paid him for care and maintenance of detained witness, the salary provided in this act is in lie thereof. Id. Where by a mistake of law a sheriff is overpaid, the county may recover back the excess. Jones County v. Arnold, 134 Iowa, 680, 111 NWP 973. 28. As expressly provided by $ 1730, Rev. St. 1908. The word "party" in this statute means the purchaser whether a party to the foreclosure proceedings or not. Major v. International Coal Co., 76 Ohio St. 200, 81 NE 240, 29. Section 1296-29 (98 O. L. 96). State v. 36. May be both deputy sheriff and court 10 Cur. Law. SHERIFFS AND CONSTABLES SS 5B. 1651 peculiar to each provided he is not paid twice for the same service." The appointment of deputy bailiffs of the municipal court of Chicago is not controlled by the "Act to regulate the civil service of cities." 88

SS 5. \_Liabilities and rights. A. Liability in general.\_See * C. L. 1899--Injury to the plaintiff is a necessary ingredient of a sheriff's liability." A sheriff is liable to account to a principal for money taken on regular process from its agent where process was subsequently vacated." It is a sheriff's duty to give the execution debtor notice of his exemption before levy, and for failure to do so he is liable on his bond," and for a levy so grossly excessive as to be oppressive he is liable." The collection of fees by a sheriff from the county is not an act in his official capacity and by virtue of his office." The acceptance of a nonstatutory bond in lieu of a fine does not relieve the sheriff from liability to account for the fine, though the bond may be good as a common-law obligation." A sheriff is chargeable with interest on a balance due from him only from the time demand is made or suit brought." A forthcoming bond payable to others besides the plaintiff in the execution is not a statutory bond, and mere irregularities therein cannot be taken advantage of." Rules against a sheriff are not governed by rules relating to ordinary pleadings, but are under the discretion of the court." Every allegation in a sheriff's answer to a rule nisi is to,be taken as true until traversed." The fact that the offense is punishable as a crime does not relieve the sheriff from liability to be removed therefor." Where a justice court cannot entertain proceedings for removing a sheriff from office," the circuit court acquires no jurisdiction on appeal, and any sentence imposed by either court will be annulled." In New Mexico a sheriff or constable is removable from office for official misdoings committed by him the previous term, there being no intervening term held by another."

(SS 5) \_B. Failure to execute process or insufficient execution.\_See * C. L. 1906--After execution is placed in the sheriff's hands, it is his duty to levy it if defendant has property subject thereto unless directed otherwise by the court, or plaintiff, or plaintiff's attorney." Whenever a sheriff fails to properly levy an execution, the law presumes that the plaintiff is injured," and when such failure is unwarranted,"

\\begin{tabular}{l l l} & constable. State v. Shaffer, & Ohio N. P. & may be permitted, upon failure to do so, to \\ & (N. S.) 219. & answer at a subsequent term. Hixon v. \\ & **37.** Rev. St. & 18. State v. Shaffer, & Ohio \\ & **38.** Read Phosphate Co. v. S. Weichsel- \\ & **38.** McGann v. People, 228 Ill. 203, & 81 \\ & **39.** Prince v. Walker, 1 Ga. App. 282, & 58 \\ & \*\*39.

the sheriff is liable for the damage sustained "" and subject to amerement."68 Proof that an execution was placed in the sheriff's hands for levy and that defendant had sufficient property subject to levy to satisfy it establishes a prima facie right to recover the full amount of the judgment on which execution issued," but this is rebutted by proof that the property was of less value than the amount of the judgment."68 An unusual delay in making service raises a presumption of negligence."69 Failure to execute process for the reason that the property had been taken on another execution of higher dignity at least shows good faith,"69 and paramount title in another is valid excuse for failure to deliver property seized.61 But the fact that one having a superior lien took the property away from the sheriff is no defense to an action by the execution creditor to recover for failure to execute the process,62 nor is the fact that plaintiff never pointed out the property to him.68 A sheriff has no right to apply property seized on execution to payment of plaintiff's indebtedness to a third party.64 Failure to return property seized upon the owners filing an exemption claim, in the absence of bond from plaintiff, is a breach of duty, and an action therefor, though on the bond, is ex delicto in nature, and no demand for the property is necessary.68 In such case if the execution is against joint debtors, either may alone sue the officer,68 and his liability is not modified by the fact that an undivided interest in the property was not subject to be claimed as exempt."7 In Alabama the equitable owner of a judgment may sue in his own name for a failure to make the money on an execution thereon.69

(SS 5) C. Failure to return process and false return.See & C. L. 1000

(SS 5) D. Failure to take security.See & C. L. 1462

(SS 5) E. Wrongful levy, sale or arrest.See & C. L. 1901--An officer is liable in damages to the owner of property wrongfully levied 69 and sold.70 It is unnecessary to make a third party claimant in such case in order to recover.71 The owner may also recover the reasonable cost of proceedings to remove a cloud upon title wrongfully created by the sheriff." And, in an action on the sheriff's bond to recover for such wrongful levy, the fact that recovery on a nonstatutory forthcoming bond, given in the original proceedings, had been unsuccessfully attempted, is not available as a defense by the sheriff.73 But money voluntarily paid to prevent an attachment can 10 Cur. Law. SHERIFFS AND CONSTABLES SS 5G. 1653

not be recovered,74 and the owner may estop himself to dispute the rightfulness of the levy.75 An allegation that the sheriff levied upon and seized personal property under a writ of attachment shows an invasion of plaintiff's possession and is sufficient.76 A sheriff's liability in excess of the amount of the bond cannot be recovered in an action against him and his sureties.77 Where property is taken on valid execution, the sheriff may show, in detinue, that it is the property of the one against whom execution issued,78 and, though property is taken on a void execution, the officer may defend under a levy on a subsequent valid execution,78 though it has been held that matters occurring subsequent to a seizure and sale cannot be shown in evidence to establish its validity.80 Advice of an attorney is no defense to an action for wrong-ful levy,81 nor is the fact that the officer acted without malice.82 Such seizure is not justified by the fact that the property is in the execution debtor's possession and that the writ is fair and regular on its face.88 The officer's liability is not changed by application of the proceeds of such a sale to a debt due the owner,88 nor is he protected from liability for levy and sale of a stranger's property by a bond given by the creditor obligating himself to pay any claimant the damage suffered by such levy and sale.88 And though the seizure may be lawful, the officer is liable for a subsequent conversion.88 Such conversion can be accomplished only by a positive tortious act, but it need not extend to a physical taking of the property.88

(SS 5) _F. Misappropriation of proceeds.88 C. L. 1802_-A sheriff is liable for misappropriation of a fund in his possession though made in good faith.88 But amerecement will not lie where the thing misapplied was something other than money.88 One who ratifies an unauthorized application of proceeds cannot subsequently object.88

(SS 5) _G. Rights of levying officers.88 C. L. 1802_-A sheriff is entitled to an order of court as to payment of money held by him.88 After accounting for a fine, in lieu of which the sheriff has taken a common-law bond, he becomes subrogated

\\begin{tabular}{l l} \\begin{tabular}{l l}
\\begin{tabular}{l} \\hline \\ to the rights of the county on such obligation." Where there is any reasonable doubt as to ownership of property " or a bona fide doubt as to the validity of the judgment," the officer is entitled to indemnity before executing his process. In Arkansas a sheriff is not required to deliver to plaintiff property seized in replevin until the latter gives the required bond." Plaintiff's failure to give indemnity bond upon demand postpones the lion of the execution to one junior thereto upon which levy has been made and indemnity given." The giving of a forthcoming bond admits the value of the property, constitutes the giver the sheriff's agent for the production of the property, and is an estoppel to a denial of the sheriff's authority." A levy on goods, in small causes, which are claimed by a third party as provided by law," may be completed by sale, where such party makes no application to have his claim heard in court, as though no claim had been made."

**SS 6.**\_Liability on bonds.\_See 8 C. L. 1902.\_Liability on the bond extends only to a breach of those conditions therein named in substantial compliance with the statute.1 The bond covers only official misdoings 2 or, at least, the act complained of must have been colore official." A sheriff is liable on his bond for failure to give notice of exemption to the execution debtor.4 Recovery for wrongful seizure and sale of property is limited to the penalty named in the bond, though several of its conditions are broken and regardless of the amount of damages shown." The return of a sheriff * and recitals in the judgment obtained in the suit out of which liability arose 7 are prima facie evidence even against the sureties, and testimony of a witness that he knows the value of the property and names it is sufficient evidence of the value of defendant's interest." Advantage will not be permitted to be taken of mere irregularities," but in a suit on a sheriff's bond to recover for nondelivery of property seized in replevin, the complaint must allege that the replevin suit has been prosecuted to final judgment.10 Evidence tending to show a payment of the judgment on

92. Wilson v. White, 82 Ark. 407, 102 SW

80 NE 100. An assault committed by a

201.

001. Baker v. Duddleston, 125 Ill. App. 483.

001. In an action for refusal to levy on this

127%, 79, $ 9. Greenberg v. People, 226

ground, the only question is one of good

111. 174, 80 NE 100. See following note.

faith. Crane v. Crane \[Ky.\] 105 SW 370.

95. Kirby's Dlig. 6857. And the fact

offell, in the service of civil process, or

that the bond was given must be alleged

passitively and not by inference, in the com-

such service, is not misconendent in office, City

plain, in a suit against the officer for non-

of Cambridge v. Foster, 195 Mass. 411, 81 NB

delivery, Southern Orchard Planting Co. v.

Gore, 83 Ark. 78, 102 SW 709.

96. Baker v. Duddleston, 125 Ill. App. 483.

01. Obligor liable to sheriff for failure to

produce. Smith v. Davis \[Ga. App.\] 60 SE

198. P. L. of N. J. p. 270. Masters v. Cham-

pion \[N. J. Err. & App.\] 69 A 224.

98. The fact that the goods were in calm-

ants possession Is immaterial. Masters v. Champion \[N. J. Err. & App.\] 69 A 214. The

fact that the written claim was delivered

on Sunday does not prevent the estoppel

1n favor of the constable from operating.

Board of Chosen Frechoders of Hudson

County v. Kaiser \[N. J. Law\] 69 A 25.

1. City of Cambridge v. Foster, 195 Mass.

411, 81 NB 278.

2. Under Comp. Laws 1897, $ 844. Mis-

doings such as partially, oppression, corruption, extortion, etc. Territory v. San-

ches \[N. M.\] 94 P 954. Any malicious and wrongful act directly connected with the

performance of an official act. Greenberg

v. People, 15 Ill. App. 626, aff. 225 Ill. 174,

1654

1655

174, 80 NE 100. See following note.

92. Wilson v. White, 82 Ark. 407, 102 SW

80 NE 100. An assault committed by a

constable while levying an execution is of-

ficial misconduct. Hurd's Rev. St. 1905, p.

94. In an action for refusal to levy on this

127%, 79, $ 9. Greenberg v. People, 226

ground, the only question is one of good

111. 174, 80 NE 100. See following note.

001. An assault by a constable not colore

001. Kirby's Dlig. 6857. And the fact

offell, in the service of civil process, or

that the bond was given must be alleged

an assault in punishment for opposition to

positively and not by inference, in the com-

such service, is not misconendent in office, City

plain, in a suit against the officer for non- 10 Cur. Law. SHIPPING AND WATER TRAFFIC SS 4.1655

which the wrongful sale was made does not bar the right to recover, in the action on the bond, the sums paid for a reconveyance.11 Evidence tending to establish several breaches of the bond should go to the jury.12 A failure to move to see a wrongful levy and sale does not estop proceeding to recover on the

Sheriff's Sales, see latest topical index.

SHIPPING AND WATER TRAFFIC.

1. Public Control and Regulation; Extent of State Jurisdiction, 1655.

F. Sole or Divided Liability, and Dividing of Damage, 1661.

2. Nationality, Registration, Enrollment, G. Ascertainment and Measure of Damage, 1655.

1. Master and Officers, 1655.

H. Common-Law Liability for Negligent Navigation, 1662.

4. Seamen, 1655. Wages and Subsistence, 1655. Expenses in Enlating Sea-

1. Carriage of Passengers, 1663. The Harter Incn May be Recovered of the

1. Carriage of Goods, 1663. The Harter Mater, 1654. Care of Injured Sea-

1. Cerlante and Denurrage, 1604.

1. Freelht and Denurrage, 1604.

1. Pilotage, Towsse, Wharfoge, 1606.

Other Liens on the Vessel, Craft, or

12. Repairs, Supplies, and Like Expenses, 1607.

01. Salvage, 1668.

01. Navigation and Collusion, 1655.

01. Vessels or Persons Llabite for Loss and A. Rules for Navigation and Their

Expense, and Limitation of Liobil-

Operation in General, 1655.

By Lights, Signals, and Lookouts, 1655.

15. General Average, 1670.

C. Steering and Salling Rules, 1659.

16. Wreck, 1671.

D. Vessels Anchored, Drifting, Grounded,

17. Marine Insurance, 1671.

01.

01. Maritime Torts and Crimes, 1672.

E. Tues and Tows, Pilot Boats, Fishing

Vessels, etc., 1600.

Matters relating to the jurisdiction of courts of admiralty and the practice and procedure therein,14 and to the obstruction of navigable waters,15 are treated elsewhere, as are matters relating to carriers generally,16 or peculiar to the operation of ferries.17

SS 1. _Public control and regulation; extent of state jurisdiction._ See a C. L. 1904.

The sovereignty of the state extends to its vessels upon the high seas.18

SS 2. \_Nationality, registration, enrollment, and ownership.\_See a C. L. 1904. The title to a vessel, which must be clearly established,19 is, if in several, presumed to be held by them in common.20 The record title will control in the absence of evidence to the contrary.21

SS 3. \_Master and officers.\_See a C. L. 1904. The master has entire charge of the navigation of the vessel.21

SS 4. \_Seamen. Shipping articles.\_See a C. L. 1905. The shipping articles, which determine where and when the services of the seamen terminate,23 must be in writing and indicate the nature of the intended voyage.24

\_Wages and subsistence.\_See a C. L. 1905. The seaman is entitled to support,25 and

11. State v. Dickman, 124 Mo. App. 653,

102 SVW 44.

12. In the absence of proof that it was paid to settle the judgment and actually did settle it, or that plaintiff had such a settlement in mind when he made the payment. State v. Dickman, 124 Mo. App. 653,

102 SVW 44.

13. State v. Dickman, 124 Mo. App. 653,

102 SVW 44.

14. See Admiralty, 5 C. L. 29.

01. See Naviangle Waters, 10 C. L. 817.

01. See Carriers, 9 C. L. 466.

01. See Ferries, 9 C. L. 135.

01. Old Dominion Steamship Co. v. Pritus Olimore, 28 S. Ct. 133.

wages, though they may not be paid in advance \[29\] for the time of service," but damages for withholding them may be disallowed,\[28\] and it depends on circumstances whether they have been released \[29\] or satisfied.\[20\] On a wrongful discharge, which is a question for the jury,\[31\] the seaman may recover return passage, if he shipped for the round trip,\[32\] and, if he consent to discharge, it may be conditional.\[33\]

_Expenses in enlisting seaman may be recovered of the master.\[34\]_

_Care of injured seamen,\[See S C. L. 1906--Unless necessary, a master is not bound to depart from his course to procure aid for an injured seaman,\[35\] and whether he is at fault for not doing so depends on the circumstances.\[36\]_

SS 5. _Mortgages, bottomry, maritime, and other liens on the vessel, craft, or cargo.\[See S C. L. 1906--A maritime lien, which is treated fully in other sections,\[87\] is a lien, the subject-matter of which is a vessel,\[38\] and must be construed stricti juris.\[88\] A bottomry bond is subordinate to a claim for salvage of the vessel.\[40\]_

SS 6. \_Charter party.\[See S C. L. 1908--The letting or demise of a vessel is a parting with the whole possession and control of it for all lawful purposes,\[41\] one of the important factors of the contract being promptness in loading, sailing and discharging.\[42\] On breach of it, damages are estimated as circumstances warrant,\[48\] but that the owner orders the vessel not to enter a certain port is not a breach.\[44\] The consignees

- 26. Money paid for a seaman before he has earned any wages may be recovered by him. The August Belmont, 153 F 638.
- 27. And this, though discharged because of fault on his part. The Sentinel, 152 F 664.
- 28. Claimant showing reasonable grounds for disputing claim, even if not able to make out defense sufficient to prevent recovery on part of libelant. The Sentinel, 153 F 664.
- 29. If contract remained in force, an order never collected or negotiated, and although tendered to defendant at trial was refused, did not constitute a release, as it was unsesaled. Boston v. Ocean S. S. Co. of Savannah \[Mass.\] SS 3NE 1116.
- 30. Upon variant evidence, it is a question of fact if plaintiff who is illiterate, without money, and a waxy from home, after having been denied further recognition as member of the ship's company, agreed to receive a week's wages in full satisfaction of his claim. Boston v. Ocean S. S. Co. of Savannah hal \[Mass.\] SS 3NE 1116.
- 31. Whether the discharge was wrongful, the evidence being conflicting, is a question for the jury. Boston v. Ocean S. S. Co. of Savannah \[Mass.\] SS 3NE 1116.
- 32. Boston v. Ocean S. S. Co. of Savannah \[Mass.\] SS 3NE 1116.
- 33. If it be found that the consent was conditional upon receiving a full month's wages, which were not paid, the defense fails. Boston v. Ocean S. S. Co. of Savannah \[Mass.\] SS 3NE 1116.
- 34. Master applied to plaintiff to procure seamen and plaintiff procured same through general ship brokers, incurring $120 expenses in railroad fare, telegrams, shipping fees, etc, but charging nothing for services. The money paid was not violatly of Fed. Ann. St. vol. 6, p. 909, and recoverable of master. Maffitt v. Hammerland \[N. C.\] 60 BIS 713.
- 35. Small bone in seaman's leg broken set, and domg well. He was given good care. Vessel not bound, weeks afterwards, to go far out of its course to obtain medical treatment, it not being known, even, that it could be obtained. The Drumelton, 158 F 454.
- 36. Seaman injured by dislocating shoulder, believed by the master at the time to be a spran. Injury sustained at point where a return of 70 miles to procure medical attention would involve risks to vessel and cargo. Vessel not liable. Case distinguished from The Sarnia \[C. C. A.\] 147 F 106. The Cuzzo \[C. C. A.\] 154 F 117.
- 37. See SS 12, 13, post.
- 38. The Robert R. Kirkland \[C. C. A.\] 153 F 863.
- 39. The James T. Furber, 157 F 126.
- 40. The Launberga \[C. C. A.\] 154 F 869.
- 41. The consequences flowing from a letting of a ship as distinguished from a contract for her services are that in the former case the relation between owner and char- terer becomes that of balitor and baile, whereas, in the latter, the relation is that of shipper and carrier. The Santona, 152 F 516. When a charter party gives the charter the full capacity of the ship, the owner is not a common carrier, but a bailee to transport as a private carrier for hire. The Frit \[C. C. A.\] 154 F 233.
- 42. Adler v. Galbraith, Bacon & Co., 156 F 259.
- 43. Plaintiff chartered tugs and barges to carry coal and, on failure of defendant to furnish same, had to transport by sailing vessel so much a ton, tugs nor barges impossible to be

## 10 Cur. Law. SHIPPING AND WATER TRAFFIC SS 6.

may waive the obligation to complete the voyage,\[46\] and whether a port is en route between two points is open to testimony.\[46\] The charter party, which determines the rights and liabilities of the parties,\[47\] and the terms of which, as between themselves, cannot be affected by a bill of lading,\[48\] or a custom,\[49\] is governed by the laws of the country where made,\[50\] and will be construed according to the evident intention of the parties,\[61\] in the light of ordinary conditions and the peculiar construction of the vessel.\[62\] If the contract, the validity of which is determined by its contents and the circumstances under which it was executed,\[63\] be oral, it, as well as claims for expenses under a written agreement,\[54\] must be established by sufficient evidence;\[63\] if in writing, it must be signed by the parties to be bound\[64\] or someone having authority,\[87\] and must be mutual,\[88\] and free from fraud.\[50\] A written offer to charter

## 11 Out. Law. SHIPPING AND WATER TRAFFIC SS 6.

may waive the obligation to complete the voyage,\[46\] and whether a port is en route between two points is open to testimony.\[46\] The charter party, which determines the rights and liabilities of the parties,\[47\] and the terms of which, as between themselves, cannot be affected by a bill of lading,\[48\] or a custom,\[49\] is governed by the laws of the country where made,\[50\] and will be construed according to the evident intention of the parties,\[61\] in the light of ordinary conditions and the peculiar construction of the vessel.\[62\] If the contract, the validity of which is determined by its contents and the circumstances under which it was executed,\[63\] be oral, it, as well as claims for expenses under a written agreement,\[54\] must be established by sufficient evidence;\[63\] if in writing, it must be signed by the parties to be bound\[64\] or someone having authority,\[87\] and must be mutual,\[88\] and free from fraud.\[50\] A written offer to charter

## 12 Out. Law. SHIPPING AND WATER TRAFFIC SS 6.

may waive the obligation to complete the voyage,\[46\] and whether a port is en route between two points is open to testimony.\[46\] The charter party, which determines the rights and liabilities of the parties,\[47\] and the terms of which, as between themselves, cannot be affected by a bill of lading,\[48\] or a custom,\[49\] is governed by the laws of the country where made,\[50\] and will be construed according to the evident intention of the parties,\[61\] in the light of ordinary conditions and the peculiar construction of the vessel.\[62\] If the contract, the validity of which is determined by its contents and the circumstances under which it was executed,\[63\] be oral, it, as well as claims for expenses under which it was executed,\[63\] be oral, it, as well as claims for expenses under which it was executed,\[64\] must be established by sufficient evidence;\[65\] if in writing, it must be signed by the parties to be bound\[64\] or someone having authority,\[87\] and must be mutual,\[88\] and free from fraud.\[50\] A written offer to charter

## 13 Out. Law. SHIPPING AND WATER TRAFFIC SS 6.

may waive the obligation to complete the voyage,\[46\] and whether a port is en route between two points is open to testimony.\[46\] The charter party, which determines the rights and liabilities of the parties,\[47\] and the terms of which, as between themselves, cannot be affected by a bill of lading,\[48\] or a custom,\[49\] is governed by the laws of the country where made,\[50\] and will be construed according to the evident intention of the parties,\[61\] in the light of ordinary conditions and the peculiar construction of the vessel.\[62\] If the contract, the validity of which is determined by its contents and the circumstances under which it was executed,\[63\] be oral, it, as well as claims for expenses under which it was executed,\[63\] be oral, it, as well as claims for expenses under which it was executed,\[64\] must be established by sufficient evidence;\[65\] if in writing, it must be signed by the parties to be bound\[64\] or someone having authority,\[87\] and must be mutual,\[88\] and free from fraud.\[50\] A written offer to charter

## 14 Out. Law. SHIPPING AND WATER TRAFFIC SS 6.

may waive the obligation to complete the voyage,\[46\] and whether a port is en route between two points is open to testimony.\[46\] The charter party, which determines the rights and liabilities of the parties,\[47\] and the terms of which, as between themselves, cannot be affected by a bill of lading,\[48\] or a custom,\[49\] is governed by the laws of the country where made,\[50\] and will be construed according to the evident intention of the parties,\[61\] in the light of ordinary conditions and the peculiar construction of the vessel.\[62\] If the contract, the validity of which is determined by its contents and the circumstances under which it was executed,\[63\] be oral, it, as well as claims for expenses under which it was executed,\[63\] be oral, it, as well as claims for expenses under which it was executed,\[64\] must be established by sufficient evidence;\[65\] if in writing, it must be signed by the parties to be bound\[64\] or someone having authority,\[87\] and must be mutual,\[88\] and free from fraud.\[50\] A written offer to charter

## 15 Out. Law. SHIPPING AND WATER TRAFFIC SS 6.

may waive the obligation to complete the voyage,\[46\] and whether a port is en route between two points is open to testimony.\[46\] The charter party, which determines the rights and liabilities ofmay be accepted verbally,60 and, when in writing, will be construed as a whole, in connection with the offer.61 Having accepted and used the vessel after full opportunity to know its condition, the charterer is liable for its hire,62 nor will claim for loss of service of vessel through its lawful detention,63 nor shortage paid consignee,64 nor wages paid for services done for charterer's own convenience, be allowed,65 but the owner is not entitled to hire while he is deciding about fittings66 and each party is liable for his surveyor's fees.67

but violation of the statute is not material if the fault in no way contributed to the accident." In case of collision, a satement thereof and the circumstances under which it occurred shall immediately be entered in the log book."

(SS '?) _B. Lights, signals and lookouts_," See 'S C. L. 1915--Unless the error is made in extremis," proper lights 81 and signals 82 must be given and replied to," nor can they be changed unless necessary," but whether a vessel was at fault in that respect is a question of fact." Fog signals need not be given, however, to apprise people on constructions near shore of the proximity of a vessel." Proper lookouts should also be kept," but they are not necessary on scows at permanent moorings."

(SS '?) _C. Steering and sailing rules_," See 'S C. L. 1915--Passing vessels, after exchanging signals, should navigate in conformity thereto," and when consent is necessary to justify a course of navigation, it is a fault not to first obtain it;" hence before one passes another on the starboard side, from a head to head position, its consent should be obtained." When two steam vessels are meeting end on, or nearly so, which involves risk of collision, each shall alter her course to starboard so as to pass on the port side of each other," but when their situation and course are so far

City of Lowell \[C. C. A.\] 152 F 593. The 'no recovery. Mooney v. Carter \[C. C. A.\] 152 F 147.

statuory rule requiring vessels to keep in the middle of East river has not been changed by the pilot rules. Act June 7, 1897,

c. 4, 30 Stat. 96 (U. S. Comp. St., 1901, p. 2868)

prexerlies that a salling vessel under way in fog shall sound, when on starboard tack,

2876). The Maine, 153 F 635. North river,

from 230 St., N. Y., to the upper bay, is not a narrow channel. The Islander \[C. C. A.\] 152 F 385.

83. A stesser falling to answer signals

01. Descending stesser shall give signal indicating preference. Wineman v. Drake

The H. B. Rawson, 152 F 1001.

\[C.- C. A.\] 154 F 933.

78. Steamer colliding with q tug's tow not chargeable with contributing fault in not navigating nearer the center of East river, the tug's fault causing the accident. The W. N. Bavier \[C. C. A.\] 153 F 970.

01. An entry may be so mager, evasive and destintute of statements of the real circumstances as to be a violation of duty imposed by statute. Such statement will afford grounds for the inference that the master, when entry was made, knew his vessel to be ln fault. The Seneca, 159 F 578.

01. Palmer v. Merchant's & Miners' Transp. Co., 154 F 683. An Improper signal, given in extremis, is not chargeable as a contributing fault, the other vessel being responsible for the accident. The Pacific \[C. C. A.\] 154 F 943. On collision of stesser and schooner, primary fault shown to oe in stesser, and schooner not at fault in display of signal misleading stesser, it having been done in extremis. The Furnesia \[C. C. A.\] 154 F 948.

01. A schooner beamed and drifting at night, and being the overtaken vessel, should exhibit a white light or flare asteron, her side lights not being visible to approach.

01. The United States regulations require dredges in the Delaware river to have in view one white and four red lights, the latter to be displayed on the side on which it is desired vessels should pass. The Henry O. Barrett, 156 F 417. Rowabout on river at night without proper signal and injury to occupant. Though the master of the stesser was guilty of negligence in not keeping a proper lookout, there could be on the starboard of each other that they cannot be considered as meeting head to head, they should pass on the starboard side of each other."1 Ten or eleven knots an hour at night in a dense fog, in frequented waters, is not a moderate speed for a steamer," but, for a schooner under such circumstances, four knots is."1 There is no difference in the obligations of vessels, whether navigating harbor or river, in respect of displacement of waves,"1 and they are bound to consider the effect of their swell on other craft and act accordingly."1 The duty is the same toward a floating dry dock."1 Whether the accident was due to swells from the steamer or negligence of libelant,"1 and the identity of the vessel causing the swells will be determined from the evidence adduced.1

(SS 7) _D. Vessels anchored, drifting, grounded._\[22\] & C. L. 1921.-Anchoring in navigable waters is not forbidden except where to do so will prevent passage or render it unsafe.2 What care is necessary in order to keep the moorings properly adjusted and the strains equalized depends on circumstances.2 A schooner is not liable for collision caused by its projecting anchor, the other vessel not having exercised ordinary care.2 Vessel's owner may show that the drifting was the result of inevitable accident.2

(SS 7) _E. Tugs and tows, pilot boats, fishing vessels, etc._\[22\] & C. L. 1923.-As between a burdened tug and a steamer, the former has the right of way.2 It is the tug's duty to exercise ordinary care and vigilance for the safety of her tow,7 and, so long as she is not going into danger, it is the duty of the tow to follow her and conform to her movements.8 That she was at fault must be shown9 or determined from the evidence 10 and facts of the particular case.11 She is not liable for a collision caused by the slipping of the hauser on her tow,12 but she must take precautions to prevent passing vessels from being misled.13 A pilot, when he loses control of his boat or sees she does not answer her helm, should stop and let go the anchor,14 and he should not, without a lookout, approach a steamer and cross her bow.15

burden is on libelant to identify the vessel causing injury.19 If both the colliding vessels are at fault, they will be held companions in liability,20 and where by the fault of two vessels a collision takes place, whereby damage is done to a third, recovery may be had against both,21 but the vessel entirely free from fault will not be held responsible in any way,22 nor is a change of course, made in a position of peril, a fault for which the vessel is responsible if such position was not brought about by herself.23

(SS 7) G. Ascertainment and measure of damages.See 8 C. L. 1925--A double charge is improper.24 The allowance of interest is entirely within the discretion of the court25 and it is the usual custom to allow it,28 and when the injury is repaired, interest runs from the time repairs become payable.27

(SS 7) H. Common-law liability for negligent navigation.See 8 C. L. 1928--Lia-bility is put on the party whose negligence is the proximate cause of the injury.28

SS 8. \_Carriage of passengers.\_See 8 C. L. 1928--The carrier must exercise the utmost care consistent with the nature of the undertaking, and with a due regard for all the other matters which ought to be considered in conducting the business,29 hence,

room for passing. The Hustler \[C. C. A.\] 18. A vessel under way which collides with 159 F 121. Tugs with towns, meeting in the "A vessel at anchor is presumably at fault. Kills opposite Elizabeth, N. J. Tugs. The Persian, 159 F 788. The actual violation at the time of the collision of a statu-on starboard side of channel, at fault. Thames Towboat Co., Pennsylvania R. Co., 157 F 306. A vessel knowing of detecting both and currents which fails to avoid them, collision with a vessel safely anchored re-supling, is at fault. Christle V. Fane S. S. Co. \[C. C. A.\] 159 F 648. The fact that acow was "adrift, deserted and unlighted at time of coll-lialon puts the owner in fault. In re East: enr Dredging Co., 159 F 541. Tug ascending river with tow, on crossing failed to shorten up until in middle of river. Steamship coming down, half mile distant when tow started across, no signals, but steamship starboard helm, slowed, but did not reverse until tugs stopped, and collided with tow. Both tug and steamship at fault. Tows not at fault. The Algeria, 155 F 902. Collision in dense fog between steamor and schonomer. Schonomer giving proper signals and going at rate of between five and six knots per hour. Steamor, though reversing, at fault for not hearing or understanding signals. Schonomer at fault for sailing too fast. The Sif, 157 F 454. Ferry boat left slip, signalling, at full speed. Beyond slip in front of boat, pier extended 180 feet, past which steamor was moving too close and without giving signal or heading signal of ferry boat. Both in fault. The Fearless, 156 F 428. Tugs, one navigating without helper and lookout in 40 mile wind, the other not paying proper attention to tow and bearing to port soon after passing former. Mutual fault. The Peneody, 157 F 124. Vessels moving in same direction, each lasting on her own right of way, and no reason why either could not have moved out of the other's way. Mutual fault. Steamor No. 15, 157 F 142. Tug with tow going down river on right side, and launch going up on same side. Both at fault, tug in being on wrong side, and launch in per-sisting in her course. The Taurus, 156 F 838. Tugs with barges in tow meeting in dense fog, signaling, and failing to stop, both at fault. Barre not at fault for error made in extrems. The John A. Hughes, 156 F 879.

carrier must take due and proper care to provide for passengers, landing; * sufficient watchmen must be provided,\[31\] and lack of viligance on the part of such watchman may be inferred.\[32\] It is negligence, liability for which may be limited * to the appraised value of the vessel and freight,\[34\] to allow a passenger to leave a wrecked vessel in a small boat without a competent seaman in charge,\[35\] so, too, is the failure to provide inside bolts to stateroom doors,\[38\] but a passenger is not entitled to the exclusive use of a stateroom containing two berths.\[37\] The damages will be commensurate with the injury.\[38\]

**SS 9.**\_Carriage of goods.\_See * C. L. 1930--The carrier is bound to provide against such conditions at sea as might be expected,\[39\] and whether the damage was due to careless stowing,\[40\] condition of the vessel, or perils of the sea, is a question of fact,\[41\] the burden being on the vessel to show the damage resulted from a peril of the sea.\[42\] It is the duty of the owner to report disabilities of the vessel,\[43\] and the shipper may be required to make claim within a limited time \[44\] and to give notice of damage,\[45\] the sufficiency of which notice may be determined by circumstances.\[46\] The bill of landing, which may give the vessel the right to deviate,\[47\] will be construed in the light of

not necessarily negligence or fault. The * City of Boston, 159 F 261. * C.

conditions and circumstances which the evidence shows were known and in contemplation of the parties,\[48\] but if it does not correctly represent the facts, it is not binding on the parties.\[49\] The liability once fixed, unless the measure of damages is stipulated, in which event no other measure is permissible,\[50\] the shipper may recover damages commensurate with his loss.\[51\] He may recover damages for refusal of carrier to transport a portion of the cargo,\[52\] and the ship is liable for the cargo received,\[53\] nor will an advance made by the insurance company to the shipper extinguish his liability,\[54\] but he is not liable for a shortage not existing though master gave a general receipt for the cargo,\[55\] nor when goods are shown to have been delivered in the same condition as when received,\[56\] nor for hire, in the absence of a mutual understanding or agreement.\[67\]

\_The Harter Act.\_See * C. L. 1981.--The Harter Act, providing exemption in certain cases, applies to the vessel on which the merchandise is being transported.\[58\] Under this act, if the vessel is seaworthy and properly manned, etc., the owners are not liable for loss or damage resulting from perils of the sea, where the master has been negligent in putting out,\[59\] but to avail himself of the exemption, the owner must show by affirmative proof that the vessel was seaworthy, or that due diligence was used to make her so,\[60\] where, by contract, the obligation to provide a seaworthy vessel has been limited to the exercise of such diligence.\[61\] Negligent stowing is not within the protection of the act,\[52\] nor does it exempt from the consequences of unseaworthiness,\[63\] and under it, too, the master must sign the bill of lading.\[64\]

**SS 10.**\_Freight and demurrage.\_Freight.\_See * C. L. 1982.--Actual freight will be 48. Pacific Coast Co. v. Yukon Independent Transp. Co. \[C. C. A.\] 155 F 29; United States Shipping Co. v. U. S., 146 F 214. 49. If signed by shipper under protest, such protest will preserve his rights. The Citta Di Palermo, 153 F 278. 50. The Ask, 156 F 678. 51. The shipper is entitled to recover for property lost the value of it at the place of shipment, and the freight paid thereon. The Olympia, 156 F 252. The shipper, for breach of contract, is entitled to damages for loss of market, with a view to which the contract was made. Pacific Coast Co. v. Yukon Independent Transp. Co. \[C. C. A.\] 155 F 29. Where the cargo is damaged through fault of the carrier, the measure of damages is the difference between the value of the goods in their damaged state and their value at port of destination, delivered in good order with interest from time of delivery. Other items occasioned by damage, moving goods, whatfago, storage, and commissions on sale, may be added. The Bergemeyer, 155 F 439. 52. The Citta Di Palermo, 153 F 378. 53. But it may be shown that the quantity stated in the bill of lading was not received on board. A suggestion, however, of mistake in lating at place of loading will not overcome the prima facle case made by the bill of lading. Downgate S. B. Co. v. Arbunckle, 158 F 179. 54. Bradley v. Lehigh Valley R. Co. \[C. C. A.\] 153 F 356. 55. Claim for shortage in goods handled altogether by charterrers agents, and none lost, jettisoned, or used during voyage. Glassow Steam Shipping Co. v. Tweedie Trading Co., 154 F 84. 56. The Amsterdam, 156 F 850. 57. Tug owner has no lien for towage service at so much per day, it appearing that credit was extended to the owner and not to the dredges towed. The Alligator, 153 F 216. 58. Where the entire transportation is made up of successive stages by successive vessels, the act applies to the particular vessel whose navigation or management has been faulty or erroneous. If the voyage has not commenced, the cargo not yet all on board, nor the vessel ready to sail, the bene. ft of the act cannot be claimed. Fault v. New York & T. S. S. Co. \[C. C. A.\] 154 F 286. 59. The owners are not liable for loss resulting from the master's failure to regard the warnings of the weather bureau. Hanson v. Haywood Bros. & Wakefield Co. \[C. C. A.\] 152 F 401. 60. The affirmative proof cannot be supplied by inferences or presumptions. Bradley v. Lehigh Valley R. Co. \[C. C. A.\] 153 F 350. The burden of proof is on the owner to show seaworthiness, or due diligence to ascertain that fact. The Ninfa, 156 F 612. 61. This latter obligation cannot, however, under any condition, be relieved against. The Ninfa, 156 F 612. 62. The Persiana, 156 F 1019. 63. A ship is seaworthy if it is reasonably fit to carry the cargo which it has undertaken to transport. The Ninfa, 156 F 512. 64. Under provisions of SS 4. Act of Congress Feb, 18, 1893 (27 Stat. 445, c. 105, U. S. Comp. St. 1901, p. 2947), master of vessel en-gaged by charter for transportation of cargo is not authorized to refuse to sign bills of lading because 10 Cur. Law. SHIPPING AND WATER TRAFFIC SS 10. 1665

computed on the amount carried and not on the vessel's tonnage," and where the bill of lading provides for it, pro rata freight may be charged," but dead freight is not recoverable," and, on abandonment of the vessel, the lion is lost and cannot be resumed." The shipper may recover freight charges paid in excess of those earned."

\_Denumrage,\_See 6 C. L. 1993--Demurrage, the probable net earnings of the vessel during the period of delay," exclusive of interest," the rate of which and the time of detention may be left to the finding of a commissioner," if not precluded by the terms of the charter," will be allowed for delays caused by charterre's fault," but not for delays caused by the master," and, under contract, the consignee may recover demurrage paid another vessel." There is, however, no liability for demurrage because of delay in discharging, reasonable regulations as to which should be anticipated by the shippers," if it is carried on with reasonable dispatch "s after arrival," and though liability for delays caused by quarantine may be governed by the contract,"

if no time be fixed for the loading " or discharge, a reasonable time is implied," and

in the absence of a contrary showing, the party who is to load the vessel will be

\*5. Proof showing amount of cargo car-

- ried. Brig Sally, 41 Ct. CL. 431.
  \*6. Bill of lading provided that in event of
- of the occupation by the first of a whart for
- rider should be paid pro rata for that part of
- r transportation completed. Freight pro rata
- 368.
- 77. United States Shipping Co. v. U. S., 146
- 69. The Citta Di Palermo, 153 F 378.
- 78. United States Shipping Co. v. U. S., 146
- 79. When the lay days begin is determined by the character of the bill of lading, hence, under old bill of lading, vessels
      \*8. Abandonment of cargo to salvage by
- underwriters is relinquishment of possession
- and consequent walver of lion for freight
- Portland Flowing Mills Co. v. Portland &
- Asiatic S. S. Co, 153 F 131.
- 69. The Citta Di Palermo, 153 F 378.
- 70. This may be ascertained by finding
- the gross freight which it would under or-
- diary circumstances, in the usual course
- of employment have earned, and deducting
- therfrom what it would have expended in
- earning it. United States Shipping Co. v. U. S., 146 F 914.
- 71. The Sitka, 156 F 427.
- 72. Tweedle Trading Co. v. Strong & Trow-
- bridge Co., 157 F 204.
- 73. Pendleton Bros. v. Atlantic Lumber Co.
- 74. Charter obliged to furnish safe berth
- from which to discharge, but falling to do
- so vessel damaged and sunk in consequence.
- Charterter liable pro r resulting delay in dis-
- charging. Carroll v. Holway, 153 F 228.
- Charterter had right to move vessel from
- one berth to another, pursuant to which
- right he ordered vessel moved, and master,
- being unable to obtain tug on the evening
- ordered to move, moved on next morning,
- but found berth directed to move to occu-
- pied, causing several days' dalery. Charterre
- liable, Hammett v. Chase, Talbot & Co., 158
- F 203.
- 75. Claim for demurrage for delay in
- clearing port, caused by efforts of master to
- collect another claim for demurrage, even
- though latter be just, not chargeable to
- dhernterer nor collectible by law. Pendleton
- Bros. v. Atlantic Lumber Co. \[Ga. App.\] 60
- SB 377.
- 76. Under contract for reasonable dis-
- patch for a vessel, consignee may recover
- 77. United states Shipping Co. v. U. S., 146
- 78. United States Shipping Co. v. U. S., 146
- 79. When the lay days begin is determined by the character of the bill of lading, hence, under old bill of lading, vessels
- were required to have actually arrived at
- whart before lay days began. Under new
- bill, lay days begin 24 hours after arrival
- in port and reporting. Carroll v. Holway,
- 183 F 328. The term "discharge continuous-
- will be given its reasonable and evident
- meaning, hence, continuously means during
- the working hours of working days. Tweedle
- die Trading Co. v, Pitch Pine Lumber Co.,
- 185 F 88.
- 70. On the question of demurrage, "ar-
- riva" means arrival at a place where dis-
- charge is possible, hence, a loaded ship has
- not arrived at her destination in respect of
- the discharge of her cargo until she is
- where the work of unloading may be ac-
- totally begun. Tweedle Trading Co. v. Pitch
- Pine Lumber Co., 156 F 88.
- 80. Glasgow Steam Shipping Co. v. Tweedle
- die Trading Co., 154 F 84. Under provisions
- that in event of loss of time from deficiency
- of men," etc.," preventing working of vessel
- for more than twenty-four hours, payment
- of hire should cease," where vessel was dis-
- charged of its sick scanner by quarantine
- deemed the agent of the charterer." Notice of arrival, no particular form of which is required, may be given on Sunday."

SS 11. \_Pilotage, towage and wharfage.\_See * C. L. 1983--Pilots, whose occupation requires skill," may be regulated by the states " in so far as its laws conflict with no Federal statute." Such acts include all vessels " and will be liberally construed " with reference to their purpose." Acting under such laws, the board of pilot commissioners, the time of making whose appointment is merely directory," may, within the power conferred upon it, adopt reasonable rules." which acts are not judicial in character," and impose penalties for their breach." The applicant for a license, which is property," but will not authorize him to operate in waters within the limits of another state," may be required, without violating the constitution, to be a qualified voter." Their fees may be fixed and their number limited," and while a duly authorized pilot on offering his services to vessels subject to pilotage regulations is entitled to the fees, though his services are refused," the ship is answerable for his fault," and he is liable over to it if it has been compelled to pay damages because of such fault," and want of notice and delay in asserting the claim, injury not having resulted, is no defense."

_Towage_ service, the costs of which will be adjusted as equity dictates," is one which is rendered for the purpose of expediting a vessel's voyage." The tug's duties and responsibilities are well defined," for a breach of which it is liable," though the tow is made up in an unusual way, against its protest." The negligence must

83. Peck v. U. S., 152 F 524.

01. Carroll v. Nolvay, 158 F 328.

01. This occupation and situation implies skill and knowledge of the waters he unattakes to navigate, knowledge of the channel, current, tides, shoals, etc. And a failure to exert that headful skill and knowledge, either because it is not possessed or from instentions or error of judgment, is a fault. The Blackheath, 154 F 758.

01. State v. Leech, 119 La. 522, 44 S 285; St. George v. Hardle \[N. C.\] 68 SE 920.

01. Congress, so far, has confined itself to regulation of pilotage as to vessels engaged in coastwise or interior commerce, as to which its laws are supreme. The states, therefore, are free to enact laws regulating plitage of vessels engaged in foreign commerce, and to that extent such laws are valid. State v. Ames \[Wash.\] 92 P 137.

01. Laws 1887-88, p. 175, c. 93. State v. Ames \[Wash.\] 92 P 137.

01. St. George v. Hardle \[N. C.\] 60 SE 920.

01. People v. Gunner, 108 NYS 726; St. George v. Hardle \[N. C.\] 60 SE 920.

01. Under statute providing for appointment of commissioners of navigation on or before April 5, 1997, term to begin April 15, 1997, was valid, statute being in existence at that time. St. George v. Hardle \[N. C.\] 60 SE 920.

01. Yilden v. Pilot Com'rs \[Del.\] 67 A 975.

01. The making of rules for the government of pilots by port wardens is not a judicial act. People v. Gunner, 108 NYS 726.

01. Unless authorized by the legislature, the board cannot impose a forfeiture, and a court of equity will restrain the enforcement of it. Virden v. Pilot Com'rs \[Del.\] 67 A 975.

01. The board of pilot commissioners have not the authority to forfeit such license as a penalty for a breach of its rules. Virden v. Pilot Com'rs \[Del.\] 67 A 975.

01. State v. Leech, 119 La. 522, 44 S 285.

01. State v. Ames \[Wash.\] 92 P 137.

01. This power can only be called in queskskill and knowledge of the waters he unattonal right of theirs is infringed. St. George v. Hardle \[N. C.\] 60 SE 920.

01. St. George v. Hardle \[N. C.\] 60 SE 920.

01. The Blackheath, 154 F 758.

01. This liability is not affected by the fact that the vessel paid damages without suit. Guy v. Donald, 157 F 527.

01. Guy v. Donald, 157 F 527.

01. Lynch v. Chew, 159 P 182.

01. The-S. C. Schenk \[C. C.\] 158 F 54.

01. She is bound to know the channels, the depth of water, the risk which she undertakes. She must use skill, caution, and attention to her duties, and she is responsible for the care of boat she is towine until destimulation is reached in so far as that care is dependent upon the skill, knowledge, and attention with which she and her officers perform their work. The Flushing, 159 F 57; Baltimore & Boston Barge Co. v. Knickick-Gerocker Steam Towrage Co., 159 F 755.

01. Under statute providing for appointment of commissioners of navigation on or by before April 5, 1997, 10 Cur. Law. SHIPPING AND WATER TRAFFIC SS 12. 1667

be shown, however,9 and the burden of proof is on libelant.10 The damages for which rug is liable for negligent loss of her tow's cargo is the market value of cargo at port of shipment and carrying expenses incurred,11 but evidence of selling price of similar vessels is inadmissible.12

_Wharfage_ is a mere charge made by the owner of the soil or shore for the use of a portion of it,13 liability for which may be governed by general custom.14 Where the charterrer is bound to furnish a berth for the vessel, he is liable for extra wharfage.15

SS 12. \_Repairs, supplies, and like expenses.\_See 8 C. L. 1984--The lien, the duration of which is fixed by statute,16 enforceible by proceedings in rem only in a Federal admiralty court,17 and notice of which must be filed as required by statute 18 unless suit to foreclose has been instituted,19 exists only where credit has been given the vessel,20 the minds of the parties having met upon the common understanding that the vessel's credit is pledged for the supplies.21 And since evidence that supplies were furnished on the credit of the vessel is not entitled to controlling weight unless corroborated by other competent evidence of surrounding circumstances,22 the lien cannot be established by proving an account stated,23 nor will it be presumed from the mere fact that the supplies were delivered to the ship that they were furnished

9. Tug took scows to dumping ground, for thirty days. Therefore such lien expires Weather cold and sea high. On signal for dumping scows, one repelled that it had dumped; no reply from other scow which had not been dumped except year pocket, there must be an uninterrupted and connected and on way back capsized due to dumping series of transactions. The Golden Rod \[C. A.\] 153 F 171. failure to ascertain scow's condition sooner. nor could she have assisted in dumping scow under weather conditions had she known of its condition nor was she negligent in returning. The John D. Dalley, 157 F 477. Scow troved to dumping grounds sank because of failure of after pocket to dump Though sea was too high to permit tug to assist in dumping, it was not so high as to render it negligent to take her out. Scow's man had charge of scow and did not dump on order of tug. Tug not negligent. The John A. Hughes \[C. C. A.\] 153 F 94. At this which takes scow to the place directed, especially when the place is an ordinarily safe one, performs her duty and is not liable for what occurs subsequently. The Alice, 157 F 984. The mere fact of sheering does not prove it, for it is quite as likely to come from fault of tow as from that of barge. Baltimore & Boston Barge Co. v. Knickerer,

by

Walker Steam Towse Co., 159 F 550. Playing guilty of negligence in improperly securing tow line. The S. C. Schenk \[C. C. A.\] 158 F 54.

10. The Flushing, 159 F 570; Baltimore & Boston Barge Co. v. Knickerbocker Steam Towse Co., 159 F 755.

11, 12. The Oceanica, 156 F 306.

13. The owner has right to make charge though price, perhaps, may be subject to municipal regulation. The right to charge may be claimed upon an express or implied contract, according to circumstances. Riddik v. Dunn, 145 N. C. 31, 58 SE 438.

01. It seems to be the rule of law as well as custom for consignee to pay wharfanger. Riddick v. Dunn, 145 N. C. 31, 58 SE 439.

01. Hammett v. Chase, Talbot & Co., 158 F 203.

01. The statute gives materialmen a lien 1668 SHIPPERS AND WATER TRAFFIC SS 13. 10 Cur. Law. on her credit.24 The contract must be with one having authority,25 and whether made with the proper party, expressly or by implication, will be determined upon the case presented.26 The master's authority to pledge the credit of the ship, however, is limited to the rule of necessity,27 and while all of his power in this respect cannot be delegated, he may request others to act in his behalf as agent.28 As the rights of materialmer furnishing necessaries to a vessel in her home port may be regulated by each state,29 no lien can be acquired for supplies for such vessel unless one is given by the local law,29 and where repairs are made by order of the owners in a foreign port, the presumption is against the right to lien.21 The services which will give rise to a lien must be such as would be rendered by a mariner,22 as for labor done on the vessel preceding its final laying up,23 and all proper costs for keeping a labeled vessel will be allowed.24 But a ship broker has no lien for commissions or money advanced to pay the obligations of a vessel,25 nor can one who furnishes supplies to a vessel under charter, with notice thereof, hold the vessel liable,24 nor can he hold the vessel for repairs where the contract obligates the charterer to pay all expenses of it,27 but such a provision will not be allowed to work injustice to one furnishing repairs,28 nor will it affect the seaman's right to wages.28 On sale of the vessel under libels, the lien is transferred to the fund.24 . SS 13. _Salvage_,28e * C. L. 1388--Salvage is a compensation for maritime services voluntarily rendered 41 in saving property or rescuing it from impending peril on the sea or wrecked on the coast of the sea or on a public navigable river or lake where interstate or foreign commerce is carried on.24 Therefore it must appear that her home port, after she had gone out of commission for the season, are not such services. The James T. Furber, 167 F 124. 33. The Clmpira, 156 F 278. 34. Charges for a deeper and extra labor for pumping to keep vessel afloat are proper. The Robert R. Kirkland \[C. C. A.15 158 F 862. 35. Commercial Nat. Bk, v. Sloman, 121 App. Div. 874, 106 NT NT5 808. 36. The libel is chargeable with such notice as diligent inquiry would have elicited. The Mt. Desert, 168 F 217; The Gent. J. A. Dumont, 158 F 312. 37. The Gen. J. A. Dumont, 158 F 312. 38. Such a provision will not affect the vessel's liability to one who repaired her after a collision where the owner supervised the work and received damages for the work done. The Mt. Desert, 168 F 217. 39. The lien in seaman's favor is given by law, based upon the necessity of the service rendered by one of this class, favored by the law because of the hazards they encounter and hardships they endure in the interest of the ship and her owner and the furthermore of commerce. The Gen. J. A. Dumont, 158 F 312. 31. 40. In such case a state court may order it paid. Russell v. Myers Excursion & Transfer Co. IN. J. Eq. 67 A 1016. 41. The S. C. Schenk \[C. C. A.15 158 F 54; City of Puebla, 163 F 928. 42. It follows that there must have been a sea peril from which the vessel was rescued and the vessel itself must have been at the time the subject of a sea peril in order to support a maritime lien and afford jurisdiction in rem in the admiralr. The Jefferson, 168 F 368. The perils of the vessel saved and the circumstances under which assistance is rendered determine whether 10 Cur. Law. SHIPPING AND WATER TRAFFIC SS 13. 1669 except for the service the property would have been lost \[44\] or that assistance was rendered at some stage of the rescuing service which in some way contributed to the final safety of the rescued ship \[44\] and, though all the other elements be present, lack of success alone will defeat the claim.\[45\] A vessel is not a dereliet until abandoned,\[46\] but, prima facie, if found at sea in a situation of peril with no one aboard of her, she is.\[47\] A burning vessel at a burning dock is a subject of salvage service,\[48\] but not if burning in a dry dock.\[49\] The master may, when in command and control, reject salvage services,\[50\] but when no adequate or reasonable means of assistance exist at the time, he cannot repudiate them when the danger has passed.\[51\] The award is apportioned as the circumstances of the case may justify,\[52\] and may by the conduct of the parties be lessened\[53\] or forfeited.\[54\] The amount thereof is left very much to the discretion of the court.\[55\] It should be liberal, but not extravagant, and depends on several considerations,\[56\] illustrations of which are given in the notes.\[67\] Remote and conjectural

the service was salvage service or not. The mer carrying eight passengers. Allowance S. C. Shenk \[C. C. A.\] 158 F 54. 43. The New Haven, 159 F 78. 54. 44. Where a vessel took a line from the disabled vessel, which line broke, and no services; second, the risk to which the vessel and other property employed in the The City of Puebla, 158 F 925. 45. The S. C. Shenk \[C. C. A.\] 158 F 54. 46. The Launberga, 154 F 569. 47. Where master and crew leave a vessel 158 F 925. Whether the aided vessel could temporarily, without intention of final abandonment, for the purpose of obtaining as- after of destruction or serious damage, and, instance, and with the intent to return and resume possession, she is not technically der- elict. The Shawnurth, 155 F 476. 48. The Indian \[C. C. A.\] 159 F 20. 49. The Jefferson, 158 F 358. 50. The Indian \[C. C. A.\] 159 F 20. 51. The Ragnack, 158 F 694. 52. Where crew worked for wages, ran no eminent risk, nor performed no act of her- ism, daring or courage, one-fourth of the award held sufficient. The Launberga, 154 F 939. 55. An exaggerated claim will have the ef- fect of leasing the amount of the award. The Ragnack, 158 F 694. 54. Whether an act is a spollation that will forfeit salvage depends on circum- and, in cases. Wine drifting in casks at sea and salved, salvors drilling holes in casks, pre- summably to test whether it had been affected by the salt water. Not a spollation forfeit- leungrage, 154 F 55. A streamer which was Wrecking Co. Y. About 400 Barrels Wine 16. Negligence of the res- from fire awarded $75 as salvage. The River citing vessel may result in both profiterive of right to salvage and damage. Hence, when doing, worth $5,000, In Delaware river, Eight days' work by salvor. No danger. Award the negligence of one undertaking a salvage service, there may not only be forfeiting of F 201. Salvor worth $8,000, eight houry asl claim to salvage, but an affirmative averv, sustaining injury. Rescued vessel award of damages against the salving vessel. When, however, this liability is sought to be fixed solely because the service was considerable peril. Award of $5,000 and $150 ineffectual, no independent injury having been caused, hence is no responsibility if the salvor acted in good faith without clear evl- salvor at $15,000, elance of culpable negligence or Willtri mal- conduct. The S. C. Schenk \[C. C. A.\] 158 F 54. 55. 56. Recuced steamer had .185 passengers and wae valued at $25,000, cargo and freight $8,488. Salvors were valued re- umber danger and hardship, $1,900 worth of wine from the sea. Merritt & Chapman Der 1670 SHIPPERS AND WATER TRAFFIC SS 14. 10 Cur. Law. claims will not be allowed, \[58\] nor, except in some cases, \[58\] will interest or damage for delay. \[60\] The rule of diligence obligatory upon salvors in making the rescue is that of ordinary care, \[61\] but what was an exercise of proper care and skill is determinable from the facts and circumstances. \[62\] The salvor must also use reasonable care to protect the property after its rescue. \[63\]

SS 14. \_Vessels or persons liable for loss and expense, and limitation of liability therefor. \[58\] & C. L. \[188\]--The liability of pilots and towing companies, or vessels, is treated in another section. \[64\] It is the carrier's duty to minimize loss, \[65\] and the captain's failure to protect the vessel may go to a reduction of damages for her injury. \[66\] For destruction of the vessel while in his possession, the hirer is liable. \[67\]

\_Limitation of liability. \[58\] & C. L. \[189\]--The statute limiting liability of the owner to the amount or value of his interest in the vessel and her pending freight \[68\] was meant to apply to losses due to the negligence of an employee, \[60\] or by striking an unknown obstruction under the water, \[60\] but it does not extend to services rendered by a towing company under contract. \[71\] The validity of a condition restricting liability is determined by the law of the place of contract, \[72\] and will apply only to the voyage contemplated in the agreement. \[73\]

SS 15. \_General average. \[58\] & C. L. \[184\]--General average contribution, which is not affected by stipulations in a bill of lading exempting carrier from losses in certain cases \[74\] and for which the master and shipowner may be responsible to the full amount, \[75\] is based on a voluntary sacrifice of a portion of the marine risk, which

rick & Wrecking Co. v. About 400 Barrels of Wine \[C. C. A.\] 159 F 406. Vessel salved was burning at a burning dock and valued in addition for sale. Ralli v. New York & at 446,229.17; salvors valued at $155,000 and $80,000, respectively. Award to former $5,000, to latter $7,500, the master and men of the latter having gone aboard of burning vessel and rendered valuable service with hose. The Indian \[C. C. A.\] 159 F 20. Vessel salvared worth $45,000, service lasting 20 minutes. No danger or hardship to salvor, while danger to salv vessel imminent, but not extreme. Award $1,200. The Ragnarok, 158 F 694. The amount of the award may be modified by the conduct of the owners in their efforts to resume possession, as where vessel was abandoned temporarily to prove assistance, in which promptness and intelligence were exercised, and considerable expense incurred. The Shawnut, 155 F 476. \[58\] The Pelican, 158 F 183. \[59\] In view of the long delay, an allowance in the shape of interest was held not to be ineqitable. Merritt & Chapman Derrick & Wrecking Co. v. About 400 Barrels of Wine \[C. C. A.\] 159 F 406. \[60\] The Western Star, 157 F 489. \[61\] The law does not and should not scrutinize too narrowly a service begun with meritorous motive to save property exposed to destruction. So long as the salvor acts in Good faith and exercises the skill and care which a prudent man would employ in preserving his own property, his right to compensation will not be defeated by a showing that a greater degree of skill might have avoided any possible perl. The Shawnut, 155 F 476. \[62\] The Launberga, 154 F 959. \[63\] The S. C. Schank \[C. C. A.\] 158 F 54. \[64\] See ante, 8 11. \[65\] He is not entitled to a deduction for the following reasons: \[66\] & C. L. \[67\] & C. L. \[68\] & C. L. \[69\] & C. L. \[70\] & C. L. \[71\] & C. L. \[72\] & C. L. \[73\] & C. L. \[74\] & C. L. \[75\] & C. L. \[76\] & C. L. \[77\] & C. L. \[78\] & C. L. \[79\] & C. L. \[70\] & C. L. \[71\] & C. L. \[72\] & C. L. \[73\] & C. L. \[74\] & C. L. \[75\] & C. L. \[76\] & C. L. \[77\] & C. L. \[78\] & C. L. \[79\] & C. L. \[70\] & C. L. \[71\] & C. L. \[70\] & C. L. \[71\] & C. L. \[72\] & C. L. \[73\] & C. L. \[74\] & C. L. \[75\] & C. L. \[76\] & C. L. \[77\] & C. L. \[78\] & C. L.

must have been made for the common benefit of the joint enterprise, and for no other purpose.\[16\] The presumption is in favor of the adjustment,\[17\] and the burden is on. the party charging to impeach it for fraud.\[78\]

SS 16. \_Wreck.\_See 4 C. L. 1487

SS 17. \_Marine Insurance.\_See 5 C. L. 1480.--The object of insurance on disbursements is to insure the owner the recovery of additional sums beyond the amount covered by his insurance on ships and freight, and it is made against total loss only.\[79\] The risk must be accepted before the insurer is bound,\[80\] and the subject of it depends on the intention of the parties as evidenced by the language of the policy.\[81\] While the shipper cannot be required to procure insurance for his benefit,\[82\] the carrier may have an insurable interest in the cargo,\[83\] and the presence of this interest determines whether a wagering policy is void,\[94\] but a splitting up of the voyage and separating the insurable risks will not invalidate it.\[85\] The liability of insurer, which ends when the vessel reaches her port of destination,\[86\] and whether the contract is one of indemnity or insurance,\[87\] may be determined by its terms.\[88\] The loss, which it is proper to show has been paid the owner by the carrier,\[89\] and as to which subrogation between insurers results by operation of law from the mere act of paying it\[89\] in full,\[94\] and which may depend upon the character of the policy, whether valued or contribution, and delivers goods without re-

lated when insurance was written, nor as-

quiring payment or bond, or other security

sented to will relieve insurer. In this case

for payment thereof, he and owner of ship

the 3rd section of the Harter act cannot

become personally liable for full amount

be relied on. Alaska Banking & Safe De-

which all interests should pay to persons

posit Co., 156 F 710.

agrigleved. It will not be presumed, in the

absence of proof, that consignees were un-

dopeist to be, "that it is to be held to in-

able to give security. The Santa Ana \[C. C. C. A.\] 154 A.\] 154 F 800.

76. The sacrifice must have been made by

order of the owner, master, or authorized

representative. Hence, no recovery where

city fremment poured water into burning ves.

sel. Minneapolis, etc., S. S. Co. V. Manistate

Transit Co., 156 F 424.

77. In the absence of evidence to the con-

trary, it will be assumed that the adjustment was made as it should have been on

damages from steam and water only, and

on proper consideration of the law and ap-

plicable rules. The Santa Ana \[C. C. A.\] 154 F 800.

78. The Santa Ana \[C. C. A.\] 154 F 800.

01. Brown v. Merchants' Marine Ins. Co.

\[C. C. A.\] 152 F 411.

80. Quill v. Boston Ins. Co. \[Mass.\] 83 NE

01.

01. The terms "freight on board, or not on

board," held not intended to include preaid

freight. New York & Cuba Mail S. S. Co. V.

Royal Exch. Assur. \[C. C. A.\] 154 F 315.

82. Bradley v. Lehigh Valley R. Co. \[C. C. A.\] 153 F 350.

01. A. loving company has an insurable

interest in the goods it carries, if liable to

the owner for its loss. Western Assur. Co. V.

V. Chesapeake Lighterage & Towning Co., 105

Md. 323, 65 A 637.

84. Whether a wager policy is void or not

depends on whether the insured has an insurable interest. Brown v. Merchants' Marine Ins. Co. \[C. C. A.\] 152 F 411.

85. St. Paul Fire & Marine Ins. Co. V. Pai-

infc Cold Storage Co. \[C. C. A.\] 157 F 625.

86. An unexpected deviation, not contemp-

lated when insurance was written, nor as-

quiring payment or bond, or other security

sented to will relieve insurer. In this case

for payment thereof, he and owner of ship

the 3rd section of the Harter act cannot

become personally liable for full amount

be relied on. Alaska Banking & Safe De-

which all interests should pay to persons

posit Co. V. Maritime Ins. Co., 156 F 710.

agrigleved. It will not be presumed, in the

absence of proof, that consignees were un-

dopeist to be, "that it is to be held to in-

ability to give security. The Santa Ana \[C. C. C. A.\] 154 F 800.

76. The sacrifice must have been made by

order of the owner, master, or authorized

representative. Hence, no recovery where

city fremment poured water into burning ves.

sel. Minneapolis, etc., S. S. Co. V. Manistate

Transit Co., 156 F 424.

77. In the absence of evidence to the con-

trary, it will be assumed that the adjustment was made as it should have been on

damages from steam and water only, and

on proper consideration of open,"92 is generally the value of the cargo at the place of shipment, not including loss of profits." The insurer is not liable for expense of litigation "\* nor damages resulting from a maritime tort not covered by the terms of the policy,"85 but sums paid out to avert loss that, if it had occurred, would have fallen on the underwriter may be brought within the meaning of the "sue and labor" clause." Though the presumption is, that the vessel is seaworthy," adjusters cannot decide questions of law where they are the sole questions in controversy."

SS 18. \_Maritime torts and crimes.\_See * C. L. 1942.--For an assault upon a seaman by the master, action for which must be in personam only,"95 or for a tortious injury to him,1 and for negligent damage to other vessels, the owner is liable,2 nor will a fault which does not contribute to produce the injury be ground for division of damages." And though it is not always essential that direct or specific contractual relations exist between the libelant and the ship or her owners,4 and though he must make his case reasonably probable and certain," the owner, since he must render his vessel safe for workmen," is liable to them, they assuming no unknown risks,' for injuries resulting from his negligence," which will not be presumed from the mere happening of the accident,\* but will be determined from the facts and circumstances of the case.16 The damages allowed for such injuries, not exceeding the amount and value of the owner's interest in the vessel and her freight pending,\[11\] will be commensurate to the injury,\[12\] and may be recovered in full.\[13\]

Toward a stevedore and his employees, actions by whom are to be determined by the ordinary rules governing the relation of master and servant,\[14\] the owner of a vessel owes a personal duty \[18\] and is liable for injuries to them through instrumentalities with which they have no connection,\[16\] and for those resulting from his negligence,\[17\] but not where their negligence contributes to \[18\] and is the immediate and proximate cause of the injury.\[19\] Where the vessel and the stevedore are joint tort fessors, release of the latter will release the former.\[20\]

Sider walks; Signatures; Simmitter; Simultaneous Actions; Slandeb, see latest topical index.

## 13 Slaves.

A slave cannot be the beneficiary of a trust.\[21\]

_Peonage_ See a C. L. 1948 is the status or condition of compulsory service based upon the indebtedness of the peon to the master,\[22\] and violates the thirteenth amendment of the constitution,\[23\] securing to every person within the jurisdiction of the United

tug at fault. Towing barge out of true to exist and continue without warning stevedure, The Asher J. Hudson \[C. C. A.\] 154

dore. This, of course, does not include latent defect, not disceverable by reasonable protection. Whiley v. British & Foreign S. scow, though removable, is a part of the yes- eel, within the meaning of Rev. St. 4283

16. Longshoreman employed to stow away (U. S. Comp. St. 1901, p. 2943). The Buffalo

cotton injured by breaking of fall with \[C. C. A.\] 154 F 815.

12. Able bolded longshoreman, permanent-ly cripled, properly allowed $3,500. Morel

Evely, 152 F 847.

v. Lehman \[C. C. A.\] 159 F 124. Captain of

tug, salary $100 per month, having jaw

provident selection of rope, the breaking of broken, teeth knocked out, and other injus-, series, surfering great pain and expense, and

A.\] 158 F 855. Vessel seaworthy, owner not permanent disfigurement, allowed annuity of

liable for injuries resulting in negligent $2,000, time for ten months at $100 per month, and $1,500 for pain and expense. The

landing of hatch coverings. Bettis v. Ley-, land (C. C. A.) 153 F 871.

J. G. Lindauer, 158 F 449.

18. Wholey, British & Foreign S, S. Co., 153. Old Dominion S. E. Co., v. Gilmore, 28

185 F 379. The vessel is not liable for an injury caused by defective appliances where

liphant had knowledge of the defect and being merely a stevedore or longshoreman

was warned to keep out of the way. The employed by the vessel, the case is to be determined by ordinary rules governing the

Tripoll, 156 F 223. Libeland covered hatch-termined by ordinary rules governing the

way, preparatory to unloading, with fore relation of master and servant. The Buffalo

\[C. C. A.\] 154 F 815.

15. Owners of vessels owe a personal duty to members of a stevedore's gang to provide

teanlong injury. Because of negligence, no reasonable security against danger to life

recovery. The Ranz, 156 F 373.

and limb and warn them of latent danger.

Leyland v. Holmes \[C. C. A.\] 153 F 657. The vessel owes a personal duty to stevedores

for resulting injuries, he having assumed employed to lead and unload its cargoes to

provide reasonable security against finyury,

man, in handling hauser, knowing the effect and also to warn them of any latent danger

of starting to tow with it, and who could caused by the vessel for which the latter is re-,

have kept out of the way, not entitled to

gonsible. Hence where stevedores were work.

ing in hold and struck, Incidentally, bottom

20. The St. Cutber, 157 F 759.

of skid attached to hatchway, which fell, re-,

21. Nona Mills Co. v. Wright \[Tex.\] 18

sulting in Injury, the burden is on vessel to

rex. Ct. Rep. 637, 102 SW 118.

explain the accident. The Chicago, 166 F 22. United States v. Cole, 153 F 801.

874. The vessel must furnish stevedore em-ployed upon vessel a safe place to work, in

cultural labor required by contract by pro- so far as construction of vessel and its varli-,

viding penalties for violation is unconstituous parts is concerned, and inspection and

tional. Ex parte Drayton, 158 F 986. Ad-care of these parts bound to have been such

vances by surety to pay fine and costs and that no hidden defect (which was or should

living expenses under a contract for service have been known to the officers) is allowed (constitute debt, and defendant cannot be
States the right to freedom from slavery or involuntary servitude; \[24\] but voluntary service by the debtor is lawful.\[25\]

_Slave-marriages, their offspring, and inheritance.\[See $ C. L. 1945--Existent slave marriages were rendered valid by a Federal statute which was retroactive in effect,\[26\] and a statute of Mississippi provided that persons living together as man and wife be held in law as married.\[27\] Also, in South Carolina, it was declared that solenmization was not essential,\[28\] but the statute did not extend to legitimatize the issue of meretricious intercourse between slaves.\[29\]_

Sleeping CARS; Societies, see latest topical index.

SOLOLICATION TO CCHime; Spanish Land Grants; Special Assessments and TAXES; Special Interrooatories to Jury; Special Jury; Special Verdict, see latest topical index.

## 1 Nature and Propriety of Remedy in

D. Legality and Fairness of Contract, General, 1674.

62. Subject-Matter of Enforfeible Contract, E. Necessity of Written Contract, 1683.

01.

8 4. Performance by Complishment, 1685.

8 5. Actions, 1687. Jurisdiction, 1687. Par-A. Necessity of Contract, 1679.

1689. Evidence, 1690. The Relief C. Definiteness of Contract, 1681.

0001. Decree, 1695.

0001.

0001. \_Nature and propriety of remedy in general.\[See $ C. L. 1944--Specific performance being a purely equitable remedy, the granting of such relief rests upon the discretion of the court,\[31\] and the fact that plaintiff is able to establish a valid contract at law is not alone sufficient,\[32\] and, per contra, equity may give relief though the contract is not legally enforcible.\[33\] Such discretion is not arbitrary, but controlled by settled principles of equity.\[34\] Relief will be denied where specific per-convicited for failure to perform as provided Contract may be valid in law and not sub-by Code. Elston v. State \[Ala..\] 45 S 667.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

formance would be harsh, inequitable and unjust \[35\] or where the complainant has an adequate remedy at law.\[36\] Where specific performance would result in damages to defendant largely in excess of benefits to the complainant, damages will be awarded in lieu thereof.\[37\] Relief will not be granted unless complainant's right thereto is shown by clear and satisfactory evidence.\[38\] Specific performance will not be decreed in case of inability to perform \[39\] or where performance has become impossible,\[40\] but where a contract is entered into which one of the parties cannot fulfill in full, the other may have such specific performance if he desires of so much as the party is capable of performing.\[41\] Equity will not, however, decree enforcement of part of a contract in and of itself apart from the entire agreement.\[42\] Contracts have

\[F1a.\] 45 S 574; Godwin v. Springer, 238 Ill. 37. Where cost of levee and bridge that 229, 84 NE 234; George Gunther, Jr., Brew. 40 to build is largely in excess of damages sus- 35. Where the trustee of infant owners of land made a contract to transfer land, but later decided he had made a mistake in so 129 Ill. App. 308. 38. Evidence held insufficient to justify decree of the infant owners, equity will not decree of specific performance. Casstevens 40 does to remedy at law. Givens v. Clam \[Va.\] 11 appears doubtful whether contract was made to sell one of two lots or both of them, complainant asking performance as to one and defendant denying any contract except for the sale of both, specific performance will not be decreed. Sugar v. Froehlich, 229 with the first bidder, for it was the auctioneer's plain duty to ascertain which would pay the most for the property. Byrne v. Fremont Reality Co., 120 App. Div. 692, 105 NYS 888. Performance will not be decreed where it would operate as a hardship due to some act of the complainant. Hefin v. Hefin \[W. Va.\] 59 SE 745. See further $ 2D, Le-gality and Fairness of Contract. 36. Taylor v. Florida East Coast R. Co. \[F1a.\] 45 S 574. 38. Remedy at law held inadequate! Where a railroad asks for and receives land upon which to construct its road, and as a consideration therefor agrees to maintain a spur track and depot at a certain spot upon lands given for that purpose, and the party giving the land relying on the promise incurs great expense in improving his property for use in connection with the maintenance and operation of the track and depot, and a breach of the promise results in injury not to be adequately compensated for in damages.

Equity may enforce performance of the promise, at least in the absence of any showing of superior rights of the public. Taylor v. Florida East Coast R. Co. \[F1a.\] 45 S 674. A defence for specific performance will not be denied to a purchaser because the seller ls possessed of sufficient property to respond in the event that a judgment for damages should be recovered against him. Schippl-case v. Church, 9 Ohio C. C. (N. S.) 166. Where in a contract with a city to establish waterworks the paramount consideration in view was fire protection, the city may have specific performance. Bounds v. Hubbard City \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 755, 105 SV 56. A contract to convey real estate will be specifically enforced despite the fact that the vendor is financially responsible. Demurrer to complaint for failure to allege that there was no adequate remedy at law overvuled. Belanewsky v. Gallaner, 55 Misc. 160, 105 NYS 77.

ing such terms that equity cannot carry into effect its decree cannot be specifically enforced.\[43\] Specific performance may be enforced between husband and wife.\[44\] Relief may be had from a subsequent purchaser with notice,\[45\] but not against a subsequent bona fide purchaser.\[46\] A party insisting upon specific performance must make out a complete equity.\[47\] To be entitled to specific performance one must show himself to have been ready and desirous,\[48\] for the right to relief may be barred by laches.\[49\] A bill for specific performance of a contract by one of the defendants, an

Rosenberg v. Wilson, 120 App. Div. 554, 104 NYS 1087. Where for a gross consideration defendant agreed to transfer a tract of land and timber on another tract and the description of the timber was too uncertain to warrant specific performance, neither part of the contract can be specifically enforced since the consideration cannot be separated. Fordyce Lumber Co. v. Wallace \[Ark.\] 107 SSV 100.

43. Watford Oil & Gas Co. v. Shipman, 233 III. 9, 84 NE 53. Contract for sale of the product of a distillery for five years with the privilege of the buyer to buy the product for an additional period of five years, according to conditions specified, binding the distiller to manufacture a specified number of barrels during each distillery season with the option of the buyer to require more and, and weare decred to have specific perform- etc. Edelen v. Samuels, 31 Ky. L. R. 731, 103 SW 860. Contract provided for an official party of land located in Cuba and it appeared that there was no certainty that a survey by which good title could be given and recorded could be obtained. Cuban Production Co. v. Rodrigues, 108 NYS 785.

01. A wife conveyed a portion of her farm to her husband In consideration that he would join her in deciding the remainder to her children. Kittredge v. Kittredge, 79 Vt. 37, 65 A 89.

01. Evidence held to show that defendant did not take without notice. Booth v. Xenney \[N. J. Eq.\] 65 A 1093. Property transferred to one member of a partnership partnership purposes and subject to right of other partner to have it transferred to him. Those taking from him were subject to a suit for specific performance by the other partner. Whitney v. Dewey \[C. C. A.\] 158 F 385. Where one has recorded option to purchase, he cannot compel specific performance by a prior grantee of an unrecorded deed where both parties have acted in good faith. Lindley v. Blumberg \[Cal. App.\] 93 P 894.

01. George Gunther, Jr., Brew. Co. v. Bryvensk \[Md.\] 69 A 514. Evidence held to warrant findings of failure to do what was necessary by complainants to preserve their rights as purchasers and that they were acting in bad faith. Washburn v. White \[Mass.\]

84 NE 106. Plaintiff is not entitled to performance or return of payments after re- fusing to accept title at the time agreed and failing to meet for eighteen months, during which time defendant has spent $4,000 in improvements. Wojdenburg v. Spifer, 122 App. Div. 396, 106 NYS 817. A party refusing an offer of the adverse party to perform a contract in a certain manner has no right to compel specific performance after he has refused such offer, claiming the contract to employe of the complainant, to assign to complainant a patent for an invention, the application for which patent had been assigned to a codefendant, states a cause of action.\* The parties may in their agreement provide for the measure of damages in case of a breach and the means of satisfying the same, and thcy are then bound thereby to the exclusion of the remedy of specific performance.\[61\] Where a penalty for failure to perform is provided for, equity will not permit a defendant to elect to pay the penalty and thus avoid performance.\[52\] Where a vendee's agent without authority returned to the vendor a decd on the ground that it was not properly acknowledged, the vendee's remedy was not specific performance whatever may have been his rights to a return of the ded.\[58\]

**SS 2.**_Subject-matter of enforcible contract_.See s C. L. 1950--Generally speaking, any fair and valid contract \[54\] may be specifically enforced \[88\] if the elements of equity

668. Under the rule that specific performance cannot be granted unless the right threat to create an element proof, the mineral deposits make out a sufficiently privilege of purchase forming the basis of the action in the present case cannot be en- to justify the result reached. The ratio de-forced after the expiration of the fifteen year period. Prechilling v. Jacobs, $ Ohio C. but also on the additional factor of the Claimtiff's delay which, apart from the sus-

001. Under the rule that specific perform-
     jurisdiction are present.\[36\] Thus equity will enforce performance of a mutual contract to purchase and sell real estate on which each party is equally bound with the other,\[57\] but the evidence must be very clear and convincing to show execution of a contract to convey a homesetead before it will be specially enforced.\[58\] Principles guiding a court of equity are the same in decreeing specific performance of contracts relating to personality as to those relating to reality,\[59\] but since damages are usually readily ascertainable in case of a breach of contract for the sale of personalty, equity in such cases withholds relief.\[60\] Where, however, the legal remedy is inadequate, contracts for the sale of chattels will be enforced,\[61\] as for instance the transfer of corporate stock where it has no provable value.\[62\] Contracts providing for the disposition of property by will are clearly enforcible,\[63\] but are subject to the same rules as apply to the enforcement of contracts for the disposal of property during life.\[64\] So, too, equity will enforce contracts to dispose of property in a particular way, as for future support of the plaintiff,\[65\] and may enforce a contract to adopt a child child

cifically a contract to convey more than 500 | ment that he shall receive a proportionate across of land, though under Civ. Code 1902, share of the capital stock of a corporation $ 1795, no alien can own or control more than 500 acres. Tucker v. Atlantic Coast | commence where the stock has no known Lumber Co. \[S. C.\] 59 SE 859. Agreement that on dissolution one partner was to be endangered. Raun v. Scilted to an assignment of all the other partner's interest. Whitney v. Dewey \[C, C. A.\] 185 F 385. |

for specific performance to compel the de- livery of certain stock without the payment of the balance of the purchase price on the ground that defendants had misstated the liabilities will be dismissed where there is some evidence that the alleged mistostatic-ments were true. Jutte v. Pfeil \[Pa.\] 69 A ley \[Mln.\] 115 NWF 654. Contract for sale |

59. A stockholder entitled to his share of coal under land. Clayton v. Lemen, 233 |

the issue of new stock who offers to pay

11. 435, 84 NE 691. A contract to convey certain lands at $2 per acre provided the entire sum was paid within three years and

since it has no market value and could not reciting payment of $25 "by way of earnest"

was not a mere option, but a contract of sale which could be specifically enforced. Davis |

keep control thereof. Schmidt v. Pritchard |

v. Martin \[N. C.\] 59 SE 700. Evidence sufficient to sustain a decree for specific performance of a contract to sell real estate. Merrill v. Hexter \[Or.\] 94 P 972. \[

58. Thompson v. Foken \[N.\] 115 NWF 770. \[

01. Curtice Bros. Co. v. Catts \[N. J. Eq.\] 66 A 935. \[

01. Curtice Bros. Co. v. Catts \[N. J. Eq.\] 66 A 935; Loar v. Wilfong \[W. Va.\] 61 SE 333. \[

01. Contract to supply a canning factory with tomatoes where there is no other certain source of supply. Curtice Bros. Co. v. Catts \[N. J. Eq.\] 66 A 935. There is no fundamental distinction between contracts involving reality and those involving personal property, in so far as the remedy of specific performance is concerned, for the right is based upon the equitable principle that the ordinary common-law remedy of damages for breach will not afford full and adequate remedy for the injury arising from the failure to carry out its terms. Edelen v. Samuels, 31 Ky., L. R. 731, 103 SY 360. Contract to deliver certain notes which plaintiff was desirous of obtaining in furtherance of his plan to become owner of a hotel upon which they were a first lie. C?Donnell v. Chamberlin, 36 Colo, 295, 91 P 89. \[

01. Baumhoff v. St. Louis & K. R. Co., 205 \[

Mo. 248, 104 SY 5. \[Where one advances money to purchase mines under an agree-

10 Cur. Law.

and make it a legal heir." Contracts that any inventions or devices made by an employee which result from the employment and are useful to the employer are to be patented and to be the property of the employer may be specifically enforced." Contracts made in contemplation of marriage and respecting the property of either of the parties, though released or extinguished at law, are held good in equity, and will be enforced against the heirs of the party in default." Equity will not decree specific performance of an agreement to put in writing an oral amendment to a contract to convey." An agreement for employment cannot be specifically enforced." While equity will not ordinarily decree the specific performance of contracts requiring continuous acts involving skill, judgment, and technical knowledge," yet contracts relating to the operation of railroads have been specifically enforced in a number of cases."

**SS 3.**\_Requisites of contract. A. Necessity of contract. See * C. L. 1081.\_It is not essential that the contract which it is sought to enforce, be one which would support an action at law," but there must be an agreement which must be distinctly proved." A promise of a gift of land will not be enforced," but where the promise accepts the promise, enters into possession and makes improvements on the land or does other acts on the faith of the promise, materially changing his position, the promisor will be required to make good the gift." One not a party or privy to a contract cannot be compelled to carry it out " nor can he maintain an action for its specific performance." Where lands were conveyed to a husband and wife, their heirs, etc., in fee

for her dower rights. Kundinger v. Kundinger, 150 Mich. 630, 14 Det. Leg. N. 789, 114 NNW 408. The remedy for breach of a cove-nant to support in consideration of the con-verance of land by deed absolute on its face is not an action for cancellation of the deed, but for damages or specific performance. El-Itttt v. Elliott \[Tex, Civ. App.\] 108 SW 215.

**66.** Sutt by helirs of an adopted child against the estate of the adoptive parent to specifically enforce an agreement between the natural parents and adoptive parents making the adopted child a legal heir. Evidence insufficient to establish the agreement. Smith v. Lull \[Mleh.\] 115 NNW 1002.

**67.** Defendant invented secretly feed pumps, valves and carburretors at his home and induced certain of plaintiff's employees to leave and organized a company and transferred his inventions to it. Detroit Lubricator Co. v. Lavigne Mfg. Co. \[Mleh.\] 115 NPV 988.

**68.** Offutt v. Offutt \[Md.\] 67 A 138.

**69.** Rosenberg v. Wilson, 120 App. Div.

**654.** 104 NTS 1087.

**70.** Agreement in a sale of mining claims to employ the seller at the mines. Mallory v. Globe-Boston Copper Min, Co. \[Arriz.\] 94 P 1116.

**71.** Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574. Contracts for personal services where acts stipulated for involve skill, personal labor and cultivated judgment, so that full performance rests in the individual will of the contracting party, cannot be specifiedly enforced. Edelen v. Samuels, 31 Ky. L. R. 731, 103 SWV 360. Contracts which by their terms require the performance of a successor of acts not to be consummated by one transaction will not be specifically enforced. Contract to construct and operate a railroad. Pacific Elec. R. Co. V. Campbell Johnston \[Cal.\] 94 P 623.

**72.** Railroad in consideration of convey-inger, 150 Mich. 630, 14 Det. Leg. N. 789, 114 NNW 408. The remedy for breach of a cove-nant to support in consideration of the con-verance of land by deed absolute on its face is not an action for cancellation of the deed, but for damages or specific performance. El-Itt v. Elliott \[Tex, Civ. App.\] 108 SWV 215.

**69.** Sutt by helirs of an adopted child against the estate of the adoptive parent to specifically enforce an agreement between the natural parents and adoptive parents making the adopted child a legal heir. Evidence insufficient to establish the agreement. Smith v. Lull \[Mleh.\] 115 NPV 1002.

**67.** Defendant invented secretly feed pumps, valves and carburretors at his home and induced certain of plaintiff's employees to leave and organized a company and transferred his inventions to it. Detroit Lubricator Co. v. Lavigne Mfg. Co. \[Mleh.\] 115 NPV 988.

**68.** Offutt v. Offutt \[Md.\] 67 A 138.

**69.** Rosenberg v. Wilson, 120 App. Div.

**654.** 104 NTS 1087.

**70.** Agreement in a sale of mining claims to employ the seller at the mines. Mallory v. Globe-Boston Copper Min, Co. \[Arriz.\] 94 P 1116.

**71.** Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574. Contracts for personal services where acts stipulated for involve skill, personal labor and cultivated judgment, so that full performance rests in the individual will of the contracting party, cannot be specifiedly enforced. Edelen v. Samuels, 31 Ky. L. R. 731, 103 SWV 360. Contracts which by their terms require the performance of a successor of acts not to be consummated by one transaction will not be specifically enforced. Contract to construct and operate a railroad. Pacific Elec. R. Co. V. Campbell Johnston upon the death of the wife, the husband takes an estate in severalty and may compel a purchase by one contracting so to do." Where, before the purchase money is paid but while the plaintiff is in possession, the defendant, who is the grantee of the owner subject to plaintiff's contract, without the plaintiff's knowledge induces the owner to make the deed not to himself but to his father, the plaintiff's remedy of specific performance is not defeated for the father is a mere volunteer not a party to the contract and not having paid value." Where a will provides for the payment of pecuniary legacies, there is an implied power of sale of real estate conferred on the executor and specific performance will be decreed by one contracting to purchase of the executor." A contract, however, made by a properly authorized agent may be specifically enforced," but not a contract by an unauthorized agent " unless ratified." Only the contract actually entered into can be specifically enforced," and all conditions precedent must have been performed before performance of the contract can be compelled," but the defendant may, by parol, show that through the mistake of both or either of the parties the writing does not express the real agreement " or that the agreement itself was entered into through a mistake as to its subject-matter or terms."

(SS 3) \_B. Mutuality of contract.\_See * C. L. 1953.-A contract to be specifically enforceible must be mutually binding upon the parties to it," for mutuality in the

fendant could not obtain a decree vesting the title in him for his own use unless he showed that under the dissolution agreement he became sole owner of the land. Chouteau Land & Lumber Co. v. Chrisman, 204 Mo. 371, 102 SUV 973. Where a vendor contracted with a purchaser for the sale of land and executed a deed sent to him by the purchaser but in favor of a third party as grantee, whereupon the purchaser called attention to a defect in the title and the vendor then refused to perfect the title, there was no contract between vendor and grantee which could be enforced. Doyle v. Birdell \[S. D.\] 112 NW 855. A contract made by the plaintiff's agent in his own name and not as agent cannot be enforced by principal. Heenan v. Parmele \[Neb.\] 114 NW 639.

79. Kunz v. Kurtz \[Del.\] 68 A 450.

01. Pearson v. Courson, 129 Ga. 656, 69 SE 907.

01. Leeds v. Sparks \[Del.\] 68 A 238.

01. Written contract of agency giving exclusive authority for sell land and agreeing to convey to the person designated. Little-field v. Dawson \[Vwash.\] 92 F 428. May enforce a contract made with a duty authorized agent upon payment of the balance of the consideration. Chouteau Land & Lumber Co. v. Chrisman, 204 Mo. 871, 102 SUV 973.

01. Bill against husband and wife. Contract signed by A. a broker, who received authority from husband alone. Beattie v. Burt, 122 App. Div. 473, 107 NYES 153. The ordinary power of a real estate broker to find a purchaser for real estate does not authorize him to execute a contract of sale that can be enforced in an action for specific performance. Sylliassen v. Hansen \[Vwash.\] 94 P 187. A parol agrement for the sale of land made by A with the vice-president of a corporation which was never ratified or acquessed in such a way as to create an estopel by the board of directors would not entitle A to have the corporation specifically perform such a contract. Jennings v. Brown \[Odl.\] 94 P 567.

01. The assignee of a patent as trustee, who later also becomes a beneficiary without the power to sell, cannot be compelled to convey the same where he has made a contract to convey, the purchaser having full knowledge of his title without proof of ratification by the other beneficiaries. McDuffee v. Hestonville, etc., R. Co., 154 F 201.

01. Property offered for a lump sum on the theory that it had a certain frontage. After survey it was found to be less, and plaintiff sought to enforce performance for a less sum on the ground that the purchase price should be reduced at the rate per foot that the original lump sum bore to the original estimated dimensions. Whitaker v. Newburger \[La.\] 45 S 264. A vendee, who has not contracted for an acknowledged dead, cannot reject a valid deed, refuse to pay, and then file a bill for specific performance in order to get an acknowledged deed. Ryder v. Johnston \[Ala.\] 45 S 181.

01. Contract by a city to purchase land if it received authority to do before a certain date. Lighton v, Syracuse, 188 N, T. 499, 81 NB 464. Where a petition alleges that plaintiff has deleted to accept an option whereby under a contract with the defend-ant to deliver lumber an additional S,000,000 feet were to be delivered at prices to be fixed under certain conditions by a third party and there is no allegation that the prices have been fixed and the plaintiff seeks judgment condemming defendant to deliver the lumber, an exception of "no cause of action" should be sustained, and if upon trial on the merits no more is proved than is alleged, the demand is properly rejected. Southern Sawmill Co. v. Baldwin Lumber Co. \[La.\] 45 S 961.

87, SS8. Gottfried v. Bray, 208 Mo. 552, 104 SW 639.

89. Kerr v. Moore \[Cal. App.\] 92 P 107;

oswald v. Nehls, 238 11. 438, 84 NE 619;

Chambers v. Roseland \[S. D.\] 112 NW 1 10 Cur. Law. SPECIFIC PERFORMANCEC $ 3C. 1681 specific performance of contract is one of the essential equitable rules. 90 Mutuality is to be determined as of the time the contract was made, 91 but even where mutuality is lacking at the time of making the contract, it is supplied upon the offer of plaintiff to perform, since thereby the remedy to enforce it becomes mutual. 92 An option to purchase land, although unilateral, may be enforced after acceptance, for the party accepting then becomes bound to perform. 92 Although unilateral contracts are enforced against the party signing, the court exercises its discretion as to specific performance of such contracts with great caution. 94 A contract to sell or lease mining lands for a share of what is produced may be specifically enforced, for where no express words are used it will be implied that the vendee or lessee is to operate within a reasonable time and to dig such a quantity of ore as was within the reasonable contemplation of the parties. 95

($ 3) C. Definiteness of contract. 95e & C. L. 1054 The contract must be certain and definite in its terms 98 as in its description of the subject-matter. 97 Where the

ing and construction of a railway which

latter equity could not enforce. Pacific Elec.

removed by a full or substantial perform-

R. Co. v. Campbell-Johnston \[Ca1.\] 94 P 623.

The remedy as well as the obligation must

Campbell-Johnston \[Ca1.\] 94 P 623. Contract

be mutual to entitle to specific performance.

to render personal services If property left

ld. Agreement to settle claim against one

by will. Personal services having been fully

where property is received from such person

rendered, specific performance could be de-

under a will. Colt v. O'Connor, 109 NYS 689.

vhere a contract for the sale of land pro-

619.

vided that no action should be brought by

the vendor against the purchaser and no

tion to purchase land will be specifically en-

such restriction was imposed upon the pur-

force. George Wiedemann Brev. Co. v.

chaser, the purchaser could not enforce,

Maxwell \[Ohlo14\] 84 NE 595. Four years after

Wadick v. Mace \[N. Y.\] 83 NE 571. Will not

option given, plaintiff demanded deed but

enforce contract to employ plaintiff as gen-

made no tender. Levy v. Lyon \[Ca1.\] 94 P

eral manager where there is nothing in the

881. Will enforce an option based on a

contract binding on the plaintiff which could

valid consideration where it is accepted and

be enforced if he declined to serve. Dimmik

complanant makes an unconditional and

v. Stokes \[Ala.\] 43 S 84. One cannot en-

contuning tender of the stipulated purchase

force a contract made without his know-

price. Crovaut v. Baker \[Ga.\] 61 SE 127. Op-

edge and authority and which does not bind

him in any way. Mining V. Sulphur Timber

consideration are valid contracts and may

& Lumber Co., 119 La. 585, 44 S 807. Use of

be specifically enforced. Solomon Mier Co.,

word trustee after name of vendee was

v. Hadden, 148 Mich. 488, 14 Det. Leg. N. 216,

scriptity only and hence binding on him.

111 NWV 1040. Where the grantee in an op-

Bridgman v. McIntyre, 150 Mich. 78, 14 Det.

tion for the purchase of land contracted

Leg. N. 614, 113 NWV 176. A promise by a

during the period of the option to sell the

legate to provide for testator's children out

land to a third party, he might maintain an

of testator's legacy to him and in considera

action for specific performance for the rem-

tion of which promise testator did not

edy at law was not adequate. Id. An op-

change his will but left the bulk of his prop-

tion contract for the sale of real estate is

etry to this legate and three others as ten-

valid and may be specifically enforced after

ants in common, was not a contract which

could be specifically enforced, for no consid-

eration was received from the other lega-

pays or renders the purchase price. Wattees. Heinisch v. Pennington \[N. Y.\] 83 Eq. 187

ford Oil & Gas Co. v. Shipman, 233 Ill. 9, 84

A 233. A receipt for part payment on ac-

count of price of land which it describes,

stating the price and balance to be paid on

1106.

delivery of good and sufficient warranty

deed, was not lacking in mutuality and is a

ander \[N. Y.\] 61 SE 214.

proper subject of specific performance. Jas-

per v. Wilson \[N. M.\] 94 P 851.

90. Contract made by agent binding on

his principal but not on the second party.

Stengel v. Sergeant \[N. J. Eq.\] 68 A 1106.

91. The fact that, after refusal to pay the

balance, the vendor could elect to declare

the contract void did not render It unen-

forcible for want of mutuality. Ochs v. Kra-

mer \[Ky.\] 107 SW 260.

92. Plaintiff spent $600 in Improvements

on land with defendant's knowledge. Kerr

v. Moore \[Cal.\].-92 P 10 1682 SPECIFIC PERFORMANCE $ 3D. 10 Cur. Law.

description of land to be conveyed is omitted altogether, the omission cannot be supplied by parol for the purpose of identifying the property.88 Where, however, the subject-matter of a contract may be identified by reference to an external standard, it is sufficiently definite to be enforced,99 and, if a contract to convey land is uncertain in its description but the complainant takes possession with the assent of the defendant, specific performance will be enforced.1 The statement of consideration must also be clear and definite, but where the consideration is not definitely stated but can be readily figured, the contract may be enforced.2

- 10 Cur. Law. SPECIFIC PERFORMANCE SS 3E. 1683 or the circumstances under which it was entered into are such as would render it unconsocionable to enforce it.6 Actual fraud need not be shown to resist a decree for specific performance,7 but it is sufficient if there is a substantial misrepresentation innocently made which induced the defendant to enter into the contract,8 and whether the facts would entitle defendant to rescind the contract is not the test of plaintiff's right to specific performance.9 More inadequacy of consideration is not itself ground for withholding specific performance 10 unless it is so grossly inadequate as to render the contract unconsocionable.11 (SS 3) \_E. Necessity of written contract.\_Soe & C. L. 1588--Courts of equity are as much bound by the statute of frauds as courts of law,12 but they have always been to pay for the land embraced in the right of 1 tract to convey land worth $20,000 and pay way and where he refused to accept the deed $10,800 in consideration for plaintiff's land requiring such payment. Jones v. Prewitt worth $16,000, and the assumption of a $3,000 \[Ky.J. 108 SVW 867. It is a principle of equity, defendant having relied on plaintiff's try that specific performance of a contract to 1 correspondent that land was worth $29,300. convey land will not be decreed unless it is just and reasonable and based upon adc. Ct. Rep. 496, 102 SWW 918. Defendant agreed quite consideration. Where a party purchased land at $4 an acre and gave plaintiff 1st standing that plaintiff would assign to him an option to purchase an undivided half in- 1hs option on other land while the plaintiff treat at $4 an acre, the contract, if con- 1stured to give a right of purchase at $2 an acre, will not be enforced. Stein v. Archib- 1st that the did not want it. Rudisli v. bald, 161 Cal. 220, 90 P 838. Contracts requiring a breach of trust, if carried out, will 1st the plaintiff has obtained the agreement by Clem \[Va.J. 58 SE 413. If parties make a contract in defraud of creditors one of 1ants caused changes greatly in his favor to them, such contract, while executory, can- 1st be enforced by either against the other, who were foreigners. Blondel v. Bolander Sewell v. Norris, 128 Ga. 824, 58 SE 637. Con- 1stract must be free of any suspicion of its 1hs option flides, George Gutther, Jr., Brew. Co. v. Brwvzynski \[Md.\] 69 A 514. Will not aid unconsolancable bargain though the contract possesses all technical requirements. Con- 1stract for an exchange of farms, where it appeared that defendants' farm was worth $25,000, and the plaintiff's worth little if 1st the plaintiff is 1 clothed with the salutary power of preventing fraud, or affording positive relief against its consequences and this power they have exercised by compelling the specific execution of a verbal contract to which the provisions of the statute of frauds apply where the refusal to exercise it would amount to practicing fraud,\[13\] as where there has been a part performance by the purchaser which relates to such agreement exclusively.\[14\] Payment of the purchase money alone is not such part performance as will support an action for specific performance of a parol contract to convey land\[15\] nor is possession alone sufficient,\[16\] but, as a general rule, payment of the purchase price and change of possession are necessary\[17\] or some act of the purchaser showing with equal clearness an assertion of dominion over the land in his own right as purchaser, as for instance the making of improvements,\[16\] and of such acts the vendor must have notice.\[19\] Such part performance must be clearly proven to be possession

18. Kingston v. Walters \[N. M.\] 93 P 700, \[the land without A's knowledge who mean-14. Part performance must be with a view to carrying out contract. Pearsall v. Henry \[Cai.\] 95 P 154. A parol contract for consumer of land which has been partly performed will be enforced. White v. White, 231 Ill. 298, 83 NE 234. If an agreement is parol, plaintiff must show a clear, definite, unequivocal agreement together with acts of performance or part performance which relate to such agreement exclusively. Crawford v. Crawford, 77 S. C. 205, 67 SE 887. Before there can be specific performance of an oral contract to convey land, there must be a part performance thereof under the Calif-fornia code. Civ. Code, 1741. Meridian Oil Co. v. Dunham, & Cal. App. 367, 90 P 469. By statute, in some states it is provided that the statute of frauds shall not abridge the power of courts of equity to compel specific performance where there has been a part performance. Civ. Code, 2342. Stevens v. Traft \[Mont.\] 93 P 810. Where there is a parol contract to exchange lands which has been performed by one party, it may be specifically enforced by him. Pearsall v. Henry \[Cai.\] 95 P 154. Where a widow agreed, if the children transferred all their interest in their father's estate to her for life, she would bequeath it all with increase and accumulations real and personal to them and the chil-dren did transfer their interest, this is a part performance by them and the statute of frauds was no defense. Kingston v. Walters \[N. M.\] 93 P 700. A losese, who claims under an oral covenant of renewal invalid un-der the statute of frauds, cannot compel performance on the theory that he has fully performed his obligations under the lease. Rogan v. Arnold, 233 Ill. 19, 84 NE 58. 15. McMillan v. McMillan, 77 S. C. 511, 58 SE 431. 16. Cobb v. Johnson \[Tex.\] 20 Tex. Ct. Rep. 709, 108 SW 811. Payment of the purchase price does not constitute part performance, but such payment must be accompanied by a change of possessions or an expenditure of money on the property. Civ. Code, 8 1741. Meridian Oil Co. v. Dunham, & Cal. App. 367, 90 P 469. A. orally agreed to transfer land subject to a mortgage to the defendants upon payment of the mortgage by them and through execution by them of a second mortgage. Defendants paid part of mortgage interest and taxes only and did not execute the second mortgage. They cut some of the timber and surreptitiously moved onto the land without A's knowledge who mean-14. Part performance must be with a view to carrying out contract. Pearsall v. Henry \[Cai.\] 95 P 154. A parol contract for consumer of land which has been partly performed will be enforced. White v. White, 231 Ill. 298, 83 NE 234. If an agreement is parol, plaintiff must show a clear, definite, unequivocal agreement together with acts of performance or part performance which relate to such agreement exclusively. Crawford v. Crawford, 77 S. C. 205, 67 SE 887. Before there can be specific performance of an oral contract to convey land, there must be a part performance thereof under the Calif-fornia code. Civ. Code, 1741. Meridian Oil Co. v. Dunham, & Cal. App. 367, 90 P 469. By statute, in some states it is provided that the statute of frauds shall not abridge the power of courts of equity to compel specific performance.

taken under the agreement relied on and in part performance of it and improvements made under the contract itself and not otherwise.\[20\] The right to apply for a decree is complete if made as soon as improvements are erected, without reference to the duration of time that has elapsed after the gift was made.\[21\] Where the acts performed by the plaintiff tend to show not only that there was an agreement but throw some light on the nature of that agreement, the evidence cannot be said to rest wholly in parol; the parol evidence being auxiliary to the proof afforded by the case itself.\[22\] If a parol agreement is not valid, equity will not make it so by decreeing that it be put in writing.\[23\] The oral contract must be established clearly and fully.\[24\]

SS 4. \_Performance by complainant.\[See 's C. L. 1957\]--One seeking specific performance must show that he has performed,\[25\] but this is ordinarily satisfied by a showing of willingness and ability to perform.\[26\] Where, however, there is any doubt as to the ability of the complainant to perform, he cannot have specific performance,\[27\] but it is the practice in equity to require specific performance if the title is good at the time of the trial even though defective at the time fixed for performance of the

**20. Statements by a father to third parties of a deed, this was a sufficient tender al- of an intention to convey to a son and that**

though the deposit of the money was to the knew the son was spending a lot of money\*\*

**in making improvements is not such clear**

**Moore \[Cal. App.) 92 F 107.**

and definite proof as is required.

**21. Starbut v. Mayo, 128 Ga. 369, 57 SE 455.**

**22. Son having learned trade of plumber gave it up and went to live alone with his father the evidence being that the father requested him to do it agreeing to give him the farm on his death. Harrison v. Harrison**

**\[Neb.\] 113 NW 1042.**

**23. Rosenberg v. Wilson, 120 App. Div. 554, 104 NYS 1087.**

**24. See post, $ 5, subsec. Evidence.**

\*\*25. Olympia Min. Co. v. Kerns, 13 Idaho, 514, 91 P 92. Where time is not of the essence of a contract for sale of reality or where time has been waived, a vendor seeking to enforce the contract must show a tender of a deed and demand for payment, and the purchaser seeking to place the vendor in default must tender the amount due and demand a deed. Spolek v. Hatch \[S. D.\] 113 NW 75. No tender of the purchase price. Horn v. Graffagnino \[La.\] 46 $ 305. The buyer of land must prove that he has compiled with all needful requirements on his part to complete the sale. Stafford v. Richard \[La.\] 46 S. 107. Where a contract for conveyance of land provided that the whole of the purchase money should be paid before conveyance was made, the purehaser is not entitled to a decree unless he can show performance. Moseley v. Witt \[S. C.\] 60 SE 520. Sale of insurance agency. Plaintiff violated some of the terms of sale. Grubb Bros. v. Moore, Clemens & Co. \[Va.\] 60 SE 757. Full payment of the purchase money with nothing more to be done by the purchase, entitles him to the remedy of specifle performance. Civ. Code, $ 4037. Pearson v. Courson, 129 Ga. 656, 59 SE 907. Evidence held sufficient to show performance by the complainant of his contract to sell lots, for which he was to receive other lots in payment. Muir v. Beck \[Wash.\] 91 P 552. Where vendee went to vendor and ten-dered him the purchase price and requested him to execute a deed which he had prepared, and on vendor's refusal placed the money in a bank to be delivered on receipt by the public.\[\] 68 A 240.

contract, where the vendor has upon discovering defects exercised diligence in remedying the same, if there has been no change in the circumstances or position of the parties by which performance will become inequitable.\[28\] Courts of equity regard with more favor actions to enforce specific performance where there has been performance in part than where nothing has been done by either party.\[29\] If time is essential, the stipulation of the contract must be exactly complied with, and the failure to perform on the exact day cuts off the rights of the defaulting party \[30\] unless a legal excuse appears.\[31\] Where time is not of the essence of the contract, so long as both parties take no steps to demand performance, the vendor to tender ded and demand payment, or the vendee to tender the purchase price and demand a ded, the contract continues to subsist until barred by the statute of limitations.\[32\] By statute in Montana, time is never of the essence of a contract unless expressly stated so to be, and performance may be had at any time if the demand is accompanied by an offer of compensation for delay.\[33\] Time may be limited, however, by the party making a tender and stating a time after which he will refuse to perform.\[34\] The fact that complainant errs in his construction of a contract as to certain necessary acts to be done by him does not prevent him from obtaining specific performance on the part of the defendant, on the contrary the fact that he is without legal remedy is frequently a sufficient reason for the interposition of courts of equity.\[35\] Performance is excused where it would be useless to attempt it.\[35\] A party who has once refused to perform cannot come into court later and seek to compel performance,\[37\] and where there

- 28. Mortgage on land was payable in in-stiments, whereas the contract called forformance is refused by the other party. a straight mortgage. Vendor induced mortgage to agree to accept payment of the mortgage. Hugel v. Hugel, 56 Misc. 402, 106 NYS 581.
- 29. St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89, 78 NE 701.
- 30. Roberts v. Braffett \[Utah\] 92 P 789.
- Contract for sale of real estate to be completed within thirty days, Chambers v. Roseland \[S. D.\] 112 NWV 148. Contract for the sale of land requiring payment on a certain date, otherwise the vendor not to be bound. Machold v. Farnan \[Idaho\] 94 P 170.
- 31. Financial stringency no excuse for failure to make payment when due. Machol v. Farnan \[Idaho\] 94 P 170.
- 32. Kessler v. Pruitt \[Idaho\] 95 P 965;
- 33. Stevens v. Braffett \[Utah\] 92 P 789.
- 34. Kessler v. Pruitt \[Idaho\] 93 P 965.
- 35.4 Kessler v. Pruitt \[Idaho\] 93 P 965.
- 37. At the time for taking title, certain gage as required by a contract of sale and several adjuromments were had of the time used to a day certain to allow the defects to of sale to allow him to obtain such mortgage and a final extension was had on the understanding that 1t was the last, he can-not have specific performance where he was unable to perform at that time and the ven-
- 38. Leinhardt v. Solomon, 109 NYS 144.
- Notice by letter that money must be paid by a certain date or disposal would be made to another party. Roberts v. Braffett \[Utah\] 92 P 789.
- 35. St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89, 78 NE 701.
- 36. Where a vendor has declared a resiscision, the purchaser need not tender the purchase money or keep good the tender made as a condition precedent to specific performance. Bruggemann v. Converses \[Wash.\] 92 P 429. Performance excused by the manufacturer.

is some dispute as to the terms of the contract or the possibility of performance by the defendant, the complainant may refuse to further perform until that question is determined.\[38\]

**SS 5.**\_Actions. Jurisdiction.\_See 8 c. L. 1050--A court of chancery in a proper case has power to compel a conveyance of lands situated in another country or state where the persons interested are within the jurisdiction of the court.\[39\] Where plaintiff brings a bill to compel performance and the defendant brings a cross bill alleging default by the plaintiff and return of the deposit money, and the plaintiff then withdraws his demand for performance, having sold the property, the court still has jurisdiction to try the issue raised by the cross bill.\[40\] Where a bill for specific performance pays for damages as an alternative, it cannot be maintained where there is no jurisdiction to decree specific performance, for there is an adequate remedy at law for damages.\[41\] A suit to enforce specific performance of a contract to convey property purchased at a receiver's sale not being a suit to set the sale aside need not be brought in the court having such jurisdiction.\[42\]

\_Parties.\_See 8 c. L. 1050--A decree for specific performance does not affect the interests of one not made a party.\[43\] A party beneficially interested is a proper party to bring suit to specifically enforce the contract.\[44\] In some jurisdictions the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others.\[45\] The executor is not a necessary party to an action to enforce performance of a contract to dispose of property by will.\[46\] Where all the stockholders of a corporation contract for the transfer of all the corporate property, the corporation is not a necessary party to a bill for specific performance.\[47\] Where vendors have parted with their interest to third parties, they are proper though not necessary parties in a suit for specific performance in which their prities are joined.\[48\] The cestui que trust is a proper though not necessary party to a bill for specific performance of a contract to convey, made by the trustee as such.\[49\] Where performance recall the rescission and demand conveyance from his vendor of such title as he possesses, Walton v. McKinney \[Arlz.\] 94 P 1122.

**SS.** Where there is a possible cloud upon title, the complainant may refuse to further perform until that question is determined. Complainant demanded information as to A's title, which did not appear of record, before payment c t the balance of the purchase price. Taylor v. Newton \[Ala.\] 44 S 58. It was improper to refuse specific performance of a contract to sell land for a railroad right of way on the ground that complainant had abandoned the construction of a road which it was bound by the contract to build where it had completed a part at large expense and only refused to proceed until defendants should give decedes according to the contract. Chicago, etc., R. Co, v. Lane, 150 Mich. 162, 14 Det. Leg. N. 532, 113 NW 22.

**SS 5.**\_Actions. Jurisdiction.\_See 8 c. L. 1050--A court of chancery in a proper case has power to compel a conveyance of lands situated in another country or state where the persons interested are within the jurisdiction of the court.\[39\] Where plaintiff brings a bill to compel performance and the defendant brings a cross bill alleging default by the plaintiff and return of the deposit money, and the plaintiff then withdraws his demand for performance, having sold the property, the court still has jurisdiction to try the issue raised by the cross bill.\[40\] Where a bill for specific performance pays for damages as an alternative, it cannot be maintained where there is no jurisdiction to decree specific performance, for there is an adequate remedy at law for damages.\[41\] A suit to enforce specific performance of a contract to convey property purchased at a receiver's sale not being a suit to set the sale aside need not be brought in the court having such jurisdiction.\[42\]

\_Parties.\_See 8 c. L. 1050--A decree for specific performance does not affect the interests of one not made a party.\[43\] A party beneficially interested is a proper party to bring suit to specifically enforce the contract.\[44\] In some jurisdictions the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others.\[45\] The executor is not a necessary party to an action to enforce performance of a contract to dispose of property by will.\[46\] Where all the stockholders of a corporation contract for the transfer of all the corporate property, the corporation is not a necessary party to a bill for specific performance.\[47\] Where vendors have parted with their interest to third parties, they are proper though not necessary parties in a suit for specific performance in which their prities are joined.\[48\] The cestui que trust is a proper though not necessary party to a bill for specific performance of a contract to convey, made by the trustee as such.\[49\] Where performance recall the rescission and demand conveyance from his vendor of such title as he possesses, Walton v. McKinney \[Arlz.\] 94 P 1122.

**SS.** Where there is a possible cloud upon title, the complainant may refuse to further perform until that question is determined.\[48\] The complainant demanded information as to A's title, which did not appear of record, before payment c t the balance of the purchase price. Taylor v. Newton \[Ala.\] 44 S 58. It was improper to refuse specific performance of a contract to sell land for a railroad right of way on the ground that complainant had abandoned the construction of a road which it was bound by the contract to build where it had completed a part at large expense and only refused to proceed until defendants should give decedes according to the contract. Chicago, etc., R. Co, v. Lane, 150 Mich. 162, 14 Det. Leg. N. 532, 113 NW 22.

**SS 6.**\_Actions. Jurisdiction.\_See 8 c. L. 1050--A court of chancery in a proper case has power to compel a conveyance of lands situated in would be decreed between the original parties, it will be decreed against their privies.\[50\] After performance by the complainant, he may compel performance by a third party who has taken title as a mere substitute for the defendant or as a depositary for the record title.\[51\] If, however, it is alleged that the dead was never delivered to the second defendant, then the original grantor is a necessary party, for the record title would still be in him.\[52\] Where plaintiff has an executory contract for a deed and the owner gives title to a third person subject to plaintiff's rights, who in turn contracts to sell to one of the defendants subject to the same rights, and such defendant requests that title be given in the name of his father, the other defendant, such third party is not a necessary party, as he has no interest involved.\[53\] Where one affixes to his name a descriptive word, such as executor, he may bring a bill individually for performance.\[54\]

Defense.\[55\] & C. L. 1949.--It is a good defense that the contract does not call for the performance prayed for by the bill.\[55\] The defendant's subsequent default should be no defense in his behalf against the vendor's right.\[56\] The complainant's laches may be a defense.\[57\] A prior agreement to convey to a third person not a party is no defense to a bill for specific performance of a contract to convey lands.\[58\] Where a contract for the sale of land provides against assignment without consent of the vendor and vendee sells to A, the vendee cannot take advantage of the fact that A could not.compel a deed from the original vendor in order to defeat specific performance of such subsequent contract against the original vendee.\[59\] In an action for specific performance of a contract for the sale of realty, the title to which plaintiff refused to accept, the acts of defendant in giving bond to pay any judgment which might be recovered against him and subsequently conveying the property to others did not prevent him from asserting the sufficiency of his title and plaintiff's refusal to accept as a defense to a recovery by plaintiff of the amount paid by him as a deposit.\[60\] Where in a contract for the sale of land it is provided that if the vendor is unable to give a clear title a part payment is to be returned and all obligations be canceled, he cannot justify nonperformance by showing the existence of attachments if there is nothing to show they are incumbrances on the property.\[61\] Where payment is made and accepted, it is no defense to an action to obtain specific performance that subsequent loans have been made and that the property is being held as security for payment of such claims.\[62\] A bill to enforce a contract to convey to a vendee described as trustee without expressing the trust is not objectionable as an attempt to

S4. Taylor v. Newton \[Ala.\] 44 S 583.

S51, S52, S53. Pearson v. Courson, 179 Ga. 656,

S58 SE 907.

S4. Clayton v. Tunnard, 119 App. Div. 709,

S5. Option on coal deposits. South Penn

Coal Co. v. Smith \[V. Va.\] 60 SE 593.

S6. Ochs v. Kramer \[Ky.\] 107 SW 260. If an Indivdual without title to property enters into a contract to sell and convey it, he cannot avoid the consequences of his contract by subsequently informing the purchaser that he had no title to the premises, and the plaintiff may save in equity for specific performance to determine whether or not the defendant is able to transfer, with a prayer for alternative relief for the return of money paid on account with interest and expenses. Defendant as administrator made a contract to sell his deceased wife's land, but later finding he had no authority refused to convey and tendered a return of a payment down and expenses.

S5. Provec v. Howe & Owen Ball Bearing

S6. S6. S7. Provec v. Howe & Owen Ball Bearing

Co. \[C. C. A.\] 154 F 820.

S70. Sproull v. Miles, 82 Ark. 455, 102 SWV

S8204.

S60. Welsberger v. Wallach, 108 NYS 887.

S61. Rosenberg v. Heffernan \[Mass.\] 83 NE

S316.

S62. Stock in corporation issued to defendant in payment of land. Stock used to raise funds by defendant for plaintiff and refused to transfer land until payment made of money raised. Meridian Oil Co. v. Dunham,

S5 Cal. App. 367, 90 P 469.

enforce a parol trust.\[48\] Where the time of performance is extended by agreement, the defendant is estopped to set up the failure to perform within the time required by the contract.\[49\] Where the insufficiency of title is the only defense to a bill to enforce performance of a contract to purchase land and the answer itself sets forth the title from which it appears that it is good, the answer presents no valid defense.\[48\] The fact that defendant acted on advice of counsel in refusing to carry out his contract and that he had invested elsewhere the funds with which he intended to perform does not constitute any defense.\[50\] Mutual abandonment is a good defense.\[67\]\_Pleading.\[58\]\_C. L.\[19\]--It is incumbent on the plaintiff to show, both in averments of his pleading and in evidence at the trial, that he is entitled to the equitable relief which he seeks.\[68\] The complaint must state the facts showing adequacy of consideration.\[69\] This rule does not apply where the agreed consideration is accepted and retained, for its adequacy cannot then be questioned.\[70\] The bill must allege title in the defendant, but need not allege good title.\[71\] An allegation of readiness and willingness to perform and a tender pursuant to contract is a sufficient allegation of ability to perform.\[72\] Where a complaint alleges that defendant refused to perform and to comply with the preliminary terms of the contract and tendered back the deposit paid when the contract was signed, it sufficiently shows that complainant was entitled to sue at once, despite date when contract was to be completed.\[73\] The complaint need not allege that there is no adequate remedy at law.\[74\] A complaint which alleges the death of the vendee and that plaintiffs are his heirs is defective for failing to specify whether or not plaintiffs are his only heirs.\[75\] Complaint by a vendor need not allege approval of the title by a title insurance company as provided for in the contract, such clause imposing no condition on the vendor, it being for the vendee to have the title examined.\[76\] A bill to enjoin the infringement of patent rights by a license held not a bill for specific performance to compel the manufacture of the patented articles.\[77\] The plaintiff need not allege in his complaint the ability of the defendant to perform.\[78\] Where a case for specific performance has been made out, a general prayer for relief is sufficient,\[79\] and in such a case equity will hesitate to deny

63. Bridgman v. McIntyre, 150 Mich. 78, 14 demurrer, specifications of tender held to be sufficient. Crovatt v. Baker \[Ga.\] 61 SE 127.

01. Contract to convey land upon removal of buildings thereon within 30 days. Defendant agreed to an extension of this time to be paid after a deed and title guarantee and then refused to perform. Spencer v. McCarment \[Cal. App.\] 93 P 682.

01. The cl.wer is demurrable. Ochs v. Kramer \[KS.\] 107 SWP 260.

01. Ochs v. Kramer \[KY.\] 107 SWP 260.

01. It must be specially pleaded. Lipscomb v. Amend \[Tex. Civ. App.\] 108 SWP 483.

01. Statement that consideration was "not disproportionate to the value of said lands" is a sufficient allegation. Kerr v. Moore \[Cal. App.\] 92 P 107.

01. Value of land. Meridian Oil Co, v. Dunham, 5 Cal. App.\] 367, 90 P 460. Allegation as to a adequacy held sufficient. Kerr v. Moore \[Cal. App.\] 92 P 107.

01. Stock in a corporation issued to and accepted by defendant who executed a deed to part of the land. Meridian Oil Co. v. Dunham, 5 Cal. App.\] 367, 90 P 469.

01. An allegation that defendant was or pretended to be seized and possessed in fee simple, sufficient. Loar v. Wilfong \[W. Va.\] 61 SE 333.

01. Ability to perform might come about at time of trial and decree. Clexton v. Dunham, 119 App. Div. 709, 104 NYS 665. Upon 1690 SPECIFIC PERFORMANCE SS 5. 10 (Cur. Law. relief on the ground that proper allegations have not been made in the bill without an opportunity to the orator to amend his bill. \[80\] In order to obtain specific performance to convey against one tenant in common, the agreement being void as to the other, such relief must be specially prayed for, \[81\] and, if such is not done in the first instance, the complainant may apply to amend. \[82\] Where it appears from a bill that there is no sufficient contract in writing as required by the statute of frauds, a den nurrer is proper. \[83\] The statute of frauds must, however, be specially pleaded, for the court cannot of its own motion invoke its protection for one not claiming it. \[84\] The mere filing of a general denial does not entitle defendant to judgment, for the court is entitled to know defendant's version of the contract to determine the facts necessary to a full performance by plaintiff before refusing the relief to which his showing entities him. \[85\] If the vendor relies upon mutual abandonment as a defense, he must plead it. \[86\] Any defect in the complaint for want of definiteness and certainty must be reached by motion to make more definite, and is not properly raised by demurrer. \[87\] Strictly speaking, there is no such thing as a motion for a nonsuit in equitable proceedings under the Montana practice. \[88\] Where the complaint on its face shows that a contract is within the statute of frauds, and defendants denied the existence of any contract, they did not waive their right to require proof of a valid written contract, in order to entitle complainant to recover, by failing to object at the trial to evidence of the making of an oral contract. \[88\] Where a vendee objects to performance because of a failure of the vendor to comply with the contract, he should not be held on appeal to have waived the objection because he gave the wrong reason for it. \[89\] Facts not pertinent to the issue may be stricken from the answer on motion. \[91\] An answer presenting no valid defense is demurrable. \[92\] A judgment and decree which does not require performance of conditions precedent before declaring specific performance will be set aside. \[88\] _Evidence_, \[88\] C. L. \[88\]--It is incumbent on the plaintiff to show, both in averments of his pleading and in evidence at the trial, that he is entitled to the equitable relief which he seeks. \[84\] Evidence as to all matters relating to the contract is proper in an action to specifically perform a contract of sale. \[88\] A parol contract within the statute of frauds must be proved by clear and unequivocal evidence, \[90\] but it is not es-

So. Bill did not show that the orator was ready and willing or offered to perform his part of the contract. Wilkins v. Somerville, 80 V. t. 48, 66 A 893. \[81, SS2, Campbell v. Hough \[N. J. Eq.\] 68 A 769. \[83, Miller v. Burt \[Mass.\] 82 NE 39. \[84\]. Parol contract for sale of coal under lands. Statute not pleaded and contract considered as though written. Clayton v. Lemen, 238 Ill. 435, 84 NE 691. Where the petition fails to show affirmatively that the contract rested only in parol, it will be presumed on demurrer that it was in writing. Crovatt v. Baker \[Ga.\] 61 SE 127. \[85, Stevens v. Tration \[Mon.\] % P 810. \[86, Lipscomb v. Amend \[Tex. Civ. App.\] 108 SVW 483. \[87, Wilcoxon v. Scanlon \[Wins.\] 113 NW 948. \[88, Stevens v. Trafton \[Mon.\] 93 P 810. \[89, Bradley Real Estate Co. v. Robbins \[Ind. T.\] 103 SWW 777. \[90, Koch v. Streuter, 232 Ill. 594, 83 NE 1072. \[91\]. Defendant set out that he acted on advice of counsel in refusing to perform and that he had invested elsewhere the funds 10 Cur. Law. SPECIFIC PERFORMANCE $ 5. 1691

sential that it be established by direct evidence. \[97\] In some jurisdictions, it is necessary to prove an oral contract for transfer of land so clearly and strongly as to leave no reasonable doubt as to the agreement. \[98\] Where the description of land to be conveyed is omitted altogether, the omission cannot be supplied by parol for the purpose of identifying the property. \[99\] In an action to enforce an oral testimentary agreement, the testimony must be clear and satisfactory. \[1\] Where defendant denies that there was any contract of sale, the burden is on the plaintiff to establish a written, and not a parol, agreement. \[2\] Where a return of deposit money, is sought as an alternative to specific performance because of a defect in title not disclosed of record, the plaintiff must prove the facts dehors the record relied upon as affecting the title. \[3\] Evidence of abandonment, where the same is not pleaded as a defense, cannot be admitted as tending to show original bad faith of the vendee and as affecting the credibility of his testimony where the case was clearly not one of the vendee's original bad faith. \[4\]

_The relief granted._\[ See e. C. L. 1052\] The courts in awarding relief generally look at conditions existing at the close of the trial and adapt their relief to those conditions. \[5\] Where a court properly acquires jurisdiction of a cause to enforce specific performance of a contract, the court will proceed to administer complete justice by adjudicating all matters properly presented and involved in the case, \[6\] and injunctions

performed his part. A parol contract for $. Taylor v. Florida East Coast R. Co. conveyance of land must be established with \[Fla.\] 45 S 574. After defendants had conclearness and satisfaction before it will be enforced. Harrison v. Harrison \[Neb.\] 118 conveyed without consideration to a third NEV 1042; White v. White, 231 11. 298, 83 NE 234. \[97\] Bichel v. Oliver \[Kan.\] 95 P 396. \[98\] Evidence not sufficient. Redman Brox, the bank not looking up the v. Mays, 129 Ga. 435, 59 SE 212. This is not the rule in Oregon, West v. Washing-lon, etc., R. Co. \[Or.\] 90 P 686. \[99\] Graham v. Graham \[Ark.\] 108 SW 835. \[100\] I. Record in this case not sufficient. Rau v. Rau \[Neb.\] 118 NW 174. \[101\]
2\. Bradley Real Estate Co. v. Robbins \[Ind. T.\] 103 SW 777. \[102\] S. Witte v. Kocner, 108 NYS 560. \[103\]
4\. Lipscomb v. Amend \[Tex. Civ. App.\] 108 SW 483. \[104\]
5\. If a vendor has not a perfect title until after commencement of action, he can still be compelled to convey. Walton v. McKinney \[Ark.\] 94 P 1122, Equity renders Judgement according to the situation at the time of trial and specific performance will be decreed where such becomes possible after entry of the complaint and no change in the situation of the parties has occurred rendering such a decree inequality. Plaintiff's title not marketable, but cloud removed pending trial of complaint for specific performance. Whalen v. Stuart, 108 NYS 355. \[105\] It is the practice in equity to require specific performance if the title is good at the time of the trial even though defective at the time fixed for performance, where the vendor has upon discovering defects exercised diligence in remedying the same, if there has been no change in the circumstances or position of the parties by which performance will become inequitable. Mort-gage on land was payable in instalments, whereas the contract called for a straight mortgage. Vendor induced mortgage to agree to accept payment of the mortgage. Hugel v. Hugel, 56 Mise. 402, 106 NYS 581. \[106\]
6\. Taylor v. Florida East Coast R. Co. conveyance of land must be established with \[Fla.\] 45 S 574. After defendants had conclearness and satisfaction before it will be enforced. Harrison v. Harrison \[Neb.\] 118 conveyed without consideration to a third party on the advice of his attorney to avoid carrying it out, who conveyed it to the attorney who conveyed to a bank to secure prior loans, the bank not looking up the record title. The bank made a further small loan, but not on the strength of this security: also a loan was made by another bank prior to any knowledge by it that the borrower had received a dead to the property in question. Held that the plaintiff was entitled to specific performance of his contract, with a provision that the entire price should be paid to the original owners of the prop. \[107\]
7\. If a vendor has not a perfect title until after commencement of action, he can still be completed to convey. Walton v. McKinney \[Ark.\] 94 P 1122, Equity renders Judgement according to the situation at the time of trial and specific performance will be decreed where such becomes possible after entry of the complaint and no change in the situation of the parties has occurred rendering such a decree inequality. Plaintiff's title not marketable, but cloud removed pending trial of complaint for specific performance. Whalen v. Stuart, 108 NYS 355. \[108\] It is the practice in equity to require specific performance if the title is good at the time of the trial even though defective at the time fixed for performance, where the vendor has upon discovering defects exercised diligence in remedying the same, if there has been no change in the circumstances or position of the parties by which performance will become inequitable. Mort-gage on land was payable in instalments, whereas the contract called for a straight mortgage. Vendor induced mortgage to agree to accept payment of the both mandatory and restraining may be granted,7 and damages may be awarded when necessary to do complete justice.8 A court of equity will not grant pecuniary compensation in lieu of specific performance unless the case presented is one for equitable interposition such as would entitle the plaintiff to performance but for intervening facts.9 A prayer for general relief will not authorize the granting of any relief which is not germane to the prayer for specific performance,10 and where specific performance is denied because the contract is illegal, a part payment of consideration cannot be recovered under the prayer for general relief.11 Performance can only be decreed of the actual contract made, and the court is not entitled to decree performance of a different one in lieu of the original agreement which cannot be performed.12 The court may require a party to elect between two or more certain, feasible and proper alternatives contained in his agreement.13 The parties may provide for the measure of damages in case of breach and the means of satisfying the same and they are then bound thereby to the exclusion of the remedy of specific performance,14 but where a penalty for failure to perform is provided for, equity will not permit a defendant to elect to pay the penalty and thus avoid performance.15 Specific performance will not be decreed in case of inability to perform,16 yet where complete performance is rendered impossible, complainant may have performance of what can be done if he desire it,17 and have an abatement out of the purchase money

in case of defendant's failure to remove the incumbrance, the court might render, in addition to the decree for specific performance, a decree against him for the amount of the incumbrance. Roche v. Osborne \[N. J. Eq.\] 69 A 176.

7. A temporary injunction will not issue to enforce specific performance unless the allegations of the bill warrant a decree of specific performance, nor unless it also appears that an injunction is appropriate and just. Taylor v. Florida East Coast R. Co. \[Fla.\] 46 S 574. Specific performance may frequently be enforced either by a direct decree to that effect or by an injunction re-straining the party from doing what he has agreed not to do. Grubb Bros. v. Moore, Clemens & Co. \[Ya.\] 60 SE 757. A temporary injunction against defendant entering into a lease with any one else should not be granted in a suit for specific performance and once of a contract to lease. Jossey v. Perl-stein \[Tex. Civ. App.\] 107 SW 558.

1. Taylor v. Florida East Coast R. Co. \[Fla.\] 45 S 574. Where, at the time a bill is filed, complainant is not aware of the impossibility of performance, the court may decree compensation. Logan v. Flattau \[N, J. Eq.\] 67 A 1007.

1. Such as the destruction of property, the conveyance to an innocent third party, or the refusal of the vendor's wife to join in a conveyance. Marks v. Gates \[C. C. A.\] 154 F 481.

1. White v. Sikes, 129 Ga. 508, 59 SE 228.

1. Sayer v. Brown \[Ind. T.\] 104 SW 877.

1. Contract to exchange land for personal property. The personal property was taken under a mortgage foreclosure, and in an action for performance the judge was not entitled to decree a transfer of the land upon payment of a sum of money in lieu of the personally. Constantine v. Caswell, 46 Wash. 651, 91 P 7.

1. Taylor v. Mathews, 53 Fla. 776, 44 S 146.

1. Mallory v. Globe Boston Copper Min.

1. DeG. \[Ariz.\] 94 P 1116.

1. Powell v. Dwyer, 149 Mich. 141, 14

1. Leaf. N. 301, 112 NW 499.

1. Beattle v. Burt, 122 App. Div. 472, 107

1. Beattle v. Burt, 122 App. Div. 472, 107

1. A. temporary injunction will not issue to enforce specific performance unless the allegations of the bill warrant a decree of specific performance, nor unless it also appears that an injunction is appropriate and just. Taylor v. Florida East Coast R. Co. \[Fla.\] 46 S 574. Specific performance may be enforced as to a decree to that effect or by an injunction re-straining the party from doing what he has agreed not to do. Grubb Bros. v. Moore, Clemens & Co. \[Ya.\] 60 SE 757. A temporary injunction against defendant entering into a lease with any one else should not be granted in a suit for specific performance and once of a contract to lease. Jossey v. Perl-stein \[Tex. Civ. App.\] 107 SW 558.

1. Taylor v. Florida East Coast R. Co. \[Fla.\] 46 S 574. Where, at the time a bill is filed, complainant is not aware of the impossibility of performance, the court may decree compensation. Logan v. Flattau \[N, J. Eq.\] 67 A 1007.

1. Such as the destruction of property, the conveyance to an innocent third party, or the refusal of the vendor's wife to join in a conveyance. Marks v. Gates \[C. C. A.\] 154 F 481.

1. White v. Sikes, 129 Ga. 508, 59 SE 228.

1. Sayer v. Brown \[Ind. T.\] 104 SW 877.

1. Contract to exchange land for personal property. The personal property was taken under a mortgage foreclosure, and in an action for performance the judge was not entitled to decree a transfer of the land upon payment of 10 Cur. Law. SPECIFIC PERFORMANCE SS 5.1693

for any deficiency of title or quantity or other matters touching the esta!e,18 but performance of part of a contract will not be decrered apart from the entire agreement.19 It is proper to render a personal judgment for the balance of the purchase money remaining unsatisfied after sale of the land to enforce the judgment.20 An agrement

ent, the purchaser having full knowledge

Rrwin v. Meyers, 46 Pa. 96), and he must of his title, such purchaser is entitled to

therefore convey with an abatement of the enforce performance on its agreement to ac-

purchase price, irrespective of the material-

cept whatever title D was able to convey

ity of the defect (Graham v. Oliver, 3 Beav. McDuffee v. Hestonville, etc., R. Co., 158 F

13; Bennett v. Fowler, 2 Beav. 302. But see

827.

Chicago R. Co. V. Durant, 44 Min. 361; cf.

18. Latta v. Hax \[Pa.\] 68 A 1016; McDuffee v. Hestonville, etc., R. Co., 158 F 827. From

ment that because the vendor intended to

one cetan despite reputation of authority

by the other to contract for both. Mellin v.

Woolley \[Min.\] 115 NW #54.

19. Rosenberg v. Wilson, 120 App. Div.

554, 104 NYES 1087.

20. Ochs v. Kramer \[Ly.\] 107 SWP 260.

NOTE. **Specific performance with com-**

pensation: At law a vendor of land would

be nonsuited were he to attempt to enforce

where the defect arises subsequent to the

a contract which he was unable to perform

on his part. Where the failure of perform-

more as to qualify (Drew v. Corporation, 9

Ves. 368) or quantity (Clacraft v. Roebeck, 1 Yes. Jr. 221; Foley v. Crow, 37 Md. 51) is

unsubstantial, equity will hear the vendor's

spears to spring from the circumstances of

suit, since chancy, looking to the sub-

case. By construing a dictum of Lord

stance (Batten, Spec. Perf. 122; Dyer v. Harer, 10 Yes. 505), and holding it uncone

315, the foundation for this bar to the plea

scionable to take advantage of trivialities

(Stewart v. Alliston, 1 Mer. 255), will not per-

rine of estoppel (Rudd v. Lascelles \[1900\]

mit the forms of law V to be instruments of

11. Ch. 815; Weatherford v. James, 2 Ala. 170).

injustice (Halsey v. Grant, 13 Ves. 73). Com-

Donald Eldon's remarks, it is submitted, may

pensation is given as incidental (Beyer v. more

more readily be explained as applying to a

Marks, 2 Swenberg \[N. Y.\] 105) to complete

bar due to the equitable relief and avoid creuity of

rather than as furnishing a grounding for

action (Erwin v. Meyer, 48 Pa. 96). This

an estoppel in pais. On principle it does

relief will be refused, however, unless two

not appear that an estoppel is a satisfactory

conditions are present (Guynet v. Mantel,

explanation since, even though the repre-

4 Duer \[N. Y.\] 86; Beyer v. Marks, 2 Swenberg

sentation be true when made and the de-

\[N. Y.\] 115). First, the defect must be im-

ficiency have resulted later, the plea of the

material; secondly, it muSt be measurable

demodant would still be barred. Cf. Brown

money. The former is based on the com-

v. Ward, 110 Iowa, 123; Bass v. Gilliland, 5

sideration that equity will not enforce

canract never intended; were the defect

of the representation will bar an abatement

material, the vendee probably would not

have entered into the agreement. Thomas

23 Fla. 64), since the offer of the vendee was

v. Derring, 1 Keen. 729; Stewart v. Alliston,

1 Mer. 25. In the earlier cases the material-

cert and to award him compensation would

ity of the deficiency was often ignored.

Byte a double allowance (Peeler v. Levy, 26

Drew v. Hanson, 6 Vees. 675. See King v. N. J. 263; 330; Dyer v. Hargrave, 10 Vees. 505).

Wilson, 6 Beav. 124. But this loosenses has

Thus if there is a material deficiency, the

been repudiated because of the dangers in-

berent in its enforcement. Halsey v. Grant,

the vendee may. This situation is regarded

15 Ves. 73. See King v. Barberau, 6 Johns,

Ch. \[N. Y.\] 38. If the land is sold by metes

and bounds, acreage may be treated as mere

reason. Walter, 1 Sch. & L. 13), but the sit-

deserption, and no compensation will be

witeen (Moses v. Wallace, 7 Lea \[Tenn may be reformed and then enforced as reformed.21 Where a decree is rendered for a vendee in an action by a vendor, the court should also order the return of the money paid by the vendee on the contract with interest and attorney's fees incurred in examination of title.22 Where there is a contract for the sale of land free from incumbrances, equity will not compel a discharge of the same by the vendor out of his own funds prior to passing title, in the absence of proof that the vendor was unwilling to have them discharged from the purchase money.23 A judgment and decree should require performance of conditions precedent before declaring specific performance.24 Where a vendor had no title at the time of making the contract and does not subsequently acquire it, the vendee may sue for specific performnace to determine whether or not the defendant is able to transfer, with a prayer for alternative relief for the return of money paid on account, with interest and expenses.28 Where a decree provided that it should be suspended pending ejectment proceedings against the vendor, it was improper for the court to fix in the decree the time when the ejectment should be considered as determined, it being sufficient for the purpose of specific performance that it should appear that the action had ceased to be pending and that the lis pendens had been canceled.28 Where one is unable to produce sufficient evidence of a contract to convey, he may still recover for the value of permanent improvements made on the property in question.27 Where defendant occupies with notice of complainant's rights, he cannot recover for improvements made,28 but where there is an innocent person in possession for use and occupation, performance can only be had against him upon payment to such party of the amount by which the value of the land has been enhanced by improvements made by such party.29

this jurisdiction, that the defect must be measureable in money, is based on the concaption that otherwise equity in its endeavor to do right might well work injustice. Where the difficulty arises as to defects of title (Seaman v. Vaudrey, 16 Vea. 390), a reasonable estimate must suffice because an accurate estimate is impossible. Compensation allowed. Ramsden v. Kirst, 4 Jur. (N. S.) 200; compensation refused. Cato v. Thompson, 9 Q. B. Div. 616. Because of the inherent difficulty of estimation, courts are divided as to awarding compensation for inchoose degree rights, see Wilson v. Wijlams, 8 Jur. (N. S.) 810. Contra, Riesz's Appeal, 73 Pa. 485. If the vendee knew, however, of the vendor's marriage, compensation is always refused. Lucas v. Scott, 41 Ohio. 636; E. Emary v. Wase, 8 Vea. 505. As to defects in the quantity of land, the measure of abatement generally followed (Powell v. Elliott, L. R. 10 Ch. App. 424) is that adopted by a recent decision. Baldwin v. Brown \[Wash.\] 93 P 413. Such proportion of the total purchase price will be deducted as the value of such proportion bore to the value of the entire tract at the time of purchase. The difficulties of estimation in cases of defect in quantity will rarely be as great as those recognized as not insuperable in cases of defect in quality, and hence in the former cases the vendee may nearly always obtain apeciting performance with compensation.--From 8 Column-bla L. R. 809.

Z1. Clayton v. Lemen, 233 Ill. 435, 84 NE 691; Flynn v. Finch \[Iowa\] 114 NW 1058. Agent of defendant authorized to sell land for a certain amount cash, or part cash and balance on time, with 6 or 7 per cent in-terest, made a contract to plaintiff for such amount cash, or, at vendor's option, part cash, balance on time, with 5 per cent in-terest, and that by mutual mistake the writling was merely for part cash and balance on time, with 5 per cent interest. Bishop V. Tartt \[Tex. Civ. App.\] 107 SW 359.

22. Lehnhardt v. Solomon, 109 NYS 144.

01. Van Keuren v. Siedler \[N. J. Eq.\] 68 A 920.

01. Olympia Min. Co. v. Kerns, 13 Idaho, 514, 91 P 92.

01. Defendant as administrator made contract to sell his deceased wife's land, but later finding he had no authority refused to convey tendered return of payment down and expenses. Plaintiff refused this and brought bill for specific performance and damages. Elliott V. Asiel, 120 App. Div. 829, 105 NYS 655.

01. Rosenberg v. Haggerty, 189 N. Y. 481, 82 NE 503.

01. Where a son took possession of land under an oral contract with his father that, if he would occupy and improve another tract, both tracts would be his at his father's death, or feature to establish such part performance as would entitle the son to specific performance, he is entitled to compensation for the value of permanent Im-provements and to have a lien on the land therefor, but is not entitled to payment for clearing and breaking out new ground, but must sue the estate in an action of law for such services, Ranson v. Ranson, 233 Ill. 369, 84 NE 210.

28, 29. Alston v. Connell, 145 N. C. 1, 58 SE 411.

10 Cur. Law. STARE DECISISIS $ 1. 1695 Equity will not do a vain or useless thing by rendering a decree which may be set aside by one of the parties at will.\[30\]

\_Decree.\_See * C. L. 1964--A decree granted in one state to convey lands situated in another cannot be enforced in such other state if the parties refuse to perform.\[31\]

\_Appeal.\_See * C. L. 1964--While the sufficiency of the evidence to warrant specific performance rests largely with the trial court yet it is open to review, and upon appeal the court must be satisfied that the facts warrant the relief granted.\[32\] An exception to a finding that defendant entered into a contract of sale with plaintiff by the terms of which he agreed to sell plaintiff certain specified land in controversy was sufficient to raise the question whether the contract was void under the statute of frauds.\[33\] Where on appeal from a decree refusing specific performance the evidence is not reported, the findings of the court are not reviewable.\[34\] Where no findings of fact or of law were made, the only question open on an appeal is whether upon all the evidence the decree was plainly wrong.\[35\]

**SPENDTHENTS, see latest topical index.**

**STATE DECISIS.**

**SS 1. The Doctrine and Its Application, 1695.**

**SS 2. Decisions and Obitter Diets, 1696.**

**SS 3. Rules of Property, 1697.**

**SS 4. Courts of Different Jurisdictions, 1697.**

\*\*SENDTHENTS, see latest topical index.

from those involving substantive rights, each in different cases having been held the more weighty precedent.\[42\] In regard to the former class of decisions, some cases say that they should be followed without hesitation,\[43\] and others, that they are in no sense binding.\[44\] And decisions involving constitutional rights to personal liberty are less controlling than those involving the fixedness of property rights.\[45\] In Georgia any ruling of the supreme court concurred in by the entire bench can be overruled upon review only by a concurrence of the entire bench.\[46\] And generally, nothing short of the strongest conviction of fundamental error in the decisions of the highest court of a state will warrant their reversal.\[47\] Until overturned, judicial decisions are as binding as legislative enactments.\[48\] But that which controls as a precedent is not so much the particular form of a controversy as the principle involved in it.\[49\] A decision upholding the validity of a statute as against the objections raised to it is not conclusive of other objections raised in a subsequent action.\[50\] The construction placed upon a provision of a constitution by the supreme court of its state when such provision is not uncertain or ambiguous, which is contemporaneous with a like construction by the legislature by way of amendment to a statute, will not be set aside out of deference to views expressed by the framers of the constitution made on a proposed amendment to the provision where such views are not necessarily adverse\[51\]

**SS 2.**\_Decisions and obiter dicta,\[56\]\_C. L. 1965--The doctrine of state decisis applies only to questions arising and decided, and the precedent includes only decisions upon questions in issue.\[52\] Any distinct decision upon such questions can in no sense be regarded as dictum.\[53\] And where the principles involved in a case were fully discussed in a former decision such discussion will be held to be an expression of opinion upon a point deliberately passed upon, and not obiter dictum, and will control the case at bar.\[54\] The fact that a case is decided upon two grounds, either of which alone would dispose of the case does not make either decision obiter dictum.\[58\] But general language in an opinion which goes beyond the question in issue,\[56\] statements regarding the rights of a party not in court,\[57\] and all expressions of opinion

\*\*42.\*\*Form and procedure the more controll- though the former was decided upon other ing. Ex parte Holliman \[S. C.\] 60 SE 19.

Where a decision relating to one constituit- Francisco \[Cal.\] 91 P P87.

tional provision does not involve rights of the citizen, it will not be allowed unnecessary to a decision of the case are obiter dictum.\[58\] Dieta from the United States supreme court is entitled to special consideration,\[59\] but is not binding upon other courts.\[60\] It has been held, however, that obiter diets, not inadvertently made, and upon which the Federal supreme court intends to bind itself, will be unhesitatingly followed by the lower courts.\[61\] Dieta from the highest state tribunal is also entitled to respectful consideration by the lower courts, but it has not the same weight as an actual decision,\[62\] and upon that court itself it is in no sense binding.\[63\]

SS 3. _Rules of property.\[58\]_ S. C. L. 1964.--Decisions which have become rules of property will not be overruled,\[58\] particularly when of long standing \[58\] and recognition,\[69\] although the present court is not in accord with the reasoning on which such decisions are based,\[67\] and contractual rights acquired in reliance upon decisions of courts of last resort will be protected,\[68\] even as to those not strictly parties to the suit.\[69\] State decisions which have become a rule of property will be followed by Federal courts in cases involving property rights in such state.\[70\] But, where property rights have not accrued on the faith of previous decisions, there is no impropriety in overruling them if erroneous.\[71\]

\*\*SS 4. \_Courts of different jurisdictions. A. Inferior and appellate.\_See **S C. L. 1968**

lating this, anything said by the court regarding the rights or forfelture of an ap- plicant in ap- A decision by the appellate division of the supreme court of New York is controlling on all lower courts.\[12\] The St. Louis court of appeals is bound by the decisions of the supreme court of the state rather than by its own previous decisions.\[78\] Decisions of the supreme court of Oklahoma Territory are not binding on its supreme court after admission to statehood since such court is a successor to the territorial court.\[74\] The construction of the statutes of a state by its highest court should be followed by its other courts rather than the construction of a Federal court sitting for the same jurisdiction,\[75\] and generally decisions of the appellate court are conclusive upon the trial court.\[76\] By the adoption of a decree of the trial court the supreme court does not bind itself to every sentence found therein.\[77\] So lower Federal courts will follow the direction of the Federal supreme court in regard to the form of its orders, etc.\[78\] But the lower state courts are not bound by decisions of the highest state court, rendered in cases where the issues raised in the case at bar were not involved,\[79\] nor is mere criticism by an appellate court of the conduct of trial courts at all controlling as a precedent.\[80\]

\_Foreign judgments.--\_A foreign judgment is conclusive upon the courts of this country in the absence of proof of want of jurisdiction, of fraud, or that the country of the judgment does not give full force and effect to judgments of the courts of the United States.\[81\]

(SS $\\pm$) \_B. Federal and state courts. When Federal courts follow state decisions.\[82\] See a C. L.\[107\]--Federal courts are not bound to follow the decisions of state courts as to the construction and effect of commercial contracts,\[82\] nor as to the common law liability of a master for injuries caused by negligence of a fellow-servant.\[83\] But the decisions of the highest court of a state are controlling as to the meaning and effect of its constitution and statutes,\[84\] as to the principles of its local law,\[85\] property

\[\] **72. That, though a city charter requires** **ler, 1 Ga. App. 814, 57 SE 1054. Where a a unanimous vote of all members of the council to authorize a street Improvement, a unanimous vote of eight members present is sufficient though the whole number is** **then. Bussing v. Mt. Vernon, 121 App. Div. 502, 106 XYB 195.**

**73. Where to follow its former decision would, under the decisions of the supreme court, deprive a party of vested property interests. Diehm v. Northwestern Mut. Life** **Ins. Co. \[Mo. App.\] 108 SWV 139.**

**74. Section 18 of the enabling act, and** **5** **17 of the act amandatory thereto, approved March 4, 1907. Frick Co. v. Oats \[Ok1.\] 94 P 682. And though such a decision is in construction of a statute preserved in force upon the admission to statehood, it is not binding under the rule that a state which adopts a statute from another state adopts the construction placed upon it by the courts of the latter, because the statutes of the territory were not adopted by the state but merely preserved in force. Id.**

**75. The Federal courts themselves should follow such construction. In re Interborough Metropolitan Co., 56 Misc. 128, 106 XYB 416.**

\*\*76. The facts of a case being substantially the same upon two trials, the law as indicated by the court of appeals in the first trial is the law upon the second trial. Louisville & N. R. Co. v. Molny's Adm'x \[Ky.\] 107 SWV 217. Where the supreme court of a state has decided a law conferring jurisdiction in certain cases on county courts to be unconstitutional, such a case subsequently instituted must be dismissed. Gower v. Fow 10 Cur. Law. STARE DECISIS SS 4B. 1699 rights,\[88\] and the right to enforce certain remedies.\[97\] Yet state decisions construing local statutes have been accorded great, if not controlling weight,\[88\] and the supreme court of the United States has defined them as very persuasive.\[89\] And there are cases in which Federal courts must construe state constitutional provisions independently of state decisions, as where Federal constitutional rights are involved,\[90\] and, though the decision of a state court is affirmed, in such a case, by the Federal court, it may not be because the latter is bound to do so, but because, by the exercise of its independent judgment, it arrives at the same conclusion.\[91\] Where a statute has been adopted by one jurisdiction from another Federal courts will follow the construction placed upon it by the former rather than that of the latter,\[92\] though where such statute has been materially altered by the state of its adoption the converse is true.\[93\] In the decision of a question which does not involve the construction of a statute, the Federal court is not bound by the state decision,\[94\] and Federal courts must determine for themselves whether a state law conflicts with the Federal constitution.\[95\] In the determination of Federal questions by Federal courts, Federal law controls,\[96\] and state decisions are no more than advisory.\[97\] A state statute giving a remedy at law

Riggs, 203 U. S. 243, 51 Law. Ed. 168; Buck

conflict with those of the supreme court. v. Beach, 206 U. S. 392, 51 Law. Ed. 1106; In re Gilligan \[C. C. A.\] 152 F 606. Board of Education. V. Illinois, 203 U. S. 599, 86. Defining cloud on title, what may con-

Li Law. Ed. 314: Sauer v. New York, 206

stitute title, etc. Acord v. Western Pocos-

U. S. 536, 51 Law. Ed. 1176. But where the

bontas Corp., 158 F 989.

opinion declaring such construction was not

87. Right of party to sue upon contract

concurved in by a majority of the Justices,

made by another for his benefit. Bethlehem

it is not controlling San Jose-Los Gatos

Inven Co. v. Baosley, 152 F 735. Will be

Interurban R. Co. v. San Jose R. Co. (C. C. A.) 156 F 455. Unless In conflict with the

Jockey Club v. Gramberger, 146 F 414.

Constitution laws or treatics of the United

S8. Lewis v. Herrera, 28 S. Ct. 412.

States. Zeiger v. Pennsylvania R. Co. (C. C. A.) 158 F 809. And whether such con-

to authorize an alien attachment. Crary v.

struction is founded upon considerations of

Dye, 28 S. Ct. 360.

public policy or upon a construction of the

90. That a statute is not unconstitutional.

language of the statute is unimportant. Id.

Roard of Com's F Merford County v.

Though they may deem such construction

Tome \[C. C. A.\] 153 F 81. narrower than warranted. New York Cent.

91. On a question involving the constituit-

etc., R. Co. v. Price \[C. C. A.\] 159 F 330. But when such decisions are not incontractible.

Hertford County v. Tome \[C. C. A.\] 153 F 81.

tion of the particular statute in question

Such a case is where a decision of the state

they are not controlling. State decisions are

overtheless entitled to high respect as

passed in the manner provided by the con-

authorics. Lyman v. Williard \[C. C. A.\] 154

F 339. That the indeterminate sentence act

is to impair the obligations of a contract

of 1903 (P. A. No. 186) was not repeated as

between residents and nonrefentions. Id.

to those sentences under it by the act of

92. The United States court of appeals for

1905 (P. A. No. 184), and that as to them the

Indian Territory will follow the decisions

latter act has no application. Ughhank's v.

Arnstrong, 28 S. Ct. 372. A rule of state

court s that an engrassed act of the Legis-

lature, duly approved, signed and filed, is

v. Davis \[Ind. T.\] 104 SWP 573.

conclusive evidence of its contents, is one

relating to the construction of a state state

94. Whether promoters of a corporation

ute and binding on Federal courts. United

States v. Andem, 158 F 986. Where the

state court has not determined as to the

validity of a statute, the Federal courts will

95. Northwestern Nat. Life Ins. Co. v.

decide the question independently. Douglas

Riggs, 203 U. S. 243, 51 Law. Ed. 168. In

Park Jockey Club v. Gramberger, 146 F 41.

that it impairs the obligation of a contract.

Construction by state court is not binding

on F Federal court where Federal constituu-

1.

tional question is involved. Id.

85. Sauer v. New York, 206 U. S. 536, 51

Law. Ed.

does not oust a Federal court of equity jurisdiction," and in actions at law they follow the practice of the state in which they are sitting " and when sitting in chancery to determine the validity of wills and administer estates must observe the public policy of the state in which the property in suit is situated and in which the suit is brought.1 But rules of the United States supreme court in regard to granting equitable relief in Federal courts govern when applicable.2

Footnote 1: The author is grateful to the anonymous referee for the support of the author.

\_When state courts follow Federal decisions.\_See * c. L. 1968--Where a Federal question is involved, the decisions of the Federal courts thereon are binding upon state courts,3 and state courts of intermediate appellate jurisdiction must follow such decisions though contrary to the previous law of their state,4 as must also state courts of last resort, though thereby required to reverse themselves.5 Decisions of Federal courts involving an interpretation of the Federal constitution,6 or Federal statutes,7 or involving a question of interstate commerce,8 are conclusive on state courts. The ultimate determination of causes arising in Indian Territory lies with the Federal supreme court, and its decisions must be accepted as the highest evidence of the common law of the territory.9 Decisions of the United States supreme court were controlling on the courts of Indian Territory, and will be followed by the supreme court of Oklahoma in a case tried in Indian Territory before its admission to statehood, but presented to the supreme court thereafter,10 though such court is of the opinion that such decision is erroneous.11 But state courts are not bound to follow Federal decisions except as to the Federal questions involved.12 A decree in the Federal

Footnote 1: The author is grateful to the anonymous referee for the support of the author.

10 Cur. Law. STARE DECISISIS SS 4D. 1701

circuit court sustaining a demurrer to a bill of complaint, if it goes to the merits of the cause, precludes the parties or their pri 1702 STATES SS 1. 10 Cur. Law.

be followed by the other, though the latter court, is of the unanimous opinion that such decision is erroneous.\[27\]

STATE Lands; Statement of Claim; Statement of FACTS, see latest topical index.

STATES.

SS 1. Boundaries, Jurid-diction, and Sov- \[SS 4. Officers and Employees, 170S. ercignaty, 1702. 5. Flesen Mannagement, 1703. 8 2. Property, 1702. 8 6. Claims, 1704. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

Matters common to public bodies in general,\[28\] the constitutional limitations on the legislative power,\[29\] the respective powers of the state and Federal governments,\[30\] and the extent and exercise of the taxing power,\[31\] are elsewhere treated.

SS 1. \_Boundaries, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

Matters common to public bodies in general,\[28\] the constitutional limitations on the legislative power,\[29\] the respective powers of the state and Federal governments,\[30\] and the extent and exercise of the taxing power,\[31\] are elsewhere treated.

SS 1. \_Boundaries, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

Matters common to public bodies in general,\[28\] the constitutional limitations on the legislative power,\[29\] the respective powers of the state and Federal governments,\[30\] and the extent and exercise of the taxing power,\[21\] are elsewhere treated.

SS 2. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

Matters common to public bodies in general,\[28\] the constitutional limitations on the legislative power,\[29\] the respective powers of the state and Federal governments,\[30\] and the extent and exercise of the taxing power,\[29\] are elsewhere treated.

SS 1. \_Boundaries, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

Matters common to public bodies in general,\[28\] the constitutional limitations on the legislative power,\[29\] the respective powers of the state and Federal governments,\[30\] and the extent and exercise of the taxing power,\[29\] are elsewhere treated.

SS 2. \_Property.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

Matters common to public bodies in general,\[28\] the constitutional limitations on the legislative power,\[29\] the respective powers of the state and Federal governments,\[30\] and the extent and exercise of the taxing power,\[29\] are elsewhere treated.

SS 3. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

Matters common to public bodies in general,\[28\] the constitutional limitations on the legislative power,\[29\] the respective powers of the state and Federal governments,\[30\] and the extent and exercise of the taxing power,\[29\] are elsewhere treated.

SS 4. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

SS 4. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

SS 5. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

SS 6. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

SS 7. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

SS 8. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Contracts, 1703. 8 7. Actions by and Against State, 1704.

SS 9. \_Boundary, jurisdiction and sovereignty. Boundaries.\_See 8 C. L. 1970. 8 3. Cont 10 Cur. Law. STATES SS 5.1703

may become an absolute owner of such property \[42\] and be subject to the law of private ownership.\[48\] Upon the admission of a state into the union, concurrent action by the state and the United States is required to make a transfer of records effectual.\[44\] The state may administer its property through a municipality.\[45\] Statutes depriving the state of property are not to be construed strictly against the state.\[46\]

SS 3. _Contracts_,See 8 C. L. 1971.-- The state may contract through the legislature "r or an agent.\[48\] A breach of contract by the state creates a valid cause of action.\[49\]

SS 4. _Officers and employees_,See 8 C. L. 1971.--Public officers are created in the interests of the general public,\[50\] to be filed in the manner prescribed by the constitution,\[61\] and no one in possession has a property right to remain therein.\[62\] The state is not responsible for the misfeasance of its officers.\[63\] The state has no power to impart to an officer immunity from the supreme Federal authority,\[44\] and its officers and agents are liable for tort.\[65\] The examination of the accounts of state officers is to be determined by the legislature,\[50\] and when a fund is appropriated to defray expenses of an officer of the state, he is limited to that sum " and cannot reimburse himself for moneys paid out to meet expenses, beyond such limit.\[58\]

SS 5. _Fiscal management_,See 8 C. L. 1974.--No money can be drawn from a state treasury except under appropriations made by law,\[59\] for governmental purposes,\[50\] and constitutional provisions must be observed.\[61\] So, also, amount, time, and man-

States v. Chandler-Dunbar Water Power Co., 28 S. Ct. 579, but cannot be obtained by ad-

NYS 527.

verse possession (People v. Kerber \[Cal.\] 93 P 878).

42. Public use abandoned. People v. Kerber \[Cal.\] 93 P 878. Establishment of sea-

01. Unenforcible because of state's immunmunity. Money waste \[T.V.\] 84 NE 583,

recedes or land forms in the bed of navigable

50. Eckerson v. Des Moines \[Iowa\] 115 N NVF streams. State v. Muncule Pup Co, \[Tenn.\] 177.

104 SWF 47. Dry river Wed public property

51. Filling of vacancies in state offices by of state. Capable of occupation and by Tennessee until elective power acts. In re

v. Classa \[Tenn.\] 104 SWF 792.

43. Statute of limitations. People v. Kerber \[Cal.\] 93 P 878. Coupon bond of the

state a negotiable instrument, and state by

when senato is in session. Id.

its issuance submits itself to laws that govern

52. Eckerson v. Des Moines \[Iowa\] 115 ren individuals in that respect. Ehrlich v. NVF 177. See Constitutional Law, 9 C. L. 610.

Jennings \[S. C\] 58 SE 922. Kansas may

53. Surety of bond bank selected as maintain action for unreasonable use of

state depositary cannot avoid penalty by water in Arkansas river by Colorado, as

other riparian owners. Kansas v. Colorado, 206 U. S. 46, 51 Law. Ed. 956.

44. Eberle v. King \[OKL\] 93 P 748.

01. Dedication to "people of N. O." com-

ples with constitution, since those who will

may become "people of N. O." Saucler v. New Orleans, 119 La. 179, 43 S 999.

46. Construting incorporating act of city

of San Diego and former conveyance of

28 S. Ct. 441. Has no authority. Ware

Alcaide as of no effect. People v. Kerber

\[Cal.\] 93 P 878. Distinction between debts

day be restrained by Federal court of

of decedents due individuals and those due

equity. Exx puture. 28 S. Ct. 441; Hun-

the state abolished in Pennsylvania. Kore-

1ng's Estate, 34 Pa. Super. Ct. 425. Title to

funds derived from taxation to defray the

cost to the state of the collection and dis-

bursement of money necessary to pay regis-

tered municipal bonds is in the state. Whitt

145, 81 NE 427.

47. Contract for purchase of Annotated

Stuttutes, evidenced by "House Roll No. 57,"

enforcible by mandamus. State v. Junkh.

\[Neb.\] 115 N NVF 546. Employment of an of

60. People v. Brooklyn Cooperage Co. \[N.\]

legislature and services rendered imply an

agreement that state will pay for same.

ner of payment should be specific and certain,"2 and there is no limit to the discretion of the state in imposing conditions and conferring discretion on its fiscal agent as to disbursements."3 The imposition of a duty pertaining exclusively to fiscal administration is an executive duty."44

SS 6. \_Claims.\_See 6 C. L. 1519--States being immune from actions for claims have generally provided tribunals where claims may be heard."5 Some claims rest on moral or equitable obligations and may be recognized or refused by the state at its pleasure."64 Provision for payment is made by the legislature by statute."

SS 7. \_Actions by and against state.\_See 6 C. L. 1974--The state may sue in the supreme court as an individual " or in her capacity as quasi-sovereign."65 In other respects the statutes generally provide for the prosecution of suits,"66 but the use of the name of the state to enforce an unconstitutional act is a proceeding without authority, and does not affect the state in its sovereign capacity."71 Provision for suits against a state may be made by a statute,"72 but otherwise a sovereign state cannot be sued except by its own consent,"73 and the question is not always determined by the nominal parties on the record."74 There is some doubt whether the exemption applies

whose object is to stimulate corn crop, un-partition of real estate. Haley v. Sheridan, constitutional. Moore v. Alexander \[Ark.\] 190 N. Y. 331, SS 38 NE 296. N. Y. Code Civ. 107 SW 395; Michigan Corn Imp., Asa'n v. 1977 Proc. $ 264 provides for hearing private Auditor General, 150 Mich. 69, 14 Det. Leg. 1977.

10 Cur. Law. STATUTTES SS 1.1705

to colleges.78 The statute of limitations does not apply to a state,79 but this privilege may also be waived.77 An action to prevent the enforcement of an unreasonable and confiscating tariff against the administrative agents of the state is not one against the state when the act is void as to plaintiffs,78 but the rule is otherwise when the proceeding is against officers of a state merely to test the constitutionality of a statute in the enforcement of which the officers act only as attorneys for the state by formal judicial proceedings.78 The question of jurisdiction should be raised by de-murrer.80

**STATUS.**

\*\*# 1.\*\*Eacement, 1705. Special Sessions, 1706.

The Journala, 1706. Submission to

Popular Yote, 1706. Presruptions

\*\*# 5.\*\*Interpretation, 1715.

and Evidence as to Passage, 1706.

A. Occasion for Interpretation, 1715.

Publication, 1706.

B. General Rules, 1716.

C. Alids to Interpretation, 1718.

1706. Classification, 1708. Based

On Population, 1709. Other Classifications, 1709. Local Option Laws,

E. Exceptions, Provisoa, Conditions, and

1709. County and Township Affairs,

Saving Clauses, 1720.

1709. Municipalities, 1709. Taxa.

F. Mandatory or Directory Acts, 1721.

G. Strict or Liberal Constructions, 1721.

Privileges, 1709. Police Power,

H. Partial Invalidity, 1722.

\*\*# 3.\*\*Sabjects and Titles, 1710. Partial Invalidity, 1714.

\*\*# 4.\*\*Amendments and Revisions, 1714. Reference to Act Amended, 1714.

\*\*# 5.\*\*The scope of this topic is noted below.81

**SS 1.**\_Enactment.\_See & C. L. 1977.--An act does not become effective until approved by the executive 82 or the expiration of the time within which the veto power must be exercised,83 and in some states its effectiveness is postponed for a specified time thereafter.84 Approval by the acting governor precludes subsequent veto by the governor.85 The veto power is not an inherent right of the executive and can be exercised.81

\*\*& 80.\*\*Seully v. Bird, 28 S. Ct. 597.

the exercise of their official discretion as

81.\*\*It includes the general rules as to the necessary and proper for officially account, amendment, Interpretation and

plishing the objects for which said works

repeat of statutes, and the rules as to special

were constructed, the state is the real party

in interest, and the action cannot be main-

excludes constitutional limitations generally

tained without the consent of the state.

\*\*Key & Kirlty, 6 Ohio N. P. (N. S.) 529.

interpretation of particular statutes (see

75.\*\*Public corporation and exempt. Hop-

kins v. Clemson Agricultural College, 77 S.

C. L. 67 SE 551. Medical college of Georgia

designated part of University of Georgia

by statute. State had no control and might

withdraw boundary. Field, private corpora.

tion. Medical College of Georgia, V. Rush-

ing, 1 Ga. App. 468, 67 SE 1083.

76. People v. Kerber \[Cal.\] 93 P 878. The

state of limitations cannot operate against

a state to prevent forfeiture of land titles

for nonentry for taxation. Lewis v. Tate

\[TW. Va.\] 69 SE 1073.

77. By statute. State v. Chicago, etc., R.

Co. \[Ws.\] 112 NW 515.

78. Western Union Tel. Co. v. Andrews, 154

**F 95**; Louisville & X. R. Co. v. Railroad

Commission, 157 F 944.

79. Attempt to enjoin attorneys of Arkansas

as from Institutitutes suits for penalties.

Western Union Tel. Co. v. Andrews, 154

F 95. Suit to enjoin prosecuting officers of

state from Institutitutes criminal proceedings.

Logan v. Postal Tel. & cable Co., 157 F 670.

1705 cised only when sanctioned by a constitutional provision." A bill must be adopted by a majority vote." Amendments in one house must be concurred in by the other."

The motive of the legislature in enacting a law does not affect its validity."

\_Special sessions.\_See * C. L. 1977

\_The journals.\_See * C. L. 1977

Courts do not take judicial notice of the contents of the journals of the general assembly." The journals are usually required to show the legislative history of the act," but an enrolled bill will not be invalidated for deficiency of general entries as to its passage." A slight variance between an enrolled bill and an original bill due to mere clerical error may be ignored."

\_Submission to popular vote.\_See * C. L. 1978

An act adopted by the people after submission to popular vote does not need executive sanction."

\_Presumptions and evidence as to passage.\_See * C. L. 1978

All constitutional requirements as to the passage of an act are presumed to have been complied with "\* unless the journal shows the contrary," and the burden is upon one asserting contrary contentions " to establish the same by competent proof." The legislative records import absolute verity as to matters relating to enactment."

\_Publication_See * C. L. 1979

is in many states prerequisite to effectiveness."

**SS 2.**\_Special or local laws. In general.\_See * C. L. 1979

Special legislation is prohibited by the constitutions of many states," but this does not render a general law local in application," or which was occasioned by a particular contingency," unconstitutional unless intended to be limited to such single application or contingency. A statute which applies to all persons or things of the same class is general,"

- 86. State v. Kline \[Or.\] 98 P 287.

eecretary of state is in the same form that it was when passed by the legislature. Erveto the presidling officer casts the final "aye." Kelley v. Secretary of State, 149

- 96. Lee v. Tucker \[Ga.\] 60 SE 164.

Mich. 343, 14 Det. Leg. N. 351, 112 NWV 978.

- 97. Erford v. Peoria, 229 III, 546, 82 NE

- 98. Moore v. Neec \[Neec\]. 114 NWV 167.

- 99. Kirst v. Street Imp. Dist. No. 120

- 109 SWV 526. And see Constitutional

- 90. Erford v. Peoria, 229 III. 546, 82 NE

- 91. Notice to allow a special law to be passed. Ex parte Kelly \[Ala.\] 45 S 290.

- 92. Lee v. Tucker \[Ga.\] 60 SE 164.

- 97. Erford v. Peoria, 229 III, 546, 82 NE

- 98. The contrary can only be shown by strong evidence, usually in the form of the records of passage in the journal with its defects. Cox v. Mignerv \[Mo. App.\] 105 SWV

- 97. An entry in a record book by governor or his assistance showing presentation of bill on certain day held evidence competent and sufficient to prove presentation. Wrede

- 99. Wrede v. Richardson, 77 Ohio St. 182, 82 NE 1072.

- 90. Wrede v. Richardson, 6 Ohio N. P. (N. S.) 127.

- 11. Wrede v. Richardson, 77 Ohio St. 182,

- 82 NE 1072.

- 22. Held prohibited. Erford v. Peoria, 229 III. 546, 82 NE 374. General provision of constitution with reference to special and held it did not invalidate law providing local legislation is addressed to judgment and discretion of legislature (People v. Chl-

- 98. State v. Kline \[Or.\] 94 P 287.

- 99. Cox v. Mignerv \[Mo. App.\] 105 SWV 675;

- 90. Wrede v. Richardson, 77 Ohio St. 182,

- 91. Wrede v. Richardson, 77 Ohio St. 182,

- 92. Erratum v. West \[No.\] 112 NWV 1075.

- 93. Where word "thousand" in brackets was left out through clerical error. Board of Control of Michigan State Prison v. Auditor General, 149 Mich. 386, 14 Det. Leg. N. 467, 112 NWV 1017.

- 94. State v. Kline \[Or.\] 94 P 287.

- 95. Cox v. Mignerv \[Mo. App.\] 105 SWV 675;

- 96. Cox v. Pitt County Com'rs \[N. C.\] 60 SE 516;

- 97. Burr \[N. D.\] 113 NWV 705: State v. Suresgart. 118 Tenne. 556, 102 SWV 75. It is presumed that the law as certified to by the 10 Cur. Law. STATUTTES SS 2.1707

but one which embraces only particular persons or things of a class is special.\* The character of a law will be determined from its substance and effect rather than from the language used.\* In some states, however, a special law may be passed relating to

all persons similarly situated is not class

moved from state lands. State v. Shviclin-

legislation. Wilson v. Edwards, SS 2 Pa.

Super. Ct. 295. Law is none the less general

Let 1906, p. 115, c. 22, art. 3, 1, relating to

by reason of special legislation previously

taxtaxoting, held not special legislation even

passed which may restrict its operation in

If does not apply to every county of state.

certain instances. Sheraden Borough, 34 Pa.

Sastern Kentucky Coal Lands Corp. v. Com.

Super. Ct. 639. The rule that a statue

\[KJ matters not covered by any general law * upon due notice * being given.14 In some states, special legislation of a particular character is prohibited, as the creation of corporations,11 laws for the conduct of elections,12 etc. Again, special laws relating to special matters are sometimes expressly allowed.13 Laws of a general nature 14 must have a uniform operation in some states.15 In Arizona, however, special statutes may be passed, and these are held to control a general statute on the same subject.16_Classification.\_See * C. L. 1880--A classification must be based upon substantial differences in situation and need.17 A classification which excludes even one proper member from its class is, with rare exceptions, held unconsontutional.18

(97 Ohio Laws, p. 111, as amended by 98 \[Ind.\] $2 NE 787. Acts 1832, p. 144, c. 138, as Ohio Laws p. 63), creating a court house building commission in a certain county. Mackenzie v. State, 76 Ohio St. 369, 81 NE 638. Acts 1907, p. 7, c. s, Ind., establishing 162, c. 85, authorizing particular insurance support courts in designated counties. Board of Com'rs v. Albright, 168 Ind. 564, 81 NE 578. Supplement to act to authorize formation of resilient corporations and to regulate same approved March 1879 (P. L. 1879). Millville Imp. Co. v. Pitman, Glasgow & Clayton Gas Co. \[N. J. Law\] $7 A. 1005, Act May 23, 1889, Pa. (P. L. 277, art. 12, $ 2), allowing cities of third class having water works to create a department of water where act excluded the city of Erie. Commonwealth v. Heller \[Pa.\] $7 A 525. P. L. N. J. 1893, p. 302; Gen. St. p. 323, $ 120, enforcing right to traction companies to operate cars on existing trackers on streets. Jersey City v. North Jersey St. K. Co. \[N. J. Law\] $7 A. Err. & App.J $7 A 118. Sections 88, 39, P. L. 1903, p. 17, conferring power on municipal school boards to condemn lands. Wendel v. Hoboken Board of Education \[N. J. Law\] $6 A 1075. & Forman v. Hari \[Ala.\] $3 S 827; Miller v. Violence County Com'rs \[Ind.\] $9 A 118. Law establishing city court had provisions relating to hire of convicts and payment for their services. Held special legislation and a confavening a general law relating to incovicts. Binns v. Ficklen \[Ga.\] $0 SET 1051. Sunday barber law invalid as special, covered by general Sabbuch breaking law. Armstrong v. State \[Ind.\] $4 NE 3. 9, What notice must contain. Ex parte Kelly \[Ala.\] $5. 290. Notice held sufm. cient. Ex parte O'Neal \[Ala.\] $5. 712. Law held invalid, establishing police commission in certain sized cities, because of failure to give proper notice. State v. Weakley \[Ala.\] $3 S 175. Unnecessary signatures do not invalidats notice. Ex parte Kelly \[Ala.\] $5 B 290. 10. By express provision of Const. art. 7, $ 3, as amended, independent school districts may be created by special law without notice. Snyder v. Baird Independent School Dist. \[Tex. Clv. App.\] 109 SW 472. Where no notice was given, held not void where voters voted to request passage of act and there was otherwise no necessity for its publication. Forman v. Hari \[Ala.\] $3 SET 271. Equr. Rules of legislature conclusive as to proper notice given for a special law. Ex parte Kelly \[Ala.\] $5 B 290. 11. Com'rs v. Hari 11, $ 13, Burns' Ann. St. 1801, $ 5113, empowering certain city councils to adopt certain regulatory measures, held not to come under provision. Pittsburgh, etc., R. Co. v. Hartford City & Clayton Gas Co. \[N. J. Law\] $7 A. 12. Registration acts, Laws 1905, p. 188, c. 100, as amended by Laws 1907, p. 321, c. 147, held not within Const. set, $ 25, subd. 15. People v. Bari \[Colo.\] $4 P 294. 13. Ellis county road law held valid under art. 8, $ 5, as amended in 1890, authorizing local laws for maintenance of public highways. Young v. State \[Tex. Cr. App.\] 19 Jersey City v. North Jersey St. K. Co. \[N. J. Law\] $7 A. 118. Sections 88, 39, P. L. 188, creating city court of Vienna and conferring jurisdiction, held within exception, McDonald v. Vaughn \[Ga.\] $0 SET 1060. 14. A law whch effects jurisdictions of courts \[s of general nature and must oper-atte uniformly. Wallace v. Leiter, 76 Ohio St. 185, 81 NE 187. 15. Act March 6, 1907 (St. 1907, p. 122, c. 101), relating to wasting of water from arterial wells, held not violative 10 Cur. Law. STATUTTES $ 2. 1709

Based on populationSee $ C. L. 1980

The classification of cities by population, if based upon a rational difference of conditions, is valid 19 provided the act relates to matters incident to the population,20 but if clearly designed to apply to but a single city, a pretense of classification will not save the act.21

Other classificationsSee $ C. L. 1981 have been made and are sustained or not according as they are fair and rational.22

Local option laws.See $ C. L. 1981

Local option laws are usually held valid.22

County and township affairsSee $ C. L. 1981 frequently fall within general prohibitions,24 and, in addition, constitutions often forbid special legislation to apply to one township or county only.25

Municipalities.See $ C. L. 1981

Special acts conferring special powers on municipalities,20 regulating internal affairs of towns and cities,27 chartering cities,20 or amending city charters,29 are usually prohibited; but such an inhibition is usually held not to apply to school districts.80

TaxationSee $ C. L. 1982 must be by general law 21 except where classification is proper.22

Courts See $ C. L. 1982 may sometimes be created by special act.83

Special privileges See $ C. L. 1982 cannot be granted to a person or class.84

19. Act April 3, 1993, P. L. 136 (Pa.), re-state, is not invalid as class legislation.

lating to counties of over 500,000 and under

Pulaskl Tp. Poor Dist. v. Lawrence County, 1,000,000 population. Ycho v. Allegheny

34 Pa. Super. Ct. 602.

County, 218 Pa. 401. 67 A 648. Local Im-

28. Special characters to cities invalid. Peo-

Provement Act, $ 94 (Hurd's Rev. St. 1904, c. 24, $ 600), providing for additional as-

29. Monette v. State \[Miss.\] 44 S $89.

assessment in cities, towns and villages of

Does not apply to cases where act merely

loss than 100,000 inhabitants to defray cost

allows bond issues to take up expiring bond

of levy and collection, is valid. Northwestern

sensus, and does not in any way alter charter.

Pulaskl Tp. Quark C. Charleston City Council, 77 S.

NE 615. Act April 3, 1993, P. L. 136 (Pa.),

260, $7 SB #62.

allowing commissioners in counties having

30. Only to private and quasi public corporations. State v. McCaw, 71 S. C. 351, 58

000 to erect memorial halls, held valid, Ycho

SE 145. Authorizing high schools in San-

v. Allegheny County, 218 Pa. 401, 67 A 648.

Francisco, Board of Education of San

20. P. L. p. 394 (N. J.), leasing of wharves

ruralic to population. Oliver v. Burwering city of Memphis to establish and

lington (N. J. Law) 67 A 43.

21. Acts 1907, p. 402, to establish pollice

commissions in cities of certain populato, evident clearly that law was appli-

cable to but one city, held invalid. State

v. Weakley \[Ala.\] 45 S 176.

78. Act providing for collection of delin-

01. Section 6, Act of 1806, P. L. 1906, pp. 199-

205, (N. J.), relating to appointive officers in

cities where excise boards are appointive, invalid. Decker v. Daudt \[N. J. Err. & App.\]

67 A $76.

23. Local option law. Ex parte Dupree

\[Tex.\] 19 Tex. Ct. Rep. 851, 105 SWV 493. Local option law not special, Baxter v. State

\[Or.\] 88 P 677; Eckerson v. Des Moines

\[Towal\] 115 NWV 177.

24. See ante, this section.

01. P. L. 1904, p. 201 (N. J.), relating to

taxation of building and loan associations

in Monmouth county. Harthornne v. Avon-

by.-the-Sea \[N. J. Law\] 67 A 985.

26. Sections 38, 39, P. L. 1908, p. 17 (N. J.),

conferring power on municipal school board

to condemn lands. Wendel v. Hoboken

Board of Education \[N. J. Law\] 68 A 1075.

27. "An act concerning the government of

cities of the first class relating to powers of certain courts. McCarthy v. Queen \[N. J. Law\] 69 A 30. Legislation dividing paulers into two classes, those who have and

those who have not settlement within the

state, is not invalid as class legislation.

Pulaskl Tp. Poor Dist. v. Lawrence County, 1,000,00 _Police power._ See & C. L. 1982

\_SS 3. Subjects and titles. In general,\_See & C. L. 1982-Some states provide for the method or style or language in general to be used in titles to acts.35 Constitutions usually provide that a law shall embrace but one subject, which must be expressed in its title,36 but such provisions should be liberally construed to effectuate

of a single city. Held valid. State v. Tay-lor \[Tenn.\] 104 SVP 243. Lien law, allowing attorney's fees as costs to lienholders, held class legislation. Manowsky v. Stephan, 233 Ill. 409, 84 NE 265.

35. All to begin "Be it enacted by the general assembly of the state of Tennessee." State v. Burrow \[Tenn.\] 104 SVP 524.

01. Ronse v. Thompson, 228 Ill. 522, 81 NE 1109; Jeffers v. Annapolis \[Md.\] 68 A 361.

110; Jeffers v. Annapolis \[Md.\] 68 A 361.

This provision is designed to prevent fraudulent legislation and to fairly apprise the people of the purpose of the legislation. Rouse v. Thompson, 228 Ill. 522, 81 NE 1109.

Things necessary to the accomplishment of the purpose of an act are properly included as a part thereof. Commonwealth v. Immel, SS 24. Super. Ct. 88. Title of Laws 1887, p. 242, c. 165, held broad enough to include provision to authorize taxings of attorney's fees as costs. Ex parte Ellis \[Kan.\]

91 P 81. Laws 1903, p. 30, defining "extrays" and providing penalty for taking them up, void as having more than one subject. State v. Cunningham, 35 Mont. 547, 90 P 755.

**Held vnii:** Sess. Laws 1903, p. 809, c.

155, regulating hours of employment of women and children. Burcher v. People \[Colo.\]

93 P 14. Acts 1903, p. 92, 94, c. 36, confer-ring power of eminent domain on street and internburgh railway, held sunClient as to title. Mull v. Indianapolis & C. Trac. Co. \[Ind.\] 81 NE 657.

\*\*Hunting and fishing and the regulation thereof are to be regarded as a single subject for statutory regulation within the purview of the constitution. Commonwealth v. Rothermel, 27 Pa. Super. Ct. 648. Act of 1903 (24 Stat. p. 81), regulating manner in which common carriers shall adjust freight rates and freight losses and damage claims, held not plural subject. McTeer v. Southern EXP. Co. \[S. C.\] 58 SE 939.

**Holden** \[Md.\] 14 Det. Leg. N. 492, 115 NWP June 7, 1901 (P. L. 514), amending prior acts relating to street railway companies," sufficiently covers a provision in the Act of March 23, 1886 (P. L. 298), prohibiting laying of tracks on Broad street, Philadelphia. Commonwealth v. Broad Street Rapid Transit St. R. Co. \[P.a\] 67 A 58. Act classifying an action for annunment of marriage with an action for divorce not invalid for embaracing more than one subject in title. Piper v. Piper, 48 Wash. 671, 91 P 189. Laws 1900, p. 453, c. 307, Md., conferring additional powers on railway company and changing its name. Jeffers v. Annapolis \[Md.\] 68 A 561.

**Property rights:** Sess. Laws 1903, p. 311, c.

139, expressed as "an act concerning land titles," held sunCliently clear to embrace registration under Torrens System. People v. Crissman \[Colo.\] 92 P 949. Act March 17, 1897, Cal. (St. 1897, p. 138, c. 110), relating to proceedings to register lands through courts. Robinson v. Kerrigan, 151 Cal. 40, 90 P 129. Laws 1855, p. 854, c. 475, act to widen and extend an avenue and to ratify v. Annapolis \[Md.\] 68 A 561.

**Property rights:** Sess. Laws 1903, p. 311, c.

139, expressed as "an act concerning land titles," held sunCliently clear to embrace registration under Torrens System. People v. Crissman \[Colo.\] 92 P 949. Act March 17, 1897, Cal. (St. 1897, p. 138, c. 110), relating to proceedings to register lands through courts. Robinson v. Kerrigan, 151 Cal. 40, 90 P 129. Laws 1855, p. 854, c. 475, act to widen and extend an avenue and to ratify v. Annapolis \[Md.\] 68 A 563. Laws 1903, p. 71, c. 86, fix-ing sanites of judges, title clearly expressed and and not double subject of title. Marin-eaux v. Cutter \[Utah\] 91 P 355. St. 19 10 Cur. Law. STATUTTES $ 3.

named, is not violative of requirement of general subject. Brown v. Moss, 31 Ky, L. $ 1694, Rev. St., because containing more $ 1288, 105 SWP 139. Acts 29th Leg. D. 220, than one subject not clearly expressed in $ 112, $ 5, relating to court reporters and title. Heffner v. Toledo, 9 Ohio C. C. (M. S.) $ 1. Act to annex certain territory. Detroit $ 1.20 but none subject in title. Newmon v. and to apply laws to govern the territory $ 532, 103 SWP 565, Laws 1903, p. 97, c. 5162, of Fairview v. Detroit, 150 Mich. 1, 14 Dot. (Leg. N. 595, 113 NW7 388. Title of Laws 1899, p. 79, entitled "An act to amend $ 1 * the enactments of the legislature. \[87\] This provision applies to the body of the bill

518, regulating opening and closing of sa-

looms, etc. Fourment v. State \[Ala..\] 46 S \[Ala..\] 46 S \[Ala..\] 46 S \[Ala..\] 46.

Taxation: Acts 1905, p. 1152, c. 513, to equil-

tably assess interurban electric lines and to

provide mode of collecting taxes from them,

held to embrace also electric light and power

plants owned by such railways. State v. Taylor \[Tenn..\] 104 SW 242, Gen. St. 1901,

$17672, 7673, authorizing county commisioners in certain cases to sell delinement

tax sold property certificates and providing

for redemption of such property, held not

double subject. Lincoln Morte. & Trust Co. V. Davis \[Kan..\] 92 P 707. Code, & 1830,

entitled "County road fund, how leveld and

paid out," includes streets of cities in the

county, City of Newton v. Jasper County

Sup'rs \[Iowa\] 112 NW 167. "An act to est-

tablish a board of revenue for H. county"

provides for election of boards, grants powers, and fixes status of board members. State v. Brackin \[Ala..\] 45 S 841. Revenue act of

1908 has but one subject in title. Eastern

Kentucky Coal Lands Corp. V. Com. \[Ky..\] 106 SWV 260.

\*\*City charters: Acts granting city power to govern itself and control its different agencies held properly to embrace rights to build

and maintain highways. Nalle v. Austin

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 54, 103 SWV

$2E.

**Amendments were properly entitled in the**

following cases: Amended bill did not refer to old bill in head, but held valid amendment. Zimmerman v. Trude \[Neb.\] 114 NW

641. "An act to repeal " " of the

Coole " " " title 'Revenue and taxes,"

subtitle 'Tax on mortgages and to re-enact

same with amendments," " held sufficient title.

Miller v. Vicomete County's \[Md..\] 69

A 118. Acts 1903, p. 579, amending charter

of city of Macon, held not to contain variant

matter. Smith v. Macon, 128 Ga. 227, 58 SE

713. Amendment authorizing special terms

of court, and providing regular judge may

appoint special judge, held applied same sub-

ject. Louisville & N. R. Co. v. Herndon's

Adm't, Si Ky. L. R. 1059, 104 SWV 732. Act

to establish courts of chancey appeal, and

amendment increased its number of judges,

changed its name, and enlarged jurisdiction,

held related to same subject. Memphis St.

R. Co. v. Byrne \[Tenn..\] 104 SWV 460. "An act

to amend " " ", entitled "Dover, by adding a new section to be known as," etc.,

held to embrace any new interest conferred

on husband In estate of wife. Ferguson v.

Gentry, 206 Mo. 189, 104 SWV 104. "An act to

amend an act " " " to prescribe the

parties to and venue of suits against rall-

road " " over whose lines " " " where any " " " cause of action arises,

out of " " ", and providing for apporpor-

tionment of damages" from connecting

carriers, and providing for additional means

of obtaining service on nonresident corpora

tions, held within one subject. Texas Cent.

R. Co. v. Marts \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 235. 101 SWV 117. An act to amend

- ", relating to change of venue, held to

embrace change in providing four days' notice of appeal

tice of appeal for change of venue instead of

tend days. State v. Hunter \[S. C.\] 60 SE 226.

"An act to amend and re-enact # 655 of the

Code in regard to when ded made to pur-

chaser, clerk to make it, what to contain, fee

for clerk," is not violation of single subject

rule. Kelly v. Gwatich \[Va..\] 60 SE 749. Act

Feb. 20, 1899 (Gen. Acts 1898-9, p. 32), entitled

"An act to amend Code 1896, 1441, regulating

actions for slander and libel," merely subtittit

for certain words of the original section, a provision clearly pertinent to the general subject of the section. Comer v. Age-Her

ad Pub. Co. \[Ala..\] 44 S 673. An amendment

making live stock insurance companies sub-

ject to general law of insurance companies

under a section of the statute which was dis

posed of when the amendment was enacted

did not bring the company under liability

under the disposed of section. State v. Bur

gress \[Tex. Civ. App.\] 107 SWV 3 10 Cur. Law. STATUTTES SS 3.1713

only.\[36\] It is usually sufficient if the title directs the attention of a person interested in the subject-matter to the act,\[39\] and need not express the means whereby the indicated result is to be attained.\[40\] While in Illinois two germane subjects may be enacted under one title,\[41\] the title must be sufficiently broad to cover both.\[42\] Whether the subject-matter of the statute is expressed within the title must be determined from the contents of the statute without regard to the source of the power of which the statute is an expression.\[48\] Where every section of an act refers to and is germane to the subject-matter described in the title, the title need not give an abstract of the contents of the act, nor mention the means and methods by which the general purpose is to be accomplished.\[44\] In determining whether the title is sufficient, the object to be accomplished by the act may be considered.\[45\] The rules governing construction of title and other matters apply to amendatory acts just as if they were part of the act itself.\[48\] The title of an amendatory act is sufficient if it recites the title or substance of the original act and the amendment itself is germane to and embraced in the title to the original act.\[47\] Supplementary acts must be embraced in the title of the original acts and be germane to the subject of the act to be valid.\[48\] Where an act has been approved by a court, the title of an amendatory act thereto is sufficient if it clearly specifies the particular sections of said act to be amended and is germane to the subject stated in the original act.\[49\] An act not amendatory need not recite other acts of same nature in its title.\[50\] A court cannot by construction enlarge a title to an act.\[41\]

38. No objection if caption is broader than of Fairview v. Detroit, 150 Mich. 1, 14 Det. enacting part and covers subject expressed in Lcg. N. 595, 113 NW 368. Seas. Laws 1907, in title. City of Knoxville v. Gass (Tenan.) p. 50, authorizing establishment of certain schools and providing a tax for their support. The work helped properly under one title. Evers v. Hudson \[Mont.\] 92 P 462. Acts 1907, p. preted by a man of ordinary intelligence. Commonwealth v. Black Co. 34 Pa. Super. cl. 43 Pa. Super. cl. 431. "An act to provide for the adoption of trade marks * * and to regulate the same" not defective for failure to ex-

presents penalty for counterfeiting. Commonwealth v. Meads, 29 Pa. Super. Cl. 321. "An act relative to the sale * of mer-

- of mer-
- not in the ordinary course of business
- \*, imposing certain duties on the seller, not defective for failure to express duty of the buyer. Wilson v. Edwards, 32 Pa. Super. Cl. 295. The title must substantially correspond to and fairly point out the subject-matter thereof. House v. Thompson, 228 Ill. 622, 81 NE 1109.

40. Title of act for preservation and propagation of fish not defective for failure to indicate the provision forbidding deposit of poisonous substances in streams, Commonwealth v. Immel, 33 Pa. Super. Ct. 388.

01. Rouse v. Thompson, 228 Ill. 522, 81 NE 1109.

01. An act providing for "holding and regulation of primary elections of delegates to nominating conventions," providing in addition for holding primary elections for the purpose of nominating candidates of the different political parties, is vold. Primary Election Law of July 1, 1906. Rouse v. Thompson, 228 Ill. 522, 81 NE 1109.

01. Burcher v. People \[Colo.\] 93 P 14.

01. Campbell V. Skinner Mfg. Co., 83. Fin. 632, 43 S 874: Jeffers v. Annapolis \[Mol.\] 68

01. A 658. "Act to annex the territory of the township of arasse," etc., to Detroit, held to contain matter not germane to title. Village

10 Curr. L.-- 108.

Partial invalidity.58e & C. L. 1965--Generally where part of a law is embraced in a title and part not, the part embraced is held valid even though other part is not 52 unless the parts cannot well be separated.58

SS 4. Amendments and revisions.58e & C. L. 1980--An amendment of a nonexisting act is ineffectual.58 Where an enactment indicates an intention to create an act complete in itself, the fact that it modifies an existing statute by implication does not make it an amendment.58 Where an entire act relates to a single subject-matter, a void portion may be cured by an amendment relating solely to such portion.58 An amendatory act may be made effective without submission to the people though the amended act became operative only upon adoption by them.59

\_Reference to act amended.58e & C. L. 1988--It is generally provided that an act cannot be amended or revived by reference to its title only,58 but such act must be set forth in the amending statute.59 This rule does not apply to supplemental measures,60 nor those amended by implication only,61 nor to statutes which merely provide a rule of construction for another act.62 This supplementary matter however must be germane to the subject of the act so that if it were contained in the original act it would be embraced in its title.63 Where the legislative intent to amend an act clearly appears, the fact that its section number is erroneously stated does not invalidate the amendment.64 Where the intention of the legislature to re-enact a statute is plainly shown, the fact that the act does not expressly provide for re-enactment is immaterial.65 An amendment to an amendatory act need not refer to the original act.66 Some states also require acts revised or amended to be re-enacted and published at length to become valid new laws.67

52. Donovan v. State \[Ind.\] 83 NE 744. Although penal clause is invalid, rest of act is valid and penalty will be afforded by general penal acts. State v. Ames \[Vdash.\] 82 P 137. 58. Hayes v. Walker \[Fla.\] 44 S 747. 54. An attempt to amend sections of the code after their repeal at the same session is ineffectual. Schamblin v. Means \[Cal. App.\] 91 P 1026. 55. Constitutional provisions as to describe and identifying act to be amended. do not apply. Erford v. Peoria, 229 Ill. 646, 52 NNE 374. 56. Original act not required. Edalgo v. Southern R. Co., 129 Ga. 258, 58 SE 846. 57. Dykstra v. Holden \[Mich.\] 14 Det. Leg. N. 942, 115 NW 74. 58. People v. Chicago Election Com'rs, 221 Ill. 9, 77 NE 821. Const. art. 4, 2 (Ind.). Acta Istitp 17, 7, 5, do not come under this rule. Harlin v. Scharber \[Ind.\] 81 NE 721. "An act amending the charter of the city of S. by prescribing method of electing," etc., held not amendment by reference to title only. City of St. Petersburg v. English \[Fla.\] 45 S 483. 59. Reincorporation act for city of Pamp-In City, Va., held void. Beale v., Pankey \[Va.\] 57 SE 861. An act of the legislature touching upon the subject of a former act and amending it by implication is not within the constitutional provision that the new act shall contain the section or sections amend. ed. Firat Nat. Bk. v. Pearce \[Kan.\] 92 P 83. Where the amendatory act correctly states the date of the approval of the act amended, the fact that It is incorrectly stated in the title is immaterial. Patron v. People, 229 Ill. 512, 82 NE 386. 60. Acts 1903, p. 233, c. 134, held supplemental and not amendatory of Act May 12, 1869, Laws 1869, p. 92, c. 44. McCleary v. Babcock \[Ind.\] 82 NE 453. Where there is an established system of procedure in certain cases, a new act extending such system, by a general reference to it, to a new class of cases is not a violation of a constitutional provision that acts revived, amended, or extended must be re-enacted and published at length. Commonwealth v. Samuel W. Black Co., 34 Pa. Super. Ct. 431. 61, 62, City of St. Petersburg v. English \[Fla.\] 45 S 483. 63. Setters' Irr. Dist. v. Setters' Canal Co. \[Idaho\] 94 P 829; McCleary v. Babcock \[Ind.\] 82 NE 453; Memphis St. R. Co. v. Byrne \[Tenn.\] 104 SW 460. Where act related to selection, drawing, and summoning of juvors, and amendment was in regard to smissions in preparing jury list and boxes, held same subject and proper. State v. Franklin \[S. C.\] 68 SE 953. 64. Amendment of June 10, 1897, held to amend $ 152 of the Drainage Act (Laws 1885, as amended by Laws of 1895, p. 166), though designating it as $ 89a. Patron v. People, 229 Ill. 512, $2 NE 386. 65. Patron v. People, 229 Ill. 512, $2 NE 386 10 Cur. Law. STATUTES $ 5A. 1715

_Effect._${}^{\\tt Sos}$ * C. L. 1987.--An amendatory act supersedes the amended portion of the original act.${}^{\\tt Sos}$ The true intent of the legislature in an amendment must be gathered from the whole scope of the enactment and the reasons which appear for making the enactment,${}^{\\tt Sos}$ and the new and the old laws must be construed together to determine the intent of the legislature.${}^{\\tt Sos}$ Where the title of an act provides for amending another act and adding thereto a section, and the body of the act provides for the amendment but makes no addition of the section, the amendment is still valid.${}^{\\tt 11}$

_Identification._ See $ C. L. 1987

_Revisions._${}^{\\tt See}$ $ C. L. 1987--Where in a revision of the statutes the phraseology of a section is changed and the obvious effect is to give it a different meaning, the courts cannot give the old meaning to the new section,${}^{\\tt 12}$ but where codification merely changes section numbers the law and its interpretation remains the same.${}^{\\tt 13}$ Where a legislature re-adopts laws in a codified form and changes from the old law are made before adoption of the revision, the old interpretation is not binding on the courts.${}^{\\tt 14}$ Where commissioners to codify laws have no right to codify any but "enrolled bills," and a general law is not enrolled, the law cannot become a part of the codification.${}^{\\tt 15}$ Acts passed subsequent to a codification and not contained therein are not part of adopted codification and its construction must be in its original form as enacted without reference to the codification.${}^{\\tt 18}$ Revisions sometimes repeal old laws by implication, where the revision clearly indicates an intent to change the old existing law.${}^{\\tt 17}$ Where a general law is passed embracing all the provisions of numerous old special laws, the new general act really amends and supersedes the old laws.${}^{\\tt 18}$ A chapter in a codification which completely covers the subject-matter of a former chapter supersedes it.${}^{\\tt 19}$

SS 5. _Interpretation. A. Occasion for interpretation. Unambiguous statutes._ See $ C. L. 1987--Where the language of a statute is incapable of more than one construction and it does not lead to an absurd result, a court has no power to go beyond the expressed meaning.${}^{\\tt 80}$

\_Who may invoke interpretation.\_See $ C. L. 1778--One who makes application for a license and has complied with all preliminary statutory requirements may question constitutionality and obtain a construction of the license act.${}^{\\tt 81}$

68. P. L. 1903, p. 711, amending $ 178, Elections Act, 1898, p. 316, as amended by P. L. 1903, p. 628, relating to fees of election in-sectors. Vanderveer v. Herbert \[N. J. Law\] 68 A 995; Dimpfel v. Beam \[CoLo.\] 91 P 1107.

01. Omission showed intent to establish commencement of term of office in the future and as no time was mentioned it was evident that intention was not to create new office. State v. Clausen \[Wash.\] 91 P 1089; Jessee v. De Shong \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 22, 105 SW 1011.

01. State v. McMillan \[Fla.\] 45 S 882; Attorney General v. Lewis \[Mich.\] 14 Det. Leg. N, 840, 114 NW 82; Treushe v. Lincoln \[Neb.\] 112 NW 377; Jessee v. De Shong \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 22, 105 SW 1011.

01. West v. Latah County Com'rs \[Idaho\] 94 P 446.

01. State v. Ritchle \[Utah\] 91 P 24.

01. Strottman v. St. Louis, etc., R. Co. \[Md.\] 109 SW 768.

01. State v. Burgess \[Tex.\] 109 SW 92.

01. Postal Tel. Co. v. Shannon \[Miss.\] 44 S 809.

01. Rayford v. Faulk \[Ala.\] 45 S 714.

01. Even though contains no express, 1064.

(SS 5) \_B. General rules.\_See 5 C. L. 1987.-Statutes should be so construed as to render them valid if reasonably susceptible thereof,"82 but where a law appears unconstitutional beyond a reasonable doubt, it is the court's duty to declare it so.89 Statutes of general application ordinarily apply to persons sui juris and not to those under a disability.84 The expression of one thing in a statute is to the exclusion of others not expressed, but this like other rules of construction is a guide and not a hard and fast rule.85 That which is implied in a statute is as much a part of it as if it were declared in express terms,88 and where a power is conferred by a statute, it must be construed impliedly to contain everything necessary to carry out the power and make it effectual.87 Where the state statutes are a re-adoption of the common-law, the statutes must be construed with reference to the common law.88 Statutory rules of construction rather than common-law rules are to be applied to statutes which are substitutes for statutes which were part of the common law.89 Though not conclusive, the construction placed upon a statute by the legal profession generally 90 or the department charged with its enforcement 91 may be considered.

\_Intention to be reached.\_See 8 C. L. 1988.-The fundamental rule is to reach the intention of the law makers 92 or, in the case of the constitution, of the will of the people adopting it 98 and to so construe as to give effect thereto.84 A legislative purpose expressed in a bill is not binding on courts where it appears that the real intent was not that expressed in the bill.89 Where there is a general as well as a particular intention expressed, the latter being incompatible with the first, the particular intention will be considered an exception to the general one and, by allowing the latter to operate according to its special purposes, the two acts can stand together.96 The purpose of a statute in whatever language it is couched must be determined by its 10 Cur. Law. STATUTUTES $ 5B.

natural and reasonable effect "" in the absence of evidence that the language used was in a restricted or peculiar sense." Where a statute deals with a genus and the thing which afterward comes into existence is a species thereof, the language of the statute will generally be extended to a new species though it was not known and could not have been contemplated by the legislature when the act was passed."

\_Whole act to be considered.\_See s C. L. 1988--The whole act and the several parts thereof are to be considered," but where there is an irreconcilable conflict between the different parts the last in order of position controls.2 The preamble can be taken in connection with other parts of the statute in determining its construction."

\_All language to be effectuated.\_See s C. L. 1988--Where a general purpose has been ascertained from a statute, general words may be restricted to a particular meaning and those of restricted meaning expanded so as to embrace the general purpose and effectuate it,4 but only where the intent is clearly shown either from other provisions of the act or recourse to an examination of the legislative journals."

\_Avoiding hardship or absurdity.\_See s C. L. 1989--In construing, an absurd purpose should not be attributed to the law makers.8

_Ejusdem generis._--Where a general word follows particular and specific words of the same nature as itself, it takes its meaning from them and is presumed to be restricted to the same genus as those words. This rule is but an aid in determining legislative intent and does not confine operation of a statute within narrower limits than the legislature intends." Where specific terms of an act signify subjects different from one another, the rule of ejusdem generis does not apply.8

\_Presumption of legislative knowledge of the law.\_See s C. L. 1989--The legislature

97 State v. Peet, 80 Vt. 449, 68 A 661.

v. Brackin \[Ala.\] 45 S 841; State v. Rat 98. In re Opinion of Justices \[N. H.\] 68 A \[Portage Lbr. Co. \[Minn.\] 118 NW7 162. Where there was doubt as to what numbered dis-

99. McCleary v. Babcock \[Ind.\] 82 NE 453.

tricts were intended in act appointing cer-

1. Chicago, etc., R. Co. v. State, 84 Ark.

tan members of boards in districts and

409, 106 SW 195; Peterson v. People, 129 Ill.

there was a conflict in the journals as to

App. 55; Truelove v. Washington \[Ind.\] 82 districts held, act was inoperative. Id.

NE 530; Boyer v. State \[Ind.\] 83 NE 350;

6. Advisory Board of Coal Creek TP, v. Le-

Strottmann v. St. Louis, etc., R. Co. \[Mo.\] 109 vandovsk \[Ind.\] 84 NE 346; In re

SW 179; Webrenberg v. New York, etc., R. Howard's Estate, 80 Vt. 489, 68 A 513. When

Co., 108 NYS 704; State v. Hanson \[N. D.\]

legislative intent can be collected from a

113 NW 371; Riggs v. Polk County \[Or.\] 95

statute words may be modified or supplied to

P. 5. Regard must be had to other clauses in

avoid absurdity, repugmanence, or inconsist-

consturing first clause. United States v.

ency. Id. Constructions which favor a few

Baltimore, etc., R. Co. \[C. C. A.\] 159 F 83.

are, wherever possible, to be discarded in

Except where part in invalid then vail parts

favor of broad interpretations favorable to

are to be considered, invalid ones to be dis-

all persons engaged in similar calling.

regarded. Trustees of Village of Saratoga

Reverine acts. Commonwealth v. Nunan, 31 Springs v. Saratoga Gas, Elec. & P. Co.,

Ey. L. R. 1990, 104 SW 731. The fact that a

122 App. Div. 203, 107 NYS 341. Including

erroral construction causes inconvenience

every word of section. Hasely v. Ennsley, 40

cannot effect the judicial termination of a

Ind. App. 588, 82 NE 801. "Wharf or place

case involving such a construction. Bugf-

of storage, or any warehouse, mili, store,

efin v. Cameron \[Aris.\] 90 P 324; State v.

or other building" in Hurd's Rev. St. 1905, c.

88, 124, defining offenses of warehouse,

162.

held to apply to all buildings in which goods

are stored and not merely to those in which

they are kept for hire. McReynolds v. Peo-

pe., 230 Ill. 623, 82 NE 945.

9. Great Northern R. Co. v. U. S. \[C. C. A.\]

155 F 945; Peterson v. People, 129 Ill. App. 55.

9. Though preamble is not a necessary

part of a statute. Memphis St. R. Co. v. Byrne \[Ten.\] 104 SW 460.

4. Lewis v. Northern Pac. R. Co.

is presumed to have full knowledge of all the acts passed by it, particularly as to the subject-matter of those acts,9 and this applies to all existing law.10

_General and particular provisions_,See 8 C. L. 1989--Where an expression is special or particular but the reason general, the special words should be deemed general.11

(SS 5) _C. Aids to interpretation. The title_,See 8 C. L. 1989--Where a legislative act is general its title may be resorted to for the purpose of ascertaining its proper limitations,12 but as the title is not a part of the act itself it should not be resorted to for the purpose of interpretation until there is absolute doubt as to interpretation of the body of the act.13

_Marginal notes_.See 2 C. L. 1728

_Legislative history_.See 8 C. L. 1999--A court in construing an act may consult its history and the reports of committees in charge of it.14

_Contemporaneous interpretation_ See 8 C. L. 1539 can be invoked only where the act is ambiguous,15 but in such case may be resorted to 16 and a construction long acquiesced in will not be lightly disturbed.17

_Official construction_.See 8 C. L. 1999--Legislative interpretation of prior acts can have no retrospective operation18 and is not conclusive.19 Where a legislative construction of a prior statute is contradictory to the terms of the statute construed, the construing statute must be taken as a new enactment changing the prior law,20 but if the statute declaratory of a former one has the same effect on the construction of the former act, in the absence of intervening rights, it must be treated as if the declaratory act had been embodied in the original act when passed.21 Executive construction of the language of an act should be given great weight.22

_Surrounding conditions_.See 8 C. L. 1999--In seeking the meaning and intent of a statute, regard must be had to the subject-matter and to all the surrounding circumstances.23

_Prior acts_.See 8 C. L. 1999--Prior acts and their interpretation are properly considered in aid of construing a statute.24 It is proper to consider a repealed act in arriving at a particular construction of existing acts.25

Footnote 24: The author is grateful to the anonymous referee for the support of the work of the author.

10. Legislature to legislate only with ref- of the act. Wulttemore v. People, 227 III.

erence to it. State v. Southern R. Co., 145

N. C. 495, 59 SE 570; Sikes v. St. Louis, etc., R. Co., 127 Mo. App. 326, 105 SW 700.

11. Interstate Drainage & Inv. Co. v. Freeborn County Corns Ic. C. A.158 F 270.

01. United Shoe Mach. Co. v. Duplessis Shoe Mach. Co. C. A.165 F 842; In re Hayden \[Min.\] 111 NW 278; State v. Fort \[Mo.\] 109 SW 737.

01. Forman v. New Orleans Sewerage & Water Board, 119 La. 49, 43 S 908.

01. United States v. Chicago, etc., R. Co., 157 F 616. Speebetes and progress through legislature. Truchev v. Washington \[Ind.\] 82 NE SE 520; People v. Butler, 109 NTS 900. In construing a statute, courts will take judicial notice of history of subject-matter to which act relates, and to relevant facts which are matters of common knowledge, and will seek aid in ascertaining intention of legislature by assuming that body was familiar with such history and facts and had them in mind when statute was enacted. Reid v. Muhlenberg Tp. Board of Education, 6 Ohio N. P. (N. S.) 526.

01. Fact that statute plainly deprives off-cers of regularities prohibits adoption of interpretation given it by such officers which in effect permits the operation of the terms of the act. Wulttemore v. People, 227 III.

01. Board of Com'rs v. Branaman \[Ind.\] 82 NE 65; Williams v. State \[Tex. Cr. App.\] 107

01. McChesney v. Hager, 31 Ky. L. R. 1038,

104 SW 714; Bates v. Hacking \[R. I.\] 68 A

622; State v. Davis \[Vv. Va.\] 60 SE 584.

18. McCleary v. Babcock \[Ind.\] 82 NE 453; Great Northern R. Co., v. Snothonish County

01. Wax \[Vdash\] 83 P 924.

01. More advisory than mandatory. Slints v. Dana \[Iowa\], 115 NW 111.

20, 21. McCleary v. Babcock \[Ind.\] 82 NE 452.

22. Except where language is not ambiguous. Fire Ass'n of Philadelphia v. Love \[Tex.\] 108 SW 810; Reeve's Appeal, 33 Pa.

Super. Ct. 198.

23. City of Lexington v. Commercial Bk.

\[Mo. App.\] 108 SW 1095; State v. Harden

\[Vv. Va.\] 58 SE 715.

24. Board of Com'rs v. Branaman \[Ind.\]

01. NE 65; Eckerson v. Des Moines \[Iowa\]

115 NW 11 10 Cur. Law. STATUTTES $ 5C. 1719

Original act.See 4 C. L. 1885--Courts generally hold that when the meaning of a statute is in doubt recourse shall be had to the original statute to determine the legislative will.26

Re-enactment statutes.See 5 C. L. 1991--Where a law is simply a re-enactment of an old statute, the presumption is that the legislature intended the same construction for the old as the new law.27 The same is true where a legislature re-enacts a statute after a supreme court has construed it, unless it is clearly shown that the legislature intended a different construction,28 and the same applies to a provision in a constitution.29 Where a legislature has re-enacted a bill at various times for forty years and officers, whose duty it was to enforce this law, have interpreted it one way for forty years, their interpretation should be adopted rather than some new construction indicated by the words of the statute.30 A re-enactment by congress, without change, of a statute which previously had executive construction, is an adoption of that construction by congress.31

Statutes adopted from other states See 5 C. L. 1991 are presumed to have been adopted in view of the interpretation there given them.32 This rule does not apply where the act had not been construed previous to its adoption 83 and where the courts of this state have construed the act prior to its construction in the state where it was originally enacted.34

\[N. J. Err. & App.\] #9 A 239. Later statutes, Rawlings, 205 Mo. 412, 104 SWY 38; EX parte which do not abrogate settled practice or re-peal former statutes are to be expounded or near to the use and reason of the prior law 83 PS 83; Missouri, etc., R. Co. v. Wise \[Tex.\] as can be without violation of their intent. 108 SWY 112; Red River Nat. Bank v. De Peoples' Trust, Sav. & Deposit Co. v. Ehr-hart, 34 Pa. Super. Ct. 16. The scope of a new criminal act in the absence of special 105 SWY 998; Manitowoc Clay Product Co. v. indication of changed intent will embrace 7 The New York construction will govern in only the same classes and persons, construed? Michlgan so far as it determines that the state, I doa. App. 155, 85 SE 265.

25. Southern R. Co. v. McNeill, 155 F 766.

26, Taylor v. Caribou, 102 Mo. 401, 67 A.

149 Michl. 601, 14 Det. Leg. N, 590, 113 NWY

Change. Block v. American Ins. Co. \[VWs.\] 112 NWY 45. In cases of uncertainty or doubt 112 NWY 45. In cases of uncertainty or doubt 112 NWY 45. In cases of uncertainty or deulyed statutes, to meaning of compiled or revised statutes. Thomas v. U. S. C. C. A. I 156 F 897.

47. Acts 1905, p. 709, c. 169, $ 534 (Burns' 102 SWY 133; Tarussi V. Missouri Pac. R. Co., Ann. St. Supp. 1095, $ 2179). Sopher v. State \[Ind. T\] 103 \[Ind.\] 81 NEY 913. Re-enacted with con-sure 770. Need not be a literal copy of law of structure of former law placed upon it.

Pavey v. Bradock \[Ind.\] 84 NE 5. What is a re-enactment. Jessee v. De Shong \[Tex.\].

Altes \[Mod.\] 109 SWY 695. In so far as not Civ. Appl.\] 20 Tex. Ct. Rep. 22, 105 SWY 1011.

28. Acts 1907, p. 238, c. 148, $ 1, subd. 14.

Cronlin v. Zimmerman \[Ind.\] 81 NEY 1083.

Wood-Dickerson Supply Co. v. Coccola \[Ala.\] 45 S 192; McIntre v. State \[Ind.\] 83 NEY 1005; Taylor v. Mattewan, 122 App. Div.

406, 106 NYS 841; Pennington v. Gillespie \[W. Va.\] 61 SE 416.

29. McIntre v. State \[Ind.\] 83 NEY 1005.

01. State v. Sheldon \[Neb.\] 113 NWY 208.

01. Copper Queen Consol. Min. Co. v. Arl-zona Territorial Board of Equalization, 206

474, 51 Law. Ed. 1143; United States v. Cercceedo Hermanos Y Compania, 28 S. Ct. 532.

32. Copper Queen Consol. Min. Co. v. Arl-zona Territorial Board of Equalization, 206

483, 500, 113, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140,

## 1720 STATUTES SS 5D.

### State statutes in Federal courts

See 8 C. L. 1991

_Enforcement_.See 8 C. L. 1954.--Where there is an act prohibiting a certain thing and another act enforcing by penalty the first act, the two may be construed together in an enforcement of a penalty for the act.\[38\]

_Laws in pari materia_\[8ce 8 C. L. 1991 will be construed together.\[38\] The rule that statutes upon the same or similar subjects should have like interpretation is inapplicable where the provisi 3 of a later statute are positive and explicit and also where,subjects are different.\[37\]

_Acts of same date_.See 8 C. L. 1992.--Where two acts to take effect on the same date are repugnant, the last one approved repeals the first one.\[38\]

_Acts of same session_.See 2 C. L. 1994.--Acts passed at the same session when relating to the same subject are to be considered together and should be construed wherever possible so that both may stand.\[39\]

(SS 5) _D. Words, punctuation and grammar_.See 8 C. L. 1992.--The words of a statute are to be construed in their popular, natural, and ordinary sense unless upon their face it appears that they were not intended to bear that construction,\[40\] and in general the natural, common, or obvious meaning of the language of a law must be preferred, save in rare and exceptional cases,\[41\] such as where technical construction is indicated.\[42\] A word is construed in connection with the words with which it is associated, and where several things are referred to, they are presumed to be of the same class when connected by a copulative conjunction, unless a contrary intent appears.\[43\] Where in a constitution a word is repeated at various places in some of which its meaning is clear and others not, the clear meaning will be followed in all parts.\[44\] A court may supply missing words in a statute, where the omission was clearly the result of a clerical error,\[45\] and may disregard surplus words.\[48\] A court's construction of words will prevail over popular conception.\[47\] While punctuation is subordinate to the text and can never control its plain meaning, yet in cases of doubt it may aid in its construction.\[48\] Courts are not bound to use rules of grammar and may disregard the rules to give effect to manifest legislative intent.\[49\]

(SS 5) _E. Exceptions, provisos, conditions and saving clauses_.See 8 C. L. 1992.--

statutes from which Hurd's Rev, St. 1905, p. 11, $ 2, c, 70, was taken, as to right of rela:

11, $ 2, c, 70, was taken, as to right of rela:

tives of deceased who suffered no pecumary loss because of his death, to recover dam-

ages, is not followed in this state. Rhoads

v. Chicago & A. R. Co., 227 Ill. 328, 81 NE

871.

\*\*35.\*\*Commonwealth v. Herald Pub. Co. \[KY.\] 108 SW 892.

\*\*36.\*\*State v. McMillan \[Fla\] 45 S 882;

Board of Com'rs of Jackson County v. Brannan. \[Ind.\] 82 NE 65; Eckerson v. Des Molnes

\[Iowa\] 115 NW 171; State v. Patterson, 207

Mo. 129, 105 SWV 1048; Ebbling Brew, Co., Nlmpius. 109 NYS 808. Local option

law valid and does not interfere with city charters, but should be construed with them.

Baxter v. State \[Or.\] 88 P 677.

\*\*37.\*\*United States v. Colorado. etc., R. Co. \[C. A.\] 157 P 821; State v. Wirt \[TW. Va\]

59 SE 84, 981.

\*\*38.\*\*Garrison v. Richards \[Tex. Civ, App.\] 107 SWV 861.

\*\*39.\*\*Moss v. U. S., 29 App. D. C. 185; Eckerson v. De Molnes \[Iowa\] 115 NW 171; State v. Cornins State Sav. Ek. \[Iowa\] 115 NW 171; State

937; Paul v. State \[Tex. Civ, App.\] 12 Pec. Ct. Rep. 320, 108 SWV 44; Garrison v. Richards \[Tex. Civ, App.\] 107 SWV 861.

\*\*40.\*\*Chudnovski v. Eckels, 232 Ill. 312, 83

NE 846; Boyer v. State \[Ind.\] 83 NE 850;

State v. Wilder, 266 Mo. 541, 105 SWV 272;

State v. Goodrich \[Wis.\] 113 NW 388; Davis

v. State \[Wis.\] 115 NWV 150.

\*\*41.\*\*United States v. Colorado, etc., R. Co. \[C. A.\] 157 P 821; Truelove v. Washington

\[Ind.\] 82 NE 530; Ex parte Brown \[S, D.\] 114 NW 303.

\*\*42.\*\*City of Mayrsville v. Mayrsville St. R. & Transfer Co. \[Ky.\] 108 SWV 96 10 Cur. Law. STATUTES SS 5G. 1731

A proviso will be construed so as to effectuate the intention of the legislature though tantamount to an original enactment.\* The scope of a proviso is to be determined by its words and import rather than by its connection with a subdivision of the state.\[61\] Provisos in the nature of general legislation must be construed and treated the same as though they were separate and independent enactments and not confined in their application to the subject-matter generally dealt with in the act,\[52\] but this is not true where the intent of the legislature is plain that they must be construed together.\[33\]

(SS 5) \_F. Mandatory or directory acts.\_See * C. L. 1993--Whether statutes shall be construed as mandatory or directory depends on circumstances and the intention of the law makers.\[64\] As a general rule mandatory provisions of a statute must be strictly construed; while directory provisions should be liberally construed.\[55\] Where an act authorizes a public officer to perform certain duties, the performance may be mandatory when he is called upon to act.\[56\] Offiers cannot wholly disregard a mere directory statute. Such statute must be substantially complied with though strict technical compliance is not necessary.\[57\] Statute prescribing the manner, form and time of execution of functions by public officers are directory unless the statute itself indicates a mandatory intent.\[58\] Laws regarding the title of a law expressing clearly the subject of the act, and the act being only to cover a single subject, are generally held mandatory.\[59\] Laws delegating a power the exercise of which is important for the protection of public or private interests are usually mandatory.\[60\]

(SS 5) \_G. Strict or liberal constructions.\_See * G. L. 1993--Statutes delegating powers are strictly construed.\[61\] A liberal rule should be applied in general where the constitutionality of the legislative act is in question, and every reasonable doubt should go to favor the validity.\[62\] Statutes depriving the state of its property must be construed favorably to the state, or at least not strictly against it.\[63\] Statutes affecting vested rights under existing laws should, if valid at all, be given strict construction.\[64\]

50. Proviso that no action shall be brought in this state to recover for death inflicted in another held to apply to such actions generally, and not limited to the right of action given in the statute proper. Stephen V. Illinois Cent. R. Co., 128 Ill. App. 99.

01. A proviso in a tariff act may be construed to relate to other provisions also, United States v. Scruggs, Vandervoort & Barney Dry Goods Co., IC. C. A.\] 156 F 940.

01. U. S. Comp. St. 1901, p. 639, not limited in its application to criminal cases, but Jim-

105 NYS 16.

its fees of marshal in all cases. National Bank of Commerce V. Cleveland, 16F 251.

53. Manufacteux v. Cutler \[Utah\] 91 P 355.

Proviso must be construed with reference to preceding part of clause to which it is attached. Advisory Board of Coal Creek Tp. v. Levandowski \[Ind. App.\] 84 NE 346. Example of proviso of limited effect. State v. State v. Wilder, 206 Mo. 541, 105 SW 572.

54. Burns' Ann. St. Ind. 1901, $ 5386, providing that boards shall do certain things at first session "In June", held merely directory, and board does not lose jurisdiction by failure to act at that time. Duncan v. Cox \[Ind. App.\] 82 NE 125. Laws Or. 1907, p. 399, providing for carrying into effect of refer-

endum and initiative powers reserved to people, is directory in its warning clause,

and a referendum omitting that clause was

44. Treated as embracing only such mat
    \_Status changing the common law._See & C. L. \[1998\]--Status in derogation of the common law are to be construed only as to matters strictly within the letter of the statute,\[85\] but, as a rule, statutes in general derogation of the common law have a general strict construction.\[66\] Some states have abolished this rule by sta:ute.\[67\]_

\_Penal statutes._See & C. L. \[1998\]--Penal statutes \[68\] as a general rule are strictly construed,\[69\] but courts now go into the intent of the law makers carefully before they use this construction.\[70\] In the absence of formal expression, it is presumed that a legislature intended the scope of a penal statute to extend to classes or persons in an old act even where a new act is passed after well settled constructions of the old act have long been considered as settled.\[71\]_

\_Various other strict constructions._See & C. L. \[1994\]--Strict construction will not be allowed to defeat an intention of a legislature.\[72\] Statutes passed in exercise of the police power restricting or regulating property rights or the pursuits of lawful occupations and callings should be strictly construed,\[73\] and also laws relating to municipal improvements.\[74\] Laws relating to the imposition or collection of taxes are to be strictly construed.\[75\]_

\_Remedial statutes._See & C. L. \[1994\]--A statute which is highly remedial is to be liberally construed\[76\] to accomplish the desired result.\[77\]_

\_Revisions._See & C. L. \[1998\]--Revised statutes sometimes provide for their own liberal construction.\[78\]_

\_Other liberal constructions._See & C. L. \[1998\]--Any statutes relating to matters involving public benefit and use are to be liberally construed.\[79\]_

\_(SS 5) H. Partial invalidity.\_See & C. L. \[1994\]--Where an act is unconstitutional in part, the remainder will be upheld\[80\] unless the parts cannot be separated and

ters as come clearly within the scope and legislative obvious or expressed intent purpose of the legislation. Peet v. East might be defeated by & strict construction. Grand Forks \[Minn.\] 112 NW 1005.

\*\*65. Cleveland, etc., R. Co. v. Henry \[Ind.\] & \[1995\] & \[1996\] & \[19 one would be absurd or ineffective without the other," but where the intention was clearly to have the act take effect in entirety, any part being unconstitutional renders the whole act inoperative."

**SS 6.**\_Retrospective effect.\_See * C. L. 1905--A statute is usually given a prospective effect unless its terms clearly show that it should operate retrospectively." No new law will be given a retrospective operation which will divest previously acquired rights or impair the obligation of a contract lawfully made and pending under and

Springwels \[Mich.\] 115 NWU 1066; In re Port \[\] blity act entirely invalid because valid Reading R. Co. \[N. J. Law\] 68 A 219; United and invalid parts could not be separated. New Jersey R. & Canal Co. v. Parker \[N. J. Atchison, etc., R. Co. v. MIIis \[Tex. Civ. App.\] Err. & App.\] 69 A 285; New York, etc., R. Co., 108 SWU 480. v. O'Brien, 121 App. Div. 819, 106 NYS 909;

S2. Acts 1890, p. 198, c. 128, Md., unconstitutional or attempt to postpone vested NFS 150; State v., Peek 80 Vt. 449, 68 A 661. Unconstitutionality of the provisions \[\] some claims. Maryland Jockey Club v. Levee Act (Hurd's Rev. St. 1405), providing State \[M.d.\] 67 A 239. Sp. Laws 1907, p. 189, for assessment of damages to landowners, c. s, creating new school district and im- does not render the entire act void. People \[\] posing pre-existing indebtedness on tax-v. Monroe, 227 Ill. 604, 81 NE 704. Provisions \[\] paspars thereof, held rendered vold by in-relating to searching and seizures in local validity of latter provision, there being option law invalid, but balance of act was no way of determining whether legislature valid. Ex parte Dupree \[Tex.\] 19 Tex. Ct., 851, 106 SWU 493. Vt. Act. Dec. 10, 1906, provision. Cummins v. Gaston \[Tex. Civ. p. 114, No. 117, requiring certain corpora- \[\]\]. 108 SWU 476.

tions to pay employers weekly, even if it \[\] includes corporations it should not include, of interest on mortgages, as amended by is not void on that account as to a railroad company as to which it is otherwise valid. Lawrence v. Rutland R. Co., 80 Vt. 57, 67 A \[\] paspars made before anchement of amend- \[\]091. Attempt to confer on courts other than properly authorized ones powers in case of enforcement of local option laws held invalid, but rest of act was valid. Meyers, State \[\]09 SWU 480. Lnd. Acts 1907, p. 7, 6, creating a superior court circuit, was not unconstitutional as a whole because of an invalid provision giving to such superior court exclusive jurisdiction of appeals from inferior courts in certain township. Board of Com'rs v. Albright, 168 Ind. 564, 81 NE 578.

A catuate is usually given a prospective effect unless its terms clearly show that it should operate retrospectively." No new law will be given a retrospective operation which will divest previously acquired rights or impair the obligation of a contract lawfully made and pending under and

Springwels \[Mich.\] 115 NWU 1066; In re Port \[\] blity act entirely invalid because valid Reading R. Co. \[N. J. Law\] 68 A 219; United and invalid parts could not be separated. New Jersey R. & Canal Co. v. Parker \[N. J. Atchison, etc., R. Co. v. MIIis \[Tex. Civ. App.\] Err. & App.\] 69 A 285; New York, etc., R. Co., 108 SWU 480.

V. O'Brien, 121 App. Div. 819, 106 NYS 909;

S2. Acts 1890, p. 198, c. 128, Md., unconstitutional or attempt to postpone vested NFS 150; State v., Peek 80 Vt. 449, 68 A 661. Unconstitutionality of the provisions \[\]091. Leverce Act (Hurd's Rev. St. 1405), providing State \[\]091. Leverce Act (Hurd's Rev. St. 1405), providing State \[\]091.

by virtue of the old law which is repealed.\[84\] All new, re-enacted or amendatory acts relating to the statute of limitations are given prospective effect unless especially otherwise provided.\[85\] Remedial statutes are usually retroactive.\[86\] Where a remedy has once been barred by statute, a subsequent enactment establishing a longer period of time in which the remedy may be enjoyed will not be given retroactive construction to revive the lost remedy unless that intention is affirmatively expressed in the act.\[87\] An act making taxation retrospective is valid.\[88\] In Missouri no law is valid which has retroactive effect.\[88\] Acts dealing with substantive rights usually are not given a retroactive effect, particularly in matters involving procedure.\[89\]

_Curative acts.\[86\]_ & C. L. \[88\]--A curative act will be given retrospective effect if it is intended to give effect to past acts which are ineffective because of some failure to adopt some legal requirement.\[81\] Where a curative act passes just after a decision in court affecting the subject-matter of the act, it may be reasonably presumed that the legislature intended the application of the act to be limited to cases implied by the decision.\[92\]

SS 7. _Repeal. A. In general.\[86\]_ & C. L. \[88\]--A statute cannot be repealed by a subsequent unconstitutional enactment.\[93\] A statute is not repealed by a subsequent statute unless expressly mentioned \[94\] or the provisions thereof are so inconsistent as to work a repeal by implication.\[85\] Where two acts take effect on the same day, the last one approved repeals the former \[98\] unless no reference is made in the last to the first and the two acts were not necessarily inconsistent.\[97\] A statute revising the whole subject-matter of a former one becomes a substitute.\[88\] An act declared in its title to be an amendment of other acts, but which provides a complete new scheme of

84. City of Colorado Springs v. Neville

\[Colo.\] 93 P 1096; Dennington v. Roberta

\[Ga.\] 61 SE 20; Denny v. Bean \[Or.\] 93 P 693.

85. Crowwell v. Davenport \[Ariz.\] 94 P 1114.

01. St. 1906, p. 345, e. 370, relating to damages for conscious suffering, held retroactive because in its nature remedial. Bartley v. Boston & N. St. R. Co. \[Mass.\] 83 NE 1093.

01. Denny v. Bean \[Or.\] 93 P 693.

01. Eastern Kentucky Coal Lands Corp. v. Com. \[Ky.\] 106 SV 260.

01. Const. Mo. art. 2, & 15, where law provided dower interest of one-half for husband in wife's property, held not applicable as to wife who was married and owned lands before enactment of this law. Ferguson v. Gentry, 206 Mo. 189, 104 SW 104.

01. United States Fidelity & Guaranty Co. V. U. S., 28 S. Ct. 537.

01. Act validating bonds already issued after proper authorizing vote of freeholds. City of Redlands v. Brook, 151 Cal. 474, 91 P 150.

01. Swartz v. Andrews \[Iowa\] 114 NWW 885.

01. People v. Chicago Election Com'rs, 221 11L. 9, 77 NE 321. Where void act, amendatory of previous valid statute, contains section attempting to repeal such previous valid statute, said repealing section is also void and said previous valid statute remains in full force and effect as it was prior to said attempted amendment unless it clearly appears that it was intention of legislature to repeal said former statute without reference to whether attempted amendment was valid or not. State v. Schoepf, 5 Ohio N. P. (N. S.) 161.

01. Act for propagation of fish by restricting times and methods of catching which repeals all sections of a prior general state.

01. Work are supplied into repeal section relating to fishing on Sunday. Commonwealth v. Rothermel, 27 Pa. Super. Ct. 484. Where a general re-pealing law is passed repealing all general laws not codified by new code, a general law not in codification is repealed. Postal Tel. Co. v. Shannon \[Miss.\] 44 S 809. A repealing clause is subject to construction as other provisions of a statute, and even an express declaration of a repeal will not be given that effect when it ls apparent that the legislature did not so intend. Indianapolis Union R. Co. v. Waddington \[Ind.\] 82 NE 1030.

01. See this section, subd. B.

01. Garrison v. Richards \[Tex. Civ. App.\] 107 S 861. Laws 1899, p. 1514, c. 690 (anti-monopoly act), did not repeal Laws 1892, p. 1834, c. 690 (Stock Corp. Law), because not repugnant and because was subsequently re-enacted. In re Consolidated Gas Co., 56 Mike. 49, 106 NYS 407.

01. Detroit United R. Co. v. Barnes Paper Co., 149 Mich. 675, 14 Det. Leg. N. 558, 113 NWP 285. Of two statutes dealing with the same subjects, neither conflicting with the other, the later will not repeal the earlier. In re Quinette \[Neb.\] 115 NW 545.

01. State v. Harden \[TW. Va.\] 58 SE 715 legislation, is not an amendment, but a repeal." Where a repealing statute expressly repeals certain specified sections of a former statute, it will be presumed that no further repeal was necessary or intended.1 In construing repealing statutes, general saving clauses prescribing effects on various acts must be considered unless such construction would entirely defeat the intent of the repealers.2

\_Effect on vested rights.\_See * C. L. 1996

\_Effect on penalties.\_See * C. L. 1997--While the mere passage of an act repealing a penal statute does not affect rights under the same,3 after such law has become effective no penalty can be recovered 4 in the absence of a saving clause.5

\_Effect on pending actions.\_See * C. L. 1997--If a statute on which an action is based is repealed, the suit is abated.8 An amendment or revision of the statute being a continuation of existing laws does not at common law abrogate or terminate proceedings pending when the amendment or revision goes into effect.9

\_Repeal of repealing statutes.\_See * C. L. 1997--An act to repeal another act held unconsontutional will not effect old acts not in conflict.9 While the repeal of a repealing statute does not revive the old law, the repeal of a statute merely limiting the operation of another leaves the latter in full force.9

(SS 7) \_B. Implied repeal.\_See * C. L. 1997--To establish a repeal of an act by implication, it must be shown that a later statute employs language broad enough to cover the old act. It must also appear that the two acts cannot stand together,10 and

99. Malone v. Williams \[Tenn.\] 108 SW SW 63; People v. Metz, 119 App. Div. 271, 104

01.

NYS 649; Reeves v. Bruening \[N. D.\] 114

NWS 313; Williams v. State \[Tex. Cr. App.\] 1048.

2. Great Northern R. Co. v. U. S., 28 S.

Ct. 313.

3. Burns' Ann. St. Supp. 1905, $ 1880 (Acts

1905, p. 687, c. 169). Thurman v. State \[Ind\] 83 NZ 64.

4. Western Union Tel. Co. v. Morgan \[Miss.\] 45 LS 427; Muller v. Chicago, etc., R. Co. \[Vis.\] 113 NW 384. The general rule is that where a statute imposing a liability is repealed by a subsequent act containing no saving clause all rights under the repealed statute are lost, but this rule has been abrogated in some states by statute. Laws Colo. 1891, p. 366, $ 1. Cavanaugh v. Patterson \[Colo.\] 91 P 1117.

1. Clause in repealing act which gave state right to recover for offenses committed before act was repealed gave right of action herein. Waters-Pierce Oil Co. v. State \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 621, 106 SW 918. Not effect penalty under Hepburn law. Great Northern R. Co. v. U. S., 28 S. Ct. 313.

1. Jessese v. De Shong \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 22, 105 SWV 1011.

1. Revised Laws Minn. 1905. State v. McDonald \[Minn.\] 112 N. W. 278.

1. An act relating to payments by corporations in script to employees being unconsontutional and repealing only acts in conflict with it does not repeal an old act relating to reemption of script and not in conflict with repealing act. Union Sawmill Co. v. Felesthenal \[Ark.\] 108 SW 217.

1. Dykstra v. Holden \[Mich.\] 14 Det. Leg. N. 942, 115 NW 74; State v. Wirt County Ct. \[Vv.\] 89 SB 884, 981.

1. Great Northern R. Co. v. U. S. \[C. C. A.\] 155 F 945; Johnson v. Shen \[Mans.\] 84 NE 606; Mathews v. Wagner \[Mont.\] 9 P 759; Allen v. Kennard \[Neb.\] 116 NW the implied repeal does not extend beyond the sections repugnant to each other.11 A new act which extends and enlarges before existing rights impliedly repeals the law by which the right was created or given.12 An inference of an intention to repeal arising from subsequent inconsistent legislation is greatly diminished and of less force when the inconsistency arises between a subsequent general and a prior special statute.13 Repeals by implication are not favored by the courts,14 but where a new statute is intended to furnish the exclusive rule on a certain subject or where the whole subject of the old law is covered, it is the duty of the court to construe the new law as an implied repeal of the old law.15 Where the same act is made both a felony and a misdemeanor in different acts, both cannot be enforced, but the last one receiving consideration of the legislature repeals the other.16 Repeals by implication may occur through the adoption of a revision.17 A new law which completely covers an old law and provides a new or different remedy impliedly repeals the old law.18

\_General and special laws.\_Bee & C. L. 1998--A special or local law is not repealed by a later general law unless specifically mentioned or the intention so to do is manifest.19

STATUORY CRIMES; STAY LAWS, see latest topical index.

STATY OF PROCEEDINGS.

Grounds for Stay, 1726.

Effect of Stay, 1727.

Power to Grant, 1727.

Wulver of Stay, 1727.

Proceedings to Obtain a Stay, 1727.

Stay pending appeal 20 and stay of execution 21 are elsewhere treated.

\_Grounds for stay.\_See & C. L. 1999--The effect of supersedeas bond is treated elsewhere.22 The pending of another action,23 if in such action all the rights of the parties may be determined and the controversy in both disposed of by one judgment, is ground for a stay,24 and a stay may also be granted where the judgment sought

596, 90 P 1063. Ball. Ann. Codes & St. 1994 not repealed by implication by Ball.

penal Ball. Ann. Codes & St. $ 2837, au-Ann. Codes & St. $ 1011, subd. 10, relating to powers of mayors, etc., to regulate sales

Foster \[Wash.\] 91 P 642.

of liquor. State v. Franklin County Super.

15. Finding v. Foster \[Ind.\] 84 NFS 529.

Ct. \[Wash.\] 94 P 1086. Where a new remedy or mode of procedure is authorized

without an express repeal of a former one

17. Jessee v. De Shong \[Tex. Civ. App.\]

relating to the same subject, and the new remedy is not inconsistent with the former

a statue omitted from a revision are to be one, the latter act will be regarded as creating a concurrent remedy and not as abro-

vived by construction. Reoves' Appeal, 33

gating the former mode of procedure. Arxonloc v. Board of Education of West New

32 Pa. Super. Ct. 38.

York \[N. Y. Law\] 69 A 450. An amendment though so named in its title may in reality be in effect a repeal. Malone v. Willems \[Tenn.\] 103 SVV 798.

11. State v. Wells \[Mod.\] 109 SWV 758.

01. Garlson v. Richards \[Tex. Civ. App.\] 107 SVV 861.

01. State v. Peter \[Minn.\] 112 NUV 866.

01. City of Fairfield v. Shallenberger

\[Iowa\] 113 NVV 145; Eckerson v. Des Moines

\[Iowa\] 115 NVV 177; In re Quinet \[Web.\] 115 NWV 164; People v. Metz, 119 App. Div.

271, 104 NYS 649; Reeves v. Bruening \[N. D.\] 114 NUV 313; Jessee v. De Shong \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 22, 105 SWV 1011; Williams v. State \[Tex. Civ. App.\] 107 SWV 1121; Matthews v. Wagner \[Iwash.\] 94 P

759. Laws 1899, p. 222, e.g. 121, $ 15, requilt-ing pharmacist to register the book sales of

10 Cur. Law.

may be used as a set-off or counterclaim,\[25\] but will be denied where recovery does not depend on the result of the other action.\[28\] If a stay is asked because of the pendency of bankruptcy proceedings, the applicant must show good reasons,\[27\] and a stay for this cause will not be granted a codebtor against whom there are no such proceedings.\[28\] A trial court may, in its discretion, stay proceedings till the costs of a former suit have been paid,\[29\] and it is no exception to the rule that the party is unable to pay such costs.\[30\] A stay will be granted pending settlement of a case,\[81\] but the insanity of a defendant with a duly appointed committee is no ground for a stay.\[29\]

\_Power to grant.\_See 8 C. L. 2000.--The court may, in the interests of justice, stay a trial,\[88\] but the exercise of this power on the principle of comity between courts of different sovereignties is purely discretionary where neither has possession of the res.\[34\] The power to stay proceedings must be exercised in the action itself,\[88\] and will not be granted for a longer time than it has been applied for.\[30\]

\_Proceedings to obtain a stay.\_See 8 C. L. 2000.--A formal motion should be made for the stay,\[37\] and before defendant is entitled to it, complainant should be indemnified against any loss arising by reason of it.\[38\]

\_Effect of stay.\_See 8 C. L. 2000

\_Waiver of stay.\_See 8 C. L. 2001

**STEAM.**

When a machine adapted to retain steam under pressure, apparently in good condition and capable of withstanding an ordinary pressure, suddenly explodes with violence, it is fair to infer that the explosion was caused by an extraordinary pressure from the steam supplied.\[39\]

**STEENOGARPHERS.**

Generally litigants are liable to the stenographer for services under a reference \[40\] but the liability may be avoided by express contract or by stipulation.\[41\] The compensation fixed by contract cannot be regarded as compensation of officers fixed by law.\[42\]

**2S. Decree of foreclosure stayed until**

\*\*30.\*\*Wilner v. Independent Order Ahawas judgment can be rendered in pending ac- Israel, 122 App. Div. 615, 107 NYS 497.

tion at law by defendant to recover dam-

\*\*31.\*\*Verdict for plaintiff set aside by trial asges for breach of covenant in the ded. court and complaint dismissed, appeal and Bergman v. Fortescue \[N. J. Eq.\] 69 A 474.

\*\*26.\*\*Shattuck v. Guardian Trust Co., 123 trial and stay pending settlement of case. App. Div. 406, 107 NYS 1043.

\*\*32.\*\*Grant v. Humbert, 114 App. Div. 462,

\*\*33.\*\*Great m. Humbert, 114 App. Div. 462,

\*\*34.\*\*To obtain evidence in such form that one for which a discharge would be a re-

**35.**, or that application for a discharge right. Decauville Automobile Co. v. Med-

had been made, or that the time for such

application had not elapsed. Johnson v. 34 Action In state court not stayed be-

\*\*36.\*\*Saction 16 of act of 1898 expressly

\*\*37.\*\*Saction 16 of act of 1898 expressly

providing that liability of codebtor shall

not be altered by discharge of bankrupt.

Johnson v. Waxelbaum, 1 Ga. App. 611, 68

\*\*38.\*\*Gilroy v. Everson Hickok Co., 120

\*\*39.\*\*Order should be entered only where

second suit is textaous and without merit.

Brinsfield v. Howeth \[Md.\] 68 A 566.

der the New York code provision for stay

of proceedings until the costs of a motion

have been paid, where a former action was

dismissed on failure to appear, a stay will

be granted till payment of costs in such suit. Code Civ. Proc. 179. Wilner v.

Independent Order of Ahawas Israel, 122 App. Div. 615, 107 NYS 497.

Div. 615, 107 NYS 497.

The trial court may properly issue an order nune pro tune directing the official court reporter to take notes of a trial,\[48\] and the stenographer's notes may be relied upon by a trial judge.\[44\]

Mandamus lies to compel a court stenographer who reported the case to transcribe his notes of the evidence and charge of the court and file the same in the office of the clerk of the court,\[45\] but a court stenographer is entitled to a reasonable time within which to make and file a transcript.\[46\]

In chanery courts the evidence and proceedings may be taken down by unofficial stenographers employed by the parties.\[47\]

## 6.1. Stipulations.

Right to Make and Form and Construction, \[Enforcement and Effect, 1720. 1728.

10 Cur. Law. STIPULATIONS. **1729**

tice provisions \[82\] an oral stipulation, made in open court and entered in the minutes, is enforcible.\[83\] By stipulation a person may waive the right to recover upon a quantum merruit.\[44\] A stipulation should be so construed as to effectuate the object had in view.\[65\]

\_Enforcement and effect.\_See s C. L. 2002.--A general stipulation made in a trial as to facts \[66\] as well as one providing that a certain order may be affirmed, extends through the litigation.\[87\] Evidence otherwise objectionable may be introduced under a stipulation.\[88\] The express terms of a stipulation of facts bind the parties \[89\] unless, from the manner in which the cause was tried, the stipulation was ignored,\[60\] but they do not necessarily bind as to the conclusions of law that they embrace.\[61\] The parties to an action cannot bind the court by a stipulation to the effect that, if a certain motion to dismiss be denied, the cause should be remanded to the general calendar, and that, on the cause being again brought on for trial, the motion should not be renewed,\[62\] nor is a probate court bound by stipulations of the nominal parties in interest to the effect that the testator was mentally incompetent.\[83\] Stipulations by

52. General rules of practice of the mu-niipal court. Rules 11 and 17. Carpenter v. Pirner, 107 NYS 875. Under Code Civ. Proc. 1902, 1 144, allowing a trial out of court by consent of the parties, and Civ. Code 1902, 5 2786, allowing a trial at chambers by consent of parties, the consent may be oral. Rule of court, Civ. Ctc. Rule, 14, requiring stipulations to be in writing, held not applicable where the agreement has been admitted or carried into effect. Pearson v. Brecden \[S. C.\] 60 SE 705.

01. Carpenter v. Pirner, 107 NYS 875. Agreement in open court not to question validity of an attachment nor any portion of costs, held binding. Rossow v. Doubling \[Ind, App.\] 83 NE 248. An agreement to discontinue an action made out of court and not acted on by it nor properly presented by party seeking enforcement of it is ineffective. Snyder v. De Forrest Wireslese Tel. Co., 154 F 142. An oral agreement between counsel, no steps having been taken in pursuance thereof, held not sufflement to amount to a binding stipulation. Pinnebad, 129 Ga. 267, 58 SE 879.

01. By stipulation plaintiff agreed in open court to rest his right to recover solely upon an express contract. McLoughlin v. Belmont, 105 NYS 862.

01. Treadwell v. Clark, 108 NYS 730. Stipulation to the effect that three actions should be consolidated, held amounts not merged so as to out court of jurisdiction. Wisdom v. Bille \[La.\] 45 S 554. Stipulation in a boundary line dispute that plaintiff were owners by regular chain of title from the sovereignty of the soil, construed so as not to preclude proof of title by limitation. Selkirk v. Watkins \[Tex, Civ. App.\] 20 Tex. Ct. Rep. 586, 105 SW 1161. An agreement to postpone the trial of a case until the determination of another specified case construed an agreement to delay the trial for a reasonable time only. Martin v. Martin \[Ky.\] 107 SW 771. A stipulation by the parties to the effect that the allegations in the answer setting forth relator's objections to an assessment were "proven", is not equivalent to an admission that the improvement was in fact no benefit. Stipu- 10 Cur. L--109. **10**

- 1730 STREET RAILWAYS SS 1.10 Cur. Law. the parties to the effect that error has been committed by the trial court do not bind the appellate court,\[64\] nor will that court on appeal determine whether or not a certain notice was given for a particular purpose under an oral agreement that the case would not be tried without further notice.\[65\] Mistake furnishes ground for equitable relief against stipulations \[66\] but, where agreements are made out of court between attorneys concerning the course of proceedings, a clear case must be made out before relief will be granted.\[67\] A stipulation on which a judgment is rendered is merged in the judgment.\[68\]

Stock and Stockholders; Stock Exchanges; Stock Yards; Stoppage in Thansir; Stobace; Store Onbbers, see latest topical index.

STREET RAILWAYS.

1. The Franchise or License to Operate a Street Railway and Regulation of Its Exercise, 1730.
1. Property and Requirement Thereof, 1738.
   3.axes and License Fees, 1739.
1. Street Railway Corporations, 1739.
1. Location and Construction, 1740.
1. Injuries to Passengers, 1741.
1. Injury to Employees, 1741.
1. Injuries to Persons Other Than Passengers or Serants, 1741.
1. Damages, Pleading and Practice In Injury Cases, 1752.
1. Control of the Transitive of the Trans 10 Cur. Law. STREET RAILWAYS SS 1. 1781

While the franchise to construct and operate a street railway can be granted only by the state,78 municipalities are frequently made its agent for the purpose of granting the right to occupy its streets,77 possessing only such powers in respect thereto as are expressly conferred.78 The right of occupation, however, can be conferred only upon a corporation authorized to construct and operate a street railway in the city.78 Permission to construct a railway in the streets must be given by the proper municipal officers80 in due form.81 Municipal permission to occupy the

77. City authorities have no legal power right to operate their cars on same street to create corporations or to grant fran- for distance not exceeding five blocks, each chises. This can be done by the state alone, occupying middle of street, and each pay- but the city can conoceede the right of way in legal portion of cost of paying between and beside tracks as required by $ 498. Id. franchise in law. The privileges conceded are "secondary franchises," instrumentalities by means of which the corporate owners granted by the charter may be exer- closed. Shreveport Trac. Co., V. Kansas City, and the consent of the local authorities and property owners must be obtained. Trolan central power, in which municipality R. Co., V. Troy, 109 NX 799.

01. Words "Icoal authorities" as used in not in a private capacity. Potter v. Calu- monetet Slice. St. R. Co., 185 F 511. Statutes theorie" as used in 2 Star & C. Ann. St. held to confer upon mayor and city coun- all of Annapolis power to grant franchise, and to refer to representatives of people Jeffers v. Annapolis \[Md.\] 68 A 861. City in municipal government. Potter v. Calu- in granting franchise is an agency of state, and, if there is any conflict between grant- and, if there is any conflict between grant- and, if there is any conflict between grant- and, operating railroad in street because neces- the state laws will govern. Los Angeles R. Co. v. Los Angeles \[Cal.\] 92 P 490.

When mayor and city council have power to grant franchises, its exercise cannot be defeated or restrained by any considera- of center, since such modification would be trans or policy or expediency, or by any granting them a right which they could ob- more regard for the preference of property holders. Jeffers v. Annapolis \[Md.\] 68 A 861. City

78. Village of Phoenix v. Gannon, 108 NYS 255. Railroad Law, Laws 1890, held 7521. License must be by ordinance not to authorize municipality to give franchise to individual, but only to corporation.

a majority of members, and approved by Id. Where granted to individual for con-

mayor. Id. Under Actpril 21, 1896 (p. 4,

struction of a street surface railway by a 1896, p. 329), requiring permission to be corporation to be thereafter organized, such

sranded by ordinance, after public notice franchise is not void in hands of individual

and hearing and upon filing of certain con-before it is turned over to corporation,

sent of owners of property froming upon operation of street surface railroads

is by statute confined to corporations. Vil-

a company to construct turnouts adopted lage of Phoenix v. Gannon, 55 Misc. 696, 106 NTYS 927. Civ. Code Cal. $ 499 does not de-

is invalid. Specht v. Central Passenger R.

prive a city of power to grant to two rail-

Co. \[N. J. Law\] 68 A 785. Where ordinance

ways having tracks of different width the right to operate cars on same street for a distance not exceeding five blocks, each co-

and provided that railroad company should

cupying middle of street and contributing to cost of paving. San Jose-Los Gatos In-

850, and no more, as an annual license fee

terurban R. Co. v. San Jose R. Co. (C. C. A.)

156 F 455. Civ. Code Cal. $ 499 provides

many, contract executed by corporation and that "two lines of street railway, operated

under different managements, may be per-

to sign ordinance, providing that railway

the same street, each paying

equal portion of construction of tracks and

within 20 years for right secured, consti-

appurtenances used by said railways

jointy; but in no case must two lines of

of ordinance that both could not be executed

street railway, operated under different

management, occupy and use same street

R. Co., 185 F 521. Informal acceptance of

or tracks for a distance of more than five

blocke consecutively." Held that such pro-

vision does not deprive municipal authority.

Id. Held that validity of consent of park

ties of a city of power to grant to two

railways, having tracks of different width,

railway through park approach is not af streets may be given by acquiescence or may be waived by the city."22 A legislature cannot preclude its successors from granting further franchises within the same territory."83 In some states the franchise to occupy the streets of cities of a certain class " must be sold at public auction to the highest bidder,"84 but generally, after the acceptance of a bid, an ordinance expressly granting the franchise is necessary." Where a street railway company has enjoyed a franchise, it is generally estopped to assert the invalidity of a contract executed as an inducement."

In some states the consent of the electors must be obtained before a street railway can occupy a street,"85 while by the constitution " or statutes"06 of others only

fected by fact that it differs in its terms that personnel of bidders is immaterial, but, from consent of common council, especially if there is a compliance with terms of sale, where its terms are more rigorous. Kuhn bids must be acted upon and highest bid v. Knight, 190 N. Y. 339, 83 NE 293. Owners of property abutting upon a street held hence, where individual was highest bidder, he was entitled to frankhes though he torard to review action of a city council in granting by resolution right to a street railway company to construct turnouts in said street. Specht v. Central Passenger R. Co. \[N. J. Law1 68 A 785. 82. North Jersey St. R. Co. V. Newark St. & Water Com'Ts \[N. J. Eq.1 67 A 691. 83. Act June 7, 1991 (P. L. 614), opened 62, and city charter of Los Angeles, con-Broad street to occupation by "any railway exportation chartered under this act, or by any company which had abandoned or discontinued use thereof." Heid that 13th and 15th Streets Ry. Co. which, under Act of March 27, 1873 (P. L. 455), surrendered its claims to lay tracks on Broad street on con-gideration that no other street railroad should be permitted to do so, did not, under Act of 1901, acquire superior right to use of Broad street, but privilege of using it was open to all on equal terms. Commonwealth v. Broad St. Rapid Transit St. R. Co. \[Neb.\] 67 A 958. 84. Railroad Law, Laws 1890, p. 1109, c. 565, 83, provided that no consent of local authorities in city of 1,250,000 population to occupation of street for railroad purposes shall be valid unless it provides for sale of franchise at public auction to highest bidder. As amended by Laws 1901, p. 1229, c. 494, the section still provided in first sentence thereof that condition should be attached to consent of local authorities in cities of 1,250,000 inhabitants, but in body of amendment, one of main features of which was the confirmation of consents and extension of consents therefore given by local authorities to construction of street railroads in cities of first class, appeared declaration that provisions of section as amended should apply to all cities of first class. Heid, the provision in amended portion of law that it should apply to all cities of first class had reference only to provision for confirmation of consents, etc., theretofore given by local authorities, and not to entire law. Kuhn v. Knight, 190 N. Y. 339, 83 NE 293. 85. Laws 1893, p. 373, c. 182, $ 19, as amended by Laws 1906, p. 88, c. 52, relating to government of cities of second class, provides that city, under proper regulations for its protection, may sell a franchise at public auction to highest bidder upon due notice, which sale must be approved by the board of estimate and apportionment. Heid the consent of the owners, or a majority of them, of property abutting on the street in which the proposed tracks are to be laid, is required.91 Consents to the extension of an existing street railway cannot be used by a third party,92 and consents once acted upon by the council lose their vitality in Ohio.93 Statutory requirements for obtaining the franchise in the first instance are not usually applicable to a renewal 94 or an extension.95 In New York a certificate of public necessity must be obtained from the commissioners.96

Street railways are subject to the police power, and municipalities may impose reasonable regulations in the exercise thereof.97

is bestowed to exclusion of others having equal rights, and is not an arbitrary classi-fication of individuals, but is valid and con-stational exercise of legislative power. Isom v. Low Fare R. Co., 10 Ohio C. C. (N. S.) 89.

P1. Where street railway tracks occupy street unlawfully by reason of fact that

of railroad commissioners that public con-term for which grant was made has experienced, exception found in Rev. St. 8 1368-189, making it unnecessary to pro-

96. On hearing as to necessity of an ex-cure consents from abutting owners under certain conditions, is not operative, and

from point where proposed extension ends

consents are required before new tracks

petitioner owns a right of way along street

can be laid in place of old. Isom v. Low

for a long distance, and that it is proposed

Fare R. Co., 10 Ohio C. C. (N. S.) 89. Act

in time to extend road along such right of

April 21, 1896 (P. L. 1894, p. 329), requires

way to and beyond city limits is proper to

consent of abutting property owners be considered as one of circumstances

fore ordinance granting permission to con-

suret street railway may be adopted, and

in re United Trac. Co., 119 App. Div. 806, under 8 1 city council may either, when

such permission is given dr afterwards, fix

by resolution the location of the calls or

tively reasonable. North Jersey St. R. Co.

tracks, etc. Efield that such section did not

authorize council to grant permission by

resolution, and without property owners'

same. Id. Ordinance regulating car

consent, to a street railway company to con-

struct turnouts where a previous ordinance

partite routing road to be constructed fixed with

direction the location of tracks, turnouts, etc., and did not include turnouts covered

by resolution, and where between accept-

ance of ordinance and the adoption of reso-

lution the membership of the council was

changed. Specht v. Central Passenger R.

of act 1907, p. 23, c. 187, $ 4, was to enable

C. (N. J. Law) 68 A 785. Laws 1899,

team railroads to avoid stopping their

497, in effect authorized construction of a

news railroad when, none existed before,

which could only be accomplished by a

not apply to crossings of electric street

compliance with constitutional provision

railroads within limits of a street or high-

requiring consent of adjoining owners or in

way. Michigan Cent. R. Co. v. Hammond,

Ikeu thereof consent of appellate division

etc., R. Co. (Ind. App.) 83 NE 650. St. 1906, and of local authorities in charge of street.

P. 743, c. 520, $ 3, authoring Boston Elec-

In re Long Island R. Co., 189 N. Y. 428, 82

vated Railway Company to construct sub-

NE 443.

ways in city of Cambridge, provides that

a plan of proposed route, with location of

existing company. Isom v. Low Fare R.

stations and approaches, is to be filed with

C., 10 Ohio C. C. (N. S.) 89.

railroad commissioners, within a year after

93. Cannot be again used as basis of a

acceptance of act by company and before

second grant to another company. Isom v.

work is begun, for their approval or alteration

Low Fare R. Co., 10 Ohio C. C. (N. S.) 89.

tion, "whether the mayor has or has not

94. Requirements as to securing of con-

sents from abutting property owners for

e\*stablishment of street railway route, giv-

tered as it deems necessary. $ 13, p. 748,

ing of notice of application for franchise,

peptides for location by company of subway

and its award to individual or corporation

stations and aproaches at convenient points,

agreeing to carry passengers for lowest

subject to approval of mayor. $ 14 gives

rates of fare, held not to apply. City of

company a right of appeal to railroad com-

Lma v. Cramer, $ Ohio N. P. (N. S.) 113.

pass. That original line of street railway

plan submitted to him. Efield that the num-

company was but about $ miles long, while

ber of stations to be established was a The right to declare a forfeiture depends largely upon the terms of the franchise." Where the failure to commence construction or to complete the system within a specified time ipso facto works a forfeiture," a default 1 forecloses all rights.2 A default, however, may be waived,3 and likewise, the right to contest the company's occupation may be lost by estoppel or laches.4

\_Rights and duties under franchise.See $ C. L. 2007--Where a franchise or right to occupy the streets has been legally granted and acted upon, a contract is created 5 which cannot be changed 6 except by mutual consent 7 unless the right is reserved in question to be determined by railroad commissioners, and not by mayor, whose only \[Cal.\] 92 P 490. Where street railway com-authority was to approve or disapprove locations of stations after determination until after its franchise therefor has ex- by board as to their number, and, in case of his refusal to approve, his decision was subject to review by board. Wardwell v. "process of construction is entitled to en-Railroad Comms \[Mass.\] 83 NE 469. "P8. Fact that corporation authorized by "pendency of an action to perpetually enjoin" Comp. Laws, $ 6234, par. 5, to construct construction of road. Manton v. South its railroad on streets pursuant to the municipality, and possess- "3. Where authorities consented to build-ing a franchise to operate a street railroad in a city pursuant to an ordinance imposing the conditions on which the railroad "showed" are "ground" are "ground" are "ground", "and" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are "ground" are " are "ground" are "ground" are "ground" are " are "ground" are "ground" are " are "ground" are "ground" are " are "ground" are "ground" are " are "ground" are " are "ground" are " the granting ordinance.\* The rights and obligations of a street railway company are largely controlled by its franchise.\* A contract provision for the benefit of another

change location. Asbury Park, etc., R. Co. roads above the streets and highways and v. Neptune Tp. Committee \[N. J. Eq. \] 67 or A 70.

- It is competent for municipal council and street railway company to terminate, in part or in its entirety, rights of company under previous grant and to renew grant for period of twenty-five years, provided company is not released from any obligation or liability under old grant, and re- verends by means of trestes. The net approved May 18, 1905 (Acts 1905, p. 182, No. 183), conferred on street railways and street railway company to terminate, in part or in its entirety, rights of company refer to the limitations described in the under previous grant and to renew grant for period of twenty-five years, provided company is not released from any obligation or liability under old grant, and re- verends and another railroad. Detroit beneficial to public. City of Lima, v. Cra- Ninet, 6 Ohio N. P. (N. S.) 113. Route of \[Mich. 675, 14 Det. Leg. N. 558, 113 NWP 285. \], or street railway may, by agreement with a company owning other routes, be extended by ordinance over all or a part of such right of lessee to maintain in its stations other routes. Id. Grant to construct treaks in street cannot be duplicated over lesssee had right to maintain such machines as is custom of railroads where they were company to which right was first given, purposedy placed so that their obstructing unless consent is that of stockholders or interfering with public was absolutely given in way provided by statute. Isom v. Low Fare R. Co., 10 Ohio C. C. (N. S.) 89.

- Reservation of power to repeal said 104 NYS 157. Where a street railway comordinance in case of breach of its conditions by company does not authorize city to repeal ordinance at its pleasure without way companies and their regulation, on ap- assigning any breach, and when there has, in fact, been none. Missouri, etc., R. Co. v. Olathe, 156 F 624.

- Term "right of way" as used in franchise of elevated railway regulating height of its superstructure means always occupied and used for track and operation of trains. Peabody Coal Co. V. Northwestern El. R. Co., 230 Ill. 214, 82 NE 573. Though rights of street railway company and city are governed by contract contained in a franchise granting right of way, provisions of Civ. Code, $ 502, relating to such franchise, enters into contract and must be considered in constraining it. Los Angeles R. Co. v. Los Angeles \[Cal.\] 92 P 480. Provision In contract between city and street railroad company that city should not re- reduce fares below five cents was not ab- and ordinance did not require railway to that "in construction, maintenance and operation" of its lines company should be subject to all present or future ordinance of city. Minneapolis St. R. Co. v. Minneapolis, 155 F 989. City gave by ordinance a street railway company right to use particular street, reserving right to (Eaument Trac.

- 1736 STREET RAILWAYS SS 1.10 Cur. Law. street railway company cannot be enforced by the city. \[10\] The right granted by electors of a municipality to occupy the streets may be transferred. \[11\] A bond for the faithful discharge of its obligation is not affected by a change in the route. \[12\] A street railway company may restrain an unreasonable use of the street which will interfere with its use and injure its property, \[13\] or may make reasonable regulations \[14\] and agreements \[15\] in respect thereto. Though a building being moved across the tracks is an unlawful obstruction, the company cannot willfully injure it. \[16\] _Mortgages._--In some states mortgage bonds can be issued only with the approval of the railroad commissioners, \[17\] and an agreement to issue as security does not create a preference over general creditors. \[18\] Although the company possesses no tangible property, it may give a mortgage on property to be acquired. \[10\] The mortgage trustee may represent the bond holders in proceedings pertaining to the bonds boundaries. Before accounting, company, out occupying company's track, destroy-desiring to lay a double track through twe considerable time operation of its cars, as embraced in such township, agreed to pay to each of them annually certain amounts, that at time of accounting and previous to exclusion of others or in such manner company had been operated in connection with another road, their total mileage be-(FT, Madison St. R. Co. v. Hughes \[Iowa\] Ing 60-100 miles, but recepts of two roads were not kept separate. Held, on decounting for such compensation, that having no right to move house along track, township should be compensated on basis of entire 2 23-100 miles, and that amount to tear down railway company's overhead on which township's percentage should be calculated was that amount which bore slages (Id.), same proportion to the total recepts as 23-100 miles to 6 90-100 miles, or 223-690 of the total recepts, from which should be deduced payments therefore made to the township and payments made to the borrowshig. Asbury Park, etc., R. Co. v. Nep. 200. tune Tp. Committee \[N. J. Eq. 1\] 67 A 750. \[10\] Where city gave railway company by ordinance permission to use street in question, with provision therein reserving right to another company to use same street, city cannot maintain bill in equity to complen: best company to permit second company to use street, party aggivered in such case being second company. Chester City v. Union R. Co., 218 Pa. 24, 64 A 1107. \[11\] I. Right of street car company to occupy streets of city granted by vote of electors is, if nothing more, a license coupled with an interest, and such license is transferable. State v. Citizens' St. R. Co. \[Neb.\] 114 NWP 429. \[12\] Where street railroad ordinance required defendant's predecessor to execute a bond for $500 that it would comply with ordinance in good faith and construct a road within a specified time, subsequent change in route by amendment of ordinance granted by town on application of railway company did not terminate prim: cipal's liability on bond so that on a breach thereof action was maintainable against defendant as railway company's successor in Interest. Choetav R. & Lighting Co. v. McAlesster \[Ind. T.\] 104 SW 821. \[13\] Where street railroad has been authorized to construct a line on a city street and has made compensation for any injury resulting to abutting property, it is entitled to restrain moving of a house lengthwise on street, which cannot be done with. \[14\] 105 Cur. Law. street railway company cannot be enforced by the city. \[10\] The right granted by electors of a municipality to occupy the streets may be transferred. \[11\] A bond for the faithful discharge of its obligation is not affected by a change in the route. \[12\] A street railway company may restrain an unreasonable use of the street which will interfere with its use and injure its property, \[13\] or may make reasonable regulations \[14\] and agreements \[15\] in respect thereto. Though a building being moved across the tracks is an unlawful obstruction, the company cannot willfully injure it. \[16\] _Mortgages._--In some states mortgage bonds can be issued only with the approval of the railroad commissioners, \[17\] and an agreement to issue as security does not create a preference over general creditors. \[18\] Although the company possesses no tangible property, it may give a mortgage on property to be acquired. \[10\] The mortgage trustee may represent the bond holders in proceedings pertaining to the bonds boundaries. Before accounting, company, out occupying company's track, destroy-desiring to lay a double track through twe considerable time operation of its cars, as embraced in such township, agreed to pay \[18\] rule that citizens may use streets to same extent as a railway company does not au- and at time of accounting and previous to exclusion of others or in such manner as to unreasonably prevent passage of cars (FT, Madison St. R. Co. v. Hughes \[Iowa\] Ing 60-100 miles, but recepts of two roads were not kept separate. Held, on decounting for such compensation, that having no right to move house along track, township should be compensated on basis of entire 2 23-100 miles, and that amount to tear down railway company's overhead construction or to use company's track as alleged (Id.). \[14\] Requirement that moving of a build-in across its track shall be done in night-time would be a reasonable requirement if insisted on by company. Toledo, B. G. & S. Trac. Co. v. Sterling, 9 Ohio C. C. (N. S.) 200. \[15\] Refusal by owner to pay in advance $10 demanded, after consent to move build-in across railway track and bringing of building to track, did not justify railway employees In persisting passage of building in absence of previous notice that such * 10 Cur. Law. STREET RAILWAYS $ 1. 1737 where it is impracticable to bring all the bond holders into court.20 A trustee may be authorized by the court to release certain property from the mortgage where the bond holder's interest will be promoted thereby.21 A purchaser at a mortgage foreign-closure acquires the property subject to all the franchise restrictions.22

\_Right of roads inter se.--\_The mutual rights and obligations of street railway companies are frequently regulated by contract,23 but such contracts must be authorized of law.24 Authority to construct a line carries the implied power to cross other roads,25 and a municipal body authorized to grant the use of a highway may authorize an intersection on such highway.26 The manner of crossing is frequently regulated by statute or ordinance:27 The right to acquire and operate existing roads 28 and the right to consolidate 29 or connect 30 are usually controlled by statute.

20, 21. Proceeding to release part of property. City of Baltimore v. Baltimore v. Baltimore "any existing steam railways" includes "any existing stream railways" includes "any", etc., R. Co. v. Neptune "any

###### Abstract

The first goal of this paper is to study the10 Cur. Law. STRET RAILWAYS $ 4. 1739

SS 3. \_Taxes and license fees.\_See commission in respect to improvements to be made and its method of operation.\[82\] Property in possession of a receiver \[83\] is not subject to an execution issuing in a suit brought without leave of court.

SS 5. _Location and construction. Location._\[See 8 C. L. 2011--Locating is frequently left to municipal control,\[54\] but the power of location is exhausted where once exercised.\[55\] While a city may authorize the location of poles and feed wires in the street,\[56\] general permission to locate along a street does not authorize the company to so locate as to unnecessarily interfere with the public use thereof.\[57\]

_Construction._\[See 8 C. L. 2012--A street railway cannot so construct its system as to destroy the practical usefulness of the street.\[58\] The construction of a railway without legal right which will result in irreparable injury may be enjoined \[59\] and an abutting owner may recover for injury to his property during construction unless he has precluded himself.\[60\] In the absence of legislative authority, courts cannot require an overhead crossing.\[81\] Under statutes and municipal ordinances street car companies are usually required to keep in repair a certain portion of the street,\[82\] and such duty may be enforced by mandamus where of legislative as distinct from contractual character.\[63\] An ordinance requiring the top of the rails to be on a level with the surface of the street relates to the grade as it exists rather than to the true grade as fixed.\[64\] Where the company is given the express power to construct two tracks the construction of a single track does not exhaust its power.\[65\] In Chicago an elevated

SS3. Certain steel rails, included in a torn made in an abutting street in the tornage of after-acquired property, held legislation in custody of receivers of the road, and therefore not subject to seizure and sale on execution, and a suit brought with: not toibe excavation until it was unleve of court held not maintainable, Chalmers v. Littlefield \[Me.\] 69 A 100.

SS4. Where city ordinance granted street railway authority to erect a system of over-head wires for purpose of conducting electionality to operate motors and "to properly cross from such electric current generation".

- railway may maintain its station in a private building adjacent to its line and connect the same by a passageway,\[96\] provided it retains its public character,\[97\] and does not constitute an unlawful obstruction.\[98\]

SS 6. _Injuries to passengers.\[99\]_

SS 7. _Injury to employees.\[70\]_

SS 8. _Injuries to persons other than passengers or servants. A. General rules as to negligence and contributory negligence.\[98\]_ So s C. L. 2015--A company which has leased its road with legislative authority \[71\] or a construction company which has turned over the system \[12\] is not liable for negligence in the operation thereof. The legislature in Maine has no power to exempt a particular railway from the general law of liability for negligence. At common law a street railway company is under no obligation to keep the street in safe condition,\[14\] but it must keep its track in such condition\[15\] and the portion of the street occupied thereby.\[18\] Since street railways enjoy the use of streets in common with the public generally,\[77\] they must exercise reasonable care\[78\] in the equipment,\[79\] maintenance,\[90\] and operation\[81\] of their cars

ough limits, for Is the company required to take out a permit under an ordinance of the borough "regulating excavations in sure to perform its absolute duty of Keep-streets and requiring permits therefor."

In pared of street occupied by its tracks in Dunmore Borough v. Scranton R. Co., 34 Pa.

A reasonably safe condition. Pugh v. Tex-Super. Ct. 294.

Ariana L. & Trac. Co. \[Ark.\] 109 NW 1019.

66. Rothschild v. Chicago, 227 Ill. 205, 81 NE 407.

of franchise to occupy portions of streets in the same way, and not in store or waiting room, does not make use of store or waiting room private rather than public. Rothschild v. Chicago, 227 Ill. 205, 81 NE 407.

68. If passageway from waiting room in store to elevated railroad station is in fact an unlawful obstruction, city is not stopped to remove it, having made a proposition to permit its use for a money consideration where such failure was proximate or con-

where such proposition was not accepted, nor deprived of its right to remove it by Taxerkana L. & Trac. Co. \[Ark.\] 109 SW SW an agreement to permit its construction and use for a money consideration. Rothschild v. Chicago, 227 Ill. 205, 81 NE 407.

69. See Carriers, 9 C. L. 466.

01. See Master and Servant, 10 C. L. 691.

01. Densler v. St. Louis Transit Co., 125

01. 102 SW SW 587.

01. Company organized for purpose of building and selling street railways is not liable for injuries from operation thereof after road has been, delivered to a purchaser, in absence of a showing that it was not properly constructed at time of deliv. Pugh v. Texarkana L. & Trac. Co. \[Ark.\] 109 SW 1019.

01. An act of legislature that no action shall be maintained against a particular street railway company therein named for injuries caused by its neglect of duty to keep in repair those parts of a street of a town occupied by its tracks, unless one of donors had 24 hours' actual prior notice of defect and subsequent notice of injury within 14 days, is to that extent unconsitiutional and void. Milton v. Banger R. & Elec. Co. \[Mc.\] 68 A 826.

74,75. Chicago Union Trac. Co. v. Case, 129 Ill. App. 451.

76. Bound to use ordinary care to keep that portion of street occupied by its road.

01. Such to be a reasonably safe condition for pub-lic travel. Owensboro City R. Co. v. Bar-

01. Bound to use ordinary care to keep that portion of street occupied by its road.

and in the employment of efficient servants.\[82\] The particular vigilance required in the exercise of ordinary care varies with circumstances.\[88\] No liability attaches, how:

anticipated. Percell v. Metropolitan St. R. **Co.**, 126 Mo. App. 43, 103 SWV 115,

79. Modifying the requested instruction of defendant, in an action for the collision of a street car with a buggy, that, if defendant's employees in charge of the car, as soon as they discovered the dangerous position of plaintiff, used ordinary care to prevent the collision, defendant would not be liable for any collision which might have been prevented, if such employees had had other appliance than what they had for preventing a collision, by adding the words, "unless a mere running of the car, without having it provided with such additional appliances, if they were any, would in itself have amounted to wanton and reckless conduc on the part of the defendant," was not error. Boott v. San Bernardino Valley Trac. Co. \[Cal.\] 93 P 677. Whether it is negligence to operate a street car without a fender held question for the jury. Louis-ville & S. L. Trac. Co. v. Short \[Ind. App.\] 83 NNE 265. Company is only required to adopt methods, machinery and appliances in accordance with ordinary usage of business. Spiking v. Consolidated R. & P. Co. \[Utah\] 83 P 838. Rule that it is necessary to prove that certain appliances are in general use by street railway companies before negligence can be predicated on omission to supply them does not apply to appliances, the use of which is a matter of common knowledge. Id. As applied to street railway cars, fender is a guard or protection against danger to pedestrians coming in contact with a car. Id.

01. Negligence in lightning held for jury. Kaselicska v. Pittsburgh Railway Co. \[Pa.\] 68 A 1018. That car runs 150 feet after brakes are set is evidence that cars' equipment for stopping was ineffective. Louis-ville & S. L Trac. Co. v. Short \[Ind. App.\] 83 NNE 265. Where car escaped control held to show defective apparatus or negligence in operating. Sehimmack v. Washington, etc., R. Co., 33 Pa. Super. Ct. 653.

01. It is the duty of operators of car to keep it under reasonable control while passing through well-populated districts, and especially white approaching street crossings. Grout v. Central Elec. R. Co., 125 Mo. App. 562, 102 SWV 1026. Reasonableness of speed is measured by relation of speed to circumstances under which it is maintained, having regard to view and crowded condition of thoroughfare. Smith v. Con-negticut R. & Lighting Co. \[Conn.\] 67 A 888. Must use ordinary care to avoid injury, regardless of whether rate of speed has been limited by statute or ordinance, or not. Wolf v, City R. Co. \[Or.\] 91 P 460.

Negligence: Stopping a car in middle of a block and starting it suddenly without warning leg negligence. Chicago City R. \[Utah\] 115 NWV 800. Prin-Co. v. Strong, 129 Ill. App. 511. To run car along city streets on a dark and stormy are on to take all precautions, and to take all precautions, the result is not possible to stop his car on discovering that while at street crossings. Nelson v. Chi. \[Utah\] 83 P 838. Motorman operating Ram car down steep grade without con- its cars over public highway is required to 10 Cur. Law. STRET RAILWAYS SS 8A. 1743 ever, unless the negligence proximately results in injury," and the party injured is free from contributory negligence." Contributory negligence is no defense against willful negligence." The company's negligence need not be the sole cause of the injury." The violation of a statute or ordinance enacted in the interest of public safety is prima facie negligence," and a party injured thereby may predicate an action thereon." The company may be negligent in fact though there is no ordinance " or in running within the speed limit."

_"Last clear chance" doctrine._ See e. C. L. 2010.--Contributory negligence of plaintiff is no bar to recovery where the company, after it discovers," or by the exercise of due care could have discovered," his perilous position," could by the exercise of reason-

keep lookout for travelers on highway, but

sequently it granted franchise to company no such duty is required at points along

to operate street railroad in village. Composti track outside the highway. Birmingham-

pony obtained similar authority from out-

ham R., L. & P. Co. v. Brown \[Ala.\] 44 8 & 644, authorizing company to operate

84. Feille v. San Antonio Trac. Co. \[Tex.

civ. App.\] 107 SWV 367. Question is for the ship on conditions agreed on by company

jury where motorman was negligent and

ran into pedestrian. Shirley v. Rhode

to township was subsequently attached to

Island Co. \[R. I.\] 67 A 585. Failure to give

village. Heid, that ordinance was effective

signals is immaterial where it appears that

planned saw car before attempting to cross

Coury St. R. Co., 150 Mich. 235, 14 Det. Leg.

tracks. Elgin, A. & S. Trac. Co. v. Brown,

129 Ill. App. 62. Defect in pavement and

90. Denen v. Houghton County St. R, Co.,

not open switch held proximate cause,

150 Mich. 235, 14 Det. Leg. N, 670, 113 NW

Chicago Union Trac. Co. v. Case, 129 Ill.

1126.

App. 461.

85. No recovery can be had for negligence

sented districts is not regulated by ordinance

once does not relieve against requirement

San Antonio Trac. Co. \[Tex. Civ. App.\] 107

of ordinary care in their operation. Chi-

SVV 367.

86. Feille v. San Antonio Trac. Co. \[Tex.

Civ. App.\] 107 SWV 867. Where a trolley

92. Instruction held not objectionable as

company applies a lubricant to its tracks

longs a public street in order that ite cars

Transit Co., 204 Mo. 507, 103 SWV 48,

may pass around a curve more easily, it is

93. Must show that peril was discovered.

its duty to make the application in such manner as not to endanger safety of per-

Agn.) 107 SWV 64. Negligence in failing to

sons entitled to use street, and plaintiff

crossing a public street at a corner, unless

crosing a public street at a corner, unless

warned to the contrary, has a right to as-

sume that place is safe, and let no guilty

(San Antonio Trac. Co. v. Kelleher \[Tex.

of contributory negligence in stepping upon

the lubricant and being thrown down and

Metropolitan St. R. Co. \[Mo. App.\] 109 SWV

\[N. J. Err. & App.\] 89 A. 163.

1042). Mere fact that person is on street

87. Birmingham R., L. & P. Co. v. Brown

\[Ala.\] 44 85 72.

88. Must be proximate but need not be

sole cause. Miller v. Boaton, etc., R. Co.

\[Mass.\] 83 NE 990. In action by teamster

94. Llabe, where in exercise of due care

for injuries caused by collision, Instruction

by motorman danger might have been dis-

that, while burden was upon defendant to

custablish plaintiff's contributory negligence,

to did not relieve plaintiff of burden of

114 NWV 183. Instruction In action for death

proving that his injuries were solely caused

by defendant's negligence, and that if plain-

charge of negligence, in that motorman

tiff's injuries were caused by mutual and

concurring negligence of plaintiff and defendants' motorman, and negligence of

neither without concurring negligence of

other would have caused injury, then plain-

tiff was not entitled to recover, was erroneous, since defendant might be liable even

if accident was not caused by its sole negligence. Zander v. St. Louis Transit Co.,

206 Mo. 445, 103 SWV 1006.

88. Chicago, etc., R. Co. v. Freeman, 126

01. App. 318. Village adopted ordinance

fixing maximum speed of street cars. Sub-

95. Inference that one in charge of a able care ("0" have prevented the injury," the failure to exercise such care being regarded as the sole proximate cause."

(SS 8) \_B. Travelers on highway. Injuries to pedestrians._See * C. L. 2020_.\_While both "0" the street car company 1 and the pedestrian 2 must exercise reasonable care in

street car saw person walking along track (that plaintiff was exercising ordinary care ahead of car does not necessarily carry with it further inference that he realized that person would not leave track in time to avoid being injured, but on contrary he would ordinarily have right to assume that person would get off track and avoid injury. San Antonio Trac Co. V. Kelleher \[Iowa\] 114 NWV 188. In action for injuries \[Tex. City. App.\] 107 SWV 64. Instruction that plaintiff could recover if motorman saw, or should have seen, his wagon on track, and thereafter could have prevented collision by taking proper steps to stop car but negligently failed to do so, was not erroneous as imposing on motorman duty of stopping car upon seeing swap on track, instead of after he realized danger of a collision. Prendeville v. St. Louis Transit Co. \[Mo. App.\] 107 SWV 453.

Footnote 146: The

## 10 Cur. Law. STRET RAILWAYS SS 8B.

all reasonable means to void injurling them.

V. Lawrence, etc., R. Co. \[Mass.\] 83 NE 359. Chicago, etc., R. Co. v. Barrows, 128 Ill. Crossed behind one car and stepped in front App. 11. Charge that street car company of another. Van Ness v. North Jersey St. has no right to exclusive use of that part of a street upon which its tracks are laid, killed while not aware of his nearness to but that pedestrian has equal right to its use in traveling over and across it, is erroneous, since, while in certain sense pededs.

V. Lawrence, etc., R. Co. \[Mass.\] 83 NE 359.

trian has common right with a street car company to use part of a street occupied by its tracks, he has no right by walking fingers to hinder progress of a car, and it is his duty, if he is where he can safely do so, to step aside and let it pass at its usual speed. San Antonio Trac. Co. v. Kelleher \[Tex. Civ. App.\] 107 SW 64.

I. Negligment: In starting car before plain-off WW had crossed ahead had reached place of safety. Mitleman v. New York City. R. Co., 63 Misc. 599, 107 NYS 108.

Fact that motroman could see one on track (one and one-half blocks away, and did not see any one at crossing, warrants finding that motorman was negligent in not dis-covering dependent and in colliding with him. Remillard v. Stoux City Trac. Co. \[Iowa\] 115 NW 900. In action against street railway company and railroad company for wrongful death from a collision, evidence held not to show freedom of street railway from negligence proximately contributing to injury. Indianapolis Union R.

In failing to wait for car from which he can, by using at least one or more, a single car is not dis-covering dependent and in colliding with him. Remillard v. Stoux City Trac. Co. \[Iowa\] 115 NW 900. In action against street railway company and railroad company for wrongful death from a collision, evidence held not to show freedom of street railway from negligence proximately contributing to injury. Indianapolis Union R.

Co. v. Waddington \[Ind.\] 82 NE 1030.

For jury: Negligence of motorman in regard to speed and lookout. Merkl v. Jerry gaty etc., R. Co. \[N. J. Err. & App.\] 68 A 74.

Not negligent: Failure to give signals where giving thereof could not have averted accident. Chicago Union Trac, Co. v. Daly, 191 III. App. 519. In falling to detect prox-trate form in darkness. Kuplec v. Warren, etc., R. Co. \[Mass.\] 82 NE 876. It appearing merely that intestine attempted to cross in front of car and miscalculated distance or speed of car, and it not appearing in macdescent light on sandboard, instead of that his intention to cross was manifest to motorman in time for him to avoid accident.

Ekeran v. Rhode Island Co. \[R. I.\] 67 A 447.

In action for death of plaintiff's intestine while endeavoring to cross tracks and sats his brother across, instruction that deceased was not necessarily guilty of con-arbitrary negligence in nahangering.

Nagglomerate held for jury: Killed while own little to save his brother was erroneous as omitting qualification that action of de-caused must have been compatible with a St. R. Co. \[Mass.\] 83 NE 359. Where at night he attempted to his own negligence contributed to placing himself and his brother in a dangerous situation, fact that he then suddenly attempted to respect to save his brother would not ab-solve him from contributory negligence.

Miller v. Union R. Co. \[N. Y.\] 83 NE 858.

**Eled negligent:** In attempting to pass on which car was approaching provided he ahead of known approaching car. Grout v. Central Elec. R. Co., 125 Mo. App. 552, 102

SWV 1026. Attempted to pass in front of cat 6 or 7 feet away. Long v. Union R. Co. \[Utah\] 83 PS 838.

122 App. Div. 564, 107 NYS 401. Saw car but if car is at such distance that he has approaching 60 or 80 feet away and at time to cross, if it is run at usual speed, tempted to cross. Robinson v. Union R. Co., 125 Mo. App. 121 App. Div. 558, 106 NYS 203. Negligent

as matter of law in not looking carefully 81 P 460. Person crossing a street has a or in not looking at proper place. Before right to assume that approaching street1746 STREET RAILWAYS SS 8B. 10 Cur. Law.

view of the surrounding conditions * to avoid injury, the latter may assume that the former will exercise such care * unless he knows or is charged with knowledge to the contrary,5 but this does not absolve him from the duty of exercising due care for his own safety.6 While the motorman on approaching a place where the presence of persons is to be anticipated must keep a lookout and give warning,' he need not stop or lessen speed until danger becomes apparent.8 A pedestrian may rely upon known * customs.10 While one crossing a street car track is not required to exercise the same vigilance as in crossing railroad tracks,11 he must use his sense of sight and hearing

car a block away is running at a lawful he accepted himself the risk he then took," rate of speed, and if he could cross in safety

was erroneous Inamuch as it largely left before car running at that speed could reach

the standard of the motorman's care to the him, he is not guilty of contributory negligibly

apprehension of plaintiff, who had no more

gence in crossing without stopping to look

right to indulge the assumption that the

just before reaching track unless he he

comes aware that car is running at a

that plaintiff would keep out of the way of

greater speed. In absence of any direct

evidence as to whether he knew speed of

1085.

car, the fact that he was struck was not

conclusive evidence of contributory negligibly

plaintiff knew or ought to have known of

gence, as presumption that he would exercise

else care for his safety would negative any

Hoffman, 40 Ind. App. 508, 82 NE 648.

knowledge on his part of speed at which

car was coming. Powers v. Des Moines

City R. Co. \[Iowa\] 115 NW 494.

3. Where decedent was killed in collision

with street car, and court called attention

to particular circumstances of case, instruction

that decedent was required to use his

senses and exercise that degree of care that

men of ordinary prudence would have exer

clsed under particular circumstances of

case as disclosed by evidence, was not ob

jectionable as requiring too low a degree of

care, in view of evidence that decedent was

familiar with surroundings and conditions

prevailing at place of accident. Spliding v.

Canol. R. & P. Co. \[Utah\] 93 P 838.

4. Plimmer v. Josie Trac, Co. \[Ida\] 94 P 432; Sandberg v. Brink's Chicago City, Exp.

Co., 126 Ill. App. 175; Indianapolis St. K. Co.

v. Hofman, 40 Ind. App. 508, 82 NE 643;

Percell v. Metropolitan St. R. Co., 126 Mo.

App. 43, 103 SWV 116. Person crossing in

front of street car while at standstill has a

right to assume that it will not be started

or so operated as to strike her until she has

had a reasonable opportunity to pass point

of danger. Militleman v. New York City R.

Co., 56 Misc. 599, 107 NYS 108. Traveler is

not negligient in making use of a street with

reliance on observeance of ordinary care by

operators of street cars thereon, though ap-

proaching car is coming rapidly from more

or less distant point. Frank J. Lennon Co.

v. New York City R. Co., 108 NYS 995. In

action for injuries in being struck by a car

while crossing defendant's track, instruction

that "when one attempts to cross the

tracks of a street car, and has approached

the track at such a distance from the ap-

proaching car that he has reasonable

ground to suppose that he will be able to

cross the track, it is the duty of the street

car driver to give him a reasonable opportunity

tunity to cross, and if for that purpose it

is necessary for him to stop his car for a

time, it is his duty to do so," and that the

jury must determine whether when he ap-

punched the track the car was such a. distance away as led him to believe that he

could cross in safety, and that if he did not

so believe he could not recover, "because

10 Cur. Law.

10 Cur. Law. STRET RAILWAYS SS 8B. 1747 to avoid injury.12 Where one is killed by a street car, there is a presumption against suicide.13 Where its tracks are habitually crossed at a private point, the company owes the same duty as at public crossings.14

\_Children run over.\_See 5 C. L. 2025.--A child under seven years of age is generally conclusively presumed to be incapable of appreciating and avoiding danger,15 but a child sui juris,16 while not held to the degree of care exacted of an adult,17 must exercise such care as can be reasonably expected of one of his age and discretion.18 Negligence of the parents in exposing a child to danger generally precludes a recovery on their part.19 While a street railway company is bound to recognize the inattention.

12 Percell v. Metropolitan St. R. Co., 656. Eleven year-old child when she saw 126 Mo. App. 43, 105 SW 115. One who in car approaching in full view and with full 130 knowledge of danger and without necessity of a suburban electric railway as to be attempted by hurrying to cross track in front of it. Casey v. Boston El. R. Co. negligence in not looking for a car before \[Mass.\] SS 8NE 867. Boy 14 years old who so alighting. State v. Cumberland & W. Elbee. Kalways Co. Ltd. 68 A 197. Failure by fences, with knowledge of running of cars thereon and danger incident to walk-matter of law. Pimmer v. Boisse Trac. Co. \[Ldaho\] 94 P 142; Chicago, etc., R. Co. v. Wanic, 230 Ill. 530, SS 2NE 821. 13. Lamb v. Union R. Co., 109 NYS 97. 14. Instruction exacting car over wed at crossings held correct. Spiking v. Consol. R. & P. Co. \[Utsh\] 97 S 838. 15. Sullemberger v. Chester Trac. Co. 33 Pa. Super. Ct. 12. 5 or 6 years old. Chiacago, etc., R. Co. v. Freeman, 125 Ill. App. 318. 16 months old. Birmingham R. L. & P. Co. v. Jones \[Ala.\] 45 S 177. Finding that child was about 5 years and 10 months old, of average intelligence, was not equivalent to finding that child was capable of exercising some care for her own safety. Harmond, etc., R. Co. v. Blocke, 40 Ind. App. 497, SS 2NE 541. 16. Whether a child of 5 years and 10 months old is sui juris is for the jury. Hammond, etc., R. Co. v. Blocke, 40 Ind. App. 497, SS 2NE 541. 17. In action by parent for injuries to his minor son struck by a street car, requested instruction that jury, in determinismg whether or not plaintiffs'a son was aware of danger of crossing in front of moving car, and whether or not he saw car would in place of safety and took his chances in crossing, jury might consider son's admission that he knew danger and took chances, is erroneous in placing boy on equality with adult, and properly refused. Brown v. St. Louis & S. R. Co., 127 Mo. App. 499, 106 SW 83. 18. Kostenbaum v. New York City R. Co., 120 App. Div. 160, 105 NYS 65. Question of whether child of tender years has exercised such care as would reasonably be expected from person of his age and capacity is question for jury, to be determined by the circumstances of particular case. Barstow v. Capital Trac. Co., 29 App. D. C. 862. In action against street railway company for running over four year old child, it is not error to assume that, as to her curb line of city street is danger line in crossing street. Cornovski v. St. Louis Transit Co., 207 Mo. 263, 106 SW 51. 164 negligent: Boy of nine Who ran directly in fgont of street car. Sobol v. Union R. Co., 122 App. Div. 817, 107 NYS 1748 STREET RAILWAYS SS 8C. 10 Cur. Law.

tiveness of children to their personal safety and to exercise corresponding care,\[20\] it ordinarily owes no duty to maintain a lookout for trespasers.\[21\] (SS 8) \_C. Accidents to drivers or occupants of wagons.\_See 8 C. L. 2020--While a street car generally has the right of way over ordinary vehicles\[22\] except at street crossings,\[23\] each must have due regard for the rights of the other.\[24\] The motorman

207 Mo. 263, 106 SWV 51. Where parents of the place. Madigan v. Berlin St. R. \[N. H.L\] boy five years old knew that once or twice he had gone to home of his aunt nearby, but did not know he was in habit of doing tront of car. Lexington R. Co. v. Van Lu-1t, father of the boy is not precluded from (den's Adm'r KEV.) 107 SWV 140. No failure recovering for injuries to boy on street on ground that he had permitted his son to go on street in the business part of city un-105 NYS 65.

21. Sixteen months-old child lying on Co. \[Pa.\] 68 A 1022. Where child under seven years of age is sent by Its mother on must exercise reasonable care to see whether the track is clear \[28\] and to avoid injury.26 The questions of negligence \[17\] and of contributory negligence \[28\] are generally of fact.

wagon, whether railway company was neg-ligent in locating pole near a driveway, and whether fireman was guilty of contributory negligence, held questions for the jury. Lambert v. Westheester Elec. R. Co. \[N. Y.\] $2 NE 977. Held error to instruct "that when one attempts to cross the track of a street car, and has approached the track at such a distance from the approach-ing car that he has reasonable ground to suppose that he will be able to cross the track, it is the duty of the motorman to give him a reasonable opportunity to cross, * * and the person crossing the track has the right, without being charged with contributory negligence, to assume that that duty will be performed." Geisendorfer v. Union R. Co., 109 NYS $8.

25, Chicago, etc., R. Co. v. Barrows, 128 III. App. 11. In action against street railway, court instructed that if while plaintiff was on street motorman and employees in charge of car knew, or by ordinary care could have known, of his presence in time to stop said car and avoid injuring him, and while plaintiff was in exercise of ordinary care said car was run against him to his injury, to find for plaintiff. Held that instruction was not subject to objection that it did not base defendants' liability on discovery of plaintiff's peril or negligent failure to discover his peril, but told jury that, if plaintiff was on track or sufficiently near to be struck, and his presence was known or could have been, etc., defendant was liable. South Covington, etc., R. Co., Pilchler \[K.Y.\] 108 SW70 117. Where ther is evidence that when horse turned onto track car was 70 feet distant and could have been stopped within twenty-five feet, and that motorman was in middle of car.

Wehr v. Carbon County Elec. R. Co., 217 Ps. 49. 6A 743. Where, in action for injuries to fireman in collision between hook and ladder truck and defendant's street car, there was evidence that speed of car was much too high to prevent timely stop of car after danger to truck became apparent, and that with any proper use of appliances at motorman's command, after peril arising from truck could have been discovered, car might have been stopped, such facts were sufficient to require submission of issue of defendant's negligence to the jury. Burleigh v. St. Louis Transit Co., 124 Mo. App. 1, 103 SW 621. In action against street railway company for in-ing position and ran into plaintiff's vehicle, which was crossing street at intersection, evidence of defendant's negligence. Denven V. Houghton County St. R. Co., 150 Mich. 235, 14 Det. Leg. N. 870, 113 NW 1126.

28. In action for personal injuries caused by a collision between a street car and a team which plaintiff was driving, instructe-then leaving jury to determine whether or-dinary care would require plaintiff to ascertain whether he could cross safely, by use of his senses of sight and hearing, was error, as plaintiff was bound in law to ascertain whether or not it was safe to attempt a crossing. Doherty v. Des Moines City R. Co. \[Iowa\] 114 NW 183.

Held negligent Saw car block away but paid no need thereto. Davis v. Coeur D'-Atene & S. R. Co. \[Wash.\] 91 P 889.

Horses not under control. Lester v. Phila-delphia Rapid Transit Co., 217 Pa. 652, 66 A 86. Saw car 50 feet away when 20 feet from track and did not look again. Gilman v. New York City R. Co., 107 NYS 170.

In falling to look second time on approaching nearer track. Baxter v. Auburn, etc., R. Co., 190 N. Y. 438, 83 NE 469. Drove in front of approaching car. Ungher v.

1750 STREET RAILWAYS SS 8C. 10 Cur. Law.

\_Imputed negligence.\_See & C. L. 2081--In general the negligence of the driver of a vehicle cannot be imputed to the occupants,29 especially where they exercise no control over him,30 and, in any event, such negligence must be the proximate cause of the accident to defeat recovery.31

\_Driving on or near the tracks.\_See & C. L. 2081--One may drive upon the tracks of a street railway in the street as a matter of right,32 and hence the track must be maintained 33 and the cars operated 34 with due regard to such right. On the other hand,

New York City R. Co., 107 NYS 610. Drove of truck, after which he attempted unsuchesolwly across tracks without any regard (cessfully to get away. Held that it was for safety. Lee & Chicago City R. Co., 127 not incumbent on plaintiff to keep a vigil-IIL App. 510. Held negligent as matter of lunar watch for cars, and that he was not law in turning horses onto track without looking or taking any precautions. Metro-Louis Transit Co., 124 Mo. App. 724, 102 SWV poltan R. Co. v. Fonville (Ookl.) 91 P 902. 621. Driver who looked and listened for car prior to going on street car track, and v. Houghton County St. R. Co., 150 Mich. 285, who neither saw nor heard a car, was not 14 Det. Ing. N, 670, 113 NV 1126. Whether or not plaintiff was guilty of contributory negligence in not seeing approaching car driving 470 feet along track. Bensick V. St. and thus avoiding the collision. Doherty (Louis Transit Co., 125 Mo. App. 121, 102 SWV v. Des Moines City R. Co. (Iowa) 114 NWV 183. Whether one who, on busiest street in city, at busiest time, in driving across NEE 872.

a street car track, had hind wheel of his buggy struck by a street car going up a slight grade, at a speed of four miles an hour, without warning and without attempting to stop it until it was within five or six feet of buggy, was guilty of contributory negligence, though when he got into buggy and started horse car, not seen by him, was standing at crossing with its front end fifty-nine feet from where he must cross track, and though, while he listened atintuitively, without hearing anything, he did not look beyond the side curtains of his buggy so as to see the car until his horse was across the track. Scott v. San Bernardino Valley Trac. Co. \[Cal.\] 93 P 67t. Whether driver of ice wasgonal, all but the rear part of which got over tracks when it was struck by a street car, was negligent, is a question for the jury, the place being near the office, barns and scales of the ice company, and the driver testify-ing that before he started to cross he looked back a distance of two or three hundred feet and saw no car, and car having neither given any signal nor slackened its speed. Jedory v. Boston, etc., R. Co. \[Mass.\] 84 NE 316.

**Held not negligence:** In crossing in front of standing car and in not watching same until safely across, McGurgan v. New York City R. Co., 121 App. Div. 519, 106 NYS 201. Driving of fire engine to fire at greater speed than private carriges. Chicago City R. Co. v. McDonough, 125 Ill. App. 223. One driving across a street car track at a time when approaching car is 36 feet away is not, as matter of law, guilty of contributory negligence, though paying between track rails and adjacent thereto had been removed, leaving a space about six inches deep for vehicle, ordinary carriage, to pass over. Hall v. St. Louis & B. R. Co., 124 Mo. App. 681, 101 SWV 117.

Piantiff, while returning from fire on fire truck, was injured in a collision between his truck and approaching street car. Plaintiff was not driving and only saw street car when fifty feet away by looking over top however, the user must exercise commensurate care for his own safety,38 and must leave the track as soon as he reasonably can 38 upon being warned of the approach of a car. Likewise one near the track must exercise reasonable care.37

\_Frightening horses.\_See * C. L. 2002.--Persons in charge of a car may assume that a horse approaching or near the track will not be brightened thereby,\[38\] and need not stop or lessen the speed unless the circumstances indicate danger.\[39\]

(SS 8) \_D. Bicycle riders; automobiles; animals.\_See * C. L. 2003.--A bicycle rider \*\[40\] or the driver of an automobile \[41\] and the employees in charge of a car \[42\] must each exercise reasonable care to avoid injury. A street car company is liable for the negligent killing of animals.\[43\]

SS 9. \_Damages, pleading and practice in injury cases.\_See * C. L. 2003.--\_Pleadings.\_See * C. L. 2004.--The general rules of pleading relating to amendments,\[45\] consistency of allegations,\[46\] control of general allegations by specific,\[47\] etc.,\[48\]

Dietrich v. Brooklyn Heights R. Co., 108

from absolute inattention to his situation and surroundings and through his failure to exercise any care whatever. Id. Held lision with a street car as he was assisting in loading a van with furniture in street in front of his residence, rights of plaintiff

tempting to cross ahead of car. Young- and owners of street car to use street were

501, 114 NWP 259.

reciprocal, each being bound to use due

ar under all circumstances of the case.

principal street of town onto electric rail-

Heinel v. People's R. Co. \[DeLJ. 67 A 173.

Way track collided with car. He expected

Right to stop wagon, for purpose of un-

a car to pass about that time. After start-

loading, near a street railway track, is

ing backing he didn not look where car

subordinate to right of way of railroad

was though there was nothing to obstruct

company. It is duty of person so unload-

his view to rear. Car, before colliding

ing wagon to get out of way to allow a car

with automobile, stopped to take on pas-

to pass, and duty of motorman to approach

carefully, with his car under control, so

the can stop promptly to prevent accident.

dent. Each has right to assume that other

will do his duty, but neither has right to

v. Hubich, etc., R. Co. \[Mass\], 84 NE 510.

so act that if other does not do his duty a

collision will follow. Volosko v. Interur-

han St. R. Co., 190 N. Y. 206, 82 NE 1099.

Held negligment as matter of law in not

seeing approaching car while unloading

wagon just off track. Id. When driver of

a team allowed it to stand near a street

rilway track and it was run into by a car, negligence led to be for jury, Sampsel

r. Rybeynsk, 229 Ill. 75, 82 NE 244.

38. And that it is properly tied if standing.

Columbus St. R. & L. Co. v. Reap, 40

Ind. App. 689, 82 NE 971.

39. Though he notices that horse is

frightened. Mahoning Valley S. E. R. Co.

v. Houston, 9 Ohio C. C. (N. S.) 408. In

case of horse frightened by a street car,

due care of driver of horse and negligence

of company held for jury, Metropolitan St.

K. Co. v. Fawett \[Kan.\] 92 P 543.

40. Though a bicyclist riding along a

street railway track is bound to exercise

such care to protect himself from injury

as is appropriate to case, a failure to maintain constant watch and to listen for cars

approaching in either direction is not neg-

ligence as a matter of law he being re-

guted to use reasonable care in exercise of his faculties, and whether he did

so being a question of fact. Hamiln v.

Pacific Elec. R. Co., 150 Cal. 76, 89 P 1109.

Where in daytime a bicyclist ride about

a block and a half along a straight street

can track, though there was ample room

for him toardaw, and was struck by a

car, he was guilty of contributory negili-

gence barring recovery, it appearing his

failure to see or hear the car resulted

tion in which her carriage was proceeding, * 10 Cur. Law. STRET RAILWAYS SS 9. 1753

- apply. Negligence,48 wantonness40 and "discovered peril"50 must be pleaded by a
- did not state a new cause of action. Butler
- v. Rhode Island Co. \[R. I.\] 68 A 425. Where
- father sued alone for negligence causing
- death of his son, it was proper to allow
- a student of his son, it was proper to allow
- amendment, joining mother with him after
- period of limitation had run, cause of acc
- and a greater rate than allowed by ordi-cause of action counted on in original
- v. St. Louis Transit Co., 205 Mo.
- 692, 104 SWV 109.
- 46. In action for death of a four year-old
- child struck by defendant's electric car,
- allegation of petition that defendants
- within 50 feet of child at said high rates of
- agents in charge of car by exercise of
- ordinary care might have seen child in
- time to have prevented its death, and that
- theirs would or render on front of
- child\* position on or near track in a place
- of danger was known to such agents, or
- control by exercise of ordinary care
- S. I. Trac. Co. v. Short \[Ind. App.\] 83 NEB
- been known to them, in time to have
- 265. Under Rev. St. 1899, SS 3852 (Ann. St.
- stopped car or slackened its speed, and to
- have notified child in time to have avoided
- its injury, is inconsistent with another alcourt, but that plaintiff shall file a state-
- ligation that defendants agents ran car at
- such a high rate of speed that its control
- was lost, and it was beyond power of
- a street railway company for injuries to a
- brakes to stop car in time to have avoided
- injury after they knew child was upon
- company was indebted to plaintiff for dam-
- track, or by exercise of ordinary care
- ages sustained by reason of a collision on
- might have known that she was on track.
- specified date and place in breaking a ve-
- Gabriel V. Metropolitan St. R. Co, \[Mo. App.\]
- hicle for a certain amount, sufficiently
- charges that damage was negligently in-
- 47. In petition for injuries to plaintiff by
- alleged joint negligence of two defendants,
- raised for first time by motion in arrest of
- allegations of joint negligence in general
- judgment. Hall v. St. Louis & S. R. Co.,
- terms were controlled by averments of
- 124 Mo. App. 661, 101 SWV 1137. Petition in
- specific acts of negligence which followed.
- Ramsey v. Cedar Rapids, etc., R. Co. \[Lowa\]
- between street car and fire truck charged
- that motorman was negligent in running
- 48. Petition alleging that by reason of
- defendant's negligence in operation of its
- road, its equipment, its trains, and cars run-
- nine thereon, its negligent failure to stop
- one of its cars before crossing a street, etc.,
- plaintiff was injured, included defendant's
- negligent act in making a premature start
- at top of a hill on descent whereor plaintiff
- was injured, permitting train to attain too
- rapid rate of speed in descent, negligent
- handling of brakes, failure to apply sand
- to rails to prevent wheels from sliding on
- them, and negligent overloading of defend
- ant's cars, whereby they could not be con-
- trolled. Percell v. Metropolitan St. R. Co.,
- 126 Mo. App. 43, 103 SWV 115. Petition allegation
- legged that defendant was negligent in not
- stopping car before striking plaintiff
- sufficient allegation to raise question
- whether defendant, with knowledge of
- plaintiff's danger due to his own neglig-
- piece, used reasonable precautions to avoid
- injuring him. Powers v. Des Moines City
- R. Co. \[Lowa\] 115 NWV 44. Compilation
- which allegates that company ran its car after
- dark without a headlight, that no signal
- was given as car approached crossing, that
- car ran at a dangerous speed, and that it
- negligently ran car against pedestrian,
- during him, when liberally construed as re-
- injured by Burns' Ann. St. 1901, SS 379, snft-
- plenty charges negligence as against a de-
- inurrer on a motion to make more definite
- and certain. Grass v. Ft. Wayne & W. V. Trac, Co. \[Ind. App.\] 81 NE 514. Acts of
- was given as car " approached crossing, that
- can rat a dangerous speed, and that it
- negligently ran car against pedestrian,
- during him, when liberally construed as re-
- injured by Burns' Ann. St. 1901, SS 379, snft-
- plenty charges negligence as against a de-
- inurrer on a motion to make more definite
- and certain. Grass v. Ft. Wayne & W. V. Trac, Co. \[Ind. App.\] 81 NE 514. Acts of
- was given as car "approved" by
- but it was not possible to use a new concept of "de-
- and "des-".
- was given as car "approved" by
- and "des-".
- was given as car "approved" by
  proper allegation of facts."11 Defendant's negligence must be shown to be the proximate cause of the injury."52 While a general custom need not be pleaded, a local one must."53

\_Burden of proof and evidence.\_See 5 C. L. 2035--Except as to matters judicially noticed,"54 the burden rests upon plaintiff to prove his entire cause of action, including defendant's negligence 55 and that it proximately caused the injury,"56 but in some states a prima facie case of negligence is established by showing that the injury was occasioned by a car."7 Where distinct acts of negligence are alleged, plaintiff need prove but one 58 or may bring the case within the scope of the doctrine of "res ipsa

negligence was no defense, and a demurrer, non and general use on street cars. Splik- to such ple was properly sustained. Id. Ing v. Consolidated R. & P. Co. \[Utah\] 93 P 50. In action against street railway for injuries received by plaintiff while attempt- ing to cross a track in front of defendant's 173. Charges did not cast burden on defendant or proving that motorman did not exert could have prevented injury by stopping car or checking speed had it been operated at a reasonably careful rate of speed was insufficient to a cause of action, predicated on a violation of duty of defendant to stop ear after seeing plaintiff in a place of danger, although plaintiff was guilty of contributory negligence in placing himself in a dangerous position. Grout v. Central Elec. R. Co., 125 Mo. App. 552, 102 saw 1026.

51. Complaint alleging that defendant so carelessly, etc., managed its cars that by reason of its negligence one of them ran against plaintiff, who was then on highway, whereupon, etc., was fatally defective for failure to allege facts from which negligence arose. Lynchburg Trac, & L Co. v. Gull \[Ya.\] 57 SE 644.

01. In action for wrongful death, complaint alleged that while one of defendant railroad company's locomoctives on which decedent, an employee, was riding westerly, was approaching a street crossing, defendant street railway company whose tracks crossed railroad tracks negligently ran its car upon crossing without sending its conductor ahead, as required by a city ordinance, to ascertain whether locomoctives or cars were approaching; that a collision ensured and to escape injury decedent jumped from locomotive; that at same time another of defendant railroad company's locomoctives, which was running easterly on a parallel track at speed in violation of a city ordinance, struck street car, and decedent was killed. Held that these avermentes did not show that first collision was a remote rather than a proximate cause of injury, in view of a direct averment of negligence of street railway company as cause of accident. Indianapolis Union R, Co. v. Waddington \[Ind.\] 82 NE 1080.

01. Evidence of custom of those in charge of street railway cars to allow funeral propagations to pass held admissible, though not pleaded. Wilmington City R. Co., v. White \[Del.\] 64 A 1009.

01. Where-negligence, in action for death of a pedestrian by being struck by a street car, was predicated entirely on omission to provide car with any fender or guard whatever court was entitled to take judicial notice of purpose of fenders as applied to street cars, such appliances being in com 10 Cur. Law. STREET RAILWAYS SS 9. 1755

loquitur.\[58\] Except in a few states,\[60\] the burden of proving contributory negligence rests upon the defendant,\[61\] but such negligence may be shown by circumstantial evidence.\[62\] Where a defective condition is shown to exist a few days before the accident, the defendant must adduce evidence of repair.\[63\] There must be no variance between the allegations and proof.\[64\] The general rules relating to the admissibility \[65\]

cient to, and which did, bring about death

independent of any other, Is enough. Louis-

ville & S. I. Trac. Co. v. Short \[Ind. App.\]

83 NFE 265.

59. Car derailed and struck plaintiff's

wagon. Chicago Union Trac. Co. v. Giese,

229 Ill. 260, 82 NFE 282.

60. Plaintiff must show freedom. Baxter

v. Auburn, etc., R. Co., 190 N. Y. 439, 83 NE

469. Contra. Baxter v. Auburn, etc., R. Co., 190 N. Y. 439, 83 NE

190 N. Y. 439, 83 NE 469.

61. Augusta R. & Elee. Co. v. Arthur \[Ga. App.\] 60 SE 213; Plimer v. Boise Trac. Co.

\[Idaho\] 94 P 432; Nelson v. Chicago, etc.,

R. Co. \[Ind. App.\] 83 NE 1019. Acts 189.

P. 58, e. 41. Louisville & S. I. Trac. Co. v. Short \[Ind. App.\] 83 NE 265.

62. Freedom from contributory negligence

nay be shown from circumstances from

inad of speed. Hall v. Louis & S. R. Co.,

which the jury may faflor infer such fact.

Paxter v. Auburn, etc., R. Co., 190 N. Y. 439, 83 NE 469. Where dislevered body and

74.

untiled remains of plaintiff's

metastatic
warc found at night, scattered on and along

ham R., L. & P. Co. v. Hayes \[Ala.\] 44 S defendant's tracks in public highway, just

102. Evidence "that there were persons

after its car had struck and run over him,

or platform and that conductor evidently

it was held that circumstances raised no

was talking to some one on platform" was

iegal presumption that the deceased had

been guilty of contributory negligence such

Asterson v. St. Louis Transit Co., 204 Mo.

are would bar recovery. Merkl v. Jersey

City, etc., R. Co. \[N. J. Err. & App.\] 68 A

74.

01. Where brakes and signal apparatus

of car were out of order up to 10 days

before accident, burden was on company to

show that car was not defective at time of

a accident. Frankfort & V. Trac. Co. v. Hu

lette \[KY.\] 106 SWV 1193.

64. Where count charged simple neglig

gence and alleged that collision occurred at

point where defendant's track was on pub-

lie highway, but proof showed thatragon

was struck while on defendant's track, not

on a highway, there was a fatal variance

as to such count. Birmingham R. Light & Power Co. v. Brown \[Ala.\] 44 S 572. Where

count alleged that injuries were inflicted

tentionally, it could not be supported by

proof of failure to discover plaintiff's peril,

but was dependent on failure of defendant's

employes to use proper means to stop car

after actually discovering such periil, Id.

Complaint alleged that while decedent, in

exercise of due care, was driving a heavily

loaded wagon, defendant negligently ran

one of its cars against wagon in which

decent was driving, throwing him from

seat and permanently injuring and dis-

abling him. Held that evidence that dece-

dent was thrown from wagon and injured

during flight of his horse, which became

frightened by impact of car with wagon,

which impact was produced by negligence

of servants of street railroad company, was

not at variance with allegations of com-

plain: gravumen of declaration being that

decedent was thrown to ground by wrong-

R. Co. v. Hawcett \[Kan.\] 92 P 543.

not at variance with allegations of com-

plain: gravumen of declaration being that

decedent was thrown to ground by wrong-

for a given day, the and sufficiency \*\* of evidence are applicable. While negative evidence is usually of less probative force than positive evidence," the weight to be given it is for the jury."88_Instructions\_. See 6 C. L. 2003.--Instructions should be clear,"89 consistent,"90 and fairly

Rules and regulations and customs: Rules and regulations of traction company known as well to party injured as to servant alleged to savement to keep to have caused injury and which were promulgated for guidance in such a contin-

Third Ave. R. Co., 122 App. Div. 572, 107

Sency as that existing at time of accident are competent upon question of contributory negligence of one and negligence of other. Chicago City R. Co. v. McDonon-

Rules and regulations and customs: Rules and regulations of traction company known as well to party injured as to servant alleged to 10 Cur. Law. STREET RAILWAYS SS 9. 1757

submit the issues " raised by the pleadings " and supported by the evidence," but must not assume facts in dispute," invade the province of the jury," or be upon the

plaintiff should recover, was not inconsist-
with his feet on one of ralls of car track, ent with another charge that if motorman

San Antonio Trac. Co. v. Kelleher \[Tex. did not see that buggy was in dangerous

Civ. App.\] 107 SWP 64. Where there is no proximity to track and that plaintiff was

in perli, or if he did and did not have time

have known of plaintiff's perli, a charge to prevent a collision by use of means

withlin his power, plaintiff should not re-

pany liable for resulting injury if jury

cover. El Paso Elec. R. Co. v. Kelly \[Tex. Giv. App.\] 108 SWP 416.

have stopped car after he became aware,

theory that even if plaintiff was not exex-

casing ordinary care at time- of accident,

have become aware, of danger to which

if motorman saw, or should have seen,

plaintiff was exposed. Cincinnati Trac. Co.

plaintiff's dangerous position, and there-

v. Johnson, 10 Ohio C. C. (N. S.) 467. In

after negligently failed to take steps to

action for negligence, refusal to give in-

prevent a collision, defendant was liable,

struction on contributor negligence is not

was not inconsistent with instruction

framed on theory that plaintiff could re-

touchin v. Metropolitan St. R. Co., 127 Mo.

cover if he was using ordinary care and if

moprman saw or should have seen him on

73. Evidence held to call for specific In-

track and thereafter negligently failed to

function as to contributor negligence,

use proper appliances to prevent a collision.

grouping facts shown. Northern Texas

Frendeville v. St. Louis Transit Co. \[Mo.

Trac. Co. V. Nelson \[Tex. Civ. App.\] 20 Tex.

App.\] 107 SWP 458. Instruction that if jury

round owners of coach and street railway

no evidence of contributory negligence, it

company were jointly negligent and were

was not error to refuse to instruct on that

also separately negligent, and that joint

subject. Indianapolis Union R. Co. v. Wad-

and concurrent negligence brought about

action for injuries to minor struck by a street

accident and injury, plaintiff could recover,

was objectionable for failure to define what

car remains at unlawful rate of speed,

would authorize a finding of negligence

minor admitted that the knew danger and

either joint or separate. Ramsey v. Cedar

took his chances in endeavoring to cross in

Rapids, etc., R. Co. \[Iowa\] 112 NWP 78.3.

front of car, a requested instruction calling

71. Instruction is not erroneous which

permits jury to render a verdict for plaintiff

in determining whether he knew danger

it is found that his injuries were

sustained on account of negligence of defen-

refused, there being no evidence that he

fendant "as set forth and claimed in his

knew that car was belung run at an unlawful

declaration or some count thereof," even if

ful rate of speed. Brown v. St. Louis & S.

certain counts of declaration have been dis-

missed from consideration of jury where

Mimelsed of such counts is called to at-

function on question of negligence of

tention of jury by other instructions. Chi-

cago City K. Co. v. Hagenback, 181 Di.

App. 537. Instruction that it was a motor-

man's duty to exercise ordinary care to dis-

disgurced persons on track and to avoid collision

pany is not responsible for injuries caused

ing with such persons was held not

reouse for omitting clause "to use ordinary

dinary use of its car, where there was no

care" before words "to avoid," etc.

Fudu-

cah City R. Co. v. Alexander's Adrur; S1

anything in appearance of car which would

Ky. L. R. 1043, 104 SWP 375. Where plain-

tinf charged that both owner of coach and

tieness, and instructions could have no ap-

street car company were jointly and con-

currently negligent, but averred different

would have been Improper. Cleveland, etc.,

and specific acts of negligence against each,

R. Co. v. Hunter, 10 Ohio C. C, (N. S.) 564.

instruction that "there was no evidence

negligent, and also separately negligent,

ending to show that defendant was guilty

and joint and concurrent negligence caused

of negligence in any of the respects charged

injury, plaintiff could recover, was

in plaintiff's petition in running its car at

neous as against street car company for

the time and place and under the circum-

failure to present specific negligence

stances of this case prior to the time that

the motorman discovered or by use of

or,

to define and limit railroad company's duty

in premises. Ramsey v. Cedar Rapids, etc.,

have become aware, of danger to which

R. Co. \[Iowa\] 112 NWP 78.

?Z. Where several allegations of negil-

gence in a petitere an all predicted upon

a preceding allegation that plaintiff was

injured by a street car while waking over

and along a certain street, it is error weight of the evidence," and must not ignore " or withdraw " issues or evidence, or be misleading." Instructions must be considered as a whole.

ing that she was injured. Fellle v. San

F6. If instruction would admit of construction of submitting issue as to whether $67. Where it was undigputed that R. drove vehicle in which plaintiff's wife was riding when injured, court did not err in assuming as a fact that he was driving vehicle at time of collision causing such injury.

Ft. Worth, etc. R. Co. v. Hawes \[Tex. Civ. App.\] 107 SWV 566. Where fact that fenders were generally used on street cars was treated as a matter of general knowledge, of which court would take judicial notice, and proof thereof was excluded for that reason, court was entitled to assume that $71. In action for in-situ had been proved. Spiking v. Consolidated R. & Power Co. \[Utah\] 93 P 838. Instruction that plaintiff had right to drive down street, if he did so, with his buggy wheels between rails, was not erroneous as assuming as a fact that he did so drive down street. Frankfort & V. Trac, Co. v. Hulette

\[Ky.\] 106 SWV 1193. Instruction that if motorman in charge of car saw, or by keeping a significant watch, would have seen, plaintiff's intestate crossing street, and in a poi-dition of danger, etc., did not assume that curb line of a city street was danger line for child. Cornovski v. St. Louis Transit Co., 207 Mo. 263, 106 SWV 51. Where evidence showed that street was unimproved, that in center was embankment in which tracks were laid, that on one side was a spring used by people to get water, that they walked along embankment until they got opposite to it, when they went down to it, instruction that if there was a pathway across tracks leading to spring, which pathway was used by persons going to and coming from spring, which fact was known to company, it must exercise ordinary care to have cars approaching pathway under control, and to give signals of their approach thereto, etc., was not objectionable as assuming that there was > pathway along or across the tracks, but imposed on the company the duty of exercising care. Louisville R. Co. v. Hoffesand, 31 Ky. L. R. 976, 104 SWV 361.

F5. Question of negligence of defendants' motion having been submitted to jury, they desired further instructions "whether the evidence was clear enough to decide whether this motorman was in fault or not," to which judge replied, "I think there is testimony in case from which you might find defendant guilty of negligence, but that depends on whose evidence you believe." Held that court's charge was not improper as being to find for plaintiff if they believed plaintiff's witnesses, and for defendant if they did not. Harker v. Detroit United R. Co., 150 Mich. 697, 14 Det. Leg. N. 871, 114 NV 657. Where, in action for injuries to a horse and carriage in collision, there was evidence that motorman intention- ally ran car into carriage, it was for jury to determine whether motorman acted within scope of his employment, and charge author-liming recovery of motorman intentionally ran car into carriage was erroneous. Ahrene v. Union R. Co., 108 NYS 590.

10 Cur. Law. SUBMISSION OF CONTROVERSY. 1759

SS 10. \_Statutory crimes.\_See 1 C. L. 2040. The state may enact reasonable police regulations. \[81\] All facts necessary to bring the case within the statute or ordinance must be shown. \[82\]

Street; Strikks; Strikking Out; Strucker Jury, see latest topical index.

SUBMISSION OF CONTROVERSY."

The submission of a controversy differs from an agreed statement of facts filed by parties to an action, the jurisdiction attaching only to the precise facts submitted \*\*

such fact was a matter of common knowl-ducing accident, were properly refused, edge, which objection court sustained, re-since to center attention on such questions questioned instruction that there was no evi- as necessarily decisive of the case would dence that at time of accident tenders were have been misleading. Garfield v. Hart-in general use, and that there was no proof ford, etc., R. Co. \[Conn.\] 67 A 890.

of negligence because car that struck

80. Where court reiterated in different decedent was without a fender. Court

parts of its charge that a street car motor-charged that if jury found that car did not

man after discovering perfl of a person in have a fender they could not find against

close proximity to track should use all defendants on that alone unless they also

means in his power to prevent a collision, found that if the car had a fender the "acac"consistent with the safety of the car and

client" might have been exerted thereby.

the passengers, failure to incorporate

Held that, term "acedent" having been quoted portion in one paragraph of Its

used in instructions and evidence to refer

charge was not prejudicial error. BI Paso

to collision itself, instruction given in ef-

Elec. R. Co., v. Kelly 'Tex. City. App.'109

fect told jury that fender was not in case as

SW 415. Where court repeatedly charged

effectually as if word "collision" had been

that decedent was required to use all his

used. Spiking v. Consolidated R. & P. Co.

senses to avoid collision with a street car

\[Utah\] 93 P 83.

by which he was killed, and that, unless he

79. Heid not error to refuse, as Ihable to

did so, plaintiffs could not recover, instructu-

mislead, instruction that burden of estab-

tion was not objectionable in use of ex-

Ihshing by a preponderance of proof state of

presasion "observing the car," instead of re-

facts alleged in decardation was on plaintiff,

during decedent to have "locked for car"

"and, if the testimony in this case should

be enough as to leave the minds of the jury

v. Consolidated R. & P. Co. \[Utah\] 93 P 83.

in a state of even balance as to the truth

81. Act April 3, 1903 (Acta 28th Leg.

of the allegations in the declaration, the

p. 178), providing that each street car shall

verdict must be for defendant." United Rail:

be equipped during winter months with a

ways & Elec. Co. v. Cloman \[M.G.\] 69 A 379.

ventive to protect motorman, is within

Where there was no evidence that brakes

price power of state, and is valid. Beau-

were defective or out of repair, and defend

mont Trac. Co. v. State \[Tex. Civ. App.\]

ants' evidence showed that they were in per-

19 Tex. Ct. Rep. 513, 103 SW 238. Code

fect condition, it was error to submit that

189, $ 5368, making it offense for conduct-

question to the jury and was calculated to

ors to run trains without sufficient good

confuse and mislead them. Lexington R.

Co. v. Van Ladena's Adm?r \[Ky.J 107 SW740.

conductors of electric motor cars on a street

Where plaintiff claimed that collision was

railway extending between cities 12 or 13

caused by negligence of a street railway

implies apart, time in making a run being

company in falling to keep a proper look-

from 30 to 45 minutes. Dean v. State \[Ala.\]

out, in using too bright a search light, by

45 s 651.

placing trolley pole too near traveled high-

82. Under a city ordinance making it

way, and by running at a dangerous and

duty of every street railway company to

unlawful rate of speed, it was proper to

cause a red light to be placed at crossing

charge in relation to rate of speed that, if

and intersection of other street railways at

jury found that car when approaching point

all curves of their own roads, in such a

where trolley pole was set was running at

manners as to give warning to moterm

rate claimed by plaintiff, it would be for

and citizens, it was necessary in order to

them to determine whether its speed was

support a conviction for violation of ordi-

or was not excessive; that they were judges

nance to show that the crossing and inter-

of what was proper speed under all cir-

scotn at which defendant was alleged to

cumstances; that it was for them to decide

have failed to place a light was made by

whether actual speed was material in its

lines of separate companies. People v. De-

bearing on the proof of negligence; and

troit United R. Co. \[Mich.\] 15 Det. Leg. N.

that plaintiff was bound to establish 1760 SUBROGATION SS 1. 10 Cur. Law. and being confined wholly to questions of law,\[85\] arising from the agreed facts \[86\] which must be complete \[87\] and clearly stated.\[88\] It must be signed by the parties or by an authorized person whose authority must be shown.\[89\] The contract to submit an agreed case may be cancelled by suit in equity for fraud, duress, or mutual mistake.\[90\]

SUBROGATION.

\*\*8 1. Definition and Noture, 1760. 1761. 1760. 1761. 1760. 1761. 1760. 1761. 1760. 1761. 1760. 1761. 1760. 1761. 1760. 1761. 1761. 1760. 1761. 1761. 1761. 1760. 1761. 1761. 1761. 1761. 1761. 1761. 1760. 1761. 1761.

- 10 Cur. Law. SUBROGATION SS 4. 1761
- purchaser in the position of the mortgage,1 and a chattel mortgage may be kept alive after payment to secure another creditor of the mortgagor.2 The purehaser of mortgaged lands who pays off the prior incumbrance is entitled to subrogation 3 though not against a junior mortgage.4 Also a surety by paying the debt of the principal debtor is subrogated to the creditor 5 and entitled to all rights, liens, or securities of the creditor 6 not only against the principal, but third parties,7 but payment of a note by a surety does not entitle the surety to be subrogated to the payce's rights.8 An agent, who by mismanagement is compelled to reimbuise his principal, is entitled to subrogation against the one primarily causing the loss,9 even though his acts are in the nature of tort 10 unless his conduct is such that he is not entitled to the consideration of equity.11 The entire debt must be fully satisfied 12 though not by a stranger,12 and the right may be destroyed.14 Also the right must be assumed with the incidental burdens incurred 15 and does not extend to all property.16 A trust estate can be made liable by subrogation to the trustec's rights, only, when the trustee is insolvent as established by exhaustion of legal remedies, when the estate is indebted to him, and when advancements inured to the benefit of the estate.17

SS 3. \_How forfeited or lost.\_Soo 8.C. L. 2048--The right of subrogation may be lost by participating in the trial of an action in which it might have been asserted and failing to do so.18

SS 4. \_Remedies and procedure.\_See 8 C. L. 2048--If the right of subrogation is questioned, the remedy is in equity 19 and may be barred by laches or the statute of limitations 20 but when coneeded, the right of realizing the value of the subject-matter is triable by a court of law.21

SSURGEHING PEADINGS, see latest topical index.

L. Cavanaugh v. Sanderson \[Mich.\] 15

L. Leg. N. 190, 115 NV 955.

2. Not applicable when mortgagor holding one-third interest seeks to defraud co-owner. Longley v. Sperry \[N. J. Eq. \] 66 A

1. See Chattel Mortgages, T. C. L. 634.

1. Moring v. Privott \[N. C.\] 60 SE 509.

1. Depends on character of acts. Brinckprineland debtor. Hughes v. Howell \[Ala.\] 12. McClure's Exr v. King, 31 Ky. L. R. 161. Capitol Nat. Bk. v. Holmes \[Colo.\] 1085, 104 SW 711. Equity of surety or guar-95 P $14. No notice of vendor's client. Advance v. Elder, 84 Ark. 277, 105 SWP 260. Evidence sufficient to show subrogation to vendor's rights where mortgage paid balance of pur- chase money. Pearson v. Vance \[Ark.\] 107

1. Ragan v. Standard Scale Co., 128 Ga. 544, 58 SE 31.

1. Stehle v. United Surety Co. \[Md.\] 68

A 606. Surety completing abandoned work of contractor is entitled to balance due. Stehle v. United Surety Co. \[Md.\] 68 A

600: American Nat. Bk. v. Fidelity & Deposit Co., 129 Ga. 126, 58 SE 867. Share of dividends received in bankruptcy. Schmitt v. Greenberg, 109 NYS 881.

7. Surety having paid sum appropriated by an auditor may recover from bank which was primarily liability. National Surety Co. v. State Sav. Bk. \[C. C. A.\] 156 F 21. Surety paying debt of principal is subrogated to rights of creditor against cosureties as well as debtor. Construing Code $ 1432 2549, Pond v. Dougherty \[Cal. App.\] 92 P

1.

1763 SUNDAY SS 1. 10 Cur. Law.

SUBSCRIPTIONS.

**8 1. Nature, Requirements, and Suffleleev 8 3. Enforement, Remedles, and Procedure, ns a Contract, 1762.**

**8 2. Rights and Labilities Arising From**

\*\*8 3. _Nature, requirements, and sufficiency as a contract._ See 8 C. L. 2044.--A mutual subscription for a common object is valid and collectible.\[23\] A single promise not made to one performing or expected to perform anything in reliance thereupon is not enforcible as a subscription.\[23\]

**8 2. _Rights and liabilities arising from subscriptions._\[88 e C. L. 2044**

\*\*8 3. _Enforcement, remedies, and procedure._ See 8 C. L. 2045.--If by the agreement a person named is to receive and disburse the money subscribed, he alone may sue to collect subscriptions.\[24\] Where the full sum subscribed is paid by part of the subscribers, no action can be maintained against the others.\[25\]

SUBSCRIPTIONS OF ATRONETS; Substitution or Parities; Subwat; Succession, see latest topical index.

**SUICIDE.\[24\]**

The presumption of law is against suicide.\[27\]

Summary Proceedings; Summarst Posseutions; Summons, see latest topical index.

SUNDAY.

**8 1. Sunday as Dies Non Juridicus, 1762.**

\*\*8 2. _Vilation of Sunday Laws as Defense to_

**8 3. Sunday Laws and Prosceutions for Their**

\*\*8 2. _Vilation of Sunday Laws as Defense to_

**Vilation, 1763.**

\*\*8 1. \_Sunday as dies non juridicus.\_See 8 C. L. 2045.--An award made, published, and delivered upon Monday is not invalid for having been discussed and practically agreed upon on Sunday.\[28\] In the absence of statutory prohibition a ministerial act may be lawfully performed on Sunday.\[29\] A verdict may be rendered in open court on Sunday.\[30\]

\*\*8 2. _Vilation of Sunday laws as defense to actions._\[88 e C. L. 2045.--A contract for labor in violation of a Sunday law is void to the extent that it contemplates such violation,\[31\] and one may not recover for services performed on that day contrary to statute.\[32\] The statutory exception in favor of works of necessity and charity cannot cover acts of mere convenience.\[88\] The court will not aid a party to recover on a 10 Cur. Law. SUNDAY SS 3. 1763

Sunday transaction "4 but it will not treat as a nullity that which was done on Sunday in performance of a valid contract." A negotiable instrument, void because delivered on Sunday, is valid in the hands of a bona fide purchaser for value without notice." Affirmance on a subsequent week day validates a Sunday contract."

SS 3. _Sunday laws and prosecutions for their violation._" Soe 8 C. L. 2045--At the common law all acts not unlawful per se may be lawfully performed on Sunday," but statutes and ordinances restricting various occupations upon that day have been generally adopted." The primary purpose of such laws is not the protection of servants and the prohibition of servile labor." The New York statute prohibits labor upon Sunday except works of necessity and charity, and specifically forbids certain acts declared to be interruptions of the repose and religious liberty of the community." The validity of this law is maintained "2 but upon its construction the courts are at variance. Public base ball games are held illegal irrespective of whether admission is charged "4 but especially where there is charge for admission "4 or a voluntary contribution."5 To what extent equity will enjoin the police from interference under this statute with various Sunday amusements is not settled," and whether orderly exhibitions and amusements not specifically forbidden come within the prohibitions of

34. Payee of Sunday delivered check has no recourse to the maker on failure of bank to pay. Gordon v. Levine \[Mass.\] 83 NE 861. 35. Payment is valid as a payment. Gordon v. Levine \[Mass.\] 83 NE 861. 36. Check. Gordon v. Levine \[Mass.\] 83 NE 861. 37. J. B. Bostic Co. v. Eggleston \[Ind. T.\] 104 SV 566. Telegram filed on Sunday and delivered on week day rendered company listable for delay in transmission. Hoyt v. Western Union Tel. Co. \[Ark.\] 108 SW 1056. 377. Rotation of Sunday contract. The invalidity of Sunday contracts is based on statute, since at common law no contract was void because made on Sunday. Drury v. Defontain, I 7aint. 131. In the interpretation of such statutes great conflict occurs. Some courts hold that statutes forbidding "labor" or "common labor" on Sunday day do not include the mere execution of a contract, because this is more properly classified as "business," and so is valid. Richmond v. Moore, 107 Ill. 42, 47 Am. Rep. 445; Birks v. French, 21 Kan. 238; Roberts v. Barnes, 127 Mo. 405, 30 SV 113, 48 Am. St. Rep. 440; Horacek v. Keebler, 5 Feb. 385; Bloom v. Richards, 2 Ohio St. 387, 15 Am. Dec. 567. Other courts support the decision in Bostic Co. v. Eggleston \[Ind. T.\] 104 SW 566. 377. holding such contracts invalid. Reynolds v. Stevenson, 4 Ind. 619; Tucker v. West, 29 Ark. 386. In fact the Bostic case follows the Arkansas holding because the statute here construed is taken from a statute of Arkansas. As to the question of ratification, it is the general rule that a contract which is void cannot be ratified or affirmed. But many courts, perhaps a majority hold that a Sunday contract is not void in the sense that it cannot be ratified because such a contract, unlike most contracts forbidden by stating is not in itself illegal, but his remedered so only because it is made at an improper time; therefore Sunday contracts are declared to be an exception to the general rule. Bostic Co. v. Eggleston \[Ind. T.\] 104 SW 566; Russell v. Murdock, 79 Iowa, 101, 44

SW 237, 18 Am. St. Rep. 348; Cook v. Forker, 193 Pa. 461, 44 A 560, 74 Am. St. Rep. 699; Adams v. Gay, 19 Vt. 358.--From 61. 38. Eden Musee American Co. v. Bingham, 108 NYS 200. 39. Act of March 12, 1907, declaring Sun- day a day of rest and forbidding specific employments on that day, is constitutional. State v. Dolan, 13 Idaho, 693, 92 P 995. It is competent for the legislature to regulate Sunday observance. Pen. Code, & 263.-277. Moore v. Owen, 109 NYS 585. Sun-day is a civil institution of the state and the legislature has power to regulate its observance. Greater New York Charter, Laws 1897, 522, 6, 378, 1541. In The Harris-merstein, 108 NYS 197. Gen. St. 1902, & 1369, prohibits secular labor on Sunday except works of necessity and mercy. 'State v. Ryan Conn.'\] 69 A 626. Rev. St. 1889, 58 2243, 2244 (Ann. St. 1906, pp. 1421, 1422), forbidding sales of merchandise, etc., on stunday, are constitutional. State v. Campbell, 206 Mo. 579, 105 SW 637. 40. Gen. St. 1902, & 1369. State v. Ryan Conn.'\] 69 A. 556. 41. Pen. Code, & 259-277. United Yaude-ville Co. v the statute when held within theatres or halls is a mooted question.47 It seems to be conceded that out door shows and exhibitions of any kind are illegal 48 as are acts which come within the prohibitions of the statute irrespective of how quietly they may be carried on.49 The Greater New York charter forbidding certain specific annusements "and any other entertainment of the stage" on Sunday applies to every performance in a place of public amusement and cannot be construed under the rule ejusdem generis.50 It is within the discretion of the legislature to designate the occupations to be included within the prohibition of Sunday labor and the courts will not interfere so long as no constitutional provision is violated.51 Sunday laws usually except works of necessity and charity from their prohibitions.52 The operation of railway trains is not per se a work of necessity53 though it may become so.54 The operation of railway trains fall within a statute forbidding Sunday labor 56 but is sometimes specifically forbidden. Under the Georgia statute relative to the running of trains on Sunday, a train running on a schedule which does not require Sunday operation may, if unavoidably delayed, complete its scheduled run on Sunday,56 good faith and honest endeavor to avoid delay rather than "ordinary care" being required,57 and the operation of the entire system being considered in determining the necessity of delay.56 The burden is on the carrier to show that the delay was unavoidable,58 not only as regards the train in question but as regards the cause of its delay.50 Where the law excepts such work as is required in the maintenance and operation of railways, such exception refers to work which is necessary to be done on Sunday,51 and that certain work is required by law does not authorize it to be done on Sunday if it can be done on another day.42 Barbering also is held not to be'a work of necessity 63 and in some states is specifically prohibited.64 Certain occupations are

Flynn, 108 NYS 208; Keith & Proctor

Annusement Co. v. Bingham, 108 NYS 205.

47. Held forbidden: Moving picture show.

53,54. Barefield v. State \[Ark.\] 107 SVW

United Vandeville Co. v. Zeller, 108 NYS 789.

33.

Moving picture show in connection with

55. Kirby's Dig. $ 2030 prohibits Sunday

confectionery store. Economopoulos v.

Iabor generally. It is within the power of

Eingham, 109 NYS 728. Moving picture

show, or any performance in theater. Moore

107 SVW 598.

theater. In re Hammerstein, 108 NYS 197.

56. Brand v. State \[Ga. App.\] 60 SE 389.

Held not forbidden Museum with no music or stage performance. Eden Musee

57. Instruction held erroneous. Brand v.

state \[Ga. App.\] 60 SE 339.

American Co. v. Bingham, 108 NYS 200.

38. Moving picture show accompanied by lecure and music. Keith & Proctor Annusement Co. v. Bingham, 108 NYS 205. Auto-

01. United Vandeville Co. v. Zeller, 108 NYS 789.

01. Laws 1897, p. 522, c. 378, $ 1481. In re

01. State v. Dolan, 13 Idaho, 638, 92 P 985.

01. Selling tickets to a moving picture

show not an act of necessity or mercy

der Gen. St 1302, $ 1369. State v. Ryan

\[Conn.\] 69 A 586. The work of keeping up

power for the supply of public light and water is a work of necessity. Turner v.

State \[Ark.\] 107 SVW 385. Cleaning bolters

used in part for the supply of public light

53.

- 10 Cur. Law. SUPPLEMENTARY PROceedings SS 1. 1765
- sometimes forbidden during certain hours.\[45\] Selling fruit from a fruit stand on Sunday is in violation of a law forbidding any store or shop to keep open for the sale of merchandise on that day,\[46\] but the sale of lemons is held to come within the exception allowing drugs and immediate necessities to be exposed and sold.\[47\] A club may not be incorporated for the purpose of violating the Sunday laws,\[48\] and under a law forbidding the pursuit of one's ordinary calling on Sunday, a barber may not go to a club room and shave its members,\[49\] it being no defense that compensation was voluntary and not compulsory.\[50\] Employe as well as employer is liable to the penalty for breach of a Sunday law prohibiting labor or the employment of labor,\[61\] and each actor who performs on Sunday contrary to law is liable to punishment.\[72\] Where the statute imposes a penalty for each offense of employing labor on Sunday, the state may bring action upon several simultaneous offenses in one suit and is not required to elect a separate cause of action.\[73\] In Virginia the penalty for breach of the Sunday law is too trifling to bring the offense within criminal jurisdiction.\[74\] An affidavit charging the performance of common labor on Sunday is defective if it does not contain the averment that the work complained of was not work of necessity or charity, or if the performing of common labor on Sunday and the having of a p'ace open for the transaction of business on Sunday is charged as one offense.\[75\] An affidavit charging the accused with violation of a Sunday closing ordinance is insufficient unless it charges knowledge and criminal intent.\[76\]
- SUPPLEMENTARY PROceedings.
- 1. \*\*Nature, occasion and propriety, 1765.
     judges as separate judicial officers.\*0 In Washington court commissioners are empowered to hear the proceedings.\*1 The court has only such jurisdiction as is conferred by the statute.\*2 The remedies provided are concurrent with those in judgment creditors' actions,\*3 and the right to examine is not waived by the creditor's action.\*4 Also, the remedy will pass to an assignee of a judgment.\*85

SS 2. \_Proceedings necessary on which to base remedy.\_See * C. L. 2047--The proceedings may be instituted after return of an execution or after the issuing and before the return of an execution.*8 In New York the proceeding must be based on a judgment for not less than $25,*7 and this refers to the total judgment;** also, the proceedings are not authorized when based upon a judgment against a domestic corporation \*9 or against a foreign corporation doing business or having an agency in the state,\*9 except in proceedings brought by or against the people.\*11

SS 3. \_Application for examination of defendant and debtors. A. Affidavit and opposition to same.\_See * C. L. 2047--The proceedings may be maintained though the true Christian name of the judgment debtor is unknown,\*92 but when the parties agree on the true name, the proceedings will be deemed amended, and subsequently the true name will be used.\*93 An averment that the debtor resided in the county to which execution was issued at time of issue is necessary.\*94

(SS 3) \_B. Order and citation process on warrant.\_See * C. L. 2047--Facts requisite to show jurisdiction must be set forth \*8 and the order issued by the judge before whom the proceeding was commenced.\*95 An order entitled as in an action should be vacated,\*97 though the authorities are not entirely in harmony on this point,\*98 The debtor cannot object to a second order upon the ground that a prior proceeding is pending.*99 The order for examination may be set aside on motion,1 but where the motion raises questions of law and fact, the parties should be left to their remedy by action.2 If entry of an order dismissing the proceedings was required, it should be made by the prevailing party.* The order to apply property is an order affecting a substantial right and is appealable.\*9

Footnote 27: https://www.

10 Cur. Law. SUPPLEMENTARY PROTEEDINGS SS 5C. 1767

SS 4. _Procedure at and after examination._ See $ C. L. 2049.--The court has no power to order a debtor to apply property in payment of the judgment when it appears the title is in a third party or not under the debtor's personal control,\[5\] but the courts are not in harmony as to the remedy in such cases.\[8\] New York holds that the judgment creditor should be remitted to an action through the medium of a receiver.\[7\] An order issued to the debtor of a judgment debtor is in all respects of the same character as an order to a garnishee, and operates only as an attachment, and is in no sense a judgment. It follows that, in an action to enforce payment under such an order, a mere recital of the order made with a prayer for judgment is insufficient, but it is necessary to further aver that at the time the order was made the defendant was actually indebted to the judgment debtor.\[8\] It is too late to move to vacate the order for examination on account of irregularity at the end of the examination,\[9\] and a judgment requiring the debtor to pay the costs into court is erroneous.\[10\]

SS 5. _Relief against defendant. A. Order for payment or delivery._ See $ C. L. 2048

In New York the earnings of a judgment debtor are exempt from execution and supplementary proceedings,\[11\] but it must appear "that those earnings are necessary for the use of a family wholly or partly supported" by the debtor.\[12\] The earnings in a business are the net profits,\[13\] and the exemption should be liberally construed in favor of the judgment debtor.\[14\]

(SS 5) _B. Receivership or other equitable relief._ See $ C. L. 2049.--A receiver appointed in supplementary proceedings simply takes possession for the purpose of satisfying the judgment.\[15\] He does not acquire any title to the real property of a judgment debtor,\[16\] nor any power to sell or transfer such real property,\[17\] and his interest is terminated by the sale under execution and delivery of a deed to the purchaser\[18\] or by the expiration of the ten years during which the judgment was a lien on the premises.\[19\]

(SS 5) _C. Contempt._ See $ C. L. 2049.--Punishment for contempt in failing to appear for examination must be based on sufficient evidence,\[20\] and the same rule applies where moneys are disbursed subsequent to a restraining order.\[21\] The code of New York provides that where such failure was calculated to or actually did impair the

\[\[Ok1\] 92 P 160. The provision for an appeal in SS 6680-5 applies to the proceedings that are provided for in that section, and not to proceedings under SS 6680-4, relating to the order for payment. Morrow v. Blue, $ Ohio N. P. (N. S.) 17. Subrogation of surety paramount to lien of bank secured by assign ment from defuulting contract. Henning-sen v. United States Fidelity & Guaranty Co., 2$ S. Ct. 389.

S. Kyland v. Arkansas City Milling Co. \[\[Ok1\] 92 P 160, collating decisions constructing similar statutes of various states. Substantial dispute as to ownership. Ghersin v. Thuor, $6 Misc. 465, 107 NYS 195.

G. Kyland v. Arkansas City Milling Co. \[\[Ok1\] 92 P 160.

T. Ghersin v. Thuor, $6 Misc. 465, 107 NYS 195.

S. Morrow v. Blue, $ Ohio N. P. (N. S.) 17.

9. Irregularity in entry of judgment. Gerhard Menne Chemical Co. v. Dressner, 53 Misc. 370, 104 NYS 749.

1. Ballinger's Ann. Codes & St. $ 5327. Sheriff pays costs when directed out of money received. Howard v. Hanson \[Wash.\]

95 P 265.

II. Code Clv. Proc. $ 2463. Earnings rendered within 60 days preceding. Twelfth pay another to become surety or to lend one his credit is lawful \[35\] and based on a sufficient consideration.\[36\]

**SS 3.**_The surety's liability_, See s C. L. 2051.--While it is commonly said that the undertaking of a surety is to be strictly construed in his favor,\[37\] this means no more than that it is limited to the precise obligation undertaken \[38\] and the amount therein specified,\[39\] and in determining the meaning of the contract, it is to be reasonably construed \[40\] and the rule of strictness does not apply to matters pertaining rather to the remedy than the extent of liability.\[41\] A surety cannot question the validity of a bond voluntarily entered into \[42\] nor deny recitals therein, after the principal has enjoyed its benefits and a breach has occurred.\[48\] In order to recover against a surety, default by the principal within the terms of the contract must be shown.\[44\] In some states a surety is entitled to have the property of the principal first applied to the discharge of the obligation before recourse can be had against property pledged,\[48\] but payments to a creditor by a principal in the course of current business

- 35, 36. Givens v. Gridley \[Ky.\] 106 SW
- 1192.
- 37. Phoenix Mfg. Co. v. Bogardus, 231 III.
- 528, 83 NE 284; Fancher v. Keenan, 5 Ohio
- N. P. (N. S.) 614. Surety entitled to benefit of doubt, if any, as to liability. American Surety Co. v. Keen \[Tex. Civ. App.\] 107 SW
- 938. Judgment in the aggregate for compensatory and punitive damages in a previous action held insufficient to establish a cause of action against the sureties on attachment bond. Johnston v. Sexton \[C, C. A.\] 159 F 70.
- **Building contracts:** Sureties liable for rental value of building during delay, having contracted for completion within a certain time. Tally v. Gansah, 151 Ca1, 418, 90 P
- 1049. Sureties liable for reasonable attorneys' fees to owner of building under a bond providing that building should be delivered to owner free from any lien or claim when owner had to defend a lien claim suit. Id. Where a bulling contract provided that the architect should certify any expense or damage incurred by the owner because of the contractor's failure to perform, the contractor abandoned the work and the architect was discharged, a certificate of damages signed by a new architect, the old one's whereabouts being unknown, was sufficient, Id. Where bond was executed with reference to contract, plans and specifications and contract relieved owner of building from responsibility for injuries to a tenant, sureties were held liable for injuries resulting to such tenant through contractor's negligence. McArthur v. McGIIvray, I 6A App. 645, 67 SE 1058.
- **39.** The amount thereof should be limited to the exact terms of the contract. Prescott Nat. Bk. v. Head \[Ariz.\] 90 P 328. The amount of damages caused by violation of law held immaterial, amount of bond being fixed. City of Paducah v. Jones, 31 Ky. L. R. 1203, 104 SW 971. Surety liable for exact amount even though bond was without authority under statute reduced in amount. Moore v. Hanscom \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 707, 103 SW 665. Recovery of amount larger than contract covered held error. Bernhardt v. Dutton \[N. C.\] 59 SE 651. The rejection, in compliance with statute, of an account of an Indian agent which contains will not on the application of a surety be applied to the surety debt.46 A surety has a right to contract that his liability shall be subject to reasonable conditions 47 and that he become a surety for other sureties, or limit the extent of his liability with respect to other sureties,48 but to constitute an apparent maker of a note a cosurety with another signing as surety, there must be a mutual understanding between the parties to that effect.49 No understanding between the sureties on different fidelity bonds will limit the liability of sureties to the public.50 Where the effect of the undertaking of a surety is that he shall be liable for the result of a suit against his principal, he is conclusively bound by the judgment in such suit even though he is not a party to and have no notice of it.51 A surety on a bond conditioned that the principal shall faithfully discharge the duties of his office, but not containing any contract of indemnity, is not conclusively bound by a settlement made by the principal under a statute,52 but the sureties on a bond given by the defendant to secure the observance of an order are not entitled, on certiorari, to question the regularity of a judgment upon which the order is based.53 A judgment against the principal is prima facie evidence against the surety who had notice of the pending of the action against the principal.54

Footnote 46: The surety's defense. A. Legal defenses to surety's liability.See SS 3.

of one of several sureties from a joint or several obligation, with an express reservation as to the other obligors, does not release the other sureties or the principal,\[59\] nor does the discharge of the principal in bankruptcy relieve the surety from liability for the balance due.\[60\]

(SS 4) _C. Defenses based on change of contract or increase of the risk._ See 8 C. L. Loss--Any material change in the terms of the contract discharges the surety \[61\] unless he consents to such alterations \[62\] and it makes no difference whether the change is for the surety's benefit or not,\[63\] but the change must be in the subject-matter of the contract and the rule does not extend to independent contracts entered into between the same parties pertaining to additional subject-matter.\[64\] In building contracts mere immaterial variation and insubstantial deviation which do not in any manner prejudice the right or encroach upon the liability of the surety are insufficient to work a discharge.\[65\] Changes made wholly at the obligee's expense, when they do not add to the surety's liability, do not discharge the surety from liability.\[66\] Ordinarily any

59. Lane v. Moon \[Tex. Civ. App. J 19 Tex.\] Det. Leg. N. $21, 114 NWP 669. Surety held to

Ct. Rep. 526, 103 SW 211.

60. Bankr. Act July 1, 1898, c. 541, 1 16, 30

advancement and hence he could not repudi-

Stat. 560 (U. S. Comp. St. 1901, p. 3429).

set 827. Surety consented to change but not

Schmidt v. Greenberg, 108 NYS 881,

to interlineation, not discharged. Martin v.

F $50. Surety held entitled to demand per-

vorrance of the contract with respect to provisions relating to partial payment as the

partures from contract having assented to work progresses. People v. Banhabel \[Mich.\] then. Kneisley Lumber Co. v. Edward B.

14 Det. Leg. N. $21, 114 NWP 669. No time

Stoddard Co. \[Mo. App.\] 105 SW 840. Sureties

being set for payment except that they

should be made only on estimates made

tending time for collecting debt where stipulation each thirty days, a surety will not be

discharged because one estimate was paid a

berg Co. v. Porter \[Tow.\] 114 NWP 890.

week before usual period. Id. Change in the

63. Provision in building contract that no contract by substitution of a stone wall for

a wooden grider, a change as to the character of a skylight, etc., without surety's consented, discharged sureties on contract'e

Loun & Trust Co. \[Tex.\] 19 Tex. Ct. Rep. 732,

bond, since by the wording of the contract

such changes were not authorized. Reissaus

v. Whites \[Mo. App.\] 106 SW 603. An agreement to postpone payment for a short time

55. For an additional sum a heating com

held not to be such a material change as

would discharge surety where bond provided

that it should cover any further agreement

not materially different in terms. Powell v.

68. Change in contract of substituting in-

Fowler \[Ark.\] 108 SV 827. The acceptance

by creditor of new note in which the surety's

note is pledged as collateral does not re-

lease the surety. Skinner v. Sullivan, 127 Ill,

App. 657. Giving a note by a contractor for

gvernment in the amount of an account re-

from liability where the contractor fraudo-

dered for materials furnished does not re-

lease the surety on his bond. Bond pursuant

v virtue of a conspiracy between it and coun

to Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2533). Action on bond was

amount of materials but not in excess of ma-

based on the account, and not on note. United

States v. Axman, 153 RY 892. Instruction of

Failure of the obligee on a bond, conditioned

court as to release of surety by change of

contract held proper. Powell v. Fowler \[Ark.\]

forming the contract and paying material-

108 SV 827. Surety held to be discharged by

them, to retain the stipulated per cent of the

change in contract although he received

compensation for signing bond. Lonergan v.

son not such an alteration of the con

San Antonio Loan & Trust Co. \[Tex.\] 19 Tex. Ct. Rep. 732, 104 SW 1061.

62. A building contractor gave a bond con-

ditioned on his paying for the material and

laber entering into the work. On

threatening to discontinue the work, a new arrange-

ment for its completion was made, and the

contractor and sureties joined in a letter re-

difense that the contract was binding. Sureties

estopped. People v. Banhabel \[Mich.\] 14

10 Cur. Law. \[Stretyshlip $4C.\] 1771

of one of several sureties from a joint or several obligation, with an express reservation as to the other obligors, does not release the other sureties or the principal,\[59\] nor

does the discharge of the principal in bank act of the creditor which injures the surety or increases his risk or exposes him to greater liability will discharge him," but some courts hold that when the contract of suretyship is specific, injury to the surety is not the test of his release." The rehunciation of a surety's defense of unauthorized change in contract rests on the doctrine of waiver, and the elements of knowledge and intent are essential."

(SS 4) _D. Defense arising out of forbearance or suspension of liability of principal_, See & C. L. 2005--Extending time for payment by the creditor with knowledge of the existence of the suretyship discharges the sureties," but the extension must be based upon a valuable consideration \[71\] and for a definite time." Generally, leniency extended to the principal debtor without the surety's consent releases the surety."

(SS 4) _E. Defenses based on impairment of surety's secondary remedies against principal or collateral securities_. See & C. L. 2005--The release by a creditor of security to which a surety has a right to resort upon paying the debt releases the surety to the extent that he is deprived of indemnity thereby." More failure to foreclose a mortgage securing a debt in accordance with the surety's demand will not relieve the surety where, with full knowledge of such failure, the surety continues for years to join in the renewal of notes." A surety cannot complain of the failure to give him notice of his principal's default where no damage resulted from the failure to give such notice " or where he had full knowledge of the fact."

(SS 4) _F. Defenses based on fraud or concealment by creditor of material facts_. See & C. L. 2004--A surety who signs on representation that the signature of the prin 10 Cur. Law. SURETYSHIP SS 5. 1773

cipal 78 or of another surety 78 is to be procured cannot be held unless such signature is obtained, but neither such representation 80 or any other misrepresentation will avail unless brought home to the obligee. 81 The mere fact that a creditor does not voluntarily and without solicitation announce to a proposed surety the insolvency of the principal does not relieve the surety. 82

(SS 4) G. Other defenses. See 8 C. L. 2050.--Mere supineness and delay in pursuing the principal, unless the inaction be in disregard of an express request of the surety or there be some circumstance which makes it the imperative duty of the creditor to diligently seek payment, will not release the surety 83 but where a creditor has the means of satisfaction in his hands but suffers it to pass into the hands of the principal debtor, the surety is discharged.84 A person bound as surety in a written instrument for the payment of money to avail himself of the defense of having given notice to sue under statute must show a strict compliance with such statute. 85 That the creditor, who presented his claim in bankruptcy, did not insist that individual and firm assets be separated and claims assigned accordingly is no defense to a retired partner in the absence of a showing that the creditor lost anything thereby.86 Where one executed a note as surety under an agreement that the maker would execute a mortgage, an assignment of which was to be accepted in discharge of the surety's obligation, and such mortgage was executed and assigned, it became collateral security and the surety was released.87 It is no defense that imprudent payments have been made, if made in strict accordance with the contract.88 Solvency of an administrator at the time he is also appointed guardian will not relieve sureties on the administrator's bond for failure to turn over funds to himself as guardian.89 The maker of a note in a suit by the assignee may set off a liability against the maker as surety for the payee on the note in suit.89

SS 5. \_Rights of surety against principal and cosurety.\_See 8 C. L. 2057.--Upon payment of the full amount of the liability of the principal, a surety is subrogated to creditor's right against the principal surety 91 and the cosureties for their proportional

78, Obligee could not show that he had no knowledge where contract provided for an- and- is a signature. Crawford v. Owens \[S. C.\]

Moorman v. Voss, 177 Ohio St. 270, 83 NE 76.

60 SE 236.

79, Bank of Benson v. Jones \[N. C.\] 61 SE 87. Hunter v. Porter, 133 Iowa, 391, 109 193.

80, Johnson County v. Chamberlain Bank-

88, Payments made strictly in accordance with contract cannot be taken advantage of

81, County judge made misrepresentation

by a surety on the ground that the estimates to surety company that accounts of a certain trustee were correct and that proper securities and funds were in his hands.

United States Fidelity & Guaranty Co. v. Com., 31 Ky. L. R. 1179, 104 SW 1029.

82, Sebbald v. Citizens' Deposit Bk., 31 Ky. L. R. 1244, 105 SW 130.

83, Griesmer v. Thorn, 32 Pa. Super, Ct.

84, Merez failure to follow up a general line of a fieri facias by a levy upon and sale of the property of a principal, even where the principal has, at the time the writ was in the sheriff's hands, sufficient personal property to satisfy a judgment rendered against him, did not release the surety. IJ,

85. _Rights of surety notice_

86, Merez failure to follow up a general line of a feri facias by a levy upon and sale of the property of a principal, even where the principal has, at the time the writ was in the sheriff's hands, sufficient personal property to satisfy a judgment rendered against him, did not release the surety. IJ,

87. _Rights of surety notice_

88, Merez failure to follow up a general line of a feri facias by a levy upon and sale of the property of a principal, even where the principal has, at the time the writ was in the sheriff's hands, sufficient personal property to satisfy a judgment rendered against him, did not release the surety. IJ,

89. _Rights of surety notice_
    1774SURETYSHIP SS 6.10Cur. Law. share of the indebtedness." The right of contribution to a surety secondarily liable attaches immediately upon payment of the charged liability by him and is not affected by a subsequent attempt of the obligee to discharge the surety primarily liable." A surety to be entitled to contribution must give credit to his cosmeties for money received in performing the contract upon which the bond is based." The surety on a promissory note takes all the rights of the payee upon the assignment to him of such note before maturity." A surety who pays a note secured by a mortgage cannot maintain an action against the mortgage for negligently permitting the security to lapse on the ground that it is the duty of the indorsee to preserve and enforce the mortgage." Where a surety's obligation to pay becomes absolute, he may file a bill against the principal debtor to compel an exoneration, although the creditor has not demanded payment from him." He may also file a bill to compel payment of the debt " and the defense that the creditor may, by reason of his laches, lose his right of action against the surety is not available." The discharge of either a principal or a surety on a bond will not deprive another surety, who has subsequently paid the debt of his remedy against the principal for indemnity or the cosurety for contribution." Sureties on different bonds given to secure the performance of the same duty are liable to contribution, even though they become sureties at different times and without knowledge of each other," and when the bonds are in different amounts, the sureties are liable to contribute in proportion to the amounts of the obligations signed by them, respectively." SS 6.\_Security held by surety and rights therein.\_See & C. L. 1995--The surety on the bond of a public contractor, conditioned for the faithful performance of the contract, and the prompt and full payment of laborers and materialmen, has an equity, under the doctrine of subrogation," in the sums due from the government under the contract which is superior to the claim of a bank under an assignment from the contractor to secure the repayment of money loaned." On insolvency of the principal the surety may retain moneys in his hands to the amount of his indebtedness as a fund for his indemnity." SS 7.\_Remedies and procedure.\_See & C. L. 1995--A surety's remedy upon payment of a note is on the implied obligation of the principal to reimburse him," and upon a fraudulent conveyance by the principal, a suit to have such conveyance set aside." A cause of action against a surety accrues simultaneously with that against the principal.

92.Sanders v. Herndon \[Ky.\] 108 SVW 908. Count erred In not giving judgment for court's jurisdiction rests on the fact that plaintiff where plaintiff and defendant were there is a debt due. Hockombe v. Fetter, 70 cosmeties and former had paid judgment N. J. Ze. 300, 67 A 1078. rendered against principal and sureties. Id. 1. Lane v. Moon \[Tex. Civ. App.\] 19 Tex. 98. Day v. McPhee \[Cole.\] 93 87 670. 94. Labbe v. Bernard \[Mass.\] 82 NE 688. So held, although the principal, after beginning work under the contract and before abandoning it, borrowed money of such surety to enable him to carry out the contract, and as security were assigned all claims and demands under it, surety, on failure of contractor, completed building an received balance of contract price but failed to credit cosuettes with amount received. Id. 95.\_Danker v. Jacobs \[Neb.\] 112 NVP 579. 96.\_Surety, on being sued, paid note and now seeks damages against the principal. Roberts v. First Nat. Ek. of Yale, 149 Mich. 507. 14 Det. Leg. N. 507, 112 NVP 119. 97. Craighead v. Swartz \[Pa.\] 67 A 1003. 98. Holcombe v. Fetter, 70 N. J. Eq. 300, 67 A 1078.

10 Cur. Law. SURETYSHIP SS 7.175

pal." Sureties in proper cases may be allowed set-offs.\[10\] In an action on a bond against sureties, their guarantors,\[11\] and in an action on a guardian's bond against his executrix, all the sureties on the successive bonds \[12\] may be joined as parties defendant. By virtue of statutes, suit may be maintained on a guardian's bond against the sureties alone, when the guardian is dead and his estate is unrepresented.\[13\] Suit may be maintained against the principal and surety jointly in any county wherein jurisdiction of the surety may be obtained,\[14\] and where the complaint alleges that one of two cosmeties is absent from the state and without the jurisdiction of the court, it is unnecessary to make such absentee a party defendant in order to recover a personal judgment against the other.\[15\] The petition or complaint in an action against a surety \[16\] or by a surety against the principal \[17\] must show all facts necessary to establish suretyship, payment, delivery, etc. Where one sued as principal has pleaded that he is not a principal but only a surety, it is improper for a court to refuse the surety's amendment offering a good defense.\[18\] Persons used as principals may show by parol that they are mere sureties.\[19\] The consideration that induced sureties on notes to sign may be shown by parol.\[20\]

## 0. McGovern v. Rectanus \[Ky.\] 105 SW 956

In an action against the sureties of a police-man for illegal arrest and assault by him, Indemnity Co. \[Cal. App.\] 93 P 888. A petri-prought more than seven years after the assault, an appeal in a previous action must allege that debt or obligation has not against the policeman, which protracted the litigation past the seven year period of Im-107 SW 756. To charge a surety on account station, will not stop the running of the statute of limitations in favor of the sureties. show that the complainant has paid the bill Iq. Ky. St. 1903, S 2552, not applicable. Id. To hold, surety's action must be brought with time specified by statute or by agree-107. McGarry v.ment. Monroe v. Nattional Survey Co. \[Vasah.\] against a surety must allege that the de-gam and complaint on the surety on March 12th, where the bond provided that no ac-ption should be maintained unless it were brought within six months after Sept. 15th, execution by defendant. San Francisco Sul-f is brought in time. Id. Principal's payment of interest upon surety's request is not pay-103 P 888. A declaration in an action on a ment by surety through the principal as agent so as to toll limitations. Akin v. Van Wirt, 108 NYS 327.

10. Willoughby v. Ball, 18 Okl. 535, 90 P

01. Before a surety, when sued, can set

tract with the one mentioned in bond was off a debt due from the plaint to his prin-107. People v. Car-clpa, he must both plead and prove that

11.1 This principal is insolvent, and that should

- \[8\]**I. Nature and Kinds, and Power to Tax, 1776.** **Municipal Corporations, 1779.** **Construction of Tax Laws, 1780.** \*\*M.

10 Cur. Law. TAXES SS 1. 1777

and conduct of the government; \[24\] and while other exactions, more or less in the nature of taxes, are made by the sovereign power,\[24\] the distinguishing feature of a tax is that it is imposed for the support of the government, that is for revenue, and a general tax is presumed to be for revenue, in the absence of anything to indicate a contrary intent.\[28\] Taxes, in this sense, may be divided into three general classes, to wit, property taxes in general; \[20\] inheritance and transfer taxes;\[27\] and income taxes.\[28\] Within the first of these divisions, the most natural division is according to the objects or persons taxed,\[29\] which includes the particular methods that may be adopted as to particular objects or persons.\[30\]

The power to tax is an attribute of sovereignty, inherent in the legislature, and is limited only by the nature of the government\[31\] and subject only to constitutional limitations,\[32\] such as those relating to the character of laws by which taxes must be imposed,\[33\] purposes of the tax,\[34\] equality and uniformity,\[35\] double taxation,\[36\] obliga-\[. 23. Quaere whether supplement April 20, pt. 2, c. 1, $ 1, art. 4, requires excise taxes 1996, to general tax law 1903, relating to be reasonable, but not proportional. In taxes on property of counties and taxing \[Mas.\] $4 NE 499; districts in other taxing districts, really in \[Mas.\] $4 NE 499; cities for a tax, since it merely requires \[Mas.\] $3 NE 499; cities for a tax, since it merely requires \[Mas.\] $3 NE 499; cities for a tax, since it merely requires \[Mas.

tion of contracts,37 due process of law,38 and equal protection of the laws.38 Absolute uniformity is unattainable and impracticable, and hence a reasonable classifica-

App.l 69 A 239; United New Jersey R. & White v. Lincoln \[Neb.\] 112 NW 269. Laws C. Co. v. Baird \[N. J. Err. & App.l 69 A 472.\] 1898, p. 23, c. 5, $ 66, imposing additional Provision of supplement (P. L. 220) that was on railroads claiming their charex-passenger stations shall be regarded as

emption from state supervision, held void reality outside main stem sustained. United

New Jersey R. & C. Co. v. Parker \[N. J. Err. & App.l 69 A 239; United New Jersey R. & C. Co. v. Baird \[N. J. Err. & App.l 69 A 472.\] 69 A 472.\]

There being no general law for taxation of alternatives in Wiconclic county, Act 1906, p. 1826, c. 194, providing therefor, is not in Wiconclic with Const. art. 3, $ 83. Miller v. Wiconclic County Com'rs \[Mdl.\] 69 A 118.\]

34. Taxing power can be exercised for public purposes only. Sutter County v. Nicolis \[Cal.\] 82 P 872; Hauser v. Miller \[Mont.\] 84 P 197.\]

01. Const. $ 171, 172, 174. Hayes v. Walker \[Ky.\] 107 SW 256. The general purpose of constitutional limitations is to equalize the burden of taxation in proportion to ability to bear the same. Const. Pt. 2, c. 1, $ 1, art. 4. In re Opinion of the Justices \[Mass.\] 84 NE 499. Tax must operate uniformly throughout the state or subdivision thereof imposing the same. Hager v. Walker \[Ky.\] 107 SW 254. Taxes must be uniform throughout taxing district. Schley v. Lee \[Mdl.\] 67 A 252. Pol. Code, $ 4637, relating to clerks' fees for letters of administration, etc., held void under Const. art 12, $ 11, relating to uniformity, etc. Hauser v. Miller \[Mont.\] 94 P 197. Laws 1898, p. 23, c. 5, $ 66, imposing additional privilege tax on railroads claiming exemption from state supervision, etc., held void as being discriminatory, even though 1t be considered as an ad valerorn tax. Gulf, etc., R. Co. v. Adams \[Miss.\] 45 S 91.\]

Arbitrary classification is contrary to Const. $ 174, requiring equality in taxation. Morrell Refrigerator Car Co. v. Com. \[Ky.\] 108 SVW 926. An arbitrary rate is not necessarily unconstitutional, but is valid where burden imposed on property subject theory is not greater than on other property. United New Jersey R. & C. Co. v. Parker \[N. J. Err. & App.l 69 A 239.\] 69 A 239. It is not unconstitutional to tax a certain class of property at the average rate prevailing in the state, instead of at a rate definitely fixed by statute. Act April 5, 1906 (P. L. 121), supplementing and amending Act 1884 (P. L. 142), relating to railroad and canal property, sustained. Id. "Uniform state tax" in transit duties law (P. L. 1869, p. 226) means rule of taxation throughout all taxing districts of state relating to railroad and canal property. United New Jersey R. & C. Canal Co. v. State Board of Assessors \[N. J. Law\] 67 A 488.\]

Exemptions cannot be granted conditioned upon the payment of an arbitrary percentage not proportional to the rate imposed on other property. See Const. Pt. 2, c. 1, $ 1, art. 4, requiring excise taxes to be proportional. In re Opinion of the Justices \[Mass.\] 84 NE 499.\]

36. Taxation of cash not invalidated by subsequent application thereof to payment for land upon which purchaser has agreed or does agree with seller to pay the tax, such tax not being assessed to purchaser.

The authors declare that the authors declare that 10 Cur. Law. TAXES $ 1. 1779

tion is permissible 40 as to persons 41 and property,42 and the state may be divided into taxing districts.43 Nor is absolute equality always obtainable in the actual result,44 and a taxpayer cannot complain where the inequality is in his favor.45

Footnote 43: The taxing variables are not available in the literature, but they are not available in the literature.

The levying and assessment of taxes are legislative and administrative functions, not judicial.44 The state is not estopped to tax lands merely by a claim of ownership thereof.47

Footnote 44: The taxing variables are not available in the literature, but they are not available in the literature.

_Municipal corporations_ See 8 C. L. 2061 can levy only such taxes as they are authorized to levy by charter or statute,48 and, subject to constitutional limitations,49

Footnote 45: The taxing variables are not available in the literature, but they are not available in the literature.

Footnote 46: The taxing variables are not available in the literature, but they are not available in the literature.

Footnote 47: The taxing variables are not available in the literature, but they are not available in the literature.

Footnote 48: The taxing variables are not available in the literature. But they are not available in the literature.

the territorial limits of their taxing power is entirely dependent upon charter or statute,50 as is also the purposes for which the tax may be levied.51 The power to levy is, of course, also subject to constitutional limitations as to the amount.82 A tax levied by a city under an unconstitutional amendment to its charter will be sustained where the city had power to levy the tax under its original charter and the levy is made by the duly and legally constituted authorities,53 Where local acts are repealed or superseded by general or classification acts, the local acts become subordinate and are extinguished by the general acts.54 The determination of whether certain property comes within exemptions from local taxation relates to the matter of classification, which is treated of in a subsequent section.55 One may be estopped to question the existence of the municipality levying the tax.56 The power or duty to levy a special tax for a special purpose is exhausted by its exercise.57 Agricultural lands within limits of city are not exempt from municipal taxation, though they derive no benefit from the municipal government.58

\_Construction of tax laws.\_See 8 C. L. 2081.\_Tax laws as a rule are construed on the same general basis and under the same rules as laws in general,59 and a statute im 10 Cur. Law. TAXES SS 2A.

posing taxes must be interpreted in connection with other tax laws, prior and contemporaneous, \[60\] and also in the light of the contemporaneous and subsequent practical understanding of such statute by the taxing officers and the public, \[61\] but executive construction is not conclusive upon the courts. \[62\] Tax laws are presumptively prospective in their application, and not retrospective, \[68\] and are construed strictly against the state, \[64\] especially to avoid double taxation \[66\] or to prevent a forfeiture. \[66\] Under well defined limitations, the Federal courts will follow the decisions of the state courts construing state taxing statutes. \[67\]

SS 2. Persons, objects and interests taxable. A. Taxable property and its classification. See S. C. L. 2001.-A tax will not be held to be imposed upon property except by language clearly indicating the intent of the legislature to render the same subject to the tax, \[68\] but as a general rule all property within the jurisdiction of the taxing power is subjected to taxation, \[69\] regardless of whether such property receives any special benefit or not, \[70\] property intended to be relieved from the burden of taxation being protected by special exemptions based on the purposes for which it is used. \[71\]

The power to classify property for the purpose of taxation has already been considered. \[72\] One of the most frequent classifications is with reference to the mode of assessment, \[73\] as where certain properties are subjected to a single tax to be assessed in a certain manner, in lieu of all other taxation. \[74\] Another common classification

primarily. Taylor v. Caribou, 102 Me. 401, of railroad property held invalid for inequality and failure to follow directions of state board of tax commissioners. Id. Livermore Falis T. & B. Co. \[Mc.\] 69 A 306. 62. Imposition and collection, for many years, of tax on telegraph line owned and vided by Tax Law, SS 2, 3, by Laws 1906, p. 1448, c. 532, superseding Laws 1905, p. 2059, telegraph company, upon theory that such c. 729. People v. Dimond, 121 App. Div. 559, line was railroad property and taxable un- lotaXES 277.

Refriend and canal property. See P. L. Chicago, etc., R. Co. v. Rhein \[Iowa\] 112 NWW 1888, p. 285, SS 28 (Gen. St. p. 324). In re New York Bay R. Co. \[N. J. Law\] 6 & A 916.

63. Corporation Elizabeth City v. Com's Pasquotank County \[N. C.\] 60 SE 416.

64, 65. Inhabitants of East Livermore v. V. Snohmish County \[Wash.\] '83 P 924.

Livermore Falls T. & B. Co. \[Mc.\] 69 A 306.

66. Baker v. Webber, 102 Me. 414, 67 A

01.

01. Decision of Kentucky court of appeals as to when Act Ky. March 1906, (Acts 1906, p. 134, c. 22), went into effect held binding

01. People v. Duffy-McInnerv Co., 122 App. DIV. 336, 100 NTS 878.

01. Under Const. p. 2, c. 1, 1 , art 4, authoring proportional and reasonable taxes, all property available to increase the owner's ability to bear a proportionate share of the burden of government should be taxed. In re Opinion of Justices \[Mass.\] 84 NE 499:

01. Agricultural lands within the lmits of a city are subject to municipal taxation,

68 A 237. Failure of a railroad company to though they derive no benefit from the nu- nicipal government.

71. See post, SS 8, Exemptions From Taxa- tion. See, also, this section, subsec. D, Public Property.

01. See ante, SS 1, Nature, Kinds, and Power to Tax.

01. State board of tax commissioners have power under Laws 1905, p. 2215, c. 115, SS 2, subd. 2, to classify inter-county railroads and assess property thereof. Great Northern Railway Co. v. Snohmish County \[Wash.\]

198 F 924. Assessment by county assessor

74. Another common classification

01. A. A.

tax for property under construction for new line instead of city taxes, the land is exempt only during construction or a reasonable time after, and where construction is stopped and work discontinued and property held for other purposes, the city taxes will be deemed properly assessed until the road will again begin work of construction. Id. Taxes provided for by P. L. 1869, p. 226, known as Transit Act, continued until completion of assessment under P. L. 1884, p. 142, imposing uniform tax on railroads. State V. United New Jersey R. & C. Co. (N. J. Law) 68 A 796. Railroad built by company organized under Comp. Laws 1897, c. 187, in city streets to carry freight, held not locally taxable, being railroad property within Pub. Acts 1901, p. 245, No. 173, as amended by Pub, Acts 1903, p. 57, No. 45. City of Detroit V. Detroit Manufactures R. Co., 149 Mich. 530, 14 Det. Leg. N. 548, 113 NW 365. Bridge owned by railroad company, but also used for teams, etc., held "railroad property" within Const. 1891, $ 182, authorizing general assembly to provide for taxation of railroads and railroad property. Board of Equalization of Campbell County v. Louisville, etc., R. Co. \[Ky.\] 109 SW 303. Right of railroad company to own such bridge could not be determined upon issue as to right of county board to tax same instead of state board. Id. Under Acts 1877-78, P. 82, 764, Act. April 19, 1882 \[Laws 1881-82, p. 66, c. 790\] Acts 1906 p. 139, c. 23, and Const. 1891, $ 182, a bridge constituting part of railroad system was taxable by the railroad commission and not by county authorities. Id. Lower floor room on ferry station for vehicles, accommodation for local passengers, etc., was subject to local tax, but restaurant upstairs, ferry house tennlae, etc., was railroad property. In United New Jersey R. & C. Co. \[N. J. Law) 68 A 167. Part of land under water being reclaimed for terminal purposes, held property taxable by local authorities and part not so taxable. In re New York Bay R. Co. \[N. J. Law) 67 A 512. Under Rev. St. 1899, c. 12, $ 1163, 9328, 9344 \[Ann. St. 1906, pp. 988, 429, 4296\], railroad ancillary to ferry and owned by ferry company held assessable by state board of equalization and not by city assessor. State v. Wiggins Ferry Co., 208 Mo. 623, 106 SW 1005. Railroad ancillary to ferry held assessable as a railroad under Rev. St. 1899, c. 149, art. 8 \[Ann. St. 1906, pp. 4293-4315\]. Id. There must be a "main stem" to every line no matter how long or short the line is. Jersey City v. State Board of Assessors \[N. J. Err. & App.\] 68 A 227. In default of proof of facts changing the presumption arising from organization of a railroad company, the presumption is that the roadbed, as laid, under the route as filed, is "main stem," whether railroad contacts passenger or freight business or both. Id. To tax property other than main stem" to the contrary, there is within the 100 feet of roadbed, to the property. Jersey City v. State Board of Assessors \[N. J. Err. & App.\] 69 A 200. Collateral property of branch lines not including roadbed are usually held not "main stem" property though roadbed is. In re New York Bay R. Co. \[N. J. Law\] 67 A 1049. Parcels of land owned by United New Jersey Railroad & Canal Co. and, upon which railroad tracks are maintained which originally formed part of main line of New Jersey R. & C. Co., located under its charter March 7, 1832 \[P. L. 1832, p. 96\], and which were left out of main line by a straightening of tracks pursuant to Act Apr. 15, 1868 \[P. L. 1868, p. 1037\], but are continued in operation for railroad purposes pursuant to last cited act, held not to form parts of "main stem" of principal line of railroad, and not to be branch roads having their own main stem. Jersey City v. State Board of Assessors \[N. J. Err. & App.\] 69 A 200. Branch road of United New Jersey R. & Canal Co., known as Harstlma Branch, constructed under Act March 30, 1868, and Act March 24, 1869 \[P. L. 1868, p. 560\], held to be a branch road established and operated as such by legislative authority, and its property thereupon assessable in part as "main stem" and in part as "other property", etc. Id. Where roadbed is less than 100 feet in width, all land adjoining it used for railroad purposes is "second-class" railroad property and lo-cally taxable, In re United R. & C. Co. \[N. J. Law\] 67 A 1075. Ferry building and aligns leading from terminal station to ferry operated in connection with road held not lo-cally assessable as "second-class" railroad property. In re Long Dock Co. \[N. J. Law\] 68 A 126. Mer is with reference to the rate of taxation.15 Under some circumstances an exception to the rule as to ejusdem generis is indulgcd in construing and classifying statutes.76 A finding by the taxing officers of the state that a company should be treated as a foreign corporation and the acceptance of reports from year to year and assessments thereon by the secretary of state does not conclude the right of the state to its proper tax.77

Footnote 15: The taxing officers of the state is not ally liable, he may recover from the latter the amount so paid in an action of assump-sit.\[79\]

\_Vendor and venlace.\_See 8 C. L. 2002

\_Lessor and lessee.\_See 8 C. L. 2002--The lessee is taxable for the value of the lease without reference to the fee value of the property.\[80\] Where the tax is collected from the lessee, it cannot be assessed again and collected from the lesor.\[81\] The owner of land subject to ground rent is liable for the taxes thereon.\[82\]

\_Principal and agent.\_See 8 C. L. 2002

\_Mortgagor and purchaser under mortgage sale.\_See 8 C. L. 2003--A purchaser from the mortgagor, subject to the mortgage, is liable for the taxes assessed subsequently to his purchase and prior to execution of the deed on foreclosure.\[83\]

\_Trust property.\_See 8 C. L. 2003

\_An assignee.\_See 8 C. L. 2003

\_A life tenant.\_See 8 C. L. 2003

\_Husband and wife.\_See 8 C. L. 2003

\_Estates of dcedents.\_See 8 C. L. 2003--The personal representatives of a decedent arc sometimes rendered liable for the taxes on the estate.\[84\]

_Property of nonrisidents.\[85\]_

_A tenant in common is not entitled to contribution for the payment of void assessments.\[80\]_

_As between a bailor and bailee the property is generally taxable to the former.\[87\]_

\_(SS 2) C. Corporations, and corporate stocks and property. Corporate franchises and privil?e?s.\_See 8 C. L. 2003--A tax may be levied on a corporate franchise as such,\[88\] though the other property of the franchise holder is also taxed,\[89\] unless it is exempt by law,\[90\] in which case the exemption is generally based upon an excise tax

70. Owner of land subject to ground rent foreclosed and the mortgagor became the held liable to landford for taxes assessed purchaser, the estate of the purchaser was prior to default in rents and acquisition of absolute title by landford. Frank v. McCrossin, 33 Pa. Super. Ct. 93.

01. People v. Barker, J121 App. Div. 661, 106 NYS 336. Under Ky. St. 1903, $ 4020, and $ 4039, as reenacted by Acts 1906, D. 93, c. 2, $ 20, oil or gas wells, held under lease continuing as long as oil or gas is found in paying quantities, are taxable to the lessee, Wolfe County v. Beckett \[Ky.\] 105 SW 447.

Wolfc County v. Beckett \[Ky.\] 105 SW 447.

Form of contract is immaterial whether by deced or lease, just so little to oil and gas is vested in the lessee so long as such substances are found in paying quantities. Id. Amount of product reserved by losses should be deducted from amount taxed to lessee.

Id. Under Ky. St. 1903, $ 4023, 4079, the tangible property of a railroad company operated by another company is assessable to latter. Commonwealth v. Kinnicolek, etc., R. Co., $1 Ky. L. R. $59, 104 SW 290.

Fact that after railroad commission had properly assessed tangible property of railroad company the board of valuation gave an improper credit did not invalidate the assessment, the effect being merely to assess the franchise of the lessor at less than its assposable value. Id.

S1. Railroad franchise tax. Commonwealth v. Chicago, etc., R. Co. \[Ky.\] 105 SW 127.

82. Frank v. McCrossin, 33 Pa. Super. Ct. 93.

01. Where mortgagor sold property subject to the mortgago, which was thereafter

01.

already imposed " in lieu of all other taxes,"92 but such is not always the case."93 The authority of municipal corporations to impose franchise taxes has already been considered."94 The imposition of license fees, in the nature of taxes, but in the exercise of the police power, is treated elsewhere,"95 as is also licenses and taxes upon special privileges and franchises as distinguished from the corporate franchise proper."94

Footnote 94: The _L.L._ is the _L.L._ is the _L.L._.

_Stocks.See_ * C. L. 2004--Shares of corporate stocks are taxable to the owner as personal property,"97 though the property of the corporation is also taxed to the corporation,"8 unless exempted by statute."99

_Banks and trust companies.See_ * C. L. 2004--The applicability of statutes relative to the taxation of banks and trust companies is a matter of construction.1

Footnote 95: The \_L.L.

A state cannot tax a national bank without the consent of congress,\* and hence state taxation of such banks must conform to the limitations prescribed by the act of congress giving such consent.3

Corporate capital and other property.See & C. L. 2004.--The capital stock of a corporation is taxable as distinguished from its shares of stock,\* though a tax is imposed also upon such shares * and upon the franchise of the corporation.\* It has been held, however, that taxing corporate stock to the shareholders in addition to a tax on the property of the corporation is, in effect if not in theory, double taxation,\* and hence where such shares are so taxed the property of the corporation cannot be taxed unless explicitly so provided by statute.\* Statutory provision is sometimes made for the taxation of surplus and undivided profits.\*

Foreign corporations.See & C. L. 2005.--The franchise of a foreign corporation is not taxable,10 but a tax may be imposed on property of a foreign corporation in the state, though it has paid a license tax,11 unless it comes within some statutory exception or exemption.12

Footnote 10: https://www.statutory.com/

(SS 2) \_D. Public property.See & C. L. 2005.--The general rule is that public property and the, various instrumentalities of the government are not subject to taxation,13 such immunity testing upon the fundamental principles of government, being

trust, guaranty, and fidelity company, held applicable to a company empowered by statute to receive money for deposit, articles for safe keeping, act as agents of purchasers, deal in reality on own account, execute trusts, and serve as executor, etc. State v. Central Trust Co. \[Xd.\] 67 A 267.

2. People v. Fether \[N. Y\] 83 NE 592.

1. People v. Fether \[N. Y\] 83 NE 592.

1. People v. Fether \[N. Y\] 83 NE 592.

1. St. U. S. $ $219 \[U. S. Comp. St. 1901, p. 3502\], is measure of power of state to tax national banks. Weiser Nat. Bk. v. Jeffreys \[Jdahol 95 P 23; First Nat. Bk. v. Albright, \[Jdahol 95 P 23; First Nat. Bk. v. Albright, \[S8 S. Ct. 349.

Capital stock of national banks is not taxable. Weiser Nat. Bk. v. Jeffreys \[Jdahol 95 P 23. Tax imposed by Act Bk. v. Jeffreys \[Jdahol 95 P 23. Tax imposed by Act Bk. v. Fund Bk. Ass' \[Key.\] 104 "each one hundred dollars of value of the sw shares" of state and national banks, held, under state decisions and also upon indegments), each report on the shares and not upon corporate assets. Hager v. American Nat. Bk. \[C. C. A.\] 159 F 896.

628, S1 N 302.

Laws 1906, p. 134, c. 22, subd. 2, held to provide for assessment of national bank shares and not their assets, and hence is not in violation of Act June 3, 1864, c. 106, 13 Stat. 95, U. S. Comp. St. 1901, p. 3454.

Hager v. Citizens' Nat. Bk. \[Key.\] 105 SVW

403. Assessments of national banks for 1906 were governed by Laws 1906, p. 134, c. 22, subd. 2, the prior law being invalid as to such banks. Id.

Rule against discrimination prescribed by Rev. St. U. S. $ $ 5219, held not violated by New York bank stock tax, though dedication of personal indebtedness of stockholder is not allowed to be deducted, the flat rate specified being even more advantageous than the ordinary rate with such deductions.

People v. Fether \[N. Y\] 83 NE 592; Id., 120 App. Div. 838, 105 NYS 933. Discrimination

forbidden by the act of congress does not result from isolated cases, where the rule specified does not discriminate in its general application. Id.

4. Term "capital stock" as used in revenue law does not mean "shares of capital necessary in order that the functions of government be not unduly impeded, and that the government be not forced into the inconsistency of taxing itself in order to raise money to pay over to itself,14 and constitutions and statutes relative to taxation must be construed in the light of such principles.15 Municipal property used for public purposes is exempt from taxation,16 though the legal title is in a private individual or corporation,17 but the acquisition by a city of all the stock of a corporation does not necessarily exempt the property of such corporation.18 The exemption of public property from taxation is destroyed by the acquisition of such property by private individuals,19 but such is not the effect until there has been at least a complete equitable transfer.20 Certain rights in connection with government lands are taxable, however, though the government still holds the title to the land.21

ter to deposit with government, etc., held not a sale such as to render the said contract a taxable credit. Clark v. Gault, 77 Ohio St. 497, 83 NE 900.

14. Penick v. Foster, 129 Ga. 217, 58 SE 773.

01. Penick v. Foster, 129 Ga. 217, 58 SE 773.

01. Penick v. Foster, 129 Ga. 217, 58 SE 773. Word "property" as used in constitution does not require taxation of public property. Id.

01. Municipal bonds issued as evidence of loan to municipality held exempt. Penick v. Foster, 129 Ga. 217, 58 SE 773. Exemption of municipal bonds sustained, though effect is to place heavier burden on those owning no such bonds. Buiut v. City Council of Charleston, 77 S. C. 260, 57 SE 862. Inasmuch as municipal, county, and town-ship bonds were not exempt from taxation at the time par. 16 of $ 2737, Rev. St., was enacted, these classes of bonds cannot be included in the term "bonds or other securilties of the state" as used in that act, and there having been since amendment of constitution, exempting these bonds from taxation, no legislative enactment requiring that are not taxable, and the survey is not com-average monthly amount of money invested in such securities be listed by the taxpayer, such average monthly amounts are not sub-shore country, 155 F 612. The exceptional fact to taxation. Whitesh y. Arbogast, 6 Ohio N. P. (N. S.) 313. Since amendment of conditiona upon which portions of the pub-constitution exempting municipal bonds like domain may be alienated and provided from taxation, a person is not required, undtions a patent shall issue to the purchaser, erage amount or value, for time he held or scundtled the same, within the preceding no patent has issued, does not apply until year, of all moneys, credits or other affects so that nothing remains to be done on the into bonds of any municipality of this state, or to the legal title, and hence where govern-control such bonds or securities on said day preceding the second Monday of April,17 purchaser, but reserved title until full pay-set. Whitesh y. Arbogast, 9 Ohio C. C. (N. S.) 584. City's, fire, electric light plant, poles, reality and personality used for pub-lic, held not taxable for state or county purposes. Commonwealth, 31 Ky., L. R. 528, 102 SW 882. City water works held exempt under Conat. $ 170, as public property used for public purposes. Commonwealth y. Coviphoton \[LKy.\] 107 SW 231. Payment of rents by users of water does not destroy such exemption. Id. Fact that some revenue is incidentally derived from pipe lines outside city does not destroy the exemption. Id.

Streets and alleys are exempt, and no rights are acquired by anyone by payment of taxes assessed thereon. Boise City v. Hon \[Mfaab\] 94 F 167.

1788

Taxes $ 2E.

(SS 2) _E. Realty._\[88e & C. L. 2004\]--Interests in realty " are taxable as realty when so provided by statute." \[28\] Standing timber is taxable as a part of the land unless otherwise provided by statute." \[24\] Express provision is sometimes made for the assessment of buildings and structures attached to realty." \[28\] Otherwise the intention with which an article is annexed to a freehold is the cardinal rule and most important criterion by which to determine its character." \[8\]

(SS 2) _F. Personality._\[88e & C. L. 2004\]--Taxable personality includes money," \[27\] contracts," \[28\] and credits," \[29\] but not the mere right to hold property." \[30\]

A grantee in a deed purporting to convey \[Property substantially completed may be lands, the legal and equitable title to which \[is in the United States, is not estapped to \[but a little platering, andxtures were al-assert exemption of such lands from a tax \[ready being installed, held taxable. Isaac imposed with full knowledge of the condition of the title. Clearwater Timber Co. v. \[Telephone and telegraph conduits laid in Nex Perce County, 155 F 638, \[St held not taxable as reality. City of \[Telephone and Telephone\] Tel. & T. Co. \[Mc.\] claim upon land, the title to which is still \[68 A 1040, Telephone wires and poles, even In the United States, is taxable under Co., Laws 1887, pp. 340, 341, and such taxation \[109 NYS 402, \[109\], \[110\], \[111\], \[112\], \[113\], \[114\], \[115\], \[116\], \[117\], \[118\], \[119\], \[120\], \[121\], \[122\], \[123\], \[124\], \[125\], \[126\], \[127\], \[128\], \[129\], \[130\], \[131\], \[132\], \[133\], \[134\], \[135\], \[136\], \[137\], \[138\], \[139\], \[140\], \[141\], \[142\], \[143\], \[144\], \[145\], \[146\], \[147\], \[148\], \[149\], \[150\], \[151\], \[152\], \[153\], \[154\], \[155\], \[156\], \[157\], \[158\], \[159\], \[160\], \[161\], \[162\], \[163\], \[164\], \[165\], \[166\], \[167\], \[168\], \[169\], \[170\], \[171\], \[172\], \[173\], \[174\], \[175\], \[176\], \[177\], \[178\], \[179\], \[180\], \[181\], \[182\], \[183\], \[184\], \[185\], \[186\], \[187\], \[188\], \[189\], \[190\], \[191\], \[192\], \[193\], \[194\], \[195\], \[196\], \[197\], \[198\], \[199\], \[199\], \[200\], \[201\], \[202\], \[203\], \[204\], \[205\], \[206\], \[207\], \[208\], \[209\], \[210\], \[211\], \[212\], \[213\], \[214\], \[215\], \[216\], \[217\], \[218\], \[219\], \[220\], \[221\], \[222\], \[223\], \[224\], \[225\], \[226\], \[227\], \[228\], \[229\], \[230\], \[231\], \[232\], \[233\], \[234\], \[235\], \[236\], \[237\], \[238\], \[239\], \[240\], \[239\], \[241\], \[242\], \[243\], \[244\], \[245\], \[246\], \[247\], \[248\], \[249\], \[250\], \[251\], \[252\], \[253\], \[25 10 Cur. Law. TAXES SS 3. 1789

## 8 Exemption from taxation

See 8 C. L. 2007.--A state or territory has power to exempt certain persons or property from taxation \[31\], but such power is subject to constitutional limitations \[32\]. Where an exemption is claimed under statute or constitution, the question is one of construction \[33\]. Exemption from taxation involves the finances of a municipality within a requirement as to how such matters must be transacted \[34\]. Exempting statutes are strictly construed, and the exemption will not be recognized unless clearly conferred \[35\]. An exemption attaches as of the date on which the status of the property is fixed for taxation \[36\], and is not removed, so as to render the property taxable for the same year, by subsequent conveyance during the year to one in whose hands the property is not exempt \[37\]. A lessor cannot claim an exemption personal to the lessee by reason of his business \[38\], but the exemption may by statute be perpetuated in the hands of the successor or assignee of the original exemption \[39\]. Where a fund is invested in exempt securities, and the proper allowance is made for such securities, the fund itself cannot be allowed as a further deduction \[40\].

The property usually exempted is that used for religious \[41\], educational \[42\], charinance. Schinkel v. Fairview \[N. J. Law1 by way of amendment to existing charter of college held not taken away by Act March 35. Schley v. Lee \[Md.\] 67 A. 252; Portas 2, 1867, c. 150, 14 Stat. 426, prohibiting territories from granting private charters or 1045; Young Women's Christian Ass'n v. Spencer, 9 Ohio C. C. (N. S.) 351. lege v. Berryman, 156 F 112. 32, Exemption under Acts 1907, p. 700, c. 5857, of certain property annexed to an exemisting municipality, held not unreasonable 37. Clearwater Timber Coles. v. Nez Perce cessation. Hays v. Walker \[FIA.\] 44 Counts, 155 F 835. S. Under Pub. St. c. 55, $ 11, authorizing from taxation the revenue producing property of a church, while similar property of other churches is taxable, is invalid for discrimination under Declaration of Rights, 18. Clity of Baltimore v. Start Methodist \[Md.\] 18.

1790 TAXES $ 3. 10 Cur. Law. table,\*8 benevolent,44 and cemetery 45 purposes. Exemptions are sometimes allowed to encourage certain industries,46 to prevent double taxation,47 and in favor of per-under Const. art 12, $ 2, or Rev. St. 1906, $ 2732, subd. 6, exempting houses used ex-clusively for public worship, though such parish houses are used largely by their inhabitants for church and charitable functions. Watterson v. Halliday, 77 Ohio St. 150, $ 2N2 #62. Becauset to Roman Catholic church for masses for repgos of testator's soul held exempt from transfer tax under Transfer Tax Law, e. 208, p. 869, $ 221, as being to a religious body, notwithstanding the incidental use of the bequest which would eventually go to the priest saying the masses. In De Didion's Estate, 54 Misc. 201, 105 NYS 924. 42. When a college is required by law to use all its property, including income and proceeds thereof, for educational purposes, and all such property is exempted by Laws 1900, p. sideration of such use, property used as source of income is exempt as well as that used directly for college purposes, such as occupancy by college buildings, etc. Trus-tees of Whitman College v. Berryman, 156 F 112, Since Laws 1906, p. 829, e. 368, $ 218, amending Laws 1896, p. 869, c. 908, $ 221, relative to exemptions from transfer tax, transferred "educational" corporations from the limited to the total exemption class, and retained "library" corporations in the limited class, a library corporation, though educational in a broad sense, is not an educational corporation within the meaning of the statue. In re Francis' Estate, 121 App. Div. 129, 105 NYS 643. Private school having grades, actually pursed by some of its pupils, higher than public schools, held exempt as institution of learning, though majority of pupils pursued lower grades. People v. St. Francis Xavier Female Academy, 233 Ill. 26, 84 NE 55. Bequest to library corporation held exempt under Laws 1905, c. 308, p. 827, $ 221. In re Higgins' Estate, 55 Misc. 176, 106 NYS 465. 43. Rule that statutes exempting property from taxation should be strictly construed does not permit exemption of vacant lot, owned by a charitable organization and upon which it is proposed to erect building to be used for charitable purposes, notwithstanding funds wherewith lot was purchased were exempt, and lot, as well as the building, will be exempt as soon as a building has been erected. Young Women's Christian Ass'n v. Spencer, 9 Ohio C. C. (N. S.) 351.

Parish houses occupied by Roman Catholle prists held not exempt under Const. art 12, $ 2, or Rev. St. 1906, $ 2732, subd. 6, as property of institution of purely public charity. Watterson v. Halliday, 77 Ohio St. 150, $ 2N5 #62. Between to children's home held exempt under Laws 1905, c. 388, p. 827, $ 221. In re Higgins' Estate, 55 Misc. 175, 106 NYS 465, Corporation whose sole business is to provide home for destitute widows and orphans of deceased Odd Fellows held exempt under Const. 170, as an "instuation of purely public charity." Widows and Orbans' Home of Odd Fellows v. Com., 31 Ky. L. R. 775, 108 $ 354.

Hospital held, under evidence, within Hurd's Rev. St. 1905, c. 120, $ 2, cl. 7, exempting property of institutions of public charity actually used exclusively for charitable purposes and not for profit. Sisters of Third Order of St. Francis v. Review of Devira County, 281 Ill. 817, $ 38 IN 272; Ger-man Hospital v. Review of Cook County, 283 Ill. 246, $ 1NE 215; Proctor Hospital v. Review of Peoria County, 233 Ill. 583, 84 NE 618. Hospital and training school for nurses held exempt under such statute. Review of Cook County v. Provident Hospital & Training School Ass'n, 233 Ill. 242, 84 NE 216. Hospital, training school for nurses, and dispensary, held exempt under such statute. Review of Cook County v. Chi-cago Public, 233 Ill. 268, $ 4 NE 220. Bequest to city hospital held exempt under Laws 1905, c. 308, p. 827, $ 221, such exempt. tion which was repealed by Laws 1900, p. $71, c. 382, $ 4, being restored. In re Higgins' Estate, 55 Misc. 175, 106 NYS 465. Property of public hospital maintained by a "discribed, the members of which received no compensation, held exempt, though money was received from some of the patients, such money being devoted to the maintenance of the institution. Hot Springs School Dist. v. Slisters of Mercy of Female Academy, 84 Ark. 497, 106 SWV 954. 44. Comp. Laws, 5 3832, subd.

sons unable to pay.\[48\] A change in a corporation's by-laws cannot relieve it from a tax previously assessed and from which it was not at the time exempt.\[49\] Only such property as is exempted by Federal statute is free from taxation by a state or territory because located within territory under Federal control.\[50\] Salaries of Federal officers are not exempt after payment.\[51\] The exemption of public property has already been considered.\[52\]

Contracts of exemption.\[58\] See s C. L. 2008--Contracts of exemption may be made and are entitled to protection of the Federal constitution,\[58\] and, where rights of third parties are involved, a reservation of the right to repeal corporate charters does not apply,\[54\] but the legislature cannot barter away the constitutional right of a subsequent legislature to amend or alter corporate charters and thus to repeal exemptions granted thereby,\[58\] and exemptions granted as mere gratuities may be repealed at the will of the legislature.\[56\]

Place of taxation.\[58\] See s C. L. 2008--The situs of personal property for the purpose of taxation is, as a general rule, though not without exception,\[57\] at the own-

erty used in connection with railroad for association of Newark conference (P. L. railroad purposes, and exempt under Priv, 1869, p. 484), was a mere gratuity. Hanover Laws 1851, p. 72, $ 22. People V. Illinois

Tp. v. Camp Meeting Assn of Newark Content R. Co., 231 III. 161, $ 38 NE 132. Property

decoupled by gas plant and other property

57. Some of exceptions stated: Hunt v., used to receive binders, etc., from such

Turner \[Fla.\] 45 S 509. Unless the property plant, held exempt as property reasonably

is visible and round in the taxing district necessary for manufacture etc., of gas.

Pittsburg v. Consolidated Gas Co., 34 Pa.

Super, Ct. 234.

47. Personal property taxed in other states

while therein is exempt under P. L. 1903,

D. 394. Inhabitants of Trenton v. Standard

Fire Ins. Co \[N. J. Law\] 68 A 1111.

Shares of stock, see ante, $ 2, subsec. C,

subd. Stocks.

48. Discretion of court under Laws 1901, p. 355, c. 466, $ 934, Greater New York character, to dismins proceedings to collect tax

where it is satisfied that the taxpayer is

unable to pay, held improperly exercised in

suit against administrators where there was

no evidence of inability of the estate to

pay the taxes. City of New York v. Goss,

195 N. Y. S. 151.

49. Philadelphia v. Masonic Home, 33 Pa.

Super. Ct. 382.

50. Personality of private individuals located on Fort Shill military reservation, and

wholly within Comachile county, held taxable by such county. Rice v. Hammonds

\[Okl.\] 91 P 698.

51. Salary of Federal officer not exempt after payment to him. Dyer v. Melrose

\[Mass.\] 82 NNE 6.

E2. See ante, $ 2D, Public Property.

53. Chicago, etc., R. Co. v. Douglas County

\[VWs.\] 114 NWV 611.

54. Under Laws 1859, p. 630, c. 279, providing for conveyance, by individual to corporation created thereby, of property, and

that the property of the corporation shall
be exempt, a mortgage held by such corporation held exempt, notwithstanding

Const. and I Rev. St. pp. 600, pt. 1, c, 18 tit.

3, $ 8, reserving right to repeal incorporating acts. People v, Gass, 119 App. Dlv. 280,

104 NYS 643.

55. Constitutional right to amend or alter,

existing at time of granting of exemption,

enters into and qualifies the exemption. People v. Gass, 190 N. Y. 332, 83 NNE 64.

56. Provision in charter of camp meeting

01.

01.

01.

01.

1793 TAXES SS 4. 10 Cur. Law.

er's residence,\[58\] even though such property is in fact in another state.\[59\] On the other hand, a state may tax personal property brought within its jurisdiction from another state, though it has already been taxed by such other state for the same year.\[60\] The property of nonresidents is therefore taxable by the state in which it is situated,\[61\] but the taxing state must have jurisdiction of either the property taxed \[62\] or of the person of its owner,\[63\] and where it has jurisdiction of neither, there is nothing upon which to exercise the taxing power.\[64\] Taxation of subjects of interstate commerce is treated elsewhere.\[65\]

surviving parent is residence of minor chil-

where they arose out of a business carried. Id. A guardian may change his ward's residence, as where insane child removed to

on in the state and constitute a part of the capital of such business. National Fire Ins,

city with guardian's consent. Id.

Co. v. Board of Assessors \[La.\] 46 S 117;

Correlations are taxable on personality in

General Elec. Co. v. Board of Assessors \[La.\]

district where chief office is located. P. L.

46 S 122. Under Cons. $ 172, and Ky. St.

1903, p. 404, $ 16. American Mail S. S. Co.

v. Crowell \[N. J. Law\] 68 A 752.

owned by nonresident, in hands of resident

Vessels owned by a domestic corporation

trause for investment, are taxable at resi-

having its office in one county are not taxable in a municipality in another county,

Ky. L. R. 653, 103 SV 306. Estate of non-

resident in hands of resident trustee held

congress. American Mail S. S. Co. v. Crowell

\[N. J. Law\] 68 A 752. Under Pub. St. 1901,

c. 56, 11, and Laws 1905, p. 414, 25,

$ 1, .naking vessels taxable at owner's place

Commonwealth v. Simpos' Trustees, 31

of residence, a stembour company's residence is its principal place of business,

Fed. I. 1044, remain stored in elevator held taxable

gardless of other offices or of the designa-

in district where elevator is located, and

tion by its articles of some other place of

business. Woodson Steamboat Co. v. Sun-

a foreign corporation, resides. State v.

apee \[N. H.\] 69 A 571. Place of residence of

corporate wner of vessels, held to be town

from which boats left in morning and to

whelt they returned at night, and at which

they remained when not in use. Id. As a

general ru.e. if a person is domelled in

a state. his personal property, in contemplation of law, has its situs in such state,

and is taxable there. Hunt v. Turner \[Fla.\]

45 S 509.

509. Money on deposit in Chicago bank or

in hands of brokers for speculation held

taxable in Florida. Hunt v. Turner \[Fla.\]

45 S 509. Promissory notes belonging to

resident of Kansas, given by residents of

Alissouri, and secured by trust deeds of real

state in Missouri, which never have been

brought into Kansas, but which are left for

safe keeping only in vault of bank in Missouri,

sour, constitute personal property in the

state of Kansas, which has its location in

the county, township, and school district

of the residence of its owner. Com's of

Johnson County v. Hewitt \[Kan.\] 89 P 181.

60. Personal property assessed in another

state on Jan. 1st of a given year held taxable in Oklahoma if it acquires a situs in

such state prior to March 1st of such year.

Spaulding Mfg. Co. v. Kendall \[Okl.\] 91 P 1031. "Transient property act." Wilson's

Rev. & Am. St. 1903, $ 199, does not apply

to property brought into the state after

March 1, property which has acquired a

silus in the territory on March 1 being taxable under $ 5931. Id.

61. Capital of nonresident's business in the

state may be taxed. Money in bank and

accounts accumulated in business conducted

in state held taxable under Ky. St. 1903,

$ 420, providing that all personality in the

state shall be taxed. Commonwealth v. R.

G. Dun & Co., 31 Ky. L. R. 661, 102 SW 859.

Debts due on open account to a nonresident

are taxable at the domelle of the debtor,

and the state, where the

in state, would be taxable under $ 5931. Id.

62. Property, in order to be taxable in a

state, must have acquired a local situs there.

into Lughi & Wilkes-Barre Coal Co. v.

Junction \[N. J. Err. & App.\] 68 A 806.

Money in bank in one state solely for

transmission to another state is not taxable

in the former state. New York Life Ins.

Co. v. Assessors for Parish of New Orleans,

168 P 462. The mere physical presence of

evideness of debt in the state does * 10 Cur. Law. TAXES SS 5C. 1793 The physical location of land is its situs for the purpose of taxation."

A district tax can be levied only upon property within the assessment district."

SS 5. _Assessment, rating, and valuation. A. Necessity for assessment." See e C. L._

- 2070--A legal assessment is essential to a valid tax."

(SS 5) \_B. Assessing officers.\_See S C. L. 2070--The appointment of assessing officers," and their compensation," are regulated by statute.

(SS 5) \_C. Formal requisites.\_See S C. L. 2070--Statutory requirements " must be complied with strictly," but the presumption is in favor of such compliance."

\_Notice.\_See S C. L. 2070--A sufficient notice " is essential to a valid assessment," but a judicial hearing is not essential to constitute due process of law in taxation proceedings." The notice need not be personal." It may be by general statute, which is notice to all," but it must afford a reasonable opportunity to be heard," and

such vessel when it has never been In the

roads, sustained. State v. Taylor \[Tenn.\]

waters of the state, is invalid under 14th

104 SWV 242.

amement, as deprivation of property with-

72. Hough v. North Adams \[Mass.\] SS 2NE

out due process of law. American Mafl S. S.

Co. v. Crowell \[N. J. Law\] 68 A 752.

65. See Commerce, 9 C. L 583.

01. Land adjoining city and included in

Fetter \[N. Y.\] 88 NE 592.

city school district held liable for city school

Fitter: Anneration of town to city did not tax. Pol. Code, $ 1576, 1670. Visalia Sav.

Bk. v. Visalia \[Cal.\] 94 P 883. General aver.

entry except on Sept. 15th, as provided by St.

ment or existence of such school district

held sufficient on general demurrer, Id.

67. Assessment by school trustees must

takes effect as of the date specified by law

be upon property within assessment district.

Sarnanc Land & Timber Co. v. Roberts, 109

NYS 547.

68. City of Covington v. Carroll \[Ky.\]

108 SWV 295. Revenue system of Minnesota

contemplates original assessment by assessor, correction by auditor, and equalization

by various boards. State v. Cudahy Packing

Co. \[Minn.\] 115 NWV 1039. Assessment made

by town before anneaction to city cannot

be used as basis of levy by city after such

annextation. City of Covington v. Carroll

\[Ky.\] 108 SWV 295.

69. Under Revenue Act 1898, $ $ (Hurd's

Rev. St. 1905, $ 120, $ 297), country board of

assessors in counties having more than

125,000 inhabitants, acts as township assessor. People v. International Salt Co., 233 Ill.

223, $ 14 NE 278. Under Acts 1897, p. 102, o.

5, $ 1, the members of the state board of

railroad commissioners created by c. 10, p.

f11, became ex office state tax assessors.

State v. Taylor \[Tenn.\] 104 SWV 242. Under

1005.

be of such a character that compliance therewith is possible, so that the taxpayer may object or protest, even though he have no just ground for doing either."64 Statutes relating to notice will be construed, if possible, so as not to deny such opportunity to be heard."11 Failure of the taxing officers to put the statutory provisions as to notice into effect will not invalidate the statute but only the tax."22 Notice will not be presumed where the proceedings followed require no notice."83 In the matter of assessing national bank shares, it is not necessary to give notice to the individual shareholders."44 Provision is sometimes made for notice to the taxpayer of the assessment made, the accrual of the taxpayer's liability being dependent upon such notice."85

\_The roll or list.\_See & c. L. 200.--The assessment roll or list must be made by the proper officer,"86 be verified when so required,"87 and must designate the year for which the tax is levied,"88 the amount of the tax,"89 and must sufficiently describe the property taxed,"90 with reference to plats, blocks, lots, and boundaries,"91 amount and sub-

- **S1**: General provisions of tax laws as to notice in cities held not to apply to assessments.

which his land is liable, the whole tax is menu of bank stock in New York City, since

vold. Hart V. Murdock \[Neb.\] 114 NY 268.

such an application would deny taxpayer opportunity to be heard. People v. Fetter

pectuvery car locate land therefrom \[N. Y.\] 83 NE 592. Tax Laws, Laws 1901, pp.

1349, 1350, e. 550, $2 23, 34, held not invalid

as failing to provide for notice. Id.

s#2. People v. Feltner \[N. Y.\] 83 NE 592.

s#3. Where school trustees copied last assessment roll of town as authorzd by

Laws 1864, pp. 1259, 1260, $1 67, 68, in assessing reality of nonresistance.

Saranz Land & Timber Co. v. Roberts, 109 NYS 547.

84. Sufficient where bank appeared. First Nat. Bk. v. Webster County, 113 NY 190.

01. Under Ky. St. 1903, $1 4103, 4084, state

auditor held bound to give railroad company

notice of state taxes only. Chesapeake, etc.

R. Co. v. Vanceburg & S. L. Turnpike Road

Co., 31 KY. L. R. 1163, 104 SW 951.

86. An assessment by an assistant, approved and corrected by the assessor, is equivalent to an assessment by the latter.

Reed v. Cedar Rapids \[Towards\] 116 NY 140.

Original assessment lists made and sworn to by assessor, as required by Code, $1 1365,

held to constitute assessment roll, which, under $1 1366, must be submitted to board of

review. Id. Signature by assessor's clerk \[18 Tex. Ct. Rep. 689, 103 SW 218.

at former's request and in his name held

sufficient. Id.

87. Absence of verification is defense to

collection of tax under Laws 1903, p. 213,

c. 161. Grand Forks County v. Fredericks \[N. D.\] 112 NW 839. Ordinance of city of

sixth class held not to have adopted Pol.

Code, $732, relative to authentication of assessment roll. City of Escondido v. Wohli-

ford \[Ca.\] 94 F 232. Failure of town as-

essors to verify roll held jurisdictional.

People v. Golding, $5 Glice, 425, 106 NYS 821.

88. Caption of pages as 1904-1905 held, in

view of fact that fiscal year began Jan.

1904, and of assessor and clerk's amdavit,

not to make it uncertain that book was for

1904. City of Escondido v. Wohlford \[Ca.\] 94 F 232. Where there is but one assessor

ment a year, a statement that an assessor

ment is for a certain year is sufficient, thou

the fiscal year begins after the first of the

calendar year and runs over into the next

calendar year. Chapman v. Zobeian \[Ca.\] 92 F 188.

92 F 188.

80. Where land owned by one person is assessed with land owned by another, so

so

that neither can determine the amount for

notice in cities held not to apply to assessor

which his land is liable, the whole tax is

ment of bank stock in New York City, since

vold. Hart V. Murdock \[Neb.\] 114 NY 268.

such an application would deny taxpayer opportunity to be heard. People v. Fetter

pectuvery car locate land therefrom

\[N. Y.\] 83 NE 592. Tax Laws, Laws 1901, pp.

1349, 1350, e. 550, $2 23, 34, held not invalid

223, 84 NE 278. Description of land must be

sufficient to enable both owner and prosa

82. People v. Feltner \[N. Y.\] 83 NE 592.

01. Vhere

## 10 Cur. Law. TAXES $ 5C.

divisions," taxed or taxable," and ownership," but an insufficient description may be supplemented by extrinsic evidence." The roll can be amended after completion only as authorized by statute." The extension of taxes on the roll or list " has been held to pertain to collection and not to levy and assessment."

to greater amount than latter, Matteson v. Name dimensions, and assessment was to Warwick & Coventry Water Co. \[R. L.\] 68 "unknewnew" owner. Slugherst V. Dallas A 677. Description as "N. 28x200. ft." said \[Tex.\] 20 Tex. Ct. Rep. 443, 107 SWP 48.

lot being about 600 feet long and extending in a northeasterly direction, held insufficient, though owner is correctly named. Grand Grand Forks County v. Fredericks \[N. D.\] 113 NWP 839.

82. Designation as part of a larger tract without identifying what part is insuML-cient. Miller v. Daniels \[Wash.\] 92 P 268.

When owners divided vacant land into lots, some of which they sold, a tax against balance of lots was vld, especially in absence of objection that it should have been upon property as a whole. Sullivan v. Boston \[Mass.\] 84 NE 443. Where a tract of land comprises smaller tracts owned by different persons, each of such smaller tracts must be assessed separately. Assessement of large tract as a whole is a nullity. State Finance Co. v. Myers \[N. D.\] 112 NWP 76. Laws 1897, p. 292, c. 126, g 96, and Laws 1890, p. 376, c. 123, g 92, do not apply to division of valuations where no transfer of the land has been made after assessment of the taxes. Id.

98. Failure to designate nontaxable parts of single tract and unoccupied parts held jurisdictional defect. People v. Golding, 65 Misc. 455, 106 NYS 821.

01. Where the tax is a personal charge against the owner, assessment in the wrong name is fatal. Collins v. Reger \[W. Va.\] 67 SE 743. Distinct pieces of property belonging to different persons cannot be assessed in the name of one of them. Such assessment and sale thereunder is void as to all the parties. Head v. Howcott Land Co., 119 La. 331, 44 8 limit7. Fact that owner is not misled is immaterial. Grand Forks County v. Fredericks \[N. D.\] 112 NWP 839. Under Act 1882, No. 96, p. 119, an assessment of land not in name of owner of record is an absolute nullity, and a tax sale thereafter is void. See Const 1879. In re Sheehy, 119 La. 608, 44 S 315. Assessment of estate of Lucinda A. Cole as estate of Chester Cole held absolutely void. Cole v. Cole, 108 NYS 124. Where one has always paid his taxes upon his entire property, a sale under another assessment in the name of another person is an absolute nullity, though description In assessment against owner contained error. Bersnting v. Leeper 118 La. 1098, 43 S 889; Honor v. Feliman, 119 La. 1061, 44 S 887. The rule as to learn seems is inapplicable to assessment rolls. Collins v. Reger \[W. Va.\] 67 SE 743. An assessment of land to a bankrupt after the recordation of the adjudication in bankrupt and the appointment of the trustee in the proper office for the recordation of deceds, etc., is invalid. Hough v. North Adams \[Mass.\] 82 NE 443. Property owned in common may be assessed jointly to the owners thereof. Sullivan v. Boston \[Mass.\] 84 NE 443. Description by block and dimensions but without number of lot where there were other lots in same block of
    Traregularities,See $ C. L. 2071.--All irregularities tending to mislead the owner are fatal, at least in the absence of a showing that he was not misled," but irregularities are immaterial if harmless,1 and certain irregularities are sometimes declared harmless by statute.2 One cannot complain of irregularities in an assessment made pursuant to his own request.3

Lists by taxpayers,See $ C. L. 2071.--In most of the states provisions exist for the listing of property by the taxpayers,4 and while such lists are usually for the convenience of the assessor, and not a condition precedent to a valid assessment,5 or conclusive upon the assessor,6 for the failure of the taxpayer to list his property,7 provided he has had a sufficient opportunity to do so,8 some penalty is usually imposed upon him, such as a waiver of irregularities,9 a survey at the owner's expense,10 an ex parte assessment,11 or a forfeiture to the state.12

properly extended on original roll, as required by Laws 1907, p. 453, $ 14, and not upon transcript as provided by B. de C. Comp. St. 30, c. 6, the continuation of the provisions of the former law as to levy and assessment by $ 80 of the new law not being applicable. Waterhouse v. Clatspo County \[Or.\] 91 P 1083.

Laws 1908, p. 233, c. 166, relating to defective assessments. Grand Forks County v. Fredericks N. D. 111 N 839 v. Reger \[W. Va.\] 57 SE 743.

10 Cur. Law. TAXES $ 5D. 1797

(SS 5) _D. Valuation of taxable property. In general._ See & C. L. 2017.\_As a general rule property is taxable at its true value.13 One taxpayer, therefore, cannot complain that his property is assessed at its full value, while that of another is assessed at

\\begin{tabular}{l|l} return to the assessing body in order to \\ avail himself of right to appeal in case of \\ over assessment. Id. \\
**10.** Provision of Act March 27, 1907, art. **5.** \\
**11.** authorizing survey at expense of \\ owners to be added to assessment, where \\ owners refuse to furnish list of unrelated \\ lots, held unconsentitiveness. Malione V. Wilhams, 118 Tenn. 390, 103 SVV 798. \\
**11.** Under Rev. Laws, **c.** 12, **g** 45, where \\ mortgagor did not the statement of interest \\ of mortgagee, and the statement filed by \\ mortgagee finally misdescribed the propo- \\ \\end{tabular}

\\begin{tabular}{l|l} return to the assessing body in order to \\ avail himself of right to appeal in case of \\ against champerty, Kentucky Union Co. v. \\ Com. (Ky. 10) 108 SVV 931. Under a provision \\ for for fortifue for omission of real estate \\ owners to be added to assessment, where \\ owners refuse to furnish list of unrelated \\ lots, held unconsentitiveness. Malione V. Wilhams, 118 Tenn. 390, 103 SVV 798. \\
**11.** Under Rev. Laws, **c.** 12, **g** 45, where \\ mortgagor did not the statement of interest \\ of mortgagee, and the statement filed by \\ mortgagee finally misdescribed the propo- \\ \\end{tabular}

\\begin{tabular}{l|l} return to the assessing body in order to \\ avail himself of right to appeal in case of \\ and hence does not repeal or affect the act \\ against champerty, Kentucky Union Co.

less than its value,14 the rule being that an assessment is not rendered unequal in a legal sense by the mere fact that other property is assessed at a smaller proportion of its real value,15 and the burden is upon the party complaining to show that such inequality is so general as to subject his property to more than its just proportion of the aggregate tax.16 Where, however, such general disproportion is shown, the tax will be modified.17 Where the valuation is not disproportionate,18 excessive valuation is not alone ground for vacating the assessment.19

Valuations made by the duly authorized officers are not open to collateral attack in a suit to collect the tax.20

It is not impossible to arrive at the true value of land separate from the improvements thereon.21 Debits are usually deductible from taxable credits.22 In New, Jersey it is expressly provided that the face value of a mortgage cannot be deducted from the value of the property.23 Properties constituting parts of a single system must be valued with relation to the whole system, and not as segregated therefrom.24

**Criterion of value:** Selling price, that is titled to set off amount of outstanding benmarket value, and not cost price, whether ever refit certificates against securities in its re-agrimal or of reproduction, is criterion of save funds set apart and devoted exclusive-value within revised tax act of 1908 (P. L. 1003, p. 398, $ 6) (Turnley v. Elizabeth \[N. \], 118 NW 155, 118 NW 155, 118 NW 155, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 65, 118 NW 66, 118 NW 67, 118 NW 68, 118 NW 68, 118 NW 69, 118 NW 70, 118 NW 71, 118 NW 72, 118 NW 73, 118 NW 74, 118 NW 75, 118 NW 76, 118 NW 77, 118 NW 78, 118 NW 79, 118 NW 80, 118 NW 71, 118 NW 72, 118 NW 73, 118 NW 74, 118 NW 75, 118 NW 76, 118 NW 77, 118 NW 78, 118 NW 79, 118 NW 81, 118 NW 82, 118 NW 83, 118 NW 84, 118 NW 85, 118 NW 86, 118 NW 87, 118 NW 88, 118 NW 89, 118 NW 90, 118 NW 91, 118 NW 92, 118 NW 93, 118 NW 94, 118 NW 95, 118 NW 96, 118 NW 97, 118 NW 98, 118 NW 99, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 15 Special statutory rules are often provided for the valuation of particular kinds of properties.25 A valuation applicable to property when used by its owner as distinguished from its valuation when leased to others may apply though the property is not in active use.26

_Valuation of corporate property, stock, and franchises._ See **s C. L. 2017**--The value of the capital stock of a corporation is determined with reference to its entire property, tangible and intangible," with such deductions as are allowed by law.28 The

in its relation to the whole property, West-

ern Union Tel. Co. v. Dodge County \[Neb.\]

property on hand and capable of assessment

113 NW 805. On assessment of interstate

at the time of assessing, and the average bridge and railroad terminals, portions

or mean of the capital so found to be assessed as property in addition to tangible

considered in assessing balance. City of

Jeffersonville v. Louisville & J. Bridge Co.

caster County \[Neb.\] 113 NW 199.

\[Ind.\] 83 NE 837. In assessing the property

26. Under Gen. St. 1902, $ 2344, water

of an interstate railroad corporation in the

over connected with and available for

state, such property must be considered as

an integral part of the whole system. State

as incident to the machinery which it was

v. Viggins Ferry Co., 283 Mo. 822, 108 SW

1005. Held error to exclude evidence that

ifery company owned all stock of two railroads

road companies, and that such railroads

16.

were operated with ferry as single system.

16.

Ld. Error not cured by subsequent proof of

such facts. Id. In valuing telegraph prop-

entry of an interstate company, the property

should be considered as a whole, and then

the property in the state with reference to

such whole. Western Union Tel. Co. v. Dodge County \[Neb.\] 113 NW 805. Total

26.

01.

01. Under St. 1903, $ 4079, all property of

01.

01. Under Gen. St. 1902, $ 2344, water

over connected with and available for

operation of owner's mills held assessable

an integral part of the whole system. State

as incident to the machinery which it was

v. Viggins Ferry Co., 283 Mo. 822, 108 SW

adapted to operate, though mills were not

1005. Held error to exclude evidence that

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

0001.

particular statutes must be referred to with reference to the valuation of particular items of corporate property,\[29\] or the property of particular corporations,\[30\] where such matters are the subject of special statutory provisions.

The market value of shares of stock, for the purpose of assessment, includes their face as well as their premium value.\[31\] Special provisions are often made for the valuation of corporate stocks,\[32\] and special deductions are allowed.\[33\] National bank stock must be valued with reference to the limitations upon the state's power to tax such stocks.\[34\] Such banks may be required to furnish information for the purpose of assessing their shares.\[35\]

not debt contracted for purchase of prop-terly, within Laws 1896, p. 800, c. 908, $ 6, prohibiting deduction of debts for purchase of nontaxable property. People v. Barker, 121 App. Div. 661, 106 NYS 336. In some states statutes provide that a corporation vhich holds as assets stocks on which a tax is already paid or payable may offset the amount of this stock in paying taxes on its assets. Code Pub. Laws, art. $1, $ 160. But this does not authorize taxing officer to deduct value of stock held by national banks, the stock being exempt under Federal statutes. Schley v. Lee \[Md.\] 67 A 252.

**ForePlan corporations** not entitled to deduct debts not shown to have any relation to the property within the state and which is assessed. People v. Raymond, 54 Misc. 330, 105 NYS 1007. General indebeness of foreign corporation is deductible from value of property in the state only in its proportionate part. People v. Miller, 109 NYS 568.

**29.** The date as of which surplus and undivided profits are valued may be fixed regardless of the date of the corporation's distribution. See St. 1803, $ 4094, providing for taxation of surplus and undivided profits of building and loan associations as of Sept. 1. Commonwealth v. Home & Sav. Fund Co. Bidd. Ass'n \[Ky.\] 106 SWV 221. Under St. 1903, $ 4236, imposing tax on amounts of Insurance premiums received "in cash or otherwise," a company was not liable on renewal premiums to tax on contingency excess stipulated for in policy but not actually collected except upon first payments, such excess being merely an overcharge never actually received after first year. Mutual Benefit Life Ins. Co. v. Com. \[Ky.\] 107 SWV 802. Accumulated deferred dividends or undivided profits of life insurance company form no part of reserve fund of company, and are not a debt of company, but constitute one of taxable assets of the company and must be returned by it for taxation. Union Cent. Life Ins. Co. v. Hynicka, 5 Ohio N. P. (N. S.) 255.

**30.** No presumption of general raise in county assessment will be indungled to support assessment by county assessor of railroad property in excess of value fixed by state board. Great Northern R. Co. v. Snohomish County \[Vwah.\] 83 P 824. Manner of assessments for other than state purposes held immaterial upon inquiry as to assessment of national bank by state board of valuation under Laws 1906, p. 134, c. 22, subd. 3, since power of board was confined to assessment for state purposes. Hager v. Citizens' Nat. Bk. of Lebannon \[Ky.\] 105 SWV 403.

**31.** Commonwealth v. Steele, 81 Ky. L. R.

10 Cur. Law. TAXES SS 5E. 1801

The rules for the valuation of corporate franchises are often prescribed by state.\[36\] The value of a corporate franchise is not dependent upon the amount expended in obtaining it.\[37\] A corporation cannot complain of the consideration of property reported by it, in ascertaining the value of the franchise.\[38\]

(SS 5) \_E. Reassessment; omitted property.\_See SS C. L. 2017--The reassessment of property is usually provided for by statute,\[39\] and in a proper case may be compelled by mandamus.\[40\] A revaluation of the same property cannot be made in the same year,\[41\] except, of course, by way of correction or review as provided by law,\[42\] and where an assessment has been made upon property for a given year and collected, the property cannot be reassessed in the name of another, though the latter be the real owner.\[43\] The most frequent occasion for reassessment is where property is omitted from the regular assessment,\[44\] and such an assessment is not precluded by the fact ' First Nat. BL. v. Estherville \[Iowa\] 112 | made where the assessing body believes NVV 829. 36. Company engaged In manufacturing refrigerator cars which it leased to packing out of a previously determined upon idea that after due investigation valuations were under St. 1908, $ 4081, though not expressly 100 low. Jersey City v. Equalization of included therein. Morrell Refrigerator Car \[X. Y. Err, & Appl\] 67 A 38 Co. v. Com. \[Ky.\] 108 SW 926. Only such cars as were operated within the state by the car company were taxable. Id. Un-

as provided by Acts 1903, $ 660, c. 288, $ 31, der Acts 1903, $ 44, e. 437, $ 74, the whole of the real estate, machinery, merchandise, and securities of the corporation, wherever found, is the basis of the computation upon which the franchise tax is based, and not merely such real estate, etc., situated in one state. American Gluc co. v. Com., 195 Mass. 628, $ 1 NE 802. The franchise of a corporation not being taxable as such in other states, no deducents is allowable under Acts 1903, p. 448, c. 437, $ 72, on account of the franchise of the corporation as separate property in another state and there subject to taxation. Id. 37. Commonwealth v. Ledman \[Ky.\] 106 SVV 247. 38. Railroad company cannot urge as defense to franchise tax that it was not owner of a certain line which it reported as being owned by it and upon which report the tax was based. Illinois Cent. R. Co. v. Com. \[Ky.\] 108 SVV 245. 39. Teassessment by state board not precluded by fact that original assessment has been passed on by county board and also by state board and certified back by latter to former. Smoky Mountain Land, Lumber & Imp. Co. v. Lattimore \[Tenn.\] 105 SWV 1025. Reassessment for back taxes, under Acts 1903, D. 660, $ 671, c. 258, $ 31, 38, subd. 11, held not precluded by Acts 1901, p. 837, c. 174, $ 33, and Acts 1903, p. 667, c. 258, $ 33, relative to conclusiveness of find-

ings of county board of equalization, nor by Acts 1901, p. 346, $ 38, subd. 10, and Acts 1903, p. 674, c. 258, $ 38, subd. 10, relative to findings of state board of equalization. State v. Taylor \[Tenn.\] 104 SVV 242. Reassessment of property illegally assessed may be provided for by statute. Laws 1886, p. 815, c. 908, $ 54, held to authorize reassessment by Nassau county lands originally assessed illegally by Queens county out of which latter county the former county was created. People v. Supervisors of Nassau County, $ 436. 323, 104 NYS 353. States usually allow reassessments to be that all property was listed that the assessor thought was assessable.45 The owner is usually held to be entitled to notice of such a reassessment,40 but such notice is not necessary in the original reassessment proceedings, where a sufficient notice is provided for on review thereof.47 One cannot complain that the statute was not followed where the assessment is pursuant to his own request.48 Interest may be added to an assessment of omitted property when so authorized by statute.49

pensation of members thereof,54 can be determined only by reference to the particular statutes and the decisions construing the same. Except on such review as is authorized by statute or constitution,55 the findings of such a board are usually conclusive in the absence of fraud,56 especially as against objections not presented to the board,57 and are not subject to collateral attack for nonjurisdictional irregularities.58 Such boards are, moreover, bound by the fundamental limitations upon the taxing power as defined by constitution and statute, such as that property must be taxed at its real value,58 and where there is no appeal from the acts of a state board, or any way to review the same except by resort to the courts for relief, its action is the action

and canal purposes. Tuckerton R. Co. v. of state board of equalization, sustained. State Board of Assessors \[N. J. Law\] 67 A State v. Edwards \[Utah\] 95 P 867. 69. 55. See poet, this section, subdivision Review by Counts.

boards of review are those formerly governing decennial boards of equalization, as found in Rev. St. $ 2814. National Land & Investment Co. v. Davies, 9 Ohio C. C. (N. S.) 90. 58. Neg 283. Findings of state board of tax commissioners upon questions of fact are conclusive upon the courts in absence of fraud. Baltimore, etc., R. Co. v. Oregon Tp. of Clark County \[Ind.\] 84 NE 529. In abstected by it or by its direction. Id. Under Act Feb. 25, 1893, Laws 1898, p. 48, 48 & 26, changes made by boards of equalization.

tion must be enrolled by the clerks of such boards, notwithstanding former statutes requiring enrollment of changes to be made by the auditora State v. Carson & Colorado R. Co. \[Nev.\] 91 P 892. Under Aziz. Rev. St. $ 888, board of equalization need not deal with county as a whole in increasing or diminishing the valuation of property therein, but may deal with particular classes of property within the county. Copper Queen Conal. Min. Co. v. Arizona, 206 U. S. 474, 51 Law Ed. 1148. Taxpayer is entitled to hearing before quorum of state board of equalization as constituted by Acts 1903, p. 623, p. 258, such quorum being, according to $ 38, embose. I.

a majority of such board, and a decision by one member only of the three and the private secretary of another member was invalid when the taxpayer did not know that such secretary was not a member. Smokoy Mountain Land, Lumber & Imp. Co. v. Lattimore \[Tenn.\] 105 SW 1028. In such case, ejection was not waived by failure to interpose it before such purported board. Id. The board, at a properly constituted meeting, may reopen a judgment rendered without a quorum and render a new judgment. Id. In equalizing values and correcting errors made by the decennial appraizers, a board of review must at all times be guided and controlled by values as they existed at the time of making the decennial appraisement, and not by values as at present existing. Id. Equalization boards of a taxing district may obtain information of value of the taxable property under consideration from the best and most reliable source at their command, and strict rules of evidence applied by courts in ordinary cases are not applicable to evidence offered or received by such boards. Western Union Tel. Co. v. (Tenn.) 105 SW 1028. 59. Rules of state board requiring assess-amended by- Laws 1901, $ 2550, Laws 1907, 1908, 1918, 1924, 1937, 194, 1951, 1960, 1971, 1983, 1984, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 19 of the state,"6e and therefore subject to the constitutional limitations on the acts of the state."91 Where one appears before the county board and appeals from its decision to the state board, the latter has jurisdiction of his person."92 Judicial notice is taken of the reports of the state board of assessors."93

As in the case of state boards which have just been considered,"94 the membership,"98 powers,"94 and procedure "97 of municipal boards are entirely dependent upon statute. A periodical equalization, intended to establish the basis of all levies during the next ensuing period, cannot be disturbed by a local or municipal board except as clearly authorized by law."98

\_Notice.\_See 8 C. L. 2075.--While it is held in some states that provisions requiring notice of the meetings of boards of correction and equalization are directory only,"99

60. Raymond v. Chicago Union Trac. Co., has performed its functions for that year, by adding such increase to one of the items. Board of Equalization of Saline County v. Hughes, 84 Ark. 347, 105 SW 577. Such gross increase is "obvious error," authorizi American, relative to due process and equal protection of law, Raymond v. Chicago union Trac. Co., 28 S. Ct. 7.

01. Subject to U. S. Const. Amend. 14. Raymond v. Chicago Union Trac. Co., 28 S. Ct. 7.

Taxation of corporations in different manner from way other corporations are taxed, thus causing disparity, etc., held violation of U. S. Const. Amend, 14. Id.

62. Smoky Mountain Land, Lumber & Imp. Co. v. Lattimore (Tenn.) 105 SW 1028.

01. City of Jeffersonville v. Louisville & J. Bridge Co. \[Ind.\] 83 NE 837.

01. See ante, this subdivision.

01. Under Const. art. 7, $ 12, the county commissioners for the several countries, constitute boards of equalization. Weiser Nat. Bk. v. Jeffreys \[Idaho\] 95 P 23.

01. Under Comp. Laws, $ 1084, 1081, 1079, county board of equallization may increase valuation of railroad property where the value thereof has increased beyond amount fixed by state board, as by change from narrow to broad gauge road, notwithstanding Act March 16, 1901, p. 61, c. 50, $ 1, as amended by St. 1903, p. 55, c. 69, prohibiting county board from equallizing taxes on railroad property where no valuation has been fixed by state board. State v. Carson & Colorado R. Co. \[New.\] 91 P 892. Minneapolis board of equalization has power to add taxable property not included in assessors' list. State v. Cudahy Packing Co. \[Minn.\] 115 NW 646. Appeal tax court of city of Baltimore has jurisdiction to reclassify property in annexed territory when same has become "urban" as distinguished from "handed" within Baltimore annexation act, Acts 188, c. 98, and Act 1902, amendatory thereof. City of Baltimore V. Gail \[M.J.\] 68 A 282. Sam's v. Fisher \[Md.\] 66 A 711. County auditor cannot revive funding of state board of tax commissioners upon report filed by railroad company pursuant to Burns' Ann. St. 1901, $ 8503. Baltimore, etc., R. Co. v. Oregon Tp. of Clark County \[Ind.\] 84 NE 529.

01. Methods of equalization provided by Sess. Laws 1901, p. 251, apply only to properly subject to the taxing power. Weiser Nat. Bk. v. Jeffreys \[Idaho\] 95 P 23. Under Kirby's Dig $ 7004, a gross increase is in-valid, and where such an increase is attempted, it cannot be corrected, after board notice of proceedings to equalize or correct assessments must usually be given to both the taxpayer 76 and the state or subdivision thereof by which the tax was imposed.71 Failure to give notice is,not fatal to the validity of the tax unless such failure is shown to have resulted prejudicially to the taxpayer,72 but notice of a reassessment after it has been made is not equivalent to notice before the making of such reassessment.78 Actual notice may, for some purposes, be equivalent to the notice required by the statute.74 An adjournment of the board from the day specified in the notice to another day cannot be proved by parol or extrinsic evidence.75

_Irregularities._--As in case of original assessments, mere irregularities do not vitiate the corrected assessment.76

\_Review by the courts._See 8 C. L. 2075_--Provision is usually made for review by the courts of the decisions of boards of equalization and correction;77 more or less specific provision being also made as to the modes 78 and scope 79 of review, parties,79

in territory annexed by Acts 1888, 1902, of court, Is unconsontutional and void. SII-proceedings in city appeal tax court to assess his property at the regular city rate, P 604. Whereas assessment has been expudently having reached the required stage of development to be subject to such county board of taxation and state board rate. Sams v. Fisher \[LMd.\] 66 A 711.

7A. County board of taxation created by Act local authorities, the proper procedure being April 14, 1906, p. 210), has no jurisdiction in New Jersey to reduce an assessed valuation, in the absence of both construcu- and actual notice to the township or its representatives of hearing, on appeal of owner to reduce. Eastontown Tp. V. Monmouth Elec. Co. \[N. J. Law\] 68 A 342.

7B. State v. Cudahy Packing Co. \[Minn.\] 115 NW 645.

7B. Though opportunity to object to the reassessment made is given. Jersey City v. Equalization of Taxes \[N. J. Err. & App.\] 67 A 38.

7A. Where notice of retrospective assessment on omitted personality was not given as required by St. 1903, & 2991, and hence partition to correct such assessment could not be filed within thirty days after such notice, as provided by & 2992, the taxpayer was bound to file such petition within thirty days after such days after actual notice, and not having done so could not have the collection of the tax enjoined. Hegan v. Louisville \[Ky.\] 107 SW 809.

7B. Cannot be proved by testimony of presiding officer or minutes of unofficial stenographer. Delray Land Co., Spring-wells Tp., 149 Mich., 397, 14 Det. Leg. N. 483, 112 NVD 1132.

7C. If, by proceedings under Gen. St. 1901, & 769, & 759, authorizing correction of false tax statements, it appear that owner who apparears and resisting inquiry omitted to list specific items of taxable personality in statement which he gave to assessor, and such property is duly valued, and proper amount of taxes thereon is charged against owner on tax roll, omission of county clerk to formally correct assessor's return is a mere irregularity which does not vitiate the tax. Com'rs of Johnson County v. Hewitt \[Kan.\] 39 F 181.

7C. Royal Mfg. Co. v. Rahway \[N. J. Law\] 67 A 940.

7B. Certioriori. Royal Mfg. Co. v. Rahway \[N. J. Law\] 67 A 940. Assessment 1ot being a judicial function. Gen. St. 1905, & 8343, authorizing appeal from county board of equalization to district procedure,91 and the scope of the relief which may be granted.92 The general rules

assessment of its property returned for taxation, because of refusal of county court and assessor to deduct indebtedness of such corporation from its money, credits, and investments. Bluefield Waterworks & 44 85 64. Under "Person aggrved," as used in Rev, Laws, Sess. Laws 1905, p. 341, certificates of error may be issued by board of county commissors in certain specified cases, but cannot be issued in cases not specified. Bostick v. Noble County Com'ras \[OkL.\] 91 P 1125. Action of state board of equalization and assessment is in nature of a final order, and is reviewable by petition in error. State v. Board of Equalization & Assessment \[Neb.\] | 115 NY 789. Except as authorized by the legislation, the courts,cannot review the wisdom, justice or equity of an authorized tax. State v. Marion County Com'ras \[Ind.\] 82 NE 482. Facts not reviewable on appeal under Baltimore city charter, $ 170, to court of appeals from Baltimore city court on appeal from appeal tax court as to assessment. Hamburger v. Baltimore \[Md.\] 88 A 23. Order of city court that "it appearing to the court that the property in question as shown by the evidence was so far completed," etc., as to be assessable, and that it was legally assessed, held not to present a question of law as to validity of assessing ordinance. It. Statutory appeal of the taxpayer from the action of the board of assessors brings up only the question of his own individual assessment. Other assessments cannot be considered for purpose of reducing the official valuation below the standard of the actual cash value as fixed by law. Pons v. Assessors for parish of Orleans, 118 La. 1101, 43 S 893. Where county board of taxation increased valuation, thus reducing rate, and assessor sent bills not based on original rate and increased valuation, on appeal by township from action of state board of equalization, increasing the valuation of a taxpayer's property and decreasing his rate, the court had no authority to review the action of county board in making such increase of valuation. Wayne Tp. Passale County v. Laffin & Rand Powder Co. \[N. J. Law\] 68 A 909. Appeal from treasurev's assessment of omitted property is of same scope as appeal from board of review, the whole matter of making the assessment being open to inquiry. In re Seaman \[Iowa\] 113 NY 354. On appeal from local board of review the district court may consider objection that apellent is nonresident and not subject to the tax. Shirk v. Monmouth Board of Review \[Iowa\] 114 NY 884. Al- locatur to writ of exterior denied to bring up question of valuation where no principle of law was involved and question of fact had been passed upon adversely to prosecutor by county board of taxation and state board of equalization. Colonial Trust Co. v. Scheffey \[N. J. Law\] 68 A 455. Cortorari to review assessment is, under the statute, substantially a new trial, the petition being the complaint, and the return the answer, and general rules of pleading being applicable. People v. Stillwell, 190 N. Y. 284, 83 NE 56. Under Acts 1898-99, p. 188, and Gen.

as to saving questions for review apply quite generally,"\[88\] including those as to invited error " and presumptions in favor of the decision below."

The jurisdiction of the Federal courts is controlled by the same considerations as in other cases."

SS 7. _Levies and tax lists._ See & C. L. 2076--The word "levy," as applied to taxes, is commonly employed to designate several different proceedings, from the laying or imposing of the tax to its collection." All of these proceedings are treated in other sections," except the original laying or imposing of the tax, which is here treated. Subject to constitutional limitations," the levy of taxes is entirely statutory "

\[Iowa\] 112 N NV 829. Circuit court, upon as latter stated that his client would not sustaining an appeal under Ky. St. 1903, agree to giving any further inventory and $ 4241, assessment of omitted property, will stated that he, the attorney, knew nothing not assess it, but will leave the assessment about the value of the property. People v. to the county court. Commonwealth v. Ferguson, 120 App. Div. 563, 105 NYS 388.

Paducah, 31 Ky., L. R. 528, 102 SW SW 882. On

SS. Assessment presumed correct until appeal from board of county commissioners, proved otherwise. Pons v. Assessors for the district court takes appellate jurisdicdic-

Parish of Orleans, 118 La. 1101, 43 S 891.

tion only, and cannot grant equitable re-

Assessment, as ultimately fixed by state

Ife, and thus assume a jurisdiction which

board, is final, except upon appeal to the

the "inferior tribunal did not have. Bostk

strict court, and should not be disturbed

v. Noble County Com'rs \[Okl.\] 91 P 1125.

even on such appeal unless it clearly appears that it is erroneous. First Nat. Bank

83. Time of objections: An objection to a

v. Webster County \[Neb.\] 113 NV 190. An

taxapayer's statement, filed with the assess-

increase of valuation by a duly authorized

when filed, and cannot be made after such

board will be presumed, in the absence of statement has been acted upon. People v.

a contrary showing, to have been made upon

Ouderkirk, 120 App. Div. 650, 105 NYS 134.

a determination of the necessity therefor.

Questions not raised below: Petition and

Wayne Tp. Passate County v. Lafin & Rand

return on certiorari must not only raise an

Powder Co. \[N. J. Law\] 68 A 00. On certiorari, relator has the burden of verceom-

issues but must show one raised before the

tion by the reviewing court, and where no

sust issue is disclosed, such court will determine the case solely upon the evidence

overcoming presumption in favor of findings

adduced before the assessors. People v. Hall, 109 NYS 402. On certiorari under

Estherville \[Iowa\] 112 NW 829.

Laws 1896, p. 882, c. 908, $ 250, hearing on

petition, writ and return does not involve

question of petition? residence where only

objection before assessors and in petition

Dodge County \[Neb.\] 113 NW 805. Where, was one of overvaluation, People v. Kaufman, 111 Apr. Div. 599, 106 NYS 305. On

tertiary, capricious and wholly without justif-

certiorari, under Laws 1896, p. 882, c. 908, $ 250, requiring application for correction

to proper officers as condition precedent to

review by certiorari, only such objections

as are presented to such officers will be

the company had no reality, poles or wires

reviewed. People V. Supervisors of Nassau

County, 54 Misc. 323, 104 NYS 383. Violation

of Rev. St. U. S. $ 5219, relating to taxation

of national bank stock, cannot be raised for

first time, in argument upon merits, on

appeal from state board of equalization.

First Nat. Bk, v. Estherville \[Iowa\] 112 NW

829. Requests for special findings may be

presented to state board of equalization and

assessment, but ruling thereon will not be

reviewed on error unless saved by bill of

exceptions settled and allowed as provided

by statute. State v. Board of Equalization

& Assessment \[Neb.\] 116 N NV 789. Man-

damus will not inoltie to compact board to spread

on record matters not properly a part

thereof, remedy being by bill of exceptions.

1d.

84. Reduction of assessment asked for on

ground of disproportionate valuation

revised on certiorari where taxapayer refused

to appear before assessors as required by

them pursuant to Laws 1896, p. 810, c. 908,

$ 36, to be examined as to bh complaint,

though the appeared by attorney, especially

1d.

1808 TAXES SS 7. 10 Cur. Law.

and must be made as provided by statute,91 the primal elements of the levy, aside from the power to levy 92 and the formal requisites of the levying statute or ordinance,98 being the time,94 purposes,99 amount,96 and rate,97 and the persons 98 and

St. 1906, p. 287). Black v. Early, 208 Mo. 281, 106 SWV 1014.

90. School Directors Dist. No. 155 v. School Directors Dist. No. 154, 221 Ill. 322, 83 NE 231 Ill. 109, 83 NE 115. Certificate that $49. Cannot be made by a court of equity. Id.

01. Levy held in language of code and surficient. Yow v. Sullivan, 129 Ga. 187, 58 SE 662. Order of country authorities of Frank-

1906, providing for Co., 231 Ill. 428, 83 NE 116. More opinion

1905, making same conform to law as laid down when this case was before supreme

1915, making same conform to law as laid down when this case was before supreme

1928, covering towns under the cash system. People v. Clincinnati, etc., R.

1935, covering towns under the cash system. People v. Clincinnati, etc., R.

1940, providing for Co., 231 Ill. 428, 83 NE 116. "For specific

1952, covering of roads and revenues of

1964, providing new and independent levy for 1996,

1975, making same conform to law as laid down when this case was before supreme

1983 NE 117. Statement that bridges were be-

1995, making sure and needed repair held in-

1996, providing usnar and needed repair held in-

1997, providing usnar and needed repair held in-

1998, providing usnar and needed repair held in-
property subjected thereto.99 The rate may be increased at the beginning of a new fiscal year, though such date is the middle of a calendar year to which the former rate applied,1 and in such case it is within the discretion of the legislative body whether equitable provision shall be made for the unexpired year.2 Curative statutes do not generally cure fundamental defects,3 but the making of a void levy does not preclude a subsequent valid levy.4

Footnote 10: Curr. Law. TAXES SS 8.

\_Mandamus_8 lies to compel a municipality to exercise its taxing power in a proper case.

\_The record.\_See s C. L. 2077--The jurisdiction of equity cannot be invoked to correct a tax record made by a tribunal competent to correct its own records, especially where such correction has already been made.9

Footnote 11: Congress has such power in District of 10 Curr. L--114.

SS 8. \_Payment and commutation.\_See s C. L. 2077--Payment need not always be made in money.7 Payment may be proved by the original receipt,8 or by any other evidence, oral or documentary, sufficient to satisfy the court.9 Where the taxpayer testifies that he paid all the taxes demanded of him, testimony as to the amount of the check given by him in making such payment is admissible.10 Where the plaintiff claims to have lost his tax receipt, evidence of the form of receipts given at the collector's office is inadmissible where it is not proposed to show the contents of the language of Pol. Code 1895, SS 404, par. 2, Columbia. American Security & Trust Co. and to sufficiently specify the purpose for which it was levied. Gaines v. Dyer, 128 2. Where trust company had paid whole of its taxes prior to July 1, 1902, for calcn- 96. Authority under Hurd's Rev. St. 1905, ch. 121, SS 13, to levy additional highway and bridge tax upon commissioners' certificate of contingency, extends only to amount neces- 137 to meet the contingency. People v. Peoria, etc., R. Co., 232 Ill. 540, SS 3NE 1054. Limitation placed on amount of levy by Laws 1899, p. 44, c, 41, includes sinking fund levies. Fremont, etc., R. Co. v. County of Pennington \[S. D.\] 118 NW 75. Law requires the different percentages to follow each item, and the aggregate, as indicated by the addition of these percentages, is the vuld tax, and any other statement conflicting therewith is mere surpluscase. Yow v. Sullivan, 129 Ga. 187, SS 85 SE 662. Levy by city in excess of limit fixed by Const. 5 157, is void. Harper v. Catticutburg, 31 Ky. L. R. 293, 102 SWP 294.

Footnote 10: Curr. Law. TAXES SS 8.

Footnote 1809

Footnote 19: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 10: Curr. Law. TAXES SS 8.

Footnote 1809

Footnote 19: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 10: Curr. Law. TAXES SS 8.

Footnote 1809

Footnote 19: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 10: Curr. Law. TAXES SS 8.

Footnote 1809

Footnote 19: The author is grateful to the anonymous referee 1810 TAXES $ 8. 10 Cur. Law. receipt which was given.11 Payment in the wrong place does not preclude collection in the right place,12 nor does the voluntary payment of a void tax constitute payment of a valid tax upon the same property.13 The taxpayer, however, is not chargeable with the mistakes of the collector,14 but the state is not estopped to apply payments as required by law by the acts of its officers in accepting check vouchers calling for a different application,15 nor by the failure to enforce the penalties for the nonpayment of the taxes thus rendered in arrear.16 Where the tax receipts do not indicate any other appropriation, payments must be applied to liabilities in order of date.17 Apportionment of taxes between the subdivisions of a tract assessed as a whole is sometimes provided for by statute,18 and so also as to the listing of persons who have paid their taxes.19 An executive officer charged with the duty of receiving payment of taxes must accept such payment when tendered without regard to controversies as to the ownership of the property.20 Unless clearly so authorized by statute,21 neither state nor municipal officials can release taxpayers from liability for taxes accrued,22 and even the power of the state in this regard is subject to constitutional limitations.23

11. Trexler v. Africa, 33 Pa. Super. Ct. 395. 12. Payment in county other than that of the receipts. T. McAvellan, 119 La. 161. 43 S 992. In such case an affn-residue. Cover v. Hatten \[Iowa\] 113 NW 823. 20. Where an assignee of an original or prior certificate of sale of school lands ten-oxygen and used by railroads but leased to telegraph company for commercial business, erroneously returned by railroad as railroad and the treasurement to receive and receipt for the connection such line as telegraph property under Code, $ 123$. Chicago, etc., R. Co. v. Rhein \[Iowa\] 112 NW 823. 14. Tax lien held discharged by payment of amount stated by treasurement as the amount due on two tracts of land. Trexler v. Africa, $3 Pa. Super. Ct. 895. Where owner required as to what taxes were due on land he had purchased and paid all that he was apprised of sale for other taxes, of which he was not informed, was void. Taylor v. Debritz \[Vwash\] 93 P 528. Where taxpayer sent treasurement more than enough money to pay the tax, the tax and lien thereof were discharged. Loving v. McPhail \[Vwash\] 92 P 944. 15. Whether payments were applicable to tax under tenant act of 1869 or railroad tax act of 1884. State v. United New Jersey R. & C. Co, \[N. J. Law\] 68 A 796. 16. Payments made applied to taxes due under transit act 1869, and taxes under railroad tax act 1884, thus rendered in arrears. State v. United New Jersey R. & C. Canal Co, \[N. J. Law\] 68 A 796. 17. State v. United New Jersey R. & C. Co. \[N. J. Law\] 68 A 796. 18. Mandamus lies to compel city council of Bayonne to apportion taxes among proper subdivisions of parcels of real estate as provided by P. L. 1803, p. 411, the charter of such city, and by Martin Act. Morris & Cummings Dredging Co. v. Bayonne \[N. J. Law\] 67 A 20. 19. Supreme court has no jurisdiction of suit by citizens and taxpayers to compel compliance with law requiring list of those who have paid poll taxes to be filed in office of clerk of court, such a suit not being one of which the court has jurisdiction, regarding: leese of amount In controversy, and the amount not being sufficient. State v. Briede, 10 Cur. Law. TAXES SS 10. 1811

SS 9. \_Lien and priority.\_See 8 C. L. 1978--Compliance with statutory requirements is essential to the creation of a lien for taxes.\[24\] When once created, however, the only way to discharge it is to pay the taxes.\[25\] A sale of the property for the taxes does not discharge 26 or affect 27 such lien, except that it is transferred to the purchaser.\[28\]

Liens created before the tax lien attaches take precedence over such lien.\[29\]

SS 10. \_Belief from illegal taxes.\_See 8 C. L. 1978--Equity will not interfere with the collection of a tax in the absence of some recognized ground for equitable relief,\[30\] such as lack of adequate remedy at law\[31\] and irreparable injury.\[32\] Accordingly, an injunction will not be granted on account of nonjurisdictional irregularities,\[34\] nor on account of excessiveness of the assessment\[34\] or overvaluation of the property,\[35\] especially where such injunction would invalidate the whole levy,\[36\] nor to restrain the collection of a personal property tax,\[37\] except in rare instances,\[38\] nor can the existence of a de facto taxing district be collaterally attacked in a suit to restrain the collection of the tax.\[38\] The complainant must, moreover, have paid or tendered such portion of the taxes as were equitably due.\[40\] Where the case is properly

has vested in state. In re Martin's Batato \[Call\] 94 P 1053. 24. Fliling with treasureer of tax l1st with- 120, 81 NE 334. 85. Tax based on assessment made by state board of assessors, under Burns' Ann. property under $ 129, since "tax books" \[Kuisville & J. Bridge Co. (Ind. 83 NE 337. 36. Fluney County Com'rs v. Bullard \[Kcan.\] 94 P 129. 25. Hollywood v. K kmus \[Ind. App.\] $3 NE 730. 26. City Safe Deposit & Agency Co. v. Omnah \[Neb.\] 112 NW 598. 27. Sale of land pursuant to Laws 1899, p. 410, c. 822, does not change date of lien of state for prior delinquent taxes, where they and judgments therer are valid. In re Brodie \[Alinn.\] 113 NW 2, 28, See post, p. 14B, Rights and Estate Acquired by the Purchaser, 28. Lien of chattel mortsage, taken before tax books are delivered to treasureer, is superior to len of taxes for that year created by such delivery, under Laws 1879, p. 332, $ 129. Platate Valley Mill. Co. v. Malmsten \[Neb.\] 113 NW 239. 30. Decision of board of equalization held final in absence of fraud or other grounds authorizing resort to equity. Fluney County Com'rs v. Bullard \[Kcan.\] 94 P 129. Injunction will not be granted in absence of such grounds. Id.; Gray v. School Inspectors of Peoria, 231 III. 63, 83 NE 95. 81. Hallett v. Arapahoe County Com'rs \[Co.\] 90 P 678. 32. Hallett v. Arapahoe County Com'rs \[Co.\] 90 P 678. 33. Hallett v. Arapahoe County Com'rs \[Co.\] 90 P 678. 33. Fraud in the assessment, if ground for injunction regardless of the legal remedy, is not ground for such relief in the absence of injury. Id.; 33. Gray v. Inspectors of Peoria, 231 III. 63, 83 NE 95. Equity will not enjoin the tax merely on the ground that it was l1-legally leveled, but will remult the object to his remedy at law, it appearing that the tax is not illegal and that the authorities had power to impose it. Shriver v. McGregor, 224 III. 897, 79 N 706. 34. Fluney County Com'rs v. Bullard \[Kcan.\] 94 P 129. Excessiveness is not of itself fraud. Id. While equity will not review assessments on the ground that they are excessive unless the assessment is one of equitable cognizance, there being no adequate remedy at law,\[41\] injunction is the proper remedy against the collection of the tax,\[42\] as where the assessment was fraudulently made,\[43\] or without jurisdiction,\[44\] or levied under an unconstitutional law,\[45\] or upon exempt property,\[46\] or upon property not owned by the complaintant,\[47\] or where the taxes have been paid.\[48\] Federal courts have jurisdiction to enjoin the enforcement of state taxes in violation of the Federal constitution,\[49\] such a suit not being a suit against the state,\[50\] but in the absence of fraud or a clear showing of the adoption of wrong principles, a Federal court will not enjoin the collection of a state tax on account of the methods pursued by the state board in valuation of the property.\[51\] The owner may sue to restrain a sale under an illegal levy, though he was not the owner when the levy was made,\[52\] and so also an owner of land may sue to enjoin the collection of illegal taxes on permanent improvements placed thereon by a lessee thereof, such taxes being in effect a tax on the land or at least on the rents.\[53\] The collector is a proper party defendant,\[54\] and the assessing authorities may be brought in at their own request.\[55\] Most of the questions relative to pleading in such suits may be solved by the application of the general principles of pleading.\[56\] The jurisdictional amount involved in a suit to restrain the enforcement of a tax upon exempt property is the value of the exemption.\[57\] The court will not go outside of the record to ascertain if the tax can be sustained upon grounds or

relief. Platte Valley Mill, Co. v. Malmsten \[Neb.\] 113 NPV 229,

41. Existence of adequate remedy by way of suit to recover back the taxes paid held on negatively by allegations of bill. Raymond v. Chicago Union Trac. Co., 28 S. Ct. 7.

01. City of Baltimore v. Gall \[Md.\] 68 A 282, Under Const. 1895, art. 5, 8 4, supreme court has jurisdiction where no other remedy has been provided by statute, to enjoin collection of illegal tax, notwithstanding Code 1902, 412, providing that collection of taxes shall not be impeded by injunction, etc. Ware Shoals Mfg. Co. v. Jones \[S. C.\] 58 SE 811.

01. VIII enjoin assessment of taxes upon credits fraudulently added to the schedules by the assessor. Bates v. Parker, 227 Ill. 120, 81 NNE 334.

01. Judgment of state board of equalization rendered without a quorum. Smoky Mountain Land, Lumber & Imp. Co. v. Lattimore \[Tenn.\] 105 SW 1028. Municipal tax was levied on property outside of its jurisdiction. Hemple v. Hastings \[Neb.\] 113 NPV 187. Preliminary injunction granted for lack of notice to taxpayer. Caldwell Land & Lumber Co. v. Smith \[N. C.\] 59 SE 653.

Injunction proper where notice of assessment was not given as required by Ky. St. 1903, $ 412, though taxpayer had remedy under $ 4128 by applcation to county judge. Mt. Sterling Oil & Gas Co. v. Ratlipp, 81 Ky. L. R. 1229, 104 SW 993.

45. Green v. Hutchinson, 128 Ga, 379, 57 SE 353.

01. University of the South v. Jetton, 155 F 182; Bates v. Parker, 227 Ill. 120, 81 NE 334.

01. Will enjoin collection of taxes where board of review arbitrarily added a large sum to his assessment. Bates v. Parker, 227 Ill. 120, 81 NE 334.

01. Payment by complishment's agent in another county where property was located. See 4 Burns' Ann. St. 1905, $ 421, exception

01. Nyee v. Schmoll, 40 Ind. App. 555, S2 NE 539. Where taxes which were levied on property as realty have been paid as a tax on personally. Hanberg v. Western Cold Storage Co., 231 Ill. 32, 82 NE 842.

01. On ground that collection of tax imposed by statute impairs contract of exemption. University of the South v. Jetton, 155 F 182; Whitman College Trustees v. Berryman, 156 F 112. Jurisdiction not affected that the unconstitutionality complained of lies in the erroneous interpretation of the statute by the state officers. University of the South v. Jetten, 155 F 182.

01. University of the South v. Jetten, 165 F 182.

F 182.

51. Western Union Tel. Co. v. Wright, 168 F 1004.

01. Clearwater Timber Co. v. Shoshone County, 155 F 612.

01. University of the South v. Jetten, 155 F 182.

01. Sheriff held proper party to suit to enjoin collection of tax upon unlisted property in his hands for collection. Caldwell Land & Lumber Co. v. Smith \[N. C.\] 59 SE 653.

01. County commissioners. Caldwell Land & Lumber Co. v. Smith \[N. C.\] 59 SE 653.

01. The facts supporting an allegation of fraud and arbitrary action in making the assessment must be stated. Hallett v. Arabahoe County Corn's \[Co.\] 90 F 678. Fall- under statutes other than those upon which it is expressly based and upon which it is expressly founded.\[58\] A finding as to the amount due for back taxes cannot be corrected by the trial court after affirmance and remand.\[59\]

As a general rule equity will not interfere by injunction where no attempt has been or is being made to collect the taxes,\[60\] especially where there would be other adequate remedies if collection should be attempted,\[61\] and, a fortiori, an assessment will not be enjoined in anticipation that it will be made in an illegal manner,\[62\] but in some cases a proposed illegal valuation will be enjoined.\[63\]

Injunction is not the only equitable remedy available against illegal taxes, and in a proper case a suit to remove the cloud created by such taxes on realty may be maintained,\[64\] and a preliminary injunction may issue therein.\[65\] A court of equity cannot correct errors in an assessment map.\[66\]

\_Recovery back of payments.\[See e C. L. 2019\]\_The right to recover back taxes paid under compulsion is not entirely dependent upon statute,\[67\] but such right has very generally been recognized by statute\[68\] and more or less enlarged.\[69\] Illegal taxes, therefore, may be recovered back by the taxpayer,\[70\] provided they were paid under such duress\[71\] or protest\[72\] as renders the payment, in legal contemplation, involun-

58. University of the South v. Jetten, 156

cloud created by spreading of tax on tax

F 182.

coll, and incidentally to prevent collection

59. Such finding not corrective as clerical

of the tax. A. H. Stange Co. v. Merrill \[fVis.\]

misprision. City of Lexington v. Walsh's

115 NY 115. No adequate remedy at law

Trustee, 31 Ky. L. R. 446, 102 SWV 891.

against illegal certificates of delinquency of

60. More claim of right to collect taxes

several lots, bearing exorbitant rate of in-

not sufficient, Lallett v. Arapahoe County

terest, and constituting lien on lots under

Conr's \[Colo.\] 90 P 678.

law of Washington. Whitman College

61. Injunction will not lie to restrain levy

Com'rs v. Berryman, 156 F 112.

of municipal tax, the taxpayer having adge-

63. A. H. Stange Co. v. Merrill \[VVis.\] 115

quate remedies either at law or in equity in

NV 115.

case of the attempted collection of such tax.

64. See Const. art. 9, 1, and Hurd's Rev.

-Payment under protest and suit to recover

St. 1905, c. 120, $ 276, 277. School Directors

back tax on personality, and suit to remove

Dist. No. 153 v. School Directors Dist. No.

cloud if such levy is made upon ready, are

154, 322 Ill. 322, 83 NE 849.

adequate remedies. Lewis v. Eagle \[Vis.\] 67. A. H. Stange Co. v. Merrill \[Vis.\] 115

115 NWV 361. Levy of income tax under

NV 115.

Civ. Code 1902, $ 328-331, will not be en-

68. See act 1870. A. H. Stange Co. v. Merrill \[VVis.\] 115

jolined, remedy being under City. Code 1902, $ 115 NWV 115.

$ 413, by payment under protest and action

69. A. H. Stange Co. v. Merrill \[Vis.\] 115

to recover back. Fleming v. Power, 77 S. C.

528, $ 58 SE 430. Possibility of subsequent

70. Railroad required to pay taxes leveid

assessments under the invalid levy, not-

by country for state purposes may recover

withstanding the decision of the court allow-

same back. Atchison, etc., R. Co. v. Sumner

ing a recovery back of the payments on

County Com'rs \[Kan.\] 92 P 590. Petition

the ground that the levy was invalid, is too

held to state cause of action. Id. Taxpayer

remote to constitute ground for injunc-

may recover excess collected over and above

then. Id.

62. Assessment of national bank stock and

Constr. 157. Boone v. Powell County \[Ky.\]

reality. First Nat. Bk. v. Albright, 28 S. Ct.

108 SWV 251.

349.

001. An involuntary payment such as will

authorize the recovery back of the payment

assess corporate stock and "taxpayer has no

if the tax is illegal is payment under duress

appeal. Schley v. Montgomery County

of process against the person or property.

Com'rs \[Md.\] 67 A 250.

74. Proper to cancel levy of tax to pay

vater reents under contract with water com-

by canceled by city. Regan Land Co. v.

Carthage \[Mo. App.\] 108 SWV 589. Water

company and tax collector held not necessary

partles defendant to such suit. Id. Such

suit held proper remedy against certificates

of delinquency issued under laws of Wash-

ington. Whitman tary," and provided the plaintiff has complied with the conditions precedent required by law," and, where the assessment is intrinsically illegal, such recovery is not precluded by failure to take advantage of the usual remedies for correction or review," or by the fact that the plaintiff has been guilty of fraud in connection with his assessment and will thereby escape the payment of his just proportion of the public expenses." Nor is a national bank estopped by the act of its cashier in listing its capital stock from recovering back the tax paid thereon under protest." A recovery cannot be had, however, on account of mere irregularities not invalidating the tax " and not affecting its equity or justness," especially where the taxes are voluntarily paid." Where a taxpayer sues for himself and all other taxpayers of the county, the fact that his proportion of the tax is very small will not preclude him from maintaining the suit." The incapacity of a county to be sued extends to a suit to recover taxes paid by mistake," but the collecting or disbursing officer having possession of the taxes collected may be sued therefor." Where the assessor is not bound to accept the taxpayer's statement as to ownership of the property, the former is not personally liable to the latter for taxes erroneously assessed in disregard of such statement." Where the case made by the pleadings is for the recovery back of taxes paid, and it appears that they have not been paid, the court cannot enjoin their collection." In a statutory action for the recovery back of taxes paid, interest is not recoverable except as authorized by the statute." On appeal it will be presumed, in the absence of a contrary showing, that the tax was regularly levied."

Payment to prevent threatened levy held

supervisors failed to attach his affdavit to sufficient foundation, under St. 1898, $ 1164.

assessment book before delivering same to A. H. Stange Co. v. Merrill \[YW1.1\] 115 NVP

county auditor as required by Pol. Code, I15. Since under the statute a mere protest

of illegality and notice of intention to sue

to recover the taxes back is sufficient, it is

redcome property sold for tax assessed irregas-

immaterial whether there was personality

subject to levy and an impending levy thereon. Id. Evidence held to sustain finding

659. No equity entitling plaintiff to recovery

for recovery of taxes paid under protest.

Rice v. Muskegon, 160 Mich. 679, 14 Det. Leg. N. 820, 114 NVP 661.

73. Invalid taxes voluntarily paid cannot

be recovered back. City of Eugene v. Lane

County \[Or.\] 93 P 255. Where notice to file

account of rattable property specified date

prior to date for determination of ownership

and valuation, as required by Gen. Laws

1896, 45, $ 6. Mattson v. Warwickk &

Coventry Water Co. \[R. I\] 68 A 577.

74. Under Los Angeles City Charter, $ 208, 209, 216, 224, suit under Pol. Code, $ 3819 to recover back taxes paid under protest,

cannot be maintained in absence of allegation and proof of presentation of the claim

to the city and the rejection of such claim.

Farmers' & Merchants' Bk. v. Los Angeles,

151 Cal. 655, 91 P 795.

75. Where plaintiff had no property liable

to assessment. Rice v. Muskegon, 150 Mich.

679, 14 Det. Leg. N. 820, 114 NVP 661.

76. Where plaintiff, under duress of void

warrant, paid taxes on personality originally

omitted through his own fraud, Rev. St. 1901,

$ 1609, 759, making no provision for assignment of omitted personality. Douglas

County Com'rs v. Lane \[Kan.\] 90 P 1092.

77. Weiser Nat. Bk. v. Jeffreys \[Idaho\] 95

01. Tax must be void, a mere nulitty.

Steele v. San Luis Obispo County \[Cul.\] 93 P

1020. Under Pol. Code, $ 3819, no recovery

can be had merely because clef or board of

79. Where no provision of the tax

01. Under Pol. Code, $ 3819, interest is not

01. Where no provision of tax

01. Ratiff's Exrs v. Com., 31 Ky. L. R.

154, 101 NVP 978.

82, 83. First Nat. Bk. v. Christian County

\[Ky.\] 106 SW 831.

84. Dog tax. Hopkins v. Leach, 109 NYS

01.

01. Nashville, etc., R. Co, v. Marion County

\[Tenn.\] 108 SWV 1058.

86. Under Pol. Code, $ 3819, interest is not

recoverable on taxes paid under protest until

judgment for return of such taxes. Miller

V. Kern County, 150 Cal. 797, 90 P 119: Kern

Vuley Water Co. v. Kern County, 150 Cal.

801, 90 P 121.

87. Assessment of railroad. Baltimore,

etc. R. Co. v. Oregon Tp. of Clark County

\[Ind.\] 84 NVE 529.

- 10 Cur. Law. TAXES SS 11A.

\_Refunding.\_See & C. L. 2019

SS 11. \_Collection. A. Collectors; their authority, rights and liabilities.\_See & C. L. 2008--Specific statutory provisions cover most of the questions relative to the appointment, 88 term, 89 authority, 90 duties, 91 liabilities, 92 and compensation 93 of tax collectors. A collector cannot act outside of the territorial limits of his authority. 94 He holds the funds collected in trust for the state or municipality, as the case may be, 95 and such funds may be followed into the hands of parties receiving them with notice. 98 A collector may be compelled by mandamus to apply tax collections as required by law. 97 Under statutory provisions, a collector's settlement may be assailed by excepc-

SS, Under Act July 2, 1895 (P. L. 434), der Rev. St. 1901, par. 3917, as amended by court of quarter sessions may appoint new

Lows 1003, D. 166, No. 92, as to whether or collector when office of township collector is

not he must suce for taxes, but must suce as vacated by creation of borough out of part

required by act. Territory v. Gaines \[ArHz.\] of township wherein collector resides. Commonwealth v. Topper \[Pa.\] 68 A 666. Under

collector, in the absence of statute to the general authority conferred by Const. art. 9,

contrary, to take notice of the levy of taxes

$ 14, to provide for county officers not specified by constitution, the general assembly

of a county levy is not necessary to charge

had power to enact Rev. St. 1898, $ 7028, relative to filling by appointment by gov.

wealth v. Wade's Adm?, 18 Ky. L. R. 1185,

error of vacancy in office of county revenue

collector created by $ 8203. State v. Herring,

extent of one-third of county taxes, may, as

208 Mo. 708, 106 SVW 984. Under Ky. St. 1803,

a party beneficially interested, maintain

$ 4131, the authority of the county to appoint

comlector of county taxes where there is no

force payment of taxes. Territory v. Gaines

sheriff extends to appointment of only one

\[ArHz.\] 93 P 281.

collector is the same time, and separate

PA. Town treasurer under VT. St. 480 can

lectors cannot be appointed for general and

only be held to account for the amounts of

special taxes. Commonwealth v. Wade's

tax bills committed to him in excess of the

Adm?, 13 Ky. L. R. 1185, 104 SVW 965.

money actually received by him. Town of

89. Under Act July 2, 1895 (P. L. 439),

Brookfield v. Bigelow, 80 Vt. 428, 68 A 656,

where borough is created out of part of

Under Code 1892, $ 3819, 3820, 3824, collector

township, and township collector reside in

is liable for breach of bond where he falls

part so taken, his office becomes vacated, the

act, by implication, disqualifying the incumum-

the purchaser. Bank of Indianapolis v. Dodds

bent. Commonwealth v. Topper \[Pa.\] 68 A

\[Miss.\] 44 S 87. Tax collector not liable for

666. Term commences at time and con-

interest on such overshocks. Id.

tinues for the term prescribed by statute.

\*\*93. Under St. 1903, $ 1884, 4148, compensa-

Rev. St. 1897, $ 9203, 9267, 9247, 7028, relative

to term of county revenue collector

computed upon aggregate amount, 10 per

strued, in view of Const. art. 9, $ 14, limiting

cent on first $5,000, and 4 per cent on bal-

terms of country officers to four years. State

v. Herring, 208 Mo. 708, 106 SVW 984.

\*\*90. Under act June 25, 1885 (P. L. 187), the

collectors of taxes are only ones authorized

piration of his term held to cover only collect township and borough taxes re-

lections by or through proceedings begun or

spectively, to exclusion of powers, etc., of

collector of school tax under former system.

Zeisz \[Ky.\] 108 SVW 349. Commissions on

Commonwealth v. Topper \[Pa.\] 68 A 666. Un-

capitation taxes provided for by Code 1906,

der City and Towns Act, Acts 1905, 228, at

c. 129, $ 43, 195, 197, 200-208, city taxes

tion for collection, and he is not entitled to

are collected by county treasurer and turned

further compensation under chapter 30.

over to city treasurer, by former, in county

seat cities of first, second and third classes,

\*\*94. Collector of one county cannot execute

being also city (treasure tion "\*" or by suit to surcharge the same." A collector is not liable for expense of setting aside judgment of tax foreclosure caused by his failure to give the owner credit for taxes paid.1 He is liable on his bond for a refusal to discharge his duties 2 and for all deficits and defaults in his account,s but his sureties are not liable for collections which he was not legally bound to make * and are entitled to the benefit of all payments legally made.5 Where the bond is given to the state for the benefit of all subdivisions thereof, one of such subdivisions may intervene by scire facias on a judgment in favor of other subdivisions.6 In the absence of any showing of error, a county is bound by a payment by a surety accepted as in full of his liability under a judgment against him and his principal,7 and the statements of the county treasurer at the time of such payment are admissible against the county.8 Payment of a tax judgment to one unauthorized to collect it will not be enjoined.9 A petition by an officer for commissions must disclose facts entitling him to such commissions.10

Footnote 13: http://www.

debt in the ordinary sense of the latter word,\[11\] cannot, unless expressly so provided by statute, be enforced by the forms of action ordinarily applicable for the recovery of a debt,\[12\] but the same considerations do not render such forms of action inapplicable after judgment adjudicating the liability.\[13\] Statutes relative to the collection of taxes must conform to constitutional limitations.\[14\] The power to provide for collection is implied from the power to assess.\[15\] In some cases an accounting may be had.\[16\] A national bank may be required to pay the tax on its shares of stock, its recourse being against the stockholders.\[17\]

(SS 11) \_C. Procedure to enforce collection. Limitations.\_See s C. L. 2081.\_The limitation upon a suit to collect a tax may depend upon the nature of the liability therefor, as whether it is contractual \[18\] or is a liability created by statute.\[19\] A limitation imposed by a statute providing the mode of collection does not apply to a tax not enforcible by such mode.\[20\] The question as to whether the limitation has run necessarily involves questions as to the accrual of the cause of action \[11\] and the tolling of the statute.\[22\]

\_Notification.\_See s C. L. 2081.\_Three kinds of notice are involved in the collection of taxes, viz.: Notice of delinquency, notice of judicial proceedings to enforce the tax, and notice of sale.

The notice of delinquency, commonly called the delinquent list, must conform to statutory requirements both as to formal matters, such as verification \[28\] and

11. See ante, SS 1.

01. Indebitatus assumpul not applicable. United States v. Chamberlain \[C. C. A.\] 156

1213, held action based on contract, and sub-F 881.

13. Judgment and order for sale of land and forfeiture to state. People v. Interna- \[Wis.\] 112 NW 515.

01. Laws 1903, p. 162, No. 92, held a general law. Territory v. Gaines \[Ariz.\] 93 P 281. Act March 27, 9, 1907, art, 5, 24, providing for sale of corporate stock on which taxes are not paid by Sept. 1, in any year, held contrary to Const. art. 11, SS 8, relating to class legislation, all other property being delinquent July 1, in any year. Malone v. Williams, 118 Tenn. 390, 103 SW 798. Act March 27, 1907, art. 5, SS 23, authorizing difriets for personality taxes assessed against persons about to move out of city, etc, whether delinquent or not, held violation of Const. art. 11, SS 28, prohibiting class legislation, and of Const. art. 1, SS 8, relating to due process of law. Id. Laws 1905, p. 502, 228.

01. 3, authorizing discovery in action to enforce railroad annual gross earnings tax, held valid, notwithstanding that discovery cannot be had in other suits, Rev. St. 1899.

01. 5409, having abolished bills of discovery. State v. Chicago & N. W. R. Co. \[Wis.\] 112 NWF 515. Clintation on action for false re- \[Wis.\] 112 NVV 515. Statute held not invalid as dis- \[Wis.\] 112 criminative, since it applies to all railroads. Id.

01. 18. County commissioners have implied power to authorize aheriff to collect taxes as- \[Wis.\] 112 NVV 515. assessed against unlisted property. Caldwell Land & Lumber Co. v. Smith \[N. C.\] 59 SE 653.

01. Complaint in action to collect gross railroad earnings tax imposed by Rev. St. 1858, SS 1211-1213, held to state cause of ac- \[Wis.\] 112 NWF 515.

fling,24 and as to matters of substance, such as description of the property 25 and the amount due.26 The rule as to idem sonans is inapplicable to delinquent lists.27 Where the record does not show what rate was extended, the collector's delinquent list is presumed to be correct.28

Notice of proceedings to collect taxes is essential to due process of law 29 and to the jurisdiction of the court,20 but it may be waived 21 and is not invalidated by harmless irregularities.23 Published notice of tax foreclousure proceedings must conform to statutory requirements,23 but such service is presumed proper where it is authorized by law in certain cases and there is nothing to show that it was not proper in the particular case,24 and the presumption of jurisdiction arising from the judgment recital of notice is not necessarily overcome by defects in the record.28 Tax foreclosure proceedings being in rem, the property owner is bound to take notice thereof, regardless of the persons to whom the property is assessed,28 but for the same reason the notice must sufficiently describe the property.27

Notice of sale is treated elsewhere.28

_Parties_.See 8 C. L. 2022--Suit for taxes upon the property of an unincorporated association should be against the persons holding the legal title.29

_Pleading_.See 8 C. L. 2022--Defenses must be pleaded as required by statute.26 Exceptions claimed constitute matter of defense to the cause of action and should be pleaded as such.21 Formal defects are not available on demurrer.24

against one claiming under former owner, failure to serve a codefendant. Walker v. a certified copy of delinquent list, void for failure of sheriff to verify it, is admissible to impeach the deceds. Id.

24. Mere errors in the Ming date of the certificate of delinquency may be corrected by order nune pro tune after judgment of foreclosure. Peabody v. Meacham \[Vwash.\] 95 P 322.

01. Designation as part of larger tract, without identifying what part, is insuffinclent, such as 25 A, in 14, Twp. 20, Range 3, Acres 25, year 1894." Miller v. Daniels \[Vwash.\] 92 P 268.

01. Delinquent list need not state separately the items of taxes, penalties and costs charged against the property. Statement of total sum is sufficient. Chapman v. Zobelein \[Cal.\] 92 P 188. Failure of delinquent list to contain characters representing dollars and cents not fatal where the meaning was apparent from the contract. Id.; Fox v. Wright \[Cal.\] 91 P 1005.

01. Collins v. Reger \[V. Va.\] 67 SE 743.

01. People v. St. Louis, etc., R. Co., 230 IL 61, 82 NE 305.

01. Notice of proceedings to foreclose tax

01.

10 Cur. Law. TAXES $ 11C. 1819

\_Evidence.\_See $ C. L. 2008--It is incumbent upon the taxpayer to show irregularities and defects in the levy or assessment \[48\] and prejudice therefrom.\[44\] Where an assessment has become final by operation of law, its finality cannot be affected by extrinsic evidence.\[45\]

\_Judgment.\_See $ C. L. 2008--Where the description of the property is denied, the court has jurisdiction to ascertain the true boundary and to enter a decree accordingly.\[48\] Where the proceedings are in personam, persons not parties thereto are not bound by the judgment or decree.\[47\] There is some conflict as to the effect of the judgment or decree upon persons not parties where the proceedings are in rem, such conflict being the result of the difference between the statutes of the various states as judicially construed, it being held on the one hand that, while the judgment or decree in the statutory suit is against the property and does not otherwise bind the parties,\[48\] the interest of one not a party is not affected,\[49\] while on the other hand it is held that all persons, whether parties or not, are bound by such judgment or decree.\[50\] In Washington one who has paid his taxes may collaterally attack a tax judgment taken upon default on constructive service.\[61\] A judgment foreclosing a tax lien is not subject to collateral attack because the petition did not state a cause of action.\[62\]

\_Execution.\_See $ C. L. 2003--A tax execution must be issued by the proper officer "in his official capacity,\[54\] and must recite the jurisdictional facts.\[58\] The misspelling of the collecting officer's name in the tax execution does not necessarily invalidate it.\[58\] The levy of an execution should be signed by the levying officer,\[61\] but he need not sign by his own personal act.\[58\]

Rev. St. 1898, $ 1211-1213, to state tax for valuation that assessment was not intended each year separately, is defect of form only, to be final. Illinois Cent. R. Co. v. Com. \[Ky.\] and cannot be considered on denumer. State v. Ch'enogo & N. W. F. Co. \[Vis.\] 112 NWV $15. 46. Medland v. Van Etten \[Neb.\] 112 NWV $15. 46. State v. Backus-Brooks Co., 102 Minn. $62. 50. 112 NWV $63. In suit to collect highway tax, burden is on defendant to show that township had not legally adopted labor system under which it was acting and mere inability of clerk to find petition for such system on record was not sufficient to sustain such burden. People v. Toledo, etc., R. Co., 231 Ill. 390, 83 NEV $18. Presumption of legal levy of township highway tax under labor system not rebutted by failure to find petition on which such system is required to be based, after lapse of twenty-three years. People v. Toledo, etc., R. Co., 231 Ill. 514, 83 NEV 193. Where clerk testified that he found a petition, but only one, and that one was insufficient, the burden was sustained of proving that labor system had not been legally adopted. Id. Burden on defendant, in cult under "Scavenger Act," to prove lack of authority to levy city tax. State v. Several Parcels of Land \[Neb.\] 113 NWV $10. Under so-called "Scavenger Act," Opobey's Ann. St. 1903, $ 1061, petition for tax forclosure is prima facie evidence of legality of taxes sought to be foreclosed, and in absence of evidence to overcome such petition, every step necessary to levy a valid tax will be presumed to have been taken. State v. Several Parcels of Land \[Neb.\] 113 NWV 248. 44. State v. Backus-Brooks Co., 102 Minn. $60, 112 NWV $68. Irregularities in method of keeping and making record of state board held not prejudicial. Id. 45. Testimony of ex-member of board of "Valuation that assessment was not intended to be final. Illinois Cent. R. Co. v. Com. \[Ky.\] and cannot be considered on denumer. State v. Ch'enogo & N. W. F. Co. \[Vis.\] 112 NWV $15. 46. Medland v. Van Etten \[Neb.\] 112 NWV $62. 47. Suit in chiancery by levee board as authorized by act 1983. Updegraft v. Marked Tree Lumber Co., 83 Ark. 154, 103 SWV 606. 48. Walker v. Mills \[Mo.\] 109 SWV 44. 49. Walker v. Mills \[Mo.\] 109 SWV 44. Walker v. Mills \[Mo.\] 109 SWV 44. Interests of remainGerman. McCune v. Good-ville, 204 Mo. 306, 102 SWV $97. 50. Sale for levee taxes. Updegraft v. Marked Tree Lumber Co., 83 Ark. 154, 103 SWV 606. 51. Under Laws 1897, p. 190, c. 71, $ 114, making judgment conclusive of prior proceedings except when taxes have been paid. Bullock v. Wallace \[Vwas.\] 92 P 675. 52. Because petition failed to allege ante-cedent sale, though it was also alleged that the party claiming under the foreclosure decrease knew of such sale. Cass v Costs See $ C. L. 1988 are entirely statutory.\[50\]

AppealSee $ C. L. 2088--The appellate court will not review questions of practice in the trial court \[60\] or finding of fact supported by the evidence.\[61\] As in other cases, questions determined on a former appeal constitute the law of the case.\[62\]

(SS 11) _D. Interest and penalties.\[58\]_ & C. L. 2084--Interest may usually be recovered on delinquent taxes,\[63\] but not on statutory penalties.\[64\] Interest is not allowable where a valid tender of the taxes has been made when due.\[65\] Payments are applicable first to accrued interest.\[64\] The right to penalties incurred on account of the nonpayment of a county tax belongs to the county.\[67\]

SS 12. _Sale for taxes. A. Prerequisites to sale.\[See $ C. L. 2084--The first essential of a valid tax sale is a valid,\[68\] unpaid,\[69\] delinquent \[70\] tax. The sale must be under an existing law,\[71\] and since statutes relating to the forfeiture or sale of property fo taxes are strictly construed in favor of the property owner,\[72\] the sale must be in strict conformity with statutory requirements,\[73\] such as those relating to the delinquent tax._

upon it. Vickers v. Hawkins, 128 Ga. 794, 58 SE 44.

57. Vickers v. Hawkins, 128 Ga. 794, 58 SE 44.

01. May adopt signature made by another, Vickers v. Hawkins, 128 Ga. 794, 58 SE 44.

01. In suit under Acts 1897, p. 136, c. 103, & 99, costs of suit to collect tax on several unimproved town lots owned by same person must be taxed the same as if such lots constituted a single tract though they were assessed separately to "unknown" owner.

Raht v. State \[Tex. Civ. App.l 20 Tex. Ct. Rep. 746, 106 SW 900.

60. Question whether objections to village taxes can be filed in same series with objections to road and bridge taxes. People v. Chicago, etc., R. Co., 231 Ill. 454, 83 NE 213.

01. Findings as to ownership of property and notice of increase of valuation. State v. Carson & Colorado R. Co. \[New.\] 91 P 932, 62. Where on former appeal it was held that taxed was evidence of preparation of delinquent list and that copies of delinquent list for certain years were in evidence and, in absence of direct evidence to contrary, established existence of originals, and such copies were again in evidence on new trial, such copies, together with presumptions arising from deed, established as law of the case, in absence of direct evidence to contrary, the existence of the originals. Davis v. Pacific Imp. Co. \[Cal. App.l 94 P 595.

01. Where one delays the collection of a tax by appealing from the assessment, he is liable on affirmance to legal interest on the amount of the tax from the date of the assessment. Bank of Kentucky v, Com. \[Ky.\] 107 SW 812.

01. Penalty of 20 per cent provided for by St. 1903, & 424, upon assessment of omitted property. Bank of Kentucky v. Com. \[Ky.\] 107 SW 812.

01. Where taxpayer makes sufficient tender of general taxes, which is refused because of failure to pay invalid special tax, interest should not be charged in suit under "Scavengr Act." State v. Several Parcels of Land \[New.\] 114 NWY 283.

01. Where taxes were paid, without interest, after dissolution of injunction against collection, such payment was applicable pro to principal and interest accrued to date, leaving an interest-bearing * 10 Cur. Law. TAXES SS 12B.

quent list,\[14\] notice of time and place for payment of taxes,\[15\] demand for payment,\[16\] and notice of sale.\[17\] A sale under a judgment or decree of court\[18\] is not invalidated by nonjurisdictional irregularities.\[19\] Judicial notice is taken of the invalidity of sales previously declared void by the same court.\[19\]

(SS 12) \_B. Conduct of sale.\_See 8 C. L. 2085.

Statutory requirements as to the conduct of the sale must be strictly complied with.\[21\] The sale must be made by a duly authorized officer\[22\] at the place designated by law\[23\] and for the proper amount,\[24\] including only such items as are properly chargeable against the property.\[25\] Only the

thorizing sale of whole or such undivided

erty. Williams v. Bowers \[Mass.\] 84 NE 317.

portion as may be necessary, etc. Williams

Description of property as part of lot, with-v. Bowers \[Mass.\] 84 NE 317. Sale held

void because record did not show falling and authentication of delipunent list, as required

quircent of notice to nonredidents held by Kirby's Dis. $ 7683, and such list was

manatory. Brush v. Watson \[Vt.\] 69 A 141.

In fact not filed within time specified by

78. Sale of land under original judgment

such section. Boyd v. Gardner, 84 Ark. 567,

106 SWP 942. Deced based on sale which is

not render the sale void. State Finance Co.

based on unverified delipunent list is void.

Devine v. Wilson \[W. Va.\] 60 SE 351.

79. Sale not invalidated by fact that judg-

01. Sufficeary of delipunent list is treated

ment for sale was not against each lot sepa-

elsewhere. See ante, $ 11C, subd. Notifications

ready as it should have been, such irreguition.

75. Notice to residents of the time and

place when and where taxes will be received

before making the levy and sale is absolute-

ly necessary to the validity of the sale, unless

excused by a demand and an unequivocal

fusal to pay. Brush v. Watson \[Vt.\] 69 A

141.

001. Collector went to residence of deceased

owner and heirs told him lands were sold.

Collector failed to try to locate new owners

or ascertain name and made no demand.

Held not sufficent to authorize a tax sale

under Act Apr. 29, 1844, $ 41 (P. L. 501),

relating to "seated" lands. Norris v. Delaware,

etc., R. Co., 218 Pa., 88, 6A 1122.

77. Eames v. Woodson \[Ln.\] 48 S 13.

Affadvirt of making or delivery of paper

containing notice of sale to subscribers held

insufficient. Mitchell V. Knott \[CooL.\] 95 P

335. Since Tax Laws, Laws 1896, p. 833,

c. 908, $ 151, provided merely that publication

83. Sale on other day held void. Kennedy

of notice of sale by county. treasure shall be

made in certain newspapers without specifying.

ing what part thereof, $ 157, providing that

a legal adjournment is had. McLemore v.

provisions as to sales by state controller

shall apply to sales by county treasurers

except as otherwise provided, does not require

provided by Rev. St. 1895, art. 5145. Keeman

notice of sale by county treasurer to be pub-

lished in body of paper as distinguished

from supplement as required by sales by

quired by Laws 1901, p. 198, c. 154, providing

comptroller by $ 120. Morton v. Horton, 189

that each tract shall be struck off to the bli-

N. Y. 398, 82 NE 429. Sale void where clerk

failed to make record of certificate showing

of interest, etc. Youker v. Hobart \[N. D.\]

publication of notice. Osceola Land Co. v.

115 NWP 838. Compromise act, Gen. St. 1901,

Chicago Mill. & Lumber Co., $ 4 Ark. 1, 103

$ 1672, 7678, authorizing county commis-

SWP 609.

Description of property held sufficient.

remains unosid for three years for want of

Best v. Wohiford \[Cal.\] 94 P 98. Notice

burst sufficiently describe the land. State

for less than full amount due thereon, does

finance Co. v. Mulberger \[N. D.\] 112 NWP 986,

not violate constitutional requirements that

Notice must definitely describe the land so

rate shall be equal, nor is its title Insufficent,

that it can be located. People v. Golding.

55 Misc. 425, 106 NYS 821; State Finance Co.

powers upon administration officers. Lin-

v. Trimble \[N. D.\] 112 NWP 984. Under Rev.

Laws, c. 13, $ 38, requiring notice of sale to 1822 TAXES SS 12B. 10 Cur. Law. property covered by the assessment can be sold, \[86\] and usually only so much thereof can be sold as is necessary to pay the taxes, \[87\] and due regard must be had for divisions and subdivisions when a separate sale is practicable, \[88\] especially where such divisions are owned by different persons. \[89\] Separate sales are also sometimes required for special and general taxes. \[90\] The officer making the sale acts as a ministerial officer in making a levy and sale, \[91\] being constituted by law the agent of the owner without the latter's consent, \[92\] and it is such officer's duty to act fairly in conducting such levy and sale so as not to cause an unnecessary sacrifice of the property, \[88\] and while gross inadequacy of price will not alone invalidate the sale, it may do so in connection with other irregularities. \[94\] The court is sometimes vested with power to accept or reject bids and to vacate erroneous or improvident orders made during the progress of the sale. \[95\] A record of the sale is usually required to be made or filed. \[96\] A tax sale certificate must be in proper form \[97\] and must state the year of the assessment, \[98\] sufficiently describe the property sold, \[90\] state the amount for which the sale was made, \[1\] and fix the date of the expiration of the period of redemption. \[2\] Such a certificate may be assignable * and is evidence of prior proceedings,4 provided it is not void,\* and sometimes may even overcome the recitals of the tax dead.\*

(SS 12) \_C. Return of sale and confirmation thereof.\_See * C. L. 2085.--The return of sale must be made and filed as required by statute.\* The rule as to idem sonans cannot be invoked to avoid the effect of a misnomer of the owner.\* The scope of the hearing on an application to confirm a tax sale depends upon the provisions of the statute.\* The court retains jurisdiction until confirmation to correct error as to matters not settled by the decree of sale.10 A confirmation decree is not binding upon persons not parties to the proceedings,11 and while it cures mere irregularities,12 it does not cure intrinsic defects.13

SS 13. \_Redemption.\_See * C. L. 2085.--Only such persons may redeem from tax sale as come within the terms of the statute, such as the owner 14 and persons having an estate or interest in the land.15 The statutory limitation upon the time for redemption 16 is not a limitation of action.17 A limitation of the time as of the date of the execution of the tax dead does not apply where the ded is void,18 nor is the right to redeem extended by the wrongful refusal of the purchaser's demand for a dead,19

- Tax sale certificate issued under com- 12. Updegraff v. Marked Tree Lumber Co., promise act, Gen. St. 1901, # 7672, 7673, is as-signable. Lincoln Morris. & Trust Co. v. Davis \[Kan.\] 92 P 707.
- 4. Prima facie evidence of what occurred at sale. Keller v. Hawk \[Okl.\] 91 P 778.
- 5. Certificate void for insufficient description of property is not evidence of the levy and assessment. State Finance Co. v. Mulberger \[N. D.\] 112 NW 896.
- 6. Where dead was executed by another treasurer four or five years after sale and his authority was negatively by the certificate. Keller v. Hawk \[Okl.\] 91 P 778.
- 7. Under law of West Virginia, the failure of recorder, apparent on face of record, to note on lists of sales the day on which the sheriff returned such sales to recorder's office, and absence of date to sheriff's affl-davit to such lites, and absence of shelff's signature to certificate, renders sale void. Fay v. Crozer, 156 F 486. Return of sheriff required by B. & C. Comp. $ 3118, and record by clerk as provided by by by Laws 1838, p. 87, cannot be amended by inserting block number so as to affect bona fide purchaser from owner without notice, where property was sold to state at tax sale and thereafter residd, as provided by Laws 1893, p. 28, and B, & C. Comp. $ 3131, 3134, the sheriff's dead on such resale also omitting the block number. Hall v. O'Connell \[Or.\] 94 P 564. Failure of sheriff to verify return of sales held eured by Code 1906, $ 884. Wilkinson v. Jinkens \[V. Va.\] 61 SE 152.
- 8. Collins v. Roger \[W. Va.\] 57 SE 743.
- 9. On application to confirm sale under decree in "Scavenger Suit," validity of taxes may be attacked. State v. Several Parcels of Land \[Neb.\] 113 NW 243.
- 10. Where the amount and existence of the tax is not put in issue as a controverted question prior to decree in suit under the scavenger act, the court retains jurisdiction until confirmation of the sale for purpose of correcting mistakes and preventing injustche. State v. Several Parcels of Land \[Neb.\] 118 NW 196.
- 11. Osseola Land Co. v. Chicago Milli & Lumber Co., $4 Ark. I, 103 SWV 609.
- 12. Updegraff v. Marked Tree Lumber Co., $ 154, 103 SWV 606.
- 13. Confirmation by decree in proceedings
- 14. Confirmation by decree in proceedings
- 15. Confirmation by decree in proceedings
- 16. Confirmation by decree in proceedings
- 17. Confirmation by decree in proceedings
- 18. Confirmation by decree in proceedings
      and where an absolute period is also prescribed the owner has no additional time to redeem where the deed is executed on the last day of such period.20 The time may be extended by reason of the acts and agreements of the purchaser.21 A valid tender works a redemption the same as a payment,22 and the redemptioner may rely on the statements of the duly authorized officer as to the amount due.28 In redeeming from a first sale, the landowner need not tender the amount paid by the purchaser at subsequent tax sales at which he purchased.24 A purchaser who accepts payment and deeds the property to the original owner waives all irregularities in the redemption.24 The purchaser is sometimes required to execute a quit claim deed upon redemption.24 Redemption merely restores to the party redeeming the title which he previously held.27

Footnote 28: The author is grateful to and state the amount necessary, to be paid.\*4 When so required by statute the notice must be recorded \[35\] and must be proved as required by law.\*\*4 Such a notice does not confer jurisdiction to grant a writ of assistance to the purchaser.\*\*47

SS 14. \_Tax titles. A. Who may acquire.\_See * C. L. 2088.--One under a moral or legal obligation to pay taxes cannot become a purchaser, either directly or indirectly,\*\*48 and if he attempts to do so his purported purchase will merely amount to a payment of the taxes.\*\*49 Where the consideration consists partly of taxes which the purchaser was bound to pay and partly of taxes he was not bound to pay, the whole title is invalid, no apportionment of the consideration being allowable.\*\*40 The relation of principal and agent between the owner and the original purchaser cannot be invoked as ground of attack as against a bona fide purchaser from the latter,\*\*41 but the successor in title of a life tenant cannot, as against the remainderman, acquire a title based on a sale for taxes which became delinquent through the fault of his predecessor.\*\*42 One cannot acquire a valid title by making a false return of the property of another and then buying it in.\*\*43

is insufficient where it erroneously describes the land and does not clearly apprise the owner that his land has been sold and that the time of reemption is about to expire.

State Finance Co. v. Trimble \[N. D.\] 112 NWW 984. Notice to several different persons, and describing different tracts in which each have a separate estate, is insufficient. Ambler v. Patterson \[Neb.\] 114 NWW 781.

\*\*34. Under Comp. Laws, 8 3598, notice must state amount paid for each parcel and not aggregate amount paid for several parcels. G. F. Sanborn Co. v. Johnson, 148 Mich. 405,

111 NWW 1091. Notice stating taxes for which land was sold, and an amount in addition thereto as for delinquent taxes, held void where there were no delinquent taxes, the certificate holder having paid them. Minne-sonate Debenture Co. v. Harrington \[Minn.\] 115 NWW 746. Need include only such amounts as are necessary to a valid redemption, and hence amounts paid by purchaser at subsequent tax sales need not be included in notice to redeem from first sale. In re Brodie \[Minn.\] 118 NW 2.

\*\*35. Under Laws 1855, p. 781, c. 427, record of tax deed without record of service of notice to redeem on occupants of land was absolutely void. People v. Ladew, 189 N. Y. 356, 82 NE 431. Record in such case being wholly void was not aided by curative acts, Laws 1895, p. 755, e. 288, 132. Id.

**36. Under Laws 1883, p. 104, c. 114, $ 5, affidavit of service on widow, children, etc., of deceased owner, held sufficient though not stating source of knowledge. Hobbs v. Scott, 122 App. Div. 389, 106 NYS 836.**

**37. G. P. Sanborn Co. v. Johnson, 148 Mich. 405, 111 NW 1091.**

**38. Brooks v. Garner \[Okl.\] 94 P 694.**

**Tennant under contract to pay taxes cannot acquire title thereto. St. Clair v. Craig \[Kan.\] 94 P 790. Tax deed to former tenant of premises will not be set aside on ground of indebtedness of such tenant to owner for rent. Mannings v. Oakes \[Neb.\] 114 NWW 604.**

**Morfgage in possession and claiming title cannot allow property to be sold and acquire title, either directly or indirectly. Barlow v. Hitzler \[Colo.\] 90 P 90. Mortgage cannot acquire a tax title as against a comortgage under the same mortgage, Gil-10 Curr. L.--115**

\*\*41. \_Taxes * C. L. 2088.--One under a moral or legal obligation to pay taxes cannot become a purchaser, either directly or indirectly,\*\*48 and if he attempts to do so his purported purchase will merely amount to a payment of the taxes.\*\*42 Where the consideration consists partly of taxes which the purchaser was bound to pay and partly of taxes he was not bound to pay, the whole title is invalid, no apportionment of the consideration being allowable.\*\*40 The relation of principal and agent between the owner and the original purchaser cannot be invoked as ground of attack as against a bona fide purchaser from the latter,\*\*41 but the successor in title of a life tenant cannot, as against the remainderman, acquire a title based on a sale for taxes which became delinquent through the fault of his predecessor.\*\*42 One cannot acquire a valid title by making a false return of the property of another and then buying it in.\*\*43

\*\*42. \_Taxes * C. L. 2088.--One under a moral or legal obligation to pay taxes cannot become a purchaser, either directly or indirectly,\*\*43 and if he attempts to do so his purported purchase will merely amount to a payment of the taxes.\*\*44 Where the consideration consists partly of taxes which the purchaser was bound to pay and partly of taxes he was not bound to pay, the whole title is invalid, no apportionment of the consideration being allowable.\*\*40 The relation of principal and agent between the owner and the original purchaser cannot be invoked as ground of attack as against a bona fide purchaser from the latter,\*\*41 but the successor in title of a life tenant cannot, as against the remainderman, acquire a title based on a sale for taxes which became delinquent through the fault of his predecessor.\*\*42 One cannot acquire a valid title by making a false return 1826 TAXES $ 14B. 10 Cur. Law.

(SS 14) \_B. Rights and estate acquired by purchaser at sale.\_Bee\* S. C. L. 1087.--Prior to the expiration of the period for redemption, the purchaser's title is inchoate as to persons authorized by law to redeem,44 but absolute as to all others.45 The various statutes must be consulted as to the right to possession, rents and profits pending re-demption,46 and also as to the rights of the purchaser as against linenos.47 The rights of the parties where the sale is invalid are usually determined as of the date of the sale,48 statutes changing such rights being ordinarily prospective only,49 but it is within the power of the legislature to impose additional burdens upon the owner in respect to prior sales.50 The purchaser at a void sale cannot recover from the tax-payer in the absence of statutory provisions to this effect,81 but such provisions exist in many jurisdictions, the purchaser being subrogated to the lien of the state 52 and in such case only a real party in interest can ask for a reversal of a judgment foreclosing such lien in the purchaser's favor.53 Provisions as to redemption from the tax sale do not apply to a sale upon foreclosure of the lien of the holder of an invalid tax title.54 A tenant who is under no obligation to pay the taxes on the property and

44. Owner. Eirov. Owensboro-Wagon Co., 128 Ga. 361, 57 SE 712. Puthenaser acquires title subject to redemption by the owner and other persons authorized by law to redeem. Chandler v. Clark \[Mich.\] 14 Det. Leg. N. 931, 115 NWV 65. 45, Chandler v. Clark \[Mich.\] 14 Det. Leg. N. 931, 115 NWV 65. One holding title acquired by fraud is a stranger to the title. Id.

01. Purchaser has no right of possession pending redemption. Eirov d. Owensboro Wagon Co., 128 Ga. 361, 57 SE 712. Under Tax Act, $ 56 (P. L. 1983, P. 430), purchaser entitled to rents and profits of land where he has recorded his certificate as a mortgage as provided by the act, and need not account to owner of property upon redemption. Anson v. Ellwood \[N. J. Law\] 68 A 784.

01. Burns Ann. St. 1901, $ 8628, providing that purchaser shall take absolute estate in fee simple, merely defines quality of estate without reference to liena. City of Indiana- polins V. City Hongo Co. (Ind. App.) 84 NE 20.

Under Kirby's Dig. $ 1705, a valid tax title (where excess is turned over to owner, he, vests In holder not only interest of former owner but of all others. Osseola Land Co. v. Chicago Mill & Lummer Co., 84 Ark. 1, 103 SWV 609. Valid tax sale of property itself, without reservation, is a sale of the whole title, and cuts off nail prior claims and en- cumbreances not specially accepted by statute, such sale being new and complete title emanating from the sovereign. Frederick v. Goodee \[L.A.\] 45 S 606.

48. Jenks v. Hennesing, 102 Minn. 352, 113 NWV 903.

01. Rev. Laws 1905, $ 969, which is substantially the same as Laws Spec. Sess. 1902, p. 31, c. 2, $ 62. giving purchaser lien in place of former right to redundant, applies by its very terms, only prospectively. Jenks v. Hennesing, 102 Minn. 352, 113 NWV 903. Laws 1903, p. 470, c. 73, Cobbeys Ann. St. 1903, $ 1964, saves to the purchasers, at sales prior to the enactment of such act. all rights, vested or otherwise, extended to them by the statue in force when the purchase was made. Whiffin v. Higninbotham \[Neb.\] 114 NWV 899.

01. Rev. Laws 1905, $ 968, giving purchaser at invalid sale a lien, with twelve per cent \[Davidsen v. Plummer \[Kan.\] 92 P 705.

10 Cur. Law. TAXES SS 14C. 1827

who acquires a tax deed valid on its face is entitled to the benefit of the occupying claimant law.\[65\]

The steps necessary to perfect the title of the purchaser depend upon statute,\[66\] and he must pursue his statutory remedy to oust the former owner.\[57\] A suit to quiet title cannot be maintained by the holder of a void title " unless so authorized by statute.\[68\]

(SS 14) \_C. Tax deeds.\_See 5 C. L. 2088--The prime essential of a valid tax deed is that it be supported by a valid " sale.\[61\] The deed must, furthermore, be in substantial " conformity with the statutory form,\[63\] and due regard must be had for requirements such as those relative to signature,\[64\] acknowledgment,\[65\] sealing " and filing.\[67\] The deed must be executed in the name of the proper party " and to the person entitled thereto." It must also bear the proper date,\[70\] sufficiently describe the property,\[71\] having due regard for the amount sold\[72\] and for the classification of the

55. Entitled to compensation for lasting | $5. Deed acknowledged before notary, in-improvements made while claiming under steady of clerk of district court, as required dead valid on its face, but invalid In fact by Rev. St. 1887, SS SS 382 (Rev. St. 1899, SS as a conveyance. Fitch v. Douglass \[Kan.\] 1897), held void. Mathews v. Blake \[Vyv.\] 90 P 768. | 92 P 242. Under Act April 3, 1804, and | 96. Adjudicatee at tax sale may obtain | (4 Smith's Laws, p. 201; 2 Purd. Dlg. \[12 Lavedan v. Chopplin, 119 La. 1056, 44 S 886. Ed.\] p. 2057), tax deed is invalid and worthless even as notice to subsequent purchaser | \[La.\] 45 S 49. | 45 S 49.

property for the purpose of taxation," and must contain all the recitals required by law," substantial compliance, however, with such requirements being sufficient." The deed may include a number of lots or parcels of land sold to the same person." In the absence of statutory rule to the contrary, a tax deed is construed strictly in favor of the taxpayer," and one claiming under such a deed has the burden of proving the regularity of every antecedent act necessary to validity of the tax, the levy and the sale," and a fortiori will such a deed or conveyance be declared invalid for intrinsic defects apparent on its face," but under the various statutes the deed is not invalidated by mere irregularities in prior proceedings," being itself evidence of the reference is made. Davis v. Le Mesnager \[dead shall recite the recitals of tax sale \[CaI.\] 92 P 76.

**Held sunfleent.** New Orleans Land Co. v.

**Nutional Reality Co. \[LaI.\] 46 S 208.**

**Held insulfleent.** Woodall v. Edwards, 88

**App.1 91 P 1020.**

\*\*Deed held void as failing to Ark. 334, 104 SW 128; Gannon v. Moore, 83

**Ark.** 196, 104 SW 139.\*\*

**Lot 38, except lots**

**matterers recled in the tax sale certificate as sold R., G. survey, section 8, Tp. 8, R. 11."**

**heid insulfleent without further showing by**

**App. 485, 80 P 965.**

**Deed cannot be aided by way of explanation.**

**Bonoe v. Wehr (Miles.)**

**reference to the certificate. Id.**

**Deed held to 45 S 571.**

**"Strip of fifty acres on north line**

**of fractional N. W. one-quarter of section 7."**

**of sale as to time when purchaser would be**

**Commercial Nat. Ek. V. Schiltz \[CaI.\]. 91 P 750.**

**P 750.**

**P 72, Deed held to show that whole lot was sold, and hence not subject to objection that**

**the least part which purchaser was willing to take for the taxes, as recited in deed, was**

**as to recalent of deltingency of taxes.**

**Philips v. Cox \[CaI.\]. 94 P 97.**

**Best v. Wohlford \[CaI.\]. 94 P 98.**

**Conveyance of land "with superuntenances" conveys no more or less than the property covered by the certificate of sale. Bank of Lemoore v. Fulgham, 151 Cal. 234, 90 P 936.**

**Deed to**

**General mass of land without specification of**

**Excepted portions held fatality defective.**

**People v. Golding, 55 Misc. 425, 106 NYS 821.**

**73. Tax deed held insulfleent alone to show that property covered thereby belonged to class covered by abatement act. Kennedy v. Sanders \[Mis.\]. 43 S 913.**

**74. The fact that a tax deed is based upon**

**proceedings under the compromise act, Gen.**

**St.** 1901, 815 672.\*\*

**75, Rames not change rule that it is not rendered voted upon its face by**

**failure to disclose the residence of grantee,**

**Lincoln Morte. & Trust Co. v. Davis \[Kan.\] 92 P 107.**

**Deed not void for failure to recite residence of purchased. Havel v. Decatur County Abstract Co. \[Kan.\] 91 P 790.**

**Deed not showing amount for which land was sold is void. Lowenstein v. Sexton, 18 Okl. 322, 90 P 410.**

**Must show on its face**

**the amount for which the parcel or tract of land was sold. Otherwise it is void. Eldridge v. Robertson \[Okl.\]. 92 P 156.**

**Under St. 1893, 1178, requiring rectil of name of purchaser, the word "purchaser" means one who has made and completed a purchase, and not merely a bidder who has defauted. Herbst v. Land & Loan Co. \[Vis.\]. 115 NW**

**110. Where pleading alleges execution of tax deed in form required by law, it will be presumed, In absence of pleading and proof to contrary, that deed named purchaser and**

**and the gramtor therein is such purchaser's**

**experience,**
**Id. Tax deed of record less than**

**of five years which recites that land was bid off, by county treasure, but fails to state for**

**owner has listed such land and paid taxes**

**when it was bid off, held void. Jackson v.**

**McCarron \[Kan.\] 95 P 402; Grintsead v.**

**Cepee \[Kan.\] 95 P 401.**

**Requirement that**

\*\*was an undivided interest in land which was regularity of such proceedings," thus casting the burden upon the attacking party to show irregularity therein "2" and thus to overcome the statutory presumption."33 The legislature may even make a tax deed conclusive of any matter which it might have dispensed with in the first instance."44 In some states the probative effect or conclutiveness of a tax deed depends upon whether it has been recorded for a certain period,"45 such deed being evidence though not recorded for such period,"46 but being strictly construed in such case "77 and liberally construed where it has been recorded for such period."45 The conclusiveness of the deed is also sometimes made to depend

attempted to be assessed separately held not! App.J 94 P 695. Under Pol. Code, **SS 3759**, cured by Code 1899, c. 31, $ 25 (Coda 1906, 3761, 3762, 3764, delinquent lists are not re-

$ 884). Toothman v. Courtney \[V, Va.\] 58 SE

quired to be kept in auditor's office, and fail-

915. Where land was assessed to estate of

ure to find them there after six years did not

decedent, failure to change it after helrs

overcome deed. Id.

went into possession was cured by Const. art.

Statement of grantor that assessment was

233. Gonzales v. Saux, 119 La. 657, 44 S 332.

under a certain act under which it would

Where description in assessment was suff-

have been irregular held inadmissible to

cent to identify land, any objection there

contradict re reetal of deed that it was under

was cured by Const. art. 233. Id. Inclusion

another act, since law makes such deed

of item of void special tax in safe held not

prima facis evidence of regularity of assess-

to invalidate deed after confirmation of sale

ment. Commercial Nat. BK. V. Schiltte \[Cal.

under "Scavenger Act." Ambler v. Patterson

App.J 91 P 750. Unless prima facie case thus

\[Neb.\] 114 NWF 781. Under Const. art. 233,

failure to sell least quantity that anyone

taking ease from jury. Villarher v. Lunk-

would purchase for the taxes is not fatal to

deed. Gonzales v. Saux, 419 La. 657, 44 S 332.

84. Bank of Lemoore v. Fulgham, 151 Cal.

Constitutionality of statute: Act March 27,

234, 90 P 936. See post, this section, subsec-

1907, art. $ 151, rendering immaterial all

in E. Acquisition of Title by State or Mu-

errors in assessment, land tax book, personal

tax book, notice, etc., held invalid as de-

vision making deed conclusive as to all maturation of property without due process.

Malone v. Williams, 118 Tenn. 394, 103 SW

clusive of only such matters as the legisla-

788. Burns' Ann. St. 1901, $ 8624, expressly

provides that tax deed shall constitute prima

facie evidence of the regularity of sale and

all prior proceedings. Holbrook v. Kunz \[Ind. App.J 83 NE 730. Under 14 Stat. at

Large, p. 27, as amended by 15 Stat. at

Large, p. 163, a tax deed valid on its face is

prima facie evidence of the regularity of the

proceedings under which the sale was made.

Heyward v. Christensen \[S. C.\] 61 SE 399.

Deed is evidence that delinquent list was

prepared. Davis v. Pacific Imp. Co. \[Cal. App.\] 94 P 578.

App.J 94 P 595. Matters not shown on face

of deed are not ground for objection to

**troduction** or **deed** as prima facie evidence

of proceedings prior to and including assessment as

ment as provided by St. 1897, p. 271, c. 189,

$ 48. Best v. Wohlert \[Cal.\] 94 P 98. Deed

sent by sheriff to auditor held sufficient at

tempt at compliance with Act 1886, No. 98, p. 151, $ 54, to make it part of record in

author's office, and hence copy thereof was ad-

misible in evidence. Gonzales v. Saux, 119 La. 657, 44 S 332.

88. Under Pol. Code, $ 3786, making tax

deed primary evidence that taxes were levied

as required by law, burden is on one at

taking such deed to show that taxes were

not levied for process in question. Davis v. Pacific Imp. Co. \[Cal. App.\] 94 P 595. Stat-

utes making tax deeds prima facie evidence

of title place the burden of showing the

validity of such deeds upon the persons

attacking them. St. 1903, $ 403. Wohlardher

v. Lunkenheimer \[KY.\] 108 SW 237.

SS. Dead not overcome by fact that after

six years from date when delinquent list

should have been prepared they could not be found. Davis v. Pacific Imp. Co. \[Cal. App.\] 94 P 595.

upon the date of the attack with reference to the expiration of the period of redemption. \[89\] The probative value and the conclusiveness of a tax deed must be determined with reference to existing laws. \[90\] When the statutory prima facie presumption, arising from a deed valid on its face, as to prior proceedings, has become conclusive by reason of the running of the statute of limitations, a Federal court will not take jurisdiction on account of any question in connection with such prior proceedings. \[91\] The presumption of regularity of the acts of an officer cannot be invoked in aid of the deed until the authority of the officer has been shown, \[92\] nor is a deed void on its face of any probative value whatever, \[93\] though it is sometimes held to create an equitable title in the grantee. \[94\] Authority to issue a second deed to cure defects in the first \[85\] cannot be exercised to overcome by false recitals the record upon which the conveyance is based. \[96\]

(SS 14) \_D. Remedies of original owner, and others claiming under or through him. See & C. L. 2069.\_The remedies against a tax sale \[97\] are available only to those hav-

held to overcome any presumption from pe-

| ward v. Christensen, \[S. C.\] 61 SE 399. St.

cularity of contour that several contiguous

|903, SS 4030, making tax deeds prima facie

|subdivisions sold as one tract did not con-

|vidence of title, etc., held applicable t?deeds

|92 P 705. Tax deed executed under compro-

|108 SW 327. Requested in-

|1 ing the proper legal status.98 The rules in the various states are not altogether in harmony as to the necessity of the payment of the purchase money and taxes as condition precedent to the right to sue to vacate the sale, such payment being necessary in some jurisdictions,99 but not in others,1 while in still others a distinction is made between cases where there has been a valid assessment and where there has been no such assessment,2 or the necessity of such payment or tender depends upon the form of action or the relief sought.' Tender prior to suit is waived by the purchaser's refusal on other grounds to allow the redemption,4 and when the sale is made under a void decree an offer by the owner to pay such sum as the court may find due to the defendant will constitute a sufficient offer to do equity.5 Rents and profits accruing while one is in possession under a void tax deed may be set off against taxes paid by him,9 but the value of improvements may be awarded to the purchaser.7 The defendant, in an action by the holder of the tax title, cannot attack the tax sale on the ground of inadequacy of the price unless such defense is pleaded,8 but where the defendant asserts a tax title, the plaintiff may reply by a general denial and also by attacking the tax deed on specific grounds.9 Where land is sold for less than the amount of taxes due the owner may discharge the purchaser's lien by payment of the amount paid by such purchaser,10 but the original owner's title is not reinstated by assessment to him after the sale where the taxes thus assessed are paid by the purchaser.11 The former owner is not entitled to the benefit of curative provisions of statutes.12 Where the sale is set aside on the ground that the foreclosure decree is void, the owner will not be required to pay the costs of the foreclosure proceedings.13

Footnote 13: The author is grateful to the anonymous referee for the support of the author.

\_Limitations.\_See S. C. L. 2000.--Under the various acts relative to limitations upon attacks upon tax titles,14 the limitation begins to run from notice of the sale,15 or possession by the purchaser,16 or the accrual of the attacking party's right of possession,17 or the expiration of the time for redemption.18 The recording of a tax by a tenant is notice of a disclaimer of tenancy and starts the statute to running in favor of the deed,19 but such is not the effect of the recording of an invalid deed 20 or of one obtained by fraud.21 Disability does not prevent the running of the statute unless so provided,22 and only such persons can avail themselves of the statute as have a proper status to do so.23 Limitations against the foreclosure of a mortgage on the property sold can be pleaded only by one in priority with the mortgagor.24

Footnote 13: The author is grateful to the anonymous referee for the support of the author.

10 Cur. Law. TAXES SS 14D. 1833

where the description is fatally defective \[27\], or where the taxes have been paid \[28\], or where the assessment is based on an unconstitutional statute \[29\], or by one having no right to acquire the property \[30\], or by one who has obtained the title by fraud \[81\]. A priori, the limitation cannot be invoked in cases expressly excepted \[31\]. Color of title necessary to sustain adverse possession must be such evidence of title as is recognized by law \[33\], and it is generally held that adverse possession cannot be predicated upon a deed void on its face \[34\], but it is held that an innocent purchaser of an apparently valid title may predicate an adverse possession thereon \[35\], and it is even declared generally that a void sale is color of title \[36\]. Since a void sale passes neither title nor right of possession, a statutory adverse possession cannot be predicated thereon where the owner retains possession \[37\].

Laws 1881, p. 218, c. 117, $ 36, where no one is willing to pay taxes for less than whole of property. Greenleaf v. Bartlett \[N. C.\] 60, SE 419.

**Failure to record tax reeelpts, as required by statute, goes to invalidate deed, but does not affect it as color of title. Greenleaf v. Bartlett \[N. C.\] 60 SE 419.**

**Suit to quiet title may be maintained by purchaser after three years' possession. Long v. Boast \[Ala.\] 44 S 855. Under Code 189.**

**$ 4067, authorizing assignment of tax sale certificate, and $ 981, relating to alienation of lands, holder of quitclaim deed from tax sale purchaser may use to quiet title after three years' possession. Id.**

**26. Dimirel v. Beam \[Colo.\] 91 P 1107; Lowenstein v. Sexton, 18 Okl 32, 90 P 410; Keller v. Hawki \[Okl.\] 91 P 778; Battelle v. Wolven \[S. D.\] 115 NW 99; Mathews v. Blake \[VYo.\] 92 P 242. Where safe was on wrong date. Kennedy v. Sanders \[Miss.\] 43 S 913. Limitation of two years in which to redeem has no application to sale made under void deere. Payne v. Anderson \[Neb.\] 114 NW 148.**

**Unsigned deed held not notice to taxpaper or anyone else. Rainey v. Lamb Hardwood Lumber Co. \[Miss.\] 45 S 367.**

**37. Gannon v. Moore, 83 Ark. 196, 104 SW**

**139. Neither special limitations provided by Rev. St. 1892, $ 400, nor those provided by Gen. St. 1906, $ 591, applies to suit to set aside tax deed where the calls in the deed are materially different from the lands described on assessment roll and sold by collector. Saddier v. Smith \[Fla.\] 45 S 718.**

**Deed void for uncertainty of description of land held not basis for two-year statute of limitations, and possession, in order to give title, must continue the same length of time as if possessor had no deed, that is for seven years. Voodall v. Edwards, 83 Ark. 334, 104 SW 128.**

**28. Action for trespas on land held not action to recover land within Act April 3, 1804, $ 3, 4 Smith's Laws, 201. Trexler v. Africa. 33 Pa. Super Ct. 395.**

**29. Code 1880, $ 539, not applicable where**

\*\*30. Chanceery elek, having no right to purchase, cannot invoke statute of limitations Barker v. Jackson \[Miss.\] 44 S 34. Where tenant under contract to pay taxes failed to do so, allowed property to be sold, and became the purchaser. St. Clair v. Craig \[Kan.\] 94 P 780, occupancy of reality by one claim-by-one-claim-by- The right to attack a tax title may be lost by laches, independently of statutory limitations.\[38\]

Limitations where the state or municipality is purchaser are treated elsewhere.\[39\]

(SS 14) _E. Acquisition of title by state or municipality and transfer thereof.\[See\]_

- c. L. 2001.--A tax sale to the state will not be invalidated by surplus recollals as to the amount for which the sale is made.\[40\] The rights of the owner after sale to the state depend upon the statute,\[41\] and so also as to his remedies.\[42\] A time limit is usually imposed upon the right to attack the state's title,\[43\] but provisions cutting off such rights and remedies usually apply only where there has been a valid sale.\[44\] Such statutes, even though not applicable to prior sales,\[45\] may be invalid because of the failure to give the owner a remedy against the state.\[44\] Curative acts may apply to sales to the state as well as to individuals.\[47\] Such acts are sometimes retrospective.\[48\] Neither the former owner nor one claiming under him can invoke prescription by reason of the state's delay in taking possession after sale and conveyance thereto.\[49\] The right of a municipality to purchase must be expressly conferred\[50\] and must

- **38.** Former owner's right to attach tax -- \*10 Cur. Law. TAXES SS 14E.

be exercised in the manner \[51\] and subject to the restrictions \[52\] prescribed by the existing statute.\[53\]

Where the state has acquired the right to transfer property acquired by it for taxes,\[54\] the validity of such a transfer depends upon whether there has been a sufficient compliance with the statutory requirements as to such transfers, such as those relative to notice,\[55\] consideration,\[56\] and form and recitals of the dead.\[57\] In the absence of constitutional limitation, the state may designate anyone it deems proper as its agent to transfer the title to lands acquired by it for taxes.\[58\] Generally, a conveyance from the state passes only such title as the state holds at the time,\[59\] but a

- 51 Failure to recite for whom or for how much property was blid off by county treas- and not one who will pay taxes for least urr held to invalidate deed when attacked amount of property. Fox v. Wright \[Cal.\] within five years. Grinstead v. Cooper \[Kan.\]
- 91 P 1005. Expression "cost of redemption" as used in Gen. St. 1901, $ 7649, means that it was executed to county after enactment of Laws 1903, p. 428, $ 1, substituting assignment of tax sale certificates for deeds to county. Dimpfel v. Beam \[Colo.\] 91 P 1107.
- 52 Sale to county as a competitive blidder is void. Keller v. Hawk \[Okl.\] 91 P 778. Under Pol. Code, $ 3882, county cannot be a competitive blidder, and deed showing that county was such blidder is void. Rush v. Lewis & Clark County \[Mont.\] 93 P 943. Such deed not sustainable by presumption of regel-ularity or by Pol. Code, $ 3887, relating to tax deed as evidence. Id. Dead to county must show its right to purchase and that it was not a competitive blidder. Id.
- 53. 2 Mill' Ann. St. $ 3980, providing for tax deeds to county, held superseded by Laws 1903, p. 428, $ 1, providing for assignment of tax sale certificate to county in lieu of deed. Dimpfel v. Beam \[Colo.\] 91 P 1107.
- 54 Whether or not state has acquired right to sell property acquired by it for taxes is determined by proceedings prior to the transfer of title, by deed or otherwise, pursuant to the original tax sale. Chapman v. Zobelein \[Cal.\] 92 P 188. v. Zobelein \[Cal.\] 92 P 188.
- 55 Under Pol. Code, $ 3887 (St. 1897, $ 426, c. 267), the contents of the notice need not include statement of name of person owing delmquent taxes against the property, or the taxes, costs, penalties, and expenses accrueq to date. Chapman v. Zobelein \[Cal.\] 92 P 188.
- 56 Publication once a week for four successive weeks, the respective publications being taxacly one week apart, held sufficient. Chapman v. Zobelein \[Cal.\] 92 P 188. Publication once a week for three successive weeks in daily newspaper held publication for three weeks prior to resale by state, as required by Pol. Code, $ 3887. Fox v. Wright \[Cal.\] 91 P 1005. Daily publication of paper not presumed from use of word "Daily" as part of name of paper. Id.
- 578 State may provide for sale of its title for highest price offered, regardless of the amount of the taxes, etc. Chapman v. Zobelein \[Cal.\] 92 P 188. No objection to deed that it shows that sale was to highest bidder and for sum largely in excess of amount for which land was sold to state. Id. "Highest bidder" as used in Pol. Code, $ 3887, relating to sale by state, held to mean person bidding validating act may reach back to a former conveyance.\[60\] One who acquires his title by fraud is not entitled to redeem from the purchaser of the state's title,\[41\] nor can one charged with the duty of paying the taxes acquire title as against the owner by redeeming from such purchaser.\[62\] A conveyance sufficient as to part of the lands purporting to be conveyed is not invalidated by its insufficiency to convey the other portions.\[63\] Under some of the statutes, the purchaser is entitled to compensation where the title fails \[44\] or acquires an equitable title.\[65\] Where a municipality, pursuant to statute, acquires a fee simple absolute and free from liens, etc.,\[66\] the original owner has no interest in the proceeds of a subsequent sale by the municipality.\[67\] Under the various statutes, the deed itself is evidence of regularity in prior proceedings,\[68\] and after the expiration of a fixed time limit \[69\] may not be attacked for certain defects,\[70\] but the purchaser cannot invoke a limitation in favor of the state after such limitation has been waived by statute.\[71\] The right to attack the state's deed may be lost by laches.\[72\]

derson \[Miss.\] 43 S 878. Proof of sale at earlier date than one recited not alone surllient to establish a misrecital. Id. #8. Under Pol. Code, $ 3787, making deed from state conclusive evidence of nonens 10 Cur. Law. TAXES SS 15B. 1837

SS 15. \_Inheritance and transfer taxes. A. Nature of and power to impose.\_See * C. L. 2002.-An inheritance tax is not a tax on the property but upon the privilege of inheriting the same,\[78\] and hence is not subject to the constitutional limitations applicable to property taxes.\[74\] Such taxes, however, must not exceed the constitutional limitations applicable thereto,\[78\] and a vested property right acquired by will cannot be burdened with a transfer tax subsequently imposed.\[79\] The fact that two states, each dealing with its own law of succession, both of which laws the heir or devise must invoke in order to obtain his rights, have taxed the rights which they respectively confer, gives no cause of complaint on constitutional grounds.\[77\] (SS 15) \_B. Successions and transfers taxable, and place of taxation.\_See * C. L. 2005.-The scope and applicability of statutes imposing inheritance and transfer taxes are necessarily matters of statutory construction,\[78\] as are also exemptions therefrom.\[79\] Where the tax applies to estates under the control of the probate court at the time the act imposing the tax becomes effective,\[80\] a prior voluntary distribution will not prevent the statute from applying.\[81\] Transfers evading an unconstitutional inheritance tax law must be considered as though there were no inheritance tax law at the time.\[82\]

fifteen years after sale and purchase by state and over ten years after concevancy by state and not beneficiaries. In re How-to an individual, neither the owner nor the mortgage having paid taxes since the sale, nor offered to pay them. Citizens' Bk. v. 1902, p. 43, c. 3. People v. Rice \[Colo.\] 91 P P 170. Colateral inheritance tax to not a tax upon the property but on the devolution or succession thereof. Fisher v. State \[Mc.\] 64 A 661; Nelson v. Russell \[N. J. Law\] 89 A 476. In re Touhy's Estate, 35 Mont. 431, 90 P 170. 175. Act No. 109, p. 173, of 1906, in imposing inheritance tax on "all successions not finally closed or in which the final account has not been filed," does not violate either state or Federal constitution. Succession of Stauffer, 119 La, 64, 8 S 928. 76. In re Riepler's Estate, 122 App. Dlv, 419, 106 NYS 844. Tax imposed by Act 1906, p. 173, No. 109, is on transmission of property, or, in other words, on the auecession, and affects all property under administration at date of passage of such act, but cannot be enforced against property already delivered. to the helirs and negates without divesting vested rights. Succession of Stauffer, 119 La. 66, 43 S 928. Excluding. 64, 85 S 928. 77. In re Rogers' Estate, 149 Mich. 305, 14 Det. Leg. N. 444, 112 NW 931. 78. Commissions on renewals of insurance policies paid to agent's heirs pursuant to agreement with insurance company held liable to inheritance tax, though tax is paid on the premiums of such renewals and the commissions are computed only after deduction of such taxes from such premiums. In re Sluecession of Fell, 119 La. 1087, 44 S 878. Monthly income bequated in consideration of legate taking of certain person held taxable as property transferred by will. In re Eaton's Estate, 55 Misc. 472, 106 NYS 682. No collateral succession tax under Rev. Laws, c. 15, $ 1. on brother's estate in re-mallor in reality. Do w. Abbott \[Mass.\] 84 NE 96. Laws 1904, p. 57, No. 30, $ 81, providing that taxes upon all persons receiving property passing from decedents shall apply to all "persons" dying between the passage of the act, etc., refers to "persons" who were decedents, and not beneficiaries. In re How-and's Estate, 80 Vt. 489, 68 A 515. Sum paid sole heir in addition to allowance made him by the wlll, in consideration of withdrawal of contact of wlll, held taxable under Laww 1902, p. 43, c. 3. People v. Rice \[Colo.\] 91 P 35. 79. Under Laws 1896, p. 869, c. 908, $ 231, as amended by Laws 1905, p. 839, c. 368, $ 231, a devise or devolution of property to one to whom the deceased stood in relation of parent for ten years is not entitled to the exemption provided by the statute unless both of the parente of the heir or devise were dead when the relation between him and the deceased began. In re Harder's Estate, 108 NYS 154. Under Conat. Art. 236, ordaining that the inheritance tax shall not be enforced against property which has borne its just proportion of taxes, when it is admitted that all the property belonging to a commercial partnership has been regularly assessed and all taxes thereon duly paid, the interest of a partner in the same property is not a distinct and separate taxable entity as in case of a stockholder in a corporation. Succesion of Stauffer, 119 La. 66, 43 S 928. Excluding. 64, 85 S 928. Excluding. 64, 85 S 928. 76. In re Rogers' A tax is sometimes imposed upon the transfer of corporate stocks.\[83\]

_Powers of appointment_,See 8 C. L. 2003--Where the will of the donee of the power neither adds to nor takes from any of the final beneficiaries the benefits which the original will confers, such beneficiaries are not liable to a transfer tax as taking under the will of the donee,\[84\] but the rule is otherwise where the final beneficiaries take by virtue of the donee's will.\[85\]

_Place of taxation_.See 8 C. L. 2003--While the residence of the decedent is generally determinative of the place of taxation\[84\] a succession tax attaches to all successions within the category of the statute, regardless of the residence of the decedent,\[87\] but as the only ground upon which a tax can be imposed upon the succession of a nonresident is that the property is within the jurisdiction of the state,\[88\] the test as to whether successions and transfers of the property of a nonresident decedent can be tared must depend upon the location of the property,\[89\] and the law of equitable conversion cannot be invoked to bring the property within the jurisdiction of the state levying the tax.\[90\] The liability of the property of a nonresident decedent cannot be evaded by the application thereof to his debts to the exclusion of other property,\[91\] nor can a succession tax upon the portion of one distributee be evaded by the payment of all the estate in the state to another distributee,\[92\] but under some of the statutes

County, 102 Minn. 268, 113 Nvw 888. Such transfers are not affected by subsequent enactment of a valid law. Id.

83 Original issue of corporate stock held not within Laws 1905, p. 474, c. 241, as amended by Laws 1906, p. 1008, c. 414. People v. Duffy-McInerry Co., 122 App. Div. 336, 106 NYS 878.

84 Where a remainder is created by a will, subject to change or modification by donee of power, an exercise of such power in such manner as not to change the original devise will not render such devise subject to tax under will of such donee. In re Spencer's Estate, 119 App. Div. 883, 107 NYS 543. Where bequest of property to a grandson provided that same should, on his death, go to his lawful issue "unless otherwise disposed of," and the grandson died leaving a will bequesting such property to his widow and children in equal parts, the children took directly under grandfather's will, and not under power of appointment within Laws 1896, p. 868, c. 908, as amended by Laws 1897, p. 150, c. 284, $ 220, subd. 5. In re Ripley's Estate, 122 App. Div. 419, 106 NYS 844. Children had right, in such case, to elect to take directly under their grandfather's will, Id.

85 See Tn re Spencer's Estate, 119 App. Div. 883, 107 NYS 543, and cases there cited and distinguished. Residuary estate disposed of by will of widow pursuant to power granted by husband's will held liable to tax imposed by Code Pub. Gen. Laws, art. 81, $ 117. Fisher v. State \[M.J.\] 64 A 661.

86 Deposits in foreign savings banks made by resident of a state are property within the state and taxable under collateral inheritance tax law. Mann v. State Treas-urer \[N. H.\] 68 A 130. Under Laws 1896, p. 83, No. 46, as changed by Laws 1904, p. 40, No. 80, $ 1, $, a tax may be imposed on distributes of proceeds of notes against nonresidents secured by mortgage on land outside the state held within the state by decedent at time of his death and collected by the resident administrator outside the state,\[92\] state, distributese being collateral relatives and no tax having been paid outside the state. In re Howard's Estate, 80 Vt. 489, 68 A 513.

87 Neilson v. Russell \[N. J. Law\] 69 A 476.

88 McCurdy v. McCurdy \[Mass.\] 83 NE 881.

88 Shanes of stock in domestic corpora- with, subject to change or modification by donee of power, an exercise of such power in such manner as not to change the original devise will not render such devise subject to tax under will of such donee. In re Spencer's Estate, 119 App. Div. 883, 107 NYS 543. Where bequest of property to a grandson provided that same should, on his death, go to his lawful issue "unless otherwise disposed of," and the grandson died leaving a will bequesting such property to his widow and children in equal parts, the children took directly under grandfather's will, and not under power of appointment within Laws 1896, p. 868, c. 908, as amended by Laws 1897, p. 150, c. 284, $ 220, subd. 5. In re Ripley's Estate, 122 App. Div. 419, 106 NYS 844. Children had right, in such case, to elect to take directly under their grandfather's will, Id.

85 See Tn re Spencer's Estate, 119 App. Div. 883, 107 NYS 543, and cases there cited and distinguished. Residuary estate disposed of by will of widow pursuant to power granted by husband's will held liable to tax imposed by Code Pub no tax can be imposed where all the estate within the state is consumed by local debts."

(SS 15) \_C. Accrual of tax.\_See 8 c. L., 2004. The law in force at the time of decedent's death controls in determining the amount of the tax," and the tax is generally held to accrue upon such date where the interest or estate is one of present enjoyment;" but under some of the statutes, the tax upon the transfer of an estate in remainder does not accrue until the remainder comes into possession."

(SS 15) \_D. Appraisal and collection.\_See 8 c. L., 2004.--Appraisal proceedings are entirely statutory," specific provisions being made as to the rate of the tax," and the mode of ascertaining the amount thereof." Where the estate is one of present enjoyment, it is usually appraised as of the date of the death of the decedent,1 but provision is sometimes made for a tax on the increase between such date and the date of distribution.2 Estates in remainder are usually subject to appraisal as of the date when the remainder comes into possession or enjoyment thereof." The tax is

sion of portion of nonresident's estate found in state going to one distribute, cannot be avoided by payment of all of estate within the state is applied to nonresident's estate, 190 N. Y. 492, SS NE 584.

98. Transfer tax imposed by Laws 1806, a. 883, a. 883, a.

upon the estate as the beneficiary takes it, that is upon what he receives,4 and it would seem to follow, and is so held, that where the estate descends to two or more persons, legal exemptions should be allowed to each; 5 but under a statute exempting transfers of less than a certain value, it is held that the total amount of the decedent's personal estate must be considered.8 In any case, the statutory provisions control.7 Where the property is committed to a trustee to be thereafter distributed his compensation cannot be deducted.8 A reappraisal may be had in a proper case,9 and provision is usually made for an appeal.10 The collection of an inheritance or transfer tax will not necessarily be defeated by the failure of the statute to provide for such collection.11 Some of the methods commonly employed are collection by the personal representative from the beneficiary,12 refusal of order of distribution until the tax is paid,13 and deduction of the tax from funds in the hands of the court.

- 10 Cur. Law. TELEGRAPHS AND TELEPHONS $ 1. 1841
- 17. \_Income taxes.\_See
- C. L. 1668
- 18. \_Distribution and disposition of taxes collected.\_See
- C. L. 2005-Statutes. relative to the distribution of taxes must conform to constitutional limitations.14 There seems to be some conflict as to the right of one municipality or taxing district to recover from another taxes which should have been levied and collected by the former, but which have erronously been levied and collected by the latter.19 The right of a city to a portion of taxes collected by a county may be lost by laches.20

One entitled to a portion of taxes collected may enforce his claim in a proper case by mandamus.21

## Tellegraphs and Telephones.

- 1. Franchises and Licenses, Property and Contracts, and Corporate Affni-s, of Laws, 1845. General and Special Damages, 1845. Mental Annu.

- 2. Construction and Maintenance of Lines, and Injuries Thereby, 1843. 1847.

- 3. Telegraph Messengers, 1843.

- 4. Duty and Care, 1844. Transmission, 1844. Delivery to Others for Addressee, 1845.

- 5. Questions and Ticker Service, 1849.

- 6. Rates, Truffs, and Rentalis, 1849.

- 7. Offenses, 1849.

- 1. _Franchises and Licenses, property and contracts, and corporate affairs._ See

- C. L. 2006-A telephone company must obtain its right of way either by grant or license from the state or, if upon private property, by purchase or condemation.1 and franchises and rights on public ways must be granted by the state except as its 18. State v. Butler County Com'rs \[Kan.\], collecting such taxes pursuant to contract 94 F 1004. Provision of Laws 1907, p. 241, to per cent of taxes under contract with surplus funds of county for purpose of
  power has been delegated,\[2\] a franchise from an unauthorized municipality giving no rights.\[3\] Municipal assert may arise by estoppel \[4\] and is irrevocable,\[5\] but entry without payment of license fees does not exempt the company from license,\[6\] and occupation, in the face of constitutional prohibition, gives no rights \[7\] though it was with municipal permission.\[8\] Legislative franchises are subject to the municipal police power.\[9\] A municipality authorized to grant a franchise may penalize occupation of the streets without franchise,\[10\] may annex lawful conditions,\[11\] and revoke the franchise for their violation,\[12\] and the corporation having accepted the franchise is bound by its conditions.\[13\] There is no presumption that a grant is unlimited \[14\] or exclusive.\[18\] A franchise is exhausted by the installation of a system thereunder, and a second one cannot be installed under the same franchise.\[16\] While the maintenance of a telephone line on a highway, where the owner holds the fee to the center of the road, is an additional burden not within the scope of public use,\[17\] such maintenance in a city street is within the public easement and a proper street use,\[18\] but the telephone company must show by franchise, a right to the easement.\[19\] The enlargement of a telephone line is an increased burden upon land.\[20\] A deed to a water company of right of way for laying pipes "with" right to erect telephone or telegraph line is construed in a limited sense for the water company only,\[21\] and is not broad enough to confer a right of way on a telephone company, when assigned.\[22\] A telephone company, that is a mere licensee of a town which had only an easement in the streets, is liable for damages to trees of abutting property owners.\[23\] A contract giving a telephone company a monopoly of service is unenforcible, being against pub.\[2\]

Constructing ordinance. City of Texar- kana v. Southwestern Tel. & T. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 734, 106 SWP 915; Missouri River Tel. Co. v. Mitchell \[S. D.\] 116 NWP 67. Power to grant franchise can be exercised only under authority of the state. State v. Millwaukee Independent Tel. Co. \[VWs.\] 114 NWP 108. License subject to control of state. Northwestern Tel. Exch. Co. v. St. Charles, 154 F 886. Immaterial that it is a foreign company. State v. Western Union Tel. Co. 75 Kan, 609 Q 295. Rights to the use of the streets from the legislature, and the function of the probate court, is Imitted strictly to mode of use. Cleveland Tel. Co. v. South Newburgh, 4 Ohio N. P. (N. S.) 624.

S. State v. Millwaukee Independent Tel. Co. \[VWs.\] 114 NWP 108.

4. Missouri River Tel. Co. v. Mitchell \[S. D.\] 118 NWP 67.

S. Consent by city, irrevocable, Missouri River Tel. Co. v. Mitchell \[S. D.\] 116 NWP 67.

6. State v. Western Union Tel. Co., 75 Kan.

609 Q P 289.

7. Rival company disconnected service. Rural Home Tel. Co. v. Kentucky & L Tel. Co. \[LKy.\] 107 SWP 187.

1. Const. # 163, 164, 18 mandatory. Rural Home Tel. Co. v. Kentucky & L Tel. Co. \[LKy.\] 107 SWP 787.

1. Wires excluded from certain streets. Rochester Tel. Co. v. Ross, 108 NYES 381; City of Texarkana v. Southwestern Tel. & T. Co. \[TEx. Civ. App.\] 20 Tex. Ct. Rep. 734, 106 SWP 915; State v. Millwaukee \[VWs.\] 113 NWP 40. Ordinance requiring underground conduits, unreasonable when poles did not endanger public. City of Plattmouth v. Nebraska Tel. Co. \[Neb.\] 114 NWP 588.

1. Ordinance valid. Northwestern Tel. Exch. Co. v. St. Charles, 154 F 386.

## 10 Cur. Law. TELEGRAPHS AND TELEPHONES SS 3A.

lic policy,\[24\] but a contract, whereby a city grants a telephone company the right to install a system and the latter agrees to pay a percentage of gross earnings, is binding.\[28\] The remedy of quo warranto is appropriate to oust a company from exercising an invalid franchise\[29\] and such proceeding may be brought by a private person.\[37\]_Consideration.See_\* C. L. 1006

_License fees and taxes.\[36e\]_\* C. L. 2008--A telegraph company, deriving its franchise from an act of the United States, is not exempt from taxation in other states.\[28\]\_Injunction against assessments will be granted only in cases of fraud.\[29\]_Transfers, line contracts, leases, and mortgages.\[36e\]_\* C. L. 2008--A telephone company, having received its franchise under agreement to connect with private lines, is estopped from repudiation of such contract.\[40\] The union of two systems of telephones without written or verbal agreement does not constitute a contract for continuous service.\[31\] Some companies secure franchises by executing a penal bond not to sell or part with control. A lease in such instances may be a violation of the condition.\[32\] In Montana a local telephone company can invoke the right of eminent domain to acquire connection and use of another company's lines.\[38\]_S 2. Construction and maintenance of lines, and injuries thereby.\[36e\]_\* C. L. 2008

The use of streets should not interfere with other public uses,\[34\] and the right to maintain telegraph lines does not import an unlimited number of wires.\[35\] A telegraph company cannot be deprived of the lawful use of a bridge,\[38\] but the county can maintain an action for damages for that use.\[37\] A telephone company maintaining wires along a public highway must exercise reasonable care to avoid injuring travelers,\[38\] and the question of inspection should be submitted to a jury.\[39\] This duty of inspection depends upon character of soil, weather, season of the year, and like circumstances.\[40\]_S 3. Telegraph messages. A. Duty and care.\[36e\]_\* C. L. 2100--A telegraph company is a private corporation performing a public duty,\[41\] and is charged with the 24. Executive rights to hotel. Central New York Tel. & T. Co. v. Averill, 55 MIsc. 346, 105 NYS 378.

25. Charter gave city right to exclude company. City of Jamestown v. Home Tel. Co., 109 NYES 297.

01. St. 1895, $ 346. State v. Milwaukee Independent Tel. Co. \[Vis.\] 114 N NV 105; People v. Central Union Tel. Co., 232 III. 260, 83 NE 823.

01. Action by taxpayer, when attorney general refused to act. State v. Milwaukee Independent Tel. Co. \[Vis.\] 114 N NV 108.

01. Immaterial that tax is designated as franchise tax. Western Union Tel. Co. v. Wright, 158 F 1004; State v. Western Union Tel. Co., 75 Kan. 609, 90 P 299.

01. Western Union Tel. Co. v. Wright, 158 F 1004.

01. Offer to build after construction of private line. Cumberland Tel. & T. Co. v. Cartwright Creek Tel. Co. \[Ky.\] 108 SW 875.

01. Rural Home Tel. Co. v. Kentucky & L Tel. Co. \[Ky.\] 107 SW 787.

01. Afflavit of defense sufficient. Ridley Park Borough v. United Tel. & T. Co., 33 Pa. Super. Ct. 230.

01. Const. Mont. art. 15, $ 14. "Use" means right to have business efficiently cared for. Billinge Mut Tel. Co. v. Rocky Mountain Bell Tol. Co., 155 F 207.

01. Moving a building, an extraordinary use and might be enjoined. Kibble Tel. Co., 1843

V. Landphere \[Mich.\] 14 Det. Leg. N. 953, 115 NVP 244. Mode of use of streets by telephone company does not apply to moving of bullding. Cleveland Tel. Co. v. South Newburgh, 4 Ohio N. P. (N. S.) 624.

35. Northeastern Tel. & T. Co. v. Hepburn IN. J. Err. & App.\] 63 A 249.

01. Bridge part of highway. Beaver County V. Central Dist. & Print. Tel. Co. \[Pa.\] 63 A 846.

01. Beaver County V. Central Dist. & Print. Tel. Co. \[Pa.\] 63 A 846.

01. Crawford v. Standard Tel. Co. \[Iowa\] 115 NVP 878. Evidence showing wire broken by thunderstorm at 5 P. M., and accident at 6 A. M., did not show prima facice case of negligence. Parmelee v. Tri-State Tel. & T. Co. \[Mim\] 115 NVP 1155.

01. Crawford v. Standard Tel. Co. \[Iowa\] 115 NWP 878. Evidence of storm on Oct. 20th, and accident Nov. 10. Bishop v. Rocky Mountain Bell Tel. Co. \[Utah\] 84 T P 976.

01. Delay of 7 days in repairing pole is neglig duty to act impartially to all,\[42\] to provide safe and decent access to places of business,\[43\] and to transmit and deliver messages with reasonable diligence.\[44\] An act of God will excuse nondilivery, if it is the sole preventing cause.\[45\] Reasonable regulations by the company may be enforced,\[46\] though in many jurisdictions it is held that it cannot exempt itself from liability for negligence.\[47\] The sender of a message is chargeable with notice of conditions printed on the telegraph blank.\[48\] Whether such regulations have been waived is a question for the jury.\[49\]

_Transmission.\[50\]_ & C. L. 2101--In transmission of a message, the telegraph company is the agent of the sender,\[50\] the addressee's right of action being usually sustained only as ex delicto.\[51\] Ordinary care must be used in transmission.\[52\] Messages are accepted subject to reasonable regulations as to office hours,\[53\] but the provision may be waived.\[54\] A contract to deliver messages on Sunday is void, but is ratified by transmission later.\[55\]

_Delivery.\[55\]_ & C. L. 2102--The obligation to deliver rests not only on contract but on public duty.\[56\] Reasonable diligence must be exercised,\[57\] and in determining what is diligence, all the circumstances including the place of the addressee's residence,\[58\] misspelling of the addressee's name,\[59\] or other neglect of the sender,\[60\] and the contents of the message as imparting to the company notice of its urgency,\[61\] may be
10 Cur. Law. TELEGRAPHS AND TELEPHONES SS 3B. 1845 considered, and having such notice of the urgency of a message, notice must be given to the sender, if delivery cannot be made.\[42\]

\_Delivery to others for addressee.\_See * C. L. 2108.--The duty of a telegraph company to deliver is personal \[68\] and is not fulfilled, as a matter of law, by delivery to a third person \[64\] in the absence of contract.\[65\]

\_Spurious messages.\_See * C. L. 1672 (SS 3) \_B. Injury and damages. Conflict of laws.\_See * C. L. 2104.--The sender's right of action is governed by the law of place of contract.\[64\] The addressee's right is generally held to be governed by the law of the place of delivery,\[67\] but in those states which hold that the sender's contract rights inure to the addressee, the law of the place of contract controls.\[68\]

\_General and special damages.\_See * C. L. 2104.--Recovery can only be had for such damages as are naturally and probably consequent upon failure to deliver,\[69\] and able. Imperative you come," was notice to Civ. App.J 18 Tex. Ct. Rep. 532, 102 SWV 456, company of importance. Postal Tel. Co. v. \*\*As to right to recover for mental anguish. Levy \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 447, Western Union Tel. Co. v. Hanley \[Ark.\] 107 102 SWV 124. Message, "If you want cattle, SVV 1168; Ligon v. Western Union Tel. Co. come here," not notice. Western Union Tel. Civ. App.\] 18 Tex. Ct. Rep. 473, 102 SWV 429.

SVV 316, rvg. \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 91, 103 SWV 1180. In a city office with many employees, a company not chargeable, from fact that several messages were sent, of importance of last telegram. Western Union Tel. Co. v. Weniskl, 84 rmk. 457, 106 SWV 436. No notice inferred from "You can make big money next month, come at once" that falls are to deliver would cause damage through loss of commissions in real estate transaction. Western Union Tel. Co. v. Twadellell \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 986, 103 SVV 1120. Telegram, "We will pay draft," not notice. Cason v. Western Union Tel. Co., 71 S. C. 167, 67 SE 722. That company have business of sender did not impute knowledge of importance of message, Wheelock v. Postal Tel. Co. \[Mass.\] 83 NE 313. Cypher messages: Clipher telegram is, especially, notice that message is important. Smith v. Western Union Tel. Co. \[Neb.\] 114 NPV 288. Clipher telegram, notice that message is important. Bashinsky v. Western Union Tel. Co., 1 Ga. App. 821, 68 SE 83. Exposure Union Tel. Co., 1 Ga. App. 761, 58 SE 91.

e2, Postal Tel. Cable Co. v. Nichols \[C. C. A.\] 159 F 643. A "death message. Potter v. Western Union Tel. Co. \[Iowa\] 116 NPV 120. A telegraph company, finding that addressee lives beyond free delivery limits, is relieved from liability only by notifying sender of claim for additional compensation. Living Tel. Co., 17 S. C. 174, Surfering proximate result of delayed message. Western Union Tel. Co., v. Rowell \[Ala.\] 145 S 73; Postal Tel. Co. v. Levy \[Tex. App.\] 18 Tex. Ct. Rep. 532, 102 SWV 456. Payment of charges, consideration for notice Delay till addressee's right of nondelivery, where telegraph company informs sender that notice will be given. Lynes v. Western Union Tel. Co., 77 S. C. 174, 57 SE 725.

63, Glover v. Western Union Tel. Co., \[S. C.\] 59 SE 58. Delivery to an unauthorized person. Id. Glover v. Western Union Tel. Co. \[S. C.\] 64. Glover v. Western Union Tel. Co. \[S. C.\] 65 SE 526.

65, Contract to deliver by telephone. Lyies v. Western Union Tel. Co., 77 S. C. 174, 57 SE 725.

66, Western Union Tel. Co. v. Garrett \[Tex.

speculative damages are not recoverable,70 but subsequent greater profits to plaintiff by failure to deliver does not excuse the company's negligence.71 General damages are recoverable, there being a breach of contract,72 unless there is a new and independent cause intervening,73 but the company is not liable for special damages unless notice is given.74 The sender of a telegraph message should use ordinary care to minimize damages, which he realizes may happen,75 and the costs of lessening such damages should be borne by the telegraph company.76 Nominal damages are recoverable for failure to transmit.77

\_Mental anguish.\_See * C. L. 2106.--The courts are in hopeless conflict78 but the doctrine is recognized by South Carolina79 and North Carolina,80 and in Texas, the words "personal injuries" in the statute are interpreted to include mental suffering.81 In Alabama damages for mental suffering in actions of tort cannot be recovered where there is no claim or proof of physical injuries,82 but in actions of contract, when only nominal damages are sustained, there may be recovery.83 While the Georgia decisions preclude the allowance of damages for mental anguish,84 the damage for sending of libelous message is allowable.85 A statute in Arkansas now permits the allowance of damages for mental anguish.86 To permit of the recovery of such damages, the significance of the telegram and the relation of the parties must be brought to the knowledge of the company.87 In Kentucky damages for mental anguish are

''' would result. Postal Tel. Cable Co. v. Sun- set Const. Co. \[Tex. Civ. App.\] 109 SWV 265. Inspection of rules before shipping a proximate result when delivery of telegram would have prevented shipment. Id. Loss of profits by company's negligence. Western Union Tel. Co. v. Lehman \[Id.\] 67 A 241. 70. Western Union Tel. Co. v. Lehman \[Id.\] 67 A 241; Purdom Naval Stores Co. v. Western Union Tel. Co., 153 F 827; Postal Tel. Cable Co. v. Nichols \[C. C. A.\] 159 F 643. Not speculative, though delivery of message to physician would merely have enabled him to make contract. Barker v. Western Union Tel. Co. \[VWs.\] 114 NVV 439. Damages can not be recovered for failure to deliver a mere proposal to contract. Bashinsky v. Western Union Tel. Co., 1 Ga. App. 761, 58 SE 91. 71. Hise v. Western Union Tel. Co. \[Iowa\] 113 NVV 819. 72. Glenn V. Western Union Tel. Co., 1 Ga. App. 821, 58 SE 83. Measure of damages in mistake of message is difference between market value and price named in message. Bowle v. Western Union Tel. Co. \[S. C.\] 59 SB 65. 73. Third person negligently replaced fallen pole. Harton v. Forest City Tel. Co. \[N. C.\] 59 SE 1022. 74. Kirby v. Western Union Tel. Co., 77 S. C. 404, 58 SE 10. Notice of mental anguish, where person was prevented from going to dying daughter-in-law, not communicated. Amos v. Western Union Tel. Co. \[S. C.\] 60 SE 660. No notice that special damages would result. Western Union Tel. Co. v. Twaddell \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 986, 103 SWV 1120. Message in cryptogram; evidence of notice to fix company with liability for substantial damages. Smith v. Western Union Tel. Co. \[Neb.\] 114 NVV 288. 75. Question for jury. Hicourt v. Western Union Tel. Co. \[N. C.\] 60 SE 980. Question whether addressee used ordinary care to recoverable only when the relationship is of the first degree,\[88\] and in Alabama, the recovery is restricted to exceptional events between persons of close relationship,\[89\] but in Arkansas it is said that the limitation to "social and personal matters as distinguished from business affairs " is more in accord with sound reason." " " This rule is followed in South Carolina, the company having notice of the nature of the message,\[92\] and the fact that the relation was of a tender and affectionate nature must be shown.\[83\] More latitude is allowed in Texas, where it is sufficient that a telegram suggest a near relationship " or that oral notice is given.\[95\] Mental suffering over suppositions or imaginary conditions is not a recoverable element,\[80\] and the suffering must result proximately from the company's negligence.\[97\] In South Carolina an action for mental anguish is an action ex delicto,\[98\] and contributory negligence will defeat recovery.\[99\]

\_Exemplary damages.\_See 8 C. L. 2108--Punative damages, being allowed only for reckless or willful injury,\[1\] are almost universally denied in actions ex contractu,\[1\] and mere delay in delivering a message is not sufficient\[1\] effort to deliver. The ques.

S8. Death of Rancee not ground for recov- tend sick brother-in-law. Evidence excludedery. Randall v. Western Union Tel. Co. where no allegations ef tender or of affectionate relation. McDowell v. Western Union Tel. Co. v. Sledge \[Ala.\] Union Tel. Co. \[S. C.\] 60 SE 662; Little v. 45 S 59. Evidence of condition of sick wife W Western Union Tel. Co. \[S. C.\] 60 SE 663. Amissible on proof of mental anguish introduced, where telegram 'was undlivered. Western Union Tel. Co. v. Rowell \[Ala.\] 45 S 73. Unglivered message "mect me tonlight," causing lady to be deprived of brother's escort 5 1-2 blocks, not mental anguish. 'Western Union Tel. Co. v. Westmoreland \[Ala.\] 44 S 88. W Western Union Tel. Co. v. Sledge \[Ala.\] 44 S 88. W Western Union Tel. Co. v. Shenep, 83. W Western Union Tel. Co. v. Shenep, 83. W Western Union Tel. Co. v. Hanley \[Ark.\] 107 SW 1168. Near relationship and notice on face of telegram. Western Union Tel. Co. v. Bell \[Tex. Civ. App.\] 107 Tel. Co. v. Gallegde, 84 Ark. 601, 106 SW 957. Nondelivery of message causing plaintiff to wait three-quarters of an hour in poorly heated and deserved depot, with wet shoes. 96. Western Union Tel. Co. v. Hollings- etc., and suffering mental anguish are sufull. 93. Ark. 39, 102 SW 681. Near of being client grounds of recovery. Western Union discharged from position. Western Union Tel. Co. v. Hanley \[Ark.\] 107 SW 1168. Mes. Tel. Co. v. Shenep, 83 Ark. 476, 104 SW 154. 97. Reasonably prompt service would not not notice sufficient to entitle plaintiff to have enabled plaintiff to reach sick child, special damages. Western Union Tel. Co. v. Sabine Valley Tel. Co. v. Ulver \[Tex. Civ. Vveniskt, 84 Ark. 457, 106 SW 486. 92. Death of husband. Lyles v. Western tail suffering not caused by nondilivery of Union Tel. Co., 77 S. C. 174, 57 SE 725. 93. Amos v. Western Union Tel. Co. \[S. C.\] 60 SE 660. Evidence of worry over wife and children, inadmissible when telegram gave \[S. C.\] 60 SE 435. no notice of them. Todd v. Western Union Tel. Co., Tcl. Co., 77 S. C. 52, 68 SE 433. Code Laws 1902. 8 2223. No recovery where relationship of affinity, unless company notified. Butler \[W. C.\] 60 SE 900. Addressee negligent. v. Western Union Tel. Co., 77 S. C. 85, 87 SE 757. Delayed telegram that husband would not return caused wife to drive at night through forest suffering mental anguish. Glov v. Western Union Tel. Co. \[S. C.\] 58 SE 912. Damages recovered for failure to deliver death message to plaintiff \[W. C.\] 108 SW 875; Western husband, depriving her of comfort. Bottom v. Western Union Tel. Co., 76 S. C. 529, 87 SE 643. Not presumed in relation of father-in-law to daughter-in-law. Amos v. Western Union Tel. Co. \[S. C.\] 60 SE 660. Not presumed from plaintiff's failure to at tion must be decided in each case upon its own merits.4 The issue, in a trial, may be eliminated by nonsuit.6

(SS 3) \_C. Procedure.See * c. L. 2108--\_The real sender may recover though the name of another was signed to the message,6 though the telegraph company had no notice of his rights.7 And by the weight of authority, the addressee may recover for failure to deliver a telegram * or on the theory that the sender is his agent.9 The right is sustained on various grounds,10 either ex delicto for breach of a public duty 11 or that the sender's contract rights inure to the benefit of the addressee.12 A cause of action for breach of contract against the telegraph company is not relieved by fact that a cause of action had accrued against the addressee.13 Stiplications requiring presentation of claims within a certain time are enforcible.14 A stipulation on a message limiting the company's liability is unavailable as defense on appeal,18 and "failure to repeat" must be specially pleaded.18 Complaint for breach of contract may allege negligence in delivery,17 and evidence tending to explain the act of delivery is admissible.18

(SS 3) \_D. Penalties.\_See * c. L. 2113--\_A penalty for failure to transmit is provided by statute in some states 18 and such regulations are within the power of the 972. Evidence of effort to deliver. Butler v. Wester Union Tel. Co., 77 S. C. 148, 57 SE 757. Long unexplained delayed raises pre- sumption of negligence. Glover v. Western Union Tel. Co. (S. C.) 59 SE 526. Question submitted to jury, on Williams of delay. Doster v. Western Union Tel. Co., 77 S. C. 66, 57 S. E. 671. Delay of 17 hours, question for jury. Dempsey v. Western Union Tel. Co. 77 S. C. 399, 58 SE 9. Exemplary damages not recoverable where act by agent was unauthorized and not raiffled. Western Union Tel. Co. v. Landry \[Tex. Civ. App.\] 108 \[Ala.\] 46 S 228. SWV 461. Suggestion that message blown in waste-basket exhibits reckless disregard of sender's rights. Balderston v. Western Union Tel. Co. (S. C.) 60 SE 435. Submitted to jury. Bolton v. Western Union Tel. Co., 78 S. C. 529, 57 SE 543.

4. One thousand dollar verdict not excessive, where addressee was attached to mother and prevented from attending death. Western Union Tel. Co. v. Caldwell, 31 Ky. L. R. 497, 102 SWV 840. Seven hundred seventy dollars and fifty-two cents damages not excessive, there being strong evidence of wanton and reckless disregard of plaintiff's rights. Western Union Tel. Co. v. Glistrap \[Kan.\] 94 P 122. Verdict of $1,354, excessive, where indelivered message preverated attendance at brother's funeral and brother had not resided with plaintiff for several years. Western Union Tel. Co. v. Wenisch, $4 Ark. 457, 108 SWV 486. Four hundred dollars and twenty-five cents, verdict not excessive. Western Union Tel. Co. v. Bell \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 658, 106 SWV 1147.

1. Smith v. Western Union Tel. Co., 77 S. C. 378, 58 SE 6.

1. Signing of name to message, merely evidence. Western Union Tel. Co. v. Troth \[Ind. App.\] 84 NE 727. Though an agent sends a telegram, the undisclosed principal may sue for damages for delay in delivery. Seifert v. Western Union Tel. Co., 129 Ga. 181, 68 SE 699.

1. It is not essential to an action by a partnership that the telegraph company be in state.20 A statute to secure impartial service to the public and penalizing acts of bad faith is strictly construed.21

SS 4. \_Telephone service.\_See 8 C. L. 2114.--A telephone company is a common carrier, a public service corporation, and is required to transmit messages if within its power to do so.22 Courts will take judicial notice of the nature, operation, and uses of telephones.28 Where a telephone message is sent over a number of lines owned by different companies, the succeeding companies are not liable unless partnership or agency is shown.24 In an action for interrupted service, the measure of damages should be for the service lost after expiration of a reasonable time after notice to the company.28

SS 5. \_Quotations and ticker service.\_See 8 C. L. 1977

SS 6. \_Rates, tariffs, and rentals.\_See 8 C. L. 2114.--A state has power to regulate charges for telephone service,26 which power may be delegated to municipalities 27 or a commission,28 and is an exercise of the police power 29 not to be bargained away.29 Rates must not be fixed arbitrarily 31 but on careful and thorough investigation of facts,32 and the value of the company's property, though important, is not the sole factor in determining their reasonableness.33 A citizen is entitled to enforce a rate contract between the city and the company.34 The company may prescribe reasonable rules and charges,35 and refuse service for good cause.36 Physicians having connecting offices and using one phone in common are "copartners" within a schedule of rates.37

SS 7. \_Offenses.\_See 8 C. L. 2114.--In Missouri, willful and malicious injury to lines, posts, or other property of telephone and telegraph companies is a felony.38

20. Statute does not regulate commerce, though addressee out of state. Western Union Tel. Co. v. Chiles \[Va.\] 57 SE 587.

01. Gifford V. Glen Tel. Co., 64 Mise. 468,

106 TXS 63. Penalty for failure to maintain stations at county seat. State v. Western Union Tel. Co., 78 Kan. 609, 90 P 299.

22. McDanell V. Faubus Tel. Co. \[KY.\]

106 SW 825.

23. Conversation admissible in evidence though the other party is unidentified, Western Union Tel. Co. v. Rowell \[Ala.\]

45 873. Telephone messages subject to recovery for mental angush. Sabine Valley Tel. Co. v. Oliver \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 579, 102 SWP 925.

24. Urgency of message not repeated to second company, Sabine Valley Tel. Co. v. Oliver \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 579,

102 SWP 925.

25. Eastern Kentucky Tel. & T. Co. v. Hardwick \[KY.\] 106 SWP 307.

01. Power continuous. Home Tel. & T. Co. v. Los Angeles, 155 F 554.

01. Includes power to pass ordinance requiring companies to report value of plant, recepts, etc. Home Tel. & T. Co. v. Los Angeles, 155 F 554. A contract, whereby a telephone company secured rights-and agreed to charge only certain rates, cannot be repudiated by the company, questioning city's right to make grant. Rochester Tel. Co. v. Ross, 109 NTFS 881. A city having charter power to regulate rates may pass ordinance fixing rate without notice. Home Tel. & T. Co. v. Los Angeles, 155 F 554. Rates fixed by franchise for city, silent as to other territory gave telephone company right to charge more for county service. Moberly v. Richmond Tel. Co., 31 Ky. L. R. 783, 103 SWP 714.

## 1 Definitions and Disthetions

Creation of Relation, 1850

Agency, 1853. Conversion, 1853. Trespass and Waste, 1853. Actions, 1853. The Rights and Remedy of Passession, 1851. Rents, Profits, and 8 S. Rights and Labilities as to Third Persons, 1852. Contribution, 1853.

## 1 Definitions and distinctions

Creation of relationSee s C. L. 2114.-Unity of interest and possession creates a tenancy in common,\[30\] hence, anything that operates to destroy it dissolves the cotenancy.\[40\] When ownership is claimed by several, the presumption is that they are tenants in common.\[41\] By virtue of statutes, every interest in real estate granted or devised to two or more persons is deemed to be a tenancy in common, unless expressly declared to be a joint tenancy.\[42\] One of several corporate indorsees or bearers of a negotiable instrument is not a "joint tenant" in such sense that it may not sue thereon as co-obligee joined as plaintiff.\[43\] In some states where grantees are husband and wife, an estate by the entirety arises,\[44\] in other states tenancy by the entirety is abolished.\[45\] The nature of the title of husband and wife is more fully treated elsewhere.\[46\] Joint tenancies of savings bank deposits may be created.\[47\] Some states have abolished the doctrine of survivorship in joint tenancies except as between husband and wife.\[48\]

## 2 Rights and liabilities between tenants

One tenant in common may confer a right of entry without the consent of his cotenant.\[49\] A tenant in common can convey no greater right in the common property than he has,\[50\] and a conveyance by one of a divided portion of the whole is void.\[61\] In the absence of

- 39. Devisee of fee and widow of testator, 1 who had renounced the will, held tenants in common. Laughlin v. O'Reilly \[Miss.\] 45 S 193. Plaintiff and defendant made simultaneus entries upon school lands, expended the same amount of money, etc. Erskin v. Wood \[Kan.\] 95 P 413. Husband and wife become tenants in common during their Joint lives upon a conveyance to them. Blider v. Robinson \[N.\] 67 A 28. Holders of options held tenants in common. Varley Dupiex Magnet Co, v. Ostheimer \[C. C. A.\] 159 F 655. Grantees, who live together as husband and wife, but not legally married, hold as tenants in common and not by the entirety. Wright v. Kaysner, 150 Mich. 7, 14 Det. Leg. N. 631, 113 NW 779. Parities held not tenants in common where one's title was paramount in time and wholly distinct from and hostile to that of the other. Partition denied. Preston v. Virginia Min. Co. \[Va.\] 57 SE 651. Where land subject to life estate was not sold by trustees under will, children of life tenant took as tenants in common entitled to partition. Baseom v. Weed, 53 Misc. 496, 105 NYS 459. Plaintiff, who resided on a farm, contracted to let defendant occupy, free of rent, one of his tenement houses on the farm and carry on the same for a term of years. Each party was to furnish certain things for the farm and each have produce for his family use without accounting for it. Defendant was to sell everything produced and divide the profits with plaintiff. Heid tenants in common of the products of the farm. Mesd v. Owen, 80 Vt. 273, 67 A 722. Where a grantor conveys the fee in land to himself and others, he becomes a tenant in common with other grantees. Green v. Cannotay, 77 S. C. 183, 57 SE 832.

## 3 Definitions and distinctions

Creation of relationSee s C. L. 2114.-Unity of interest and possession creates a tenancy in common,\[30\] hence, anything that operates to destroy it dissolves the cotenancy.\[40\] When ownership is claimed by several, the presumption is that they are tenants in common.\[41\] By virtue of statutes, every interest in real estate granted or devised to two or more persons is deemed to be a tenancy in common, unless expressly declared to be a joint tenancy.\[42\] One of several corporate indorsees or bearers of a negotiable instrument is not a "joint tenant" in such sense that it may not sue thereon as co-obligee joined as plaintiff.\[43\] In some states where grantees are husband and wife, an estate by the entirety arises,\[44\] in other states tenancy by the entirety is abolished.\[45\] The nature of the title of husband and wife is more fully treated elsewhere.\[46\] Joint tenancies of savings bank deposits may be created.\[47\] Some states have abolished the doctrine of survivorship in joint tenancies except as between husband and wife.\[48\]

## 4 Rights and liabilities between tenants

One tenant in common may confer a right of entry without the consent of his cotenant.\[49\] A tenant in common can convey no greater right in the common property than he has,\[50\] and a conveyance by one of a divided portion of the whole is void.\[61\] In the absence of

- 40. Sutton v. Jenkins \[N. C.\] 60 SE 643. Sale by judicial sale and entry under it. Id. common. Laughlin v. O'Reilly \[Miss.\] 45 S 193. Plaintiff and defendant made simultaneus entries upon school lands, expended the same amount of money, etc. Erskin v. Wood \[Kan.\] 95 P 413. Husband and wife lecture 853. Lester 10 Cur. Law. TENANTS IN COMMON, ETC. $ 2. 1851

special agreement tenants in common are not entitled to compensation from each other for services rendered in the care and management of the common property,\[32\] but while in possession they must pay taxes and ordinary repairs.\[33\] The liability of the survivor of community property to heirs of the deceased spouse in respect to rents of community property is that of a tenant in common and not that of a trustee.\[34\] Instruments, under which tenants in common hold title, operate in favor of a tenant obtaining title by adverse possession so as to extend his possession to uninclosed lands.\[35\]

_Discharga of incumbrances, purchase of adverse titles, rights of cotenants.\[36\]_

c. L. 212--The benefit of a purchase under a trust deed by a tenant inures to the benefit of his cotenants.\[37\] The survivor of a community estate has the right to sell community property for the purpose of paying community debts,\[38\] or he may agree with a creditor of the estate to pay interest on the whole amount due in consideration for an extension of notes given for community debts.\[39\]

_Possession.\[36\]_

- C. L. 2117--Cotenants have a mutual right to a joint possession " and, generally, the possession of one tenant in common is the possession of his cotenant.\[37\]

_Adverse possession.\[36\]_

- C. L. 2117--The possession of the entire joint property by one tenant in common is not adverse to the other tenants in common unless there be onster,\[32\] but possession may be made adverse by the tenant repudiating the relation of tenancy by act or conduct signifying his intention to hold and enjoy the premises exclusively when other tenants have notice thereof.\[33\] The adverse holding must be for

and cotenant. Such deed was not ruffica-

- Sp. People v. Golding. 55 Misc. 425, 106 tion of tenant's deed. Id. Where decedentent, NTS $21. Tenant could not by injunction as W's attorney in fact conveyed 482 acres to be 482 acres to be 2, who afterwards conveyed an undivided held in common. Id.

half interest to decedent, decedent's subse-

- op. Merolla v. Lane, 122 App. Div. 555, 107 quent conveyance as such attorney in fact NTS 439. Where M., the husband of a co- of 200 acres of the same tract to others tenant, went into possession in right of his passed only his interest in the 200 acres, not affecting Ps Interest. Esson v. Weeks \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 843, 104 SW 1070.

- Em. Compensation for services in operating a mine refused. Wolfe v. Childs \[Colo.\] 94 P 292.

- Payment of void assessment did not render cotenants liable for any part of assessment. Cole v. Cole, 108 NTS 124.

- Morris v. Morris T \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 809, 105 SW 242.

- Russell v. Tennant \[W', Va.\] 60 SE 609, 107 SW 242.

- Beeman v. Beeman \[Miss.\] 44 S 987.

- Rule applies as well where wife of tenant

- purchases the land. Id. Where one joint since claimant under appelle and appellent tenant or tenant in common acquires title

- Ryan Co. (Ky.) 107 SW 704. Tenant did not like this right by mere inches in falling the sale is caused by tenant's failure to pay

- his share of the debt, he cannot, under his

- right so derived, hold the land against his

- Reed v. Bachman, 61 W. Va. 452, 67 SE 769.

- Ryan Co. (Ky.) 19 Tex. Ct. Rep. 809, 105 SW 242.

- material how the application of the community property to extinguishment of in-

- the number of people in the same year.

the statutory length of time.65 The joint occupancy of a tenant in possession and a stranger is not adverse to cotenants out of possession.66 To warrant the presumption of a valid deed after the expiration of the statutory time for adverse possession in favor of a tenant in common against cotenants, the possession must be open, hostile, and adverse during such time 67

\_Ouster,\_See 8 C. L. 2119--Ouster must be an actual exclusion 68 or acts equivalent thereto in law.69 Color of title and mere possession thereunder by one or more of a number of tenants in common is no "disseisin" of the cotenants out of possession, and is therefor not adverse,68 but a void deed, executed by one tenant in common to another, is sufficient to prove a disseisin of the party who executed it.60 A tenant in common or a stranger may disseise one cotenant without disseising all.70

\_Notice.\_See 8 C. L. 2119--A notice of adverse holding must be actual,71 and that of ouster must reach the cotenants.72 Actual notice of ouster is unnecessary.73 Knowl-edge of one tenant in common cannot be imputed to the others,74 but where persons are jointly pursuing the common purpose of acquiring title to land by purchase as tenants in common, notice to one concerning the condition of the title is notice to all.75

\_Rents, profits, and proceeds.\_See 8 C. L. 2119--A cotenant is under no obligation to

wll run in favor of tenants in adverse pos-

cient. Putting a deed for the whole tract on session, even against cotenants. Casserly v.

record is no ouster unless the cotenant Alameta County \[Calo. 51\] 94 P 765. Adverse

knows of the adverse claim. Id. Occupancy possession does not run against tenants in

in the right of his wife, one of the cotenants, common until notice of adverse holding or

and taking conveyances from others, held no such conduct as would reasonably put him

ouster. Mott v. Carolina Land & Lumber Co.

upon notice of ouster by cotenants. McSurley v. Venters, 31 Ky. L. R. 963, 104 SW 365.

tract held outser. Id. An ouster may be ef-

fected by mere acts or matter in pas, unwit-

was sufficient to give notice of adverse hold-

nessed by any written memorial thereof,

ing to his cotenant. Chicago, etc., R. Co. v.

Tice, 232 11. 232, 83 NE 818. Adverse posanes-

pation of the premises with notice of hostill-

tion for twenty-four years, and cotenants

ty of claim. Void deed held notice to grantor.

recognize rights of the posessor, Sires v.

R Russell v. Tennant \[W. Va.\] 60 SE 609.

and hostile possession for 10 years. Preston

v. Virginia Mlim. Co. \[Va.\] 57 SE 651. Assertions of title, made by a tenant in common to a stranger, are not admissible to show adverse possession against a constant, but statements of tenant claiming to have acquired title by adverse possession, recognizing the title of her cotenant, are admissible

as admissions against interest. Loranger v. Carpenter, 148 Mlich. 549, 14 Det. Leg. N. 273, 102 NW 125.

G3. Revial 1905, $ 884, requires 20 years

adverse possession. Only 16 years adverse holding shown. Mott v. Carolina Land & Lumber Co. \[N. C.\] 60 SE 423.

64. Russell v. Tennant \[W. Va.\] 60 SE 609.

01. Possession was notorious, open, etc., and established presumption of a grant.

Powers v. Smith \[S. C.\] 61 SE 222.

66. Where land is redeemed by one cotenant in behalf of all, and he takes deed therefor

to In his own name and thereafter held exclusive possession, openly claiming it as his

own, such acts do not constitute ouster as to

cotenants who had knowledge that the interest was acquired in their behalf. Donason

v. Barbero, 230 Ill. 138, $2 NE 620.

67. Reed v. Bachman, 61 W. Va. 452, 57 SE

01. There can be no adverse possession

against a cotenant until actual ouster or exclusive possession after demand or express

notice of adverse possession. Id. A conveyance alone, without possession, is insuffling.

The following is a brief summary of the results of the present paper.

account for rents and profits unless there is an agreement to that effect,76 or such co-tenant denies the other tenants the equal enjoyment of the common property in his possession,77 but if he rents out the property and receives rent therefor, he must account to his cotenants for his portion of the rents.78 Courts of equity are very reluctant in undertaking permanently through a receiver or otherwise to collect rents of land held by tenants in common who cannot agree on the management of their estate.79 An heir in possession of real estate after death of the ancestor, if liable for rent, is liable to the other heirs and not to the administrator.80

\_Contribution.\_See 8 C. L. 2118.--In the absence of an agreement, one tenant in common is not entitled to compensation for collecting rents belonging to himself and cotenants.81 While a tenant advancing money for the preservation and improvement of common property is entitled to contribution therefor,82 yet, he cannot call upon cotenants for contribution for expenses incurred in unsuccessfully operating the same.83

\_Agency.\_See 8 C. L. 2120

\_Conversion.\_See 8 C. L. 2120

\_Trespass and waste.\_See 8 C. L. 2120.--Courts of equity will not interfere by injunction to prevent waste in cases of tenants in common, copartners, or joint tenants, except in special cases, as where the party committing waste is insolvent or where the waste is destructive to the estate.84 A tenant in common cannot be punished as a trespasser for cutting trees on common property.85 Action under statute to recover for waste must be brought before the tenant's interest in the premises is extinguished.86

\_Actions.\_See 8 C. L. 2120.--Teenants in common may join in an ejecment suit and recover the whole property demanded as held by them in common 87 or one may sue separately, and recover possession of the entire estate, in subordination, however, to the rights of his cotenants.88 Suit in equity may be maintained by one joint tenant against another and those acting under him for an account of rents and profits taken in excess of his right while occupying the whole common property.88 Each tenant in common is entitled to sue according to his own capacity, regardless of the disabilities of others.80 Where a husband and wife have an estate by the entirety, the wife may

76. Owings v. Owings, 150 Mich. 609, 14

Det. Leg. N. 787, 114 NUV 893; Autry v. Rea-

sor \[Tex.\] 108 SWV 1162.

in common of land valuable for timber, who cuts the same believing he was the owner of Tex. Ct. Rep. 809, 105 SWV 242. Denied cotenant's right in land and pleaded limita-

other tenant of timber in the trees at the tions, hence, held liable for rent. Autry v.

time it was cut with interest, and not what Reason \[Tex.\] 108 SWV 1162.

we would have recovered against a trespasser. Id. Action to enjoin interference Tex. Ct. Rep. 809, 105 SWV 242.

79. Bilder v. Robinson \[N. J. Eq. 67 A 828.

01. Administators held not proper party to join with helrs in partition, merely for the purpose of compelling defendant to account for rents and profits. Owings v. Owings, 150 Mich. 609, 14 Det. Leg. N. 787, 114 NUV 893.

01. Cole v. Cole, 108 NYS 124.

01. Wolfe v. Childs \[Colo.\] 94 P 292. Where amount received by the survivor of community estate as rents therefor was less than amount expended by him in improving the property, he was not liable to heirs of deceased spouse for rents. Morris v. Morris \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 809, 105 SWV 242.

01. Operation of a mine. Wolfe v. Childs \[Colo.\] 94 P 292.

01. Burris v. Jackson \[Del.\] 68 A 381.

sue for possession thereof as against all persons except her husband." All surviving co-obligees of negotiable instruments must join in suits thereon."2

\_The rights and remedy of partition.\_See $ C. L. 2120--A court of equity has power to make a decree for sale in partition without issuing a writ in partition."2 Partition of coal, gases, salt-water, oil, and minerals owned by co-owners separate from the surface cannot be decreed, except by sale and division of the proceeds."4 A tenant in common may recover his undivided interest in lands against his cotenant who denies his right thereto,"5 or under statute, one or more tenants in common may recover in partition according to his or their respective rights."6 Heirs to an estate may proceed in partition before settlement of the estate."7 An executor when a tenant in common is a proper party plaintiff in partition proceedings."8

SS 3. \_Bights and liabilities as to third persons.\_See $ C. L. 221--An action by a single tenant in common is maintainable for his interest in property converted."8

Tender: Terms of Coust, see latest topical index.

**TERRITORIES AND FEDERAL POSSESSIONS.**

$ 1. Acquisition and Political Status, 1854.

$ 2. Organization and Government, 1854.

$ 3. Jurisdiction, Powers, Dutles, and Lins.

$ 4. Local Laws and Practice; Territorial

$ 3. Jurisdiction, Powers, Dutles, and Lins.

$ 1. \_Acquisition and political status.\_See $ C. L. 2121--A citizen of Porto Rico is not an alien.1

$ 2. \_Organization and government.\_See $ C. L. 2122--Congress is the sole lawmaking power of the District of Columbia * and its power to enact laws is not merely local in effect,3 but such laws may be enforcible throughout the union.4

$ 3. \_Jurisdiction, powers, duties, and liabilities.\_See $ C. L. 2122--The legislative and political jurisdiction of the United States * over buildings and "places" purchased for governmental purposes * may be acquired by cession from a state,7 and 10. Cur. Law. THREATS. 1855

reverts when the government abandons the use.\* The power over territories * is subject only to the restrictions of the constitution.10 Jurisdiction over Indian lands may be retained, when a territory is changed to a state.11 Also, since congress may delegate legislative authority to any agent 12 or territory,18 it follows that a ratification of an illegal act is valid.14

SS 4. \_Local laws and practice; territorial courts.\_See * C. L. 1122--Generally, the territorial governments are vested with plenary legislative power 18 equal to that of a state,16 which cannot be delegated.17 The powers 18 are subject to inhibitions of congress,19 but a variance may, after lapse of time, be presumed approved.20 Territorial courts 21 cease to exist when the territory becomes a state,22 and the acts of officers become the acts of individuals.22 The prosecutions are transferred to the state or Federal courts.24

TREATMENTARY CAPACTITY; THREATS; THREIT, see latest topical index.

**THREATS.21**

Some states provide that the sending of a threatening letter which tends to a breach of the peace, shall be punishable.26 Threats to accuse of crime are not ordinarily within these statutes.27

TICKETS; TIDE Lands, see latest topical index.

- 8. United States v. Andem, 158 F 986.
- 9. Kansas v. Colorado, 206 U. S. 46, 51 Law. Ed. 956. Extends over territories in spite of power delegated to territorial government.
- 165 F 112.
- 167 F 112.
- 168. Cay. App.108 SW718. By virtue of Const. art. 4, $, congress has full power over arid lands in territories, but when arid lands are in states the state's rights must be observed. Kansas v. Colorado, 206 U. S. 46, 51 Law. Ed. 956.
- 169. Kansas v. Colorado, 206 U. S. 46, 51 Law. Ed. 956.
- 170. Does not include jurisdiction of crimes against the state. Higgins v. Brown \[OkL\] 94 P 703.
- 171. United States v. Heinzen, 206 U. S. 370.
- 172. Legalative authority and right to establish seat of government and erect buildings implied right to acquire land. Sylvester v. State, 46 Wash, 585, 91 P 15. Grant did not terminate by territory being changed to state. Id.
- 173. The illegal collection of duties on imports to the Philippine Islands level by the president's order, between the rattification of the treaty with Spain and the passage of an act enacting a tariff, was rendered valid by Act June 30, 1906 (34 Stat. 636, cl. 3912). United States v. Heinzen, 206 U. S. 370, 51 Law. Ed. 1098.
- 174. Sawyer v. El Paso, etc., R. Co. \[Tex. Civ. App.\], 108 SW718.
- 175. Territory might make the performance of certain acts a condition precedent to right to eue. Sawyer v. El Paso, etc., R. Co. \[Tex. Civ. App.\], 108 SW718.
- 176. On same footing as state, and immaterial that power be derived from people or
       1856 TOLL ROADS AND BRIDGES $ 1. 10 Cur. Law. TIME."

The established general rule for the computation of time is that the first day be excluded and the last day included," unless the terms used require a different construction." Ordinarily a contract by the day means the calendar day," and the rule that fractions of days are not recognized in law " does not apply to notices measu:ed by hours." Where a contract expires "at noon,"" the New York statute provides that eastern standard time shall prevail." The day of doing an act may be included or excluded, so as to operate favorably to a party so entitled." When an act is required to be done in a certain number of days exceeding a week, Sunday is not excluded," but when the last day falls on Sunday, it is usually excluded."

TIME to PleAD; Title and Owbershift; Title Insurance, see latest topical index. TOBACCO."

The state in the exercise of its police power may prohibit the sale of "cigar-ettes," " and in determining what are cigarettes, within such a statute, the common acceptation of the term will be adopted."

**TOLL ROADS AND BRIDGES. $ 1. Franchises and Rights of Way, and $ 8. Establishment, Construction, Location, Acquisition by PubHe, 1856. and Maintenance, 1857. $ 2. Public Aid and Immunities, 1857. $ 4. Right of Travel and Tolls, 1857. $ 1.**\_Franchises and rights of way, and acquisition by public.\_See $ C. L. 213--A franchise is limited to the corporate life of the company," and may be revoked " by a proper proceeding involving judicial inquiry." The powers granted should be strict-

**28. See $ C. L. 2123. 29.**"From" Nov. 5' "to" Dec. 5. included Dec. 5. State v. Eisenm. 77 Ohio St. 459, 83 NE 904. "Until July 10th" permitted acceptance on that day. Hatfield v. Clovis \[Pa.\] 68 A 43. 25. 1907, from decree rendered Jan. 25, 1906, was taken in time under statute requiring that certain appeals be taken "within one year." Boyett v. Frankfort Chair Co. \[Ala.\] 44 S 546. Notice of tax sale on June 18, given May 28, was sufficient under statute requiring at least twenty-one days' notice. Bank of Lemoore v. Fulgham, 151 Cal. 234, 90 P 936. Filing of pledge Jan. 2, for election Jan. 7, was a film "five days before." Holt v. Settlemeyer \[S. C.\] 60 SE 659. 30. "From" is a term of exclusion, and "to," "till." or "until." inclusive. State v. Elson, 77 Ohio St. 48, 83 NE 904. "From and after" a day excludes that day. Actna Life Ins. Co. v. Wimberly \[Tex. Civ. App.\] 108 SWV 778. 31. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 51. 50. 53. 54. 56. 57. 59. 52. 54. 58. 59. 50. 51. 53. 55. 57. 59. 50. 51. 54. 59. 51. 52. 54. 51. 55. 56. 57. 58. 59. 51. 59. 52. 53. 57. 59. 50. 51. 54. 51. 56. 58. 59. 52. 57. 59. 53. 58. 59. 50. 51. 51. 52. 54. 52. 55. 56. 57. 59. 51. 58. 59. 52. 59. 53. 59. 54. 55. 57. 59. 56. 58. 59. 57. 59. 58. 59. 59. 50. 51. 59. 50. 51. 52. 51. 53. 51. 54. 55. 57. 59. 51. 52. 53. 51. 54. 55. 57. 59. 51. 56. 59. 51. 57. 59. 52. 58. 59. 51. 59. 52. 53. 51. 54. 55. 57. 59. 51. 58. 59. 52. 59. 53. 59. 54. 55. 57. 59. 56. 59. 57. 58. 59. 59. 59. 50. 51. 59. 51. 59. 52. 51. 54. 55. 57. 59. 51. 59. 52.

ly construed.45 The termination of a franchise removes the burden of tolls from the public highway,46 and neither adverse possession, laches, nor estoppel are applicable to bar the public's right in a toll road.47

\_Abandonment and forfeiture.\_See 8 C. L. 2124

\_Acquirement by public.\_See 8 C. L. 2124.-In condemation it is proper to consider both local interests and the benefit to the public at large.48 In Ohio, county commissioners are authorized to purchase toll roads upon which traction railroads are constructed 49 and maintain them as free turnpikes.50

SS 2. \_Public aid and immunities.\_See 8 C. L. 2134.-Bridges 51 and turnpike roads are public highways,52 and the fact that the road company acquired a fee to the land does not change its character.53

SS 3. \_Establishment, construction, location, and maintenance.\_See 8 C. L. 2124.-A failure to keep roads in repair may cause a forfeiture of the right to collect tolls 54 after judicial inquiry.55 The remedy for failing to keep the road in repair is quo warranto to forfeit the franchise of the company,56 but substantial conformity to the statute is sufficient.57 In Missouri, county courts are responsible for the maintenance of toll roads.58

\_Personal injuries.\_See 8 C. L. 2134

SS 4. \_Right of travel and tolls.\_See 8 C. L. 2125.-Payment for the use of a road cannot be refused on account of its condition.50 In Kentucky the rates are regulated by statute.50

TONLINE INSUANCE; TORRENS SYSTEM, see latest topical index.

TORTS.

SS 1. Elements of a Tort, 1858.

SS 2. What is an Injury or Wrong, 1861.

SS 3. What is Dannage, 1861.

SS 4. Particles in Torts, 1861.

SS 2. What is an Injury or Wrong, 1861.

SS 5. Pleoding and Procedure, 1862.

SS 3. What is Dannage, 1861.

v. Hogadone, 150 Mich. 638, 14 Det. Leg. N.

Wichich expires when charter ends. State v.

851, 114 NWF 917.

Scott County Macadamized Road Co. \[Mo.\]

45. Right to collect toll from certain vehicles and animals did not include automobiles. Mallory v. Saratoga Lake Bridge Co.,

53 Misc. 446, 104 NYS 1025.

46. State v. Scott County Macadamized Road Co. \[Mo.\] 105 SWV 752.

01. State v. Cape Girardeau & Jackson Gravel Road Co., 207 Mo. 85, 105 SWV 761.

01. Purpose being to make road free. Pattonville & Woodbury Turnpike Road Co., 32 Pa. Super. Ct. 122.

01. The act of April 25, 1904 (97 O. L. 414), authorizing purchase of toll roads upon and along which suburban and interurban railroads are constructed. Ferris v. Clermont County Com'rs, 9 Ohio C. C. (N. S.) 169.

01. The authority granted by act April 25, 1904 (97 O. L. 414), is not limited to purchase of toll roads having both termini within the county; it does not, by authorizing the purchase of roads upon which traction companies have secured rights of way, make possible such a joint ownership as is forbidden by the constitution; but it does authorize the purchase of apprutaneanes of the road such as toll-houses. Ferris v. Clermont County Com'rs, 9 Ohio C. C. (N. S.) 169.

01. Subject to right of tolls, granted by legislature. Mallory v. Saratoga Lake Bridge Co., 53 Misc. 446, 104 NYS 1025.

01. Subject to easement of toll company 10 Curr. L. 117.

SS 1. Elements of a Tort, 1858.

SS 2. What is an Injury or Wrong, 1861.

SS 3. What is Dannage, 1861.

SS 4. Particle in Torts, 1861.

SS 5. Pleoding and Procedure, 1862.

SS 5. What is Dannage, 1861.

SS 6. Right to collect toll from certain vehicles and animals did not include automobiles. Mallory v. Saratoga Lake Bridge Co., 53 Misc. 446, 104 NYS 1025.

SS 7. Product by statute after due investi-Road Co. \[Mo.\] 105 SWV 752.

SS 7. Product by statute after due investi-Road Co., 207 Mo. 85, 105 SWV 761.

SS 7. Purpose being to make road free. Pattonville & Woodbury Turnpike Road Co., 32 Pa. Super. Ct. 122.

SS 8. The act of April 25, 1904 (97 O. L. 414), authorizing purchase of toll roads upon and along which suburban and interurban railroads are constructed. Ferris v. Clermont County Com'rs, 9 Ohio C. C. (N. S.) 169.

SS 6. The authority granted by act
The scope of this topic is noted below.60a

**SS 1.**\_Elements of a tort.\_See * C. L. 2125.--A "tort" is any civil wrong or injury not involving a breach of contract for which an action lies.61 The essential elements of a tort are a wrongful act or omission of duty by defendant, and damage or loss to the plaintiff in consequence of such act or omission.62 The existence of a legal duty is prerequisite.63 A tort may result from the violation of a duty which is itself the consequence of a contract,64 but mere violation of a contract when there is no duty imposed by law, furnishes no basis for a tort action,65 and generally

60a. Includes only the more general rules

Raasch v. Elite Laundry, 98 Minn. 357, 7 L. applcable to all torts, matters relative to

Patricular torts (see Assault and Battery, 9

C. L. 257; Conversion As Port, 9 C. L. 722;

It has been held that a railroad, having, Tregnas, 8 C. L. 2147, and similar topics), to

without fault, run over a treenspace, overs the liability of a principal or master for the

him a duty of care (Whitiesides v. Southern)

acts of his agent or servant (see Agency, 9

R. Co., 128 N. C. 229), but the weight of

C. L. 68; Master and Servant, 10 C. L. 691;

anothry is contra (Griswold v. B. & M. R. 1982; Car

C., 1383 Mans. 434). However, sickness may

riers, 9 C. L. 466; Master and Servant, 10 C. L. 691;

L. 691; Railroads, 10 C. L. 1865; Street Railways, 8 C. L. 2004), and the right to elect

whether to sue in tort or on contract (see

Election and Walter, 9 C. L. 1037) being

treated in separate articles.

61. Jewett v. Ware \[Va.\] 60 SE 131. "A

tort is a legal wrong committed upon the

person or property independent of contract,

and which may be the violation of some

private obligation by which damage accres

to the individual," Civ. Code of 1895, 8387.

Wolf v. Southern R. Co. \[Gla.\] 60 SE 569.

A person commits a, tort who commits

some act not authorized by law, or who

omits to do something which he ought to do

by law, and by such an act or omission

either infringes some absolute right to the

uninterrupted enjoyment of which another

Is entitled or causes to such other person

some substantial loss of money, health, or

material comfort, beyond that suffered by the

rest of the public. Acker, Merrell & Condit

Co. v. McGaw \[Md.\] 68 A 17.

62. Acker, Merrell & Condit Co. v. McGaw

\[Md.\] 68 A 17. Breach of trust by director

of plaintiff corporation by taking lease of

premiles for himself if he could have taken

it for corporation for same rental. Id.

63. The mere use by street railway

many of a pole wrongfully erected and

maintained by a telephone company did not

render the former liable when pole was not

under its control and could not be abated

by it. Moore v. Chattanoga Elec. R. Co.

\[Tenn.\] 109 SW 497. Question as to whether

defendant was guilty of negligence properly left with jury, May v. Hill \[Mich.\]

115 NUV 1064. No evidence showing negligence toward plaintiff. Munk v. Maryland

Causality Co., 122 App. Div. 487, 107 NYS

215. The plaintiff while visiting the defendants' jantor was taken sick with

contagious disease. The defendant expelled

her. Held, the defendant was not liable for

the aggravation of her Illness. Tucker v.

Burt \[Mich.\] 15 Det. Leg. N. 85, 115 NUV 722.

Note: The disability of another will not

create a duty unless there is an existing

relation between the parties. Lord v. De

Witt, 116 F 713; Griswold v. B. & M. R. Co.,

183 Mans. 434. Thus a master must care

for a disabled seaman. Scaff v. Metcalt

107 N. X. 211, 1 Am. St. Rep. 807; and see

108 N. X. 211, 1 Am. St. Rep. 807; and see

109 N. X. 211, 1 Am. St. Rep. 807; and see

110 N. X. 211, 1 Am. St. Rep. 807; and see

1250 N. X. 211, 1 Am. St. Rep. 807; and see

130 N. X. 211, 1 Am. St. Rep. 807; and see

140 N. X. 211, 1 Am. St. Rep. 807; and see

141 N. X. 211, 1 Am. St. Rep. 807; there must be some active negligence or misfeasance shown." Generally speaking, maliciously interfering with another's business," inducing one bound by a contract to violate such contract,"8 and interfering with one's right of privacy," are actionable

contract. Wolff v. Southern R. Co. \[Ga.\] \[coercion\]; Angle v. Chicago, etc., R. Co., 151 60 SB 569.

66. Graff v. Lemp Brew. Co. \[Mo. App.\] \[Coercion\]; Angle v. Chicago, etc., R. Co., 151 60 SB 569.

01. Graff v. Lemp Brew. Co. \[Mo. App.\] \[Coercion\]; 107 Mass, 555), it must be admitted 109 SW 1044. Landlord negligently failed to repair as per coevants, and through such

in this country, the procurement of a breach negligence plaintiff was injured. Lable in damages. Id. After violation of contract

where there is no general duty is not a tort. Dustin v. Curtis \[N. H.\] & 230.

67. Barnes & Co. v. Chicago Typographical

Union, No. 16, 232 Ill. 424, 83 NE 949. Declands to coexe plaintiffs to submit to

certain demands established a picket system

around plaintiffs shops, enticed away their

employees, and resorted to threats, intimidation, and assault, to accomplish their ends.

Hold illegal, and injunction restarning him

issued. Id. Evidence held insufficient to show that defendant maliciously interfered

with contract of copartnership between

plaintiff and another. McPherson v. Kenney \[Mass.\] 84 NE 463.

68. Roberts v. Clark \[Tex. Civ. App.\] 19 19 Tex. Ct. Rep. 568, 103 SW 417. Defendants' act in Inducing an Ice company to break

its contract with plaintiff though not malicious was unlawful and therefore actionable. Enickrebocker Ice Co. v. Gardiner

Dairy Co. \[Id.\] 69 A 405. A reccepted bill

signed by the ice company for ice sold to

plaintiff under the alleged contract held

admissible to show existence of the contract.

Id. Plaintiff had obtained from a certain

hotel its exclusive agency for the New England states to solicit patroneage. Defendant

persnaded hotel to break this contract and

give him right also to solicit patroneage.

Injunction granted to restrain defendant

from acting as agent, damages being inadequate. Beekman v. Marsters, 195 Mass. 205,

80 NE 817. Provering discharge of an employee with intent to injure held an actionable wrong. Gibson v. Fidelity & Casualty

Co., 232 Ill. 49, 83 NE 539. Not liable, even

though the acted with malicious motivic, for

inducing the breaking of a contract to sell

lands, since parties to contract were not

bound to perform it. Roberts v. Clark

\[Tex. Civ. App.\] 19 Tex. Ct. Rep. 563, 103

SW 417. Whoever intentionally and without legal justification or excuse procures an employer to discharge employ to latter's damage is liable to action for damages

at suit of employee, though there was no

binding contract of employment. Brennan v. United Hatters of North America, Local

No. 17, 78 N. J. Law, 729, 65 A 165. Interference with contract rights is not actionable unless maliciously done. Legris v. Marcotte, 129 Ill. App. 67.

Note: It has been doubted whether any action lies for inducing a breach of contract unless unlawful means have been used

(Boyson v. Thorn, 98 Cal. 578, 21 L. R. A. 233), or unless the relation of master and servant existed (Chambers v. Baldwin, 91

Ky. 121, $4 Am. St. Rep. 165, 11 L. R. A. 546). While in some cases in which the rule has been broadly stated, other elements were present (Temperton v. Russell, 1 Q. B. 715

68. Roberts v. Clark \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 568, 103

01. \[McPherson\]; Angle v. Chicago, etc., R. Co., 151

U. S. 1, 38 Law. Ed. 55 \[fraud\]; Walker v.

Cronin, 107 Mass, 555), it must be admitted

that in England, and in many jurisdictions

in this country, the procurement of a breach

negligence plaintiff was injured. Lable in

by lawful means is actionable, if without

damages. Id. After violation of contract

(South Wales, etc., v. Glamor-

where there is no general duty is not a tort. Dustin v. Curtis \[N. H.\] & 230.

Louisville, etc., R. Co., 207 U. S. 205, 52 Law.

67. Barnes & Co. v. Chicago Typographical

Ed. , see 8 Columbia L. R. 225),

Irrespective of the special relation of

master and servant (Bowen v. Hall, L. R.

65 Q. B. D. 833; Jones v. Stanley, 76 N. C.

355. Though wrongs. If a person does only that which he has a legal right to do, violating no legal duty or obligation, the motive which prompts him is immaterial," but the protection of one's own property does not justify injury to that of an innocent person."

\[1853\] 2 E. & B. 216, or a bare offer to purchase goods already contracted for (Beekman v. Marasters, 195 Mass. 205, 800 NE 817), would not ordinarily constitute the defendant the proximate cause. Whether the defendant in fact procured the breach, is a proper question for the jury (Doremus v. Hennessey, 176 Ill. 608, 68 Am. St. Rep. 203, 43 L. R. A. 787). Assuming damage and the defendants responsibility, the defendant is liable unless justification or excuse appears. South Vales, etc. v. Giamorgan Coal Co., \[1903\] A. C. 283. Here is a legitimate held for conflict of opinion. Excuse and justification are matters of public policy. Divergences in the authorities are attributable to different views thereof. The present tendency is toward a broader conception of civil duty. Pollock, 24 Law Quart. Rev. 109; cf. Rich, v. N. Y. etc., R. Co., 87 N. Y. 382; London Guaranty, etc., Co. v. Horn, 206 Ill. 493, 99 Am. St. Rep. 185. The use of fraud or physical intimidation has always been regarded injustHable (Burdick, Torts, 70, 71), likewise, on principle, moral coercion (National Prot. Ass. v. Cumming, 170 N. Y. 315, 88 Am. St. Rep. 448, 58 L. R. A. 135). On the other hand, fair competition excuses interference with contracts terminable at will (Allen V. Flood \[188\] A. C. 196), or with an established course of dealing (Mogul S. S. Co., v. McGregor \[1892\] A. C. 25). American courts, contrary to the English view (Allen v. Flood \[1898\] A. C. 1, 96), incline to make motive material (London Guaranty, etc., Co. v. Horn, 206 Ill. 493, 99 Am. St. Rep. 185; Berry v. Donavan, 188 Mass. 353, 108 Am. St. Rep. 499, 5 L. R. A. \[N. S.\] 899; Huffcut, 18 Hary, L. R. A. 439), an extension perhaps verging upon paternalism. Where a binding contract exists, however, no legitimate interest of competition is observed by excusing interference. At least, in England, it would seem (Lumley v. Gye, \[1853\] 2 E. & B. 216), and in Massas-chusetts (Beekman v. Marasters, 195 Mass. 205, 80 NE 817), competition is no defense, No doubt, however, under some circumstances, still unsetted, inducing a breach may be justifiable (CF. South Vales, etc. v. Giamorgan Coal Co., \[1903\] A. C. 239). A recent English case (National Phonograph Co. v. Edison-Bell, etc. Co., 77 Law J. Ch. 218), involved the application of these principles to a novel set of facts. The plaintiff, a manufacturer, sold phonographs to B under an agreement not to resell to any blacklisted tetailer. The defendant, plaintiff's competitor, obtained phonographs, first, from B through agents who fraudulently posed as independent retailers, and, second, without fraud, through one Ell, a retaller, who did not know that the defendant was blacklisted. It was held that, in the first transaction, irrespective of whether B had broken his contract, the defendant was blacklisted, a breach was blacklisted relative to having fraudulently induced B to act contrary to the contractual duty which B owed the plaintiff; that in the Ell transaction there was no liability since no contract between Ell and the plaintiff was blacklisted. It was held that, in the first transaction, irrespective of whether B had broken his contract, the defendant was blacklisted relative to having fraudulently induced B to act contrary to the contractual duty which B owed the plaintiff; that in the Ell transaction there was no liability since no complaint between Ell and the plaintiff was blacklisted. It was held that, in the first transaction, irrespective of whether B had broken his contract, the defendant was blacklisted relative to having fraudulently induced B to act contrary to the contractual duty which B owed the plaintiff; that in the Ell transaction there was no liability since no complaint between Ell and the plaintiff was blacklisted. It was held that, in the first transaction, irrespective of whether B had broken his contract, the defendant was blacklisted relative to having fraudulently induced B to act contrary to the contractual duty which B owed the plaintiff; that in the Ell transaction there was no liability since no complaint between Ell and the plaintiff was blacklisted. It was held that, in the first transaction, irrespective of whether B had broken his contract, the defendant was blacklisted relative to having fraudulently induced B to act contrary to the contractual duty which B owed the plaintiff; that in the Ell transaction there was no liability since no complaint between Ell and the plaintiff; 10 Cur. Law. Torts SS 4. 1861

One who fraudulently makes a second deed of conveyance of land,"12 and one who conspires to defraud creditors,78 commit actionable wrongs against persons injured. Neither negligence nor willfulness is necessary to make a trespass on real estate a tort.74 The wrong must not be too remote, indefinite, and contingent.78

SS 8. \_What is an injury or wrong.\_See 8 C. L. 2127--There is no liability for acts or omissions in the discharge of governmental duties.78

SS 3. \_What is damage.\_See 8 C. L. 2127--Damages cannot be recovered for violation of legal rights to which plaintiff has asserted.77

SS 4. \_Parties in torts.\_See 8 C. L. 2127--Tort fessors are jointly and severally liable 78 for the whole amount of damage irrespective of the degree of culpability,79 but to hold them jointly or severally liable, community or concert of action must be shown or each is liable only for his proportion of damages.80 Tort fessors may be sued separately or jointly at the election of the party injured,81 and if he elects to sue them jointly he has the right to have the case tried as for a joint tort.82 If he

Shattuck, 35 N. H. 257, 59 Am. Dec. 536), where the comparative values are not un-sulting from pollution of a stream due to reasonably disproportionate (Morse v. the use of a drain as a sewer where such Mixon, 6 Jones Law \[N. C\] 293, 296; Russell v. The Mayor, 2 Denio \[N. X\] 461, 481), or where a nuisance is shown (Toledo, etc., R. Co. v. Loop, 139 Ind. 342). Logging companies using navigable streams are liable for injuries they occasion either by negligence or unreasonable cogne v. Miss., etc., Lumber Co., 72 Minn. 533, 71 Am. St. Rep. 508, 41 L. R. A. 494; Hunter v. Lumber Co., 83 Or. 448: Lumber Co, v. Keel, 125 Ala. 603, 82 Am. St. Rep. 265; Outterson v. Gould, 77 Hun \[N. Y\] 429, and are held to have constructive notice of lawful obstructions (The Echo, 19 F 453). As in the principal case the bridge repairing was a lawful obstruction (Green & B. R. Nav. Co. v. Chesapeake, etc., R. Co., 88 Ky. 1, 12 L. R. A. 540), the threatening of the bridge was unlawful since it would have been unreasonable if with actual knowledge. The principal case seems, therefore, unsound in denying the defendant his right of seif-help. --From & Columns L. R. 414. --Mclendon Bros. v. Finn, 2 Ga. App. 421, 58 SE 690. Action brought being ex contractu damages for fraudulent conveyance could not be set off. Id. --M. Raymond v. Blangregrass \[Mont.\] .93 P 648. A judgment creditor could not recover against one who conspired to defeat his judgment because no special injury different from that suffered by others was shown. Id. --M. Baldwin v. Postal Tel. Cable Co. \[S. C\] 59 SE 67. --M. Raymond v. Blancregrass \[Mont.\] .93 P 648. One who has obtained a decree against her husband for separate maintenance cannot sue others to recover damages for conspiracy during the pendency of that suit to defeat the suit and make ineffective the decree which might be obtained therein by removing the property of plaintiff's husband, but had such person been a creditor he might have recovered for property put beyond his reach. Id. Damages resulted in failure to repair premises. Heid, not too remote. Graff v. Lemp Brew. Co. \[Mo. App.\] 109 SVV 1044. --M. City of Mansfield v. Bristor, 76 Ohio St. 270, 81 NNE 631. While a municipality 1862TORTS $ 5. 10 Cur. Law. brings action against all in one suit, he cannot, after judgment, sue them separately,\[83\] nor can he first bring suit against them separately or against part of them only, and then, after judgment, maintain a new action against one sued separately by merely joining others therein.\[84\] Neither an agreement not to sue one joint tort feasor "s" nor the mere acceptance of payment from one operates to release the remainder.\[88\] Where a tort is in fact several when committed, it does not become joint because afterwards its consequences unite with the consequences of several others." No right of contribution exists among joint tort feasors.\[88\] In some states the husband is liable for his wife's torts.\[89\]

SS 5. _Pleading and procedure.\[88\]_ So $ C. L. 2139--Liability is governed by the law of the time and place of commission of the tort.\[90\] Unless there be community of interest, parties cannot be joined as defendants.\[91\] A judgment against one joint trespasser is no bar to a suit against the others for the same trespass,\[92\] but granting a new trial to one of several joint tort feasors entitles the others to a new trial also.\[93\] Two causes of action are stated in a declaration of tort if the act which caused the injury is alleged to be negligent and willful.\[94\] To the count in simple negligence contributory negligence of the person injured is pleadable,\[95\] but to the one for willfulness and wantonness, contributory negligence is no defense.\[96\] It is not necessary to set out all the allegations of negligence on the part of defendants.\[97\] On a count in simple negligence there can be no recovery, where the testimony adduced tends to establish only an intentional or wanton wrong.\[98\] A court cannot properly direct a ver-

S8. Moore v. Chattancoga EIEC. R. Co. \[Tenn.\] 109 SSV 497. One suing tort feasors jointly is limited to one recovery and cannot have rendered separate judgments against each. Indianapolis Trac. & T. Co. v. Holtselaw, & Ind. App. 311, 81 NEE 1094. In attachment proceedings judgment was rendered in favor of plaintiff, intervener, who claimed property. Attached property was given in satisfaction of the judgment Plaintiff seeks damages against shelf refasulting from attachment, former satisfaction held due to recovery. Jones v. Allen, 38 Colo. 512, 85 P 387.

S4 Moore v. Chattancoga EIEC. R. Co. \[Tenn.\] 109 SSV 497. A judgment, in an action against a telephone company for injury to a street railway conductor, held conclusive of a subsequent joint action against it and the street railway company. Id.

S8. Chicago, etc., R. Co. v. Averill, 127 Ill. App. 275.

S8. Unless there is a release or an accord and satisfaction, a payment from one joint tort feasor cannot be a release of the others. Brennan v. Electrical Installation Co., 120 Ill. App. 461. Steamship and stevoders were Joint tort feasors, plaintiff received satisfaction from stevedors and released them. HeId he had discharged steamship. The St. Cuthbert, 157 F 799.

S8. Torts committed by other persons. Sun Co. v. Wyatt Trox. Civ. App.\] 107 SV 984.

SS. City of Seattle v. Puget Sound Imp. Co. \[Twash.\] 91 P 255. Owner of premises abutting on a street placed trap doors in the side-walk and, owing to unsafe condition of doors, a pedestrian was injured and recovered damages against city, City held not a joint tort feasor and deprived of indemity against owner. Id.

S8. Wife uttered a libel without her husband's knowledge or participation. HeId husband and wife jointly for compensatory damages but wife alone for punitive damages. Price v. Clayt \[Tenn.\] 105 SW 864.

90. Missouri, etc., R. Co. v. Wise \[Tex.\] 109 SSV 112. Torts committed in the Indian Territory held to be governed by the laws of the territory at the time, and not that of Arkansas, notwithstanding Act Cong. May 2, 1892, c. 182, 53, 25 Stat. 94, which put in force in the Indian Territory statutes of Arkansas including the one which in general terms adopts the common law. Id.

01. Pipe lines are laid by different oil companies, each acting for itself, which obstructed flow of surface waters misjoinder of party defendant. Sun Co. v. Wyatt \[Tex. Civ. App.\] 107 SW 934.

01. Johnson v. McKenna \[N. J. Eq.\] 67 A 385.

01. Jury rendered a general verdict against joint tort feasors on the theory that they were jointly liable. New trial was granted one, but refused to others. HeId error.

01. Kandberg v. International R. Co., 121 App. Div. 1, 105 NYS 621.

01. Atcal damages allowed on proof supporting the charge of negligent injury to real estate. Baldwin v. Postal Tel. Cable Co. \[S. C.\] 59 SE 67.

01. Louisville & N. R. Co. v. Perkins \[Ala.\] 44 S 602.

01. Louisville & N. R. Co. v. Perkins \[Ala.\] 44 S 602.

01. Southern R. Co. v. Miller, 1 Ga. App. 616, 57 S8 1090.

01. Nothing to show that negligence proximately caused death of intestine, error in not charging that no recovery could be had under count. Louisville 10 Cur. Law. TOWNS; TOWNSHIPS SS 2. **1868**

diet for defendant if there is any evidence legally sufficient from which a breach of duty on defendant's part and consequent damages might be reasonably inferred."

TOWASE, see latest topical index.

TOWNS; TOWNSHIPS.

SS 1. Creation, Organization, Status, and Boundaries, 1863. **8**

SS 2. General Powers and Exercise There- **8**

SS 3. Property, 1804. **8**

SS 4. Matters common to all municipal corporations are elsewhere treated.1

SS 1. \_Creation, organization, status, and boundaries.\_See 8 C. L. 2130.--Some states have provided for the classification of townships according to population.2 In Wisconsin * and Illinois, the county board is empowered to detach or annex territory.4 The incorporation of a town cannot be attacked collaterally.5

SS 2. \_General powers and exercise thereof.\_See 8 C. L. 2131.--Expressly conferred powers 8 should be construed in the interests of the public.7

\_Town meetings.\_See 8 C. L. 2132.--Town meetings have only a definite present existence,8 and it follows that a vote of indefinite postponement of a matter is equivalent to a negative vote." The proceedings are presumed to be regular.10

Footnote 10: The author is grateful to the anonymous referee for the support of the work.

90. Acker, Merrall & Condit Co. v. McGaw \[Md.\] 68 A 17. Court erred in directing verticement are summed. Such a meeting, al- show breach of trust and duty on the part of directors of a corporation. Id. Evidence falls tended to prove cause of action, and time and order to finish its business. It is not self perpetuating nor is it a legislative hotel. Gibson \_V.\_Fidelity & Casualty Co., 232 **11**. 49, 83 NE 583. **1**. See Municipal Corporations, 8 C. L. 1056. **2**. Travis v. Lehigh Coal & Nav. Co., 33 Pa. Super. Ct. 203. Assessment of corporation not for benefit of Bardwell, a sixth class town with its own fiscal system. Morerell Refrigerator Car Co. v. Com \[Ky.\] 108 SV 926. **3**. No vote of electors necessary to an-thorize change of boundaries, unless area is less than 36 acres. State v. Lippels \[IVi.\] 113 NW 437. **4**. Township Organization Law (Act March 4, 1874; Rev. St. 1874, to 3, 87), art. 3, 12, People v. Clark County Suprs, 234 Ill. 62, 84 NE 695. **5**. Curative act has remedied defects in Indiana. Daly V. Gubbins \[Ind.\] 82 NE 659. **6**. Where statute conferred the right to Issue licenses a town could not enforce an article prohibiting nonreadtions from taking claims. State v. Peabody (Me.) 69 A 273. **7**. Power to improve streets not limited to one block at a time. Daly V. Gubbins \[Ind.\] 82 NE 659. Trautes may sell and convey real estate owned by the township when it is for the best interest of the township. Trautes of Harrison T., v.

- 3. \_Property.\_See 4 C. L. 1688
- 4. \_Contracts.\_See 5 C. L. 2132--Contracts may be implied,11 but a township cannot disregard a statute and then become liable for debt on a fictitious implied contract.12 Express contracts 13 should be entered into only after proper meeting of the board,14 and due deliberation,15 but the holding of such meeting is presumed.16 Statutes must be observed 17 and an incomplete contract cannot be enforced.18
- 5. \_Officers and employees.\_See 8 C. L. 2133--Those dealing with selectmen are charged with knowledge of the extent of their powers.19 Where residence is a qualification for office, a change in the line of the township will create a vacancy.26 An unexpired term may be filled by appointment.21 The power of boards of townn auditors in New York is solely derived from the statute; 22 the members act in semi-judicial capacity 23 and their decisions are irrevocable.24 The board of commissioners 25 and the advisory board, provided for in Indiana, has only statutory power.27 The question of interest or bias of an officer charged with performance of a certain act may be a private matter,27 but when constitutional or statutory provisions forbid such an officer from acting, he transgresses the public policy of the state.28 In Iowa township trustees are forbidden from becoming parties to any contract to furnish labor.29 Disqualifications of this nature may be waived, however.30 Compensation is regulated by statute.81
- 6. \_Fiscal management.\_See 7 C. L. 2134--Appropriations can only be made when 11. Where labor is furnished at request of road supervisor, State v. York \[Iowa\] 113 NW 324.
- 12. Where an act required the lowest bid-der to sign contract and give bond before commencing work, the selectmen could not waive these conditions, and the town was not liable on implied contract. Kelley v. Torrington \[Conn.\] 68 A 855.
- 13. Pursuant to decision of electora. Lewis v. Eagle \[WWs.\] 115 NW 361.
- 14. Lewis v. Eagle \[WWs.\] 115 NW 361.
- 15. In absence of fraud to cause supervisors to forego deliberation, presumption prevails that duty was done. Good Roads Mach. Co. v. Union Tp., 34 Pa. Super. Ct. 638.
- 16. Good Roads Mach. Co. v. Union Tp., 34 Pa. Super. Ct. 538; Lewis v. Eagle \[WWs.\] 115 NW 361. Order for traction engine by one supervisor ratihed by acceptance of both. Geiser Mfg. Co. v. Frankford Tp., 34 Pa. Super. Ct. 146.
- 17. Bonds sealed with the commissioner's individual seals were valid, since the statute did not expressly require corporate seal. Smrpthe v. New Providence Tp., 158 F 218. The provisions of # 2834b, Rev. St. requiring that before any contract is entered into by township trustees the clerk shall file a certificate stating that there is in the treasury, and unappropriated, funds sufficient to meet the obligation proposed, Is a general provision relating to townnships and applies to the letting of contracts in all townnships of the state. Broken Sword Stone Co. v. Monroe Tp. Trustees, 5 Ohio N. P. (N. S.) 573.
- 18. Where on recommendation of council the town meeting appropriated money for a low bid for certain work, mandamus would not lie to compel the counil to accept that 1864. Putnam Found. & Mach. Co. v. Barrington Town Council \[R. I.\] 67 A 738.
- 19. Kelley v. Torrington \[Conn.\] 68 A 855; People v. Parker, 231 Ill. 478, 83 NE 282. Agents cannot exceed their authority. Board of Com's of Jay Country v. Pike Civil Tp., 168 Ind. 535, 81 NE 489.
- 20. Residence, essential qualification of tax collector, construring statutes. Commwealth v. Topper \[Pa.\] 68 A 666.
- 21. Constraining Const. $ 152. Provence v. Lucas \[Ky.\] 107 SW 755.
- 22. Central Bk. of Westchester County v. Shaw, 121 App. Div. 415, 106 NYS 94.
- 24. cannot reconsider, revise, review or annul their own judicial action. Central Bk. of Westchester County v. Shaw, 121 App. Div. 415, 106 NYS 94.
- 25. Board acts in judicial capacity. Duncan V. Cox \[Ind. App.\] 81 NE 735.
- 26. Advisory Board of Coal Creek Tp. v. Levandowski \[Ind. App.\] 84 NE 346.
- 27. In the absence of prohibitory legislation. Daly V. Gubbins \[Ind.\] 82 NE 659.
- 28. Daly v. Gubbins \[Ind.\] 82 NE 659.
- 29. Code Supp. $ 468a. State v. York \[Iowa\] 113 NW 324.
- 30. Estoppel will apply. Daly v. Gubbins \[Ind.\] 82 NE 659. The fact that one of the township trustees Ia a stockholder and director in a bank situated within the townn-ship, which has submitted the highest bid for the usage of the township funds, and to act as depository under the provisions of $ 10 Cur. Law. TRADE MARKS AND TRADE NAMES SS 1.1865

there are funds available \[82\] for corporate purposes \[33\] or for ends which are expressly or impliedly authorized, within the scope of the legislature's constitutional powers.\[84\] Prerequisite conditions must be complied with, also,\[85\] and may be questioned by a taxpayer \[86\] by proper proceedings.\[87\] Surplus moneys should be used in accordance with statute.\[88\]

SS 7. \_Claims.\_See * C. L. 2135--Money raised to discharge a claim should be applied to that purpose.\[99\] A town is not bound by the acts of an agent in allowing the payment of a claim not legally chargeable to it.\[40\]

SS 8. \_Actions by and against.\_See * C. L. 2138--In Iowa, a civil township is not a corporation and cannot be used.\[41\] In the case of highways and bridges, the liability of each town is several, as to the portion within the boundary,\[42\] but there is no liability in case of accident.\[43\] The township is a proper party in a suit to enjoin the collection of a tax on the ground that the act authorizing it was constitutional.\[44\]

TRADE MARKS AND TRADE NAMES.

SS 1. _Definition, and Words or Symbols,_ * S. L. 2137--A trade mark is an arbitrary, distinctive name, symbol, or device, to indicate or authenticate the origin of the product to which it is attached.\[45\] The product itself cannot constitute a trade mark.\[46\] Neither can the trade mark exist apart from its application to a * Wunderlich v. Kalkofen \[TWis.\] 113 NW 1091. * M. State v. Johns \[Ind.\] 84 NNE 1. * M. Mesolution allowing sum to officer in excess of salary was invalid. People v. * M. Mesolution * M.

-vendible commodity,"47 though a different rule is applied to trade names and advertising symbols."48 Words merely descriptive are not subjects of trade mark "49 unless, by reason of long use, they have acquired a secondary meaning and become associated in the mind of the public with such article exclusively."50 No trade mark can be acquired in the use of a color not connected with some symbol or design,"51 and a geographical name cannot be used exclusively as a trade mark."52 An arbitrary or fanciful word may be adopted."53 A proper name which has acquired a secondary meaning cannot be used except in a manner which will inform the public that the article is not that made by the person originally using the same."54 Every person has the right to the use of his own name as a trade mark,"55 even though he may thereby incidentally interfere with and injure the business of another having the right to use the same name,"56 but cannot use such name as a cloak to cover an intended fraud

47. Grocers' Journal Co. v. Midland Pub. \[Tex. Civ. App.\] 108 SW 413. The names

01. A trade name or symbol may be protected though not used in connection with any article of manufacture. Name and

and their use by defendants on labels for symbol of insurance company. Atlas Assur.

C. Vo. Atlas Ins. Co. \[Lown\] 113 NV 232.

Purchaser of the rights of the manufacturing.

ers of "Woodbury's Facial Soap" held entilled to restrain such original manufacturer

turners from subsequently manufacturing and selling a soap known as "Woodbury's

New Skin Soap." Andrew Jurgens Co. v.

Voodbury, 56 Miss. 404, 106 NYS 571. The name of a newspaper is in the nature of a trade mark, and passes by assignment with the business in which it is used, but, apart

from the business, it confers no right of ownership. Seabrook v. Grimes \[Md.\] 68 A

88.

01. "Radium" as applied to slik is not descriptive. Eiseman v. Schiffer, 157 F 473.

"Bohemian" used in reference to beer is descriptive. American Brew, Co. v. Bienvillie Brewery, 158 F 615. "Stud" used to designate a belt fastener is descriptive. Greene, Tweed de Co. v. Manufactures' Belt Hook Co., 158 F 640. "Orientant cream," as applied to cosmetic, held descriptive. In re

Hopkins, 29 App. D. C, 118. "Standard," as applied to photograph, held descriptive. In re

In re National Phonograph Co., 29 App. D. C, 112.

50. Bill filed by manufacturer of a wood, filler, or coating, which consists principally

of a mixture of turpentine and shellac, and designated as "Turpentine shellac," held

to state a case of unfair competition. Standard Varnish Works v. Fisher, Thor-

sen & Co., 153 F 928. Although the word

"sterling" is ordinarily descriptive of quality, a manufacturer, who has adopted it to designate a particular ale, will be entitled

to protection against its use in such manner as to create confusion of the two ales.

Worcester Brew. Corp. v. Rueter \[C.C. A.\]

157 F 217.

51. Manufacturer of drawers under a pat.

ent which covered the insertion in the seams

of a strip of elastic, the natural color of

which is yellow or buff, the body of the garment being white jean, has no monopoly on

such color, when markings of goods were such as to negative any intention to deceive purchaser. J. A. Serlven Co. v. Morris, 154 F 914.

52. Western Grocer Co. v. Caffarelli Bros.

Co. \[Mo. App.\] 105 SW 310.

48. A trade name or symbol may be protected though not used in connection with any article of manufacture. Name and

and their use by defendants on labels for symbol of insurance company. Atlas Assur.

other wines held to constitute unfair com-

Co. v. Atlas Ins. Co. \[Lown\] 113 NV 232.

petition. Jewish Colomization Assu's V. Solom-

Turnasser of the rights of the manufacturing.

mon, 154 F 157. The word "American" being

efeographical "American Wine Company"

titled to restrain such original manufacturer

turners from subsequently manufacturing and selling a soap known as "Woodbury's

"La Carolina" used as a trade mark for

New Skin Soap." Andrew Jurgens Co. v.

v. Woodbury, 56 Miss. 404, 106 NYS 571. The

name of a newspaper is in the nature of a trade mark, and passes by assignment with

the business in which it is used, but, apart

from the business, it confers no right of

ownership. Seabrook v. Grimes \[Md.\] 68 A

88.

01. "Radium" as applied to slik is not descriptive. Eiseman v. Schiffer, 157 F 473.

"Bohemian" used in reference to beer is descriptive. American Brew, Co. v. Bienvillie Brewery, 158 F 615. "Stud" used to designate a belt fastener is descriptive. Greene, Tweed de Co. v. Manufactures' Belt

Hook Co., 158 F 640. "Orientant cream," as applied to cosmetic, held descriptive. In re

Hopkins, 29 App. D. C, 118.

54. "Old Crow Whiskey," held to be an

fringement, where predecessors of upon the rights of another,\[67\] and may be required to so mark his product as to distinguish it from that of the prior user.\[58\]

SS 2. _Acquisition, transfer and abandonment._ See **s C. L.** 2188--Any person or corporation capable of holding title to personal property may acquire the right to a trade mark.\[59\] The right to a trade mark used to identify a patented article expires with the patent.\[60\] Likewise, a proper name used to describe a copyrighted work becomes public property when the copyright expires,\[61\] and a publisher may be enjoined from advertising that he has the exclusive right to use the name in such connection.\[62\] Irrespective of any question of right protected by patent,\[63\] or copyright, a party cannot appropriate to his own use a label in prior use and especially appropriated to another, where such act deceives the public.\[64\] The right to a trademark may be acquired by assignment,\[65\] and by statute in New York every registered trade mark shall be assignable in connection with the good will of the business in which the mark is used.\[66\] The assignee of a business with the right to use in connection therewith the trade mark under which the business is known, will be protected against the use thereof by subsequent assignees of the assignor.\[67\] But such assignment must be accompanied by the use of the trade mark in the manner and for the purposes that it was used by the assignor.\[68\] Upon the sale and delivery of a news-not plan 1t off as the goods of the manufacturer. **1.**: A. Seriven Co. v. Morris, 154 F 914.
**1.**: The name of the patentee by which the article held to constitute unfair competition. **1.**: R. Rowley Co. v. Rowley, 154 F 744. Thus one cannot mislead the public as to the identity of the business firm or establishment. or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name. International Silver Co. v. Rogers \[N. J. Err. & App.\] 67 A 105. Where an article has come to be known by a personal name, one may not use that name, even though it be his own, to palm off his goods as the goods of another who has first adopted it, and by which appellation the goods have come to be known, when the use of his own name for such purpose works a fraud. Id. Use by corporation of which patentee was president of name of patentee to designate shoes manufactured by the corporation held fraudulent and unfair as against assignee of former patent. Dr. A. Reed Cushion Shoe Co. v. Frew, 158 F 552.
**1.**: Where the name is one which has frequently thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied with any precaution or indication is an artifice calculated to produce such confusion. International Silver Co. v. Rogers \[N. J. Err. & App.\] 67 A 105. The words "not connected with any other of the same name," or words of similar import, do not suffice. Id. Required to use such words in connection with such name as will indicate that their's is not the original business or it successor. Herring-Hall-Marvin Safe Co. v. Hall's Safe Co., 28 S. C 350.
**1.**: Weigren Grocer Co. v. Caffarelli Bros. \[Tex. Civ. App.\] 108 SW 413.
**1.**: Greene, Tweed & Co. v. Manufacturer's Belt Brook Co., 158 F 640. No one can be restrained from making the patented article, though it had become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[65\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[66\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[67\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[68\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[69\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[70\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[71\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[72\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[73\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[74\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[75\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[76\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[77\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it with his own name and does not make it.\[78\] The name of the patentee by which the article has become known to the public by the name of the manufacturer, provided he marks it paper, the name and good will thereof, the plant, and all things "opertaining to the title of the newspaper as a trade mark, passes therewith." "After the abandonment of a trade mark by the owner, he is not entitled to injunctive relief against the use thereof by another," but the fact that one has abandoned his right to use a trade mark does not justify another in using such mark on his own product representing it as the product of the original maker." The abandonment by a manufacturer of the dress by which his goods have become known to the public will not give a competitor the right to unlawfully imitate such dress," nor will a modification thereof give such competitor the right to imitate the earlier dress." A firm's right to use a trade mark is opened to the public by its dissolution, and one claiming to be the assignee of the firm but who is not its legal successor cannot maintain a suit on a promise not to infringe made to the firm."

SS 3. _Infringement and unfair competition._ _Infringement._" See e. C. L. 2129.\_The imitation of any part of a trade mark is a technical infringement, and the imitation need not be exact or perfect." The test of infringement is whether the resemblance is calculated to deceive the ordinary buyer." To constitute an infringement of a trade mark, it is not essential to show that any one has actually been deceived, or an intent to deceive," but where one continues to use a symbol which he in good faith be.

**@9. Groceras' Journal Co. v. Midland Pub.**

mark by manufacturers to designate terne Co. \[Mo. App.\] J05 SWV 310.

?0. Facts held to constitute abandonment of registered trade mark after assignment

with other letters. American Tin Plate thereof by propriter. Eisenan v. Schiffer, 157 F 478.

?1. Barglin v. Cusenler Co., 156 F 1015, 1016.

?2,73. De Long Hook & Eye Co. v. Francis Hook & Eye & Fastener Co., 159 F 292.

?4. Deutsch v. George R. Gibson Co., 155 F 183.

?5. Such infringement may be as to color, size, and form of the objects or packages, the color and appearance of the label, or the words or part of the words designating the article to be sold, but there can be no infringement unless the trade mark is used on a similar class of goods (Western Grocer Co. v. Caffarelli Bros. \[Tex. Civ. App.\] J05 SWV 413), and any use of the key or catchord in a trademark in any way calculated to deceive is an Infringment (Id.).

?4. Atlas Assurance Company and Atlas Insurance Company. Atlas Assur. Co. v. Atlas Ins. Co. \[Iowa\] 112 NWV 232. An infringement of a trademark consists in the use of the genuine upon substituted goods, or of an exact copy or reproduction of the genuine or in the use of an imitation in which the difference is colorable only, and the resemblance avails to mislead, so that the goods to which the spurious trade mark is affixed are likely to be mistaken for the genuine product. American Brew. Co. v. Bienville Brewery, 133 F 615.

?4. \*\*Held to infringe: "Sapolio" with picture of man observing his resection in pan, infringed by "sopono" with picture of woman observing her reflection in pan. Enoch Morin.

Ilieved he owned by virtue of an assignment, but disclaimed all title thereto and ceased to use it, upon objection by the complainants equity will refuse injunctive relief," and where it is not manifest-to the court, upon inspection of the label, that the public would be imposed upon by the dress of the article, there should be proof of actual mistake by purchasers." That two trade marks, a name and a device, were used together by the owner makes it none the less infringement for another to use one alone." A trade mark designates an article of commerce and is affixed thereto," being general or universal, accompanying the article, and may be infringed anywhere," while a trade name applies to a business and is as " rule local, and may be infringed only in the locality of the propriator." Confusion of trade names is sufficient ground for equitable protection."

_Unfair competition_ See 8 C. L. 2188 is not predicated on any exclusive right to the use of a name or device," and consists in any marking, coloring, or advertising by which the goods of one are sold for, and on the reputation of those of another."

SS 4. \_Remedies and procedure," See 8 C. L. 2140--The injured person has an election of remedies. He may sue at law for damages or he may proceed in equity for an accounting and injunction," but to entitle a person to the protection in the use of a name as a trade mark, his right to use it must be exclusive," and a clear show-

has been identified by usage with the goods of the first user, he will be protected. Enoch Browery, 153 F 615. Morgan & Sons Co. v. Ward \[C. C. A.\] 152 F 690.

\*\*SS. Manufacturer of locks held chargeable with unfair competition in copying a higher pied lock, made by another manufacturer, in form, size, coloring, lettering, and details of finish. Yale & Towne Mfg. Co. v. Alder \[C. C. A.\] 154 F 37. Advertisement by defendant certain salesman of recog-mixed standing and with circle of acquaintance in trade in which plaintiff and defendant were engaged, and who was formerly in employ of plaintiff who was known 'o public as "George's" and "Fisher's," announced that he could be found at "Balam's Misfit Parloros." Balasm being defendant's surname. Held that equity would not restrain use of "George's" and "Fisher" there being nothing in contents of advertisement calculated to deceive public. Sultzbach Clothing Co. v. Balasm, 56 Misc. 324, 107 NYS 622. He told to constitute unfair competition where, after complainant successfully advertised and sold medicine under name of "Alpenkrauter," defendants advertised a similar remedy called "St. Bernard Alpenkrauter." Dr. Peter H. Fahrney & Sons Co. v. Ruminer \[C. C. A.\] 153 F 735. The mere making and sale of repair parts for a well-known machine, the patents on which have expired, by other than the makers who also sell such parts, is not an act unfair competition unless they were put out as the goods of the original patentee. Bender V. Enterprise Mfg. Co. \[C. C. A.\] 155 F 641; George Frost Co. v. Estes, 156 F 677. Use of name of individual to designate article held under the evidence unfair competition. Dr. A. Reed Cushion Shoe Co. v. Frew, 158 F 552.

**SS.** Hagan & Dodd Co. v. Righers, 1 Ga, App. 100, 57 SE 970. Improper to dismiss action for damages because involving equity. 16.

**SS.** Bamforth v. Douglas Post Card & Ma 1870

TRADE MARKS AND TRADE NAMES SS 4. 10 Cur. Law.

ing is prerequisite to a temporary injunction,\[88\] but such relief will not be granted where the complainant itself has by its own acts created in great part the very confusion of which it complains.\[99\] The fact that defendant ceased to infringe another's right to a trade mark before suit was brought will not defeat the latter's right to an injunction, where defendant continued the use of such trade mark after notice to de-sist and contested a suit brought to compel it to do so.\[99\] In an action to recover for defendant's unlawful use of plaintiff's name in connection with the manufacture and sale of an article, plaintiff may recover profits on sales unlawfully made,\[91\] and also for losses in his own business caused by such unfair competition.\[92\] The good faith of the defendant will be considered in connection with the allowance of a recovery for profits.\[92\] A court of equity will restrain the use of an infringing mark regardless of the intent with which it is being used,\[93\] but one seeking equitable relief against infringement must come into court with clean hands.\[94\] The defense of

ehme Co., 158 F 355; American Wine Co. v. \[Mc.\] 69 A 569. If master In chanery rules in such case that the cannot allow for any such loss because the evidence does not enable him to draw definite line between loss resulting from the unlawful acts of disnowing, not to be entitled to injunction in rat causes for which the defendant is not diver Typewrifting Co. American Writing

Mach. Co., 156 F 177. Upon afflavits submitted to defendant, complainant denied injunction to restrain former from using name "muresco" to indicate a wall finishing product. Moore v. Auwell, 158 F 462.

89. Bear Lithia Springs Co. v. Great Bear Spring Co. v. J. Err. & App.D. 68 A 86.

01. Thomas G. Plant Co. v. May Mercantile

Epo., 153 F 228.

91. Cutter V. Gudebro Bras. Co., 190 N. Y. 252, 83 NE 16. In such action, no dam. agree being allowed and plaintiff only recovering profits ascertained at time of sale.

01. Testimony of defendant In such suit

interest may be awarded from time of commercial or action. Id. In taking account

19. Dres. Civ. Appl. 108 SV 418.

of profits made by defendant in unlawful competition with plaintiff, it is not to be assumed that all profits in defendant's busi-

194. Fay v. Lambourne, 108 NYS 874;

assumed that all profits in defendant's busi-

195. N were through such unlawful competition, and a finding by the master that cer-

001. Complanant will not be refused relief

tain profits were not so made will not be

196. N is a consequence of convincing evidence to contrary. W. R. Lynn Shoe Co. v. Au-

burn-Lynn Shoe Co. \[Mc.\] 69 A 569. Sales

made by defendant, under a trade mark re-

semblance plaintiff, to persons who knew

the goods were manufactured by defendant, and sales made to persons at a distance who

had no knowledge of plaintiff's existence, cannot be assumed to be injurious to plaintiff If the goods themselves are not impressed with deceptive marks. Id. In determining profits made by a defendant cor-

197. It is proper to include in cost of manu-

facture and sale reasonable sums paid in

good faith as salaries to managing officers, unless such officers are practically the cor-

poration and the parties really guilty of the

unfair competition. Id.

92. If such loss results partly from such

unfair competition and partly from other

causes independent of defendant and his

acts, the plaintiff can recover only for so

much of the loss as he shows to have re-

sulted from defendant's unlawful acts. V. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co. v.

10 Cur. Law. TRADE MARKS AND TRADE NAMES SS 5. 1871

unclean hands, to avail, must be based upon conditions existing at the time when the party applies for equitable relief." That a complainant has been guilty of fraudulent misrepresentations need not be pleaded." Laches may bar one's right to equitable relief " but is not a defense to a suit to restrain future infringements." While mere delay or acquiescence will not defeat the remedy by injunction, it may afford good grounds for denial of preliminary injunction to stop an established business prior to.a final hearing." In an action to restrain unfair competition in the manufacture and sale of an article, a supplemental answer setting up a patent secured by defendants, is not frivolous where some of the acts of unfair competition may be justified by the patent.1 A Federal court of the United States has jurisdiction to grant relief, where the acts of fraud and unfair competition are not committed solely in a foreign country, but have their inception and are in part performed in this country.2

SS 5. _Statutory registration, regulation and protection._" see s C. L. 2141...The power of the general government does not extend to trade marks under any express provision of the constitution, and the power of congress over such subject extends only so far as may be incidental to other subjects over which it has jurisdiction.3 Registration is permissive and not necessary.4 Descriptive 5 or geographical names "

chant" discontinued such title, but listed the name as a going paper and thereby obtained

Memphis Keeley Institute v. Leslie E. patronage, he cannot restrain the publication of another newspaper on the grounds

97. Dr. Peter H. Fahrney & Sons Co. v. of the simillitude of its name to "St. Louis Grocer and General Merchant." Grocer's Journal Co. v. Midland Pub. Co. \[MAp. App.\] Pesth, Hungary, was not entitled to ejoin sale of water made in America under lab! allowed another to wrap a different buteterm In his wrapper and sell it as his buteterm, cannot, after registration of the wrapper as a trade mark, recover for infringement thereof. Casrvillic Co-op. Creamery Co. v. Col \[Cal. App.\] 92 P 648. Compilain-

C. A.\] 157 F 745, Compilainent held under ants manufactured and sold a patent medicine called "Alpenkrauter," which they represented to cure many diseases which it did not do. Compilainant's witness refused to disclose ingredients of the medicine or to state from what herb, houses, or firm, herbs were purchased. Held not to show that defendant came into court with unelean hands

97. Hlavana Commercial Co. v. Nichols, 155

and therefore not entitled to relief against defendants unfair competition, Dr. Peter H. Fahrney & Sons Co. v. Ruminer \[C. C. A.\] 153 F 736. A court of equity will not protect against injury or invasion of a business of selling a medicine which has been built up and is being maintained by fraudulent representations as to its ingredients. Membisk Keeley Institute v. Leslie E. Keeley Co. \[C. C. A.\] 155 F 964. Evidence held to show that proprioter of secret remedy was chargeable with fraudulent misrepresentations, in that it did not contain gold or chloride of gold as represented. Id.

98. The fact that a manufacturer of an article built up its business in part upon misrepresentations made upon its labels and wrappers, and in advertisements respecting medical properties of such article, will not debar it from relief in equity where it has permanently discontinued such misrepresentations, and makes only such representations as is warranted by substantial amount of medical opinion. Moxie Nervo Food Co. v. Modox Co., 153 F 487.

01. If author made progress from record, it will be given effect because of the public.

01. Dr. Peter H. Fahrney & Sons Co. v. \[C. A.\] 153 F 736.

01. Dr. Peter H. Fahrney & Sons Co. v. \[C. A.\] 154 F 867.

01. Dr. Peter H. Fahrney & Sons Co. v. \[C. A.\] 155 F 735. Held that

01. Dr. Peter H. Fahrney & Sons Co. v. \[C. A.\] 155 F 745. Complainant held under circumstances of case to be barred by its inches from right to accounting for profits. Worcester Brew. Corp. v. Rueter \[C. C. A.\] 157 F 217.

01. Dr. Peter H. Fahrney & Sons Co. v. \[C. A.\] 153 F 736.

01. Havana Commercial Co. v. Nichols, 155

01. _Fractual Co. v._ Nichols, 155

01. \_Fractual Co.

1872 TRADE UNIONS SS 1. 10 Cur. Law. cannot be registered under the Federal statute. Only final orders of the commissioner of patents are appealable,7 and discretionary orders will not be interfered with except for abuse of discretion.8 State courts have jurisdiction to protect marks registered under the Federal statute.9

TRADE SECENTS, see latest topical index.

**TABLE UNIONS.**

**SS 1. Nature of Trade Unions, 1872. # 2. The Union and the Public, 1872.**

_The scope of this topic is noted below.9a_

\*\*SS 1. \_Nature of trade unions.\_See S C. L. 2142.--A law prohibiting employers from entering into any contract with employees, wherein the latter agree to become or not to become members of a labor organization, is unconstitutional,10 as is one forbidding the discharge of employees because of membership in such unions.11 Officers 12 and committees of a trade union have only such authority as the union may confer upon them.18 In arbitration proceedings under the Federal statute,14 which provides for hearing by the circuit court on exceptions to the award, and for an appeal therefrom within ten days, judgment on the award, either in whole or in part, cannot be entered until after the appeal has been determined or the time for taking it has expired.18 Such an arbitration rests solely upon the agreement therefor.18 Such agreement will be interpreted by the ordinary and accepted meaning of the terms used, and will not be broadened to authorize the determination of questions submitted only inferentially.17
10 Cur. Law. TRADE UNIONS SS 3.1873

of this right becomes intimidation and is unlawful.\[28\] The maintenance of a boycott effected by coercion will be enjoined.\[24\] Contracts between trade unions and employers cannot be enforced indirectly by an injunction,\[28\] but officers of a trade union may be enjoined from inciting a strike for an eight hour day and a closed shop when there is an existing contract not providing therefor.\[29\] While peaceful picking is permissible,\[27\] it is not presumed to be peaceable, and the mere massing of an unusual number of union men at points where nonunion men must pass, is itself intimidation;\[28\] and where, in addition, there is some evidence as to the use of threats and violence, a proper case is made for the granting of injunctive relief.\[29\] But where the affidavits alleging violence are on information and belief and those denying it are positive and in detail, an injunction will not issue.\[30\] A union and all the members thereof may be bound by service on the officers,\[31\] and a suit to enforce a contract between a voluntary association of employers and representatives of a voluntary labor association may be maintained by a few members of the former in behalf of all against the executive officers of the latter, or such members as fairly represent its interests.\[32\] The capacity of the union to be sued cannot be raised on information for contempt in violating an injunction.\[33\]

SS 3. _The union and its members.\[28\]_ & C. L. 2146--Where a trade union has no right to interfere with a laborer, the fact of noninterference is no consideration for the payment of initiation fees,\[34\] and such fees may be recovered after the prospective member has been rejected.\[35\] Provision in the constitution of a trade union, that a member's fees shall be forfeited for any misrepresentation in his application, applies only to a representation in regard to an existing state of facts.\[36\] By-laws providing for payment of strike benefits require such payment only where needed through lack of employment.\[37\]

Trading Stamps; TRANSFER OF CAUSSES; TRANSTORY Actions, see latest topical Index.

24. Booth v. Burgess IN. J. Eq. 65 A 226.

Junction will issue to restrain future violence. Searle Mfg. Co. v. Terry, 56 Misc. 265, 106 NYS 488.

absolute right to refrain from contracting, by men eight hours an established picket the will. Id. A boycott by a trade union which restrains the manufacture of goods intended for transportation beyond the state and which restrains the purchase, or negotiation for transportation, of such goods, by the nonresident vendees, is unlawful. Is "re-entrant of trade or commerce among the several states" prohibited by the antitrust act of July 2, 1890 (U. S. Comp. St. 1901, p. 3200).

30. Though peaceable picketing is admitted. Searle Mfg. Co. v. Terry, 56 Misc. 265, 106 NYS 488.

01. Strike injunction. Russell v. Stampe's and if they strike upon being required to do so the association will not be enjoined from paying them strike benefits. Barnes v. Berry, 157 F 883.

01. The "closed shop" is contrary to public policy, while the demand for an immediate eight hour day is violative of the contract contract between "typothetae" and International printing-pressmen and assistants" union. Barnes v. Berry, 156 F 72. Injunction refused on appeal on the ground that contract vold, and even if valid could not be thus Indirectly enforced. Barnes v. Berry, 157 F 883.

01. Barnes v. Chicago Typographical Unplocy, while the demand for an immediate eight hour day is violative of the contract contract between "typothetae" and International printing-pressmen and assistants" union. Barnes v. Berry, 156 F 72. Injunction refused on appeal on the ground that contract vold, and even if valid could not be thus Indirectly enforced. Barnes v. Berry, 157 F 883.

01. By a reasonable number and only for the purpose of observation and of seeking by pursuasion and argument to restrain others from working, but even hers an in-10 Cur. L.--118.

1874 TREATIES. & 10 Cur. Law. TREASON.44 TREASON.44 TEASURE TRUE, see latest topical index. TREATIES.44 The scope of this topic is noted below.492 The Treaties and statutes are of equal dignity, so a treaty may supersede a prior statute 40 and a statute may supersede a prior treaty,41 but the obligation of a nation to respect a treaty is at least equal to that which rests upon individuals to observe the terms of a private contract,42 so acts of congress pertaining to the subject-matter of a treaty do not abrogate the latter unless clearly inconsistent therewith.43 A statute passed for the purpose of executing a treaty expresses the only effect which such treaty shall have, to the extent of the subject-matter of the act.44 A treaty becomes presently effective when its purpose is so expressed in the same manner as a statute 43 and thereupon becomes a municipal law as well as an international contract, and is paramount over state constitutions and laws and must be enforced by state as well as Federal courts; 45 but courts can give no redress to a party who is injured through failure of his government to respect a treaty.47 'Treaties must have a liberal construction, even at variance with the apparent meaning as interpreted according to rules of common law, since some parties thereto may have been unacquainted with the common law and its phraseology,48 and their interpretation should be in a spirit of the utmost good faith and in a manner to carry out their manifest purpose.49 But grounds of national commity or altruism will not be permitted to extend the scope of a treaty beyond its obvious limits in derogation of clear rights of the United States,50 viding for payment of full wages from its funds to members discharged from employment because on committee sent to confer with employers, until they should again obtain steady employment, refers not only to employment at engraving, but at any occupa. Donavan, v. Friendly Society of Engineers \[R, L\] 69 A 554. 1256, L 1019, declared the treaty signed at Brussels, December 14, 1900 (32 Stat. 1936), perfod covered. 30 See 8 C. L. 2146. 358a. Reference should also be had to the topics Extradition, 9 C. L. 1347; Indians, 10 C. L. 51; and to topics dealing with the particular matters covered by the treaty in question. 40 United Shoe Mach. Co. v. Duplessis Shoe Mach. Co. v. Duplessis Shoe Mach. Co. \[C. C. A.\] 155 F 842. The fact that the constitution commits to Congress power to secure to authors and inventors exclusive rights to their respective writings and discoveries does not raise such statutes above the dignity of others or of treatles because all powers of congress are specially vested, either directly or indirectly. 1d. 41 United Shoe Mach. Co. v. Duplessis Shoe Mach. \[C. C. A.\] 155 F 842. Statute abrogates treaty as a municipal law when inconsistent. Minnesota Canal & Power Co. v. Pratt \[Minn.\] 112 NWV 358. 42 Minnesota Canal & Power Co. v. Pratt \[Minn.\] 112 NWV 395. 43 Act Cong. March 3, 1899, c. 425, preserving to the United States control over navigable waters within the states, and authorizing the secretary of war to determine whether any proposed enterprise will divertwaters or otherwise affect navigation. is not 10 Cur. Law. $; without an actual entry upon the land of another.50 When the entry is unlawful, the purpose of the entry,57 good faith,54 malice,59 wilfullness,60 and negligence,61 are immaterial. Where the trespass is a continuing one,62 successive actions lie for each.68_Trespass to the person,64_Right of entry and matters of justification.See * c. L. 2148.--Liability for trespas to the property of individuals may be avoided by the owner's acquiescence in the entries,65 and no liability is created by entry under a license or permit from one having authority to grant the same.66 But a license affords protection only for the period named therein,67 or, if none is named, then only for a reasonable time 68 and extends only to the act or acts specified 69 at the time it came into defendant's possession.70 A license is no justification for the trespas if fraudulently obtained.71 The rights and liabilities of licensees are more fully treated in another topic.72 Where the trespas is upon state lands, the fact that defendant has been led to believe that his permit would be extended.73 that he acted in good faith,74 or that the state received and retained payment for the timber taken upon such entry,75 is no defense.76 The action of trespas may be successfully defended by proof of user as a public highway,71 proof that the alleged trespas was authorized by law,76 that it was not upon plaintiff's land,70 or that plaintiff has no sufficient right or interest in the prop-

56. By pumping water therefrom. Louis-

f y pumping from all. Louisville, etc., R. Co. v. Higginbotham \[Ala.\] 44 v. Higginbotham \[Ala.\] 44 S 872. By shooting into another's building, 76. Where defendant seeks to justify a McGeee v. Norfolk, etc., R. Co. \[N. C\] 60 stepsas by a judgment in its favor against SE 912. By removal of that portion of a plaintiff on a contract, of which it became dwelling house inadvertently built upon assignee, giving it a right to do the act one's land. Bollinger v. McGmin Tex. Civ.

compiled of, plaintiff may show a mojili-

App.19 Tex. Ct. Rep. 762, 104 SV 1078. By

cation of the contract before assignment conversion of another's property unlawfully

upon one's own land. Graham V. Purcell,

points in one suit not being involved in the

110 NYS 813.

GT. Entry to recover one's own property.

\[Or.\] 92 P 811.

Wright v. Willingby \[S. C.\] 60 SE 971.

58. Goodin v. Williams \[Ala.\] 44 S 611.

01. Williams v. Simon, 1 Ga. App. 321, 57

SE 1009. Except where punitive damages are sought to be recovered. Toledo, Bowling Green & Southern Trace. Co. v. Sterling,

9 Ohio C. C. (N. S) 200.

60. In trespas to land. Baldwin v. Postal

Tel. Cable Co. \[S. C\] 59 SE 67.

61. Cellular v. Central Tel. & T. Co., 53 Mlsc.

523, 105 NYS 83: Baldwin v. Postal Tel. Cablo Cvo. \[S. C\] 59 SE 67.

62. Such as pumping water at various times from plaintiff's land. Louisville, etc., R. Co. v. Higginbotham \[Ala.\] 44 S 872.

01. Louisville, etc., R. Co. v. Higginbotham \[Ala.\] 44 S 872.

01. See 8 C. L. 2148. See, also, Assault and Battery, 9 C. L. 257, and False Imprisonment, 9 C. L. 1351.

01. Mere silence is not acquiescence however. Louisville, etc., R. Co. v. Higginbotham \[Ala.\] 44 S 872.

01. Title by prescription in defendant's

lessor from whom he obtained permission to cut timber is a valid defense. Ford v. Roun-

tree \[Ga. App.\] 59 SE 325. By owner of re-

version. Maryland Tel. & T. Co. v. Ruth

\[Md.\] 68 A 358.

67. Louisville, etc., R. Co. v. Higginbotham \[Ala.\] 44 S 872.

01. Does not justify cutting and removal

of timber fifty-one years after grant of the

license. Goodson v. Stewart \[Ala.\] 46 S 239.

69. A grant of the right to pump water

out of one of several springs does not just.

60. In trespas to land. Baldwin v. Postal

01. To erect telephone line. Baldwin v. Postal Tel. & Cable Co. \[S. C\] 59 SE 67.

01. Williams v. Simon, 1 Ga. App. 321, 57

SE 1109. Except where punitive damages are sought to be recovered. Toledo, Bowling Green & Southern Trace. Co. v. Sterling,

9 Ohio C. C. (N. S) 200.

66. In trespas to land. Baldwin v. Postal Tel. Cable Co. \[S. C\] 59 SE 67.

01. Cellular v. Central Tel. & T. Co., 53 Mlsc.

523, 10 Cur. Law.

TRESPASS SS 1.

1877

erty to entitle him to complain. \[80\] But defendant cannot justify a trespass on the ground that he was acting within his authority as an officer of the state, \[81\] or that he was acting for a municipality, when the latter had no power to authorize the act complained of, \[82\] or that other causes combined with his wrongful act to bring about the injury. \[83\] Where the trespass consisted in the use of plaintiff's land as a highway, the fact that the land was so used by the public is no defense; \[84\] nor is it material that there was a legally established highway and that defendant acted in good faith, when he traveled outside such highway. \[85\] The fact that one's right of user is paramount to another's gives no right to unnecessarily injure the latter's property. \[86\] Attorney and client joined in an action of trespass for the wrongful seizure of goods upon attachment cannot avail themselves of the sheriff's immunity under valid process. \[87\] A void tax title gives no right of entry even though plaintiff is not in possession, \[88\] nor does right to possession under a mortgage give a right to enter the close of one who is not the mortgagor. \[89\] Persons running and reclaiming logs have no right of entry upon the land of abutting owners which authorizes interference with such owners' domination over their own property. \[80\] Failure to abate a trespass is not justified by pendency of a suit for that purpose. \[91\] An owner of flats is not estopped by petitioning for a highway, \[92\] nor by any declaration, of which he had no notice, of a grantor in possession at time of the conveyance, \[89\] nor by statements not acted upon, \[84\] from subsequently objecting to the legality of the highway's location. Notice that a trespass has been committed is necessary to a waiver of right to recover damages therefrom. \[86\]

_Parties in the tort.See_ S. C. L. 2149.--One who directs or authorizes a trespass is equally liable with him who commits it. \[96\] But one cannot be held liable for the trespass of another which he did not direct or instigate, though the cause of the trespass is his wrongful act, \[97\] or though the trespass was committed in his interest by his emmaded in repair thereof. Harriman v. Whit-

88. Trexler v. Africa, 33 Pa. Super. Ct. 395.

ney \[MAss.\] 82 NE 671.

89. Plaintiff in possession under bill of so. The owner of an easememem in property

in possession of a mere squatter incurs no

defendant's mortgage. Kennedy v. Hoyt

Hiability in cutting off the latter's access

\[MAss.\] 83 NE 682.

thereto, In the absence of proof of malice.

90. Pub. Act 1905 of Michigan, p. 279, No.

Doty v. Chicago, etc., R. Co. \[Iowa\] 114 NW

189. which attempts to give this right with-

001.

out providing for compensation is invalid.

89. Mere averment in plea that the act

Garth Lumber & Shingle Co. v. Johnson

was committed on behalf of the state does

\[Mich.\] 14 Det. Leg. N. 898, 115 NW 52.

not make the suit one against the state.

91. Where the trespasser is notified of an

Elimore v. Fields \[Ala.\] 45 IS 86.

89. Chase v. Cochran, 102 Me. 431, 67 A

01. Dhunk v. Chicago, etc., R. Co. \[Iowa\]

determination in court of its rights. Mary-

115 NW 1013. One is not deprived of his

120.

right to property by the fact that he trespassed in placing it upon the land of an-

320.

other, so he may recover for its conversion.

93. Instructions to selectmen to lay out

Graham v. Purcell, 110 NYS 813. One may

read just as you think best. Chase v. Coch-

recover for removal of that portion of a

ran, 102 Me. 431, 67 A 320.

dwelling house inadvertently though wrongful

fully built upon another's land. Bollinger

131, 67 A 320.

v. McMinn \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 1431, 67 A 320.

762, 104 SVV 1079.

84. Where user is insufficient, the road

must be legally established. Gosdin v. Wil-

Hams \[Ala.\] 44 S 611.

88. Gosdin v. Williams \[Ala.\] 44 S 611.

01. Telephone company liable for accidental injury to shade trees while constructing lines along street. Keller v. Central

Tel, & T. Co., 63 Misc. 523, 105 NYS 63.

87. The contrary rule prevails in some

States. Williams v. Inman, 1 Ga. App. 321, 67 SB 1009.

88.

ployes." However, a tort for one's benefit may be ratified and thereupon the ratifier becomes liable to the same degree as if he had commanded the act."

SS 2. \_Actions. A. At law.\_See * C. L. 2160.--The remedy for an entry by a foreign corporation under a permit fraudulently obtained,1 or upon land not included in the permit,2 is an action of trespass and not condemnation proceedings.3 Where the trespass is of a permanent character,4 but one cause of action arises, which accrues immediately upon its commission.5 A statute, limiting the time during which land sold for taxes can be recovered, has no application to actions of trespass for injuries to land.4 In many cases the action of trespass may be waived and another remedy pursued.4

\_Actual possession or title.\_See * C. L. 2160.--The gist of the action of trespass quarc elausum fregit is the disturbance of possession,8 and so possession, whether under color of title * or standing alone,19 will generally support the action as against a mere trespasser. But proof of an outstanding title superior to plaintiff's is a complete defense to an action of trespass to recover damages for cutting timber,11 whether such title rests in defendant or another.12 Whether, however, defendant fails to connect himself with the outstanding title, plaintiff may acquire it after com mencement of suit, and thereby perfect his right of action.13 While possession may 14 or may not 15 be essential, its absence necessitates proof of title,16 Plaintiff must have been the owner, or in possession, at the time of the trespass, to entitle him to sue,17 but alienation pendente lite does not bar the action.18 In the absence of actual possession the law invests the owner with constructive possession.19 Where plaintiff's title is denied, its acquisition by adverse possession 20 or by government certificate 21 may be shown. Where defendant claims title under plaintiff, he is estopped from denying plaintiff's title.22 Possession is not essential to a recovery for trespass to personaly, so the action lies for conversion of property which is on defendant's land,23 and does not lie merely for disturbance of possession uncoupled with right or title,24 unless such disturbance amounts to a breach of the peace.25 \_Joint actions.\_See 8 C. L. 2151. Parties having a joint interest in the damage flowing from an injurious act may join as plaintiffs in one suit to recover therefor, though they are not joint owners.26 While separate liability of trespassers is pre-

13. Where one is in actual, rightful posses-

coupled with a claim of ownership, will supson at commencement of suit, claiming the

port an action for trespass committed on land as his own against all except persons

any part of the land included in the deed.

claiming under a mortgage, with which

Marylor v. Burt & Brabb Lumber Co. \[Ky.\]

mortgage defendant does not pretend to

109 SWV 348. Adverse possession for ten

connect himself, and subsequently such in-

years establishes title under Gen. Laws 1896,

terest also passes to plaintiff, his title

is sufficient to maintain trespass. Benjamin v.

cre 205, & 21, and is a defense to an action of

stinguetet to maintain trespass,

trespass, though possession commenced un-

Slausher \[Ala.\] 44 & 648.

14. In Louisiana, to maintain trespass,

years. Plike v. Wilburg \[R. L.\] 69 A 849. In

plaintiff must prove possession at the time

of disturbance and during the year pre-

lands, proof of an unbroken chain of title for

ceding, and that the disturbance took place

with a year prior to bringing the action.

presumptive evidence of ownership. Code

Garland v. Wunderlich, 117 La. 346, 41 S 644.

Must show actual possession. Ridging on

to establish such presumption and to be un-

the land a few times and paying taxes,

without. Powers v. Hatter \[Ala.\] 44 & 859.

Div. 15, 107 NYS 416. Occupancy of a part

Improvement of land shows it in actual

of a tract does not aid in establishing title

possession of someone, so plaintiff cannot

tent to the whole. Hess v. Sutton, 33 Pa. Super.

rest on his title but must show that the

Ct. 530.

possession is his. Hess v. Sutton, 33 Pa.

21. A regular certificate from the govern-

Super. Ct. 530. The purchaser of a tax title

cannot maintain trespass against the tax

defutor in possession, where he has no pos-

session adverse to the latter, his remedy being a direct proceeding under the statute.

South Louisiana Land Co. v. Norgress \[La.\] 45 & 849.

15. Prima facie title sufficient. Trexler v.

Africa, 33 Pa. Super. Ct. 395. Owner may

recover for cutting timber whether in posses

session at the time or not. Taylor v. Burt &

Brabb Lumber Co. \[Ky.\] 109 SWV 348. If

there is no actual possession, plaintiff can

recover by proving title. Powers v. Hatter \[Ala.\] 44 & 859.

16. Either title or possession. Newman v. Mountain Park Land Co. \[Ark.\] 107 SWV 391. Kirby's Dig. & 7976, imposing treble damages for cutting timber growing on the

land of another, does not do away with the

common-law necessity for title or possession, so one holding under an unperformed

contract and not in possession cannot maintain the statutory action. Id.

17,18. Knight v. Empire Land Co. \[Fla.\]

45 S 1025.

19. Newman v. Mountain Park Land Co. \[Ark.\] 107 SWV 391. Presumption to that

effect in regard to unimproved lands. Hess

v. Sutton, 33 Pa. Super. Ct. 530.

20. Adverse possession, under a deed by plaintiff and his grantors for twenty years

1879

mencement of suit, and thereby perfect his right of action.13 While possession may

14 or may not 15 be essential, its absence necessitates proof of title,16 Plaintiff must

have been the owner, or in possession, at the time of the trespass, to entitle him to

sue,17 but alienation pendente lite does not bar the action.18 In the absence of actual possession the law invests the owner with constructive possession.19 Where plaintiff's title is denied, its acquisition by adverse possession 20 or by government certificate 21 may be shown. Where defendant claims title under plaintiff, he is estopped from denying plaintiff's title.22 Possession is not essential to a recovery for trespass to personaly, so the action lies for conversion of property which is on sumed,27 two corporations, each interested in the result of a trespass and each composed of the same members, are properly joined,28 and attorney and client are jointly liable for a trespass committed by the latter through the former.29 But in an action by vendee against vendor in a land contract for cutting and removing timber, one not a party to the contract is not a proper party to the action.39 A lessee of state lands may maintain the action of trespass without making the state a party defendant.31 Suits against joint trespasers, residing in different counties, may be brought in the county of which either is a resident.32 In Alabama trespass and case may be joined where they relate to the same subject-matter.38

\_Pleading, issues and proof.\_See 5 C. s. 2151--A complaint stating only one primary right and its invasion states but one cause of action.34 If it contains allegations which admit of the necessary proof of plaintiff's interest,35 and defendant's injury thereto,36 it is not subject to a general demurrer.37 A permit to enter land set up in justification of a trespass may be attacked for fraud, although the complaint does not allege giving it, nor that it was obtained by fraud.38 Statutes awarding treble damages for cutting trees in no way affect the cause of action but merely go to the relief,39 so where a declaration to recover treble damages is defectively framed for that purpose,34 but states a sufficient cause of action to restrain the trespass complained of, the allegations under the statute will be treated as surplusage, and the case retained.41 When the action is for cutting timber plaintiff must aver and prove ownership of the property.42 Any description which so identifies the locus quo as to put defendant on notice is sufficient,43 and only a general allegation of the aggregate damage is required.44 Where the complaint alleges a cause of action in trespass 45

judsment. Western, etc., R. Co. v. Tate, 129 Ga. 526, 59 SE 266.

27. A complaint against two defendants must allege a joint liability and pray judgment in solido. Breaux Bridge Lumber Co. v. Herbert \[La.\] 46 S 206.

01. Evidence held sufficient to show joint interest. Heybrook v. Index Lumber Co. \[Vwash.\] 95 P 324.

01. For wrongful seizure of goods on attachment. Williams v. Inman, 1 Ga. App. 321, 57 SE 1009.

01. Newman v. Mountain Park Land Co. \[Ark.\] 107 SW 391.

01. Sequium Bay Canning Co. v. Bugge \[Vwash.\] 94 P 922.

01. Civ. Code 1895, 5 58T2. Williams v. Inman, 1 Ga. App. 321, 57 SE 1009.

01. Code 1896, 5 3293. A count alleging damage caused by pumping water from plaintiff's springs, and a count alleging damage from the negligent pumping of such water, properly joined. Louisville, etc., R. Co. v. Higginbotham \[Ala.\] 44 S 8T2.

01. Mailce in aggravation of the Injury does not constitute another cause of action. Bright v. Willoughby \[S. C.\] 60 SE 9T1.

01. An allegation that plaintiffs are "the owners of and are in actual possession of the property injured is an allegation cf ownership but does not necessarily imply that plaintiffs are joint holders of the title. So it will support proof that some are owners in fee and others in remainder. Western, etc., R. Co. v. Tate, 129 Ga. 526, 59 SE 266. And, if the proof shows that each plaintiff has some interest in the whole land and their combined interests comprise the full fee simple title, there is no variance in pleadings and proof. Id.

01. Allegations that defendant entered upon and took possession of premises, qug a channel through the center thereof and covered the remainder with broken rock, state a good cause of action as against a general demurrer. Moll v. Sanitary Dist., 228 Ill. 633, 81 NE 1147.

01. Moll v. Sanitary Dist., 228 Ill. 633, 81 NE 1147.

01. Voyles v. Postal Tel. Cable Co. \[S. C.\] 59 SE 68.

01. So a declaration stating a common-law action of trespass may be amended by claiming treble's damages. Ethanol v. B. R. Lewis Lumber Co., 13 Idaho, 581, 92 P 832.

01. Under $ 348, B. & C. Comp. of Or. Roots v. Boring Junction Lumber Co. \[Or.\] 92 P 811.

01. Roots v. Boring Junction Lumber Co. \[Or.\] 92 P 811.

01. Johnson v. Eversole Lumber Co. \[N.\] 60 SE 1129.

01. Need not describe lands by metes and bounds or by government survey in action for cutting timber. Elmore v. Fields \[Ala.\] 45 S 66.

01. Where plaintiff broke into plaintiff's house and removed a piano and other things it is not necessary to enumerate and give the value of each missing article. Jesse French Piano & Organ Co. v. Phelps \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 889, 105 SW 225.

01. A count alleging damage from the wrongful pumping of water from plaintiff's lands and filling his springs states a cause of action in trespass and is not demurrable, Louisville, etc., R. Co. v. Hig 10 Cur. Law. TRESPASS SS 2A. 1881

limitations of the action of waste do not apply.46 A plea controverting neither plaintiff's title nor possession is demurrable.47 Under a statute authorizing defendant to set up as many defenses as he may have,48 a demand that plaintiff be declared a trustee for defendant's benefit is not a waiver of his denial of plaintiff's title.49 Demurrer to a defect of parties will be sustained only when there is a deficiency of necessary parties, not where there is a misjoinder.50 In Pennsylvania "not guilty" is the only plea allowed in an action of trespass,51 and by it plaintiff is put on proof of his possession as well as of the injury alleged.52 Where plaintiff's recovery depends upon the establishment of a line to which his title runs such line must be definitely shown.53 Where both plaintiff and defendant claim under patents, defendant's being of an earlier date, and it is undisputed that the land upon which the alleged trespass was committed was included in plaintiff's patent, the sole issue presented is whether or not it is also included in the patent under which defendant claimed.54 In an action to recover the statutory penalty for cutting trees it is the office of plaintiff, after the evidence is all in, to show by a preponderance of the whole evidence that the cutting was done either willfully or with culpable negligence,55 but by a default defendant admits the presence of such elements.56 Where the trespass is alleged to have been wilful but negligence is not alleged, and the proof shows the act was negligent but not willful, no recovery can be had.57 In an action for injury to a crop it will be presumed that it would otherwise have matured and been harvested without loss.58 In Louisiana the action of trespass for injury to land, timber or property is barred in one year from the date that the owner receives notice thereof,59 and where defendant pleads the limitation the owner has the burden of proving such date.60 If he fails to do this with certainty, notice will be presumed to have been coincident with the commission of the tort.61

\_Evidence.\_See 5 C. L. 1262--The general rules of evidence respecting relevancy,52

46. Allegations that defendant, a stranger to a mortgage, entered upon the mortgage title under the earlier patent is in a third premises and fraudulently and unlawfully removed timber therefrom, thereby reducing the value of the security to less than the amount of the debt, that debtors were in-solvent, and that defendant well knew such fact state a cause of action in the nature of trespass on the case and limitations of trespass on the sofa of waste do not, therefore, apply. Morgan v. Waters, 122 App. Div. 340, 106 NYS 82. 47. A plea merely setting up title and possession of land in vicinity of that in suit as being in the state. Elmore v. Fields \[Ala.\] 45 S 66. 48. Though inconsistent under Revisal N. \[Al.\] 45 S 66. 48. 49. 50. 5105, $ 482. 49. 50. 52. 53. 54. 55. 56. The proper remedy for the misjoined defendant is to demur on the ground of no cause of action. Wright v. Willoughy \[S. C.\] 60'SE 971. The misjoinder of a defendant both as an individual and as trustee may be cured by awarding damages against him individually and not as trustee. 1d. 51. Act May 25, 1887, P. L. 271. Hess v. Sutton, 82 Pa. Super. Ct. 550. 52. Hess v. Sutton, 33 Pa. Super. Ct. 550. 53. 54. 55. 56. 57. 58. 59.

competency,"' rebuttal testimony," opinion testimony," declarations," qualificationation " and impeachment of witness," proof of value," title," and damage," are applicable. And so the sufficiency "2 or insufficiency "3 of the testimony on such ques-

inadmissible. C. W. Zimmerman Mfg. Co. v. of a witness, that he measured felled timber Dunn \[Ala.\] 44 S 533. Statements of account in such case, introduced to show a

quantiles him to testify as to the total compromise, but which do not amount to amount of timber on the land, a formal admissions are not admissible. Id. Testimony of one of defendant's employees as to

A witness who is only qualified as to land

scaling timber is inadmissible unless such

timber is identified as the timber in suit.

value before and after the destruction of cer-

Id.

63. Evidence of malice and of damage held

valuation of the timber. Id.

incompetent. Doty v. Chicago, etc., R. Co.

68. Evidence of a pending suit against one

\[Iowa\] 114 NWV 522. And where a portion of

of defendants witnesses for the conversion

the timber was destroyed without the stat-

of the timber involved in the action of

tory period, testimony as to the differ-

stepsas is admissible to show bias. But

ence in the value of the land before and

where the form of the question does not

after the trespass is incompetent, since this

classically imply that such suit was by

takes into consideration the value of that

plaintiff, there is no error in rejecting

t. timber, a recovery for which, is barred even

Gosdin v. Williams \[Ala.\] 44 S 611.

though it may not have rotated or decayed

out within the statutory period. Park v.

v. experience and knowledge may testify as

Northport Smelting & Refining Co. \[VWash.\]

to the value of timber cut (C. W. Zimmerman-

92 P 442. Proof by the owner of the loss of

man Mfg. Co. v. Dunn \[Ala.\] 44 S 533), and

a permit which he obtained from the mayor

testimony as to the market value of logs at

for the moving of a building was competent in action for preventing the moving,

the place of shipment and destination and

tent in action for preventing the moving,

both for the purpose of showing the con-

nishing data from which the value at the

tents of the permit, and that the owner was

not trespassing in the use which he was

making of the street. Toledo, Bowling Green

& Southern Trac. Co. v. Sterling, 9 Ohio C. C.

(N. S.) 200.

64. In an action to recover damages for

trespass to land founded on alleged owner-

ship and possession, in which defendants

allege title and ask to the adjudged owners

evidence of plaintiff's title is admissible to

the rebuttal though they did not pray to be ad-

judged owners. Frederick v. Goodbee \[La.\]

45 S 606.

65. Opinions as to issues of fact are inadmissible. Witness can not testify that land

was damaged. Gosdin v. Williams \[Ala.\] 44 S 611. Evidence calling for description

of a tree after injury did not call for an

opinion and was admissible. Delaware &

Madison Counties Tel. Co. v. Fisk, 40 Ind.

App. 343, 81 NE 1100.

66. Declarations of a remote grantor in

regard to the location of a boundary line

are inadmissible for the purpose of deter-

mining that question. Bollinger v. McMinn

(Tex. Civ. App.1 19 Tex, Ct. Rep. 162, 104

87v 1079. In an action against a principal

for trespass, declarations of its agent while

engaged in employment connected with the

trespass, the agency having been established, are admissible. Sprickel v. Camp

Mfg. Co. \[N. C.\] 60 SE 905.

67. Witness may testify as to facts which

have come within their observation. As to

sufficiency of passageways for water under

railroad rbfdge in an action for trespass

for flooding, Blunck v. Chicago, etc., R. Co.

\[Iowa\] 115 NWV 1018. Where the timber is

destroyed by fumes and smoke from a

emleter a witness is competent to testify to

such fact from his own observation, even

though he may not be able to explain the

chemical process by which the destruction

is wrongist. Park v. Northport Smelting &

Refining Co. \[VWash.\] 92 P 442. Testimony

82.

10 Cur. Law. Trespass SS 2A.

tions is determined by ordinary rules. Evidence as to any injury alleged in the complaint is competent,74 and where there is any testimony tending to show a trespass to plaintiff's land to his injury it is error to grant a nonsuit.75 Evidence as to good faith is admissible to show the character of the trespass,76 and defendants' justification may be impeached.77 Parol proof is never admissible to destroy or take away title,78 but occupancy of real estate may be proved by parol, though the lease under which the land is held has been reduced to writing.78 In the absence of a showing to the contrary it will be presumed that there was evidence to support the verdict.80 Harmless error in the admission or rejection of testimony is not a ground for reversal.81

\_Instructions and jury questions.\_See 8 C. L. 2153.-Instructions which, in the light of the whole charge, fairly submit the issues 82 are unobjectionable, though not con-

contract on which defendant sought to justify -

whose land he was on, it is error not to al-

fy a trespass and that he had knowledge

low, on cross-examination by plaintiff, the thereof. Roots v. Boring Junction Lumber

question "Did you try to find out whose Co. (Or.) g2 F 811. To support verdict for

damages. Delaware & Madison Counities Tel.

77. Where public inser of road is ruled

Co. v. Fisk, 40 Ind. App. 448, 81 NE 1100. To

so to the jury on the question of whether

ding travel were posted thereon. Gosdin v. or not a permit to enter was traduentity

Williams \[Ala.\] 44 811.

obtained. Voyjes v. Postal Tel. Cable Co.

78. Declarations of heirs made to widow

\[S. C.\] 69 SE 68. To show a perfect chain

that the land is hers. Munsey v. Hanly, 102

of title from commwealth to defendant.

Mc. 423, 67 A 217.

Courney v. Ashcraft, 31 Ky. L. R. 1324, 105

79. Bluinck v. Chicago, etc., R. Co. \[Iowa\]

SWV 106. Evidence that a portion of a high-

115 NWV 1023.

way had been fenced by plaintiff shows

80. That there was evidence of the yield

an obstruction although there is no proof of

of a crop, for the injury to which trespass

any actual disturbance of any vehicle. Jones

v. Tobin \[Vis.\] 115 NWV 807. An objection

to the sufficiency of evidence of plaintiff

ceptions does not contain all the testimony

title is without merit where defendant

nor any statement that such evidence was

claims under plaintiff, since he cannot deny

did introduced. Montgomery v. Somers \[Or.\]

plaintiff's title. C. WZimmerman Mfg. Co.

80 P 674.

81. Harmonless error: That plaintiff is con-

v. Dahm \[Ala.\] 44 853.

73. Evidence heid insuffetent: To war-

fined to proof of the value of timber at the

rant a finding that trespass was willfully

time of cutting, excluding present value,

committed. State v. Shwin-Carpenter Co.,

Davis v. Miller Brent Lumber Co. \[Ala.\] 44

102 Minn. 470, 113 NWV 694. To setop plain-

s G 69. The admission of testimony to the

tiff from using it regressas to recover dam-

effect that an entry was made with insuit

age for injury to land without the scope of

a permit to enter given defendant foreign

to punitive damages. Voyjes v. Postal Tel. Cable

Co. \[S. C.\] 69 SE 116. To show title in

ting a witness to give his opinion as to the

plaintiff by adverse possession, Courtney

amount of damages suffered is harmless

v. Ashcraft, 31 Ky. L. R. 1324, 105 SW 106,

where it appears not to have influenced the

To show title in defendant. Frederlck v. verdict. Montgomery v. Somers \[Or.\] 90 P

Goodobe \[La.\] 45 86. To support the ver.

674. The admissibility of a diagram of land,

dict for damages. Ketron v. Sutton \[Ga.\] not offered until defendant's testimony is

61 SE 113.

closed, and not in rebuttal, Is within the

74. As to ditches and holes in action for

direction of the court. Gosdin v. Williams

cutting timber and laying railroad tracks.

\[Ala.\] 44 8 611.

Brickell v. Camp Mfg. Co. IN. C.\] 69 SE 905.

82. The failure to charge that tax recepts

01. Burnett v. Postal Tel. & Cable Co.

may be considered as admissions in regard

\[S. C.\] 69 SE 1116. Where justification

fails. Goodson v. Stewart \[Ala.\] 46 823.

an instruction was given that they are to be

76. Evidence of contents of lost permit.

Toledo, B. G. & S. Trac. Co. v. Sterling, 9

dicho C. C. (N. S.) 200. Where it is shown veyed in technically correct terms \[89\] or in the language of a controlling statute.\[94\] Instructions must not ignore the issues,\[85\] enter the province of the jury,\[85\] pretermit the consideration of any evidence proper under the pleadings,\[87\] submit questions of law,\[88\] or an incorrect rule of damages,\[89\] or be argumentative,\[90\] conflicting,\[91\] misleading,\[92\] or too stringent.\[93\] Instructions as to matters not in evidence are properly refused.\[94\] An instruction as to the effect of the verdict on equitable issues, though improper, is not a ground for reversal, if unprejudicial.\[95\] An instruction in regard

occur in the ordinary course of nature and \[88\] Where the only issue is whether the for unusual storms, though not for unpre- to two measures of damage is proper where each is applicable to a peculiar phase of the case." The maximum width of a highway acquired by user may be fixed by the court," when it is sought to justify trespass by such user." Issues of fact, upon which the evidence is conflicting, are for the jury."

\_Verdict and judgment.\_See * C. L. 2158--A verdict, not interfered with by the trial court, will not be disturbed on appeal,' where there is any evidence to support it." An appellate court cannot reverse a judgment on the ground that the verdict is against the evidence," or that it is excessive," where, under any rule of damages, there is evidence to support the amount found."

(SS 2) B. In equity.\_See * C. L. 2158--Equity will protect the right to use land for a special purpose by granting injunctive relief," even to one without title in fee and not in actual possession," and against those in possession." Where numerous acts of trespass are being committed, though each is trifling in itself resort may at once be had to equity." The holder of an equitable title, in possession, may restrain a continuing trespass by her grantor or those claiming under the grantor," and in such

instruction that if verdict is rendered for \[S. C.\] 53 SE 67. Nonsuit properly refused plaintiff a temporary injunction will be made permanent, while if for defendant, it whether permit was fraudulently obtained. Would be dissolved. Wood v. Pacolet Mfg. Co. \[S. C.\] 60 SE 948.

**96.** For destruction of timber may charge that the damage is the difference in the value of the land before and after, and, if there was no diminution in the value of the land, then the damage would be the value of the timber, where the evidence was condirecting as to whether the value of the land was lessened. Western, etc., R. Co. v. Tate, 129 Ga. 526, 59 SE 266. In a suit to recover damages for willful trespass in cutting time, where the trespass was not denied but was claimed to have been unintentional, the statute (SS 3918 of the City. Code 1895) giving the measure of damages applicable to the two classes of trespass was properly given in the charge to the jury. Crockett Bros. v. Sibley \[Ga. App.\] 60 SE 326.

**97.** Within the limits of 4 4790, B. & C. Comp.; Seas. Laws of Or. 1902, p. 287. So an instruction that, if a trial was a legal highway, it must be considered of reasonable width not to exceed sixty feet, where the statute provides that all county roads shall be sixty feet wide unless, upon petition, the county court shall determine upon a different width of not less than forty or more than eight feet, in not erroneous. Montgomery v. Somers \[Or.\] 90 P 674.

**98.** Though such a question is generally for the jury. Montgomery v. Somers \[Or.\] 90 P 674.

**99.** Location of a boundary line. Agnew v. Albert Lewis Lumber & Mfg. Co., 218 Pa.

**99.** A.79. Whether an alleged trespass was committed in a public street or on private property, where there is any evidence that it was on the latter. Harrmann v. Whithter ney \[Mass.\] 82 NE 671. Submission of the question of willingness to the jury. held warranted. Dobson v. Postal Tel. Cable Co. \[S. C.\] 60 SE 948. Where there is evidence of plaintiff's inability to read and write and also that the contract under which defendant seeks to justify the entry was not read to plaintiff, and the contract is unequal, it is a question of fact for the jury whether or not it was fraudulently obtained. Baldwin v. Postal Tel. Cable Co. \[S. C.\] 60 SE 948.

**99.** The evidence on the issues being conflicting. Crockett Bros. v. Sibley \[Ga. App.\] 60 SE 326. Where evidence conflicting and charge proper. Brickell v. Camp Mfg. Co. \[N. C.\] 60 SE 905. Verdict held responsive to the issues submitted by the instructions. Dobson v. Postal Tel. Cable Co. \[S. C.\] 60 SE 948.

**99.** Evidence held to support verdict. West-ern, etc., R. Co. v. Tate, 129 Ga. 526, 59 SE 266. Must be an entire failure of evidence to support a material fact without which the verdict could not stand. Delaware & Madison Counties Tel. Co. v. Fisk, 40 Ind. App. 348, 81 NE 1100.

**99.** Lindsay v. Latham \[Ky.\] 107 SVV 267.

**99.** When there is testimory that the damage. So as 300, and the proofs warrant recovery of punitive damages, a verdict awarding $333 highway, it must be considered of reasonable width not to exceed sixty feet, where the statute provides that all county roads shall be sixty feet wide unless, upon petition, the county court shall determine upon a different width of not less than forty or more than eight feet, in not erroneous. Montgomery v. Somers \[Or.\] 90 P 674.

**99.** Though such a question is generally for the jury. Montgomery v. Somers \[Or.\] 90 P 674.

**99.** Location of a boundary line. Agnew v. Albert Lewis Lumber & Mfg. Co., 218 Pa.

**99.** A.79. Whether an alleged trespass was committed in a public street or on private property, where there is any evidence that it was on the latter. Harrmann v. Whithter ney 1886

TRESPASS SS 8. 10 Cur. Law.

case it is not necessary for plaintiff to prove title in the one under whom the grantor claimed,\[11\] or to show defendant's insolvency.\[12\] A suit under a statute to recover treble damages for cutting timber, which fails for lack of legal title or possession, should not be dismissed but should be transferred to the chancery court, where plaintiff shows an equitable title to the land and right to the timber, and then he may recover actual damages.\[13\] A trespages to state lands will be restrained on behalf of a lessee.\[14\] Where a statute requires certain preliminary proceedings before a town may enter upon the construction of a sewer,\[15\] a noncompliance therewith is such a trespass as entitles an injured landowner to injunctive relief.\[16\] Injunction will issue to restrain waste,\[17\] or to prevent a multiplicity of suits.\[18\] But to obtain equitable relief in trespass, as in other cases, petitioner must be without adequate remedy at law,\[19\] and threatened with irreparable injury.\[20\] Equity will not protect plaintiff in a trespass, although his interests are great while defendant's are small.\[21\] By abiding the commands of an injunction, defendant is not estopped from appealing therefrom.\[22\] Where defendant justifies his right under a contract which he does not set out in his answer, a reply pleading the terms of the contract, to show that the act complained of did not come within them, is not a departure from the complaint.\[23\] Where a boundary line is in issue the injunction order must define such line with certainty.\[24\] The granting of amendments is within the discretion of the trial court.\[25\]

SS 3. \_Damages and penalties.\_See S C. L. 2155_Trespas quarc clausum fregit gives rise to a right to recover nominal damages for the wrongful entry\[28\] and such actual damages as may be sustained,\[27\] even though the trespas is unintentional\[28\] and in

ments made in good faith by the daughter

Loudermilk v. Martin (Ga.) 61 SE 123.

11. The question of title is one of fact

pending the determination of which a pre-

liminary injunction will issue. Loudermilk

v. Martin (Ga.) 61 SE 122.

12. Insolvency not a requisite to the re-

lief. Loudermilk v. Martin (Ga.) 61 SE 122

13. Newman v. Mountain Park Land Co.

\[Arl.) 107 SV 391.

14. Where trespas consisted in digging

clams on state tide lands. Sequum Bay

Canning Co. v. Bugge (Vwash.) 94 P 92.

15. Acts 1901 of Indiana, p. 402. 179, $ 3,

requiring survey and report of engineer to

town board. Leibole v. Traaster (Ind. App.) 83 NE 781.

16. Leibole v. Traaster (Ind. App.) 83 NE 781.

01. Cutting timber. Roots v. Boring Junction Lumber Co. \[Or.\] 92 P 811.

01. even though defendant has a right of entry, and

a suit to restrain waste would technically be

the appropriate remedy, a suit to enjoin

treaps will lie since the remedies are substantially the same. Id.

18. Dunker v. Field & Tule Club \[CaL App.) 92 P 502.

01. Digging claims la trespas for which

adequate compensation in damages cannot

be given. Sequum Bay Canning Co. v. Bugge \[Vwash.) 94 P 922. No adequate relief at

law for continuing infringement of exclusive right to hunt

Dunker v. Field & Tule Club \[CaL App.) 92 P 502.

20. An injury Is Irreparable where

changes or destroys the property it affects

either physically or in the character in

which it is held and enjoyed, or when the

property has some peculiar use of quality good faith.29 But no recovery can be had for theoretic or speculative damages," or for injured feelings and mental anguish.31 And though an entry may be lawful, subsequent negligence gives rise to liability for resulting injuries.32 The measure of damages for trespass to land is the difference in the value of the land before and after the injury.38 For cutting timber the measure of damages has been held to be the value of the logs when severed from the land,34 the fair market value of the timber,35 a reasonable compensation,36 the depreciation in the value of the land,37 or either the amount in which the land has depreciated in value or the value of the timber 38 as plaintiff may elect.39 And where the element of wilfullness is present, the value of the lumber into which the logs were manufactured is recoverable.40 Damages can not be recovered, however, for removal of timber cut under a license, though the license had expired at the time of such removal.41 The measure of damages for destruction of a matured crop is its actual value.42 Damages for a trespass committed with plaintiff's permission cannot be recovered in an action for damages for an extension of such trespass.43 Mesne profits are not recoverable in trespass to recover for injury to land caused by a permanent nuisance.44 Only those damages, caused by a continuing nuisance which have accrued at the time of bringing suit, are recoverable.45 In Nevada a provision for the recovery of an attorney fee by the party recovering damages against one unlawfully grazing stock upon his land was held to be a proper police regulation and constitutional.46 A trespasser is liable for all loss to which his act gives rise.47 No recovery can be had by a trespasser for injury by reason of the dangerous condition of the premises trespassed upon.48 An owner can not be made answerable in damages for dispossessing a trespasser without any title.49 Though excessive damages are awarded,50 the judgment may nevertheless be sustained upon plaintiff's remission of the excess.51

_Punitive._\[85e\] & C. L. 2156--Punitive damages are usually recoverable when the trespassing is willful or malicious,52 or accompanied by circumstances of aggravation.58 Where there is evidence tending to show a warning, it is open for the jury to find malice.54 Exemplary damages may be awarded without any finding of actual damages.58

_Multifold._\[85e\] & C. L. 2156--Statutes, giving the owner of property the right to recover treble damages against one maliciously doing injury thereto, apply only to the owner in fee.54 Where trespass on state timber land is committed involuntarily and in good faith, no more than double damages can be recovered.51 Where the action is to recover statutory penalties only, for cutting trees, and there is neither malice nor appreciable damages, the statute will be strictly construed.58 The Minnesota statute subjecting trespassers upon state timber lands to double or treble damages is constitutional.59

SS 4. _Criminal liability._\[85e\] & C. L. 2156--Willfulness 50 is an ingredient of the statutory crime of trespass for cutting trees.61 Oak and Hickory trees growing on the border of a public highway and upon the land of an abutting owner are shade trees within the meaning of the Kentucky statute prohibiting cutting down shade trees,62 and permission from the supervisor of roads to cut them down is no defense to a prosecution therefor.58 Where trees were cut while changing the course of a telephone line, the fact, that permission was granted to construct the original line, is no defense,64 nor is the fact, that plaintiff had recovered damages for the original construction.68

railroad right of way, where company had 54, 55. Goodson v. Stewart \[Ala.\] 46 S 239. no reason to contemplate such a trespass. 56. Code Civ. Proc. $1 1667, 1668. Stellar McGhee v. Norfolk, etc., Et. Co. \[N. C.\] 60 v. Central Tel. & T. Co., 53 Misc. 523, 105 SE 912.

40. Not liable ln treble damages, under in possession may recover actual damage $ 1669, Code of Civ. Proc., for entering own premises and removing plaintiff's goods unlawfully stored there. Schifer v. Shaffer, 128 App. Div. 543, 107 NYS 1107.

01. A verdict of $600 damages for grazing about $60 acres of plaintiff's land in the month of February, where it appeared that the feed was aa good as usual ninety days thereafter and that plaintiff that year Gerlived his customary use and benefit from the land, was held excessive. Pyramid Land & Stock Co. v. Pierce \[Nev.\] 95 P 210.

01. Judgment sustained on condition that plaintiff remitt $200 from the verdict $600. Pyramid Land & Stock Co. v. Pierce \[Nev.\] 95 P 210.

01. Where two adjoining owners are un-agreed as to the boundary line between them and one adopts an arbitrary standard, not sanctioned by usage or law, and, against the other's protest, cuts timber up to the line so established, which included some of plaintiff's land, the trespass was not casual or involuntary, and entities plaintiff to treble damages. Heybrook v. Index Lumber Co. \[Vwa.\] 95 P 324.

01. One who removes that portion of a dwelling which has been built in good faith ages.

01. The word "wilful" as used in the Geo. pen Code 1895, 219, par. 1, means "inten-antonally, malievolently, with a bad purpos, an evil purpose, without ground for bellev-thereof. Bollinger v. McMinn (Tex. Civ. App.) 59 SE 823.

01. Trespass held not wiliful. Black v. State \[Ga. App.\] 59 SE 825.

01. Trespass held not wiliful. Black v. State \[Ga. App.\] 59 SE 825.

01. Key. St. 1903, $ 1257. Russellville Home Tel. Co. v. Com. \[Ky.\] 109 SW 340.

01. Trees not being in highway. Russell-Ville Home Tel. Co. v. Com. \[Ky.\] 109 SW 340.

01. 64, 65. Russellville Home Tel. Co. v. Com.. \[Ky.\] 109 SW 340.

10 Cur. Law. 119.

TRESPASS SS 5.

\_Pleading and procedure.\_See 8 C. L. 2167.--Venue must be corre:tly laid,68 and under some statutes, the indictment must allege that defendant is not the owner,69 and the afflavit must designate whether plaintiff and defendant are individuals,68 firms, or corporations.69 It is not necessary to state in the afflavit that defendant had been ordered to leave, where it is avcrred that he had been warned not to enter,79 nor it is error to allow one count in an afflavit to be amended to state that defendant entered without having been warned.71 In a prosecution for hunting birds without written permission from the owner,72 it is unnecessary to allege in the afflavit that defendant was hunting birds protected by the statute.73 Where there is no evidence that it was necessary to cross plaintiff's premises, the question of "legal excuse" is not before the court, and a question as to the necessity of going to defendant's destination is irrelevant.74 Where defendant has already testified on a matter, there is no error in sustaining an objection to a question calling for a repetition of such testimony.76 One having sufficient interest in the commission of a trespass by another may himself be liable.76 Expression of an opinion as to a fact by the court to the jury, where clearly supported by the evidence, is unprejudicial.77 An appeal may be had on incomplete proceedings,78 and judgment will not be reversed on the ground that it was entered on a verdict not in accordance with the charge.79

SS 5. \_Trespass to try title.\_See 8 C. L. 2157.--Mere possession, either actual,80 or constructive,81 entitles plaintiff to recover as against a trespasser, but will not sup-

port an action against a holder of title,"22 though one having a right to possession may restrain one holding color of title from interference therewith."83 One in whom is lodged the naked title may recover from a trespasser."44 The owner of an undivided interest in land, with,"85 or without 86 color of title to the whole,"87 may recover the whole from one having no title whatever. Title by limitation may be acquired by anyone not a co-tenant."88 The three year statute of limitations is unavailable to one claiming under a dced which conveys neither title nor color of title 89 and who has paid no taxes on the land,"90 nor is the five year statute available where it appears upon the face of such dced that the land was the separate property of a married woman,"11 or where the taxes have not been paid concurrently."92 An innocent purchaser of the legal title may recover as against the holder of an equitable title,"93 though the latter may show by circumstances that the purchase was with notice."4 A wife's title and possession under an express trust, effected by an agreement with the husband, cannot be divested by those claiming under him."85 The title whether legal or equitable, of one holding under a contract to convey, in which receipt of the purchase price is acknowledged will support or defend an action to try title."94

\_Pleadings, issues and proof.\_See s C. L. 2:57 _Pleading._"--While the petition must sufficiently describe the land to enable its identification,"89 a defective description may

82. Mere possession of a street by an in-

ned not immediately precede commencement

dividual subsequent to its dedication to a

of suit. Texas, etc., R. Co. Y. Texas Tram & city, and to which the city has title, will not

Lumber Co. \[Tex. Civ. App.\] 110 SW 140.

support an action against the city for re-

opening the street. Plaintiff must either

software title by adverse possession, that there

nower was a dedication or that the city had

last title. City of San Antonio v. Rowley

\[Tex. Civ. App.\] 106 SW 783.

83. A mining license may restrain a trespassing upon his possession. Integrity Min. & Mill Co. v. Moon \[M. App.\] 109 SW 1057.

01. The fact that title was conveyed to

plaintiff for the purpose of bringing suit is no defense. Dean v. Jago \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 676, 108 SW 195. Owner of the fee 1n a public street may recover title

and possession. Right of city to use street

not affected, it not being a party to the suit.

Cocke v. Texas, etc., R. Co. \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 577, 103 SW 407.

85. But if defendant can show title by limitation as against the co-tenants of plaintiff's grantor, plaintiff can recover only the interest held by his grantor. Hutcheson v. Chandler \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 630, 104 SW 434.

01. Branch v. Deussen \[Tex. Civ. App.\] 108 SW 164.

01. Defendants claiming from a common source of title with plaintiff, through an in-

sufficient conveyance, are mere trespasser. Branch v. Deussen \[Tex. Civ. App.\] 108 SW 164.

88. The owner of an undivided interest, claiming the whole under a dced which purports to convey it, may acquire title to the whole by limitation, since he is not a co-

tenant. Hirsch v. Patton \[Tex. Civ. App.\] 108 SW 1015.

**Requisites of title by limitation under**

the five year statute on a dced registration thereof, possession, payment of taxes, and

either cultivation, use or enjoyment, all

continued in connection for the full period of five years, Hirsch v. Patton \[Tex. Civ. App.\] 108 SW 1015. The period of limitation

82. Mere possession of a street by an in-

ned not immediately precede commencement

dividual subsequent to its dedication to a

of suit. Texas, etc., R. Co. Y. Texas Tram & city, and to which the city has title, will not

Lumber Co. \[Tex. Civ. App.\] 110 SW 140.

support an action against the city for re-

opening the street. Plaintiff must either

software title by adverse possession, that there

never was a dedication or that the city had

last title. City of San Antonio v. Rowley

\[Tex. Civ. App.\] 106 SW 783.

83. A mining license may restrain a trespassing upon his possession. Integrity Min. & Mill Co. v. Moon \[M. App.\] 109 SW 1057.

01. The fact that title was conveyed to plaintiff for the purpose of bringing suit is no defense. Dean v. Jago \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 676, 108 SW 195. Owner of the fee 1n a public street may recover title and possession. Right of city to use street

not affected, it not being a party to the suit. Cocke v. Texas, etc., R. Co. \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 577, 103 SW 407.

85. But if defendant can show title by illumination as against the co-tenants of plaintiff's grantor, plaintiff can recover only the interest held by his grantor. Hutcheson v. Chandler \[Tex. Civ. App.\] 10 Cur. Law. TRESPASS SS 5. 1891

be remedied by allegation and proof of extraneous facts." No relief can be granted the right to which is not shown by the petition.1 Where plaintiff merely pleads seizin and right to possession, stating the extent of his interest, as he may do,2 he is entitled to prove any character of title acquired at any time, except that resting upon limitation alone.3 In such case an admission by defendant that plaintiff has stated a cause of action,4 covers every evidence of title which might have been shown under the petition,5 and relieves plaintiff of the duty of proving any affirmative fact showing origin or character of title.4 A special plea of title by either party limits the pleader to proof of that title." The defense of limitation in trespass to try title is in no sense a confession and avoidance,5 but is, on the contrary, an assertion of affirmative title.5 It admits proof of estoppel,10 and it is immaterial whether or not defendant has parted with his interests in the land since commencement of suit.11 Where limitation under color of title is shown, the recovery is co-extensive with the boundaries specified in the instrument of title.12 But failure to pay taxes and knowledge by defendant's predecessors that the land was not in their tract according to survey, weakens this defense.13 The statute of limitations under which one party claims title continues to run as against the title claimed by the other until such title is pleaded.14 Where land is purchased as an entire tract limitations run against the whole.15 Under a plea of not guilty, defendant may show estoppel 16 and that he is an innocent purchaser.17 If joined with a general denial

90. But where the petition contains no the fee of a street may be shown as against such allegations the appellate court cannot anyone but the municipality. Rev. St. 1895, act upon evidence in the record which would amended by Act 1887: protecting municipal-authorize a finding as to the correct description and inform and affirm a judgment v. Texas, etc., R. Co. \[Tex. Civ. App.\] 19 Tex. which followed the description in the petit. Ct. Rep. 677, 103 SW 407.

tion. Thomas v. Tompkins \[Tex. Civ. App.\] 10 Though defendant has informed plain-authorized 20 Tex. Ct. Rep. 61, 105 SW 1175.

tIf?s counsel that his claim would probably 1. In an action for trespass to try title to rest solely upon limitation, proof of estoppel land, where plaintiff failed to show his 1.

does not amount to such fraud or conceal-petition that he is entitled to a decrere pro-tecting him in a certain easement, proof of Da Daugherty v. Templeton \[Tex. Civ. App.\] such easement does not entitle him to re-cover anything. Pouns v. Zachery \[Tex. Civ. App.\] 11 Texas, etc., R. Co. v. Texas Tram & App.\] 18 Tex. Ct. Rep. 687, 103 SW 234.

2. Meade v. Logan \[Tex. Civ. App.\] 110 12 Where defendant shows title by ad-SVV 188. Not required to plead title special-ly. Robbins v. Hubbard \[Tex. Civ. App.\] 108 SW 718.

1. Robbins v. Hubbard \[Tex. Civ. App.\] 160 acres to which title by adverse posses-106 SW 773.

1. Under district and county courts Rule \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 714, No. 61. Robbins v. Hubbard \[Tex. Civ. App.\] 103 SW 454.

1. Hunter v. Malone \[Tex. Civ. App.\] 108 SW 773.

1. Robbins v. Hubbard \[Tex. Civ. App.\] 108 SW 773.

1. Entlicts defendant in such case to open and close. Robbins v. Hubbard \[Tex. Civ. App.\] 108 SW 778.

to run until he pleads it by amendment, but such plea does not stop the statute run-defendant, and to all pleas except that of himitation. Hutcheson v. Chandler \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 630, 104 SW 434.

Where plaintiff bases his right to recover on a deed, which is attacked as a forgery, helices by mistake another tract, and upon he cannot show a right by virtue of an ex-press trust. Robbins v. Hubbard \[Tex. Civ. App.\] 108 SW 778. A special plea of title by defendant does not relieve plaintiff and the necessity of showing title. Hutcheson v. Chandler \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 630, 104 SW 434.

8. Does not admit title in plaintiff. Meade v. Logan \[Tex. Civ. App.\] 110 SW 188.

1. Under it title by adverse possession to 1893 TRESPASS SS 5. 10 Cur. Law. the burden of showing title is on plaintiff and until he establishes it prima facie, defendant's title is not to be considered.\[18\] If accompanied by a special plea of title, the plea of not guilty has no other effect than to put upon plaintiff the burden of proving a prima facie right to the property.\[19\] All affirmative matter admitted in evidence under this plea may be avoided without additional pleadings.\[20\] A disclaimer entitles plaintiff to a recovery extensive therewith.\[21\]

_Issues and proof.\[88\]_ see s. c. L. 2157 Plaintiff must establish title in order to recover land which has never been occupied,\[22\] and he must recover, if at all, on the strength of his own title, and not on the weakness of defendant's;\[23\] hence proof of a superior outstanding title defects his claim.\[24\] But when plaintiff formerly occupied the land that fact alone is sufficient evidence of title to enable him to recover from a trespasser.\[25\] Where title depends upon whether the land is, or is not, within a certain lot,\[26\] or survey,\[27\] the burden is upon plaintiff to prove his claim. Where administration proceedings are relied on their validity cannot be impenched.\[28\] The right to

if material to such transaction. Mars v. land v. Ferris \[Tex. Civ. App.\] 107 SWV 102, Morris \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 874. Proof that title was at one time in another 106 SWV 430. A charge that if the common grantor is insufficient, grantor represented to defendant that the latter must be primary that title had conveyed to him, and defendant relied on such representation and was thereby induced to prevent these he is entitled to recover, \[Tex. Civ.

maintain the action may be lost by estoppel.29 But laches can not be urged against a defendant who seeks no affirmative relief.30

Footnote 20: The _L.L._ is a _L.L._ is a _L.L._.

Footnote 34: The \_L.

Where a dead is in evidence conduct thereunder may be inquired into. \[41\] Evidence inadmissible to show title, \[42\] or loss of it, \[48\] may be allowed to show the general situation and surroundings of the locus. \[44\] On the issue of adverse possession evidence of payment of taxes, \[48\] and acts of dominion, \[49\] or nondominion \[47\] over the land, may be shown. Where a boundary line is in dispute, evidence tending to show a compromise, \[48\] or recognition of a certain line, \[49\] is competent. \[50\] Where evidence cannot be considered on appeal it will be presumed that it sustained the judgment. \[51\] Whether evidence is sufficient, \[52\] or insufficient, \[58\] to sustain the issues, depends upon the cir-

**41. Where a dead from a common grantor** it occurred after hie title had become per-

is in evidence, it is competent to ask defendant, on cross-examination, whether he

structed that if defendant's title was per-

went into possession of the entire tract in-

ted when the conversation occurred, they

sublding that portion in controversy, under

such ded. Mars v. Morris \[Tex. Civ. App.\] 108 SW70.

20 Tex. Ct. Rep. 374, 106 SW740.

\*\*42. Certain evidence in support of defendant's title, indamissible. Mars v. Morris

led to their injury, mere acquiescence short

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 374, 106 SW740.

**43. Testimony of defendant's president** that he had sold out his interest in the land

in controversy before suit was commenced

adjoining owner as to the boundary line,

does not show that defendant lost its interest. Texas, etc., R. Co. v. Texas Tram

\*\*& Lumber Co. \[Tex. Civ. App.\] 110 SW740.

44 Cultivation by plaintiffs predecessor in

title of shore land in front of upland

owned by plaintiff, in trespass to try title to

the shore land, is admissible for such purpose and, when not received to show that

the predecessor had thereby acquired title,

evidence that his right to such shore land

was disputed at the time is not admissible

Merwin v. Backer \[Conn.\] 68 A 872. Where

in such case defendant testifies that as

agent for another he called upon plaintiff

to purchase such land and that plaintiff

told him he did not claim such land, rejection of

the original in regard

to his instructions is not reversible error,

where plaintiff denied having made such

statement. Id.

45. The comptroller's certificate showing

renddition of the land for taxes by defendant

and that it was not rendered for plaintiff is

also admissible. Hirsch v. Patton \[Tex. Civ. App.\] 108 SW7016.

Paquent of taxes on a

list in wichich the land in suit was specifi-

cally described, and on other lists in which

it was included, may be shown on the

issue of adverse possession. Merwin v.

Backer \[Conn.\] 68 A 873.

46. Hirsch v. Patton \[Tex. Civ. App.\] 108 SW7016.

01. Nonclaim and nonassertion of any In-

terest of plaintiff, or those under whom she

claims, for thirty years. Hirsch v. Patton

\[Tex. Civ. App.\] 108 SW7016.

\*\*48. Evidence of location of lines by sur-

veroys under agreement of parties is competent to show a compromise, but no

struction put upon a ceed by one party alone

can avail against the other. Wright v.

Willoughby \[S. C.\] 60 SB 971.

\*\*49. Where a boundary line was in dis-

pute, testimony of plaintiff's tenant that defendant, In a conversation with him, had

recognized plaintiff's rights and offered to

buy the land was admissible, though there

was uncertainty as to the time the con-

versation took place and defendant claimed

it occurred after hie title had become per-

tested by limitation, where the jury were in-

theories that if defendant's title was per-

tested when the conversation occurred, they

should disregard it. Hunter v. Malone \[Tex. Civ. App.\] 108 SW709.

20 Tex. Ct. Rep. 374, 106 SW740.

\*\*42. Certain evidence in support of defendant's

or estopel, someone must have been mis-

let to their injury, mere acquiescence short

of the longest period of limitation is in-

sufficient. Hunter v. Malone \[Tex. Civ. App.\] 108 SW709. An owner is not bound

by agreements between his tenant and an

adjining owner as to the boundary line,

even though the tenant has placed a fence

upon the agreed line. Id.

& Lumber Co. \[Tex. Civ. App.\] 110 SW740.

\*\*51. And so it must be presumed that the

court did not err in directing a verdict.

theo of shore land in front of upland

Newmon v. Williamson \[Tex. Civ. App.\] 19

\*\*52. Evidence sufficient to show title in

the shore land, is admissible for such purpose and, when not received to show that

the predecessor had thereby acquired title,

years. Texas, etc., R. Co. v. Texas Tram &

evidence that his right to such shore land

was disputed at the time is not admissible

show prior entry by defendant, time of 10 Cur. Law. TRESPASS SS 5. 1895

cumstances of each particular case. As in other cases, erroneous rulings on the evidence will not be considered when harmless.\[54\]

\_Instructions.\_See 8 C. L. 2157--Instructions must not be obscure,\[55\] contradictory 5" on the evidence \[57\] outside the issues,\[58\] nor based upon a false assumption of fact 5" or law; \[50\] nor should they impose unnecessary burdens upon the jury.\[61\] A requested charge, presenting affirmatively defendant's theory of defense on an issue raised by the evidence should be granted.\[62\]

Immaterial findings of fact are properly

evidencing plaintiff's title was attacked on

Admission of evidence that defendants that ground. West v. Houston Oll Co. (Tex.

Erantors had told him that they were the Civ. App.\] 18 Tex. Ct. Rep. 286, 102 SWV 927.

only heirs of deceased owner is Immaterial

To warrant a refusal to direct a verdict for

plaintiff for all the land in controversy,

possession. State Nat., Bk. v. Roberts \[Tex.

Tex.

Tex. etc., Ac. Co., Texas Tram & Lumber

Civ. App.\] 118 Tex. Ct. Rep. 714, 103 SWV 144

Co. \[Tex. Civ. App.\] 110 SWV 140. To support

no other verdict than one for defendant.

v. Clawson \[Tex. Civ. App.\] 110 SWV 108.

Furgia v. Trueheart \[Tex. Civ. App.\] 20 Tex.

St. Where abandonment and rescision of

Ct. Rep. 535, 106 SWV 736.

$3 Evidence insufficient to establish plaintiff's predecessor in title, is the de-

tiff's title. Brown v. Orange County \[Tex.

Fense, an instruction on the question .of

Civ. App.\] 20 Tex. Ct. Rep. 533, 107 SWV 607.

To show unbroken chain of title. State Nat.

On plaintiff to show it, was not prejudicial

Bk. of New Orleans v. Roberts \[Tex. Civ. App.\] 118 Tex. Ct. Rep. 714, 102 SWV 454. To

budren of proving payment, cancellation

defeat title admitted by answer under Dis

trict and Country Courts' Rule No. 31. Meeda

on defendant, where the evidence is clear

v. Logan \[Tex. Civ. App.\] 110 SWV 188. To

show such possession as would support the

action. Romine v. Littlejohn \[Tex. Civ. App.\] 118 SWV 1190.

App.\] 20 Tex. Ct. Rep. 767, 106 SWV 489. To

objection that it was on the evidence, and

show purchase with notice of an outstanding

euitable title. Wallis, Landes & Co. v.

Ufir's as compared with defendants. Wilkins

Dehart \[Tex. Civ. App.\] 108 SWV 108.

v. Clawson \[Tex. Civ. App.\] 110 SWV 108.

warrant a finding that the land in dispute

was located in a certain lot as designated on

bodied all the land intended to be conveyed,

a plat. Cochran v. Kappen \[Tex. Civ. App.\] 103 SWV 469. To show such diligeme in

an effort to find a lost dead as to authorize

Tex. Civ. App.\] 20 Tex. Ct. Rep. 374, 106 SWV 430.

parol proof of its contents. Talliaferro v.

Rice \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 865,

103 SWV 461. To sustain verdict for defendant. Id. As to title to authorize a

directed verdict for either party. City of San

interest but this ground of recovery was

Antonio v. Rowley \[Tex. Civ. App.\] 106

SSV 755. Testimony by a tenant that an

adjonning owner had pointed out the boun-

dary line, but showing no agreement that it

should be placed at that point is insufficient

to establish the boundary by agreement or

to create an estopel. Hunter v. Malone

\[Tex. Civ. App.\] 108 SWV 709.

54. Harmless rulings. Where defendant

recovers on the ground of estoppel, the ad-

mission of self-serving declarations in

port of the defense of limitations was harmless error. Daugherty v. Templeton \[Tex.

Civ. App.\] 110 SWV 553. Admission of evidence as to matters which induced the commission of a

inspirendicial to defendant. Jesse French Plano & Organ Co. v. Phelps \[Tex. Civ. App.\] 119 Tex. Ct. Rep. 889, 105 SWV 225. Where plaintiff establishes

title by adverse possession, the admission of

ancient deeds and devises, subject to subevent proof of plaintiff's title under them

and of the identity of the land described

in them, is unrepudicial. Merwin v. Backer

\[Corn.\] 68 A $78. Exclusion of evidence of

possession, outside the period to which the

proof is limited by an Instruction, is harmless refused.**\[**52**\]** It is not material error to give an unnecessary instruction where it is harmless.**\[**53**\]** Whether a question is one of law,**\[**54**\]** or fact,**\[**55**\]** depends upon the evidence is each particular case.\*\* _Improvements._\[**56**\]****--No recovery can be had for improvement, as to the amount and value of which there is a variance in pleadings and proof,**\[**57**\]** nor for improvements erected without using the slightest diligence to ascertain the boundaries,**\[**58**\]** nor in trespass to try title to one tract can recovery be had for improvements upon another.\*\*\[**59**\]****

**Thespass on the Case; Trespass to Txy Tittle, see latest topical index.**

TRIAL.\*\*

8 1. Joint and Separate Trials, 1896.\*\*

**missions, 1905. Evidence Admissible**

**2. Course and Conduct of Trial, 1897.**

**8 2. Reception and Exclusion of Evidence, 8 4. Custedy and Conduct of the Jury, 1905.**

**1900. The Order of Proof, 1902.**

**Tinely Objection, 1904. Cumulative**

**Telentomy, 1904.**

**Algorithm 1.**

_Scope._**--Many important and really distinct matters of trial procedure are given separate treatment in Current Law. Thus the law relating to dockets, calendars and trial lists,**\[**72**\]\*\* **continuance and postponement,**\[**72**\]\*\* **argument of counsel and the right to open and close the same,**\[**72**\]\*\* **examination of witnesses,**\[**74**\]\*\* **making of objections and taking of exceptions,**\[**58**\]\*\* **trial by jury,**\[**59**\]\*\* **questions of law and fact,**\[**57**\]\*\* **instructions,**\[**58**\]\*\* **directing verdict and demurrer to evidence,**\[**59**\]\*\* **discontinuance, dismissal and nonsuit,**\[**59**\]\*\* **an1 verdicts and findings,**\[**61**\]\*\* **has been excluded from this article, which includes principally only such matters as do not readily lend themselves to such separate treatment. The subjects of evidence,**\[**59**\]\*\* **pleading,**\[**62**\]\*\* **and witnesses,**\[**59**\]\*\* **are a!so fully treated elsewhere. As to the hearing in equity, see article Equity,**\[**62**\]\*\* **and for matters peculiar to criminal trials, see Indictment and Prosconction.**\[**63**\]\*\*\*\*

**SS 1.**_Joint and separate trials._**\[**64**\]** **See S. C. L.** 2161.--While in Missouri consolidation\*\*

63. Plaintiff being estopped, a finding as way induced them, and his wife made 0!- to whether defendant had used diligence in\*\*

**ascertaining the true owner before purchasing was unnecessary. Daugherty v. Templeton \[Tex. Civ. App.\] 110 SWV 583.**

**64. An instruction as to the relative dignity of calls in field notes in ascertaining location of survey, though unnecessary, is harmless where the law is correctly stat:d and the jury is charged in the same paragraph to follow all the evidence. Wilkins v. Clawson \[Tex. Civ. App.\] 110 SWV 108.**

65. Under the facts in the case the question as to whether one acquired title by limitation were one of law. Holland v. Ferris \[Tex. Civ. App.\] 107 SW 102.\*\*

01. Whether plaintiff had acquired title to land, held, under the evidence, a question for the jury. City of San Antonio v. Rowley \[Tex. Civ. App.\] 106 SWV 753. Where, in trespass to try title to real estate, there is evidence pro and con as to defendant's title by adverse possession, the question is properly submitted to the jury. Wright v. Willough-by \[S. C.\] 60 SE 971.\*\*

01. See S \[C. L. 2160, n. 55 et seq. 68. Veeder v. Gilmer \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 557, 105 SWV 331.\*\*

01. Though plaintiff made no objection to the creation of such improvements, he in no * 10 Cur. Law. TRIAL SS 3.

- is permitted only in certain specific statutory instances," the general rule elsewhere is that its allowance is within the discretion of the presiding judge." Causes of action of a like nature or relative to the same question may be consolidated when it appears expedient to do so " or where the rights of claimants are so interwoven that confusion and conflict must otherwise inevitably ensue," and the court's action, if reviewable, will not be disturbed unless there is an improper exercise of discretion." But where the issues are kept separate and distinct," or where either the plaintiffs or defendants in the two actions are different," the two actions may not be consolidated but merely for convenience and to save costs tried together. More delay in making a motion to consolidate until both causes are at issue but neither have been reached for trial is not necessarily ground for denying the motion."
- 2 Course and conduct of trial.See
- C. L. 2162. The conduct of the trial and the general course of the examination of the witnesses generally rests within the sound discretion of the trial judge and the exercise of such discretion is not reviewable.
- 87 Permitted under Rev. St. 1899, SS 7:9 under statute and motion to direct verdict (Ann. St. 1906, p. 745), only. Whenever seventiut introducing evidence as to counter-eral suits founded alone on liquidated demands shall be pending in same court by \[Neb.\] 118 NW 170. Where person who same plaintiff against same defendant or whenever several such suits are pending in such court by same plaintiff against several defendants, the court may when expedient in slicy for excessive fees taxed as costs against its discretion order the suits to be cooilil-dated into one action. Improper to consolidate actions in election and to set aside alleged invalid dead brought by plaintiffs against different defendants though some of questions involved were the same. Friday V. Mackenzie, 205 Mo. 181, 103 SW 968.
- 88 Jones V. Boston \[Mass.\] 88 NE 303.
- 89 Under Acts 1905, p 788, actions against v.
- railroad by members of section crew disscharged by same employee of defendant at
- same time to recover wages and penalty thereon under Kirby's Dig. $ 6649 properly
- consolidated. St. Louis, etc., R. Co. v. Broomfield, 83 Art. 288, 104 SW 138.
- 90 Where rights of mortgage and Ilen
- claimant are so interwoven and consolidate.
- 91 Jones V. Boston \[Mass.\] 83 NE 303.
- 92 Jones V. Boston \[Mass.\] 83 NE 309.
- Possibility or conjecture that separate trial
- might result differently no warrant for holding judge abused discretion. American
- Window Glass Co. v. Noe \[C. C. A.\] 158 F 777.
- Proper: Where one of two plaintiffs only slightly and other hopelessly injured. American Window Glass Co. v. Noe \[C. C. A.\] 158 F 777. Under Rev. St. $ 921 (U. S. Comp. St. 1901, p. 685) in action damages for wrongful death of three persons involving same transaction and witnesses. Diggs v. Louisville, etc., R. Co. \[C. C. A.\] 156 x 564. Under $ 921, Inc., St. (U. S. Comp. St. 1901, p. 685), where all questions except-manounts of claim are covered by same evidence. American Window Glass Co. v. Noe \[C. C. A.\] 158 F 777. Where municipality and individuals are sued for same injury
- and cases depended on same facts. Jones V. Boston \[Mass.\] 83 NE 209. Since action in-cluding counterclaim shall be tried as entire-
- and not as separate suits unless withdrawn under Cobbey's Ann. St. 1903, SS 1126 before final submission and tried as separate action
- 10 able on a writ of error."95 While the court may in its discretion defer the making of a ruling,96 this power should not be so exercised as to deprive a party of opportunity to meet the rulings 97 and objections of law which if sustained are fatal to the action should if made at the outset be determined before going into the merits.98 The court should hear courteous objections whether he deems them tenable or not.99 Presentations of prayers for rulings should be made at a proper time and not when they will interfere with the business of the court.1 Generally, where courts render decisions in the absence of counsel, they should direct notice to be to them,2 but in Georgia in certain instances judgment may be rendered upon demurrer in the absence of counsel without leave, without even allowing time to amend the petition.3 Among the specific things not necessarily improper are for the judge in his discretion to permit plaintiff's counsel to confer privately with one of defendant's witnesses before entering on the cross-examination of such witness,\* arresting a witness who comes into court in a drunken condition though done in the presence of the jury,\* and also the absence of the court during the argument of counsel, and the reading of the court's instructions to the jury by the clerk where these latter irregularities are waived.\*

\_Remarks and conduct of judge.\_See 8 C. L. 2103--It is improper for the judge in the jury's presence to comment on the evidence,7 make statements of facts,8 or discuss

95. Crosby v. Wells, 73 N. J. Law, 790, 67 A 295.

01. Court may reserve construction of instrument until situation of parties and cir-

01. Error to refuse to hear objections and commstances surrounding case are revealed in order to aid in arriving at grantor's expressed intent in case where validity de-

01. Presentations of prayers for ruling.s offered in evidence. Shaw v. Pope \[Conn.\] and request that court pass upon them in

67 A 495.

97. When decision is reserved upon question of admitting evidence that fact should be announced in order that both sides may introduce proof which may be necessary in anticipation of ultimate ruling on its ad-

01. The effect of injury is that the court may be made at a proper time and not when it is not

01.

10 Cur. Law. TRIAL SS 2. 1899

conclusions from facts proven,9 but unless there has been prejudice or the possibility thereof to the unsuccessful party the court will not be justified in interfering.10 It is not, however, beyond judicial proprieties for a judge in a proper case to seek to end litigation by suggesting action which the law does not call for,11 but it is improper

Bros. Co. v. Winfield, 53 Fla. 589, 43 S 687.

facts. Stroud v. Columbia, etc., R. Co. \[S. C.\] Where court stated "he would overrule objection as he had admitted other evidence defendants' refusal to receive lumber ordered of drawn line but thought there had been brought much evidence into case that had so, there was testimony that there was no bearing or relevancy to issue." City of market for lumber on its arrival at place Ameries v. Tower \[Ga., App.\] 59 ESE 134.

Inquiry of witness as to part of his testil-many with statement that it sounds incredi-cossible market, improper for court to re-ble not error where witness was confused and thereupon corrected testimony. Elgin, ete., R. Co. v. Lawlor, 219 Ill. 621, 82 NE 407.

Remarks made by trial judge which were part of discussion ensuing suggestion made by complaining counsel. Elgin, etc., R. Co. v. Rose \[Tex., Civ. App.\] 19 Tex. Ct. Rep. 519, v. Lawlor, 132 Ill. App. 280. Where counsel based right to admission of conversation on its being part of resgestae and court asked if it was part of resgestae. Id. Where jury understood purpose of court in saying resgency was agreed upon court did not err estimation did not seem credible was to afford community of correcting apparent confusion. Id. Remark "I think this evidence to avail himself of agreement for grade under whole record now disclosed is proper; and ruling at time was reserved in order to point was in dispute. Herstrom v. Newton, ascertain if evidence would show full extent of agents authority. I think this evidence, though made in jury's presence, re-dence was proper and motion is overvuted." Fritz v. Chicago Grafin & Eleverov Co. \[Iowa\] plaintiff right to recover it would refusa in instruction. Barnes v. Spangler \[Mo. App.\] to jury who were later instructed that they 109 SW 555. Duty of judge is to rule on a-alone were judges of facts, Const. Art. 4, 82,missibility of evidence without comment or justification expressing as to matters of fact in-suggestion as to its weight or effect. St. Apollo, since it applies only to remarks Louis, etc., R. Co. v. Lane \[Tex. Civ. App.\] to jury. MeTeat v. Philadelphia, etc., R. Co. \[ID\]. 69 A 744.

very fair and unbiased statement." Ed. 10 Fact that one of witnesses talked to wards v. Cedar Rapids \[Iowa\] 145 NW 323.

Judge about case before rendition of de-vWhere in action against physician for neg-cision insufficient where verdict not affected ligently applying solution made by drugist and judge endeavored to avoid discussion.

to plaintiff's ankle, court sustained objection to question whether physicians generally relied on drugist for proper compounding,

feated party persisted in asking questions and also stated his own observation and

after court had ruled them improper courts knowledge to be that they compounded their

remark that after court had ruled with ref-own drugs and made same ruling when sub-erence to question it was unprofessional and stantially same question was asked of another witness. Ball v. Skinner, 134 Iowa, 293,

tion, that counsel had record covering point 111 NW 1022. Error not cured by finally ad- and must not offend that way again. Helen

mitting testimony of latter witness and reas-serting truth of former remarks, Id; St. Louis, etc., R. Co. v. Lane \[Tex. Civ. App.\], asked on cross examination but, being

110 SW 530. In action for damages to cat-tle error for court to state that testimony of counsel to try it again whereupon counsel plaintiff as to claim made by him in nature

withdraw question and excepted to remark of admission and not compromise would not

and judge promptly suggested that if there control in determining measure of damages

was any doubt as to his being correct since if jury believed that claim made by

counsel would better correct it then. Rich-plaintiff immediately after injury was true

ards v. Ann Arbor \[Mich.\] 115 NW 1047.

one it should have controlled. Id. Remark

Use by court of "This man" to designate plaintiff and "Mr. Johnson" to designate de- or entitled to much weight but that jury

fendant. Fuller v. Johnson \[Conn.\] 68 A 977.

might consider it objectionable under Const.

Where court rebuked witness for making art. 4, 8 18. Schneider v. Great Northern

answer not responsive and complaining

R. Co. \[Wash.\] 11 P 565.

party did not move to strike out. Western

S. Statement, that judge did not know

how any one was to find out who engine

109 SW 251.

setting fire belonged to if agent of company

11. In action of trespass based on alleg-did not know not improper as charge on

tion that defendants's building extended upon to mention or comment to the jury upon the failure of one of the parties to adopt the court's suggestion.\[12\] The trial judge should not in the absence of counsel go to the jury room and communicate with them while they are deliberating?\[8\]

**SS 3.**\_Reception and exclusion of evidence.\_See 8 C. L. 2014.--It is the province and duty of the court to determine the relevancy and admissibility of evidence only where the same is offered and objections are interposed thereto,\[14\] though it may also exclude the testimony itself on any legal ground,\[15\] or restrict the inquiry into a collateral matter.\[16\] However, the fact that evidence is admitted without objection does not necessitate its consideration by the trial court though statutory provisions exist providing that objections cannot be made for the first time on appeal,\[17\] and the court cannot require counsel as the condition for permitting him to make an objection to admit a contention of the opposite party.\[16\] Where an offer of proof couples admissible and inadmissible matters, that which is admissible may, though it need not, be received,\[19\] but where evidence is clearly objectionable and there is no suggestion plaintiff's land presidding judge did not exceed his authority in suggesting that parties permit jury to assess entire damages sustained by plaintiff. Allen v. Kidd \[Mass.\] 84 NNE 122. 122. Improper to tell jury party refused to adopt court's suggestion. Allen v. Kidd \[Mass.\] 84 NNE 122. Improper to refer to reveal in such a way as might lead jury to believe court thought that plaintiff was stubborn and action brought for spite. Id. 13. Reversible error for judge to go to jury room, though taking stenographer with him to report what he said, and caution them with reference to their conduct while going to remaining at or returning from meal and where on jurors' statement that they failed to reach agreement on certain point said they undoubtedly would on further consideration. Du Cate v. Brighton \[Vis.\] 114 NW 103. 14. Stearns & Culver Lumber Co. v. Adams \[Fla.\] 46 S 156. Evidence though immaterial and confusing need not be excluded unless its admission is objected to the responsible city of objecting resting with counsel. Lifshitz v. Schwartz, 107 NYS 579. Proper to exclude thirty-eight patents some of which were long and complicated and which were admissible only to show probability of contentons of respective parties and more apt to mislead than to aid. United Shoe Mach. Co. v. Brensahan Shoe Mach. Co. v. Brensahan Shoe Mach. Co. \[Mass.\] 88 NNE 412. 15. Not error for court to sustain objection, not good in itself where it might properly have excluded evidence for other reasons. Baker v. Mathew \[Iowa\] 115 NW 15. Though the objection to testimony states an insufficient ground, the court may strike it out if improper on other grounds. Richardson v. Agnew, 46 Wash. 117, 89 F 404. Though party cannot complain of admission of testimony 11 support of irrelevant allegations he has allowed to remain in plea1- ing, court may exclude same. Brononia Co. v. Greenwood Drug Co. \[S. C.\] 89 SE 363. Where undisputed circumstances show testimony of witness cannot by any possiblity be true, it is duty of court to withdraw such testimony from jury. Wolf v. City R. Co. \[Or.\] 91 F 460. Trial court may strike out words from answer of witness on cross-examination although counsel made no that it may become competent through circumstances not then disclosed, it is improper to admit it subject to the objection,\[20\] or, if the inadmissibility of evidence appear after it has been received, it should be stricken.\[21\] While an objection to a question on certain specified grounds which do not appear on its face should be over-ruled \[22\] and sustained where there is no statement of what a question is expected to prove,\[23\] the propriety of refusing to permit counsel to make a formal offer of testimony because a similar offer has been made and refused must be left to the sound discretion of the trial judge,\[24\] and it is no abuse of that discretion to permit a correction of defects in the first offer by a second and more complete one.\[25\] Evidence may be withdrawn subject to exception at any time before the case is submitted,\[26\] but testimony unfavorable to a party given by one of its witnesses on direct examination and reiterated on cross-examination will not be struck out on his party's motion.\[27\] Testimony may be stricken out where after its receipt it appears that the facts involved in it were in writing, unless the writing is produced or its absence is accounted for so as to authorize secondary evidence,\[28\] but the motion to strike must be confined to the objectionable testimony and ordinarily should not be granted if it appeared when the testimony was offered that the facts were in writing and the testimony was not objected to.\[28\] It is improper for the court to limit the number of witnesses which may be called where those witnesses who are called appear to be hostile.\[30\] In a trial by the court, the formalities in the introduction of evidence need not be strictly followed where it is shown that the evidence was before the court,\[31\] and while all evidence clearly incompetent and immaterial should be rejected, a liberal practice should be adopted in admitting evidence in such cases.\[32\] The removal of the jury from the court room during argument addressed to the court is within the discretion of the court.\[33\] Where both parties agree that the jury may remain while the discussion is going on, no matter germane to the matter under consideration can be complained of \[34\]. The court may sometimes properly require the statement of questions whose competency is doubtful privately to the court and if he thinks them incompetent dictate them to the official stenographer and show the objections of the defendants, the ruling of the court, the avovals of the plaintiffs and their exceptions \[38\].

_The order of proof_ See 8 C. L. 215 rests in discretion \[56\], and the court may permit in rebuttal matters proper in chief \[34\], or allow the case to be reopened for additional presence of jury for purpose of reserving and value as to justify effort to utilize it, ite exceptions. Moss v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 706, 103 sent proceeding to determine whether it was known to exist when patent issued and ages due to overflow by railroad embankment and defendant questions asking concerning damage done two and one-half miles above stream and on objection was allowed to state that he expected to show same sort of damage there. Id.

**34. Where court was merely calling attention that certain facts would not be considered because under the agreed theory show notes used on were agreed to be canupon which case was tried they would not be submitted to that cashier of bank to whom they had been jury. Moore v. Rose \[Mo. App.\] 108 SV 1105.**

**35. Proper where plaintiff's attorney per-eisted in asking in presence of jury numer-buttal within courts discretion. Tucker v. Rus Incompetent questions which with ob-fections coming from defendant would be needed not be introduced in order of execution but may be introduced in order of comprehensative notwithstanding prompt action of court. Frugia v. Trueheart \[Tex. Civ. V. Hargins, 31 Ky. L. R. 1117, 104 SV 693.**

**36. Floto v. Floto, 233 III. 605, 84 INE 712;**

**37. Proger**

**38. V. Clifford \[Mont.\] 94 P 842. Where plaintiff in replavin alleges ownership and right to possession which defendant claims through valid sale or bona fide purchase from fraudulent purchaser, that the proof of fraud in illegal sale is not part of plaintiff's prima fide case and is available only in reply is mere matter of order of proof and admission of evidence of fraud in sale in support of plaintiff's case is not error.**

**39. When the court is not part of plaintiff's prima fide case and is available only in reply is mere matter of order of proof and admission of evidence of fraud in sale in support of plaintiff's case is not error.**

\*\*39. When the court is not part of plaintiff's prima fide case and is available only in reply is mere matter of order of proof and admission of evidence of fraud in support of plaintiff's case is not error.

proofs,88 or allow plaintiff to introduce evidence on an uncontested point after he has rested his case.89 This discretion, however, should be so exercised that neither party will be taken by surprise or deprived of an opportunity without notice to introduce evidence in contradiction,40 and when properly exercised will not be reversed unless it has been abused 41 and the objecting party has suffered prejudicial

Footnote 17: The author is grateful error,"2 but the court may not advance the order of proof so as to deprive a party of his legal right to rebut after the defense has closed.43 Where the trial judge does not refuse in terms to open the case as a matter of discretion, his consent to open the case is implied.44 In California on application to reopen a case after amendment to make pleadings conform to proof, the application must show that the complaining party was misled or prevented from introducing evidence to rebut that upon which the amendment was based, and if the case be reopened he will be able to present testi-mony to overcome the same.45

_Timely objection_ See 5 C. L. 2180 must be made to improper questions,44 but where the inadmissibility first appears by the answer,47 or it was admitted on an assurance of other proof or connection which was not supplied,48 or the witness made an irresponsive answer putting before the jury what the court had properly ruled could not be shown, such testimony should be stricken out on motion.49

_Cumulative testimony_ See 5 C. L. 2180 may be limited or excluded,50 though it may not be error to admit it.51

42. Where in eigcment plaintiffs intro-

uses to follow it up and connect it with duced original patent and record of subsequent deds and rested and defendants's

their evidence which would make it ma-

quent deceds and rested and defendants's

theirupon introduced one of locators of lode

It conditionally. Stearns & Culver Lumber

within boundaries of patented land such

evidence not objectionable because intro-

eral written instruments are successively

duced prior to proof that vein or lode was

shown to exist at date of application for

showing certain timber rights were vested

patent. Noyes v. Clifford \[Mount.\] 94 P 84.

in defendant, and such instruments taken

48. Where opportunity was given to introduce rebuttal before defense had rested

no offer or promise is made to connect prof.

or any evidence whatever had been put in

and plaintiffs failed to avail themselves

theroof, this does not deprive them of legal

they are properly excluded. Id. Letters ad-

right to rebut after defense had closed. Al-

len v. Phoenixx Assur. Co., 12 Idaho. 653, 88

P 245.

44. Moore v. Central of Georgia R. Co., 1

Ga. App. 514, 58 SE 63.

45. Hedstrom v. Union Trust Co. \[Cal. App.\] 94 P 836.

01. See Saving Questions for Review, 10

C. L. 1572. When apparent that answer will

contain evidence necessarily inadmissible

motion to strike comes too late unless preceded by an objection to question. Spiking

v. Consolidated R. & P. Co. \[Utah\] 93 P 838.

No abuse of discretion to refuse to strike

answer that man was very careful to question if he was careful in personal injury

action. Id. Where evidence has been ad-

mitted without objection, court may refuse

to strike merely cumulative testimony

along same line. Skinner Mfg. Co. v. Dan-

you have been dressmaker state means of

ville \[Fla.\] 44 S 1014. Evidence showing

activity of real estate broker, in action for

brokerage commissions. Id. Hearsay

troduced to show activity of broker in pro-

curing sale where evidence is close and conflicting and hearsay likely to be damaging

should be struck. Id.

47. Johnston v. Beadle \[Cal. App.\] 91 P

01. Where on cross-examination statements of personal experience made in

direct examination are shown to be unsub-

stantiated. Defgnard v. New York, etc., R. Co. v. Garrett \[Tex. Civ. App.\] 96

Co. \[N. J. Err. & App.\] 67 A 609. Where defendant testifies as of his own knowledge

and subsequent answers shows information

based on hearsay. Holman v. Edson \[Vt.\]

69 A 143.

48. If party clearly makes purpose for

which evidence is offered appear and prom-

theories of interest in the context of the work.

10 Cur. Law. TRIAL SS 4. 1905

\_Stipulations or admissions.See * C. L. 116--_If a party make an admission in a plea either by himself or his attorney and subsequently amend the pleading and strike it, it can be introduced in evidence as an admission on his part made either by himself or his attorney,"2 and while, when so stricken out, he is no longer conclusively bound by it, may be introduced in evidence as an admission of fact,"3 but a mere-statement of counsel made in argument, touching the construction of a paper, will not estop his client from contending for a different construction in a subsequent litigation, it not appearing that the court acted on such construction or adjudicated it to be correct."4_

_Evidence admissible for one purpose only 56a * C. L. 2166 may be admitted without limitation where the objection to it is general."8 Evidence competent against one defendant though incompetent against codefendants is properly admitted."8_

SS 4. \_Custody and conduct of the jury.See * C. L. 2167--\_The evidence of misconduct by or affecting the jury must be clear and convincing."7 The conduct of the court or its officers should not be such as may tend to coerce a verdict,"8 and the

efgn Camp, Woodmen of World \[Neb.\] 113 NW 483. Verdict will not be set aside upon NW 524. Where employment to act as brok-

mere suspicion of misconduct, as where twe-

or was conceded evidence tending to show equally credible witnesses contradict each such facto, properly excluded. Rawland v.

other as to circumstances complained of, Hall, 121 App. Div. 459, 106 NYS 65.

Village of Gonoa v. Riddle, 132 Ill. App. 687.

51. Not error to permit doctor signing

Action of jury in sending out for refresh-

proofs of death previously introduced in evil-

Hence and uncontraided to testify to same

\[Iowa\] 114 NW 197. Publication during

facts. Haba v. Metroploitan Life Ins. Co.,

150 Mich. 467, 14 Det. Leg. N. 75, 114 NW

circulation in municipality where trial is

880. In suit on life insurance policy, plain-

half cannot complain that large number of

attempts to have been made to bribe jury to

witness cases. many of them of great weight,

85. Taylor v. Security Life & Annuity

01. Ng. Fitzgerald Cotton Oil Co. v. Farm-

charge jury where there is no evidence of-

54. Particularly where it does not appear

that adverse party was misled or was in-

10 Ohio C. C. (N. S.) 497. Fact that jury is

tended to rely on it, or that he did in fact

rely upon it and act to his injury. Baker v.

taken from consideration of cause which has

Davis, 127 Ga. 649, 57 SE 82. Party to im-

been continued to next day, and sworn in.

ber lease held not stepped by construction

other causes, not ground for reversal in ab-

placed thereon by his counsel in argument

85. Ng. Fitzgerald Cotton Oil Co. v. Farm-

charge jury where there is no evidence of-

54. Particularly where it does not appear

01. Ng. Fitzgerald Cotton Oil Co. v. Farm-

01. Ng. Fitzgerald Cotton Oil Co.

lawyers should keep away from jurors when out of the court room during trial and not converse with them beyond the exchange of the usual salutations of the day.\[54\] Where the court enters an order that the jury remain together, they should not be allowed to become separated even before the instructions are given by the court and the case put into their hands to consider their verdict,\[54\] but their disobedience is harmless where no injury resulted.\[61\] The length of the confinement of the jury \[54\] and recalling them to interrogate them as to what evidence they considered in arriving at a verdict is within the court's discretion.\[54\]

_It is largely discretionary with the trial court what papers shall be taken out by the jury.\[54\]_ \*\*c. L. 2166.\*\*The statutes of some states provides that the jury may take with them all books of account and all papers which have been received in evidence, except depositions.\[64\] In Iowa this statute is construed to be permissive and not to make it the duty of the court in the first instance to send out the papers introduced, but when requested by either party the papers should be sent out and failure to do so constitutes error,\[65\] but unless the error is prejudicial it is not ground for reversal.\[66\]\_

_Allowance of a view_ See * C. L. 2166.\*\*ordinarily rests in the discretion of the court,\[67\]

rive at verdict by freely discussing subject

them, such silpe were mere memoranda and before them, that it took time, etc., not

not written evidence contemplated by state-coercive. Houston, etc., R. Co. v. Darwin

\[Tex. Civ. App.1 20 Tex. Ct. Rep. 30, 105 SWP

\[825. That ballifinresponsetoquestionvonJournalournalournalournal of the court's law. 110, 110 SWP 178,

the court' and "Judge once kept jurors axl-

\[835. McMahonv,IowaIceCo,\[Iowa\]114

ty-fourhoursbecausetheywouldnot agree,"Insufficienttowarrantroversal.Larsonv.ChicagoUnionTrac.Co., 131 III.App.286.

59. Where one of defendants' counsel

played cards with some of jurors after evidence closed and arguments partly made,

verdict set aside. Austin v. Langlotis \[Vt.\]

60. In re Abel's Estate \[Nev.\] 98 P 227.

01. Harmlesswherenotshownjuroreweretamperedwith,Improperlyinfluenced, andnocircumstancesindicateanyrightswerev violatedordamagesuffered.InreAber'sEstate \[Nev.\] 98 P 227.

01. Confinementofwenty-fourhoursnotabusewherevedecisconflictingandcasewasontrialfortondays.ChicagoCityR.Co.v.Shreve,128 III.App.462.Thatjurryremainedinrefinementbuttenminutes,insufficienttttongreachverver 10 Cur. Law. TRUSTS $ 1. 1907

and its action will be reviewed only in case of abuse.\[48\] The Nebraska statute in this connection has been held to authorize them to be sent anywhere within the jurisdiction of the state even though without the county and jurisdiction of the court."

\_View by court.\_See 8 C. L. 2168

TRUSTS,

**SS 1. Definitions and Distinctions, 1907.**

**SS 2. Express Trusts, 1908. Definition and Elements, 1908. Declining or Creating the Trust, 1908. Spendthrift Trust, 1909. Bank Deposits in Trust, 1910. Active and Passive Trusts, 1910. Separable Trusts, 1910. Separable Trusts, 1910. Validity, 1910. Construction, 1910. Establishment, 1911. Necessity of Writing, 1911. Recording, 1912.**

**SS 3. Implicit Trusts, Generally, 1912.**

**SS 4. Constructive Trusts, 1912.**

**SS 4. Trusts Raaled Where Property is**

**SS 9. Liability of Trusts to Estate and Third B. Trusts by Equitable Construction in the Absence of Fraud, 1915.**

**SS 5. Resulting Trusts, 1915. Presumption**

**SS 11. Personal Deatings With Estate, 1926.**

**SS 6. The Benefalty, 1918. Who May Be, 1918. His Estate, Rights, and Interests, 1918. The Statute of Uses, 1919. Rights Between Benefalers, 1919. Trust and Remedies of Benefalty, 1930.**

**SS 11. Elability of Benefalty for**

**SS 11.** Presumption\*\*

\*\*SS 11.

to whom an estate in property is conveyed or set over, that he will permit another to take the profits and enjoy the estate according to terms agreed upon, is a trust.\[81\] Voluntary trusts are simply devices by which donors effectuate gifts, either of property or its beneficial use and enjoyment, to a designated donor,\[82\] and transfer by a living person of all of his property is a general trust.\[83\] Trusts are classified generally as express,\[84\] implied,\[85\] and resulting trusts.\[86\]

SS 2. \_Express trusts. Definition and elements.\_See * C. L. 2170--Express trusts are those which are created by the direct and positive acts of the parties by writing,\[87\] or parol.\[88\] A designated trustee and a property given him to manage for a beneficiary are the essentials,\[89\] the subject-matter and beneficiaries must be described with certainty,\[90, 91\] the trustee\[92\] must be definitely designated, but equity will not ordinarily allow a trust to fail for want of a trustee.\[93\] That the settling reserves some control over the property,\[94\] or the power of revocation,\[95\] does not affect the validity of the trust. The beneficiary's right of enjoyment need not be immediate.\[96\] A gift to a third person for the benefit of another is sufficient,\[97\] but a mere employment is not.\[88\] There must be an intent to create a trust,\[98\] and a transfer of title 1 for a valid consideration,\[2\] but such transfer need not be by express terms.\[9\]

\_Declaring or creating the trust.\_See * C. L. 2170--Any one seized of the fee may declare a trust.\[4\] A minor may do so, subject to his own power of avoidance.\[5\] The instrument must disclose an intent to create the trust,\[8\] and where such intent is

- 81. Wilson v. Kennedy \[W. Va.\] 59 SE 736.
- 82. In re Podhajsky's Estate \[Iowa\] 115

1 clear, no particular form of words is necessary," the words "trust" or "trustee" not being indispensable." And though a declaration in pleadings may suffice," there must be an explicit declaration of trust, or circumstances which show beyond a reasonable doubt that a trust was intended to be created.10 Hence, an ineffectual attempt to make a gift will not create a trust,11 nor will a mere declaration of a purpose to create one,12 nor will indefinite and unsigned memoranda.13

\_Spendthrift trust.\_See S C. L. 2172.--A gift of an income, with protection from alienation or claims of creditors, is a spendthrift trust,14 and so is one created for the purpose of protecting the settlor against his own incompetency.18

Footnote 18: https://www.sds.org/

estate in certain lands, and provided he trust for named beneficiary, their sole use should control and have possession thereof and benefit, and further covenants to con-until his death for his support and main- vey same to him, is sufficient. Lee V. Hamt-tennace, free from any debts, etc., against "liton, 218 Pa. 468, 67 A 780. Declaration him, in order that he might protect, care for, and support himself and daughter.

money invested by him in Byger's place to He was appointed executor. Execution be placed to his credit to bear interest from against him was leveld on life estate in date credit given till paid. When total the lands and claim interposed by him as principal and interest paid, residue or re-executor of wfte. A year had not elapsed after his qualification. Case submitted on B. R.," and signed sufficient. Ranney v. By-agreed statement of facts, in which it was era \[Pa.-1 & S #71. Where, at sale of land stated that husband and daughter had been under judicial decree to satisfy claims of living on land since death of testrix, and judgment creditors, third person agrees were so living at time of trial. Held, that with owner, in consideration of $100, and will created no trust in executor as such payment to him by later of purchase man-in regard to life estate, his duty was only easy, to bid in the land and convey it to wife that of administering the property under of owner, such third person is thereby con-the will. Day, Avery & Co. v. Cox. \[Ga.\]

61 SE 121. The purpose to create it may be gathered from the language of the in-structured by giving to the words employed by \_Bank deposits in trust.\_See 8 C. L. 2173.--Before one will be held to have made bank deposits as a trustee, his intent to so do must appear.\[18\] A deposit in trust is merely tenative \[17\] until made irrevocable.\[18\] The question of title to the fund cannot be decided on petition for an order to deliver the bank books.\[19\]

\_Active and passive trusts.\_See 8 C. L. 2175.--Where the trustee has duties to perform in executing it, the trust is active.\[28\] A naked trust for the execution of the power to sell and divide cannot be created.\[21\]

_Separable trusts._--A separable trust may be created for each beneficiary, whose interests may be separate and distinct.\[22\]

\_Validity.\_See 8 C. L. 2176.--The validity of a trust in real estate is determined by the law of the situs of the real estate.\[23\] It is not essential to its validity that its continuance should be dependent upon the life of a beneficiary,\[24\] but a trust by which real property is devised to trustees in fee, to be conveyed by them to the beneficiaries, is void,\[28\] nor can one declare a trust in his own property, reserving to himself an interest which cannot be reached by a judgment creditor,\[28\] nor can a trust be raised if a gift was intended.\[27\] Intestacy, however, does not necessarily follow from the fact that the trust is void.\[28\]

\_Construction.\_See 8 C. L. 2178.--In every case, so far as it can be ascertained,\[28\] the intent of the settlor must prevail,\[30\] unless it is repugnant to some rule of law.\[31\] To

16. Rambo v. Pile \[Pa.\] 63 A 807.

01. Such a deposit by one in his own name in trust for another is merely tentative. The fact of withdrawal is a decisive act of disaffirmance. Tierney v. Fitzpatrick, 122 App. Div. 623, 107 NYS 527.

01. It can be made irrevocable only in one of two ways: First, by some unequivocal act (such as delivery of pass book to beneficiary) or declaration by depositor in bis lifetime or, second, by death of depositor, before beneficiary, without revocation, or some decisive act or declaration of disaffirmance. The fact of withdrawal is a decisive act of disaffirmance. Tierney v. Fitzpatrick, 122 App. Div. 623, 107 NYS 527.

01. The second is a desire to be made irrevocable only in one of two ways: First, by some unequivocal act (such as delivery of pass book to beneficiary) or declaration by depositor in bis lifetime or, second, by death of depositor, before beneficiary, without revocation, or some decisive act or declaration of disaffirmance. The fact of withdrawal is a decisive act of disaffirmance. Tierney v. Fitzpatrick, 122 App. Div. 623, 107 NYS 527.

01. The second is a desire to be made irrevocable only in one of two ways: First, by some unequivocal act (such as delivery of pass book to beneficiary) or declaration by depositor in bis lifetime or, second, by death of depositor, before beneficiary, without revocation, or some decisive act or declaration of disaffirmance. Tierney v. Fitzpatrick, 122 App. Div. 623, 107 NYS 527.

01. The third is a desire to be made irrevocable only in one of two ways: First, by some unequivocal act (such as delivery of pass book to beneficiary) or declaration by depositor in bis lifetime or, second, by death of depositor, before beneficiary, without revocation, or some decisive act or declaration of disaffirmance.

arrive at this intent, the whole instrument \[33\] in all its parts must be considered." It is permissible to transpose two clauses which declare the trust,\[35\] or consider several instruments,\[99\] and the construction of the parties may be considered.\[99\] The scope and duration of the trust will not be extended by implication beyond the plain and reasonable construction of the language employed.\[90\] The term, "next of kin," does not include the widow of the beneficiary,\[99\] nor do the words, "pay over," necessitate the construction that the estate must be converted into money.\[99\]

\_Establishment.\_See s C. L. 2178--Though the rule does not prevail in all jurisdictions,\[99\] it is settled law, even though the deed be absolute on its face,\[90\] that a trust may be established by parol,\[91\] but the rule must not be so applied as to permit the passing of title by mere parol agreement.\[99\] The evidence must clearly establish the trust;\[99\] it must be precise and unequivocal,\[99\] strong and unquestionable,\[99\] full and explicit, and not open to grave doubts, contradictions and circumstances.\[99\] It may be established by letters between the parties,\[99\] or the evidence of one interested witness,\[99\] but the uncorroborated testimony of husband and wife is insufficient to establish it in favor of the latter,\[99\] and declarations and admissions are either not admissible \[99\] or received with caution.\[99\]

\_Necessity of writing.\_See s C. L. 2178--A trust in personality\[99\] and, in some juris-

for the benefit of said grantee, and her

heirs and assigns forever." Construed to

be a grant upon a trust, or a use upon a

use, which remained unexecuted. Lima v.

Cook \[Mass.\] 83 NE 12.

31. Pope v. Patterson \[S. C.\] 58 SE 945.

01. Bascom v. Weed, 53 Misc. 496, 10 NYS

459; In re Froehl's Estate, 122 App. Div.

440, 107 NYS 178.

33. A declaration, "wishing to provide as

safely and permanently as possible for their

comfort, maintenance and support," shows

trust. Erwin v. Lutz \[Iowa\] 118 NW 785.

clearly that the intention was to provide,

not only for the maintenance, but also for

sufficient, there being evidence among other

the comfort of those mentioned, and further

that the provision should be permanent.

Parrish v. Mills \[Tex.\] 20 Tex. Ct, Rep. 342,

106 SW 882.

34. Pope v. Patterson \[S. C.\] 58 SE 945.

01. Contract to pay annuity, and will de-

claring real estate conveyed at the same time to be held in trust for the payment

thereof, may be construed together to establish the trust. Hiss v. Hiss, 228 711.

481 NE 1056.

36. Poland v. St. Joseph's Orphan Asylum

Ass'n of Cincinnati, 9 Ohio C. C. (N. S.) 535.

37. Seabrook v. Grimes \[Xd.\] 68 A 883.

01. United States Trust Co. v. Miller, 109

NYS 938.

39. Bascom v. Weed, 53 Misc. 496, 105 NYS

01.

01. Bell v. Edwards \[S. C.\] 59 SE 535.

01. Verbal testimony is admissible to

graft a parol trust upon a deed absolute on

its face. Whitfield v. Diffe \[Tex. Civ. App\]

19 Tex. Ct. Rep. 835, 105 SW 324.

42. In re Washington's Estate \[Pa.\] 69 A

01. Where the writting is complete parol

evidence is admissible to identify the sub-

ject-matter. Otherwise, if incomplete, as

where no subject-matter is named. Ranney

v. Byers \[Pa.\] 68 A 971. The statue could

have been taken advantage of and the evidence excluded, but the matter was waived

by failure to object. Forest v. Rogers \[Mo. App.\] 106 SWV 1105.

43. Allen v. Allen \[Tex.\] 20 Tex. Ct. Rep.

479, 107 SWV 528.

44. Saunders v. Wells \[Iowa\] 112 NWV 205.

01. On a very close case, evidence held

sufficient, there being evidence among other

things, of declarations by legate that she

held legacy in trust. In re Washington's

106 SWV 882.

46. Pute v. Tutte \[N. J. Eq.\] 66 A 1090.

01. Suit to establish trust thirty-four

years after date of deed. Crawford v. Workman \[V. Va.\] 61 SE 322. Conflicting and

inconsistent evidence and averments are in-

sufficient to establish a parol trust as

against the testimony of the grantee and

the recital of the deed. Stillwagon v. Coe,

6 Ohio N. F. (N. S.) 149.

48. Eagle Min. & Imp. Co. v. Hamilton

\[N. M.\] 91 P 718.

dictions, in real estate \[54\] may be created by parol, but even in these jurisdictions, where land is conveyed to one for valuable consideration paid by him, coupled with a trust to hold for the use of a third person who pays nothing, such trust must be declared or proved by writing.\[55\] In other jurisdictions a trust cannot be created except by writing,\[56\] though it need not be embraced in a single instrument.\[57\] In the absence of a contrary showing, a writing will be presumed.\[58\] Nevertheless, fraud,\[59\] accident or mistake,\[60\] partial,\[61\] or complete performance, will prevent the application of the statute.\[62\]

\_Recording.\[See 5 C. L. 2176--Recording is necessary as against third persons.\[68\]

SS 3. _Implied trusts, generally.\[See 6 C. L. 2177--Whether precatory words create a trust depends on several considerations,\[64, 65\] and a trust will not be implied unless it clearly appear that it was testator's intention to create it.\[66\]_

SS 4. \_Constructive trusts. A. Trusts raised where property is held or obtained by fraud.\[See 6 C. L. 2177--A constructive trust arises where there is no express or implied, written or verbal, declaration of the trust,\[67\] and the same circumstances that create it with reference to really will do so as to personally.\[68\] Since trusts are not within the statute of frauds,\[69\] equity impreses with a trust property obtained by fraud actual or imputed,\[70\] and a purchaser with notice of the fraud may be held as

- \[54\] \_Express trusts in land are not within the statute of frauds, and can exist and be proved by parol. Sullivan v. Fant \[Tex. Civ. App.\] 20 App.\] 10 SWF 607. Section 7 of the statute of Elizabeth not enacted in West Virginia,\[63\],\[64\],\[65\],\[66\],\[67\],\[68\],\[69\],\[70\],\[71\],\[72\],\[73\],\[74\],\[75\],\[76\],\[77\],\[78\],\[79\],\[70\],\[71\],\[72\],\[74\],\[75\],\[76\],\[77\],\[78\],\[79\],\[70\],\[70\],\[71\],\[72\],\[73\],\[74\],\[75\],\[76\],\[77\],\[78\],\[79\],\[70\],\[71\],\[72\],\[74\],\[75\],\[76\],\[78\],\[79\],\[70\],\[71\],\[72\],\[73\],\[74\],\[75\],\[76\],\[77\],\[78\],\[79\],\[70\],\[71\],\[72\],\[74\],\[75\],\[77\],\[78\],\[79\],\[70\],\[72\],\[74\],\[75\],\[79\],\[71\],\[72\],\[73\],\[75\],\[76\],\[77\],\[78\],\[79\],\[70\],\[73\],\[74\],\[75\],\[78\],\[79\],\[70\],\[71\],\[72\],\[74\],\[75\],\[79\],\[70\],\[71\],\[72\],\[74\],\[75\],\[76\],\[77\],\[78\],\[79\],\[70\],\[71\],\[72\],\[73\],\[74\],\[75\],\[76\],\[78\],\[79\],\[70\],\[71\],\[72\],\[74\],\[75\],\[77\],\[78\],\[79\] 10 Cur. Law. TRUSTS SS 4A. 1913

**trustee.\[11\]** The fraudulent procuring or diversion of a devise or bequest is a common example of the fraud which will create a constructive trust.\[72\] The principal is also applied where a grantee has fraudulently procured property,\[73\] and, if the grantor q-

\*\*party of another by fraud, equity will im-

**press upon it a constructive trust, until it reaches the hands of an innocent purchaser.**

**frained from devising. Gemmel v. Fletcher Brissell v. Knapp, 155 F 809. A trust ex**

**maleficio arises wherever a person acquires**

**the legal title to property of another by**

**the claimant-should not be considered**

**wollen to depruy a legate of the benefit**

\*\*verbal promise to hold the same for a cer-

**tain purpose, and then retains the property**

**as his own. There must be an element of**

**will protection of the statute of wills**

**in, positive fraud accompanying the proire**

**that by reason of a promise to testator and by means of which the acquisition of**

**made by legate or person through whom**

**the legal title is wrongfully consummatmed.**

**legacy was given, testator was induced to**

**Chadwick v. Arnold \[Utah\] 95.P 527. O. W.**

\*\*and S. Agreed to purchase land in partner-

**and the equitable remedy for the purpose of ship, O. buying with his own money and preventing said statute from becoming**

**taking title in himself, agreeing orally, to**

\*\*home of fraud is that of impressing propo-

**hold for W. and S. and to convey**

**try received by legatee under will, with**

**on payment by them for such interest. Later**

**a trusting ex malefiolo, and converting**

**there was a written agreement in form of**

**legate as a holder of property bequeated, ordinary contract of sale to convey w. and**

**and to a trustee. Heinsch v. Pennington \[N. S. each one-third on payment of their**

**shares. This agreement was subsequently**

**enforced in suit for specific performance.**

**of an intended beneficiary, where it appears**

**Held, facts not raise constructive trust ex**

\*\*that the heir fraudulently prevented a de-

**mallego. Ostheimer v. Single \[N. J. Eq.\] 958 A 231. Parties thereof into parad agreement.**

**however, that decedent relied on the help's by which one was to locate and mark mining claims and prepare notices, the other**

**wr 1901.**

**party to record them at his own expense,**

\*\*each to have a half interest. Claimant lo-

\*\*ened claims and delivered notices for rec-

**adrich by defenant**

**but he failed to record**

**then within the time limited, and relocated**

**the claims for his own benefit. The failure to record, and the relocation, was fraud on**

**claimant, and defendant held interests as**

**trustee for claimant. Casaden v. Dunbar and**

**theor. C. A.J 157 F 62. Guardian agreed to turn over property for benefit of varieties, but**

**being pressed for money, afterwards conveyed it all to one of the sureties for a sum**

**muck less than its value. Heid, a trustee**

**ex maleficio for benefit of other varieties.**

**McDonald v. Tyner, 84 Ark. 189, 105 SWV 14.**

**71. Tye v. Manley \[Ind. T.\] 104 SWV 636.**

**72. Mother who had made will in favor of**

**her son, was induced to make a new will**

**leaving property to her brother, who agreed**

**to make codiff to his own will giving**

**property derived from sister to her son.**

**Property so derived impressed with trust**

**in favor of testator's son. Jimmerson v.**

**Perguson, 109 NYS 845. Testator desiring**

**P. to have certain house he supposed he**

**owned, wished to alter will so as to include**

\*\*it, the will having been prepared for sign-

**ing: on being advised the could not devise**

\*\*house to P. because owned by Y., proposed to

**change will so as to give P. sum equal to**

\*\*value of house, but Y., with object of in-

**holding him to sign will as drawn, and not**

**delay to make change, assured him this**

**would be all right. Heid to impress a trust**

**on portion of Y. Powell v. Yearane \[N. J. Eq.\] 67 A 892. Where husband holds legal**

**title to real estate belonging to wife, and to prevent her making a will devising estate to another promises to convey it to such other,**

**and she, relying on the promise does not make will, and dies, the refusal of husband to**

**P 659.** 1914

TRUSTS $ 4A.

10 Cur. Law.

lied on his representations, it is no defense that he, by his grant, wronged others," but a trust will not be raised by the breach of a mere verbal promise to purchase land and convey it on request." Such trust may also be impressed on lands purchased at judicial sales," or procured under an option." Another illustration may be found in advantages derived through fiducary, or confidential, relations," and where such relations are shown, the burden of proving good faith rests on defendant." But no trust is impressed on lands held under decisions of the land office," or decrees of the probate court procured by fraud," unless the fraud was extrinsic or collateral." In

74. That grantor desired to protect his that of his correlate, thereby charges his property against creditors cannot be set up by the trustee. Chamberlain v. Chamberlain

benefit of latter, which escult qui trust may \[Cal. App.\] 95 P 659.

75. There must have been an original mis-representation by means of which the legal claime and a betrayal of the confidine was obtained, and an original intention to circumvent and get a better bargian by

posed under it. Howe v. Howe & Owen Bali

the confidence proposed. Smith v. Smith

Bearing Co. \[C. C. A.\] 154 F 820. Where

76. In a chancery suit instituted for that

purpose land of H. decreased to be sold to

the owner of land, equity will impress, for

satisfy a judgment held by S. Shortly after

entry of decrees S. by written agreement

on tender of purchase money. Carr v. Gra-

with H. becomes owner and assumes pos-

ham, 128 Ga. 622, 57 SE 875. An agent pur-

session of the land. Subsequently, upon ad-

chasing property for himself under circum-

vertisement for sale by commissioner ap-

guinted R. enters into verbal agreement

which an agent is charged in his dealings

with S. and the commissioner to buy in the

as such with his principal, will be con-

land for S. at a sum sufficient merely to

sacer costs and expenses of sale, and, upon

g2 P 662. Mother who was aged and feeble,

repsyment to him by S. of such purchase

reading with defendant, owned money in

money, to convey the land to S. R. bids in

bank. Defendant drew money on mother's

the land, pays agreed price, and obtains

check and deposited it in another bank to

from commissioner conyance of legal

Credit of himself in trust for her. Later

title. Heid, relation of trustee and cesium

we withdrew it and redeposited it in his own

qui trust is thus created between R. and

name individually. Fiducary relations ex-

S., and any purchaser from R., with notice

listed and he held money as her trustee.

thereof, must account to the holder of equi-

dick v. Stumpf, 110 NYS 712. Where a

table title. Swick v. Pease \[W. Va.\] 69 SE

conveyance of real estate is delivered by

510. Under oral agreement to attend judid-

daughter to father under oral contract that

tial sale and purchase for another and hold

it as security for payment of price, owner

proven by declarations of father at time ded

did not attend, relying on promise. Pur-

delivered, and it is shown trust not carried

chase made by promiser and title taken in

out, a court of equity will enforce trust, as

own name. Trust declared in favor of

refusal to carry it out is constructive fraud,

owner statute of frauds not applying, relief

based on relations of confidence existing

not based on the agreement, but on chilling

between the parties. It is immaterial

of bidding at sale, resulting from conduct

whether fraud intended or not, or whether

of defendant. Jarrot v. Kuker \[S. C.\] 59

it existed at time conveyance delivered.

SE 533.

In such case courts of equity do not enforce

**77**. One who procures the execution of an

the trust in violation of statute of frauds

option to himself which it was agreed should

but relief granted as based on constructive

be executed to him and another will be con-

fared and the confidential relation. Cardiff

sidered, the trustee of the other to the ex-

vent of his interest. Russell v. Wade \[N. C.\]

trustee under ded for benefit of creditors

59 SE 345.

took no personal beneficial interest in the

78. Where one, through the influence of

estimate conveyed the rule governing transac-

confidential relations acquires titte to prop-

tions between parties occupying relation

of condfences does not apply. Boddie v.

the court will impress a trust upon it.

Ward \[Ala.\] 44 S 105.

Sloan v. Macarney, 108 NYS 840. But the

principle which forbids one from holding

property acquired through a fiducary relation

forcesury was mineral and issued paton

tion does not decompose or destroy all rights

and titles thus acquired. It is that one who

acouples a fiducary relation to another

In respect to business or property, who by

the wrongful use or knowledge he obtains

through that relation, or by the betrayal of

confidence reposed in him under it, ac-

quires a titte or interest in the subject.

matter of the transaction antagonistic to

1914

TRUSTS $ 4A.

10 Cur. Law.

lied on his representations, it is no defense that he, by his grant, wronged others," but a trust will not be raised by the breach of a mere verbal promise to purchase land 10 Cur. Law. TRUSTS $ 5.\*\*

no event will the trust be impressed on property other than that obtained by the fraud,88 nor can it affect persons not in privity with the fraud.84 An actual fraudulent intention is not necessary;85 the fraud must be clearly shown.84

(SS 4) \_B. Trusts by equitable construction in the absence of fraud.\_See s C. L. 2179 The rule that equity will charge with a constructive trust one who takes, however innocently, the property of another, applies no less to judicial than private sales,87 and though a trust will not be impressed upon what appears by deed alone to be an absolute title, without clear proof showing a beneficial interest in another, as well as its nature, character, and extent,88 where it appears that one has acquired title to property to which another has the better right, a court of equity will convert him into a trustee of the true owner.89 Hence, a trust will be impressed on a patent,90 on property taken under agreement to satisfy owner's obligations,91 on lands sold for delinquent taxes and redeemed,92 on lands held by vendor for vendee,93 on lands in possession of parties whose rights were recognized,94 on land conveyed by father to son with a verbal agreement that upon the former's death the property will be conveyed to his daughters,95 and a husband holding property belonging to his wife's separate estate is presumed a trustee.95 If the grantor was mentally weak, the burden to show his capacity and the fairness of the transaction is on defendant.97 No trust will be impressed on property purchased by life tenant with funds in his possession as such,98 nor will a mother, who purchases from bidder at foreclosure sale of her husband's lands, be held an involuntary trustee for her children,99 nor will a mere overdraft by one member of a partnership, in the absence of fraud, impress property purchased with a trust in favor of the remaining partners.1

SS 5. \_Resulting trusts.\_See s C. L. 2180-A resulting trust, is not within the statute of duty arising from a fiducary relation on the part of those securing the probate of the will. Forgery of the will, is no ground upon which to found the trust, as this could have been set up in the probate court.

sould to the state at shelriffs sale, and, in Tracy v. Mufir, 151 Cal. 363, 90 P 832.

82, Trustees of volt trust concealed facts fund, redeemed it in his own name, took from probate court, and under its order sham sale had and decree of distribution to themselves, equitable relief granted. Campbell: Kanannanakoa v. Campbell \[Cal.\] 92 P 184.

83, WHERE agreement relativ to convey-ance of real estate is executed by one and executory on part of other, latter holds his interest by operation of law, in trust for former in accordance with terms of contract Rogers v. Penobscot Min. Co. \[C. C. A.\] 154 F 606.

84. To place a son in possession, after making a deed which was never delivered, and on his death, recognize the right of his children to the land, allowing their guardian to control it will constitute the father a constructive trustee. Cyrus v. Holbrook \[Ky.\] 106 SW 300.

01. Hill v. Simpson, 230 Ill. 170, 82 NE 588.

01. The question in such cases ls whether the evidence of the transaction and its surrounding circumstances clearly shows the intention of the wife to change the status of the property. Title Ins. & Trust Co. v. Ingersoll \[Cal.\] 94 P 94.

01. Sloan v. Macartney, 108 NYS 840; Gick v. Stumpf, 110 NYS 712.

01. Vanatta v. Carr, 229 Ill. 47, 82 NE 267.

01. Williams v. Nierenberg \[N. D.\] 115 NWV 510.

01. Stone v. Baldwin, 127 Ill. App. 563.

of frauds,2 and unless abolished by statute,3 arises by operation of law, where the consideration is paid by one and the title is conveyed to another,4 and this is true, although the title be taken in the name of another than the purchaser.5 But to have this effect, the conveyance must be so taken without the knowledge of the party furnishing the consideration,6 and it will be presumed the trustee took the title in his own name without such knowledge.7 The trust arises, if at all, at the very time the legal title passes.8 It goes only to the extent of the consideration paid,9 nor

Footnote 2: Reemsnyder v. Reemsnyder, 75 Kan. v. Wright \[Ala\_\] 46 S 473. Where the tes-655, 89 P 1014.

3. It is provided by statute in some juris-dictions that no use or trust shall result in favor of the person making payment. Wip-Her v. Wippler \[Michel 15 Det. Leg. N. 341, 115 Nvp 544. Where trusts of this character have been abolished, the party furnishing the consideration may recover it on the im-plied promise raised by law. Brooks v. Brooks, 31 Ky. L. R. 969, 104 SV 392.

1. Butts v. Cooper \[Ala\_\] 44 S 616. The trust results by presumption of law, and without any agreement. Casciola v. Donn-stelli, 218 Pa. 624, 67 A 901; De Roboam v. Schmidtlin \[Or.\] 92 P 1082. A resulting trust arises in favor of one who pays the purchase money and takes title in the name of another, because of the presumption that he who pays intends a beneficial interest in the thing purchased for himself, but this presumption cannot arise when a contrary intent appears. Bell v. Edwards \[S. C.\] 59 SE 535. That, when it is shown that a party pays his money for land, but takes the ded in the name of another a trust results, is no longer a subject of doubt. John s v. Carroll \[Md.\] 69 A 36. Property purchased with the separate estate of a wife will be impressed with a trust. Hudson v. Wright, 204 Mo., 412, 103 SW 8. A trust results where a debtor, to secure a loan, purchases and has the conveyance made to his creditor. When the debt is paid the trust is enforceible. Hall v. O'Connell \[Or.\] 95 P 717. A trust results on recovery by grante of damages reserved by grantor. On con-vayance granted reserved right to damages to property conveyed by railroad company, said damages having been recovered by grante after conveyance. Wetherness v. Seiferd, 56 Misc. 356, 106 NYS 901. Where the weight of evidence indicates that gifts of money were intended to be for the use and enjoyment of two persons, and it is invested in real property and the title taken in the name of one of them, and their con-duct at the time and for a period thereafter indicates that the ownership of the property was regarded by both of them as joint, a resulting trust will be implied which may be established by parol. Coolidge v. Smith, 5 Ohio N. P. (N. S.) 481. A railroad company furnishing consideration for land for use by it, the legal title taken in another and to be conveyed to it whene of the can it arise at all unless the claimant has furnished in some form \[10\] the entire consideration,\[11\] though he need not have paid it all.\[12\] The rule that it must be paid in full at the time the title vested \[18\] is not inflexible,\[14\] or general,\[18\] and it will be presumed he furnished it,\[10\] nor will he be debarred from testifying as to his intentions when he gave the money.\[17\] The trust cannot arise if the money was loaned,\[18\] or the purchase made for claimant's benefit, or on his account.\[19\] Though the cestui que trust has an equitable estate in the land which may be dealt with as property,\[20\] the right to call upon another to execute the trust is a mere right and not an estate,\[21\] nor can relief be obtained upon a statutory bill merely.\[21\]

_Presumption of gift or advancement.See & C. L. 2182--When the deed is taken in the name of one whom the person paying the purchase money is under a legal or moral duty to provide for, the presumption is that the purchase was intended as an advancement or settlement.\[28\]_

\_Establishment.See & C. L. 2185--While resulting trusts may be shown by parol \[24\] and even established by the evidence of claimant,\[28\] the burden of doing so is on such claimant \[26\] and is not successfully borne by the introduction of vague and unsatisfactory evidence,\[27\] but, on the contrary, the evidence must be clear,\[28\] strong, unequivocal and unmistakable,\[29\] satisfactory \[30\] and convincing \[31\] beyond doubt.\[22\] Any

894: Bell v. Edwards \[S. C.\] 59 SE 535.

Purchase by guardian with joint funds of herself and wards, trust resulted to extent of ward's funds used. Hix v. Armstrong

\[Tex. Civ. App.\] 108 SW 797.

10. The purchase money, or some definite portion of it, should be paid at the time of conveyance in some form or other. A common understanding that though debt contracted was to be regarded as claimant's debt, upon paying which certain rights were to arise to him in reference to the land, is not sufficient. Crawford v. Crawford, 77

S. C. 205, 57 SE 837. It is indispensable to the establishment of a trust that payment of the purchase price should actually be made by the person asserting the trust, or a binding obligation therefor incurred by him as part of the original transaction at or before the time of conveyance. Payment

- at a subsequent time is not sufflement. De Roboam v. Schmidtin \[Orl.\] 92 P 108. The consideration may be a bond or mortage. Cascola v. Donatelli, 218 Pa. 624, 67 A 901.

**11. Storm v. McGrover, 189 N. Y. 568, 82 NE 160.**

**12. Freeman v. Freeman \[C. C. A.\] 153 F 387.**

\*\*13. A subsequent payment of the purchase money notes is not sufficient. Allen v. Allen

\[Tex.\] 107 SW 528.\*\*

**14. The rule that payment of money by the cestui que trust at the time of the purchase is indispensable to the creation of a trust does not apply to a truste who already had in himself the title to property of the cestui que trust, which it had been agreed should be sold and the proceeds invested in other property. Coolidge v. Smith, 5 Ohio N. P. (N. S.) 481.**

\*\*15. The consideration need not have been paid by claimant at the precise time the deed was executed. Freeman v. Freeman

\[C, C. A.\] 153 F 387.\*\*

**16. Stambaugh v. Lung, 222 Ill. 873, 83 NE 922.**

**17. Bertelsen v. Bertelsen \[Cal. App.\] 94 P 80.**

**18. Stambaugh v. Lung, 222 Ill. 873, 83 NE 922.**

**19. Where purchase is made by one with his own money and title taken in his own \[Tex. Civ. App.\] 108 SW 797.**

\*\*10. The purchase money, or some definite portion of it, should be paid at the time of conveyance in some form or other. A common understanding that though debt contracted was to be regarded as claimant's debt, upon paying which certain rights were to arise to him in reference to the land, is not sufficient. Crawford v. Crawford, 77

S. C. 205, 57 SE 837. It is indispensable to the establishment of a trust that payment of the purchase price should actually be made by the person asserting the trust, or a binding obligation therefor incurred by him as part of the original transaction at or before the time of conveyance. Payment

- at a subsequent time is not sufflement. De Roboam v. Schmidtin \[Orl.\] 92 P 108. The consideration may be a bond or mortage. Cascola v. Donatelli, 218 Pa. 624, 67 A 901.

**11. Storm v. McGrover, 189 N. Y. 568, 82 NE 160.**

**12. Freeman v. Freeman \[C. C. A.\] 153 F 387.**

\*\*13. A subsequent payment of the purchase money notes is not sufficient. Allen v. Allen

\[Tex.\] 107 SW 528.\*\*

\*\*14. The rule that payment of money by the cestui que trust at the time of the purchase is indispensable to the creation of a trust does not apply to a truste who already had in himself the title to 1918

TRUSTS $ 6. 10 Cur. Law.

legal evidence is admissible, \[88\] and, hence, declarations and conduct of the parties, \[84\] or whatever occurs at time of the purchase relating to the payment of the consideration by the claimant, may be testified to, \[85\] and a written agreement between the parties may disprove the existence of the trust. \[86\]

SS 6. _The beneficiary. Who may be, \[86\] & C. L. 2183--A slave could not be a beneficiary. \[87\]_

_His estate, rights, and interests._\[88\] & C. L. 2183--The rights of the parties to declaration of trust are determined by its terms. \[88\] The beneficiary is not bound by the declaration in the absence of his assent, \[39\] though an acceptance of its benefits may be presumed. \[40\] His rights acorue when the instrument is delivered, \[41\] in the absence of a manifested intent to postpone the enjoyment. \[42\] His interest immediately rests, \[43\] placing in him a legal estate in the property as against all persons except the trustee. \[44\] Where a bequest amounts merely to a dry trust, the beneficiary is entitled to the

Lowry v. Tfty \[N. J. Err. & App.\] $9 A 172. \[ forced as an agreement for sale. Osthefmer Where evidence is doubtful, and not entirely clear and satisfactory, or is capable of reasonable explanation upon theories other than that of the existence of resulting trust, such trust will not be held sufficiently established. Stambaugh v. Lung, 232 Ill. \[87\], $3, 82 NEC 922. \[88\]. In such a case the degree of proof required is, perhaps, exhausted by reason of the latitude allowed in admitting evidence to prove fraud. Scott v. White \[Or.\] $1 F 487. \[88\].

10 Cur. Law. TRUSTS $ 6. 1919

legacy free from any trust,"45 nor does he dispose of his interest by accepting a personal bond of the owner.46

_The statute of uses_, when the trustee has no duty to perform, operates to vest the title in the cestui que trust,47 and the object in executing the use is to free the estate from the control of the trustee, and this cannot be effected by a mere substitution.48 A deed to one person for the use of another, vesting the equitable title in the cestui que trust and the legal title in the trustee, creates a trust which is not executed in the former by the statute of uses.49

\_Rights between beneficiaries.\_See $ c. L. 2184--As between life tenant and remain-dermen, stock dividends are income and belong to the former.50 One beneficiary is liable to the others for her proportional share of expenses assumed in their declaration of trust, if she asserted to such declaration.81 The statute of limitations does not begin to run till the beneficiary's death.82

\_Income and principal.\_See $ c. L. 2184--On the death of the beneficiary, the income accrued will be paid in accordance with the intent of the settlor,88 and if the trustee is required to pay it pendente lite, it must be subject to the legal consequences flowing therefrom.84 The beneficiary cannot assign his interest in an income,88 nor the principal, especially when precluded by decree of court,89 nor can he assign the bond and mortgage securing his interest in the trust estate.87

\_Rights of creditors, and grantees.\_See $ c. L. 2185--Creditor's cannot subject a trust fund set aside for the personal support of a beneficiary,88 nor the principal or income of a spendthrift trust fund,89 nor is the cestui que trust liable for money advanced by third persons to trustee with which to pay taxes,89 and while a beneficial vested interest in his income,81 and the income reserved to the settlor, may be reached, the principal cannot.82 Where there is but one beneficiary,89 or, where the power to sell for his own benefit is given absolutely to one of the beneficiaries, a sale by him will pass title, though the purchaser be such beneficiary.84

Footnote 89: The term "Rights of creditors" is the term "Rights of cred
Liability of beneficiary for use of funds.See C. L. 2188.--A beneficiary, taking part of the trust fund into his possession, is liable therefor to the remainderman, \[88\] but the inventory is not evidence against him. \[88\]

Application of statute of limitations to beneficiaries.--Whenever the trustees holding the legal title is barred, their cestuis que trustent are barred also. \[87\]

S. 7. The trustee. Judicial appointment.See C. L. 2187.--As a trust should not fail for want of a trustee, \[88\] a beneficiary having an interest in the source of his income may apply for the appointment of a trustee therefor, \[88\] but the court cannot appoint a trustee to prosecute an appeal, the trust having terminated by the death of appellant trustee. \[79\] The probate court \[71\] of any county in the state may appoint a testamentary trustee. \[72\] The rules governing them being the same as those governing guardians and the administration of estates. \[73\]

Who considered trustee.See C. L. 2187.--An executor, \[74\] or administrator de son tort, \[75\] voluntary transferee, \[76\] a vendor, or a vendee's security, \[77\] life tenant's \[78\] devise, \[79\] or one given full charge of an interest, may be considered trustees, \[80\] and acceptance may be shown by express promise or implied from silence, \[81\] or acts, \[82\]

vided that during his life dispose of the property as she might desire. Wife sold during husband's life, the grantee, on the same day, conveying to wife. Mandel v. Fidelity Trust Co. \[Ky.\] 107 SVV 775.

65. With respect to what she had taken, she became trustee do sont, and accountable with the trustee. Putnam v. Linnellon Safe Deposit Co. \[N. Y.\] 88 NE 789.

01. An inventory prepared by or for the trustee, unless acquelseed in by the beneficiary, is not evidence against him in an action for convers of trust property. Putnam v. Lincoln Safe Deposit Co. \[N. Y.\] 83 NE 789.

01. So, too, where trustees hold as tenants in common, If one is barred, his trustees are also barred. Pope v. Patterson \[S. C.\] $SE 945; Webb v. Borden, 145 N. C. 188, $SE 1083.

01. Herrick v. Low \[Mc.\] 69 A 314.

01. Benefelary, havlng mortgage on real estate to secure bond for payment of annuity, has such interest in the reality as will entitle him to trustee therefor. In re Kirshby's Wlll, 113 App. Div. 705, 100 NYS 155.

01. Hayford v. Municipal Officers of Bang- or \[Mc.\] 69 A 688.

01. In re Cary's Estate \[VL.\] 69 A 736.

01. Where a testamentary trustee has been appointed by a probate court of the county where the will creating the trust was probated, the probate court of any county of the state where such will has been admitted to record has jurisdiction to appoint a testamentary trustee under said will, provided that at the time of the application for such appointment the beneficiary of the trust is a bona fide resident of the county in which the application is made. Bonals v. Clingan, & Ohio N. P. (N. S.) 609.

01. The rules governing testamentary trusts and trustees are the same as those governing guardians and the administration of estates and the provisions of $ 5831 and $ 5836 are simply directory as to what court shall appoint such a trustee. Boals v. Clingan, & Ohio N. P. (N. S.) 609.

01. In a general sense, every executor is a trustee. In re Roach's Estate \[Or.\] 92 P 118.

01. An administrator de son tort will be considered a trustee of the property he assumes control of. Rougtell v. Strode, 12# No. App. 348, 103 SVV 510.

01. A voluntary transferee, with or with-out knowledge of the trust, may be charged as a trustee. Chamberlain v. Chamberlain \[Cal. App.\] 95 P 659.

01. The vendor, on a contract for sale and purchase, has a constructive trustee of the purchaser, and a surety of the purchaser who pays purchase-money notes and takes conveyance in his name, knowing the facts, stands in no better position than the vendor, and he will be compelled to convey on payment to him of amount of notes. Stubbs v. Pitts, &4 Ark. 160, 104 SVV 1110.

01. A widow to whom property was de- vised for life, with power of disposition "for her use and benefit," the residue at her death to be divided among the testator's children, is a quasi trustee for said children, and must answer to their charge that she has improvently and wastefully used sums in excess of the reasonable expense of her support, moved out of the state and is dis- splating the estate. Hobson v. Lower, 10 Ohio C. C. (N. S.) 328.

01. Although devises are not designated as such, they may be regarded as trustees. Clause reads: "And it is my will that upon my death my said executors forthwith enter into possession of my estate and the whole thereof, and that absolute title rest in my said executors, hereinafter named; 10 Cur. Law. TRUSTS SS 7. 1921

but, unless there is a contract to that effect, a debtor is never a trustee for his creditor.83

\_Succession and appointment.\_See 8 C. L. 2187--On the death of one trustee, the trust, powers, and duties fall to the survivor.84 Though the settlor has the right to direct methods for filling vacancies and the appointment of successors in trust,85 and the trustees, if given authority, may appoint their successors, subject to the final action of the court,86 on the death 87 or incompetency of a trustee, the court may make, an appointment,88 nor is it bound to follow the wishes of the parties.89 The executor of the last testamentary trustee may ask for the appointment of such trustee's successor,90 nor are contingent remaindermen necessary parties to the proceeding,91 and if the parties interested in the appointment proceedings appear, it is immaterial that the citation was defective.92 The appointment relates back to the inception of the trust,93 and a trustee improperly appointed will be protected.94

\_Resignation, declination, or repudiation.\_See 8 C. L. 2187--The retiring trustee need not convey the trust property to his successor,95 and the costs of his resignation will be paid by the estate.96 Failure to give bond will not operate as a declination of the trust,97 nor will a trustee be heard to repudiate the trust, if such act will work a fraud or wrong on beneficiaries.98

\_Removal.\_See 8 C. L. 2187--The power of removal must be exercised sparingly,99 hence, trustees will not be removed because they are personally interested in a company, stock of which is in their hands as such trustees,1 but they may be removed if insane.9 A motion for removal may be decided without taking proof,3 and when re moved, the trustee must pay over the principal to his successor and make good any deficit.4

SS 8. _Establishment and administration of the trust. A. Nature of trustee's title and establishment of estate.see_ 5 C. L. 2188.--The trustees have such title as is necessary to carry out the purposes of the trust,6 which is generally determined from the terms of the instrument declaring the trust * and, unless there is a provision to the contrary, they hold as joint tenants.7 A substituted trustee takes title by virtue of his appointment and not through conveyance.8

Footnote 6: The trustee is a trustee, but it cretion require it,17 and, when necessary, direct the trustees to make proper allowances to the beneficiaries \[18\] or review a division of the trust fund.10

\_Instructions to trustee. See $ C. L. 2190--\_The jurisdiction of equity to entertain bills for advice and direction is firmly established,20 and when so exercised its instructions will be directed to carrying out the intent of the settlor to the best interests of the beneficiaries.21 In such proceeding the estate should bear the expense.22

(SS 8) \_C. Management of estate and investments.\_See $ C. L. 2190--\_It is the duty of the trustee to invest the fund in the manner authorized by law 23 and directed by the settlor,24 but if power is not given to invest, and the interest of the truste estate requires such action it is the right and duty of the trustee to apply to the court for leave so to do.25 Unless given by the will or the probate court, the trustee has no power to change the investment,20 nor, if the will gives no general power of sale and re-investment, will the court imply any,27 but if it deems the investment improper, it may order it changed,28 though when this power is given by the court it is limited by the decree.20 Under some circumstances, the beneficiary has the right of election on a change of the investment,29 but such election is not necessarily binding on other

17. Life tenant, not kindly disposed toward \*

Footnote 28: In re Moorhouse's Estate, 1991, 19 beneficiaries.\[81\] It is the duty of the trustee to provide from the income a fund to protect the principal from loss through premiums on investments.\[82\]

(SS 8) _D. Creation of charges, mortgage and lease of estate_,See 8 C. L. 2191

_Leases_,See 8 C. L. 2191.--The trustee must act with fidelity,\[83\] and if the power to do so is given, he may lease for any number of years,\[84\] but what is a reasonable term must depend on circumstances.\[85\]

_Mortgages_,See 8 C. L. 2191.--In the face of an express prohibition against incumbrance, a power to sell does not carry power to mortgage.\[86\]

(SS 8) _E. Sale of property_,See 8 C. L. 2192.--A conditional sale should not be made,\[87\] and though a power of sale may be implied\[88\] or read from the terms of the entire instrument,\[89\] it does not exist unless granted.\[90\] The power should not be exercised against the objection of a beneficiary who is sui juris,\[81\] A court of equity may order a sale of the land,\[42\] even though it lies beyond its jurisdiction,\[48\] but in a

**31. Where the income of a trust fund is**

**nance of the beneficiaries, hereby visiting**

**bequeathed to a legate, her share at her**

**and clothing him as such trustee with full**

**death to go to her surviving children, such**

**offee, whenever he shall deem the interests**

**children are not, after the death of the**

**part or portion of the estate, and reinvest it**

**of changes in the investment of the trust**

**for the benefit and use of the beneficiaries,**

**fund which prove injurious to them. Brown**

**at his discretion, subject to use and limita**

**to before specified. I further give him full**

**32. Dexter v. Watson, 54 Misc. 484, 106**

**NYS 80.**

**33. In leasing property, the trustee must act with equal fidelity toward the remain-dermen and those entitled to the rents. In**

**tre Hubbell Trust \[Iowa\] 113 NYW 512.**

**34. The terms, however, should be reasonable, and essential to proper care and in-come;**

**not be so authorized. A deed from such succome; nor should lease extend beyond term**

**of trust, unless reasonably necessary to ef-**

**fectuate its purposes. But if lease extends**

**unreasonably beyond period of trust, the excess only will be void. In**

**re Hubbell Trust \[Iowa\] 113 NYW 512.**

**35. What is the character of property, use to be made of it, income to be derived, local**

**customs in renting, and the improvements**

**contracted. A lease, however, which extends many years after termination of trust**

**is unreasonable. In**
**re Hubbell Trust \[Iowa\] 113 NYW 512.**

**36. Kenworthy v. Equitable Trust Co., 218**

**Pa, 286, 67 A 469.**

**87. A conditional sale should not be made**

**unless it clearly appears that the interests**

**of the beneficiaries will be promoted thereby. Smith v. White \[Va.\] 69 SE 480.**

**88. Clark v. Fleischman \[Neb.\] 116 NYW 290. Direction to divide estate into four equal parts and put each share out inter-est, and pay over interest and dividends, dis-**

**closes clear intention that real estate should be sold. Casselman v. McCooley \[N. J. Eq.\] 67 A 436.**

**39. Hence, under a provision that trustee**

**"shall have power from time to time, when it shall be deemed for the best interests of**

**my estate to sell any part or parts thereof for the improvement and benefit of remain-**

**der," trustee has power to sell when such condition arises. Beach v. Beers \[Conn.\] 68 A 990. Will provided: For purpose of man-aging and preserving property beoutheached, a named person is appointed trustee to man-age and control the property and also as**

**tstamentary guardian to superintend, control, and direct the education and mainte-**

**the benefits**

**of the benefits**

**whence of the benefits**

- 10 Cur. Law. **TRUSTS SS 8F**. 1925

proper case will postpone it till an accounting is had.\[44\] The power must be exercised as directed,\[45\] but a sale may be valid though made after the time specified.\[45\] On the death of the trustee having power to sell, no valid sale can be had till the appointment of another,\[47\] nor has such other the power unless his predecessor had it,\[45\] nor even then if a personal confidence was exposed in the original trustee.\[49\] Neither does the power of sale survive the death of the beneficiary.\[60\] Though a conveyance, passing only the trustee's individual interest, is not an execution of the power of sale,\[51\] under the power given with no limitations, he may convey a fee simple title,\[52\] divesting the contingent remainderman of all interest.\[53\] Whether or not there was a sale is a question of fact.\[54\]

(SS 8) \_F. Payments or surrender to beneficiary.\_See s C. L. 2194. Though the beneficiary cannot be compelled to accept the benefits of the trust,\[58\] it is the duty of the trustee to turn over to those entitled the trust fund, on settlement of his final account,\[58\] or upon termination of the trust,\[57\] but, though it cannot be exercised to delay it beyond a reasonable time,\[58\] in the absence of a provision as to the time of payment, the trustee must exercise a reasonable discretion.\[59\] Payment to the beneficiary of income from bonds may be governed by the nature of the bonds and the circumstances,\[60\]

trust located in another county of the state. Boals v. Cliagan, 6 Ohio N. P. (N. S.) 609.

- 44 Where accounting and sale of property are required, settlement of account and determination of rights of parties in the property under interlocuency decree before final decree of sale made is preferable in ordinary cases to decree of sale before accounting, be cause, in that way parties may have benefit
- 45 If the power of sale exists for the purpose of paying legacies, it cannot be made to pay debts, except under decree of court. Humphrey v. Hindall, 233 Ill. 185, 84 NEE
- 203 Testator's wife named as executrix, with another, but she only qualifying. Sale directed to be made with wife's consent, which was to be set forth and appear, and that she had to sign conveyance and acknowledgement of execution, as executrix. She, alone, could not sell. Hilton v. Sowenfeld, 63 Misc.
- 46 Graham v. Ackerly, 120 App. Div. 430, 105 NYS 61.
- 47 The power does not pass to a substituted administrator cum testamento annex. Casselman v. McCooley \[N. J. Eq. 1\] 67 A 48.
- 48 Dexter v. Watson, 54 Misc. 484, 106 NYS
- 49 Unless a personal confidence is reposed, when the question to be determined in each case is as to the list which the donor of the power intended should be deterministic as to its exercise. Creation of trust for payment of income; trustee given power to apply to use of beneficiary such of capital as they might deem advisable. No condition suggested as criterion by which their discretion was to be controlled. Substitute trustee had no power of sale. Smith v. Floyd, 108 NYS 775.
- 50 If the corpus is not disposed of, the

**SS 9.**\_Liability of trustee to estate and third person.\_See 8 C. L. 2194--In the absence of a clear and unequivocal statement to that effect, a trustee is not exempt from liability,**41** but if there is no negligence or mismanagement on his part, he will not be charged with a personal liability,**42** and it may be presumed that a deceased trustee owed the estate nothing.**43** Yet he must have sole warrant or authority to pay out trust funds,**44** and he may be held liable for breach of trust though his act was sanctioned by the beneficiary.**45** If he loans money without due security, he is liable in case of loss by insolvency,**46** or, he is liable to third persons for money wrongfully paid him as such,**47** or he may be personally liable for negligent injury,**48** and where the breach of trust is participated in by more than one trustee, the liability is both joint and several.**49** The measure of damages for breach may be the amount actually lost to the estate or gained by the trustee,**40** and in jurisdictions where a parol trust is not enforceable, the grantor on its repudiation may recover the value of the estate conveyed,**41** but a surviving trustee's liability is the estate which remains in his hands intact on the death of his cotrustee.**42** Death, however, operates at law to discharge the trustee's estate from responsibility, but a liability in equity at once attaches, available to the parties directly in interest.**45**

**SS 10.**\_Liability on trustee's bond.\_See 8 C. L. 2194--In an action on his bond, the trustee is, as a general rule, chargeable with the amount of the inventory and ap-prasment filed in the trust.**45**

**SS 11.**\_Personal dealings with estate.\_See 8 C. L. 2194--Under some circumstances, the trustee may buy directly from the beneficiary,**45** and a gift by beneficiary to the

he may properly retain, as a part of the trust estate, and such bends, either at the time of, or after the testator's death, are at a premium, it is the duty of the trustee to pay the entire income to the life tenants, without any deduction to meet depreciation of his breach of trust. In re Estate of premium, unless a different intention of the testator may properly be gathered from the language of the will. In re Connecticut Trust & Safe Deposit Co. \[Conn.\] 69 A 360. **61.**\_Babbit .\*\*\_Fidelity Trust Co. \[N. J. Eq.\] 66 A 1076. **62.** In re Froelch's Estate, 122 App. Div. 440, 107 NYS 173: In re Mensler's Estate, 54 Misc. 188, 105 NYS 925. While the fund is kept intact as a trust fund, the trustee is not liable if he exercise the care of a prudent and diligent man. If the fund is deposited to the personal credit of the trustee, the beneficiary may treat it as property of trustee and hold him personally. Baughman v. Lowe \[Ind. App.\] 82 NE 255. **63.** It will be presumed that a deceased trustee owed the estate nothing from the facts that no demand was ever made on his estate by his cotrustees, and that no part of the trust fund went into his hands. The fact that no fund came into his hands will not exempt his estate if it was from neglect of duty that none did so and loss befell the trust estate in consequence. In re Graham's Estate, 218 Pa. 344, 67 A 468. **64.** A trustee paying a note not a renewal of any_note existing at the time of making declaration of trust, and not contemplated by it, must either be surcharged with such payment, or must, as between the parties thereto, charge the same against the distributive share of him who was benefited by the payment. Babbitt v. Fidelity Trust Co. \[N. J. Eq.\] 66 A 1076. **65.** Where the evidence compels the betrustee of trust property is not voidable at the beneficiary's e'ecretion." The general rule is, however, that he will continue to hold under the trust," but, while a purchase by the trustee of the trust property at public sale is presumed to be for the benefit of the trust," the court may, in a proper case, authorize him to make the purchase." A cotrusee is not liable for a devastavit by the other, if such devastavit was committed while the fund was held by such other as executor."

**SS 12.**\_Actions and controversies by and against trustees._See 8 C. L. 2106_--Though a suit at law will lie in certain cases, after the termination of the trust," generally, matters of trust are cognizable only in equity," hence, a trustee cannot be sued at law by his beneficiary," and where he dies without making settlement, and his executor fails to do so, the only remedy for the new trustees is a suit to have the trust settled," but the surviving trustees alone have the right to compel an accounting by the representative of a deceased cotrusee." Trustees, lawfully appointed, and vested with the care, control and management of the estate, are entitled to sue," and, if bound to protect the estate against illegal alienation," or, if his interests are in-scrupulous examination of all the circum-stances, that cestiu que trust intended trustee to buy, and there is a fair consideration and no fraud, no concealment, no advantage taken by trustee of information acquired by him as such. Trustee must clear the action of every shadow or suspicion. Flowers v. Flavours, 84 Ark. 557, 106 SW 549. A trustee may purchase trust property from cestiu que trust sui juris, on condition that latter intends that former shall buy, that former disclose to latter before contract made, every fact he has learned in his fiduciary relation which is material to sale, that he exercise utmost good faith, that no advantage be taken by misrepresentation, concealment of, or omission to disclose, important information gained as trustee, and that entire transaction is fair and open. This condition is inexorable. If not compelled with cestiu qui trust may avoid sale. Hence, trustee, residing in Arkansas, to hold and sell lands situated there and in Texas for himself and cestiu qui trust in Massachusetts, solid right of way to railroad for 8725, and without disclosing facts bought interest of cestiu qui trust for 87,500. Sale void. Byrne v. Jones \[C. C. A.1 159 F 821.

**76.** It may only be set aside for fraud, undue influence, or unfairness. The burden of proof is on trustee to show transaction was free and fair. But this rule as to the burden of proof does not apply after a considerable delay. Anderson v. Fry, 123 App. Div. 46, 107 NYS 916.

**77.** When a trustee deals with the beneficiary, he is in the same position as to that matter as if it were put in his hands as such by a third person. Benefelary sold horse, not included in trust fund, to trustee, who d1d not pay money, but held it as trustee. Estate of trustee liable for price with interest thereon. Boreing v. Faris, 31 Ky. L. R. R. 1265, 104 SWV 1022; Stark v. Love \[Ao. App.\] 106 SWV 87. And this may be true, although the title may have been acquired in proceedings unassailable at law or in equity. Terrell v. Eagle \[Ark.\] 107 SWV 670. When trustee mingles his own funds with the trust funds, the burden is on him to show clearly the amount for which he is entitled to credit. Vanatta v. Carr, 229 Ill. 47, 82 NE 267. The trustee of trust property is not voidable at the beneficiary's e'ecretion." The general rule is, however, that he will continue to hold under the trust," but, while a purchase by the trustee of the trust property at public sale is presumed to be for the benefit of the trust," the court may, in a proper case, authorize him to make the purchase." A cotrusee is not liable for a devastavit by the other, if such devastavit was committed while the fund was held by such other as executor."

**SS 12.**\_Actions and controversies by and against trustees._See 8 C. L. 2106_--Though a suit at law will lie in certain cases, after the termination of the trust," generally, matters of trust are cognizable only in equity," hence, a trustee cannot be sued at law by his beneficiary," and where he dies without making settlement, and his executor fails to do so, the only remedy for the new trustees is a suit to have the trust settled," but the surviving trustees alone have the right to compel an accounting by the representative of a deceased cotrusee." Trustees, lawfully appointed, and vested with the care, control and management of the estate, are entitled to sue," and, if bound to protect the estate against illegal alienation," or, if his interests are in-scrupulous examination of all the circum-stances, that cestiu que trust intended trustees one he holds in trust will be pre-set to buy, and there is a fair consideration and no fraud, no concealment, no advantage taken by trustee of information acquired by him as such. Trustee must clear the action of every shadow or suspicion. Flowers v. Flavours v.

1928 TRUSTS $ 13. 10 Cur. Law. ,

juriously affected as to his own share of the estate, may appeal from the judgment or decree. \[88\]

SS 13. _Compensation and expenses._ _Commissions and salary._ See $ C. L. 2188. The discretion of the court in the matter of compensation is unfettered by statute, \[88\] and, where not waived, \[90\] is based upon the nature and amount of services rendered and the risk incurred by the trustee. \[91\] Hence, the court may allow a commission in excess of the legal rate, \[92\] or will allow commissions on securities accepted as cash, \[93\] and may give a deceased trustee's estate full commissions, though the fund was not paid out by him, \[54\] or will allow them on the value of the personal property contained in the fund, but it will not allow any on the value of the real estate included in such fund. \[94\] In no event may the trustee have more commissions on principal than is fixed by the court, \[95\] nor will be be allowed them unless he has settled annually, \[97\] nor if he has been guilty of fraud or misconduct in the management of his trust. \[98\] Whether double commissions will be allowed depends on circumstances, \[99\] but a salary, in addition to the compensation provided for, will not be allowed, unless the duties performed were outside those imposed. \[1\]

\_- Attorney's fees. \[88\]\_C. L. 2157.-The allowance of attorney's fees is within the discretion of the court, \[2\] and will be ordered in a proper case, \[3\] but no interest will be given on money so paid. \[4\]

appeal. Stringer v. Young, 190 N. T. 545, 83 NE 690. 88. Though a trustee cannot act contrary to the interests of his trust, a trustee and executor, whose share is indiviously affected by an order, may appeal from such order in his individual capacity, the cestuis que trustent having employed his own counsel and the estate not yet settled. Boyce v. McLeod \[Xd.\] $ A 135. 88. Babbitt v. Fidelity Trust Co. \[N. J. Eq. 1\] 66 A 1076. 90. Where trustee pays to beneficiary for eighteen years the whole of the income, retaining no commissions, he loses them. \[30\]. Whether or not the duties of executor and Dicott v. Baldwin, 190 N. T. 99, 82 NE 748. 91. Where estate was, very large, and varied, and was in trustee's hands about nine years, he performing unique duties, 4 per cent on principal was allowed. Babbitt v. Fidelity Trust Co. \[N. J. Eq. 1\] 66 A 1076. 92. As where the management has extended over a period of four years, calling for constant and careful attention, attended with success and profitable results to beneficiaries. In re Ashman's Estate, 218 Pa. 609, 67 A 841. 93. Where executors deliver to themselves, as trustees, securities, the amount of value of which constitutes the principal of trust fund, they assume a new position with distinct duties and responsibilities, and commissions are allowed for receiving and paying out same as prime!, Dicott v. Baldwin, 190 N. T. 99, 82 NE 748. 94. As commissions are allowed for care and management of estate, and as executor will have fund to pay out on decease of trustee, full commissions allowed. In re Wilcox, 190 NYS 564. 95. In re Hunt, 121 App. Div. 96, 105 NYS 696. 96. Babbitt v. Fidelity Trust Co. \[N. J. Eq. 1\] 66 A 1076. 97. Where the trustee has not been accepted and settled his account. \[30\]. 98. Comingor v. Louisville Trust Co. \[Xy.\] 108 SW 950. 99. To emtitle a person acting as trustee and executor to double commissions, he must have actually entered on his duties as trustee. Dicott v. Baldwin, 190 N. T. 99, 82 NE 748. An accounting and transfer is best evidence that duties of one has ended and duties of other begun. \[1\]. Whether double commissions will be allowed depends on whether or not the duties of executor and Dicott v. Baldwin, 190 N. T. 99, 82 NE 748. 91. Where estate was, very large, and varied, and was in trustee's hands about nine years, he performing unique duties, 4 per cent on principal was allowed. Babbitt v. Fidelity Trust Co. \[N. J. Eq. 1\] 66 A 1076. 92. As where the management has extended over a period of four years, calling for constant and careful attention, attended with success and profitable results to beneficiaries. In re Ashman's Estate, 218 Pa. 609, 67 A 841. 93. Where executors deliver to themselves, as trustees, securities, the amount of value of which constitutes the principal of trust fund, they assume a new position with distinct duties and responsibilities, and commissions are allowed for receiving and paying out same as prime!, Dicott v. Baldwin, 190 N. T. 99, 82 NE 748. 94. As commissions are allowed for care and management of estate, and as executor will have fund to pay out on decease of trustee, full commissions allowed. In re Wilcox, 190 NYS 564. 95. In re Hunt, 121 App. Div. 96, 105 NYS 696. 96. Babbitt v. Fidelity Trust Co.

**10** Cur. Law. TRUSTS **SS 14.**

\_Expenses.\_See **& C. L. 1917.**--Usual costs and disbursements should be allowed.\*\*${}^{\\bullet}$

SS 14. \_Accounting, distribution, and discharge.\_See **& C. L. 2198.**--An action for accounting, one of the objects of which is, that the property be divided and distributed,\*\*${}^{\\bullet}$

**is the proper remedy to reach a share of trust funds in the hands of a trustee.**${}^{\\bullet}$

**The courts will hold trustees to a rigid fulfillment of their duties as such,**${}^{\\bullet}$

**but before the right to an accounting exists there must be a trust relation,**${}^{\\bullet}$

**and it must appear that the cestui que trust has not been paid in full.**${}^{\\bullet}$

\_Jurisdiction of accounting and distribution.\_See **& C. L. 2198.**--The courts of equity **${}^{\\bullet}$**${}^{\\bullet}$

**of the trustee's domicile,**${}^{\\bullet}$

**such as courts of probate,**${}^{\\bullet}$

**the surrogate's court,**${}^{\\bullet}$

**and supreme court,**${}^{\\bullet}$

**have jurisdiction of trustees' accounting, unless the right of action is lost by laches or the statute of limitations.**${}^{\\bullet}$

_Credits and charges._${}^{\\bullet}$

**On the accounting, the trustee may be credited with commissions paid real estate agents**${}^{\\bullet}$

**advances made to protect one of the beneficiaries**${}^{\\bullet}$

**expense of maintaining them from his own means,**${}^{\\bullet}$

**and a claim for money**

**the costs. Harris v. Harris, 5 Ohio N. P. (N. S.) 289.**

**4. Wehrenberg v. Seifert, 56 Misc. 356, 106**

**NYS 901.**

**5. In re Hunt, 121 App. Div. 96, 105 NYS 698.**${}^{\\bullet}$

**5. Where a trustee uses his own funds for the purposes of a trust, he is entitled to reimbursement. American Bonding Co. v. State, 40 Ind. App. 561, 82 NE 548.**${}^{\\bullet}$

**the** costs.\*\*${}^{\\bullet}$

**the** costs. Harris v. Harris, 5 Ohio N. P. (N. S.) 289.\*\*

**4. Wehrenberg v. Seifert, 56 Misc. 356, 106**

**NYS 901.**

**5. In re Hunt, 121 App. Div. 96, 105 NYS 698.**${}^{\\bullet}$

**the** outcomes. Where a trustee uses his own funds for the purposes of a trust, he is entitled to reimbursement. American Bonding Co. v. State, 40 Ind. App. 561, 82 NE 548.\*\*${}^{\\bullet}$

**the** outcomes. If the\*\* outcomes. If the\*\* outcomes.

paid by life tenant for the benefit of the estate, and assigned to him," but he cannot have credit for a loss sustained in making an investment,"22 nor for personal services in the support of beneficiary,"28 and, in the absence of an accurate account, and doubt as to how the account in truth stands, equity will give him no relief against the cestui que trust.24, 25 The trustee must account for what he received,"28 but will be charged with interest only when the circumstances of the case render it right and just to do so.27 Whether he will be charged with depreciation in the value of securities may depend on circumstances.28 General charges of the trustee cannot be, on the mere option of either party, appropriated to any one particular class of income.29

\_Procedure.\_See s C. L. 2190--In an action for accounting, the auditor's jurisdiction is confined to the account he is directed to audit,30 and the presumption is that the trustee did his duty,31 but the burden is not on those claiming cestui que trust's interest to- show the money was invested in a particular way,32 nor is the plaintiff required to allege or prove fraud.33 Though, in some cases, the beneficiary may sue for an accounting,34 all interested are necessary parties.35

\_Decree.\_See s C. L. 2190--The decree should be definite and complete.36

_Costs See s C. L. 1290 of a master's report should not be taxed until it has come in.37_

SS 15. \_Establishment and enforcement of trust and remedies of beneficiary. A. Express trusts.\_See s C. L. 2200--A court of equity is the proper tribunal to determine whether property is held in trust 38 and to enforce the same,39 even though the

**21. Beach v. Beers \[Conn.\] 68 A 990.**

**22. Investment before termination of trust, and sale afterwards. In re Murray, 108 NYS 1047.**

**23. Son, made trustee, with beneficiaries resided on settiors farm. Beneficiaries supported by farm, of which son was manager. Not entitled to credit for personal services. Albert v. Sanford, 201 Mo. 117, 99 SSV 1068.**

**24, 25. Potter v. Porter \[Ky.\] 109 SSV 34.**

**26. Deed of trust reeldiery of certian bonds to trustee, for the purpose of seuring the payment of which the conveyance was made, "it being understood that said bonds are given for the purpose of a sale of them so as to realize the money" for the grantors. He died that trustee was required to account for full amount realized from sale of bonds. Garth v. State Street Baptist Church, 29 Ky. L. R. 1176, 96 SWP 1124.**

**27. Albert v. Sanford, 201 Mo. 117, 99 SWP 168.**

**28. That trustee commingled his money with the trust fund does not show a dereletion of duty. In re Menzle's Ekstate, 54 Misc. 188, 106 NYS 925. Will gave discretion as to investments, and did not impose duty of providing sinking fund to rethurse principal for premiums paid in purchase of other securities. In re Hawk's Ekstate, 54 Misc. 187, 105 NYS 856. Trustee, a trust company should not be surcharged with difference in value where, by a scheme to obtain control of the company issuing the stock, it was made to depreciate in value, it not being chargeable to the trustee that he should have known this would be the result. But said trustee should be surcharged if the stock was such as he was not authorized to hold under the law. He will be chargeable with the difference between the price it sold for and the market value at time he should have sold. Babbit v. ridicity Trust Co. \[N, J. Eq.\] 66 A 1076.**

**29. Marsh v. Marsh's Ek'rs \[N. J. Eq.\] 67 A 706.**

**20. In re Ashman's Ekstate, 218 Pa. 509, 67 A 841.**

**31. Aldridge v. Aldridge \[Ky.\] 109 SWP 873.**

**32. Such parties being entitled to recover on exhibition of the will and a showing that trustee received the money. Aldridge v. Aldrideg \[Ky.\] 109 SWP 873.**

**24, 25. Potter v. Porter \[Ky.\] 109 SWP 34.**

**33. Logan v. Brown \[Okl.\] 95 P 441.**

**34. Death of testimanty trustee and no successor appointed. Benefelary may sue executive of decedent for an accounting. Fogarty v. O'Reilly, 56 Misc. 192, 107 NYS 234.**

**35. All those entitled to a share are necessary parties. Adams v. Purser, 110 NYS 167.**

**In an action against trustees for an accounting, if the right of contribution exists, all are necessary parties. People v. Equitable Life Assur. Soc., 109 NYS 458.**

**36. In the absence of written consent or showing that sale would result in loss, the decree should not merely designate the fractional shares and direct a transfer in bulk. In re Hunt, 121 App. Div. 96, 105 NYS 696.**

**37. Richmond v. Arnold \[R. I.\] 68 A 427.**

\*\*38. Sanborn v. Loud, party to be charged is but a quasi-trustee.40 Though the rule of laches applies to express trusts,41 the statute of limitations, as between trustee and cestiu que trust, does not,42 except when the demand is cognizable either at law or in equity at the election of the beneficiary,43 nor then until a breach 44 or some act on the part of the trustee which puts an end to the relation of trustee and beneficiary.45 The beneficiaries 46 or an assignee of a part interest may enforce the trust,47 and the parties alleged to hold as trustees must be before the court,48 but one who has assigned all his interest need not49

(15) B. Implied trusts generally.50 (SS 15) C. Constructive trusts.See & C. L. 2201--A beneficiary without the legal title51 may sue in equity to establish a constructive trust.52 The general rules of evidence apply,58 and the court may decree a return of the specific property.54 The statute of limitations55 which begins to run on breach 54 unless there has been fraudulent concealment of the cause of action,57 as well as laches, apply to actions of this character,58 but the latter cannot be pleaded unless defendant has suffered prejudice59 or loss thereby.50

(SS 15) D. Resulting trusts.See & C. L. 2202--Suits to enforce resulting trusts

on, although, trust being dry, he might maintain ejectment on presumption that legal title had been conveyed to him, or the rule that stranger cannot maintain his possession against superior title on mere defects in claim of opposite party. Blake V. O'Neal \[W. Va.\] 61 SE 410.

40. As where grantee of reality agrees to support grantor as a consideration and fails to do so. Nor will sale of the property offer any obstacles if it appear the proceeds can be traced and identified. Grote v. Grote, 121 App. Div. 841, 106 NYS 986.

01. Acquiescence in the acts of a trustee for thirty-three years is such laches as to defeat the action. Sprinkle v. Holton \[N. C.\] 59 SE 680. Infancy will free claimant from the charge of laches. Patrick v. Stark \[W. Va.\] 59 SE 606.

01. Ames v. Howes, 13 Idaho, 756, 92 P 35.

01. Patrick v. Stark \[W. Va.\] 59 SE 606.

01. Cause of action accreus on the trustee's breach of trust. Sprinkle v. Holton \[N. C.\] 59 SE 680.

01. The statute does not begin to run until disavowal or adversary holding. Dixon v. Dixon, 145 N. C. 46, 58 SE 604. Statute does not begin to run until by some declaration or act of the trustee an end is put to the relation of trustee and beneficiary and the latter is put to his action. Greenleaf v. Land & Lumber Co. \[N. C.\] 60 SE 424. Neither the statute of limitations nor laches apply to express trusts until and from the time the trustee regulates the truste of pun-equivocal words or acts and such repudiation is so brought to the notice of the beneficiary as to call upon him to promptly assert his equitable rights. Ruckman v. Cox \[W. Va.\] 59 SE 760.

01. Parmenter v. Homans, 109 NYS 800.

01. Rogers v. Penobscot Min. Co. \[C. C. A.\] 154 F 606.

01. Sanborn v. Loud, 150 Mich. 154, 14 Det.

Lez. N. 586, 113 NNV 309.

49. Rogers v. Penobscot Min. Co. \[C. C. A.\] 154 F 606.

01. See 4 C. L. 1755. See, also, the matter, ante and post, within this section.

01. Nor is he required to sue for damages,

mintain ejectment on presumption that legal title had been conveyed to him, or the rule that stranger cannot maintain his possession against superior title on mere defects in claim of opposite party. Blake V. O'Neal \[W. Va.\] 61 SE 410.

40. As where grantee of reality agrees to support grantor as a consideration and fails to do so. Nor will sale of the property offer any obstacles if it appear the proceeds can be traced and identified. Grote v. Grote, 121 App. Div. 841, 106 NYS 986.

01. Acquiescence in the acts of a trustee for thirty-three years is such laches as to defeat the action. Sprinkle v. Holton \[N. C.\] 59 SE 680. Infancy will free claimant from the charge of laches. Patrick v. Stark \[W. Va.\] 59 SE 606.

01. Ames v. Howes, 13 Idaho, 756, 92 P 35.

01. Patrick v. Stark \[W. Va.\] 59 SE 606.

01. Cause of action accreus on the trustee's breach of trust. Sprinkle v. Holton \[N. C.\] 59 SE 680.

01. The statute does not begin to run until disavowal or adversary holding. Dixon v. Dixon, 145 N. C. 46, 58 SE 604. Statute does not begin to run until by some declaration or act of the trustee an end is put to the relation of trustee and beneficiary.45 The beneficiaries 46 1932 TRANSIS $ 16. 10 Cur. Law. are cognizable in equity alone, \[91\] and the action may be maintained where defendant is found, \[62\] but the right may be waived \[63\] or barred \[64\] or lost by laches. \[65\]

SS 16. _Following trust property_, See $ C. L. 2203--Though to charge a third person it must be shown he knowingly benefits by the breach of_trust \[66\] and though a trust fund is not a general lien on bank assets superior to that of general creditors, \[67\] until the right is lost or the transfer ratified \[68\] the parties in interest \[69\] may follow the trust fund or its proceeds, \[70\] so long as identification can be accomplished, \[71\] but though identification does not require the identical bills or coins to be discovered, \[72\] the fund must be identified \[73\] and distinctly traced in its original or substituted form. \[74\] If the facts justify, the bill may be so amended as to claim alternate relief, \[75\]

61. Patrick v. Stark \[V. Va.\] 59 SE 608. 62. Stone v. Powikes, 29 App. D. C. 379. 63. A waiver of the right of entry and failure to take action within the statutory period will defeat the right to charge a patentee with a resulting trust. Holt v. Murphy, 28 S. Ct. 212. 64. The statute does not begin to run until knowledge that decod was taken in name of another hence purchase made by guardian, grantor, guardian's mother, claimant had no means of knowledge until he became of age. Manahan v. Holmes, 110 NYS 300. 65. Equity will not enforce a resulting trust after unreasonable delay, hence suit brought thirty-seven years after right accrued, and trust openly repudiated for fifteen years, too late. Hamilton v. Hamilton, 231 IL 128, 83 NE 125. The rule of laches will be applied to claims instituted after the death of alleged trustee and beneficiary and twenty-five or thirty years after the transaction. Williams v. Risor, 84 Ark. 61, 104 SW 547. Laches will not be imputed to the claimant, wife of trustee, where she files her claim within less than a year after trustee's death. Laughlin v. Laughlin \[Pa.\] 69 A 288. 60. To charge a third person as a party to misappropriation of a trust fund, it must be shown that he knowingly partakes in the breach of trust. Perry v. Oerman \[V. Va.\] 60 SE 604. 67. To obtain preference, claimant must show that person having charge of assets of insuclvent bank has in his hands some of the fund, or property purchased by it, or Into which such fund has been changed or invested. Hill v. Miles, 83 Ark. 486, 104 SW 198. 68. Property may be followed and reclaimed until the right to do so is lost or the transfer is ratified by the court. McCutcheon v. Roush \[Iowa\] 115 NW 903. 69. A cestiu que trust may annul a fraudulent disposition of the trust property and follow the property or its proceeds. Agne v. Schwab, 108 NYS 487. A trust fund may be followed by those interested as beneficiaries, so long as it can be identified, and may be appropriated by the court to the uses intended. Sargent v. Wood \[Mass.\] 81 NE 901. Trust funds wrongfully deposited may be recovered by the proper owner; hence county treasure wrongfully depositing taxes as general deposit in bank, bank acquires no title, as against county, and money may be recovered from receiver. Board of Con'rs of Crawford County v. Strawn \[C. C. A.\] 157 F 49. 61. Patrick v. Stark \[V. Va.\] 59 SE 608. 70. It is now well settled that as between cesium trust trust and trustee, and all parties claiming under trustee otherwise than by purchase for valuable consideration without notice, all property belonging to a trust, however much it may be changed or altered by its nature or character, and all the fruit of such property, whether in its original or altered state, continues to be subject to or affected by the trust. Hill v. Flemming \[Ky.\] 107 SW 764. 71. A trust fund may be followed and re-covered so long as it may be identified. Shpert v. Indiana Nat. Bk. \[Ind. App.\] 83 NE 151. Complaint bought lot and planned to build thereon. E sold complain-ant lot and undertook to advise and assist her. Contractor refused to sign building contract, whereupon E did so, though not a builder, but contract constructed build- \[Ing. E giving his personal attention, direct- \[Ing complaintant to make checks payable to him, E informing complaintant he, E was responsible to her, and she might rest asured he would look after everything. In accordance with instructions complainant remitted to E a few days before he died, $2,000, which he deposited in his own name, under such circumstances that it was clearly earmarked, death occurring before money disbursed. Held, complainant entitled to recover unexpended balance. Cochran v. Evans, 154 F 674. Satisfaction may be had out of a mortrage interest owned by the joint tortfeasor. Trustee abstracted $20,000 from the estate, placed the same under control of wife, who used $15,000 theret to purchase two $10,000 mortgages, paying $10,000 for one and $5,000 for the other, the remaining $5,000 being borrowed from third person. The money first mentioned, the $20,000, was turned over to her without consideration. She had no other property than the mortgages. The court 10 Cur. Law. TRUSTS SS 17. 1933

or, when the trust property cannot be followed, an action for damages will lie.76 Where neither the depositary of the fund nor depositor's representative are at fault, the claimant, on its recovery, pays the costs.77

_Bona fide purchasers See * C. L. 2205 without notice are protected.78_

SS 17. _Termination and abrogation of trust. See * C. L. 2205_.\_Though the trust continues so long as the trustee has duties to perform,78 and though the terms of the will may preclude the termination of the trust before the death of all of settlor's children,80 or, if it was created for benefit of woman's children, it will not be terminated so long as she may bear them,81 it cannot exceed the period limited for trusts which suspend the power of alienation.82 In some cases, courts of equity may dissolve trusts before the expiration of the term for which created,83 and parties without interest cannot object.84

from time to time, it will be presumed that of ownership. Warner v. Hall & Legan Lumsums thus drawn were from moneys which tort feasor had right to expend in his own business, and that balance remaining in-houseing, is suffleent to put the creditor on cloted trust fund he had no right to use. If, however, during currency of mingled ac- a trust fund. Hill v. Flemming \[Ky.\] 107 counts, the drawings out have left balance svs 764. One purchasing from a guardian less than trust money, trust money must be regarded as dissipated except as to this balance, the sums being subsequently added to account from other sources not being attributes to trust fund. The mere misappilcation of the fund does not create a general lien on tort feasor's estate. Board of Com's of Crawford County v. Strawn \[C. C. A.\] 187 F 49. The trustee is presumed to have made general payments from his own fund, hence, when moneys belonging to other persons are received and mingled in a general fund with moneys belonging to the trustee, and then such trustee pays out generally from such fund for his own purposes, there is a presumption of law that such payments are made from the moneys in said fund belonging to him, and do not constitute a wrong-ful misappropriation of the moneys of the cesutu que trust. This presumption is possible of complete effect, however, only so long as the fund is large enough to contain all the moneys of the cesutu que trust and some of the moneys of the trustee. Emigh v. Eni-ing \[VWs.\] 115 NW 128. 75. Sargent v. Wood \[Mass.\] 81 NE 901. 76. When trustee, in violation of his trust, so disposes of the trust estate that it cannot be followed, either in its original or substituted form, beneficiary may sue at law to recover damages for the breach of trust, for he is then forced to rely on personal liability of trustee and has no claim upon his estate superior to ordinary creditor. Snyder v. Farmalee, 80 Vt. 496, 68 A 849. 77. Cochran v. Evans, 154 F 674. 78. A trust fund cannot be recovered from a bona fide purchaser without notice. Shopert v. Indiana Nat. Bk. \[Ind. App.\] 83 NE 515; Macomber v. French \[Mass.\] 84 NE 528. A trust fund which is applied by a creditor to the trustee's debt without notice that it was a trust fund cannot be followed. Moreover v. Chicago, etc., R. Co., 125 Mo. App. 651, 103 SW 119. Where widow appears on face of succession records, and records dehors succession, as legal owner of land, and no equities in favor of children appear in any way, third persons buying the property from her in good faith are protected from attack of the children under claim by them.

The trustor, unless he has reserved the power to do so, cannot revoke the trust.85

Acts of the beneficiarySee & C. L. 3206. A beneficiary, having an absolute title to the remainder, not subject to be divested or to diminution, has the right to terminate the trust,88 and a conveyance by him, united in by the settlor, will extinguish it.87

Death or divorce.See & C. L. 2206. Though there are some exceptions,88 and whether or not the death of one of several beneficiaries terminates the trust may be gathered from the terms used by the settlor,88 the general rule is that on the death of the beneficiary the trust terminates,80 but the death of settlor does not terminate the trust if after that event the trustee has duties to perform,81 nor will divorce have this effect.82

Termination where purposes accomplished.88 c. L. 2206. A termination will be decreed where there is no good reason for its further continuance88 or the beneficiary has reached the age designated.84

Union of titlesSee & C. L. 2207 terminates the trusts.88

TURNIES; TORTables; ULTRA VIFES, see latest topical index.

On the expiration of the twenty years, or the trust is entirely voluntary, nor is the rule affected by the fact that the trust cannot be administered and settled until after the death of trustee. In re Podahjsky's Estimate (Iowa) 115 NWV 590.

88. Connolly, V. Connolly, 122 App. Div. 492, 107 NY8 185.

01. Trust deed made by S. M. and T. M., her husband, conveyed certain lands to M. M., one of grantor's children, upon trust to receive the rents, etc., and apply them to use of grantor, S. M., during her life, and at her death trustee empowered to sell lands and out of proceeds pay Jas., Jno. and Daniel M., sons of grantors, and their heirs and assigns, each sum of $200, and divide remainder of proceeds with her two sisters, Annie and Sarah M., daughters of grantors, and to their heirs, etc., share and share alike. T. M. having died, leaving S. M., widow, surviving, M. M., trustee, and her sister Sarah having died, unmarried and intestine, leaving their brothers, Jas., Jno. and Daniel and sister Annie as their sole heirs, held that a deed of conveyance made in lifetime of S. M., grantor, and in which she united with her sons, Jas., Jno., and Daniel and her daughter Annie, would operate to extinguish the trust and to convey an absolute title in the land to a third party. Armour v. Murray \[N. J. Law\] 68 A 164.

01. Where a remainder after a life estate is devised in trust for a person living at the death of testor, and the equitable interest thereby created is vested, the death of cesium que trust prior to termination of life estate does not defeat or terminate trust in the sense that the object of testator in creating trust has failed, and the trust property becomes instatic property of testator. Wil-Ilams v. Williams \[VWs.\] 115 NWV 342.

01. One item of 'will provided that "until the expiration of twenty years after my decease, or until the death of my daughters L., and J., whichever event shall first happen,"

01. Trust created for married woman's and separate use as protection against improvidence of husband ceased on his death, and legal estate vested in her. Wil-Ilams \[Va.\] 68 A 674. The principle is that where property is given to individuals to be used for their benefit and in such manner as no other persons have, or can have, any interest in it, they thereby become, in effect, the absolute owners of it and may exercise all of the rights belonging to them in that relation. Olsen v. Younger-man \[Iowa\] 113 NWV 938.

10 Cur Law. UNITED STATES SS 3. 1935 UNDERTAKINGS."

The chief distinction between a statutory bond and a statutory undertaking is that in the former the principal must be a party while in the latter the person on whose behalf it is executed need not join." In other respects the terms "bond" and "undertaking" may, for many purposes, be regarded as synonymous and convertible." - UNDERILUENCE; Unfair Competition; Union Depots, see latest topical index.

UNITED STATES.

$ 1. Proprietary Rights, 1935. $ 4. Claims, 1936. $ 2. Contracts, 1935. $ 5. Actions by and Against, 1936. $ 3. Offleers and Employees, 1935. .

_The scope of this topic_ is noted below."

$ 1. \_Proprietary rights.\_See $ C. L. 2207.--There can be no adverse possession as against the United States." The Federal act, providing that no land shall be purchased on account of the United States except under a law authorizing such purchase, does not apply to executed contracts so as to defeat the title of the United States to lands it has paid for.1

$ 2. \_Contracts.\_2--The usual rules of interpretation apply to contracts with the United States." The invalidity of a contract on account of noncompliance with a statute is immaterial after the contract has been performed.4

$ 3. \_Officers and employees.\_5--A Federal statute prohibits officers and employees of the United States from soliciting or receiving any political contributions from any

96. See 4 C. L. 1760. See, also, Bonds, '90. Frick v. Harper \[Ala.\] 46 S 453. C. L. 394. For the necessity and sufficiency 1. Rev. St. $ 3738 (U. S. Comp. St. 1901, p. 2507). Act authorizing a public improvement and appropriating money therefor is sufficient authority for the purchase of land 9 $ C. L. 282, and the like. necessary or proper to such improvement. $ 3. News v. U. S. \[C. C. A.\] 160 F 631. 1724, not void for lack of supplant-signa-, tracts, 10 C. L. 1385. $ 3. United States v. Hoyt, 158 F 162. De-, which provides that such undertaking shall be executed on behalf of upbellant by two superties. Russell v. Chicago, etc., R. Co. \[Mont.\] 94 P 501. Laws 1899, p. 79 entitled "An act to amend $ 1053, 1057, 1059, 1067, 1072 and 1084 * * Pol. Code * * relating to bonds of officers and other bonds," requiring that official bonds shall be executed by both principal and sureties ($ 2) and that the provision of this article shall apply to all bonds and undertating given in judicial proceedings ($ 7), is re-, pugnant to Const. art. 5, $ 23, in so far as it is construed to affect Code Civ. Proc. SS 1724, 1725 relating to undertating in appeal proceedings, for the reason that the -subjects embraced in the act are not expressed in the title. Id. 98. Russell v. Chicago, etc., R. Co. \[Mont.\] 94 P 501. 98a. Property rights in the public domain (see Public Lands, 10 C. L. 1936; Mines and Minerals, 10 C. L. 839), matters relating to territories and Federal possessions (see Terriories and Federal Possessions, 10 C. L. 1854), and matters relating to the rights, duties, and liabilities of public officers (see Offleers and Public Employees, 10 C. L. 1043), and to public contracts generally (see Public Contracts, 10 C. L. 1285), have been excluded.

1936 UNited STATES MARSHALS.

of its clerks and employees, and it also prohibits all other persons from solieiting such contributions in any room or building occupied by officers, etc.\* A distress warrant cannot be levied on a Federal officer's person after termination of his term.\*

**SS 4.**\_Claims.\_See s C. L. 2269\_\_The mere recital in an act that a claimant "had a prior lien" is not conclusive, unless it is clear that congress intended that the recital should be accepted as a fact in the case.\* Motion under Federal act for a new trial on behalf of the United States may be filed before the court of claims at any time within two years from rendition of judgment," and the court may thereafter hear and decide the case at its convenience.\*

**SS 5.**\_Actions by and against.\_See s C. L. 2269\_\_The United States in seeking the enforcement of its own rights is not barred by limitations nor by the laches of its officers.\[11\] The government's remedies, under Federal acts for the collection of internal revenue, are concurrent.\[12\]

United STATES COUTRS, see latest topical index.

United STATES MARSHALS AND commissioners.\[13\]

United States commissioners are neither judges nor courts, and although they sometimes act in a quasi judicial capacity, they do not hold court nor do they possess the power of courts except in so far as acts of congress confer the same.\[14\] They may properly grant an order to discharge a prisoner at a preliminary proceeding when commitment has completely served its purpose.\[15\] All proceedings other than by petition in bankruptcy to secure the release from arrest or imprisonment upon a writ from the Federal courts must be taken before a United States commissioner.\[16\] The act, limiting the amount of mileage recoverable by marshals and deputy marshals, limits the fees in both civil and criminal cases.\[17\] A deputy marshal is chargeable with constructive knowledge of the conditions attached to his appointment.\[18\]

UNIVERSITIES, see latest topical index.

**6.** No violation of this act (Jan. 16, 1883, c. 27, $ 11, 22 Stat. 407; U. S. Comp. St. 1901, p. 1223), by defendant to send a letter for contribution addressed to an internal revenue employee at his office in a Federal building. Defendant was not a Federal officer.

United States v. Thayer, 154 F 508.

7.\*\* Rev. St. 5365 (U. S. Comp. St. 1901, p. 2418). Writ issued against collector of revenue who had defaulted after expiration of term. Prisoners released. Ex parte Dillin, 160 F 751.

S. Act of May 27, 1902 (32 Stat. at L. 207, 243 c. 887). Congress intended that claim was to be judicially investigated and determined according to all the facts, Blacklock v. U. S., 28 S. Ct. 228.

9. Sanderson v. U. S., 28 S. Ct. 661. U. S.

Rev. St. 1888 (U. S. Comp. St. 1901, p. 145). Motion made nearly two years after judgment was entered. Id. Claims under Indian depredations act are embraced by provisions of this act. Id.

**10.** Decision nearly a year and a half after filing of motion for a new trial held in time. Sanderson v. U. S., 28 S. Ct. 661.

**11.** Execution was caused to be issued by the United States on a judgment in its favor in a purely governmental suit. Limitations and laches were pleaded. United States v. Noojin, 155 F 877.

**12.** Remedy by distraint. Act of July 13, 1866 (14 Stat. at L. 98, 107, 108, c. 184, U. S.

10 Cur. Law. USURY SS 1. 1987 UNLAWFUL ASSEDLY,"

Usagers; Use and Occupation, see latest topical index.

USES."

What constitutes active and passive uses and the execution thereof is elsewhere treated."11

USURY.

1. In General; Definitions; Elements and $ 3. The Effect of Usury, 1940.

Indelin, 1987.

2. The Defense of Usury, 1940.

Crimes, 1942.

**SS 1.**\_In general; definitions; elements and indicia.\_See $ C. L. 2211.--Usury is purely statutory, being unknown to the common law."22 Whether a particular contract or transaction is usurious is a mixed question of law and fact."23 The law of the place where the contract is made and to be performed "4 as it existed at the time the contract was made "8 controls.

Usury is an illegal profit required and received by a lender of a sum of money from the borrower."26 To constitute usury there must be a loan or forbearance, the loan must be of money or something circulating as money, it must be repayable absolutely and at all events, and something must be exacted for the use of the money in excess of the interest allowed by law."27

\_Intent.\_See $ C. L. 2211.--Some courts include an unlawful intent of the parties as an element of usury; "28 others hold that the intention of the parties as shown by the facts and circumstances "29 may be considered in connection with other evidence in determining whether elements of usury exist in a particular case. Some courts hold that an unlawful intent will be presumed where the contract is usurious on its face."20

The existence of an intent to take as interest an amount greater than the law allows

fact that he was to have no pay for serv-

expense, provided the sum so charged does

ces as crier in courts, as per the conditions

not exceed the amount of the loan and is

of the appointment. Allen v. U. S., 41 Ct. Cl.

not a cover for usury. Darden v. Schuessler

235.

001. No cases have been found during the

of money in consideration of an extension

period covered.

20. See $ C. L. 2211.

so that the rules, 10 C. L. 1907.

23. Exchange Bk. v. McMillan, 76 S. C. 561,

57 SE 630; Banov v. Bk. of Charleston \[S. C.\]

884.

001. Exchange Bk. v. McMillan, 76 S. C. 661,

57 SE 630. Question of fact where there is

sufficient but conflicting evidence. Elwell

v. Lund, 102 Minn, 166, 112 NW 1009.

24. An action to recover usury on notes

cess of that actually received and proper

embracing contract made in Georgia, to be

performed in Georgia and payable in Georgia.

Rev. St. U. S. 618. Wagoner Nat. Bk. v.

usury laws. Exchange Bk. v. McMillan, 76

S. C. 561, 57 SE 630. See, also, Conflict of

The intent is immaterial under the MIs-

Laws, 9 C. L. 596.

25. Contract held prior to statuate and not

usurious thereunder. Exchange Bk. v. McMillan, 76 S. C. 561, 57 SE 630.

26. Clemens v. Crane, 234 Ill. 215, 84 NE

01. Using, generally speaking, is the

acting of a greater than the legal rate of

Interest. But it is not usury in every

instance to take more than the law allows,

since it is not interest to charge an additional

and reasonable sum for incidental service or

10 Curr. L. 132.

1987 makes the transaction usurious" though there is no corrupt intent to take illegal interest and no knowledge that the contract is contrary to law.\[32\] But the collection of an excess of interest through a mistake in computation or other error in fact contrary to the intention of the party will not support a charge of usury.\[38\] Similarly, it is held that the use of a standard and reasonably correct method of computing interest for periods of less than a year is not unlawful, though the result is the collection of a slight excess over the lawful amount of interest,\[34\] since the usury statute was not intended to overthrow the customary and standard mode of computation.\[38\] To render a contract usurious, there must be an agreement at the time it is made to pay and receive an unlawful amount of interest.\[36\] Subsequent conduct of the parties cannot render the contract usurious.\[37\] The form of the contract is not conclusive; the real character of the transaction will be looked to regardless of any device or cover of the parties,\[38\] and extrinsic evidence may be resorted to to determine the question.\[30\] A contract will be construed as legal if such construction is possible.\[40\]

_There must be a loan or forbearance.\[41\]_--The transfer of negotiable paper, valid in the hands of the original holder, at a discount greater than the legal rate of inter-

**31. Merchants' & Planters' BK. v. Sarratt, 17 $. C. 141, 57 SE 621. The fact that it was the custom of banks to use a mode of computing interest which resulted in an unlawful overcharge would not relieve the transaction from usury if method was unlawful. Id.**

**32, 33. Merchants' & Planters' Bk. v. Sarratt, 17 $. C. 141, 57 SE 621.**

**34. Not usury to charge highest amount of interest on short loans based on calculation treating thirty days as a month and 360 days as a year. Merchants' & Planters' Bk. v. Sarratt, 77 $. C. 141, 57 SE 621.**

**35. Merchants' & Planters' Bk. v. Sarratt, 17 $. C. 141, 57 SE 621.**

**36. Ardmore Loan & Trust Co. v. Dillard \[Ind. T.\] 104 SW 814. Where it was claimed that a contract to sell and deliver cotton, and providing for liquidated damages for breach, was a cover for usury, mere fact of payment on contract was not alone proof of unsricus agreement. Instruction held erroneous. Id.**

\*\*38. Clemens v. Crane, 234 Ill. 215, 84 NE 884. All schemes and devices by which money lenders attempt to collect an illegal rate of interest are closely scrutinized and will not be allowed to defeat the laws against usury which are always strictly enforced. Emig's Adm'r v. Mutual Benefelt Life Ins. Co. \[Ky.\] 106 SWV 230. The law will look to the real character of the transaction and go behind any device or shift of the lender to evade the usury law. Elwell v. Lund, 102 Minn. 166, 112 NWV 1009. Execution of cotton contract for alleged advances held as a mere cover for usury. Gage v. J. F. Smyth **37.**

\*\*39. Mercantile Co. \[C. C. A.\] 160 F 425. Where mortgage stipulated the mortgages should have reasonable rent of premises as interest on the loan, the transaction was held a cover for nsury, and, on accounting, mortgage v. Sarratt, 102 Minn. 166, 112 NWV 1009. Execution of cotton contract for alleged advances held as a mere cover for usury. Gage v. J. F. Smyth **39.**

\*\*30. Mercantile Co. \[C. C. A.\] 160 F 425. Where mortgage stipulated the mortgages should have reasonable rent of premises as interest on the loan, the transaction was held a cover for nsury, and, on accounting, mortgage v. Sarratt, 102 Minn. 166, 112 NWV 1009. Execution of cotton contract for alleged advances held as a mere cover for usury. Gage v. J. F. Smyth **39.**

\*\*31. Mercantile Co. \[C. C. A.\] 160 F 425. Where mortgage stipulated the mortgages should have reasonable rent of premises as interest on the loan, the transaction was held a cover for usury, and, on accounting, mortgage v. Sarratt, 102 Minn. 166, 112 NWV 1009. Execution of cotton contract for alleged advances held as a mere cover for usury. Gage v. J. F. Smyth **39.**

\*\*32. Mercantile Co. \[C. C. A.\] 160 F 425. Where mortgage stipulated the mortgages should have reasonable rent of premises as interest on the loan, the transaction was held a cover for usury, and, on accounting, mortgage v. Sarratt, 102 Minn. 166, 112 NWV 1009. Execution of cotton contract for alleged advances held as a mere cover for usury. Gage v. J. F. Smyth **39.**

\*\*33. Mercantile Co. \[C. C. A.\] 160 F 425. Where mortgage stipulated the mortgages should have reasonable rent of premises as interest on the loan, the transaction was held a cover for usury, and, on accounting, mortgage v. Sarratt, 102 Minn. 166, 112 NWV 1009. Execution of cotton contract for alleged advances held as a 10 Cur. Law. USURY SS 1. 1939

est, is not usurious,\[42\] although the transferror may have indorsed it, and such transfer does not deprive the transferee of the protection of a bona fide purchaser.\[43\] While it is lawful and not usurious to charge one price for property sold for cash and a higher price if sold on credit,\[44\] yet if the contract for sale is at a cash valuation, and certain payments are to be deferred in consideration of a greater amount of interest than that allowed by law, the transaction is usurious.\[45\]

\_The aggregate of the exactions must exceed the legal rate,See a C. L. 2011 that is, the rate allowed by law.\[46\] Legal interest paid for a sum of money for a certain length of time becomes usurious if the principal is not retained for the full length of time contracted for.\[47\] Interest on interest not paid when due is not usury if the debtor has the absolute right to discharge and satisfy the contract at maturity by paying the principal debt and lawful interest.\[48\] A contract to pay compound interest is not usurious and will be enforced but not in excess of the amount of simple interest computed at the maximum rate.\[49\] A renewal note which includes principal and interest, due and unpaid, is not usurious and is enforible.\[49\] Under the South Carolina act, eight per cent may be collected provided an agreement to that effect is in writing.\[61\] It is held that a check for the amount charged is a compliance with the statute.\[52\]

_Discounts, bonuses, commissions and other deductions and charges.\[50\]_ See a C. L. 2012\_

Interest exacted in the form of a commission is usury if excessive.\[53\] If an agent intrusted with money to invest at legal interest exacts a bonus for himself as the condition of making a loan without the knowledge or authority of his principal, such circumstance does not constitute usury in the principal nor affect the security in his hands.\[54\]

_The parties may remove the taint of usury_ See a C. L. 1976 by a rescission of that part of the agreement providing for usury.\[55\] Usury does not attach to a note given in payment and satisfaction of a note tainted with usury.\[56\]

42, 43. Woodall v. People's Nat. Bk. \[Ala.\]

45 S 194.

44, Bird v. Benton, 127 Ga. 371, 56 SE 450.

45. Evidence held to show that amount

interest on interest will be enforced for the added to deferred payments was for interest

amount of it less the interest on interest. Id. which exceeded lawful rate. Bird v. Benton, 127 Ga. 371, 56 SE 450.

56. But mere oral promise to pay interest

01. Loan usurious when given in consideration of payment of another loan, besides interest. Darden v. Schuessler \[Ala.\] 45 S 130.

56.1 Cy. Code 1902, $ 1662. Merchants' maximum rate, tender exacted also an interest bearing note for $1,000, which was found to be Interest. Contract was usurious. Libert v. Unfried \[Vwash.\] 91 P 776. It is usury to discount a note at 8 per cent where it provides for interest at 8 per cent only after maturity. Merchants' & Planets' Bk. v. Sarratt, 77 S. C. 141, 57 SE 621.

47. Anderson v. Griffith (Or.) 93 P 934.

01. A note is not usurious bearing 10 per cent interest and payable 12 months after date which provides that interest unpaid annually shall be considered principal and bear the same rate of interest. Carney v. Matthewon \[Ark.\] 109 SW 104. A prom-issory note which provides that it shall be payable one year after date with eight per cent interest to be paid annually, interest and principal after maturity to bear eight per cent annual interest to be paid semi-annually, its not usurious. Firestone v. Dellenbaugh, 10 Ohio C. C. (N, S.) 153.

01. Sanford v. Lundquist \[Neb.\] 114 NVP

01. Whorne original note bears interest at maximum rate, a renewal note including interest on interest with enforced for the amount of it less the interest on interest. Id.

01. But mere oral promise to pay interest on interest for an indefinite forebranance is not enforible. Sanford v. Lundquist \[Neb.\] 114 NVP

114 NVP 279.

51. Civ. Code 1902, $ 1662. Merchants' maximum rate, tender exacted also an interest bearing note for $1,000, which was found to be Interest. Contract was usurious. Libert v. Unfried \[Vwash.\] 91 P 776. It is usury to discount a note at 8 per cent where it provides for interest at 8 per cent only after maturity. Merchants' & Planets' Bk. v. Sarratt, 77 S. C. 141, 57 SE 621.

01. Anderson v. Griffith (Or.) 93 P 934.

01. A note is not usurious bearing 10 per cent interest and payable 12 months after date which provides that interest unpaid annually shall be considered principal and bear the same rate of interest. Carney v. Matthewon \[Ark.\] 109 SW 104. A prom-issory note which provides that it shall be payable one year after date with eight per cent interest to be paid annually, interest and principal after maturity to bear eight per cent annual interest to be paid semi-annually, its not usurious. Firestone v. Dellenbaugh, 10 Ohio C. C. (N, S.) 153 1940 USURY SS 2. 10 Cur. Law.

\_Usury status.\_Soc 8 C. L. 2218

_Usury laws as applied to building and loan association contracts._\[57\]

SS 2. The defense of usury.\_\[58e 8 C. L. 2214--Usury is a defense available only to the debtor or his privis.\[44\] A purchaser of land subject to a usurious mortgage may not set up the defense of usury if the amount of the mortgage debt has been deducted from the price.\[59\] If the amount is not so deducted, the purchaser may, in the foreclosure, defend against the usury on the ground that he stands in privity of contract and estate with the mortgagor.\[60\] Under the banking and negotiable instruments law of New York, it is held that the defense of usury is not available where a state bank has in good faith discounted negotiable paper for value, without notice that it was void for usury; but such defense is available in an action by a receiver of a state bank on notes purchased with knowledge that they were void, as between the original parties because including usury.\[61\]

_Pleading and proof._\[58e 214--The defense of usury is not available unless specially pleaded,\[42\] though it may be interposed on the trial where the defendant was mislead by the pleading of his adversary.\[63\] The burden of proving facts constituting usury rests upon defendant who pleads it.\[64\]

SS 3. The effect of usury.\_\[58e 5 C. L. 2214--A contract is not void for usury unless the statute so expressly provides.\[65\] Forfeiture of interest, and similar penalties, do not invalidate the contract as a whole.\[66\] The power of sale in a mortgage is not rendered void by reason of the fact that the debt secured by it is tainted with usury.\[67\] A sale may be had for the purpose of collecting the principal and lawful interest on the debt.\[66\] The exaction of usurious interest, unknown to the surety on a note, releases the surety.\[68\]

_Forfeitures._\[58e 4 C. L. 1768--The effect upon the amount recoverable by the lender depends upon the terms of the statute.\[69\] Under some, principal and legal interest is

57. See 6 C. L. 1777. See also, Building and Loan Associations, 9 C. L. 437.

01. Defendants may not pload usury as defense where they are not in privity with 57 EE 630. Where usury is pleaded as a nor creditors of the investment company, defence to a written instrument in contra-dettor of the complaininant. Grubb v. Stev-att \[Wash.\] 91 P 562; Aggression v. Middle burden in the party so asserting it, and States Loan, Bidg. & Const. Co., 61 W. Va. 139, 56 SB 177. If debtor ratifies the usu-frous transaction, others cannot assume a contrary attitude. Grove v. Great Northern Loan Co. \[N. D.\] 116 NWV 345. A defense must fail which alleges assignment of mortgage to plaintiff securing a usurious loan but omitting to show interest of defendant. Biedler v. Maloaloum, 121 App. D. 145.

105 NYS 642.

59. Grove v. Great Northern Loan Co. \[N. D.\] 116 NWV 345. One who purchases land, which is subject to an usurious trust debt, and assumes the payment of such debt as part of the consideration for his purchase, cannot be relieved from the usury. Aggression v. Maloidate States Loan, Bidg. & Const Co., 61 W. Va. 139, 56 SB 177. Usury cannot be set up as a defence by a purchaser of lands subject to a mortgage, in an action to foreclose. Tidbal v. Schmeltz \[Kan.\] 94 P 794.

01. Grove v. Great Northern Loan Co. \[N. D.\] 116 NWV 345.

01. Contarting various statutes. Schlesinger v. Lehmaler \[N. Y.\] 83 NE 657.

01. Grubb v. Stewart \[Wash.\] 91 P 562.

01. Defendant was mrlied and failed to plead usury; he was allowed to set it up 10 Cur. Law. USURY SS 4. 1941

recoverable; under others, all interest is forfeited; \[11\] while some provide, in addition, for a deduction from the principal of double the interest actually paid \[7\] and allow defendant his costs in the action for the debt.\[7\] In Louisiana, one who has paid excessive interest may recover, either by direct action or by way of defense when sued, excessive payments within twelve months prior to the making of judicial demand therefor,\[7\] but the owner or holder of a note may recover the full amount thereof, though it includes interest greater than eight per cent per annum.\[7\]

\_Application of usurious payments.\_See * C. L. 1170--In some jurisdictions, sums paid in excess of legal interest are deemed payments and credits on the principal and legal interest.\[7\] In the absence of any direction by the debtor, the creditor cannot apply a payment on a usurious debt in preference to a valid debt.\[7\] Where a payment is made upon a usurious indebtedness, the law requires application of the payment on the valid portion of the debt, and will not permit the creditor to appropriate it on the unlawful portion.\[7\] But the debtor may voluntarily pay the usurious indebtedness, and when he does so, he cannot recover back any portion of such payment on the ground of usury,\[7\] nor is he entitled to have such a voluntary payment applied upon another valid debt,\[8\] at least in those jurisdictions where usury can be interposed only as a defense.\[8\]

SS 4. \_Affirmative relief and procedure.\_See * C. L. 2214--An injunction restraining collection of a usurious debt cannot be maintained unless the amount admitted to be due is tendered or paid.\[9\] An assignment of wages which is in the nature of a chattel mortgage to secure usurious interest, is invalid and illegal in Missouri,\[8\] and may be cancelled by a court of equity without payment of the debt.\[8\]

\_Recovery of usury.\_See * C. L. 2215--Usurious interest voluntarily paid cannot be recovered back.\[8\] But where a usurious note has been assigned before maturity to an innocent purchaser and the defense of usury cut off, the maker, compelled to pay the note to the assignee, may recover the usurious interest from the original payee.\[9\] Where plaintiff in his petition offers to pay what is due, equity will require him to pay legal interest.\[10\]

App. 651, 82 NE 529. Where calculation the case did not come within the statutory showed usury, appellate court affirmed judgg- * exception. Id. * 76. Payments made under cotton contract awarded by the amount above legal interest, indebtedness under Rev. St. Mo. 1899, $ 3709, 101 SVV 886. * 71. Charging a rate of interest greater than that allowed by law, and "knowingly done," works a forfetiture of the entire interest. Rev. St. U. S. $ 5183. Wagoner Nat. Ek. v. Weich \[Ind. T.\] 104 SVV 610. * 72. Under 3 Ball Ann., Codes and St. $ 3671, where a contract is usurious, lender can recover only the principal less accrued interest, and less twice the amount of interest actually paid. Slattle applied. Libert v. Unfried \[Wash.\] 91 P 776. * 73. Defendant, in action on usurious contract, is entitled to certain deductions from the principal and may recover costs, but not attorney's fees. * Ball Ann. Codes and St. $ 3671. Libert v. Unfried \[Wash.\] 91 P 776. * 74. Civ. Code, art. 2924. Huntington v. Westefield, 119 La. 615, 44 S 317. * 75. Civ. Code, art. 2924. Huntington v. Westefield, 119 La. 615, 44 S 317. But where the borrower, in a series of transactions, gave new notes and paid a usurious interest in cash in advance, which was not included In the notes given the borrower was entitled to recover excessive interest so paid, since An action to recover a penalty See e. C. L. 2215 must be brought within the time limited by law.88 All the makers of a joint and several note are necessary parties to an action to recover usurious interest paid on the note.89 In such action, there is no variance between an allegation of payment of a certain amount by plaintiffs and proof of several amounts paid by each.90 Failure to assert the defense of usury in an action on the debt bars a separate action to recover the penalty.91 The pleading must state facts showing a cause of action under the statute,92 which must be sustained by the proof.92

Crimes.See & C. L. 2215 An indictment, under the Missouri statute making usury an offense, is good if it follows the language of the statute.94

Vagrants.91

Vagrancy ordinarily consists in habitual idleness and want of visible means of support.90 Where power is given a municipality to define vagrancy and to punish the same, an action under the ordinance must be brought in the name of the municipality.91 A minor is not without a means of support unless her parents are unable to support her.91 Contrary to the general rule, it is held in Georgia that under an arrest without a warrant evidence obtained by unlawful search and seizure is inadmissible.90

Valles; Variance; Venditioni Exponas, see latest topical index.

## Vendors and purchasers.

- 1. The Centreat for the Sale of Land, 1943, A. General Nature, Requisites and Validity, 1945. B. Reformation and Cancellation, 1945. C. Statute of Frauds, 1945. D. Options to Buy or Sell, 1945.

- 2. A smit brought to recover double the amount of usurious interest paid, authorized under Rev. St. U. S. $ 5188, must be begun within two years from the occurrence of the usurious transaction. Banov v. Bank of Charleston \[S. C.\] 60 SE 942.

- 3. Under Rev. St. 1895, art. 3106, permitting recovery of double amount of interest paid. Alston v. Orr \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 832, 105 SW 234.

- 3. Obligation on note being joint, payments would ensure to benefit of all. Alston v. Orr \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 892, 105 SW 234.

- 4. A separate action to recover the penalty for collecting attorney's fees in a foreclosure suit as a device for exacting usurious interest is barred by the judgment in foreclosure. Strait v. British & American Morris, Co., 77 S. C. 367, 67 SE 1100.

- 5. In action under Rev. St. U. S. $ 5198 to recover double the amount of usurious interest paid, the complaint must allege that the interest was "knowingly" taken. Banov v. Bank of Charleston \[S. C.\] 60 SE 942. Allegation that note for $393 was taken for loan of $350 for three months is sufficient allegation that unlawful interest was "knowingly" reserved. Wagoner Nat. Bk. v. Welch \[Jnd. T.\] 104 SW 610.

- 6. Under Rev. St. 1895, art. 3106, providing that on a usurious contract the penalty shall be double the amount of interest received or collected, the penalty is not incurred where the Interest is contracted for $ 2. Condition, Quantity, and Description of Lands, 1947.

- 7. Title, Deed, and Incumbrances, 1948.

- 8. Price and Payment, 1950.

- 9. Obligation on note being joint, payments would ensure to benefit of all. Alston v. Orr \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 892, 105 SW 234.

- 10. A separate action to recover the penalty for collecting attorney's fees in a foreclosure suit as a device for exacting usurious interest is barred by the judgment in foreclosure. Strait v. British & American Morris, Co., 77 S. C. 367, 67 SE 1100.

- 10. In action under Rev. St. U. S. $ 5198 to recover double the amount of usurious interest paid, the complaint must allege that the interest was "knowingly" taken. Banov v. Bank of Charleston \[S. C.\] 60 SE 942. Allegation that note for $393 was taken for loan of $350 for three months is sufficient allegation that unlawful interest was "knowingly" reserved. Wagoner Nat. Bk. v. Welch \[Jnd. T.\] 104 SW 610.

- 10. Under Rev. St. 1895, art. 3106, providing that on a usurious contract the penalty shall be double the amount of interest received or collected, the penalty is not incurred where the Interest is contracted for $ 2.

- \[8\] G. Conditions, Covenants, and Warranties, $ 12. Vendor's Liens and Their Enforcement, 1962.

- \[9\] S. T. Demand, Tender, and Default, 1952.

- \[10\] S. S. Forfeulture, Reselsion, and Walver, 1954.

- \[11\] S. 9. Interest in the Land Created by, and Kights and Llabbilities Under the Contract, 1957.

- \[12\] S. 10. Liability Consequent on Breach, 1950.

- \[13\] S. 11. Rights After Conveyance, 1962.

_The scope of this topic is noted below._

SS 1. \_The contract for the sale of land. A. General nature, requisites, and validity.\_Sao e C. L. zie.--A contract of sale of land 2 transfers for money the right to the title thereto and is to be distinguished from a deed,8 and option,4 an agreement for brokerage,5 an exchange,6 a mortgage,7 a lease,8 and a license.9 The contract may be effected through agent 10 and it is not essential to the validity thereof that the vendor own the land at the time of contracting,11 but where a party undertakes absolutely to convey, impossibility of performance does not ordinarily relieve him.12 Like contracts generally, it must be supported by a consideration 18 and be free from fraud,14 duress,15 etc., and may be modified 16 or abrogated 17 by the parties thereto.

1. \[widewide=0.5cm\]

Substitution of vendors is effected by a conveyance of the land, with the purchaser's consent, to one who agrees to fulfill the contract.\[21\]

\_Certainty and definiteness.\_See s C. L. 2217--The contract must be certain and definite,\[19\] but it is sufficient if it provides the means whereby it can be made certain.\[20\]

\_Offer and acceptance.\_See s C. L. 2217--As in other contracts, the minds of the parties must meet upon all the essential elements of the contract.\[21\] An offer \[22\] and an acceptance \[22\] create a contract \[24\] provided the acceptance is unqualified \[28\] within the terms of the offer \[26\] and is made before its withdrawal.\[27\] Though offer is unilateral, it cannot be withdrawn after acceptance.\[28\]

monthly, title to be conveyed upon full pay- \[22\] Where special agent exceeded his amount, and vendor thereafter orally agreed to advance money for construction of house, of which agent was cashier with notice by monthly payments to be increased held that such agreement did not rescend original contract. Greenwood v. Beeler \[Cal.\] 93 P 98.

18. Pearson v. Courson, 129 64. 66. 59 SE

01. Where vending under bond for deed, vending order and third person agreed that latter should pay balance due, take title, and upon vendee's paying to him of such balance convey to vendee, held that third person as- \[22\]. See also, Mortgages, 10 C. L. 855.

01. Where contract is clear and distinct in itself, fact that it is part of larger transaction involving several tracts is immaterial. Moore v. Price \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 693, 103 SWP 234. Instrument recliting, "Received of C 825 on purchase price of $400, cash value for" land described, R to furnish warranty deed, held too indefinite as to parties to be specifically performed, it appearing that C was acting for some one else. Chambers v. Roseeland \[S. D.\] 112 NWV 148. Agreement that vendor would, in consideration of certain payments and services to be rendered during his life, have papers fixe: so that vendee should not be disturbed, and that vendee should have premises when he was through with them, held sufficiently definite to be valid. Northrup v. Mead, 121 App. Div. 385, 106 NYS 180. Lease containing option to purchase held sufficiently definite to be specifically enforced. Kerr v. Moore \[Cal. App.\] 92 P 107. For sufficiency of description, see post, S 2.

01. Schuyler v. Wheelon \[N. D.\] 115 NWV 259. Executory contract for sale of townsite, not to exceed 30 acres to be selected by grantee from specified tract, held sufficient. Id.

01. Minds held to have not met on specific location and boundary. Wadick v. Mace \[N. Y.\] 83 NE 571. Evidence held to show that vendor did not know at time of executing contract that it contained provision requiring him to accept as cash any contracts of sale which vendee might make, and hence to entitle him to cancellation unless vendee would eliminate such provision. Stone v.

01. Moody \[Vdash.\] 91 P 644. Where purchaser believed that she was purchasing 86 acres when in fact there were only 70, and vendor did not know at the time that she was harboring under false impression, held that plaintiff could not recover damages, but could rescend, minds having not met. Ralley v. Roberts \[Ky.\] 109 SWP 903. And it was error to dismiss where petitioner asked for general relief as well as for damages. Id.

10 Cur. Law. VENDORS AND PURCHASERS $ 1D. 1945

\_Mutuality.\_See * C. L. 2218--Although the contract must ordinarily possess mutually at the time of execution,29 performance by the party not bound, if timely,30 creates a mutuality which relates back.31

\_Construction.\_See * C. L. 2218--The execution of formal papers merge all prior agreements in the absence of fraud.32 While parol evidence is inadmissible to supply essential elements 33 or to contradict the written instrument 34 except as to the recital of the consideration,35 the circumstances and facts surrounding and known to the parties at the time of execution may be shown to explain ambiguities,36 especially if latent.37 Where a contract is susceptible of two constructions, that which renders it most reasonable, fair, and just should be adopted.38

(SS 1) _B. Reformation and cancellation.39--Related papers and endorsements may be construed together.40_

(SS 1) _C. Statute of frauds.41_

(SS 1) \_D. Options to buy or sell.See * C. L. 2118--An option is a contract whereby one acquires the right for a specified time to enter into a contract of sale at his election,42 but passes no interest in the land itself,43 being a mere standing offer 44 which

Footnote 42: The author is grateful to the anonymous referee for the support of this work.

29 Contract held to lack mutuality, ven- Coulter \[Vwash.\] 92 P 436. Where deed was deed being bound thereby. Unon Sawmill unambiguous and purported to convey a Co. v. Lake Lunner Co. \[La.\] 44 S 1000, present title, parol evidence held inadmis-Contract for sale of mining rights providing able to show that it was to become binding for a lease on royalty basis in case vendor only upon happening of future contingency.

build not procure release of incumbrance Williams v. Smith, 128 Ga. 306, 67 SE 801.

held not lacking fn mutuality, though it did where nothing is said in written contract not expressly require vendee to operate about restrictions, parol evidence is admis-mines in latter event. National L. & T. Co. style to show that purchaser knew thereof at v. Alexander \[S. C.\] 61 SE 214. Mutuality time of contracting. Swartz v. City & Suspended by promise to convey at specific broken Reality Co. \[Md.\] 67 A 2S3.

price and promise to pay same held not destroyed by provision that purchaser could that amount reited as received was not in terminate same by failure to pay interest for 60 days. Taber v. Dallas County \[Tex.\] 20

statement of amount remaining unpaid. Tex. Ct. Rep. 309, 106 SW 32.

30 Where contract lacked mutually in that vendee was not bound thereby, held that be could not hold same open for two years 37. Where contract describes property as and then make it binding by acting there-under. Union Sawmill Co. v. Lake Lunner 200 feet deep, which would convey only part Co. \[La.\] 44 S 1000.

31 Although contract for sale of certain land if vendor acquire same at foreclosure did not obligate vendor to so purchase, lack of mutuality could not be asserted after she had purchased. Bryan v. Carroll, 122 App. Div. 301, 106 NYS 668. Where contract of sale Implied that purchaser would place improvements thereon which were to be fork-feited upon nonpayment of interest, vendor could not assert after improvements were made that there was want of mutuality, since performance of that upon which mutually depended related back. Taber v. Dallas County \[Tex.\] 20 Tex. Ct. Rep. 309, 106 SW 308. Bond for payment of balance of price stipulating for interest held to merge prior agreement that no interest should be charged until removal of a mortgage. Buchanan v. Dawson, 34 Fa. Super. Ct. 400.

33 In absence of fraud or mistake, extrinsic evidence is not admissible to supply names of contracting parties. Chambers v. Rosseland \[S. D.\] 112 N NV 148.

34 Where written contract provided that if vendor's title should be defective earnest money should be returned, oral agreement that if it proved defective vendor should cure defect held without force. Reiff v.

may be converted into a contract of sale "5" by an acceptance in the manner designated,46 within the time specified,47 and upon the terms given.48 It must be supported by a consideration "9 and satisfy the statute of frauds.50 An option is frequently given in leases.61 An option by its terms binding upon the optionor, his heirs, repre-

Print \[Idaho\] $2 P 965; John v. Elkins \[W. Va.\] $9 B 961. Agreement to convey certain land for $10,000, if complainants desired to purchase after completion of 0ll well on ad-joining land. Laughter v. Smith, 232 Ill. 534, 83 NSE 1052. Contract in form of an absolute conveyance but ending with provision that upon non payment of consideration (when no payment of $10,000).

Print \[Idaho\] $3 P 965; John v. Elkins \[W. Va.\] $9 B 961. Agreement to convey certain land for $10,000, if complainants desired to purchase after completion of 0ll well on ad-joining land. Laughter v. Smith, 232 Ill. 534, 83 NSE 1052. Contract in form of an absolute conveyance but ending with provision that upon non payment of consideration (when no payment of $10,000).

Print \[Idaho\] $3 P 965; John v. Elkins \[W. Va.\] $9 B 961. Agreement to convey certain land for $10,000, if complainants desired to purchase after completion of 0ll well on ad-joining land. Laughter v. Smith, 232 Ill. 534, 83 NSE 1052. Contract in form of an absolute conveyance but ending with provision that upon non payment of $10,000).

sentatives and assigns does not expire with the death of the optionor.\[82\] The optionor has a reasonable time after notification of election to purchase within which to execute the deed.\[58\] The rights and obligations of the parties to an option depend upon the terms thereof,\[54\] but a bare option carries no right of possession.\[58\] A valid assignment \[56\] invests the assignee with the rights of the assignor.\[57\] Where land is sold subject to an option, the vendor and optionee cannot vary the terms thereof without the consent of the purchaser.\[58\] Upon breach of the contract by the optionor,\[58\] unless caused by the optionee,\[50\] or optionee has previously renounced the option,\[51\] a cause of action accrues for the damage suffered. The fact that optionee persuaded optionor to reduce price by a false representation as to what he could sell the property for does not entitle optionor to more than the agreed price.\[52\]

SS 2. \_Condition, quantity, and description of lands.\_See e C. L. 2220--Where land is sold by government subdivisions, the purchaser cannot complain that it includes swamp land.\[53\]

\_Description.\_See S. C. L. 2220--The contract must describe the land with sufficient particularity for identification.\[54\]

contract to lease with option to purchase, for conveyance as required by option, ven-West v. Washington, etc., R. Co. \[Or.\] 90 P 66.

Secure hlim against pecuniary loss occasioned by refusal is admissible to show that refusal was willful and not based on inability to perform. Brown v. Honiss \[N. J. Err. & App.\] 68 A 150. Statement by agent of option that unless an extension of option was granted deal was off, held not a waiver of provision that optimor should furnish abstract. Hampton stave Co. v. Gardner \[C. C. A.\] 154 F 805. Existence of past due his own call on payment of purchase price within specified time, and purchaser within time pays price and receives a conveyance, vendor forveson \[Mas.\] 83 NE 360. Plaintiff leased premises for five years, lease containing option. He built barn and paid rent for three years. Held that cost of barn and rent paid were not payments on purchase price. Lindley v. Blumberg \[Cal. App.\] 93 P 894.

Forfeiture: Option contract providing that upon nonpayment of portion of purchase price within specified period shall render same vold, is forfeiture by nonpayment. Barnes v. Husted \[Pa.\] 68 A 839. Where option was to become null and void if payment of portion of purchase price was not made within specified period, acknowledgement and recordant of contract after such period held a waiver of right to declare a forfeiture. Barnes v. Rea \[Pa.\] 68 A 836; Barnes v. Husted \[Pa.\] 68 A 839.

Secure hlim forible entry and detainer, evidence of extension of option held immaterial. Kissack v. Bourke, 132 III. App. 360.

Secure hlim forible entry and detainer, evidence of extension of option held immaterial. Kissack v.

\_Quantity.\_See * C. L. 2220--One receiving a conveyance with distinct boundaries of a portion of a tract is not affected by a provision in a conveyance of the other part providing for a re-establishment of the boundary line if the parts are not equal, there being no such provision in his conveyance.\*\* Where lots are sold by actual measurement from designated corner, the rule for apportionment of surplus in block does not apply,\*\* but a conveyance of a designated number of acres from a larger tract entitles the purchaser to such number though the entire tract does not contain as much as supposed.\*\*

**SS 3.**\_Title, deed, and encumbrances. What title was sold.\_See * C. L. 2220--A conveyance by quitclaim deed purports to convey no particular title but only such as the vendor has.\*\*

\_Sufficiency of title tendered.\_See * C. L. 2221--In the absence of an agreement, the parties are presumed to have contracted with reference to an unincumbered and indefeasible title,\*\* but ordinarily the contract stipulates for a particular title,\*\* such as a "good title," "m"marketable title," "r2 or title free from incumbrances and adverse

385, 104 SVW 148. Contract describing prop-

vers in innate of Insane asylum, and that

erty as "situate in the city of Newport,

nearest relatives have executed warranty

county of C., and state of Kentucky, and

beling A and heirs" property, located at 116

persons might not be helra at time of death,

East 8th St., Newport, Kentucky," held suffm-

and state may have claim against estate

client to support action for specific performance.

ance. Och v. Kramer (Ky. 107 SVW 260.

55. Hefin V. Ifefin \[WY. Va.\] 59 SE 745.

01. Atkins v. Pfaffle \[Iowa\] 114 NW 187.

01. Sale to each of several grantees. First

Nat. Bk. v. Crawford \[WY. Va.\] 60 SE 781.

One who purchases by arc arc interest of one

of said grantees and subsequently acquires

other interests in whole tract is not entitled

to abatement of purchase money from such

grantee. Id.

GR. Vendor under quitclaim deed is not liable to purchaser for purchase money upon

failure of title. Board of Directors of St.

Francis Levee Dist. V. Cottonwood Lumber

Co. \[Ark.\] 110 SW 850.

69. Taylor v. Newton \[Ala.\] 44 S 583.

Secondly where land was free from encumbrances

brance at time of contracting. Emerrick v.

Hackett \[N. Y.\] 84 NE 805. Where optonors'

tistic did not appear of record, opitence, after

playing part of price to bind bargain, held

to interest of one helr as against contention

entild to demand evidence of title as contention

dilution precedent to performance. Taylor v.

Newton \[Ala.\] 44 S 583.

70. Agreement to convey by good and euf-

ficient quitclaim deed, reciting that vendors

acquired title at foreclosure sale, held to call

for conveyance of entire estate. Brink v.

Miltchell \[Wia.\] 118 NW 16. Contract to con-

vay good title free from incumbrances calls

in chain by husband and wife does not show

ble litigation, and title by adverse possession

held properly refused where record owner is

asserling claims. Hoffman v. Titiow \[Vwash.\]

92 P 885.

71. Held good title: Where testator left

land to wife so long as she remained his

widow, but upon rearmigage, to go to such

children as should then be living, held that

deed from wife and children conveyed g 10 Cur. Law. VENDORS AND PURCHASERS $ 3. 1949 claims,71 and the vendor must tender the title called for 74 unless waived by the purchaser.75 The title must be fairly deducible of record.76 A perfect title by adverse

151, 105 XYS 888. Enrocachment of adjoin- such acts wipe out mortgage. Greenfield v. ing building of three inches in front and one and one and one-half inches in rear rendered title (with 105 XYS 705. Vendec and one-half inches in rear rendered title (with 105 XYS 849. Where restarted) listing mortgage where twenty years have 849. Where restarted devised reality to executors and executrix, his wife, to hold in stumed pald. Id. A his pendens in action for trust to apply proceeds to support of wife, enforcement of Tenenen House Act, Law and authorized executors with wife's consent to sell same, sale by wife, who alone quali- and named had sold premises and recorded fled, together with quicklim deaths from her and remaindermen. Hilton v. Sowrendle, 53 or served, held not an incumbrance. Wood-Misc. 152, 104 NYS 942. Where wife refuses to relimbuish downer. Vaughan v. Spleerl 122 App. Div. 386, 106 NYS 817. \[Ark\] 107 SVP 993. Prior recorded contract to convey. Van Keuren v. Siedler \[N. J. Eq.\] of building on adjacent lot of five inches, 66 A 920. Where executor sold to himself through third person (Wointrauch v. Slegel, 109 NYS 215), and fact that executor was charged with price in his accounting does not by estopted rather little marketable in absence of showing that parties interested were aware at time of the facts (Id.). Abstract showing tax dedents, but no judgment, 114 NYS 1042. That water eloests exist in based. Koch v. Streuter, 232 III. 594, 83 NNE 1072. Where deded by heirs created trust in favor of creditors of ancestor and only four years have elapsed, held that it cannot be NYS 817. NYS 1035. Asl matter of law that creditors would be barred by laches or limitations so as to render title marketable, Id. Abstract failing to show title from United States to state. Id. \[M. Sowrendle, 53, 108 XYS 1013.\] of the public possession is usually sufficient.\[77\] A purchaser is not bound to accept an incumbent title though the vendor offers to deduct the amount thereof from the purchase price.\[78\] While a purchaser assuming a mortgage is not obliged to accept one of a different character than that agreed upon,\[79\] where he is to assume a mortgage in a named amount it is no objection that the debt is represented by two mortgages.\[80\] Where the title is to be satisfactory to the purchaser's attorney, he must act in good faith.\[81\] A contract calling for a conveyance free from incumbrances relates only to the time of performance.\[82\] The burden of proving a defective title rests on the object.\[83\] Where no particular kind of ded is stipulated for, a ded sufficient to pass title must be accepted,\[84\] though improperly acknowledged.\[85\] While equity may require a grantor to execute a ded properly acknowledged,\[86\] it cannot correct mistakes in the certificate of acknowledgment.\[87\]

**SS 4.**\_Price and payment.\[88\]\_8_Sca_L_L_2222_The_time,\[88\]\_manner,\[89\] and amount\[90\]

Koch v. Streuter, 232 Ill. 594, SS 3NE 1072. Where vendee held contract of executors to convey one piece of property and contract of heirs for another, objection to dededed 188, 105 NYS 18. By executors that contracts were interdependent and that title to property to be con- vored by helrs was unmarketable held not to waive objection that title tendered was unmarketable where defect could not have been removed. Whalen v. Stuart, 108 NYS 85.

**76.** Not required to accept title depending on matters resting in parol. Walters v. Mitchell \[Cal. App.\]. 92 P 515.

**77.** Title perfect except as against possible outstanding title in heirs or successors of ourner who died 100 years ago held marketable. Wormser v. Gehrl, 55 Misc. 147, 106 NYS 295. Right of way reserved in deceds executed fifty years ago, but which has been in adverse possession of vendor'for twenty-five years, held not valid objection. Clody v. Should, 108 NYS 41.

**78.** Dunglat taxes. Berger v. Crist, 121 App. DIV. 483, 106 NYS 107. Unpaid water rent and taxes. Mandel v. Hess, 67 Misc. 240, 107 NYS 766.

**79.** Where contract specifies that mortgages to remain on land contain "usual clauses," by specific mention It lmplely excluded those that are unusual. Elterman v. Hyman \[N. Y.\] 84 NE 937. Clauses assigning rent upon breach of any coumarin in bond, maturing mortgage upon threatened demolition of any building on premises, and requiring mortgage to certify amount due within specified time after notice, held unusual. Id. Where he was to assume mortgage having at least one year to run, fact that mortgage contained clause authorizing mortgage to mature same on thirty days' notice if legislature should increase taxes held not to justify vendee in refusing to perform where legislature had just enacted a recording fee in lieu of all taxes and would not be likely to change within one year. Frank v. Frank, 108 NYS 549. Where he was to assume mortgage due at future date, fact that mortgage was past due and extension was by esstu que trust by attorney, it not being shown that truste had assigned mortgage to esstu que trust or that attorney had authority to extend same, held to as: 121 App. DIV, 734, 106 NYS 481. Assumption possession is usually sufficient.\[77\] A purchaser is not bound to accept an incumbent title though the vendor offers to deduct the amount thereof from the purchase price.\[78\] While a purchaser assuming a mortgage is not obliged to accept one of a different character than that agreed upon,\[79\] where he is to assume a mortgage in a named amount it is no objection that the debt is represented by two mortgages.\[80\] Where the title is to be satisfactory to the purchaser's attorney, he must act in good faith.\[81\] A contract calling for a conveyance free from incumbrances relates only to the time of performance.\[82\] The burden of proving a defective title rests on the object.\[83\] Where no particular kind of ded is stipulated for, a ded sufficient to pass title must be accepted,\[84\] though improperly acknowledged.\[85\] While equity may require a grantor to execute a ded properly acknowledged,\[86\] it cannot correct mistakes in the certificate of acknowledgment.\[87\]

**SS 4.**\_Price and payment.\[88\]\_Sca_L_L_2222_The_time,\[88\]\_manner,\[89\] and amount\[90\]

\*\*Koch v. Streuter, 232 Ill. 594, SS 3NE 1072. Where vendee held contract of executors to consumption of one upon which suit has been commenced. Vacht v. Hart, 120 App. Div. heirs for another, objection to deceded 188, 105 NYS 18. By executors that contracts were interdependent and that title to property to be con- vored by helrs was unmarketable held not to waive objection that title tendered was unmarketable where defect could not have been removed. Whalen v. Stuart, 108 NYS 85.

**78.** Not required to accept title depending on matters resting in parol. Walters v. Mitchell \[Cal. App.\]. 92 P 515.

**79.** Title perfect except as against possible outstanding title in heirs or successors of ourner who died 100 years ago held marketable. Wormser v. Gehrl, 55 Misc 10 Cur. Law. VENDORS AND PURCHASERS SS 5. 1951

of payment are usually controlled by express stipulations in the contract, and a vendor cannot be compelled to accept payment before maturity.91 Where the deed contains no covenants,92 vendee cannot, at common law, avoid payment of price on the ground that the vendor had no title 98 in the absence of fraud or estoppel,94 but, where a part of the land is taken under a superior claim, a credit for the value thereof is usually allowed.98 Where the purchaser has accepted a deed with full warranties, he cannot ordinarily, have an abatement of the price for outstanding incumbrances,98 but, in some states, a breach of covenants 97 may be interposed as a defense. A bill for abatement of price will not lie where there is an adequate remedy at law.98 Where the vendor has placed it out of his power to perform, he cannot recover on a check given in part payment.99

SS 5. \_Tim6.\_See 8 C. L. 2228. While time is not ordinarily of the essence of the contract,1 it may be made so by the terms thereof 2 or by reasonable notice,3 in which

time within which vendee was to pay price or contract be dissolved. Harvin v. Black- or acts of parties that it was so intended. man \[La.\] 46 S 625. See post, SS 5. \*\*, Kessler v. Pruitt \[Idaho\] 98 P 965. Where 89. Informal contract construed and held that vendee was not entitled to have formal treat it as formal and not as of the essence contract so drawn as to require vendor to unless such intention is manifest. Roberts secure three mortgages for $15,000 man land in lie of cash payment. Tabachnick v. Brand, 1s considered of the essence, and in action for recovery of down money defendant held in default where he did not appear until a interest to one, provided he should "at any time within three years * * pay * * * * * * * per acre for the undivided one-half," NYS 503. held to require payment of $4 and not $2 to be made satisfactory to purchaser within constructed in light of surrounding circum- stances. Stein v. Archibald, 151 Ca1, 220, 90 P 636. \*\*, Dues in installments. Moseley v. Witt \[S. C.\] 60 SE 520. \*\*, Dues in installments. Moseley v. Witt \[S. C.\] 60 SE 520. **, Dues farther by street railroad of its franchise**, chises held in effect a quil claim deed, and, hence, fact that franchise was void held no defense to action for purchase price. O'Sullivan v. Griffith \[Ca1.\] 95 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 95 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 96 P 873. \*\*, Duesillivan v. Griffith \[Ca1.\] 94. Fact that vendee was led to believe that property belonged to wife and that she was selling same, held not such fraud or equitable estoppel as to authorize abatement of price because of dower Interest, where at time of consummation he knew that husband was owner and dower was not encountered. Coleman v. Whittle \[S. C.\] 60 SE 523. **, Duesillivan v. Eversole**, Duesillivan v.

case performance must be made within the time fixed or the defaulting party loses all rights,4 except in the extreme cases where equity will grant relief.5 However, essence may be waived 6 and the extension of time 7 usually has such effect,8 unless expressly reserved.9 A delay for mutual benefit does not foreclose the rights of the nonperforming party.10

8 6. _Conditions, covenanis, and warranties_. See s C. L. 2224--The parties may make any stipulation they see fit if not contrary to law,11 and, hence, the terms of the contract are largely determinative of their rights.12 An agreement to assign the insurance on the property sold does not include forwarding of the same to the company for its consent.13 A sale by an administrator may be made contingent upon a favorable order of the court.14 In the absence of express agreement, the vendor cannot insist that the purchaser secure earnest money deposited with his own agents.15 While an owner, who plans land and sells lots with reference thereto, impliedly covenants to allow use of the streets as passageways,16 he does not impliedly covenant not to sell except in parcels as delineated.17 Where purchaser assumes a lien, the vendor cannot sue for the benefit of the lienor.18

8 7. _Demand, tender, and default_. See s C. L. 2226--Where time of performance by one is not of the essence of the contract,19 or, being of the essence, the contract is still treated as existing though time of performance is past,20 and the obligations are mu tual and concurrent,"11 a tender and a demand is necessary to place the other party in default,"22 unless he has unqualifiedly repudiated the contract,"23 or is not in a position to perform."24 One need not make a tender where the first act of performance rests with the other party,"25 nor need one go outside of the state to make a tender.26 An offer of performance to one authorized to accept the same 27 is sufficient without an actual tender."28

in default without signifying his readiness
_Default_.--Where no time for performance is fixed, the parties have a reasonable time within which to act.\[29\] A party inexcusably \[40\] in default \[31\] cannot compel the other to perform. One who cannot perform his part cannot in general compel the other to observe his agreement.\[32\] Substantial performance is all that is usually required.\[33\] One cannot complain of a default where he rendered compliance impossible.\[34\]

SS 8. _Forfeiture_, _rescission, and waiver. Forfeiture_.See s c. L. 2225--While default \[35\] is frequently made a ground of forfeiture,\[36\] it cannot be invoked by the party first in default,\[37\] or by one whose own acts contributed to the other party's default.\[38\] A tender of performance after notice of forfeiture is too late.\[39\] In some states a notice of forfeiture \[40\] is required by express statute,\[41\] but, in the absence thereof, it is necessary where the right is optional.\[42\] A forfeiture may be waived by check which bank offers to cash, tender is sufficient. Kessler v. Pruitt \[Idaho\] 93 P 965.

**29.** Where contract was made Sept. 24, and suit was instituted Oct. 29, held that defendant had had a reasonable time. Foster County Implement Co. v. Smith \[N. D.\] 115 NPV 663.

**30.** Where vendee did not appear at time set for performance, fact that clerical error had been found in vendor's chain of title and that corrected dead had not been received by vendor at time held not to execute default. Dwwork v. Weinberg, 120 App. Div. 607, 105 NYS 504.

**31.** Where vendor was present at 5 o'clock, time for conveying, but vendee did not appear until 6 o'clock, at which time vendor had gone. Vendee again returned about 8 o'clock, but was notified that he was in default and that no one was present to close title. He did that vendee and not vendor was in default. Dwwork v. Weinberg, 120 App. Div. 507, 105 NYS 504. In action on note given for option which was to be applied to purchase price if optionee elected to buy, held error to exclude evidence that optiones visited office of option on day option expired and notified person in charge of election to purchase, since it constituted tender of performance and called for tender of performance by optioner before suing on note. Lumbashi v. Abt, 126 Mo. App. 211, 108 SVV 104. Where in suit to cancel, based on default in payments, it appears that defendant discharged all obligations with possible exception of $3,600 and that if he did not pay such sum he apparently had adequate reason, in that it appears that he failed to get $60 acres warranted, he will not be held in default, no claim having been asserted for thirty years. Whitfield v. Lyon \[Miss.\] 46 S 545.

**32.** Where vendor cannot convey good title, he cannot in general compel vendee to observe his agreement. McKinnon v. Johnson \[Fla.\] 45 S 451.

**33.** Where license were discharged by vendor, failure to procure funds with which to pay them at a bank specified in contract is immaterial. McKinnon v. Mickelberry, 228 Ill. 460, 81 NE 1072.

**34.** Failure to have abstract show that certain lines were discharged does not justify refusal of performance where vendee refuses to permit abstract to be continued and has notice of the discharge of such items.

**35.** Where vendee did not appear at time set for performance, fact that clerical error had been found in vendor's chain of title and that corrected dead had not been received by vendor at time held not to execute default. Dwwork v. Weinberg, 120 App. Div. 607, 105 NYS 504.

**31.** Where vendor was present at 5 o'clock, time for conveying, but vendee did not appear until 6 o'clock, at which time vendor had gone. Vendee again returned about 8 o'clock, but was notified that he was present to close title. He did that vendee and not vendor was in default. Dwwork v. Weinberg, 120 App. Div. 507, 105 NYS 504. In action on note given for option which was to be applied to purchase price if optionee elected to buy, held error to exclude evidence that optiones visited office of option on day option expired and notified person in charge of election to purchase, since it constituted tender of performance and called for tender of performance by optioner before suing on note. Lumbashi v. Abt, 126 Mo. App. 211, 108 SVV 104. Where in suit to cancel, based on default in payments, it appears that defendant discharged all obligations with possible exception of $3,600 and that if he did not pay such sum he apparently had adequate reason, in that it appears that he failed to get $60 acres warranted, he will not be held in default, no claim having been asserted for thirty years. Whitfield v. Lyon \[Miss.\] 46 S 545.

**32.** Where vendor cannot convey good title, he cannot in general compel vendee to observe his agreement. McKinnon v. Johnson \[Fla.\] 45 S 451.

**33.** Where license were discharged by vendor, failure to procure funds with which to pay them at a bank specified in contract is immaterial. McKinnon v. Mickelberry, 228 Ill. 460, 81 NE 1072.

**34.** Failure to have abstract show that certain lines were discharged does not justify refusal of performance where vendee refuses to permit abstract to be continued and has notice of the discharge of such items.

**35.** the party in whose favor it operates.\[43\] A forfeiture ordinarily terminates purchaser's interest in the land.\[44\]

\_Rescission.\_See 8 C. L. 2224.--The contract may always be rescinded with the mutual consent of the parties thereto.\[45\] It may also be rescinded for fraud 46 unless ratified,\[47\] and where the other party thereto has expressly repudiated 48 or refused to perform.\[49\] A material deficiency in quantity,\[50\] or an incurable defect in the title,\[51\] provided it constitutes a cloud 52 and is not the result of the party's own acts,\[58\] authorizes a rescission. In Louisiana the vendor may rescind where the contract price is less than one-half of the value of the property,\[54\] as may a vendor in Texas upon default in payment by the vendee 55 where he has reserved a lien,\[56\] unless the purported.

43. Offer to give dead upon payment of any amount due held not a waiver of forfeiture, NYS 660.

- 44. Where contract for sale of 160 acres was forfeited fornapsment of instalment of purchase price after death of purchaser, but a sale was effected of slxty acres through administrator, whereupon 100 acres were decoded to administrator for remainder of agreed price, all of which transaction was approved by court, held that helrs had no equity in sixty acres. Harris v. Graf \[Iowa\] 111 NWV 434.
- 45. Where contract was modified by escrow agreement that unless a certificate showing unincumbered title should be signed by abstract company within specified time transaction should be at an end, and plaintiff refused to accept titles as shown by certificate, whereupon papers were suren-dered at request of parties, held to show rescission. Webster v. Gibson \[Cal. App.\] #3 P 1040. Where shortly after sale reserving vendor's lien vendee abandoned land and vendor took possession, and no claim was asserted by purchaser or those claiming under him for thirty-six years, held that purchaser will be presumed to have acquiesed in rescission. Evans v. Ashe \[Tex. Civ. App.\] 108 SW 398. Evidence held to show that purchaser agreed to cancellation and executed lease with cancellation clause therein. Irish v. Martin \[Iowa\] 113 NWV 470.
- 46. Where vendor agreed to sell three tracts but fraudulently included only two in deed and refused to convey third on demand, held that court properly rescinded contract and adjudged a lien on land for purchase price. Gayle v. Troutman, 31 KY. L, R. 718, 108 SW 342. One who has sold property for particular purpose by fraudulent representations cannot defend suit to rescind on ground that if it is put to another purpose granted will lose nothing. Steen v. Weisten \[Or.\] 94 P 834.
- 47. Employment of agent to care for property after acquiring knowledge of fraud amounts to ratification. Stackpole v. Schmucker, 225 Ill. 502, 80 NE 314.
- 48. Mere failure to pay purchase money according to terms of contract held not such a repudiation as to authorize vendor to re-scind. Kessler v. Pruit \[Idaho\] 92 P 95.
- 49. Where parties executed written memorandum sufficient to satisfy statute of frauds but which did not purport to embrace entire contract, refusal of vendor to execute formal contract as agreed held a ground for rescission.

chaser has such equities as to invoke equitable relief." Where the agent of the vendor held himself out as a copurchaser in the negotiations, the contract may be rescended,"8 and the fact that the true relation was known to one of the purchasers does not prevent a rescission by the others." Relief will be granted by rescission where the minds of the parties met upon a particular piece,"8 but another was substituted therefor which cannot be conveyed."8 Rescission will be denied where it will be inequitable,"8 where the parties cannot be placed in statu quo,"8 or where the one seeking the relief has unduly delayed after discovering the ground therefor."8 Due notice is usually necessary to effect a rescission."8 By ratifying "8 the assignment of a rescinded contract by the purchaser, the vendor may estop himself from asserting rescission.

\_Right of parties after rescission.\_See * C. L. 2277.-Upon rescission "8 each party must be placed in statu quo,"8 hence, where the vendee is in possession, he is liable

sell to another. Evans v. Ashe \[Tex. Civ. App.\] 108 SVV 388. Where conveyance reserved vendor's lien, written instrument is not necessary to divest vendee's rights upon default. Id.

87. Where there was no proof that purchaser paid part of price at time of purchase, that he made any improvements, and he Interposed limitations as against lien, held that he showed no equities entilting him to pay any sum adjuded to be due and prevent rescission. Smith v. Owen \[Tex. Civ. App.\] 107 SVV 929.

58, 59. Houts v. Schrabauer \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 556, 103 SVV 678.

60. Evidence held to show that minds of parties had met upon a different piece than that described. Abbott v. Dow \[Vis.\] 113 NWV 960. Findings of lower court in lignt of evidence held not to mean that minds of parties had never met before execution of paper on particular quarter, but that transactions prior thereto had not reached stage of legal contract. Id.

01. Abbott v. Dow \[Vis.\] 113 NWV 960. May rescend without regard to relative value of pieces omitted and substituted. Selby v. Muston \[Towaj 114 NWV 609.

01. Denied where vendee by mismanagement after discovering fraud caused land to deteriorate. Slopla v. Winship \[N. H\] 66 A 962. Where payments were accepted long after due and vendee, an aged and uncudicated negro, relied on vendor to keep account and thought he had paid in full, held that vendor could not rescind. Moore v. Brown \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 700, 103 SVV 242.

01. Guilfoyle v. Pierce, 109 NYS 924. Prop. every sold. Maass v. Rosenthal, 109 NYS 917. Vendee must surrender possession before he can maintain action for rescission. Northrup v. Mead, 121 App. Div. 385, 108 NYS 150. Where vendee in possession seeks to rescind contract because of defect in title, he must surrender possession, but where he received nothing thereunder and asserts fraud and title in himself he need not. Phenix v. Bije-lich \[Nov.\] 95 P 351.

01. Delay of three months after knowl-edge of fraud before bringing action to rescind held not undule delay, action having in meantime been commenced in Federal court but dismissed on defendant's plea to jurisdiction. California Farm & Fruit Co. v. Schlappa-Petra, 151 Cal. 732, 91 P 553. Re-scision because wrong piece was subtltl-like.

01. Where vendor's right to rescind sale under contract reserving lien was promptly exercised on non payment of price, and purchaser and those claiming under him asserted no claim for thirty-six years and until all connected with transaction are dead, it is not necessary to prove notice to purchaser of vendor's right to rescind. Evans v. Ashe \[Tex. Civ. App.\] 108 SVV 398.

01. Where, after contract had been re-scinded and abandoned, vendee assigned same, acceptance by clerk of vendor of payments from assignee in ignorance of facts held not a ratification of assignment where money was promptly tendered back upon discovery and notice of rescission given. Cutright v. Union Sav. & Investment Co. \[Utah\] 94 P 84.

01. Termination of contract as to future by one party because of default of other is the rescission. Elterman v. Hyman. \[N. Y.\] - 84 NE 87. Action upon default of vendor to recover money paid and to enforce lien therefor and money expended in examining title held not a rescission. Id. Acts of vendor held to show. a forfeiture under contract and not a rescission, hence vendee was not entitled under contract to return of payments on theory of rescission. Oursler v. Thacher \[Cal.\] 93 P 1007.

01. Rescission held not improperly allowed purchasers because they did not account for rent free delivered by vendor to another for them, it not appearing that they received same or knew of such delivery. How to v. Scharbauer \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 556, 103 SVV 679. Platting of land held not to preclude rescission, where there was no dedication of stretch, which vendor could not ignore. Id. Where one deeded property in consideration of lease of academy, which was executed in violation of trust, held that, on setting aside of lease, dead should be can 10 Cur. Law. VENDORS AND PURCHASERS SS 9. 1957

for its reasonable rental value "\*" and the vendor is entitled to a writ of possession," but it should not issue until the purchaser has had a reasonable time to mature and remove his crops."11 The purchaser, on the other hand, may recover all purchase money paid,"2 together with the value of improvement,"3 but he has no lien on the land therefor."4 Where the purchaser rescinds the contract because of the insufficiency of the vendor's title, he cannot thereafter demand such title as he has."5

_Abandonment_ See s C. L. 2228 is a question of intention determinable from all the facts and circumstances surrounding the transaction."6

SS 9. _Interest in the land created by, and rights and liabilities under the contract._ See s C. L. 2228.\_The contract is largely determinative of the rights of the parties thereto." Upon the execution of a contract of sale the vendor becomes a trustee of the legal title for the benefit of the purchaser,"8 who becomes the equitable owner "9

celled. Hendrix College v. Arkansas Town-

v. Pettit, 46 Wash. 668, 91 P 190. WV con-

sitc Co. \[Ark.\] 108 SWV 514.

#9. Gayle v. Troutman, 31 Ky. L. R. 118,

103 SWV 342. Rent should be set off against

owner's consent, which was not obtained.

purchase money paid. Id.

W the solo plaintiff's land to defendants

70, 71. Gayle v. Troutman, 31 Ky. L. R.

718, 103 SWV 342.

72. Tucker v. Denton \[Ky.\] 106 SWV 280;

plaintiff's land, he refusing to assent and are

maples Co. \[N.Y.\] 84 NE 943. Where contract

is resccluded and cancelled, debt of purchaser

is discharged. Wheeler v. Preston \[Ky.\] 107

825. Evidence in action to quiet title held

SWV 274. Where recession is allowed, ven-

dor could not escape liability for purchase

money on groudth that it was paid to him

for former owner, where he had arranged to

purpose and closed deal with the money,

Houts v. Scharbauer \[Tex. Civ. App.\] 19 Tex.

Ct. Rep. 556, 103 SWV 679. In action to re-

scind sale and recover land, evidence held to

show that rents and profits more than offset

value of improvement, purchase money paid,

and interest. May v. May \[Ky.\] 110 SWV 808.

73. Upon regression of contract, purchaser

is only entitled to recover value of improvements

ments made less value of improvements re-

money by him. Wheeler v. Preston \[Ky.\]

107 SWV 274.

74. No lien for money paid. Davis v. Wil-

lima Rosenzwek Reality Operating Co.

\[N.Y.\] 84 NE 943.

75. WValton v, McKinney \[Ariz.\] 94 P 1122.

01. Where contract of sale does not re-

quire purchaser to remain in possession, va-

beneficially, under a trust feed which auction of premises does not constitute an

abandonment of contract. Pfeffer v. Wilkie

\[Tex. Civ. App.\] 107 SWV 361. Where contract

provided for for forfelture for nonpayment of

vited bonaf to make further payment, declared his

vited outside title in obliges sufficient to

intention of abandoning contract and ten-

adered key and possession, which were ac-

judgment creditor of beneficiary. Oder v.

cepted, held that there was complete re-

scission or abandonment. Cutright v. Union

Sav. & Inv. Co. \[Utah.\] 94 P 884. Evidence

timber therefrom. Loudermill v. Martin

held to sustain finding of abandonment by

mutual consent. Saxon v. White \[Okl.\] 95 P

dead does not affect right. Id. Purchaser

73. Where at time of completing contract

many recovery of vendor for trees cut. New-

providing that if title shown by abstract to

SWV 391. Acceptance of feed does not waive

be furnished was not good or could not be

recovery for trees cut by vendor after con-

made good payments were to be returned,

tract of sale was executed, especially where

vendee knew that vendor held only a con-

purchaser did not know thereof. Id. One

tract for title, he could not recover pay-

not a party to contract cutting trees held

ments on abstract showing such fact. Pierce

not a proper party, Id.

under the power of eminent domain does not abrogate the contract."1 Except as affected by the doctrine of bona fides,"2 a purchaser takes the title of his vendor subject to all existing equities."3 In the absence of a provision to the contrary, the vendor may retain possession " until performance,"5 but where the purchaser is entitled to possession, the vendor cannot maintain ejecment against a stranger." While, ordinarily the possession of land by the purchaser under a contract of sale is not adverse," it becomes so upon full performance." Where the contract calls for a perfect title, an outstanding title purchased by the vendee during the executory period inures to the benefit of the vendor." Where a vendor retaining the legal title as security obtains judgment on the purchase-money note and levies upon and sells his vendee's interest, the purchaser thereof acquires the interest both of the vendor and the vendee.

While a purchaser in possession cannot ordinarily retain possession and repudiate his obligations,"1 the rule applies only where possession is taken under the contract,"2 and to the land embraced therein,"3 and equity may disregard the rule to effect justice." Nonpayment of deferred payments does not affect the sale."3

**S1.** Award becomes subject-matter of con- veyance. Clarke v. Long Island Realty Co., 140 NYS 697.

82.\*\* See Notice and Record of Title, 10 C. L.

83.\*\*Dickson v. Sentell, 83 Ark. 385, 104 SWV 148.

84.\*\*Wendee purchasing outstanding undif- bcr. Acree v. Rozzell \[KY.\] 108 SWV 845.

85.\*\*Vendee purchasing outstanding undif- vled interest held not entitled to possession feeded with a trust holds in trust for bene- facaries. Turner v. Edmonston \[Mo.\] 109 SWV 33; Chadwick v. Arnold \[Utah\] 95 P 527.

86.\*\*Evidence held to show notice. Chadwick v.

87.\*\*Wendee purchaser v. Edmonst v. Karsch 140.

88.\*\*Wendee purchaser v. Edmonst v. Karsch 140.

89.\*\*Wendee purchasing outstanding undif- vled interest held not entitled to possession feeded with a trust holds in trust for bene- facaries. Only entitled to reimbursement.

30.\*\*Wendee purchaser v. Edmonst v. Karsch 140.

89.\*\*Wendee purchasing outstanding undif- vled interest held not entitled to possession feeded with a trust holds in trust for bene- facaries. Turner v.

10 Cur. Law. Vendors and purchasers $ 10.

As the vendor may sell the land subject to the contract,96 likewise may the purchaser ordinarily assign his interest.97 As between the purchaser and his assignee, the terms of the assignment fix their respective rights.98 Where the purchaser assigns only an interest in the contract, upon acquiring the legal title he holds it in trust to the extent of the interest.99

\_Interest, rents, and profits.\_See $ C. L. 2229--A conveyance of the fee by operation of law transfers all rents thereafter accruing,1 and a purchaser who has completed h:s contract and is entitled to a deed is entitled to the rents.2

\_Insurance.--Unless otherwise specified, insurance maintained on the premises by the purchaser is for his own benefit.\_3

$ 10. \_Liability consequent on breach.\_See $ C. L. 2220--Where a contract is made in one state for the sale of land in another, the money to be paid in the former, the lex loci contractus controls as to rights growing out of a breach thereof.4

\_Rights of the vendor.\_See $ C. L. 2239--The contract by express stipulations may fix the rights of the parties upon a breach thereof.5 By express provision in the contract,

der sufficient deed, that abstract disclosed ----within--in--in--in--in--outstanding--claim--, holder--of--which--threat--and--to--extend--to--get--def--and--had--commenced--action--, that--plain--find--and--refused--to--correct--def--and--and--aver--willing--ness--to--perform--,--Sheffield--v--.--Hurst--,--31--Ky--L--R--$ $90,--14--$ $SW a vendee in possession may become liable as a tenant upon default,\* but there seems to be a conflict of authorities as to whether he may be so held in the absence of such provision.\* The North Carolina summary proceeding, however, is inapplicable unless the relation has become purely one of landlord and tenant.\* Upon the wrongful refusal of the purchaser to perform, the vendor is entitled to the earnest money.\* Where the purchaser, relying on the vendor's assurances that he could convey good title, rents the land but, upon discovering that the title was defective, notifies the vendor to look to the tenant for rent, he is not liable therefor.\* Upon default the vendor cannot sell the property at public sale and hold the purchaser for the difference between the agreed price and the sale price.\* \_Bights of the vendee._See * C. L. 2220_.\_Where the contract provides for the rights of the parties, it is conclusive.\* Under a contract stipulating for a return of the earnest money upon vendor's failure to perform, the vendors are jointly and severally liable.\* Upon a breach of the contract by the vendor,\* the purchaser may recover the purchase money paid, and he has an equitable lien upon the land for the same,\* but not for the cost of examining the title.\* The fact that vendor agrees to convey only by a special warranty deed does not prevent the purchaser from deducting value of land lost through matters occurring prior to acquisition of the title by the vendor.\* A purchaser rejecting a defective title, not knowing of the true condition thereof, may thereafter demand the same upon learning of the facts.\* _Measure of damages._\* \_G. Whereby contract vendor was author- ized to treat vendee in possession as tenant holding over upon default and to take immediate possession, ninety days' notice to vacate is not necessary. Murphy v. McIntyre \[Mich.\]\_11% NV 197.

10 Cur. Law. VENDORS AND PURCHASERS $ 10. 1961

\_Deficient quantity or other partial failure of consideration.\_See * C. L. 2282.-Where the sale is in gross, \[20\] in the absence of fraud \[21\] or gross mistake, \[22\] the purchaser is not entitled to an abatement in the price for a deficiency in quantity, \[28\] but where the sale is by the acre, \[24\] he may recover for a material shortage. \[25\] A distinction, however, must be observed between a deficiency in quantity and a failure of title to a portion of the land sold. \[26\] Where quantity is referred to, the sale will be presumed to have been by the acre, unless the contrary appears. \[27\] The rights of the parties are frequently regulated by special covenants. \[28\] Where the vendor's title fails to a portion, the amount deducted should be such proportion of the whole price as the value of such portion bears to the value of the whole tract. \[29\] A material shortage may justify the purchaser in refusing the deed and authorize an action as upon default. \[30\]

**20.** Evidence held to show that sale was in \[v. Hunter, Benn & Co. (Ala.) 45 S 999), and gross. Emerson v. Stratton \[Va.\] 58 SE 577. Contact for sale of certain city lots continent as sale of entire lot for gross sum and out to belong to grantees, held not to make sofa as deciding to quantity. Urbach v. \[28\] 25. Giving of bond in specific amount to carry as to quantity, sale is in gross. Brassel v. Fisk \[Ala.) 45 S 70. Where track is specifically bounded and quantity is mentioned without any covenant, the whole must be considered as descriptive. Id. Where purchase money is not an equinultiple of another faces, it is strongly persuasive of sale in gross. Emerson v. Stratton \[Va.\] 58 SE 577. Where, after discovering a shortrage, v.

## 11 Rights after conveyance

See 1. L. 2232.-A contract for a dead merges in the deed 31 and, although it called for a good and sufficient title, the purchaser must rely on the covenants in his deed \[22\]. Where the vendor remains in possession after execution of a warranty deed, he is presumptively a tenant of the purchaser \[23\].

## 12 Verdor's liens and their enforcement

A. _Expres._\*\*See 1. L. 2234.-A vendor's lien expressly reserved to secure a loan is superior to homestead rights, though the money was not furnished by the vendor and was not a part of the purchase price \[34\]. Where vendor, to accommodate the purchaser and those to whom he has re-sold a part of the land, releases the lien on the part sold, but expressly reserves it as to the remainder, he has a lien on the remainder for all of the unpaid price \[35\].

## 13 _B. Implied_

See 1. L. 2234.-A lien is implied in every sale for a definite sum 3\* of money \[37\] where the consideration has not been paid * unless waived \[39\], expressly or impliedly, as where other security is taken \[40\]. No affirmative act on the part of the vendor is necessary to create it \[41\], and it is not destroyed by the fact that the note is payable to a third person where so made payable with the vendor's consent \[42\]. Where the vendor has been induced by fraud to accept a worthless note and mortgage, he may tender them back and assert a vendor's lien for the amount thereof \[43\].

In some states the conveyance of the legal title is essential to a vendor's lien \[44\].

value the rear shortage. Urbach v. Pye, 109

S 501. Purchase money is a lien upon equity-NYS 207. Where contract bounded land and stable interest of purchaser under contract of stated that it contained about eighty acres, pale, and may be enforced by sale of equita. price to be $1,000 per acre, a survey to be made, held that fact that there were 95 and SSV 1110. Lien is preserved upon equitable fraction acres did not justify refusal of ven-dee to accept. Sheindelman v. Colyer, 122 App. Div. 879, 106 NYS 762.

\_Although bond for deed showed husband to be purchased, yet where deed conveyed to husband and wife for life, with remainder to their daughter, children by former wife could not claim interest therein. Noble v. Noble, 30 Ky., L. R. 629, 99 SWY 33.

## 14 _Wheeler v. State, 190 N. Y. 406, 83 NE_

## 15 _S._

SSV 111. _Rights after conveyance_

See 1. L. 2232.-A contract for a deed merges in the deed 31 and, although it called for a good and sufficient title, the purchaser must rely on the covenants in his deed \[22\]. Where the vendor remains in possession after execution of a warranty deed, he is presumptively a tenant of the purchaser \[23\].

The lion is superior to homesetad rights \[45\] and to any interest subsequently acquired in the land with notice,\[46\] but unenforcible against a bona fide purchaser.\[47\] The lion passes with the assignment of the debt.\[48\] The lion may be extinguished by merger.\[49\] While a snety on a purchase-money note who pays the same succeeds to the vendor's rights, the rights of the purchaser are not divested \[50\] in the absence of an agreement.\[51\] (SS 12) \_C. Remedies.\_See * c. L. \[2235\]--The action to enforce the lion must be timely brought,\[52\] and all persons having an interest which may be affected thereby must be made parties.\[53\] The bill must allege a willingness on the part of petitioner to perform all the obligations imposed upon him by the contract,\[54\] and, if the purchaser relies upon a waiver of the lion, he must plead the same.\[55\] Unless admitted,\[56\] the petitioner must prove the amount due.\[57\] The party asserting a waiver has the burden of establishing the same \[58\] by clear and convincing proof.\[50\] A deficiency decree cannot be rendered in a suit to forclose a vendor's lion,\[60\] but a provision should be made requiring the vendor to make a conveyance upon payment of the judgment.\[61\] The judgment is conclusive as to the amount of the indebtedness and, for the purpose of appeal, on all litigated questions, but as to questions incident to the sale, it is interlocutory.\[62\] Where the order of sale only directs the sale of sufficient to pay the debt and all is not required, the commissioner should sell that desig nated by the purchaser."93 Where the purchaser agreed with the vendor to let the sale go on under an agreement that the latter should purchase and resell upon payment of the debt and costs,94 he cannot set aside the sale for irregularities."95

Footnote 94: The _L.L._ is the _L.L._ is the _L.L._.

SS 13. _Enforcement of the contract of sale._See * C. L._._\[2235\]--Where the contract has been repudiated,96 suit may be instituted before time for performance.97 Persons directly affected by or interested in the action should be made parties thereto.98 The complaint must allege performance by plaintiff of all conditions precedent 68 and must show a default on the part of defendant.99 Where the contract is pleaded by way of inducement only, the same particularity is not required as if it were the basis of the action.71 Abandonment of the contract by plaintiff is defensive matter which should be pleaded in the answer.72 Plaintiff must prove all facts essential to place defendant in default 73 and to show a cause of action in himself.74 The usual rules of evidence 75

63. Asked in pleadings to have home ex-

snows that money was paid and delivery was

cepted. Wheatly v. Hardin Nat. Bk. \[Ky.\]

not made, it is sufficient without alleging

106 SWV 289.

that time for delivery of deed had arrived.

64. Evidence held to authorize court to as-

sume such agreement. Williams v. Burke

\[Tex. Cyt. App.\] 20 Tex. Ct. Rep. 816, 108 SWV 160.

71. Petition held for money had and re-

01.

01. Williams v. Burke \[Tex. Civ. App.\] 20

part of consideration for certain land, that

Tex. Ct. Rep. 816, 108 SWV 160. In pleading

such defense, it need not be alleged that

more matters of inducement. Pfeiffer v. purchaser held land subject to sale for stipulated perlod. Id.

107 SWV 361.

66. More refusal of vendor to accept tender

of deferred payments does not amount to

\[Tex. Ct. Rep. 876, 107 SWV 361.

repudiation. Hall v. Northern & So. Co.

\[Fla.\] 46 S 178. Before repudiation can be

bounded "by land of Division avenue." Evi-

based upon failure to give possession, it

tence in action for damages for failure to

must appear that contingency had expired

give marketable title held not to show that

which gave right to possession and that it

\[108 NYS 560. Venees were to receive par-

had been demanded and refused, Id. General allegations that vendor refused to carry

ticular month's rents and vendor agreed to

out contract should be construed with specific additions. Id. Conveyance to third

party repudiates contract to convey at future time. Wolfvr v. Meyer \[N. J. Law\] 56 A

such promise to prove payment to such per-

958.

Reeeights and statements of such person held

\[10.\]

7. Wolf v. Meyer \[N. J. Law\] 66 A 959.

Reeeights of such person held

\[10.\]

8. In action by vendee against depostary

of part of purchase price for conversion by

refusing to return same, vendor should be

\[10.\]

beinged where question is as to who is entitled to show

\[10.\]

the money under contract. Vanoni

\[10.\]

U. Alter, 107 NYS 880.

\[10.\]

9. Under Code Civ. Proc. $ 533, allegation

that plaintiff has "fully performed each and

every one of the terms of the agreement, on

her part to be performed," held a sufficient

allegation of tender of deed. Murphy v.

Hart, 123 App. Div. 648, 107 NYS 452. Bill

Alleging contract of sale, possession by ven-

dee and his administrator and nonpayment

of price held insufficient to sustain decree

for vendor's line for specific performance or

for balance due, there being no showing of

good title or tender of conveyance to defend-

\[10.\]

and administration. McKinnon v. Johnson

\[Fla.\] 45 S 451.

70. Complaint for damages for breach held

\[10.\]

8. Asked in pleadings to have home ex-

\[10.\]

8. A. Evi-
   and instructions "\* apply. In an action to recover earnest money on the ground that defendant does not have legal title, a finding that he does not have title is sufficient without a finding as to who has the same." The fact that a vendor in a bond for a deed conveyed the land in order that an execution issuing on a judgment on purchase-money note could be levied thereon as the property of the purchaser does not invalidate the levy."

VENDORS' LIENS, see latest topical index.

VENDE AND PLACE OF TRIAL.

E. Effect of Improper Venue and Taking

A. The Nature of the Action, 1965.

B. Local or Transitory Actions, 1965.

B. When Change is Allowable, Necessary,

C. Special Actions and Proceedings and

or Proper, 1970.

Equitable Proceedings, 1967.

B. Procedure for Change, 1972.

D. Suits By and Against Corporations,

8 4. Results of Change of Venne, 1974.

SS 1. \_The proper venue. A. The nature of the action.\_See & C. L. 1806

(SS 1) _B. Local or transitory actions._ See & C. L. 2236.--At common law, and generally, an action affecting real estate is local," and must be brought in the county where the property or a part thereof " is situated, but in Oklahoma the rule is otherwise." In the case of incororeal hereditaments, the proper venue is where the right is to be exercised." Action having been properly brought in the county where land is situated in part, jurisdiction is not lost by failure of proceedings with regard to the portion of the land so situated " or by raising issues which standing alone would properly be triangle in another jurisdiction," nor does a local action become held inadmissible against vendee in absence

tions concerning real estate must be brought

of showing of authority from vendee to re-

in the county in which the real estate is still

resent him. Munson v. McGregor \[VWash.\]

uated. Greene Cattle Co, v. Hereford \[Ariz.\]

94 P 1085. Evidence as to whether an attor-

94 P 1177. An action of accounting Involv-

ney who had examined title would pass same

ing the question whether certain real estate

is inadmissible on issue of marketability,

is comparatively property is an action in-

being an opinion. Walters v. Mitchell \[CaL.

volving the title to real estate, and under

App.1 92 P 315. On issue as to whether

Code Civ. Proc. 5 982 must be tried in the

whole or only part of let was sold, deed ten-

county In which the property is situated.

dered by vendee with purchase money and

Chappell v. Chappell, 109 NYS 648.

testimony of agent as to what vendor told

80. Hill v. Griffin \[Kan.\] 90 P 808. Where

him he wished to sell held admissible. Har-

a portion of mortgaged property is released

ten v. Loffler, 29 App. D. C. 490. Understanding between vendor and his wife as to

and land in another county is transferred

ing between vendor and his wife as to

a amount sold held immaterial on issue of

may be had in either county as if the land

what was sold. Id.

76. Instruction held erroneous as requiring

jury to find that purchase-money note used

81. Actions affecting real estate must be

on was without consideration, was obtained

brought in the county where the defendants

by dures, and that plaintiff was insolvent,

or any of them reside. Organic Act, SS 10,

whereas lack of consideration is in itself a

Medulla v. Rice \[OKL\] 91 P 1032.

defense. Hoffman v. Lemm \[Tex, Civ. App.\]

82. Plaintiff claimed prior right by approp-

20 Tex. Ct. Rep. 431, 106 SSV 172.

priation to divert water for irrigation in Ne-

77. Though alleged to be in particular person. Walters v. Mitchell \[CaL App.\] 92 P

fendant. Action to quiet title properly

sit5.

78. Note endorsed by payee and judgment

obtained by indores. Stocking v. Moury,

129 Ga. 257, 58 SE 712.

79. Action on contract for the removal of

standing timber. Seymour v. La Fursey

\[VWash.\] 92 P 267. A statutory proceeding

for the partition of land. Douglas v. John-

son \[Ga.\] 60 SE 1041. Sult to compel con-

veyance to principal of real estate, bought

by agent in his own name, falls under Rev.

El. 1801, 1 1294, subd. 12, providing that ac transitory by reason of issues of a transitory nature raised during trial,"85 but an action begun as transitory may become local from issues so raised."94 By statute, in most states, actions against public officers for acts done by virtue of the office are local and must be brought in the county in which the cause of action arose 87 or the defendant holds office."95 United States officers come within this rule,"88 but it does not apply to acts of misfeasance or nonfeasance not directly interfering with the rights of third parties,"0 nor can it deprive the supreme court of its original jurisdiction which extends throughout the state."1 Venue of transitory actions is largely governed by statute and is usually in the county where defendant resides,"95 or where he may be found,"95 or where the cause of action arose,"94 or in county of plaintiff's residence."95 Although summons is served elsewhere,"96 the residence of a party for the purpose of determining venue is the permanent, not temporary place of residence."7 Two causes of action arising out of the same transaction may be tried jointly, although venue is improper as to one of them if standing alone." In some states action against a non-resident \*\* or a defendant whose residence is unknown 1 may be brought in any county plaintiff may select. An action to recover a personal judgment or decree is transitory by means of a transitory nature raised during trial,"85 but an action begun as transitory may become local from issues so raised."96 By statute, in most states, actions against public officers for acts done by virtue of the office are local and must be brought in the county in which the cause of action arose 87 or the defendant holds office."97 United States officers come within this rule,"88 but it does not apply to acts of misfeasance or nonfeasance not directly interfering with the rights of third parties,"90 nor can it deprive the supreme court of its original jurisdiction which extends throughout the state."1 Venue of transitory actions is largely governed by statute and is usually in the county where defendant resides,"97 or where he may be found,"97 or where the cause of action arose,"94 or in county of plaintiff's residence."95 Although summons is served elsewhere,"96 the residence of a party for the purpose of determining venue is the permanent, not temporary place of residence."97 Two causes of action arising out of the same transaction may be tried jointly, although venue is improper as to one of them if standing alone."98 In some states action against a non-resident \*\* or a defendant whose residence is unknown 1 may be brought in any county plaintiff may select. An action to recover a personal judgment or decree is transitory by means of a transitory nature raised during trial,"85 but an action begun as transitory may become local from issues so raised."99 By statute, in most states, actions against public officers for acts done by virtue of the office are local and must be brought in the county in which the cause of action arose 87 or the defendant holds office."99 United States officers come within this rule,"88 but it does not apply to acts of misfeasance or nonfeasance not directly interfering with the rights of third parties,"90 nor can it deprive the supreme court of its original jurisdiction which extends throughout the state."91 Venue of transitory actions is largely governed by statute and is usually in the county where defendant resides,"97 or where he may be found,"97 or where the cause of action arose,"94 or in county of plaintiff's residence."95 Although summons is served elsewhere,"96 the residence of a party for the purpose of determining venue is the permanent, not temporary place of residence."97 Two causes of action arising out of the same transaction may be tried jointly, although venue is improper as to one of them if standing alone."98 In some states action against a non-resident \*\* or a defendant whose residence is unknown 1 may be brought in any county plaintiff may select.\*\*10 Any be brought in any county plaintiff may select.\*\*11 Any be brought in any county plaintiff may select.

tory,3 although arising out of an interest in real property." Suit under and for the enforcement of Federal laws may be brought in any Federal district where defendant may be found.4 Action may be brought in a municipal court of New York, in a district in which neither of the parties reside.5 The proper statutory venue cannot be changed by a rule of court.4 Joint defendants may be sued in any county in which jurisdiction can be obtained of either of them,7 and failure of suit against resident defendant need not defeat jurisdiction as to the other.8

Footnote 4: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 5: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 6: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 7: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 8: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 9: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 10: Our Law. VENUE and place of Trial SS 1C.'

Footnote 19: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 10: Our Law. VENUE and place of Trial SS 1C.'

Footnote 19: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 10: Our Law. VENUE and place of Trial SS 1C.'

Footnote 19: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 10: Our Law. VENUE and place of Trial SS 1C.'

Footnote 19: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 10: Our Law.

was granted, though the policy was made elsewhere.\[16\] When suit is predicated upon defendant's fraud, venue may be had outside the county of defendant's residence.\[14\] In some states divorce suits must be brought in the county of defendant's residence and defendant cannot waive proper venue.\[17\] In Texas a garnishee may answer in the county of original venue but, if answer is controverted, jurisdiction at once shifts to county of garnishee's residence and is not waived by the answer.\[18\]

_Actions for penalties.\[See * C. L. 2238.-An action for a statutory penalty may be joined with an action for damages growing out of the same transaction and proper venue of the latter may control both.\[19\]_

_Injunctions.\[See * C. L. 2238.-A stranger to a judgment, standing upon his rights and not seeking to attack the judgment, may enjoin its execution in the county where levy is to be made and need not proceed in the county of the judgment.\[20\]_

(SS 1) _D. Suits by and against corporations_ See * C. L. 2238.- are regulated by statute,\[21\] and may usually be brought in any county in which cause of action accrues,\[22\] or where the corporation has an agent,\[23\] or does business,\[24\] or maintains its principal place of business,\[25\] but when alternative places of venue are designated, the corporation has no absolute right to change from any one of them,\[26\] and a foreign * 15. German Ins. Co. v. Hazard Bk., 31 KF. L. R. 1126, 104 SWV 725. * 16. Rev. St. 1895, art. 1194, SS 7. Galveston Shope & Hat Co. v. Rowe \[Tex. Civ. App.\] 109 SWV 1101. * 17. Const. art. 6, SS 16, par. 1, held mandatory. Vwatts V. Watts \[Ga.\] 61 SE 593. * 18. Rev. St. 1895, art. 245, 247-251. American Surety Co. v. Bernstein \[Tex.\] 20 Tex. Ct. Rep. 1, 105 SWV 990. * 19. McCullon V. Seaboard Air Line R. Co. \[N. C.\] 60 SE 506. * 20. Seellgson v. Gifford \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 511, 103 SWV 416. * 21. Rev. St. 1899, SS 997 (Ann. St. 1906, p. 878), regulating venue of actions against corporations, cannot be attacked by a corporation chartered subsequent to its enactment upon the ground that it is class legislation and denies the corporation the privileges of an individual. Julian V. Kansas City Star Co. \[Mo.\] 108 SWV 496. A foreign corporation doing business in Alabama consents to the provisions of Const. 1875, art. 14, SS 4, Code 1896, SS 4207, regulating venue in the case of foreign corporations. Kibbler v. St. Louis, etc., L. Co., 147 F 879. * 22. Vinter V. Union Packing Co. \[Or.\] 93 P 93. Rev. St. 1895, art. 1194, SS 23. Galveston Shope & Hat Co. v. Rowe \[Tex. Civ. App.\] 109 SWV 1101. Civ. Code 1895, SS 233. Brooke v. Louisville & N. R. Co. \[Ga. App.\] 60 SE 218. Under $ 997, Rev. St. 1899 (Ann. St. 1906, p. 878), a corporation may be sued in the county when cause of action accrued though it may be the residence of neither party. Julian V. Kansas City Star Co. \[Mo.\] 107 SVV 496. A corispaper publisher may be sued for libel in any county in which the libel is circulated. Merwether v. Knapp & Co. \[Mo.\] 109 SWV 750; Julian V. Kansas City Star \[Mo.\] 107 SWV 496. Action properly brought against corporation in county where the contract in all its essential elements was to be performed notwithstanding the fact that process was served in another county. Code Civ. Proc. SS 72 and SS 51, subd. 3. Glassblock v. Louisville Tobacco Warehouse Co., 31 Ky. L. R. 702, 103 SWV 219. * 23. Under Rev. St. 1895, art. 1194, subd. 25. Southern Pac. Co. v. Godrey \[Tex. Civ. App.\] 107 SWV 1135. Subordinate lodges and deputy grand masters are representatives of a fraternal benefit association within Gen. St. 1894, SS 5185, providing that a corporation shall be deemed a resident of any country where it has an office, agent, or place of business. Taylor v. Grand Lodge A. O. U. W., 93 Nim. 36, 107 NWV 546. * 24. Under Alabama Const. 1875, art. 14, SS 4 and Code 1896, SS 4207, providing that corporation may be sued in any county in which it does business, suit cannot be brought elsewhere without corporation corporation is not necessarily a resident, for the purpose of determining venue, of the county wherein it maintains its principal place of business as required by statute,37 nor can it maintain action in that county as against a defendant resident of another county.28 Where jurisdiction of a corporation is restricted by statute to certain counties, it cannot be sued in a Federal court having no jurisdiction in such counties.29 In some states a foreign corporation may be sued in any county which plaintiff elects.50 Suit against a person and a corporation joint defendants may be brought in any county where jurisdiction may be had of either.81 A railway company may be sued in any county in which it operates,82 or in which the cause of action accrues,83 or in the county nearest to plaintiff's residence,84 wherein defendant maintains an agent.85 A nonresident may sue a railway for personal injuries in any county in which the road runs, operates, or has an agent.86 Suit may be brought against connecting carriers jointly in any county in which either of them is situated,87 or where the initial contract of shipment was made.88 Where the insurance commissioner is exfficio agent of a foreign beneficiary society for the purpose of receiving service of processes, his residence does not determine the proper venue of actions against the corporation.89

(SS 1) \_E. Effect of improper venue and taking of objections.\_See S C. L. 2240 --Improper venue may warrant dismissal of the action 40 upon motion 41 or at the initi 1970 Venue and place of trial $ 2. 10 Cur. Law.

ative of the court,\[42\] but it may be waived by failure to object,\[48\] or by general appearance and participation in the proceedings,\[44\] if the court has jurisdiction of the subject-matter,\[46\] and such waiver may render it mandatory upon the court to proceed to adjudication.\[46\] But where defect is of the subject-matter, venue cannot be waived.\[47\] A defendant, as to whom venue is proper, cannot be heard to object to venue as to another defendant,\[48\] but neither of joint defendants can, by submitting to jurisdiction, waive proper venue as to the other.\[49\]

SS 2. When change is allowable, necessary, or proper,\[See * C. L. 2240.-The right to change of venue is purely statutory and statutes conferring that right must be strictly construed.\[50\] Whether an application for change will be granted is within the discretion of the court where it involves the determination of a question of fact,\[51\] and the ruling will not be disturbed upon review in the absence of gross abuse,\[32\] but when a proper showing has been made the court not only has discretion but it is its duty to grant change of venue,\[53\] and must grant change upon proper motion,\[54\] or of

\\begin{tabular}{l|l} proper. Tatum v. Seaboard Air Line R. Co., & Kansas City Star Co. \[Mo.\] 107 SWV 496. A 128 Ga. 815, 58 SE 465, & statute, providing that suit against a corporation shall be brought at its principal and summons was served in another county, action with be dismissed either on plas in aabatement or motion to quash. Netter-Oppenheimer & Co. v. Elgart (V. Va.) 59 SE \\ segment & & Union Pac. R. Co. \[Utah\] 89 P 715. \\ segment & & 46. Where parties voluntarily appeared, it \\ segment & & was error for municipal court to transfer \\ segment & & the case to another district. Universal Cut- \\ segment & & ter Co. v. Emden, 107 NYS 668. \\ segment & & 47. Improper venue under Code Proc. & \\ segment & & 48. If defect of its subject-matter. Nixon \\ segment & & 49. If defect of the subject-matter. Nixon \\ segment & & 47. If defect of the subject-matter. Nixon \\ segment & & 47. If defect of the subject-matter. Nixon \\ segment & & 48. If defect of the subject-matter. Nixon \\ segment & & 47. If defect of the subject-matter. Nixon \\ segment & & 48. If defect of the subject-matter. Nixon \\ segment & & 49. If defect of the subject-matter. Nixon \\ segment & & 48. If defect of the subject-matter. Nixon \\ segment & & 47. If defect of the subject-matter. Nixon \\ segment & & 48. If defect of the subject-matter. Nixon \\ segment & & 49. If defect of the subject-matter. Nixon \\ segment & & 48. If defect of the subject-matter. Nixon \\ segment & & 49.

10 Cur. Law. VENUE AND PLACE OF TRIAL SS 2.1971

its own initiative.\[55\] Change of venue will be granted to the county of residence of a defendant from the county wherein plaintiff, a foreign corporation, has its principal place of business within the state.\[56\] A corporation is entitled to change of venue as well as an individual.\[57\] Statute permitting change of venue for convenience of witnesses and to promote the ends of justice must be construed as one ground for change and is not separable.\[58\] Under such statutes the place where cause of action arose and a majority of the material witnesses reside is usually considered the proper venue.\[59\] Where the witnesses are equally divided within the state, the nature of their employment,\[40\] or the convenience of a foreign witness who must necessarily be present, may be considered,\[61\] but transportation facilities which make the county of original venue as convenient as that of witnesses' residence are not sufficient to justify denial of change.\[62\] Prejudice of trial judge is ground for a change of venue,\[63\] but such prejudice must be personal and not a possible incidental opinion growing out of business relations of a similar nature.\[64\] The right to change of venue may be waived by laches\[65\] or general appearance,\[66\] and after such waiver the grant of a change as a favor is an abuse of discretion,\[67\] but continuance at the instance of the plaintiff or the court, the defendant not being present, is without prejudice to defendant's privilege.\[68\] A cross bill after dismissal, alleging damages for wrongful suit, is in the part of a disqualified judge. Parrish v. 60. Public officers. Larkin v. Sheldon, 109 Riverside Trust Co. \[Cal. App.\] 93 P 685. 54. Denial held error. Miche Printing 61. Larkin v. Sheldon, 109 NYES 1105. 62. Lambert Snyder Co. v. Smith, 108 NYES 1105. 63. Rev. St. 1889, $ 819 (Ann. St. 1906, p. 992. 791). Priddy v. Mackenzie, 205 Mo. 181, 103 63. First Nat. Bk. of Morris v. Levinson, 8V 968. 119. 119. 173. 64. In an action to foreclose a mortgage, J. Law\] 64 A 990. 65. First Nat. Bk. of Morris v. Levinson, 129 Ill. App. 173. 66. First Nat. Bk. of Morris v. Levinson, 129 Ill. App. 173. 67. The court must inquire not only as to the convenience of witness but whether the ends of justice will be promoted. Larkin v. Sheldon, 109 NYES 1105. Change improperly granted under Code Civ. Proc. 1902, $ 147, to promote the ends of justice, convenience of witnesses not being considered. Castles v. Levinson, 129 Ill. App. 173. 68. Chapter 17. First Nat. Bk. of Morris v. Levinson, 129 Ill. App. 173. 69. First Nat. Bk. of Morris v. Levinson, 129 Ill. App. 173. 68. Chapter 17. First Nat. Bk. of Morris v. Levinson, 129 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 129 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 69. Chapter 17. First Nat. Bk. of Morris v. Levinson, 139 Ill. App. 173. 70. Chapter 17.

nature of a new action in which plaintiff becomes defendant and is entitled to venue in the county of his residence," but a counterclaim growing out of the same transaction as the original cause of action does not entitle plaintiff to a change of venue." A statue permitting change of venue in civil actions includes all actions not criminal." A statutory right to change of venue cannot be abrogated by rule of court." Under statute authorizing the judge ad hoc, to transfer a recused case when trial is not had within nine months of recusation or mistrial, the appellate court is without authority to order a transfer before the nine months have elapsed." On appeal from inferior courts." See 8 C. L. 2242

\*\*SS 3. Procedure for change.\*\*See 8 C. L. 2242--Motion for change of venue should be made in apt time," but where for failure to move in time the motion has been overruled, it is not improper to make a second motion if impropriety of venue makes it incumbent upon the court to grant change of its own initiative." Change is obtained by motion in an action " or plea in abatement," and not by injunction in another action " or by demurrer," and a prayer for dismissal or stay until a suit in another county is determined is not a demand for change of venue." A plea in abatement to the venue filed with pleas to the merits should not be stricken as prejudicial to a fair trial," and the filing of the plea to the merits does not waive the plea in abatement." All parties properly made defendants " must join in an application for change of venue," unless good reason can be shown why they do not," but a defendant improperly joined cannot resist change desired by the other defendants." Where plaintiff may select the county of venue if defendant's residence is unknown, due diligence in seeking such residence must be shown before plaintiff may exercise the privilege." Change is not limited to an adjoining county when the conditions make-

tinuance was had in his absence. Garrett v. for convenience of witnesses upon motion Galveston, etc., R. Co. \[Tex. Civ. App.\] 108

**SWV 760.**

**69. Seeligson v. GIMTord \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 511, 108 SWV 416.**

**70. Jesse French Piano de Organ Co. v. Williams \[Tex. Civ. App.\] 102 SWV 948.**

**71. Rev. St. 1899, SS 818, includes certiorari proceedings. State v. Denton, 128 Mo. App. 804, 107 SWV 446.**

**72. Circuit court rule No. 58 (108 N. W. v.), requiring motion for change of venue to be entered within ten days after the cause is at issue, applies only to proceedings in court and does not abrogate or quality Comp. Laws 1897, SS 10106, authorizing application for change of venue to be made to a circuit court commissioner or to a circuit Judge of an adjoining circuit. Mandamus issued to judge of adjoining circuit. Comstock v. Connine \[Mich.\] 115 NWV 974.**

**73. State v. Reid \[La.\] 45 S 102.**

**74. Promptly. Smith v. Pelton Water Wheel Co., 151 Cal. 399, 90 P 932.**

**In municipal court on or before the jonnder of the issue. Universal Cutter Co. v. Emden, 107 NYS 669. Motion made over six weeks prior to call of case for trial is in apt time. Michele Printing Press & Mfg. Co. v. Arkulas, 131 Ill. App. 461.**

**75.**

**76.**

**77.**

**78.**

**79.**

\*\*77.

ing such change necessary exist also in such adjoining county. \[89\] A petition for change of venue on behalf of a corporation may be verified by its authorized agent. \[90\] Application must usually be accompanied by affidavit of merits, \[91\] and by affidavits setting forth the disqualification of the court, \[92\] prejudice, \[93\] convenience of witnesses, \[94\] or other facts relied upon to support the motion, \[95\] and must affirmatively show the impropriety of original venue. \[96\] Where a defendant is fraudulently joined for the purpose of preventing venue at the residence of the true defendant, an application for change of venue is proper procedure, \[97\] but the grounds for change must be clearly stated or plaintiff will not be required to prove the allegations of his complaint showing cause of action against the resident defendant. \[98\] The nature of the action as affecting venue must be determined from the complaint alone and neither the affidavit nor answer will be considered except as to the question of residence. \[99\] Prayer for change of venue may be abandoned by failure to press or to take exception, \[99\] but an exception preserves all rights, \[1\] and a plea of privilege, if insisted upon, is not lost by an amendment to plaintiff's pleading changing the nature of the action from one in personam to one in rem. \[2\] An order denying change of venue is not appealable. \[90\] Failure of the clerk of court to transmit the papers will not render the proceedings void. \[91\] It is the duty of the court to consider the last of successive motions for change of venue with reference to conditions which then obtain and not with regard to con ditions existing at the time of original demand." Mandamus will not issue to compel a court to grant change of venue when an effective remedy lies in appeal." The municipal court of New York cannot transfer place of trial except by consent of the parties or on statutory demand." In Wisconsin a change of venue on account of prejudice of judge will not be granted until after the lapse of a term at which the case is triangle to permit a substitute judge to hear the case at original venue." The right to contest a change of venue is lost by failure to object and by appearance in the new court," and by standing upon objections and failing to file affidavit of merits, plaintiff concedes that a motion for change may be granted if defendant has made any case, however slight."

SS 4. \_Results of change of venue.\_See * c. L. 2244--A court to which an action is properly removed by change of venue acquires jurisdiction of the cause and subject-matter coextensive with the court of original venue," and the court of original venue has thereafter no jurisdiction for any purpose until the action is finally adjudicated." Where a plea of statutory right to change of venue is filed with a plea to the merits, a directed verdict on the plea in abatement leaves the plea to the merits undisposed of."

VERDIASFERENTENTS, see latest topical index.

VERTDICTS AND FINIDINGS.

8L Definitions and Nature, 1974.

82G. General Verdiets, 1975.

83Special Verdiets and Interrogatories, 1976.

84Conflicts Between Verdiets and Findings, 1981.

85Separate Verdiets as to Different Conts, 1981.

86Submission to Jury, Rendition and Rechercial Verdiets, 1984.

87Amendment and Correction, 1985.

88Recording, Entry, and Effect of Verdict, 1986.

89Findings by Court or Referee, 1986.

Propositions of Law Under the Illinois Practice, 1991.

810Objections and Exceptions, 1991.

SS 1. \_Definitions and nature.\_See * c. L. 2245.

It is the office of a special finding to find and state the issuable facts in a case as the same have been proven by the evidence."

The term "special verdict" as used in the California Code does not mean a finding on every material issue but has for its object to determine whether a general verdict is against the law."

10Hurn v. Olmstead, 55 Misc. 504, 105 NYS 1091.

Water Wheel Co., 151 Cal. 399, 90 P 932.

8. Hamilton v. Smart \[Kam.\] 95 P 836.

1. Demand under Municipal Court Act, 125, subd. 4 (Laws 1902, p. 1497, c. 580). In re Nitchie, 109 NYS 1758: Universal Cutter Co. v. Emden, 107 NYS 669.

1. Under St. 1898, 5 2625, amended by Laws 1901, p. 128, c. 101, and Laws 1905, p. 422, where after anfladavit of prejudice had been filed at a term at which case was no trable but substitute judge attended at the end of term to hear the cause and stands ready to hear it at any future term, mandamus will not issue to compel change. State v. Clemenson \[Wis\] 113 NYS 667.

1. Cook v. Penrod \[Mo. App.\] 108 SW 583; Kruegel v. Daniels \[Tex. Civ. App.\] 109 SW 1108. No record of objection court will pre-sume change was made by consent. Universal Cutter Co. v. Emden, 107 NYS 669.

10 Cur. Law verdicts and findings SS 2. **1975**

\*\*SS 2.\*\*General verdicts.\*\*See 8 C. L. 1245.--A general verdict is a finding of every fact properly averred in the complaint and every fact essential to sustain the action reasonably inferable from the facts properly averred therein.10 The form of the verdict rendered by the jury is immaterial where both parties consent that the jury may return a verdict upon a single issue in the language suggested by the court, where such language is sufficiently intelligible to support a legal judgment.17 It must, however, be responsive to the issues,18 and the instructions19 should be definite and certain20 and signed by the foreman.21

Verdicts are to receive such reasonable construction as will carry out the intention of the jury, the test of the validity of a verdict being whether or not it is an intelligible answer to the issue submitted to the jury.22 Matters immaterial and not

it was result of misapplication of law to findings in material conflict with findings 776.

limited from general verdict. Plyler v. Palic for Portland Cement Co. \[Cal.\] 92 P 56.

\*\*19.\*\*Verdict in disregard of instructions should be zet aside by court. Bentley v. \[Cal.\] 92 P 56; Mitchell v. Tell City \[Ind. App.\] 83 NE 735; Hunter Realty Co. v. Span-

cer \[Okl.\] 95 P 757. Where answers to spe-

eral interrogators contain nothing regard-

amount, court properly refused to receive

ing speed of defendant's car, its negligence

varded. Hines v. Royce, 127 Mo. App. 718,

stands admitted as concerning its motion

106 SWV 1091. Where no dispute under exl-

for judgment in verdict, and general verdict

for plaintiff authorizes presumution that car

recover, it at all, and jury had been properly

was running at highest speed within aver-

instructed, no error to decline to receive ver-

ment of complaint. Indianapolis St. R. Co. v. Hoffman, 40 Tnd. App. 508, 82 NE 548. General verdict for plaintiff

dict for half amount, restructuring them on

defendant's claim that certain house was

transferred as part of consideration in joint

verdict. Chandler v. Hinds \[VIs.\] 115 NW

purchase of certain property and to affirm

329.

plaintiff's claim that same was sold. Martin v. Hoffman \[Kan.\] 93 P 625. Where no finding on alleged breach of warranty general

verdict for contract price of engine

contract to be finding against defendant on

glase of breach of warranty. Liljeblad v. \[Tex. Clv. App.\] 108 SWV 787. General verdict for plaintiff negatives defenses of

frand and agreement not to collect certain

subscription. Warburton v. Trust Co. \[C. C. A.\] 158 F 968. Verdict "for eight hundred

doliars" for punitive damages not illegal as

excluding idea of actual damages, since general verdict implies idea of some actual damages, however slight, regardless of

advertising of damages as punitive by jury. Fields v. Lancaster Cotton Mills, 77 S. C. 546,

58 NE 608. General verdict for pedestrian

suing railroad company for injuries in coli

lision with train is finding of exercise of due

care. Lowden v. Pennsylvania Co. \[Ind. App.\] 82 NE 941. General verdict in employers

favor implies finding that shatt causing injury was improperly guarded. United States

Cement Co. v. Cooper \[Ind. App.\] 82 NE 981.

17. Where, if two separate and independent contracts were entered into, verdict

should be for plaintiff, but if only one contract, entire in nature and terms, verdict

should be for defendant, verdict "we find in favor of entire contract," sufficient to

thorize judgment in favor of defendant. Cameron v. American Soda Fountain Co. \[Ga. App.\] 60 SE 109.

\*\*18.\*\*In action for price of cash register,

where defendant alleged reselision for

frand and breach of warranty, jury not

authorized to fix terms of compromise by verdict but may only find on issues. National

defendant originally sued appeared, and not 1976 VERDICTS AND FINDINGS SS 3.10 Cur. Law. involved in the controversy or beyond the legitimate province of the jury should be disregarded as surplusage.\[23\]

## 8 Special verdicts and interrogatories

When properSee C. L. 2246. In some states the requiring of special verdicts,\[24\] or the submission of questions calling for special findings whenever a general verdict is rendered, is within the discretion of the trial court,\[28\] whose action is reviewable only in case of abuse,\[26\] but in others the court is required to submit special interrogatories whenever property required by a party to do so.\[27\] However, special interrogatories are properly refused where the facts elicited by them are practically brought out by answers to other interrogatories;\[4\]

name of company admitting its operation of curing purchaser was limited. Ewing v. car. Spofford v. Rhode Island Suburban R. Co. \[R. I.\] 69 A. 5. Comission of word dollars was not such defect as to prevent rendering of judgment according to manifest intent of jury, although it might have been more reguilar to amend verdict before judgment. Mensens A. Comless T. Fox. 116 Tex. Ct. Rep. 562, 108 SV 687. Where measure of damages to horse were separated under items of damages, the aggregate amount being amply supported by evidence and vardict when construed with reference to pleadingas and evidence was sufficiently clear, definitely. R. Rhode Island Co. \[R. I.\] 67 County v. Clements, 1 Ga. App. 487, 57 SE 1059. Under Rev. St. 1899, 5 595 (Ann. St. 1906, p. 622), where punitive as well as actual damages were found, and jury were instructed to separate amount of punitive from actual and separate form was given them to make their return and they followed forn forn for actual damages, presumption was that they found only in question of actual damages and verdict was sufficient. Blair v. Paterson \[Xo. App.\] 110 SV 615. 293. Verdict for plaintiff for certain sum including costs not void for uncertainty, since portion regarding c'sts may be disregarded as surplusage. Southern R. Co. v. Oliver, I Ga. App. 754, 58 SE 244. Under verdict "for defendant, defendant to pay forty dollars to plaintiff, plaintiff to retain c's register," held forty dollars for plaintiff cannot be disregarded as surplusage so that unconditional judgment might be rendered for defendant. National Cash Register C. v. Price \[Ind. App.\] 83 NB 776. 24. St. 1898, 8 2858, as amended by Laws 1903, p. 617, 5 330, 9 I. Howley v. Chicago, etc., R. Co. \[Wis.\] 115 NW 865. 25. Maxson v. J. L. Case Thrashing Mach. Co. \[Nob.\] 116 NW 281; Rowley v. Chicago, etc., R. Co. \[Wis.\] 115 NW 865. Under Acts 1899, p. 180, p. 111. Jones v. Creoch \[Tex.\], Civ. App.\] 108 SW 976. 26. No abuse where answering of submitted question either way would furnish no aid to parties in court and general verdict would necessarily be answer to each question. R. Co. \[Nob.\] 116 NW 299. Under Acts 1899, p. 190, p. 111, where though alleged complaint that certain obstruction to sidewalk constituted nuisance issues was not submitted to jury, no abuse of discretion to refuse to submit special issue. Karmpann v. Roth-well \[Tex. Civ. App.\] 107 SW 120. Under Rev. Code Civ. Proc. & 271, proper in action for commissions for sale of land to request jury, in addition to general verdict, to return special finding as to whether time for pro though its submission is not error,\[20\] and the submission of a spcial issue may be refused where a general verdict would necessarily find upon the issue.\[30\]

\_Request for and submission of special issues or interrogatories._See * C. L. 2240_

The court is not required to submit special interrogatories in the absence of a request therefor,\[31\] but may submit them of its own motion.\[32\] Each party must make his own request and neither can object that the request of the other was not complied with,\[33\] but the request should be timely.\[34\] The Federal courts, however, are not governed by the state practice in this regard.\[36\] In Iowa special interrogatories not submitted to the attorneys of the adverse party before the argument was begun are properly refused,\[36\] while in California a request for a special verdict need not be submitted to the adverse party, though the court may do so,\[37\] and in the latter state it is also immaterial whether an issue is called a question of fact or vice versa in the request or whether the request relates to one or several questions.\[38\]

\_Form and requisites of special interrogatories._See * C. L. 2247_--Special interrogatories should be confined to such questions as are controverted \[39\] and put in issue,\[40\]

and charged that assumption of risk was $1 NE 614. Under Burns' Ann. St. 1901, $ 560, form of contributory negligence, refusal to no abuse of discretion for court to refuse submit question whether person of ordinary plaintiff's request for special finding made care ought to have anticipated such an ac-clendent as happened was proper. Zarnik v.

C. Reiss Coal Co. \[VWs.\] 113 NUV 752, judge having taken notes of evidence for 29. Where jury found plaintiff on day of purpose of complying therewith, and plain- and before accident did not know of danger- (iff had no notice of withdrawal of their reasons condition, he cannot complain that question until day set for decision of case, "was condition such as to make it apparent to one knowing its condition that it made special finding would have involved was dangerous to use" was unnecessary.

Beach V. Bird & Wells Lumber Co. \[VWs.\]

he had notes of evidence with him or wheth-116 NUV 245.

**30.** Since in action for injuries general verdict for employe would necessarily find affirmative of issue of employer's negligence, refusal to submit as special issue not error.

St. Jean v. Lippitt Woolen Co. \[R. L\] 69 A 604. Interrogatories proper in other respects but calling for special finding on sole material issue in case properly refused. Haase v. Morton \[Tow.\] 115 NUV 921. Proper, under Code Civ. Proc., to refuse to submit defendants interrogatories where finding favorable to defendant would not have been inconsistent with general verdict for plaintiff. Williams v. San Francisco, etc., R. Co.

\[Cal. App.\] 93 P 122. Where only issue was whether one's mind was so unsound as to be unable to manage her property, court prop- (if) refused to submit question "Is defendant of unsound mind," where issue whether her mind was too unsound for her to manage property was determined by general verdict.

Glet. Conway v. Murphy \[Tow.\] 112 NUV 764.

**31.** No error where no request and reference to pleadings show what court found as basis of decree. McKenzie v. Donnell, 208

Mo. 46, 106 SW 40.

**32.** Revisal 1905, $ 527. Young v. Fosburg

**33.** Appellant cannot object that appell should conform to the pleadings,\[41\] and must call for ultimate,\[43\] material, and pertinent facts,\[43\] except when such facts when found admit of more than one reasonable inference of fact, in which case an interrogatory calling for a conclusion from such inferences may be submitted and answered,\[44\] and should be sufficient to adequately submit the question to the jury.\[48\] Though questions relating to the character, con-

acts were requested, error to refuse them and submit general question whether defendant was guilty of any want of care. Robeyev v. Chicago, etc., R. Co. \[Vis.\]. 115 library care could have known of foreman's INVF 865. Where issue was whether there was sufficient threat of danger arising from smoke to justify employe to descend while it was dark, special interrogatories whether accident was caused by employer's failure to provide guards on walk, whether injury was caused by quantity of smoke about walk, whether smoke was such as threaten employee with bodily injury and whether employee knew there were no guards on walk, hnr, error to refuse special interrogatories of injury and determine issue. Plyler v. Pacific Portland Cement Co. \[Cal.\] 95 P 65. Where judgment is for forty thousand dollars, fact that findings show not only forty thousand dollars damages on one transaction, but also eleven thousand seven hundred on other transaction, and there is nothing by which sum awarded can be referred to any one or more of particular transactions alleged, does not show failure to find on any issue of fact. Great Western Gold Co. v. Chambers \[Cal.\] 95 P 151. Where liability does not depend on whether result of negligent act could have been foreseen, special interrogatories calling for such determination are properly refused. Hase v. Morton \[Iowa\] 115 NW 921.

41. Finding by jury that spikes were loose in ties, and that in making use of soft wood ties not sufficient to hold spikes railroad company did not use best method of keeping track and roadbed in safe and proper condition supports allegations of negligence in complaint. Chicago, etc., R. Co. v. Brandon \[Kan.\] 95 P 573.

01. Interrogatory whether plaintiff proved by preponderance of evidence whether train was standing when she alluded properly refused. Chicago City R. Co. v. Foster, 128 Ill. App. 571, ad. 226 Ill. 288, 80 NE 762. Special interrogatories not determinative of case under all issues but bearing directly upon determination of specific issues, and calling for findings as to ultimate facts essential to determination of such issues, ought to be submitted. Brown Land Co. v. Lehman \[Iowa\] 112 NWV 185. In action against surviving parties' supery, finding that appraisement showed certain things insufficient as finding of evidentiary fact only. American Bonding Co. v. State, 40 Ind. App. 561, 82 NE 543. Plyler v. Pacific Portland Cement Co. \[Cal.\] 92 P 66. Interrogatory calling for state of mind of companions of appellee caused by action or conduct of horse while upon or approaching railroad crossing immaterial. Ft. Wayne Cooperative Co. v. Page \[Ind. App.\] 82 NE 83. Under Old. City, Code, # 298, in action for conversion of cattle, not error to refuse to submit interrogatory as to author of cattle shipped as applying on number delivered, since fact was only Inci-

01. Plyler v. Pacific Portland Cement Co. \[Cal.\] 92 P 66. Interrogatory calling for state of mind of companions of appellee caused by action or conduct of horse while upon or approaching railroad crossing immaterial. Ft. Wayne Cooperative Co. v. Page \[Ind. App.\] 82 NE 85. Under Old. City, Code, # 298, in action for conversion of cattle, not error to refuse to submit interrogatory as to author of cattle shipped as applying on number of cattle shipped as applying on number delivered, since fact was only Inci-

01. But interrogatory calling for conclusion on certain assumed facts and for what ordinarily prudent man would do under all circumstances improper. Ft. Wayne Cooperative Co. v. Page \[Ind. App.\] 82 NE 83.

01. Question of special verdict whether plaintiff sustained injuries in depot grounds sufficiently submitted question whether lawn was part of depot grounds within rule requiring railroad to keep in safe condition its depot platforms and approaches thereto and other portions of its depot grounds reasonably near. Banderob v. Wisconsin Cent. R. Co. \[Vis.\] 118 NW 785. Where plaintiff pleaded gross negligence of operatives of car after discovering decedent's peril in time to stop car, but failing to do so and intentionally injured deceased, question adequate-

by submitted by questions whether before duct, and credibility of witnesses and to the conduct of parties to the suit should not be presented to the jury for special findings,\[44\] it is proper to submit an issue substantially in the language of the statute,\[47\] and for the court to change the language of a requested issue,\[48\] since the form of the question is within the discretion of the judge.\[49\] The question should admit of a direct \[50\] though not necessarily categorical answer,\[51\] and should not assume the existence of disputed facts.\[52\]

Since it is the office of each interrogatory submitted to a jury to elicit a finding upon some single, primary fact, leaving the proper inferences to be drawn therefrom to the court,\[58\] hence two distinct issues should not be embodied in one question of a special verdict, and if they are so embodied and are expressed in the disjunctive and the error is not rendered harmless by instructions or something in the record, the defect is fatally prejudicial,\[54\] though it is not error to submit all the elements of a proximate cause as a single proposition.\[58\]

reaching crossing it appeared to motorman that decedent's team was beyond control and that in absence of effort by motorman led to recover of decollision was inevitable, and whether while being freight objectionable as presupposing man intentionally refrained from making failure of defendant to perform duty, and any effort in good faith to slacken speed of or stop car. Wilson V. Chippewas Valley Elec, R. Co. \[VWs.\] 114 NPV 4E2.

40. Snyder v. Stribling, 18 Okl. 168, S9 P 222.

01. Proper in action under St. 1898, $ 4269, for wrongfully cutting timber. Cook Land Const. & Producing Co. V. Deotto Co. \[VWs.\] 114 NPV 823.

01. Under Code Civ. Proc. $ 625, no error to change words of special interrogatory whether plaintiff furnished satisfactory proofs of loss to "whether the furnished such proofs of loss as were required by said policy." Miller v. Fireman's Fund Ins. Co. \[Cal. App.\] 82 P 382. Where court charged that any damage by hood not coming from cut-off or attributable to it could be considered, and if damage was caused or aggravated by backwaters independent of cut-off such damages could not be considered but only how much damage waters of cut-off caused, no error to strike out word "alone" from questions in special verdict calling for finding as to whether from the negligent construction and maintenance of cut-off alone waters damaged plaintiff's land, and to reasonable value of growing grass damaged "alone" from such waters. Neumister v. Goddard \[VWs.\] 113 NPV 783.

01. No abuse of discretion to precede question with words "If you answer preceding question in affirmative then answer this." Van De Bogart v. Marinette & Menominee Paper Co. \[VWs.\] 112 NPV 443.

01. Player v. Pacific Portland Cement Co. \[Cal.\] 92 P 56.

01. Under Code Civ. Proc. $ 625, categorical answer not required. Plyler v. Pacific Portland Cement Co. \[Cal.\] 92 P 56.

01. Where question whether car had been moved after placed on spur by switchman was material and controverted special interrogatory submitting question whether member of crew immediately after placing car on spur referred to it asking if it cleared and whether switchman answered it would, or removetions for assuming car had not been moved before causing injuries. Chicago, etc., R. Co. v. Lawrence \[Ind.\] 82 NE 768. In Answers to special interrogatories sufficiently responsive and definite to be fairly certain in meaning are sufficient,\[54\] and where any answer to a special interrogatory could not change the result arrived at by the general verdict, an objection to an answer to the interrogatory on the ground that it was too indefinite is immaterial.\[57\]

_Form and requisites of special verdict.\[58\]_ & C. L. 2247...No particular form is required in the submission of special issues to the jury, and if they substantially present all the issues raised by the pleadings,\[58\] and every material fact necessary to support a judgment, it is sufficient.\[59\] A special verdict should not be continued with a general verdict.\[60\]

_Interpretation and construction.\[58\]_ & C. L. 2248...Where a special verdict is susceptible of two constructions, one of which will support the general verdict and the other will not, that construction will be given which will support the general verdict.\[61\] A failure to find a special fact must be regarded as a finding against the party having the burden of establishing it.\[62\] While mere conclusions in a special finding of facts

harmless. Howard v. Beldenville Lumber

to generally, fact that certain disputed Co. \[VVis.\] 114 N NV 1114. Special question

questions of fact were also submitted for not objectionable as so combining forma\* findings thereon does not render verdict want of care and his incompetency that it

special one. Id. One sums to foreclose me-

was impossible to ascertain which jury found to be proximate cause of injury, where

title to remain in him until price paid, entitled to recover, though special findings do

affirmatively if foreman merely failed to use

not state that he elected to treat sale as ordinary care or if he was merely incompetent, but only if injury was caused by

app. 685, 82 NE 1003. In summary proceed-

fromasm, an incompetency person and as a result of incompetency. Young v. Milwaukee

over money on demand, finding that movant

keep Gashlight Co. \[VVis.\] 118 NVR 89.

demand of defendant money collected

with no further special finding that he failed

\[VVis.\] 114 NVR 1114.

56. Answer to question "was steam discharging onto and across highway while plaintiff was approaching?" that "at side of

highway. At times blew across" sufficient as against motion that it was not definite. Ft. Wayne Cooperage Co. v. Page \[Ind. App.\] 83

NE 83. Where rule res ipsa loquitor applies, rebuttable presumption of negligence re-

tains its original force until overcome by

proof of affirmative acts of due care, and if

evidence is wanting of substantial proof of

anything done by defendant to prevent in-

jury, jury are justified in response to interrogatory "Did defendant do all that could

reasonably be done under circumstances in

answering "Don't know." " Bice v. Wheeling

Elec. Co. \[W. Va.\] 59 SE 626.

57. Ft. Wayne Cooperage Co. v. Page

\[Ind.\] 84 NE 145, Atrg. \[Ind. App.\] 82 NE 83.

58. Ormond v. Connecticut Mut. Life Ins.

Co. 145 N. C. 140, 58 SE 917. Under Rev.

Code 1805, $ 8427, verdict not responsive to

issues, in action to recover possession, nor

making and finding as to right of possession,

nor specifying value of cattle, nor finding as

to damages, nor amount of defendant's Iien,

if any, insufficient. Johnson v. Glaspey \[N. D.\] 113 NVR 602.

59. Collins v. Whiteside \[N. J. Err. & App.\]

60 A 174; Aden v. Doub \[N. C.\] 59 SE 162;

Rowley v. Chicador, etc., R. Co. \[VVis.\] 115

NVR 865. St. 185, 8258, as amended

Laws 1003, p. 617, c. 390, g 1. Id. Under

Pennsylvan practice, special verdict must

place on record all essential facts of case

disputed or undisputed upon which facts

alone, without inferences of further facts,

judgment is to be rendered. Elliott v. Milwyler de Co. 158 F 868. Where case is submit-

1980 are to be disregarded if after conclusions are eliminated sufficient remains to constitute a finding,\[63\] and while nothing is inferred by the court in aid of facts specially found, inferences by the jury, where the facts in the absence thereof are uncertain, may become ultimate, essential facts.\[64\] Error in the classification of findings as of law or fact does not prevent the appellate court from classifying them in accordance with their actual character.\[65\]

**SS 4.**_Conflicts between verdicts and findings._ _General verdicts._ See **& C. L. 2240**_-General verdicts and special findings._ _See **& C. L. 2240**_-Where the special findings are in irreconcilable conflict with the general verdict, the former must control,\[68\]

**e3.** Finding that message written by \*\*as question of fact, their answer that there plaintiff and delivered to defendant was message from plaintiff to person named, and **prejudicial**. Chicago, etc., R. Co. v. Morris that in sending message plaintiff acted for himself and was sender of message, suffl- **b**raekman was at end of train being pushed up single track, picking up cars and train struck one, pushed it up hill and it ran down against train, that automatic couplers were not working and that brakeman got down gave signal to back away from car and stepped upon track to fix coupling and was struck and killed while fixing same, Mas- **d**eston v. Southern R. Co. (Ind. App.) 82 NE 1021. By finding that deceased immediately before driving upon track could have seen or heard train four hundred feet away, where logic of general verdict is that deceased was in such position that he could not escape in time. **O**oburn v. Atchison, etc., R. Co., 75 Kan. 746, 90 P 289. By finding that **s** 87 E 664. Kirby's Dif. $268 has reference particularly to verdicts of Jurros but also applies to finding of fact made by trial judge. **e**robhart, 84 Ark. 859, 105 SW 1044. Findings of probative facts can overcome express finding of ultimate fact only where probative facts are incon- **s**ient with ultimate fact, or it appears trial **b**ebtor or that debtor ever impressed court made alleged along of ultimate fact simply as conclusion from particular facts found. **C**orea v. **H**inguera \[Cal.\] 95 P 882. **B**Special findings control only when necessary in conflict. **H**ouse v. **S**effy \[Iowa\] 113 NW 321. Answers override general verdict only when they find facts necessary to support general verdict do not exist or that some fact defeating right to recover does exist. **I**ndianapolis Trac. & T. Co. v. Holdslaw \[Ind. App.\] 82 NE 986. **General verdict overcome by answers to special interrogatories showing that he was directed not to attempt to repair machinery while running and was left opposite certain's rule while superior gave orders to stop machinery and before this was done deceded was caught and killed though standing in safe place when left. **Robbins V. Fort Wayne** **I**ron & Steel Co. (Ind. App.) 84 NE 514. By finding for plaintiff on particular question of fact in avoidance fatal to general verdict, **P**liver v. **P**a**.

but all inferences, intendments, and presumptions must be indulged in support of the general verdict, \[66\] and a motion for judgment on answers to special interrogatories, notwithstanding the general verdict, must be decided on the special findings and the pleadings alone, \[67\] and unless in irreconcilable conflict with the allegations of the complaint and the facts provable under the issues and all inferences that may be given thereto, \[68\] together with all reasonable intendments or inferences which may be drawn from evidence legitimately admissible under the issues, the general verdict must stand. \[69\] On the other hand, answers to special interrogatories cannot be added speed not reasonable with regard to traffic answers, and loss of one of his eyese was and use of highway and does not negative failure to stop when signaled as required by $ 9 of act (Code Supp. 1907, $ 15711). \[\] Valkup v. Beee \[Towal\] 116 N NV 321. By finding that proper inspection would have revealed defect in lever together with finding that witness had not, as testified by him, notified employer of danger prior to academic and that employer had no actual knowledge of defect, although there was evidence of inspection two days before. Zari- think v. C. Reiss Coal Co. \[Vls\] 118 N NV 752. Where finding of no contributory negligence, by special findings that he could, if he had tooked, have seen approaching train five hundred feet away at distance of twenty-five feet from train, it appearing that he had stopped, looked, and listened when fifty feet away and only two or three seconds elapsed from first opportunity to see train until he was struck, and approach to crossing was narrow and steep. Wendel v. Cleveland, etc. R. Co. \[Ind. App.\] 82 NE 469. Where petition alleged passenger was caused to alight at dangerous place and it appeared there were two stopping places available for persons or to have caution and discretion and answer desiring to reach her destination, by special interrogatory, that child was five finding that passenger informed conductor of her destination and conductor caused her to align at first stopping place which was before her destination. Conwell v. Tri-City R. Co. \[Towal\] 112 N NV 546. Where alleged that will was in existence after death of test- tark and list, and paper alleged to contain substance thereof was admitted to probate and jury returned verdict that paper was not last will of testrix, and they did not know whether paper was signed by her or in her presence, by two subscribing witnesses. Bloev v. Platt \[Ohlo\] 84 NE 604. By special finding that steam which frightened plain- judgment cannot be attacked merely because compliant and findings contain in ad- than ordinary quantities, where main issue was one of negligence. Ft. Wayne Cooper- age Co. v. Page \[Ind. App.\] 82 NE 83. Where allegation that as pedestrian proceeded over crossing she continued to look and listen, by special findings of straight track for six hundred feet with pedestrian in center of track thirty feet from approaching train, that trail was operated at such speed as to cover total six hundred feet in less than half minute, that street car had just passed and pedestrian could not hear approaching train on account of noise. Lowden v. Pennsylvania Co. \[Ind. App.\] 82 NE 941. Where jury in action on Insurance policy, though returning general verdict for plaintiff, found especially that statements In application concerning insured'e vlslon and surgical treatment were not true but that the answered all questions truthfully and had no knowledge of false by presumptions,10 and unless it appear from all of such interrogatories taken together that such conflict exists,71 that the special issues if true are decisive of the case,72 and that the answers to interrogatories are not inconsistent with each other, contradictory or uncertain, the general verdict must stand.73

an indictment a general verdict of guilty is valid if there be one good count though the others be defective," but this rule does not apply when there are two counts in the indictment, one-good and the other fatally defective, and where a demurrer to the defective count has been improperly overruled," or there is no evidence to sustain one of them." In an action based on several counts, a finding for plaintiff on a number of the counts is equivalent to a finding for defendant on the remaining counts," and a verdict which ignores one of several defendants is construed as a finding in his favor." Where one of two defendants is entitled to a directed verdict, action thereon should be withheld until the close of the case." In some states if more than one plea is filed to an action, the court should, upon timely request from the plaintiff," cause the jury in case they find for defendant to specify upon which one or more of the pleas the verdict is rendered."

The form of verdict in the Federal court is not dictated by the state practice, and a general verdict is permissible in the discretion of the court in an action at law unless the statutes of the United States otherwise direct."

SS 6. _Submission to jury, rendition and return._ See S. C. L. 2251.-A quotient verdict is void " where the jurors agree to abide by the result so obtained." The jury

and finding issues for tenant, sufficient as

has been finally received and jury has disagainst objection that it did not make separa-

persed. Crockett & Co. v. Garrard & Co. rate findings on petition and counterclaim.

\[Ga.\] 61 SE 552,

Lauderdale v. King \[Mo. App.\] 109 SW 852,

87. Civ. Code, 1895,

01. Crockett & Co.

01. Seaboard Air Line Co. v. Smith \[Ga.\] 61 SE 552,

Where

App.\] 59 SE 199. Error, if any, in overruling

complaint was in two counts, first on ex-

demurrer to first count in declaration, and

press contract and second on quantum

in sustaining demurrer to plea to said count.

merult, and court charged plaintiff could

held not cause for reversal in view of Code

not recover on first general verdict in favor

Pub. Gen. Laws, 1904, art,

5, & 17, providing

that no judgment or verdict shall be reversed

for any defect in any count, if there is one

good count in declaration. Alvey v. Hartwig

\[Md.\] 67 A 132.

ground that it does not advise court on

81. Seaboard Air Line R. Co. v. Smith \[Ga. App.\] 59 SE 199. A general verdict of guilty

cannot be sustained since it is impossible to

know on which count it was rendered, and if

round for full amount upon both causes.

rendered on both verdict of necessity must

be invalid. Id. Refusal to sustain demurrer

\[Michigan Mut. Life Ins. Co. v. Whittaker, 9

to bad paragraph of complaint held re-

88. General verdict in several counts in

versible error where it did not affirmatively

appear on which of two paragraphs verdict

swer, sufficient in Federal court in law

reset. Lake Erle, etc., R. Co. v. Moore \[Ind. App.\] 81 NE 85.

82. Where negro ejected from restaurant

sued on counts of assault and battery and

refusal of equality of civil rights and there

was no evidence to sustain latter count, general verdict cannot stand since it cannot be

determined upon which count it was ren-

dered. Chase v. Knabel, 46 Wash, 484,

90 P

642.

001. Phillips v. Geiser Mfg. Co, \[Mo. App.\] 107 SW 471. Where declaration

contains two counts and verdict finds for plaintiff on one specified count for amount less

than was claimed in that count, and verdict

does not mention other count, such verdict

is in law effectual finding for defendant on

count not mentioned. Marianna Mfg. Co. v. Boone \[Fla.\] 45 S 754.

84. Wabash R. R. Co. v. Keeler, 127 Ill. App. 265.

01. Jury should not be called upon to render two verdicts at different times. Lehigh

Valley Transportation Co. v. Post Sugar Co.,

128 Ill. App. 600.

86. Request timely where before verdict

01. General verdict in several counts in

01. Phillips v. Geiser Mfg. Co, \[Mo. App.\] 107 SW 471. Where declaration

tains two counts and verdict finds for plaintiff on one specified count for amount less

than was claimed in that count, and verdict

does not mention other count, such verdict

is in law effectual finding for defendant on

87

the same thing.

88. Wabash R. R. Co. v. Keeler, 127 Ill. App. 265.

01. Jury should not be called upon to render two verdicts at different times. Lehigh

Valley Transportation Co. v. Post Sugar Co.,

128 Ill. App. 600.

86. Request timely where before verdict

01.

should not attempt to apportion the amount of damages awarded between joint tort feasors.${}^{\\text{\\text{\\textregistered}}}$ That a jury remained in retirement only ten minutes before returning their verdiet is insufficient to impeach or weaken it.${}^{\\text{\\textregistered}}$ Where the answer of each juror clearly indicates that the verdict was at the time of polling and at the time of rendition the verdict of each juror, the manner of polling is immaterial.${}^{\\text{\\textregistered}}$ While in Georgia it is better practice for the jury to write their verdict upon the initial pleading properly dated and signed by the foreman, none of these details are essential to a legal verdict.${}^{\\text{\\textregistered}}$ In this state also the presiding judge may in his discretion designate the foreman.${}^{\\text{\\textregistered}}$

SS 7. _Amendment and correction._ See 8 C. L. 2251.--The authorities agree that until the verdict is actually agreed upon, returned into, and received by the court recorded and the jury discharged from its consideration, the jury has control over it and may withdraw it or amend or change it as it may decide, except in cases of sealed verdiets where the jurymen have dispersed.${}^{\\text{\\textregistered}}$ The Illinois practice, however, makes certain exceptions to this rule.${}^{\\text{\\textregistered}}$ A clerk has no right after a trial has terminated to change the verdiet for plaintiffs as recorded in his minutes by adding words thereto, even though they were contained in the verdict as announced by the foreman where the jurors assented to the verdict as originally recorded.${}^{\\text{\\textregistered}}$ The trial court, however, may amend a verdict so as to make it conform to the intent of the jury and effectuate its real meaning,${}^{\\text{\\textregistered}}$ both as to matters of form and substance, at any time during the term either by reference to the judge's notes taken at the trial or by other satisfactory evidence,${}^{\\text{\\textregistered}}$ but the court may not inquire as to the method used in reach-

**91. Where both defendants were found**

Salemon v. New York City R. Co., 56 Misc. guilty of gross negligence causing decedents.${}^{\\text{\\textregistered}}$

502, 107 NYS 68. Proper to send jury back death, and damages were assessed at five thousand and jury undertook to apportion

because defendant put in no evidence and damages between defendants, so much of verdict as apportioned damages should be disintegrated and undermination regardless of absence of evidence by defendants

and led. Where jury by agreement returned for full amount fixed by verdict. San Marco

sealed verdict and separated, and such verdict was opened in absence of jury, likewise

App.1 107 SVV 1151.

92. Gulf, etc., R. Co. v. Harrison \[Tex. Civ. App.1 19 Tex. Ctr. App.1 815, 104 SVV 399.

01. Chicago City R. Co. v. Shreve, 128 Ill. App. 462. Where verdict returned was peemuller and uncertain, the court could in its discretion, in addition to usual question.

"Is this your verdict?" permit jury to be asked, "Are you still satisfied with the verdict?" the question not calling for explanation of verdict, nor reasons for returning it.

State Life Ins. Co. v. Postal \[Ind. App.1 84 NE 156.

94. Unigned verdict not illegal. Southern Exp. Co. v. Madox \[Ga. App.1 59 SE 821.

Fact verdict was written in plea, immaterial.

Sapp v. Parrish \[Ga. App.\] 59 SE 821.

95. Southern Exp. Co. v. Madox \[Ga. App.\] 59 SE 821.

01. Where disclosed before verdict was fully received and recorded that it did not meet approval of whole panel and jury had

one of which panel and jury had not left box, it could be sent back for further deliberation and its subsequent verdict

could be received and acted upon as its final determination. State Life Ins. Co. v. Postal

\[Ind. App.1 84 NE 156. Until jury is actually discharged, they may be sent back after

giving verdict, and before it is recorded not only to correct mistake in form or make

plain what was obscure, but to alter it in

substance if they so determine and agree.

10 Curr. L. - 1?5

105 ing the verdict," nor as to what evidence was considered," and where the finding contains all the facts proved which are material to the proper presentation of the questions of law raised by the appeal, there is no error in refusing to make the corrections asked for," neither is it error to overrule a motion for a more specific answer to a special interrogatory which should not have been given." The time limited by statute for a motion to set aside a verdict or vacate a judgment cannot be extended under the guise of a motion for a reargument."

In Wisconsin the findings in an equity suit may be amended by the court within one year after the entry of judgment."

SS 8. \_Recording, entry, and effect of verdict.\_See S C. L. 2252--All questions of fact fairly presented are determined by the verdict."

SS 9. \_Findings by court or referee.\_Reference.\_See S C. L. 2252--Findings of a referee must be upon the issues of the case and a referee should not allow a claim forming a cause of action distinct from the one on which issue was taken."

\_Findings by the court.\_See S C. L. 2252--The findings must be based upon and as broad as the material issues 10 and defenses involved,11 unless a finding thereon

certain date, court might amend so as to make award draw interest from that date which was fixed as date of breach of contract on which award was made. Miller v. Steele (C. C. A.) 153 F 714; Harrington v. 580, $ 254. Applebaum v. Bonagur, $6 1946, etc., R. Co. (Mont.) 93 F 640. Where no notice of question of interest on plaintiffs claim was taken until after verdict was re-dered and jury discharged court, cannot on (County Mut. Fire & Lightning Ins. Co. (V1:.) motion after term at which cause was tried correct entry of verdict by making order including interest on plaintiffs claim in such verdict. Fleming v. Jacob, 109 NYS 658. Where judgment is for incorrect amount but correct amount is apparent from record, appliance court, under Hurd's Rev. St., 1995, p. 602, $ 26, 27; p. 599, $ 7; p. 1542, $ 80, may enter judgment for correct amount. Minne-sota Mut. Life Ins. Co. v. Welsh, 131 III. App. 103. Where damages are unliquidated and verdict for plaintiff failed to state any amount, court had no power to correct verdict by inserting as damages entire sum claimed by plaintiff. Amory v. Washington Steambach Co., 120 App. Div. 818, 105 NYS 999. Verdict for certain sum "with interest" not illegal, where amounts of principal and Inter-est set used for were definitely set out in summons, and pleading may always be examined to give intendment to verdict. Southern Exp. Co. v. Maddox \[Ga. App.\] 89 SE SE 21. Presiding judge may cause verdict actually rendered to be signed by one of Jurors as foreman. Id. 2 Under Code Civ. Proc., $ 1090, court on return of verdict may not make inquities and on ascertaining that it had been reacted by quotient method, direct jury to retire and return verdict by deliberating and reason-ing. Harrington v. Butte, etc., R. Co. \[Mon.\] 93 F 640. $ In personal injury action not error to refuse to recall jury and interrogate them as to what evidence they considered in arriving at verdict. Curtis v. Laconia Car Co. Works \[N. H.\] 67 A 220. 4. Swain v. O'Longhill \[Conn.\] 67 A 480. 5. Where whether car had been moved or not was material on question of contributory negligence and was controverted, error to give interrogators, assuming it had not been would not affect or control the judgment or call for a different judgment than authorized by the finding made.\[12\] Findings should also be definite and certain \[13\] and should be ultimate \[14\] rather than evidentiary matters,\[15\] and must be based upon the

ship and respondents allaged interest was | In, defense of statute of limitations is inter-personal from its inception, finding that same was | In trust for firm for certain period and 95 P 686. Where court found defendant re-then sold by firm to partner personally not | Ined on fact third person who subsequently | However, in the action to respond contract | In the action to respond contract evidence.\[16\] If findings support a judgment and conform to the theory of the prevailing party,\[17\] or sufficient probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient,\[18\] but where the findings made are not conclusive against plaintiff's right to recover, findings upon other issues necessary to support the judgment must be made.\[18\] Where the answer consists of denials only, a general finding that all allegations of complaint are true is sufficient.\[20\] Though the judge is not required to sign his decision,\[21\] it should be in writing;\[22\] the facts found and the conclusions should be stated separately,\[28\] though the separate finding of facts on each of several counts need not be separately stated,\[24\] and this statement, together with the judgment of the court, must be entered on the minutes.\[25\] A refusal or failure to find on any material issue, however,\[29\] or the denial of a

18. Later v. Haywood \[Ldaho\] 93 P 874. To sustain plea of statute of limitations, court need not find in direct language that action is hard, where facts are found which show it is hard. O'Neill v. Quarnstrom \[Cai\]. p 27 p. 51.

01. Later v. Haywood \[Ldaho\] 93 P 374.

01. Immaterial that general finding in such case in addition to general finding finds certain specific findings of fact covered by general finding. Chatfield v. Continental Bldg. & 10 Cur. Law VERDICTS AND FINDINGS SS 9. 1989. request to state findings and conclusions separately, must be prejudicial before a judgment will be reversed because of such denial. \[97\]

Where a case has been submitted upon an agreed'statement of facts, the findings are necessary, the only question being what is the law applicable to the facts, \[28\] but where additional facts are found which do not materially change the facts as stipulated, they are not reversible error. \[29\] Special findings are not required to be simultaneous with the renditon of a judgment, but it is sufficient if they are found and made a part of the record before the judgment becomes final by adjournment or operation of statute. \[30\] Where an agreed statement of facts was adopted by trial court as its conclusions of fact and same was sent to court of civil appeals as full statement of facts to be considered on appeal, apellant was not injured by the trial judge's refusal to file specific conclusions of law. \[31\] A party may, after the court trying the cause without a jury has made his findings, request additional findings. \[32\]

Parties have no right to require a Federal court in hearing a law case without a jury to make a special finding. \[33\]

_Interpretation and construction._\[86\] C. L. 2853. Though a referee's findings are apparently inconsistent, the appellate court should reconcile them if possible and give effect to the referee's real intent in making them. \[34\] In some courts findings of fact made by a court when an action is tried without the intervention of a jury are equivalent to special verdicts, \[38\] and are to receive such construction as will uphold rather than defeat the judgment. \[38\] The finding of ultimate facts includes the finding

ror. McPherson v. Swift \[S. D.\] 116 NWV 76. \[and perhaps improper and erroneous, do not Where trial court fails to find on all man- materially change stipulated facts, which serial issues, Judgment will be reversed unless finding thereon either for or against judgment will stand. City of Los Angeles successorful party would not affect judgment \[v. Los Angeles Farming & Mill. Co. \[Cal.\] entered. Later v. Haywood \[Idaho\] 93 P 849. \[3\] P 859. \[Where court fails to find on material issues \[so. Under Act Feb. 1889 (Vekalexy's Loc. in case and, if finding had been made there, Laws Jefferson County, P. 704, $ 11; Loc. on, judgment might have been different, it Laws 1888-89, p. 801), where special findings is reversible error. Id. Under Rev. St. 1859, are filed with clerk within statutory period, failure of clerk to incorporate them in min- merely recites in ordinary judgment at law \[vites is omission which may be corrected nunc certain findings of fact without request from pro tune. Papor v. Howard \[Ala.\] 45 S 81. \[ifherty party, rulings on declarations of law \[31. Fidelity & Depost Co. v. National BL. must be treated as material. Lewis v. Muse \[To. App.\] 108 SWV 1107. \[32. Refusal Improper. Rogers v. Ayres \[Then.\] 104 SWV 521. \[Then.\] 104 SWV 521. \[33. Southern R. Co. v. St. Louis Hay & late, and findings embodied in journal entry \[Grain Co. C. A.\] 153 F 728. \[34. No evidence being disclosed on appeal facet. Eble v. State \[Kan.\] 93 P 803. Equity and no objection to testimony appearing, tames being triable do nov in an appeal and it must be assumed finding was based on testimony admitted either properly or without objection and that facts proved good cause of action without objection, and, where findings are apparently without issues, case may be disposed of as if pleadings had been amended. Moore v. Martinez, 107 NYS 652. \[35. Glade v. Emerson Illinois Min. Co. \[To.\] 28. Knight v. Cohen \[Cal.\] 93 P 396. \[Ong Auto-Dispatch v. Order of country court appointing administ-trator having been affirmed by circuit court by stipulation, no findings were necessary as 1866, c. 86, 13 Stat. 501, Rev. St. 1878, $ 649 basis of order of affirmance. In re Skelly's Estate \[S.

of all probative facts necessary to sustain the findings of ultimate facts,\[87\] but evidentiary matters in special finding must be rejected.\[48\] Findings of fact on request, whether incorporated in the decision proper or not, are for the consideration of the appellate court, and where findings are so inconsistent that it is impossible to harmonize them, it is the duty of the court to accept those most favorable to the appellant as he is entitled to rely upon them in aid of his exceptions.\[49\] The court on appeal may treat a conclusion of law as a finding of fact where in reality it is such, but the court should not be astute to construe as a finding of fact what was never intended to be such.\[40\] Particular findings which have been construed are collated in the notes.\[41\]

\_Signing, filing, and entering.\_See S. C. L. 2254--The constitution does not require a decision of a case within a specified time after its submission to the judge, and the matter of time when a judge may decide a case is as much a matter of judicial discretion as how he shall decide it,\[42\] but where a judge abuses his discretion in the matter of the time when a cause should be decided by delaying his decision to an unreasonable length of time so that his conduct may be said to involve an abuse of discretion, he may in a proper proceeding be compelled to decide but not in a particular way.\[48\]

for loss of goods, court found all allegations of complaint true, one of which was that value of goods was $1,000, such finding sufficient to support judgment for $786.45, though court otherwise found value of goods to be $--Morris v. Bekins Van de Storage Co. \[Cal. App.\] $ P $62. Where complaint was filed July 25, 1986, and judgment was rendered in April 9, 1987, finding that agreed date in controversy was April 16, 1987, cieral misprision where complaint alleged date was $16, 1986. Id. Finding that value of goods used for "was sum of $--, can only be construed to mean that goods had no value. Id. General verdict having found facts averred in complaint to be true, and answers to interrogatories do not confident therewith in construing such answers, they must be taken as true. Richmond, etc. R. Co. v. Beverley \[Ind. App.\] $8 NE 558.

**37. Later v. Haywood \[Idaho\] $ P $74.** Where ultimate question was how much party had expanded in purchasing land and court found on sufficient evidence the amount expanded, error in finding as to price per accre immaterial. Pearsall v. Henry \[Cal.\] $P $15.

**38. Pavev v. Braddock \[Ind.\] $4 NE 5, $39.** Eitzerman v. Hyman \[N. Y.\] $4 NE 587.

Under Code Civ. Proc. $1022, 1023, court not required to incorporate in its decision requested findings so far as granted and party requesting them is not deprived of benefit of such requests because they are not incorporated in the findings of court, Bremer v. Manhattan R. Co. \[N. Y.\] $4 NE 59. Finding of fact on request, though not embodied in formal decision, ls part of judgment, and, where inconsistent with other findings, appellant has right to rely upon it as more favorable to his contention. Hammin v. Hamilin \[N. Y.\] $4 NE 805. Where trial court, in reaching legal conclusion that deeds in question were null and should be canceled, found no intent to deliver or acceptance of them as effective decads, and yet as special finding found that plaintiff deliviv-

ered decads covering both premises to defendant. Id.

**40.** Finding as conclusion of law that acts referred to in his findings of fact did not constitute a breach of contract, without finding of his willingness to carry same out, cannot be construed as finding of fact rather than law. National Cont. Co. v. Hudson River Water Power Co. \[N. Y.\] $4 NE 865.

**41.** Finding that, after plaintiff had entered land and began to build house, defendant asked him to locate house so as not to obstruct defendant's view, and that plaintiff did so, is finding of fact and not finding that plaintiff 10 Cur. Law VERDicts and Findings SS 10. 1991

\_The amendment of findings.\_See 8 C. L. 2254.--Where court trying case without jury inadvertently marked declaration of law requested by defendant as given instead of refused as intended, the court had power during the pendency of a motion for a new trial to correct the error.44 A motion to modify, amend, or add to the courts special finding of fact will not lie,45 but the rule is otherwise in North Dakota.45 In Rhode Island the court cannot amend a valid decision merely to amplify it unless necessary and done on the day of the decision.47

\_Conclusions of law.\_See 8 C. L. 2254.--Conclusions of law must be based upon the evidence48 and findings within the issues presented by the pleadings.49 It is proper to refuse to make conclusions of law where they are unnecessary or inapplicable to the facts and questions involved.50 In South Dakota the only conclusion required is the opinion of the court as to what relief either party is entitled to on the facts, and where the relief granted is warranted by the facts, it is not material whether the right reasons or any reasons were assigned for granting it.51

\_Propositions of law under the Illinois practice.\_See 8 C. L. 2254.--Where the time is not limited by the court, it must receive propositions of law at any time rendering decision.52 Propositions of law not supported by any evidence are properly refused,53 as are those which question the sufficiency of the evidence.54 In a trial of a cause in the Federal circuit court without a jury, the court cannot be required to hold specific propositions of law presented by the parties.55

\_S 10. Objections and exceptions.\_See 8 C. L. 2255.--Objections to the form of a veracity for failure to decide within certain time.

_Wyatt v. Arnot_ \[Cal. App.\] 94 P 86.

_43. Complaint alleging cause was submitted Sept. 27th, that judge was elected judge of another county at Nov. general election and Nov. 7th resigned to accept such position without first defending cause, there being nothing to warrant conclusion that judge before resignation had so mastered record as to justify decision, held complaint states no cause of action. Wyatt v. Arnot_ \[Cal. App.\] 94 P 86.

_44. Glade v. Eastern Ill. Min. Co._ \[Mo. App.\] 107 SV 1002.

_45. Meridian Life & Trust Co. v. Eaton_ \[Ind. App.\] 81 NE 667.

_46. While action in which jury trial was waived is still pending in court, court has power to correct its own errors and may, in its discretion on notice and motion, vacate its findings and judgment and make new findings and enter new and different judgingament. Plano Mfg. Co. v. Doyle_ \[N. D.\] 116 NW 529.

_47. Ashaway Nat. Bk. v. Superior Ct._ \[R. I.\] 67 A 523. Under Court and Practice Act 1305, $ 303, providing that, in any case tried to court, court shall briefly note conclusions of law and fact on its docket, or file same with papers of case, and such record shall be known as decision, entry in charge of unfaithful administriston in words, "heard and decision for appellant exceptions," held full and complete, and hence court had no power to treat as ineffective, and later enter new decision "That appelle was guilty of unfaithful administration as stated in complaint. Appellee's execution noted." Id.

\_48. Refusal to hold fraud proven as matter of law proper where not proved by evidence.\_Workarton v. Trust Co. of America \[C. C. A.\] 158 F 969. On findings by court that certain sum is due plaintiff from defendant but that \[S. D.\] 112 NW 118.

\_49. Under complaint in action on county auditor's bond containing no charge whatver on account of money received as clerk of board of turnpike commissioners, but based wholly on moneys received by auditor from other accounts, not only failing to charge that auditor as such, drew his warrant to himself for any sum of money allowed him as such clerk, but containing no allegation that he ever allowed or received any money for such services finding that auditor collected and received for services as clerk anamount specified is entirely out-side issues. Boyd v. State \[Ind. App.\] 84 NE 350.

\_50. Refusal proper where no facts presented to which rulings as requested could apply. Downing v. Ernst \[Co.\] 92 P 230, $ 51. Under Rev. Code Cly, Proc. SS 276, $ 277, best form of decision by trial judge is statement of facts established by pleadings and evidence followed by conclusion that upon facts so found plaintiff, or defendant, is entitled to judgment, specifying in general terms nature of judgment. Missouri River Tel. Co. v. Mitchell \[S. D.\] 116 NW 67, Where the court makes full findings of fact conclusion for appellant exceptions," held count finds plaintiff entitled to judgment prayed for" is sufficient. McVay v. Bridgman \[S. D.\] 112 NW 118.

_52._ Hold that lapse of eight months between trial and submission of propositions does not justify refusal. Western Valve Co. v. Wells, 127 Ill. App. 655.

_53, 54, Stechul V. Weaver, 128 Ill. App. 106._

_55._ Southern R. Co. v. St. Louis Hay & Grain Co. \[C. C. A.\] 153 F 728.

dict should be made before the jury is discharged,56 and where counsel knew of the irregularity of the jury in rendering a verdict before it was received by the court, he must object to its reception before it is received or waive the irregularity.57 The remedy for the failure of the judge trying the cause without a jury to make a finding on a material issue is by a motion for further findings.58 Where the trial court expressly declines to pass upon a question of fact involved in the litigation before it, it is unnecessary after its decision has been made and filed to apply for amended findings covering the question the court declined to pass upon.59

## 6 Verification

\_Necessity.\_See & C. L. 2255.\_In actions at law, verification is often required by statute.60 Other statutes require verification to put in issue particular matters, such as the genuineness of the instrument sued on,61 and the statutes apply equally to instruments set up by answer.62 Failure to deny under oath ordinarily admits the execution of the instrument,63 though under some statutes such failure merely admits the in-

56. Marianna Mfg. Co. v. Boone \[Fla.\] 45 S 61 SE 552; Walker v. Tomlinson \[Tex. Civ. 754. App.\] 17 Tex. Ct. Rep. 157, 98 SV 906; Clymer v. Terry \[Tex. Civ. App.\] 109 SVW 1129. instructed sheir that, if jury found ver. Answer, not verified, raises no issue. Sulli-dict by certain time, judge and council should be notified and court would reconvenvene to re-

&2 NE 107. Improperly verified answer suflflice same, but, if verdict was found at later

& time, they should prepare sealed verdict and

& of instrument. La Plant v. Pratt-Ford disperse for night, and verdict should be returned into court on following day, and

&Hlawid of one of twenty defendants deny-

& where jury found before time fixed and

& turned in sealed verdict and dispersed with-

& of note In issue. First Nat. Bk. v. Shaw,

& out communicating with judge or counsel

& and on following morning were called into

& box and verdict published in their presence

& by clerk, if counsel knew facts it was

& incumbent on them to object to the reception

& and publication of verdict before it was done.

If they failed to do so it was a waiver of

& the irregularity. Robert R. Sizer & Co. v.

& Melton, 129 Ga, 143, 58 SE 1055. Where there

& was no dispute as to amount due and court

& charged jury, if they found for plaintiff, to

& find for certain sum, and jury ignored charge

& and court refused to correct same on motion

& and no exception was taken, special term is

& powerless to interfere. Isbell-Parter v.

& Broker, 120 App. Div. 384, 105 NYS 110.5

&58. Remedy not by appeal. Eagle Min. &

& Imp. Co. v. Hamilton \[N. M.\] 91 P 718.

&59. Where court declined to pass upon re-

& euler's negligence in failing to enforce

& stockholder's liability before barred by limi-

& station. State v. Germania Bk. \[Minn.\] 114 NW 651.

&0. Pleading in an action of slander must

& be verified. Whittaker v. McQueen \[Ky.\] 108 SW 236. Code 1904, 8 3286, provides that

& in actions of assumpsit, an afflavit be filed.

& Moreland v. Moreland \[Va.\] 60 SE 730.

& Effect of failure to verify general issue

denying joint liability leaves burden of

& proof upon the defendants. Martin v. Trainer,

& 125 Ill. App. 474. In Colorado it was error to

& density motion for judgment on pleadges

& where replication was not verified (Hill Brick & Title Co. v. Gibson \[Colo.\] 95 P 293), but in

& Oklahoma facts in an answer which contained

only verification of denials were put in issue

& by a reply not verified (Western Union Tel. Co. v. Pratt, 18 Okl. 274, 88 P 227).

&L Crockett & Co. v. Garland & Co. \[Ga.\] * 10 Cur. Law. VERIFICATION. 1993

- 1993
- 10 \*\*current in evidence and does not preclude its impeachment " or the defense of fraud." In others, an averment of failure of consideration," or plea of fraud, must be verified." In some states a plea to the jurisdiction of the court is in the nature of plea in abatement and need not be verified," while in others verification is essential." A plea in abatement denying partnership of defendants must be under oath." An alternative statute in New Jersey provides for a suitable affidavit annexed to the plea, or an exemplification of the record." In \_equity.\_See
- C. L. 2250--An equitable petition praying for an injunction should be verified." When discovery is merely incidental, the bill need not be verified." When several parties united in interest plead together, the verification may be made by one of them." An answer in behalf of a corporation may be verified by an agent who can and will depose positively to the facts stated." \_Form and positiveness.\_See
- C. L. 2256--Substantial compliance with the statute is sufficient," though in some states the affidavit must strictly conform with the requirements of the law." The allegations in a verified petition used as an affidavit must be construed as those of an affidavit." A denial upon information and belief " will raise the issue as to regularity, institution, and prosecution of summary proceedings."
- 10 **cur. Law. VERIFICATION. 1993**
- 11 **cur. Law. VERIFICATION. 1993**
- 12 **cur. Law. VERIFICATION. 1993**
- 13 **cur. Law. VERIFICATION. 1993**
- 14 **cur. Law. VERIFICATION. 1993**
- 15 **cur. Law. VERIFICATION. 1993**
- 16 **cur. Law. VERIFICATION. 1993**
- 17 **cur. Law. VERIFICATION. 1993**
- 18 **cur. Law. VERIFICATION. 1993**
- 1994\*\*
- 1995\*\*
- 1996\*\*
- 1997\*\*
- 1998\*\*
- 1999\*\*
  Defects, objections and amendments; waiter.See * C. L. 2257--Lack of verification must be promptly raised \[81\] by notice of rejection \[82\] or motion to strike.\[83\] The objection may be met by amendment,\[84\] and a judgment may be vacated when a party has not been allowed a reasonable time to cure a defect in verification.\[85\] A defect of an affladvir in the original bill cannot be relied upon to cure defective verification in the answer.\[86\] An amendment to a pleading may be made without verification,\[87\] when the merits of the controversy are not affected.\[88\]

Veto; View; Yoting Tausts; Waiver, see latest topical index.

Warehousing and deposits.

Definitions and elements.See * C. L. 2258--Warehousemen are bailees for hire "engaged in a business of a quasi public nature.\[91\] Common carriers,\[92\] including express companies\[93\] and stockyard companies,\[94\] are usually deemed warehousemen as to goods in their hands at destination after a reasonable time for their removal, but a milling concern receiving wheat to be manufactured into flour is not a warehouse-man.\[95\]

Licensing and public regulation,See * C. L. 2259

Warehouse receipts.See * C. L. 2259

Stattues in many states make warehouse receipts negotiable,\[94\] though the facts may be such that the receipts are not entitled to the status of negotiable instruments.\[97\] Since delivery of warehouse receipt is constructive delivery of the article it represents.\[98\] the bona fide holder is vested with

81. Verification of pleadings is not juris-

decional and failure to verify is waived un-

less objection is made before trial. Northrup

v. Bathrick (Neb.) 113 NNV 808. Cannot be

raised for first time on appeal. First Bap-

tist Soc. v. Dexter, 193 Mass. 187, 19 NE 342.

82. Must specify faults. Rosenthal v. Cohn, 55 Misc. 535, 105 Nyst 943.

01. Stouffer v. Smith-Davis Hardware Co.

\[Ala.\] 45 S 621; McLaughlin v. McLaughlin, 128 Ga. 653, 58 SE 166; Keller v. Harrison

\[Iowa\] 138 NW 327; Petit v. Seligman, 54 Misc. 249, 104 NYS 397.

84. Hall v. McKellar \[Ala.\] 46 S 460; McLaughlin, 128 Ga. 653, 58 SE 156. Under Comp. Laws, 8 10718, objection to bill to enforce mechanic's llen, not verified, may be met by amendment after expiration of year. Prather Engineering Co. v. Detroit, etc., R. Co. \[Mich.\] 116 NW 376.

01. Rosenthal v. Cohn, 55 Misc. 533, 105 NYS 943.

01. Defect should be pointed out. Empire Guano Co. v. Jefferson Fertilizer Co. \[Ala.\] 45 S 657.

87, 88. Keller v. Harrison \[Iowa\] 116 NW 327.

80. No cases have been found for this subject since the last article. See * C. L. 2257.

01. United States v. Oregon R. & Nav. Co.

159 F 975.

91. United States v. Oregon R. & Nav. Co.

159 F 975. The warehouseman's obligations

appertaining to his business are, when he receives gram on storage, to issue receipts

therefor as required by law, and to deliver the grain to the holder of the receipt or receipts upon his demand, the holder, of course, complying with the conditions of the 10 Cur. Law. WASTE. 1995 an indefeasible title." The receipt should contain a statement of advances made, if any, to the owner.1

\_Contracts of warehousing in general.\_See 8 C. L. 2250--A contract to store may be implied from the circumstances.2

\_Care and protection of goods stored.\_See 8 C. L. 2250--A warehouseman is bound only to use ordinary care of the goods stored 8 and to provide a reasonably safe place of deposit.4

\_Insurance._See 8 C. L. 2250_

\_Charges and lien therefor._See 8 C. L. 2250_

The lien of a warehouseman is in some states extended to cover advances as well as charges.5 The lien does not take precedence of a prior chattel mortgage by the depositor.6

\_Trover and conversion._See 8 C. L. 2251_

The owner may maintain an action of trover though the goods were deposited by another person.7 The right of a third person to whom the warehouseman has delivered goods may be considered as a defense to trover.8

\_Actions and procedure._See 8 C. L. 2251_

The purchaser of a warehouse receipt who fails to receive the goods deposited may rescind the contract and sue the seller or maintain trover against the warehouseman.9

\_Crimes and penalties._See 6 C. L. 1888_

The refusal to deliver grain deposited is a crime in North Dakota.10 In Illinois a statute prohibits the removal of goods deposited after issuance of a receipt.11

WARRENT OF ATTORNEY; WARRANS; WAREN:NTY, see latest topical index.

**WARE.10**

Any injury to the inheritance constitutes waste.12 Equity will enjoin the commission of waste, in a suit between tenants in common,14 where there is statutory au-

1ivery. Livingston v. Anderson, 2 Ga. App. 8 S. Where a non-negotiable warehouse receipt was issued but the warehouseman was notified of pledge of goods, he was justified in delivery to pledgee on receipt of proper \[Ga. App.1 61 SE 295; United States v. Oregon R. & Nav. Co., 159 F 975.

1. Bank of Spara v. Butts \[Ga. App.\] 61 SE 298.

1. Owner of building notified owner of goods to remove same or they would be stored at latter's expense, which was done. Cahill v. helps \[Mass.\] 84 NE 496.

1. Not proved or pleaded. Campbell v. Missouri Pac. R. Co, \[Neb.\] 111 NW 126. Pre-ponderance of evidence that goods were delivered to warehousekeeper and not return-

ed. Wheeler v. Blumenthal, 107 NYS 57.

4. Must show that due care was exercised where piano in depot burned. McCord v. Atlantic Coast Line R. Co., 76 S. C. 469, 57 SE 477. No presumption of negligence where building is not burglar proof. Hutchinson v. U. S. Exp. Co. IW. Ya.\] 59 SE 949. Larceny of goods stored does not impute negligence. Moyer v. Pennsylvania R. Co., 31 Pa. Super. Ct. 559.

1. "Advances" in Laws 1902, p. 1776, c. 608, $ 2, does not include loan on security of goods. Schwab v. Oatman, 56 Misc. 393, 166 NYS 741.

1. Bauman v. Kuhn, 108 NYS 77S.

1. Warehouse receipt constructive delivery. Livingston v. Anderson, 2 Ga. App. 274, 58 SE 505.

1. Where a non-negotiable warehouse receipt was issued but the warehouseman was notified of pledge of goods, he was justified in delivery to pledgee on receipt of proper \[Ga. App.1 61 SE 295; United States v. Oregon R. & Nav. Co., 159 F 975.

1. Livingston v. Anderson, 2 Ga. App. 274, 58 SE 505.

1. Rev. Code 1905, $ 2244. Ex parte Bellamy \[N. D.\] 114 NW 376.

1. Hartly Rev. St. 1905, c. 38, $ 124, 125.

1. McReynolds v. People, 230 Ill. 623, $2 NE 945.

The place of storage referred to in the statute is the building which is used as a warehouse, and it is immaterial that there was sufficient grain to discharge receipt in cars standing on tracks in elevator yard. Id. Its application is not affected by the issuance of a receipt reserving to the party in possession of the goods the right to intermingle them with others. Id.

13. See 8 C. L. 2251.

01. Life tenant may not dredge and carry away sand and gravel from shore of land bordering on stream, nor remove fast land and trees above highwater mark. Potomac Dredging Co. v. Smoot \[Nd.\] 69 A. 507.

01. Defendant may not cut every alternate tree of a line of trees growing on boundary between him and plaintiff and owned by them jointly. Scarborough v. WoodIII \[Cal. App.\] 93 P 283.

thority for the maintenance of the suit,18 otherwise an injunction will be granted only under special circumstances, as where the waste is destructive to the estate or where defendant is insolvent.16 Equity will enjoin waste by the owner of a determinable fee only when the contingency which will determine it is reasonably certain to happen,17 and where the waste is of such character as to be a wanton abuse of the owner's rights.18 Equity has jurisdiction to restrain waste by cutting and removal of timber and incidentally for an accounting for waste already committed.19 A general allegation of irreparable injury is sufficient in a petition for temporary injunction to restrain waste,20 and when the injury is irreparable the solvency or insolvency of defendant is unimportant and need not be alleged.21 The action of waste does not lie against a tenant for alterations made with the assent of the landlor.23

## 10.2 WATERS AND WATER SUPLYL.

**SS 1. Definition and Kinds of Waters, 1906.**

**SS 2. Severeignity Over Waters and Lands Leementis, 1997.**

**SS 3. Rights In Natural Watereourses, 1997.**

**SS 4. Rights to Lakes and Ponds, 2003.**

**SS 5. Rights in Subterranean and Peredating Waters, 2003.**

**SS 6. Rights in Tide Waters, 2004.**

**SS 7. Rights in Artificial Waters, 2005.**

**SS 8. Ice, 2005.**

**SS 9. Surface Waters and Drainage or Reclamation, 2005.**

**SS 10. Lands Under Water, 2007.**

**SS 11. Levecs, Drainage, and Reclamation, 2007.**

**SS 12. Milling and Power and Other Noncon-**

_The scope of this topic_ includes the general law of waters and the use and supply thereof, except as other topics below cited 28 cover necessary exclusions.

**SS 1.**\_Definition and kinds of waters.\_See 8 C. L. 2253--A watercourse may exist though the stream is dry during the summer and the bed changes frequently.24 Where surface water naturally collects and is discharged through a well defined channel which it has made for itself, it constitutes a watercourse.28 An artificial ditch may acquire the dignity of a watercourse by long lapse of time.26

**SS 2.**\_Definition and kinds of waters.\_See 8 C. L. 2253--A watercourse may exist though the stream is dry during the summer and the bed changes frequently.24 Where surface water naturally collects and is discharged through a well defined channel which it has made for itself, it constitutes a watercourse.28 An artificial ditch may acquire the dignity of a watercourse by long lapse of time.26

**SS 3.**\_Definition and kinds of waters.\_See 8 C. L. 2253--A watercourse may exist though the stream is dry during the summer and the bed changes frequently.24 Where surface water naturally collects and is discharged through a well defined channel which it has made for itself, it constitutes a watercourse.28 An artificial ditch may 10 Cur. Law. WATERS AND WATER SUPLY SS 3. 1997 SS 2. \_Sovereignty over waters and lands beneath.See * C. L. 2283_Subject to the rights of riparian owners,27 the control of streams is vested in the state for the benefit of its people and the state may authorize improvement thereof.28 SS 3. _Rights in natural watercourses.See * C. L. 2284_--A riparian propriator is entitled to the natural and unobstructed flow of the stream 29 unimpaired in quantity 30 or quality,91 except by reasonable use by upper propriators.22 Ordinarily, the question whether the use of a stream by an upper riparian owner is reasonable is a question of fact,38 but such question is limited by certain rules of law that a permanent diversion of a substantial portion of the water to the detriment of a lower owner is not reasonable.44 The discharge of noxious substances into a stream in such quantity as to affect the purity of the water when it reaches the land of a lower owner is not reasonable,88 but slight diversion 88 or impairment of quality, incident to use,97 is.

The right of a riparian propriator to a continuance of the natural flow of the stream cannot be taken without compensation,98 and an attempt to do so may be enjoined,99 but it may become subject to a public servitude by acquiescence and use sufficient to show prescription.40 The right of the riparian owner to the use of the natural water running through it is subordinate to any paramount right to the use of such water existing under the general law in some other person.\[41\]

Only owners of land which is riparian are entitled to riparian privileges.\[42\] Rights like those pertaining to a natural watercourse may exist in an artificial course after a long lapse of time,\[43\] and riparian rights may attach to an artificial condition created in a natural watercourse by riparian owners.\[44\]

\_Interference and obstruction.\_See 8 C. L. 2265.--A lower riparian propriator may not obstruct the flow of the stream to the injury of an upper propriator \[45\] unless he has acquired a prescriptive right to do so,\[46\] or unless the upper owner is estopped to object to its maintenance.\[47\] Such wrongful obstruction may be enjoined,\[48\] or an action

\*\*41. City of Los Angeles v. Los Angeles v. Los Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz Angeles v. Loz v. Loz Angeles v.

10 Cur. Law. Waters and water supply SS 3. 1999 will lie for the recovery of damages for injuries sustained,40 providing such damages are susceptible of proof.50 Equity has jurisdiction of a suit to restrain the unlawful obstruction of a watercourse whereby lands of riparian owners are flooded, where the injury is necessarily continuous and operates prospectively so that the owners have no adequate remedy at law.61 It is not necessary to the maintenance of such suit that the bill should charge that the conditions resulting from the obstruction were unhealthful.52 In such suit it is not necessary that the landowner's right should be first established at law.53 Several riparian propriators may join in such proceeding to prevent multiplicity of suits, though each claims under a separate right and could maintain a separate suit.54 To warrant the issuance of a mandatory injunction to compel removal of obstructions from a watercourse, the right thereto must be clear, the damage irreparable, and urgent necessity for its issuance must exist.55

money and labor in building a dam and did gent construction of a roadbed it is no deducent object but furnished material for fense that other farms both above and below the dam was not stepped by acquessence were flooded where it does not appear that from asserting his rights against the lower there was a general overflow which was in-owner because of his setting back the water evitable or that the conditions as to such where, when he furnished the materials, he did not know what the effect would be and Co. v. Saunders \[Ark.\] 107 SV 194. In an the lower owner did not rely on his conduct. action for flooding land, evidence held in-Royce v. Carpenter, 80 Vt. 37, 66 A 888. An owner was not stepped to claim injunctive fences and diminished rental value (Cooper v. New York, etc., R. Co., 106 NYS 611), nor to support damages awarded for depreciation in the value of the land (Id.). In an Lumber Co. \[Twash.\] 92 P 343. action against a railroad for overflowing 48. The maintenance of a dam which floods a portion of an owner's land and renders pay a certain sum to restore the embankments and to restore them or take a con- be enjoined. The lowering of the dam does vote preclude such relief where the back v. and cannot recover for restoring embankments. Id. Where the dam of a lower mill owner set back the water of the stream and injured the dam of an upper owner, and it appeared that water was frequently set back and would continue so long as the lower dam was maintained and there was no evidence comparative values of properties inconvenienced or affected, held the maintenance of the lower dam would be perpetually enjoined. Royce v. Carpenter, 80 Vt. 37, 66 A 888. Lower owner held barred by laches from restrainge a water company from taking water from a stream. West & Co. v. Octoraro Water Co., 159 F 528.

40. In an action for destruction of crops by flooding, where it appears that they would have been destroyed by a subsequent extraordinary flood, the person whose negligence caused the first flood is not liable, since there is nothing left upon which to determine the probable yield. International, etc., R. Co. v. Jackson (Tex., City., App.) 19 Tex. Ct. Rep. 671, 103 SW 709. The measure of damages for flooding land by obstruction of a stream is the depreciation in the market value of the land. Louisville, etc., R. Co. v. Ponder, 31 Ky. L. R, 878, 104 SW 279. In an action for damages resulting from flooding caused by obstruction of a watercourse, evidence held to show that the obstruction by defendant was not the proximate cause of the flood which was caused by grading of * street for which defendant was not liable. Settegast v. Kapner (Tex., City., App.) 20 Tex. Ct. Rep. 59, 105 SW 1160. In an action for flooding crops drops to negligi- 109, 105 SW 1160.

In an action for flooding crops drops to negligi- 109, 105 SW 1160.

will lie for the recovery of damages for injuries sustained,40 providing such damages are susceptible of proof.50 Equity has jurisdiction of a suit to restrain the unlawful obstruction of a watercourse whereby lands of riparian owners are flooded, where the injury is necessarily continuous and operates prospectively so that the owners have no adequate remedy at law.61 It is not necessary to the maintenance of such suit that the bill should charge that the conditions resulting from the obstruction were unhealthful.52 In such suit it is not necessary that the landowner's right should be first established at law.53 Several riparian propriators may join in such proceeding to prevent multiplicity of suits, though each claims under a separate right and could maintain a separate suit.54 To warrant the issuance of a mandatory injunction to compel removal of obstructions from a watercourse, the right thereto must be clear, the damage irreparable, and urgent necessity for its issuance must exist.55

money and labor in building a dam and did gent construction of a roadbed it is no deducent not then object but furnished material for fense that other farms both above and below were flooded where it does not appear that from asserting his rights against the lower owner because of his setting back the water either or that the conditions as to such where, when he furnished the materials, he do not know what the effect would be and Co. v. Saunders \[Ark.\] 107 SV 194. In an the lower owner did not rely on his conduct. action for flooding land, evidence held in-Royce v. Carpenter, 80 Vt. 37, 66 A 888. An source was not stepped to claim injunctive fences and diminished rental value (Cooper v. New York, etc., R. Co., 106 NYS 611), nor to support 2000 Waters and water supply $ 3. 10 Cur. Law.

Bridges and culverts.See * C. L. 22019.--A railroad company in constructing its embankment across streams must construct bridges and culverts of sufficient capacity to accommodate waters which flow through them at ordinary flood,\[59\] but they are not required to provide against unusual or extraordinary floods.\[60\] The sufficiency of pleadings \[60\] and admissibility of evidence in actions for damages \[61\] are governed by the general rules, and the measure of damages recoverable is the same as for any other injury to real property.\[62\] The burden to prove that the flood was extraordinary is on the railroad company.\[63\] This rule applies as to cities constructing culverts through which a stream must flow, where it also constructs storm sewers which augment the flow of the stream.\[64\]

\_Nuisance and pollution.\_See * C. L. 22019.--An upper owner may not deposit in a 56. A railroad must so construct its culverts that water flowing in streams at ordinary. * V. Ann Arbor \[Mich.\] 115 NW 1047. * S8. Complaint in an action against a railroad for flooding lands by negligent con- 104 SWV 806. Complaint for obtrating wa- * withfciently allege the amount of claims as- * to * the plaintiff by his tenants and to * state the total amount of such claims, House- * the same to become obstructed is liable for injury resulting to crops, fences, or buildings. Vallingford v. Maysville, etc., R. Co., * S8. In an action against a railroad com- * the set of a railroad company in con- * to improper construction of its roadbed, evidence as to effect on land higher up the ligently permitting driftwood, etc., to accumulate against the piers and abutments that conditions were the same. San Antonio, was the proximate cause of the flooding of platinf's lands. Houston, etc., R. Co. v. Klersey \[Tex.\] 109 SWV 862. * Buchanan \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 494, 107 SWV 595. Whether a railroad in constructing a bridge across a stream, negigently aligned the piers and abutments and thereby caused land adjacent to be flooded, held for the jury. Cooper v. New York, etc., R. Co., 106 NYS 611. Evidence sufficient to show a railroad company liable where it so negligently constructed a culvert where its roadbed crossed a stream as to cause adjac- * the same stream refuse matter which renders the water unfit for domestic uses by a lower propriter.\[63\] This rule applies to municipal corporations which deposit sewage into a stream "4" unless they do so by virtue of statutory authority " or prescriptive right."

63. An injurious pollution differs from acquire by prescription the right to empty "pollution," which merely consists of the "average into a natural stream is erroneous presence in the water of minerals held in "and prejudical if it is "nowhere stated that suspension or of minerals produced by chem- (the required to create the right must "ical reaction whose gravity causes them to be at least twenty-one years. Schrenk v. sink. Doremus v. Paterson \[N. J. Eq. 69\] 69 Cincinnati, 10 Ohlo C. C. (N. S.) 135. The A 225. An upper owner may not deposit privilege of discharging obnoxious sewer-sawdust or other materials in a stream if it will pollute the water or otherwise render it "of public concern, and it is within the police "unfit for use by lower owners. Horton v. Pourwer of the state to declare that this "Fulton \[Ga.\] 60 SE 1059. One has no right privilege is one which ought not to be ex- to use the water for such purposes as will "erosed by private individuals, but only by "corrupt it to the material injury of a lower owner. MacNamara v. Tart \[Mass.\] 83 NE "munielgalities acting under direct control "310. Where an upper owner polluted the "of the state, Power of state to enact police water of a stream and thereby rendered a "regulation for protection of public welfare" well on the land of a lower owner useless, "which restricts noisome business or condition in certain districts and reserves to "the question of negligence, as the gravastate of its representatives right to regulate "and control such business not within prohibigence. Haynor v. Excelosir Springs L., P., "bition of fourteenth amendment. Common-H. & W. Co. \[Mo. App.\] 108 SW 680. Where "wealth v. Emmera, 33 Pa. Super. Ct. 151. pollution of a stream is not the necessary "result of the operation by one of all wells" "serve purity of waters of state for protection of bils premises, but is due to this wrongful "to bille health, does not in "$4 , 8, 9, act in discharging waste water and oil into the stream, a riparian owner injured there- "waters of state, violate fourteenth amendment to United States constitution. Id. Rio Bravo Oil Co. \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 646, 104 SW 420.

Mining companies may use a stream for mining purposes, but may not place therein "of United States as opposed to rights as foreign substances which pollute the water and which will injure the land of a lower "proofer" where it is deposited thereon by "overflow of the stream, Alabama Consol. Coal & Iron Co. v. Vines \[Ala.\] 44 S 377. The discharging of tailings and debris from a "intentional" water from mines into a river, whereby the bed is filled up and the waters caused to overflow adjac- "clapal" severe system discharging sewerage cent lands and carry debris onto them, con- "outures" of state when act was passed to "outures". Culture County v. Nicola \[Ca.\] 93 P 872. Such "acts were not authorized by Act Cong." "so under same circumstances. Id. The class. March 1, 1893, relative to hydraulic mining. Id. One who places sand on the banks of a stream in such manner as to injure a lower "owner" and who negligently dips up swamp mud which pollutes the stream is liable in "damages. Griffin v. National Light & Thorium Co. \[S. C.\] 60 SE 702. In an action for pollution of a stream where a dam washed away, and allowed water accumn- "altered therein to operate a coal washer, to be precipitated over lower land, a charge held "no objectionable as imposing upon the up- "overner" and "who negligently dips up swamp" but which pollutes the stream is liable in "damages. Griffin v. National Light & Thorium Co. \[S. C.\] 60 SE 702. In an action for pollution of a stream where a dam washed away, and allowed water accumn- "altered therein to operate a coal washer, to be precipitated over lower land, a charge held "no objectionable as imposing upon the up- "overner" the duty of guaranteeing purity of water descending from the mine. Tetting- "on v. Donk Bros. Coal & Coke Co., 332 IL. 522, 83 NE 1048.

64. Where a drain laid in a street by property owners under permission from the city empties into a natural stream and "thereafter without express license from the city is used as a sewer to discharge sewage "into a stream to the injury of the lower owners, the drain is a nuisance, and the city is liable in damages for not abating it. Clity of Mansfield v. Bristor, 76 Ohio St. 270, 81 NE 631. A charge of court with reference to the time required by a municipality to "10 Curr. L.-- 126.

A city is not liable for so much of street wash as goes into a river from the surface of streets, though more would in time of rain, on account of paved surfaces preventing absorption and causing occasional diversion, find its way into the stream.\[67\] But it is liable for so much of street wash as it by artificial means diverts into sewers emptying into the stream.\[68\] The wrongful pollution of a stream by one riparian owner to the injury of others, may be enjoined \[69\] or an action at law for damages may be maintained,\[70\] and all damages proximately resulting from such pollution may be recovered.\[71\]

\_Diversion.\_See 8 C. L. 2268.--A propriator may lawfully change the course of a stream within the boundaries of his land,\[72\] but he has no right to divert the channel by a ditch so near the land of his neighbor that the water will encroach thereon and

under P. L. 1899, p. 536. Board of Health v. vere healthy before they drank the oil. Benjamin Vineland \[N. J. Err. & App.\] 68 A. 110. Pub. 108 WY 408. Nor need he prove that he used to of public supplies of potable waters,\[7\] is repeladed so far as its provisions conflict with Pub. Laws 1899, p. 536, "an act to prevent pollution of waters," etc, yet permitting waste waters from washing cans and bottles in a creamy to flow into a stream from which a city takes its water supply, is not within the provisions of the latter act, and the state board of health has jurisdiction and power under the former to enjoy it. Board of Health v. Inknen \[N. J. Err. & App.\] 67 A 28. The act of a city in building sewers emptying into a stream as authorized by statute did not constitute a violation of rights of riparian owners until more sewage was discharged into the stream than the stream could take care of. Doremus v. Peterson \[N. J. Eq.\] 69 A 225. 66. Evidence sufficient to show that a city had not acquired a prescriptive right to pollute waters of a stream. Doremus v. Peterson \[N. J. Eq.\] 69 A 225. 67, 68, Doremus v. Paterson \[N. J. Eq.\] 69 A 225. 69. Owners of land in common and in seve-eralty may join in one action for damages to all the land. Teel v. Ho Brave Oil Co. \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 646, 104 SWY 420. Several lower riparian owners have such a community of interest that they may join in a petition to enjoin its pollution or restraint by an upper owner. Horton v. Fulton \[Gq.\] 60 SE 1058. 70. In an action by an owner of a dash against an upper owner for polluting the water and causing the mill pond to be filled up with sand, an owner whose land the pond covers is not a necessary party, no relief being sought against him. Griffin v. National Light & Thorlum Co. (S. C.) 60 SE 702. In an action for damages caused by pollution of a stream by coal dust and other matter which by overflow of the stream was deposited on land of an owner, evidence as to the kind of crops grown on such land subsequent to the commencement of the action is admissible to show damage to the land though only damages occurring within one year prior to the action could be recovered. Alabama Consol. Coal & Iron Co. v. Vines \[Ala.\] 44 B 877. 71. Where cattle of a lower owner were injured by drinking water of the stream into which an upper owner had poured oil, he is not required to prove that the cattle cut into the same by breaking down the banks.\[78\] The fact that the cutting down of the banks could be prevented by a stone abutment will not authorize a continuance of such ditch, where the water of the stream is polluted by sewage and constituted a nuisance,\[74\] and might be enjoined.\[78\] One who diminishes the natural flow of a stream which supplies water power to operate a grist mill and thereby prevents the owner from operating it as fully as he might have otherwise done is liable to the mill owner for the diminished value of the use of the mill.\[79\]

SS 4. _Rights in lakes and ponds.\[80\]_ **c**. L. 184--Under the statutes of New York a railroad company may condemn a right of way over a pond where the use of its waters by the owner is not thereby interfered with.\[77\] In Massachusetts great ponds belong to the state and it may deal with them in such manner as is authorized by law.\[78\] After a state has conveyed a great pond, it may reacquire title thereto by adverse possession.\[78\] A prescriptive right to maintain a pond may be acquired.\[80\]

SS 5. _Rights in subterranean and percolating waters.\[80\]_ **c**. L. 2270--Percolating waters are a part of the land and may be intercepted by an owner\[81\] provided in so doing he does not unreasonably injure the rights of others,\[82\] but a landowner has no 73, 74. Desberger v. University Heights \[K\]Ellis \[Mass.\] 84 NE 430. Act of commis-Reality & Development Co. \[Mo. App.\] 102 somers in leasing a great pond was an as-sevent of a right to do so. Id.

75. The fact that such nuisance would be a continuing one for which suita might be brought every day gives a court of equity -- that it has been used by the public for sixty jurisdiction in order to prevent multiplicity -- of suits. Evidence insufficient to show laches -- predicted with the fact that lessees of the -- predicting relief. Desberger v. University -- Attorney General v. Ellis \[Mass.\] 84 NE 430. App.\] 102 SWV 1060. That state's lessees of a great pond took -- possession under the lease and retained it -- maximize Board of Council \[Ky.\] 107 SWV 1189. In an action by the owner of a grist -- for years, the pond being sufficient to float -- of water from a stream which -- raised the power to operate the mill, it is -- admissible to show that the value of the -- mll had been diminished from other causes. Id. Where a city diverted water from a stream above a mill and discharged it below the mill, it was liable for diversion of surface water which found its way into the -- was wells in doing so he -- stream through a sewer system though the -- causes wells of his neighbor to go dry, if amount of such water was slightly increased by the construction of streets and side-walks. Stevens v. Worceater \[Mass.\] 81 NE -- being waters may be developed and taken -- to fix the boundaries of a brock and use -- to fix the boundary of a brock and use -- to give the way would otherwise sink in the -- for us -- not liable as to such increase where it diverted water from such brock which -- and -- interpreted into a stream and discharged it into -- letting and carrying away such waters -- contrived a tunnel commencing on lands of -- and adjacent owner, the latter was not entitled to water which percolated into the tunnel -- to -- and -- on lands of the former. Id. An owner -- of land who establishes a street thereon owns the soil of the street subject to the -- to -- and does not preclude condemation of a -- from disging a well to strike a vein of minimal water which supplies a well on his own -- land for the purpose of supplying the water -- free to all, such set being a taking without compensation. Hanny v. Dawson Springs, -- 13 Ky. L. R. 814, 104 SWV 259.

01. Where mineral springs had a common source and owners bore on their premises -- through underlying rock and diverted the right to extract subterranean water in excess of his reasonable needs for the beneficial use of the land from which it is extracted \[88\], consequently the statute enacted by the legislature of California prohibiting the waste of artesian water and making it an offense to do so is not unconstitutional \[84\]. An owner of land is entitled to the unrestricted use of springs thereon \[85\] and may enjoin the pollution thereof \[88\] or recover damages therefor \[87\], but it has been held that there is no liability for pollution in the absence of negligence \[88\]. The pollution of springs furnishing water for a community is not a trivial matter \[88\]. One in possession of land may recover for wrongful pollution of a spring without proving title \[90\].

**SS 6.**\_Rights in tide waters.\_See s c. L. 2271_Lands lying between the lines of the ordinary high and low tides and which are covered and uncovered successively by the ebb and flow thereof are tide lands \[91\]. Tide lands vest in the state by virtue of its percolating waters by pumps, which caused \[81\] was likely to follow. Long v. Louisville, the mineral spring of an adjacent owner to \[82\], R. Co. \[Ky.\] 107 SW 203. Whether he go dry, the operation of the pump may be \[83\]. Tide \[84\]. Tide \[85\]. Tide \[86\]. Tide \[87\]. Tide \[88\]. Tide \[89\]. Tide \[89\]. Tide \[90\]. Tide \[91\]. Tide \[92\]. Tide \[93\]. Tide \[94\]. Tide \[95\]. Tide \[96\]. Tide \[97\]. Tide \[98\]. Tide \[99\]. Tide \[99\]. Tide \[90\]. Tide \[90\]. Tide \[91\]. Tide \[92\]. Tide \[93\]. Tide \[94\]. Tide \[95\]. Tide \[96\]. Tide \[97\]. Tide \[98\].

sovereignty "2 and cannot be acquired by private persons by adverse possession while devoted to public use." But if the state abandons it and then holds as a propriator, if limitations can run it will begin only from the date the public use ceased."

SS 7. \_Bights in artificial waters.\_See 4 C. L. 1881

SS 8. \_Ice.\_See 8 C. L. 1871.--The right to take ice from a lake is apprutenant to the ownership of the bank."

SS 9. \_Surface waters and drainage or reclamation.\_See 8 C. L. 2071.--Surface water includes water that has collected in basins or depressions which will not drain into the natural watercourse except by artificial means, and an upper propriator has the right to make connections which will promote the drainage of such depressions, provided they are within the general watershed and the capacity of the stream is not thereby increased to such an extent as to substantially injure lower propriators." All ponds, sloughs, or lakes which are fed and maintained by surface waters do not necessarily retain their character as such and become subject to drainage." The proper method for securing complete drainage for low and marshy lands where the natural outlet is not sufficient to carry off accumulated surface water is to deepen the outlet if such method is practicable." The fact that an outlet is not owned or controlled by one whose lands are to be drained and that such party will be benefited more than another will be damaged does not justify him in cutting a ditch across a water shed and delivering the water into another course." The right of the owner of a dominant estate to have the surface water flow from his land in its natural channel may be lost by prescription." The right to maintain a ditch to carry off surface water may be acquired by prescription." Unless it is the proximate cause of the over-

94. People v. Kerber \[Cal.\] 93 P 878. Es-the natural outlet. Erhard v. Wagner tablishment of a sea-wall line by San Diego \[Minn.\] 116 NWP 577.

01. Evidence insufficient to justify digging 2587, 2588, held not an abandonment of tide of a ditch across a water shed. Erhard v. lands between such line and the shore. Id. Under the constitution and statutes of Calil-

01. Where a dominant owner has with the fornia, so long as tide lands remain sub-

2.5 to navigation, they cannot be aliented by the state except for navigation purposes,

3.5 to be a \_Ice.\_See 8 C. L. 1871.--The right to take ice from a lake is apprutenant to the ownership of the bank."

8. \_Surface waters and drainage or reclamation.\_See 8 C. L. 1871.--Surface water includes water that has collected in basins or depressions which will not drain into the natural watercourse except by artificial means, and an upper propriator has the right to make connections which will promote the drainage of such depressions, provided they are within the general watershed and the capacity of the stream is not thereby increased to such an extent as to substantially injure lower propriators." All ponds, sloughs, or lakes which are fed and maintained by surface waters do not necessarily retain their character as such and become subject to drainage." The proper method for securing complete drainage for low and marshy lands where the natural outlet is not sufficient to carry off accumulated surface water is to deepen the outlet if such method is practicable." The fact that an outlet is not owned or controlled by one whose lands are to be drained and that such party will be benefited more than another will be damaged does not justify him in cutting a ditch across a water shed and delivering the water into another course." The right of the owner of a dominant estate to have the surface water flow from his land in its natural channel may be lost by prescription." The right to maintain a ditch to carry off surface water may be acquired by prescription." Unless it is the proximate cause of the over-

1. People v. Kerber \[Cal.\] 93 P 878. Es-the natural outlet. Erhard v. Wagner tablishment of a sea-wall line by San Diego \[Minn.\] 116 NWP 577.

1. Evidence insufficient to justify digging 2587, 2588, held not an abandonment of tide of a ditch across a water shed. Erhard v. lands between such line and the shore. Id. Under the constitution and statutes of Calil-

1. Where a dominant owner has with the acquiescence of the servient owner diverted yet to navigation, they cannot be aliented by the state except for navigation purposes,

1. the state in the water is not a \_Ice.\_See 8 C. L. 1871.--The right to take ice from a lake is apprutenant to the ownership of the bank."

1. \_Surface waters and drainage or reclamation.\_See 8 C. L. 1871.--Surface water includes water that has collected in basins or depressions which will not drain into the natural watercourse except by artificial means, and an upper propriator has the right to make connections which will promote the drainage of such depressions, provided they are within the general watershed and the capacity of the stream is not thereby increased to such an extent as to substantially injure lower propriators." All ponds, sloughs, or lakes which are fed and maintained by surface waters do not necessarily retain their character as such and become subject to drainage." The proper method for securing complete drainage for low and marshy lands where the natural outlet is not sufficient to carry off accumulated surface water is to deepen the outlet if such method is practicable." The fact that an outlet is not owned or controlled by one whose lands are to be drained and that such party will be benefited more than another will be damaged does not justify him in cutting a ditch across a water shed and delivering the water into another course." The right of the owner of a dominant estate to have the surface water flow from his land in its natural channel may be lost by prescription." The right to maintain a ditch to carry off surface water may be acquired by prescription." Unless it is the proximate cause of the over-

1. People v. Kerber \[Cal.\] 93 P 878. Es-the natural outlet. Erhard v. Wagner tablishment of a sea-wall line by San Diego \[Minn.

flow, an action for damages will not lie for the building of an embankment across a ditch.\*

\_Common-law rule.\_See $e$. C. L. 2271.--At common law surface water is regarded as the common enemy of mankind and each owner may protect his land therefrom.4 Surface waters may be diverted from its course and even thrown back onto the dominant estate,8 but with certain qualifications.6 The doctrine that the right may not be exercised, wantonly or unnecessarily, is a common-law as well as a civil law doctrine.1

\_Civil law rule.\_See $e$. C. L. 2272.--At civil law an owner has the right to have surface water flowing from his land follow its natural course.8

\_Baikroad companies_9 in constructing their embankments must provide culverts to carry off the natural flow of surface water 10 and keep them open and in repair.11 Failure to anticipate inundation by reason of the construction of railroad ditches and to protect his land against it does not bar recovery by landowner of damages for injury caused thereby,12 but a grantee railroad is not liable for overflow caused by embankments constructed by its grantor unless it has received notice and an opportunity to correct the nuisance.13

right has been enjoyed by the city for the | ditch was the cause of the injury. Jones v. prescriptive period, and the damages are the natural consequences of the exercise of such right by the city. City of Norwalk v. | Startup such flow. Launstein v. Launstein, Blatz, 9 Ohio C. C. (N. S.) 417. Where a railroad company had acquired a right by prescription to maintain a ditch across land for the purpose of conducting surface water from its right of way to a natural water-course, it had a right to enter on the land of the owner to remove an obstruction from the ditch placed there by such owners. | Startup (Ind.) 83 NE 737.

10 Cur. Law. WATERS AND WATER SUPLY SS 11. 2007

_A landowner has no right to collect surface water in a body See S. C. L. 2014_ and cast it in undue quantities upon the land of another,14 nor may he by artificial means drain sag holes on his land and thereby precipitate onto adjacent land a greater volume of water than would otherwise flow there,15 and if he does the owner of the servient estate may protect his premises by dikes and ditches,16 but an owner of a dominant estate may in the improvement of his land fill up sag holes therein, even though such improvement should cause surface waters arising from natural processes to flow onto the servient estate and incidently increase the flow.17

SS 10. _Lands under water._ See S. C. L. 2015\_--The owner of tide flats has an estate in fee subject only to the public rights of fishing, fowling, and passing over them in boats.18

SS 11. _Levees, drainage, and reclamation._ See S. C. L. 2017\_--A\_ levee board has no right to appropriate soil of a private owner for the construction of a levee.19 A levee district is not bound by the unauthorized acts of its officers.20 Levee taxes may be enforced upon constructive service of:notice on nonresident owners.21 Under the statutes of Illinois, a landowner who has given his consent to the construction of a drainage-age ditch is estopped to deny the existence of a perpetual easement.22 Congrese has no jurisdiction as to the reclamation of arid lands within state limits.23 Under the statutes of California a right of way acquired by a reclamation district is public property.24 A conveyance of a right of way for the construction of a levee includes

Footnote 14: It is not permissible for one to collect surface water in ditches and carry it

Thissen v. Claussen \[Iowa\] 112 NWF 545. surface water in ditches and carry it

One is justified in constructing a dam to through his own land and that of the next prevent the wrongful diversion of water lower owner and allow it to ooe through

onto his land. Orcutt v. Woodard \[Iowa\] and soak the land of another. Briscoe v. 113 NWF 548.

Parker, 145 N. C. 14, 58 SE 443. Such owner

17. Launstein v. Launstein, 150 Mich. 524, may sue for damages, not being restricted

14 Det. Neg. N. 773, 114 NWF 583. Where the owner of a dominant estate rebuilt a culvert across a highway between his own

not collect water from a large area and by

land and the servient estate, the fact that artificial means east it upon land over or through which it would not otherwise flow,

increase the burden on the servient estate,

Doremus v. Patterson \[N. J. Eq. 69\]

it appearing that if flood waters did not

A 225. Complaint against a town for collecting surface waters and permitting

across the highway. Id.

them to flood adjacent property held to

18. Chase v. Cochran, 102 Me. 431, 67 A. 320,

state a cause of action. Incorporated Town

19. In an action for illegal appropriation

of North Judson v. Lightened \[Ind. App.\] 34 of soil by a levee board who claimed the

NE 519. A town graded streets and caused

surface water to flow into another street

right from the United States, evidence held

where it was obstructed by grading thered

not to show such succession. Board of D1-

and flooded adjacent property. Held gradem

rectors St. Francis Levee Dist. v. Hale \[Ark.\]

ing was negligently done and the town was

107 SW 100.

120. A lvee district which quitclaims land

a street by embankment without providing

found not to exist is not liable for purchase

egress for surface waters which it is known

money under any unauthorized promise

will collect is negligence for which the city

made by its secretary to the purchaser. D1-

is liable where water floods adjacent land.

Factors of St. Francis Levee Dist. v. Cotton-

Id. A town which collects surface waters in

wood Lumber Co. \[Ark.\] 110 SW 805.

a channel along a street and by obstructing

21. Ballard v. Hunter, 204 U. S. 241, 51

the channel causes the water to flow onto

Law Ed. 461.

adjacent property is liable for damages. Id.

15. Equity will enjoin one owner from

maintenance of a drainage ditch could be

draining by artificial means a sag hole on his

dained and thereby precipitating onto adjacent

under Hurd's Rev. St. 1905, p. 82, a land-

land water in a body and in greater volume

owner who has given his consent to con-

than if the artificial courses had not been

made. Page v. Huckins, 160 Mich. 103, 14

Det. Leg. N. 589, 113 NWF 577.

16. If an owner of a dominant estate so

diverse the natural flow of surface waters

as to cast them onto the servient estate in

another place or in greatly increased quan-

16. A lvee constructed by a reclamation

tify, the owner of the servient estate may

defend his premises by dikes or ditches,

purpose is a part of the works which the 2008Waters and water supply SS 12.10Cur. Law. the right to enter upon the land and do the work in a skillful manner.\[28\]A statute authorizing the construction of a drainage ditch over the land of an adjacent propriator is void as authorizing the taking of property for private use.\[28\]In some states the construction of drainage ditches is controlled by statute.\[27\]\*\*SS 12. \_Milling and power and other nonconsuming privileges; dams, canals, and races.\[28, 8, 10, 227\]One who is entitled to a certain amount of water from a reservoir may use it in any manner he desires to do.\[28\]The rights of flowage in one claiming under a grant rests in the terms of his grant.\[29\]The owner of a dam may not hold back the water to the injury of an upper propriator.\[30\]An action to recover rent for a mill site and power privileges must be brought within the statutory period.\[31\]A conveyance of a mill site passes, as an apprutenant, flowage rights thereof attached \[22\]but none other.\[33\]The mere fact that the owner of a mill caused another person to purchase other land because at some future time he might need it for flowage purposes does not ipso facto create an easement in such property for that purpose though the mill owner paid for it.\[34\]Owners of land who are benefited by a trustees are, under Pol. Code, SS 3454, authorized to construct and is public property of a dam at a greater height than eighteen acquired for state purposes. Reclamation Dist. No. 551V. Sacramento County Super. Ct., 151Cal. 265, 90P 545. Under Pol. Code, SS 3454, 2471, authorizing trustees of a reclamation district to condem rights of way, and Code City. Proc. SS 1240, enumerating property which may be taken under the power of eminent domain, such right of way may be taken by a railroad company if the efficiency of the works will not be affected. Id. \[35\]C. A landowner who has granted a right of way over his premises for the construction of a levy cannot recover for injury to his land resulting from construction of the levy which was constructed in a skillful manner. Daniles V. Directors of St. Francis Levee Dist., 84Ark. 333, 155 SW 578. \[36\]C. Th. 191, p. 215, Gen. Laws 1907, providing for construction of ditches over lands of an adjacent owner by one seeking to drain his own lands, held to violate due process clause of the constitution, and also to permit condemnation of property for a private purpose. In re Schubert \[Minn.\]114NW 244. Under Laws 1905, e. 230, p. 203, relative to public ditches, in establishing such ditch, if waters are to be diverted from their natural course, the ditch must follow the general direction of the course and terminate therein whenever practicable, otherwise there may be a departure from route of watercourse so far as is necessary. State v. Baxter \[Minn.\]116NV 646. \[28\]Where one was awarded the right to a certain amount of water collected in a reservoir by a dam for the operation of a grist mill, he was entitled to make such changes as were necessary to change the mill to an excelistor factory, which would not prevent the letting down of the amount of water which it had been previously determined represented the capacity of the reservoir. Hutchins v. Berry \[N. H.\]68A 1046. Where one was adjudged entitled to seven-teen feet of water from a pond, a modification of the order so as to entitle a sawmill to draw down the water below the waste without limitation as to amount was erroneous as depriving him of his rights. Id. \[37\]Waters of land who are benefited by a 29. In an action to enjoin the maintenance of a dam at a greater height than eighteen being below the floor of plaintiff's pen-stock, evidence held to show defendants' dam was maintained several inches higher than his license granted him, and that the element that was to obstruct the operation of ditch for a planttiff's wheel. Kendrick v. Furman \[Neb.\]115NV 541. In an action by an upper owner for damages sustained by maintenance of a dam by a mill owner lower down, the judgment was held responsive to Cobbey's Ann. St. 1903, $ 718$ (Mill dam Act), and therefore proper. Overnor v. Fields \[Neb.\]111N 528. \[38\]W. Where the state operating a dam unnecessarily raised the crest of it above high-water mark and the gate tender negligently permitted the water to rise above high-water mark and set back and destroy a wall, the rights of the owner of the wall were invaded. Fitzerald v. State, 122App. Div. 306, 166NYS 620. A judgment prohibiting maintenance of a dam at a height that would cause a pond to extend at natural throw beyond a certain point is not vold for undefinedness. Mveigh v. International Paper Co., 109NYS 574. \[39\]N. Where an owner permits another to occupy a mill site and power privileges without payment of rent, his right to recover rent was limited to two years prior to commencement of the action. Briggs v. Avary \[Tex. Civ. App.\]20Tex. Ct. Rep. 728, 106SW 904. \[40\]N. Where land on which a mill is situated is sold, an easement in the pond above the mill to the extent that it was done at the time' passes as an apprutenant. Latta v. Catawba Elec. & Power Co. \[N. C.\]59SE 1028. A covenant in a deed to a mill construct and held only to pass the right to construct dams in the river within bound-arles of land conveyed. Id. \[41\]N. Where a power company gave a mortgage on its 10 Cur. Law. WATERS AND WATER SUPPLY SS 13A. 2009

dam must share in the cost of its construction. \[55\] In some states mill owners are given certain rights in streams by statute. \[86\] Under the laws of Maine a mill owner on a stream has a right to maintain a dam on his own land and raise a head of water for the purpose of operating his mill and let it out in such quantities as is proper and reasonable for the operation of his mill, \[87\] but he may not hold water back when there is no need for it and let loose more than was reasonably necessary for the operation of his mill. \[88\] The Mill Act of Maine does not authorize a complaint for flowing lands below dam, and in an action at common law for doing so the question whether there was an unreasonable exercise of the mill owner's rights is for the jury. \[89\] A part owner of water power rights apportioned in different parcels to different persons in severalty need not, in a suit to restrain one using more water than he was entitled to, join prior grantees of other parcels as parties defendant, though it would be proper to do so. \[90\]

\*\*SS 13. \_Irrigation and water supply; common-law rights and the doctrine of apporpriation. A. Rights in the water. \[88\] C. L. 2278--At common law each riparian propriator was entitled to the natural flow of the stream. \[41\] This right is a part and parcel of the land itself, \[42\] and a decree partitioning riparian lands and apportioning water rights does not alter its character. \[43\] Riparian rights are an incident of ownership and do not vest in a person until he acquires title. \[44\] There is no priority between the rights of riparian propriators to the use of water of the stream. \[45\] Each riparian owner is entitled to reasonable use of the waters, and after rights of others are all supplied he may use their corresponding rights. \[46\] There is no such thing as prior riparian ownership so far as distribution of water for irrigating purposes between riparian owners is concerned. \[47\] The nature and extent of the right of a riparian owner cannot be measured by any fixed or definite rule, nor can the amount of water he is entitled to use be definitely fixed. \[48\] The doctrine of riparian rights and prior appropriation are not so antagonistic that they may not exist in the same

\\begin{tabular}{l|l} tract for flowage purposes, the deed did not & rights. Telulah Paper Co. v. Patten Paper \\ pass an essement of flowage in such land. & Co. \[VWs.\] 112 NW5 522. \\ Latta v. Catavba Elec. & Power Co. \[N. C.\] 41. See ante, SS 3. \\
**SS 1028**. & 42. This right extends to an underground \\
**SS 1028**. & flow constituting part of the stream. Yer- \\ of a river were benefited by the construction of a new dam, and those on one side & dugo Cannon Water Co. v. Verdugo \[Ca1.\] 93 \\ knew of and acquessed in the project for & 43. Where the decree did not specifically \\ its construction, held all owners on both & dispose of underground waters, such water \\ sides were & hide for their proportionate & which is essential to the preservation of \\ share of the cost of the dam. Loomins v. Loewenheim, 121 App. Div. 88, 105 TXS 735. & surface streams cannot be diminished. Yer- \\
**SS 1028**. & duge Canon Water Co. v. Verdugo \[Ca1.\] 93 \\ thorizing construction of mill dams across & P 1021. Where lands riparian to a stream \\ non-navigable streams and providing a remedy by civil action for one whose land is & were partitioned and \\ flooded, provides an exclusive remedy and & without specifically disposing of the underground flow, held, in determining right to \\ an action to abate a dam or enjoin its main- & the underground flow, it must be treated as \\tenance at an excessive height will not lie. & one stream and each party was entitled to \\ AlAlaby v. Mauston Elec. Service Co. \[VWs.\] & his share except that no owner could di- \\
**SS 118 NW 4**. & minish the surface stream to the injury of \\
**SS 127**. & thors. Id. \\
**SS 138**. & 44. Under Laws 1889-90, p. 706, a mere \\
**SS 139**. & Barker v. French, 102 Me. 407, 67 A \\
**SS 140**. & 67 A \\
**SS 141**. & One who had a power right held not & is the \\ to have survived any rights by acquessence & \\ in using water power at night by another & \\ which use did not interfere with his day & \\ runs. Union Water Power Co. v. Libby & Dhingley Co., 102 Me. 439, 67 A 357. & \\
**SS 142**. & 67 A 357. & \\
**SS 143**. & 67 A 357. & \\
**SS 144**. & No necessary parties where, though \\ evidence may involve examination into & \\ rights of such prior grantees, decree will not necessarily, even in form, pass upon their & \\ \\end{tabular}

**SS 150**. & 67 A 357. & 67 A 357. & 67 A 357. & 67 A 357. & 67 A 357. & 67 A 3 locality,49 and a settler upon a stream has an election to rely upon his rights as riparian owner or make an appropriation of water, but he cannot do both.50 In many states, however, where water is required for irrigation purposes, this rule has been modified to meet the conditions.51 Under this rule a riparian propriator is not entitled to take water from a stream for use on land valueless for agricultural purposes,52 nor is he entitled to take water from the stream and sell it.54 The rights of propriators to the water of a stream may be fixed by contract.54 Right to use of waters for irrigation may be reserved in cession of lands.55 A right to use the waters of a stream may be acquired by prescription.56 Such rights cannot be acquired by permissive use,57 nor by a use which does not work an injury to lower propriators.58 One who asserts a prescriptive right to use water has the burden to establish such right.59

49. See Crawford Co, v. Hathaway, 67 Neb. water openly and notoriously for a purpose 325, 93 Nw 781. not authorized under his contract, he acquired a prescriptive right to so use it. 51. A riparian owner is entitled to the natural flow of the stream subject to reasenable use by other riparian owners. In either of the years ripens into title. State v. a finding that plainfh had irrigated his land from such stream for twenty-five years is immaterial. Huffner v. Sawday \[Cal.\] 94 94.

**10** Cur. Law. WATERS AND WATER SUPLPLY SS 13A. 8011

_An appropriation See * C. L. 2279_ consists in the construction of appropriate

- ditches, 60 the conducting of water through such ditches to the place of intended application, 61 and the application of the water to a beneficial use 62 within a reasonable time.

_What may be appropriated.See * C. L. 2279_--As a general rule, all waters not subject to prior appropriation may be appropriated, 63 but water which is subject to vested rights in another, 64 or which is reserved by the government for special uses, may not be. 65 Necessity is not the sole measure of right to unappropriated subterranean waters. 66 The rights of an appropriator are not affected by the interstate character of the stream. 67\_--\_

_Method of appropriating.See * C. L. 2280_--An appropriation may be made by either the common-law or statutory method. 68 A diversion of water not applied to a beneficial

granted a right to use water for a certain

on public lands bordering on a non-navigals-purpose may acquire a prescriptive right to

use it for an enlarged purpose. Gurnsey v.

much of the water of the stream as may be

Anticipo Creek & Bed Bluff Water Co. \[Cal\].

required for use on the reservation for the

App.J 92 P 326.

benefit of the Indians. Any surplus, how-

ever, remains subject to appropriation by

uous use as owner for the statutory period.

Gurnsey v. Antelope Creek & Bed Bluff Water Co. \[Cal\].

133-129, creating the Blackcet Indian Research to establish a prescriptive right to

vwater. Id.

60. The right to use waters of a public stream for irrigation purposes depends on

the construction of appropriate ditches.

Gates v. Setters' Mill, Canal & Reservoir Co. \[OkL.\] 91 P 856.

61, 62. Gates v. Setters' Mill, Canal & Reservoir Co. \[OkL.\] 91 P 856.

63. Evidence insufficient to establish a

prior appropriation. Watts v. Spencer \[Or.\]

94 P 89. Under Rev. St. 2339, so long as

land belongs to the United States as part of

the public domain, the water flowing over

it in non-navigable streams Is subject to ap-

propriation for recognized uses, and the

mere fact that the stream borders at some

point on a territory reserved for particular

governmental purpose will not destroy the

public character of its waters, which remain

subject to appropriation the same as if the

reservation had not been created. United

States v. Conrad Inv. Co., 156 F 123. In an

action involving alleged appropriation of

water from springs, evidence held to show

that the pools were not springs but nothing

more than a obey caused by seepage water.

Dickey v. Madoux \[WHash.\] 93 P 1090. There

was no authority for the appropriation of

such water prior to 1891, if at all. Id.

64. An Indian reservation on public lands

is property of the United States within the

rule that as owner of land bordering on a

non-navigable stream it is entitled to the

continued flow of the waters of such stream

so far as is necessary for the beneficial use

of the property. United States v. Conrad Inv. Co., 156 F 123.

The action of the secretary of the interior in approving maps for

the location of irrigation canals over public

lands, as provided by 26 Stat. 1101, 1102, does not give companies coucutracting the same

any right to appropriate waters of a stream

nor estop the United States from asserting

a prior right thereto. Id.

65. The creation of an indian reservation

on public lands bordering on a non-navigals-

purpose may acquire a prescriptive right to

use it for an enlarged purpose. Gurnsey v.

much of the water of the stream as may be

Anticipo Creek & Bed Bluff Water Co. \[Cal\].

required for use on the reservation for the

App.J 92 P 326.

59. Thls burden is met by proof of continuous use as owner for the statutory period.

Gurnsey v. Antelope Creek & Bed Bluff Water Co. \[Cal\].

156 F 123. Under Act May 1, 1888, 25 Stat.

113-129, creating the Blackcet Indian Research, held that the creation of such res-

ervation operated to reserve so much of the

waters of Birch Creek as was necessary for

use by the Indians, and so long as the goverment was administering the affairs of

the Indians it had a right to determine the

quantity of water required. Id. Ball. Ann.

Codes & St. 4156, providing that a portion

of the water of non-navigable streams or

lakes shall be reserved for use of property

subutting thereon, is not inconsistent with

Act Cong. March 3, 1877, reserving such

water to the appropriation and use of the

public. State v. Spokane County Super. Ct.

\[WHash.\] 91 P 968.

66. The fact that one has never taken

more than he required for irrigation does

not entitle him to such amount. Verduso

Canon Water Co. v. Verdugo \[Cal.\] 93 P 1021.

1021.

0001. Appropriate in Wyoming of waters

from a stream having its source in Montana.

Beficial use is not an appropriation."9 What constitutes a reasonable time within which water must be applied to a beneficial use depends on the facts of each particular case." An appropriation may be made by a ditch over vacant public land." An appropriation from one river may be made by a ditch from it to another river, letting it flow down that river and diverting it therefrom." Under the doctrine of "relation back," as between two persons digging ditches at the same time and prosecuting the work with reasonable diligence, the one who began work first had the prior right, though the other completed his ditch first." One who settles on public lands and commences to divert water from a stream for domestic and irrigation purposes and applies it to a beneficial use and subsequently acquires a patent, his rights to the water relate back to the date of appropriation."4

\_Right to supply from water companies.\_See * C. L. 2281.\_The rights of parties under a contract for water supply for irrigation purposes rests in the terms of their contract." The contract right of a landowner with a canal company to have water from its ditch for irrigation of his land for a term of years is a servitude on the canal and an appurtenance to the land." Under the statutes of Colorado a canal company must construct a head gate for use of a consumer, however small, if it is not practicable for him to obtain his water supply through a headgate used by other consumers." Where the owner of the land leased it and covenanted to supply water, such owner is the real party in interest and entitled to sue for failure of the ditch company to furnish water."1

\_Limit, measure and extent of appropriation.\_See * C. L. 2282.\_The rights of an appurtenance to the land.

10 Cur. Law. WATERS AND WATER SUPPLY SS 13A. 2013

propriator depend on the amount of his appropriation 70 and the amount he can apply to beneficial purposes.80 The right to an appropriation for domestic purposes does not depend on the locus of its use for such purpose.81 An appropriator must exercise his rights with due regard to the rights of others,82 and must use reasonable care to prevent waste by seepage and evaporation while the water is being carried to the place of use.83 An appropriator from a stream has no right to the use of a surplus as against subsequent claimants.84 It is presumed that waters of a tributary stream less evaporation, if not interfered with, will reach the main stream either by surface or subterranean flow.85 One whose water supply has ceased is not entitled to use the supply of another.88 The measure of the rights, duties, and liabilities of the ditch company and water consumers is fixed by statutes and contract and not by rules of the company.87 The rights of consumers of water from an original canal and an extension thereof, where different appropriations were made for the original and for the extension, are governed by their contracts with the irrigation company.88 The right to water appropriated by a person is a property right 89 and may be dealt with as such.80 The owner of a water right may store his water during the irrigating sea.

70. A person began irrigation ditch and down to subsequent claimants as it is wont drew water from a stream. He subsequently to flow. Williams v. Altony \[Or.\] 95 P 200. abandoned the land and another took possess. 83. Town of Sterling v. Pawnee Ditch Exsion and used water in the ditch by the construction of certain laterals. Held the latter person having made no appropriation from the stream and having acquired no rights by deed from the former, his right that a prior appropriator on the main stream to water was measured by the quantity he diverted from the ditch by laterals and applied to a beneficial use before another ap- \[Colo.\] 95 P 301.

01. Such fact is relevant only to show that v. Roberts \[Colo.\] 92 P 220. Where one approproproprofits of the supply of another was not from a wanton desire to injure them. Vardugo Canon Water Co. v. Vardugo \[Cai.\] sought to enjoin interferences with his righte, his right was limited to the amount appropriated by his grantor and he could not enjoin interference with the excess. Berry v. Equitable Gold Min. Co. \[Nev.\] 81 P 537. Under Desert Land Act 19, Stat. 377. providing for appropriation of water for Ir- \[Colo.\] 92 P 220. Where one approprofits of the supply of another was not from a wanton desire to injure them. Vardugo Canon Water Co. v. Vardugo \[Cai.\] sought to enjoin interferences with his righte, his right was limited to the amount appropriated by his grantor and he could not enjoin interference with the excess. Berry v. Equitable Gold Min. Co. \[Nev.\] 81 P 537. Under Desert Land Act 19, Stat. 377. providing for appropriation of water for Ir- \[Colo.\] 94 P 339.

propriator the amount of his appropriation 70 and the amount he can apply to beneficial purposes.80 The right to an appropriation for domestic purposes does not depend on the locus of its use for such purpose.81 An appropriator must exercise his rights with due regard to the rights of others,82 and must use reasonable care to prevent waste by seepage and evaporation while the water is being carried to the place of use.83 An appropriator from a stream has no right to the use of a surplus as against subsequent claimants.84 It is presumed that waters of a tributary stream less evaporation, if not interfered with, will reach the main stream either by surface or subterranean flow.85 One whose water supply has ceased is not entitled to use the supply of another.88 The measure of the rights, duties, and liabilities of the ditch company and water consumers is fixed by statutes and contract and not by rules of the company.87 The rights of consumers of water from an original canal and an extension thereof, where different appropriations were made for the original canal and for the extension, are governed by their contracts with the irrigation company.88 The right to water appropriated by a person is a property right 89 and may be dealt with as such.80 The owner of a water right may store his water during the irrigating sea.

70. A person began irrigation ditch and down to subsequent claimants as it is wont drew water from a stream. He subsequently to flow. Williams v. Altony \[Or.\] 95 P 200. abandoned the land and another took possess. 83. Town of Sterling v. Pawnee Ditch Exsion and used water in the ditch by the construction of certain laterals. Held the latter person having made no appropriation from the stream and having acquired no rights by deed from the former, his right to water was measured by the quantity he diverted from the ditch by laterals and applied to a beneficial use before another ap- \[Colo.\] 95 P 301.

01. Such fact is relevant only to show that v. Roberts \[Colo.\] 92 P 220. Where one approprofits of the supply of another was not from a wanton desire to injure them. Vardugo Canon Water Co. v. Vardugo \[Cai.\] sought to enjoin interferences with his righte, his right was limited to the amount appropriated by his grantor and he could not enjoin interference with the excess. Berry v. Equitable Gold Min. Co. \[Nev.\] 81 P 537. Under Desert Land Act 19, Stat. 377. providing for appropriation of water for Ir- \[Colo.\] 94 P 339.

01. Where after the extension was made the consumers under the original surren- \[Colo.\] 95 P 301.

01. Such fact is relevant only to show that approprofits of the supply of another was not from a wanton desire to injure them. V son, and use it later in the season for irrigation of crops requiring it at that time."1 The right to change the point of diversion, or place of use, of water obtained by appropriation, is an incident of ownership which exists independent of statue."2 In a proceeding to change point of diversion from an irrigation ditch, it is no defense that consumers in another district who are not parties would be injured."3 It is not the duty of a water commissioner to make any division or distribution of water between users thereof from the same ditch, and he has no authority to interfere with the internal management of affairs of a ditch company,"4 but it is his duty to turn into a ditch, under decree, water necessary for the use of the consumers from such ditch, and to refuse to turn water into a ditch for the use of any one not entitled to it." Double duty cannot be imposed on water rights evidenced by shares of stock in a ditch company."4

\_The right of appropriation may be lost only by abandonment or adverse possession,"5 the elements of which must be clearly established."6 Mere nonuser of water does not show an abandonment,"7 but if continued for a long period of years it may be sufficient.1 There must be an intent to abandon." One who asserts an abandonment of an adjudicated priority has the burden to prove it.8

other appropriators would not be injured, and not a violation of Const. art. 16, & 6, declaring that the right to divernt unappropri- 95. Cache La Poudre Irrigating Ditch Co. and waters shall never be denied. Bowman v. Virdin \[Coo.\] 95 P 508. A complaint to right of a reservoir company to priorities of a ditch company depended on ownership of who had borrowed, which fails to allege that "missioner in denying this ownership based "rested rights of other appropriators, is fatal" to derive. Id. A priority to the use of "water is a property right which is subject to "purchase and sale, and its character and "method of use may be changed provided "rights of others are not injured. Seven Lakes Reservoir Co. v. New Loveland & Greeley Irr. & L. Co. \[Colo.\] 93 P 485. A water company may appropriate water from a stream for the purposes of sale, and in such case the appropriation belongs to it with a perpetual right vested in consumers which can be defeated only by their failure to pay water rates and comply with lawful requirements relative to its use. Farmers Co., operative Ditch Co. v. Riverside Irr. Dist. \[Idahol\] 94 P 761. \[Sven Lakes Reservoir Co. v. New Loveland & Greeley Irr. & L. Co. \[Colo.\] 98 Y 111. \[Sven Lakes Reservoir Co. v. New Loveland & Greeley Irr. & L. Co. \[Colo.\] 98 Y 112. \[Sven Lakes Reservoir Co. v. New Loveland & Greeley Irr. & L. Co. \[Colo.\] 98 Y 100. \[Sven Lakes Reservoir Co. v. New Loveland & Greeley Irr. & L. Co. \[Colo.\] 98 Y 112. \[Sven Lakes Reservoir Co. v. New Loveland & Greeley Irr. & L. Co. \[Colo.\] 98 Y 113.

10 Cur. Law. WATERS AND WATER SUPLYLY SS 13B. 2015

Adverse user for the statutory period establishes the claim,4 but an adverse right cannot grow out of mere permissive user * or one which is not continuous and uninterrupted.6 No adverse user can be initiated until the owner is deprived of his use in such manner as to notify him that his rights are invaded.7

(SS 13) \_B. Rights in ditches and canals.\_See & C. L. 2288--The perpetual right of a party and his heirs and assigns to have water for his land carried through a certain ditch is an easement apprutenant to the land in whossoever hands it may be.8 The right to maintain ditches over land of another rests in the terms of a grant * or exists by virtue of statute.10 Such right may be acquired by prescription.11 A over-nant running with the easement in favor of land whereby the owners of a ditch are required to furnish water for owners of land is personal and a burden on owners of the years paid no rent. Id. A transaction which falls as a sale cannot be converted into an abandonment. Watts V. Spencer \[Or.\] 94 P 89. A plant of 89. There cannot be an abandonment to a ditch * use by one not a party, certain person for a consideration. Id. The fact that a landowner having an easement has of waters may be defeated by proof that in a ditch entitting him to water uses some other method of conveying water to his land for a time did not constitute an abandonment thereof. Farmers' High Line Canal & fragments. Id. Reservoir Co. V. New Hampshire Real Estate Co. \[Colo.\] 92 P 89. A plant of 89. There cannot be an abandonment or the water right. Watts * or 89. A landowner having an easement has of water 89. The other hand of a plant of 89. There can be an abandonment in a ditch * use by one or another another. Id. \[Colo.\] 93 P 1112. One who claims that an ether has lost by abandonment his right to use all or a portion of his decreed priorities in an irrigation ditch has the burden to prove the amount of water actually abandoned. O'Brien v. King \[Colo.\] 92 P 946.

4 Gardner v. Wright \[Or.\] 91 P 286. Evci. denote sufficient to establish a prescriptive right to use on one tract of land water from a ditch across another tract. Anabeling Union Water Co. v. Ashcroft \[Calo.\] 94 P 613. Evidence held not to ehow a continuous use of water for five years necessary to give a prescriptive right. Id. Use of water through a ditch of such character as to indicate that the same is being used in hostility to the right of any person to interfere with its exercise is a sufficient claim of right to ripen in prescriptive right. Id. Where the grante of a water right permits the statutory period to elapse without regaining control of water rights which he has permitted his grant to invade, title revests in the grantor. Gard-ner v. Wright \[Or.\] 91 P 286. Where one granted full use of a stream, that he afterwards openly used the water on land above under notices posted, with general knowledge thereof in the vicinity, while not sufficient to establish ownership, indicated adverse user against the grante. Id. Limitations commenced to run if the intention to hold adversely was accompanied by acts of d ditch.12 Where seepage from an irrigation ditch injures the property of another, the ditch owner is liable only in case of negligence.13 The fact that a municipality uses water that it conveys to place of use through a ditch across a field of another does not of itself authorize the municipality to maintain action against the owner of the land to perpetually enjoin him from allowing cattle to graze along the ditch or wade therein.14 In such case the primary duty of protecting the water from contamination or fencing the ditch rests on the city as owner of the easement.15

(SS 13) \_C. Remedies and procedure.See $s$ c. L. 2287--A bill in equity will lie to quiet title to a water right 16 or to determine rights of claimants to use of water of a stream,17 and equity will grant an injunction to protect a water right apprutenant to land held under an equitable title.18 A ditch company may maintain an action to protect rights of consumers without joining such consumers as plaintiffs.19 In Colo-rado the district court has jurisdiction to determine priorities of appropriators from public streams.20 In a proceeding to determine priorities as between users of water, all persons having rights should be joined.21

Footnote 19: Town of Sterling v. Pawnese Ditch Extension Co. \[Colo.\] 94 P 339.

In pleading an appropriation, acts constituting such appropriation must be alleged.22 A complaint to determine water rights by reason of an appropriation need plead only ultimate and not evidential facts.23 A complaint to quiet title to approp

## 10 Cur. Law. Waters and water supply $ 13C.

priations need not allege matters of defense.\[44\] A complaint for flooding caused by negligence in operating a headgate must specifically allege the acts of negligence relied upon.\[28\] One suing to determine water rights in a stream has the burden to prove all elements essential to prior appropriations.\[26\] The admissibility of evidence is governed by the general rules.\[27\]

Where a senior seeks to enjoin a junior appropriator of water from diverting the same to the injury of the former and the junior seeks to avoid the same on the ground that if his use is restrained the senior will derive no benefit, such defense must be clearly established.\[28\] The proceeding to sell land for irrigation assessments is statutory.\[29\] In Colorado the question of abandonment cannot be determined in a proceeding to change the point of diversion.\[30\]

A decree determining water rights should fix the rights of the parties as nearly, as possible \[31\] and confers no greater rights than are awarded by it.\[28\] A decree awarding water rights, allowing appropriators water proportionately as they increased their irrigable land, and providing that the user of additional water should be made with reasonable diligence, vessel in the appropriators only an inchoate right, which became fixed only on application to beneficial use.\[33\] The decree should conform to the 24. That the defendant had not the right flow of a stream, the court must determine to appropriate, etc. Town of Sterling v. Paw- were listed and developed. Pomona Land

25. Complaint held "suffunction" specific. & Water Co. v. San Antonio Water Co. \[Cal.\] Dennis v. Crocker-Huffman Land & Water

33 P 881. Where there are conflicting claims for priority In the use of waters, the court, in an application for injunction, may make contactable distribution of the waters according to the priority of claimants and the quan-

27. In an action by a later appropriator to certain a prior appropritor from cutting off the water, it is permissible to show that the

01. While a careful account of the material is required, the court must determine whether water rights are not allowed to be pleadings 24 and findings.25 Impossible relief should not be decreed.28 Where parties to a proceeding to determine water rights fix such rights by agreement and agree to a decree pursuant thereto, the court must frame its decree in accordance with such agreement.27 If such agreement does not express the intention of the parties, the remedy is by action to correct the agreement, and not by prayer for a decree to correspond to the intention.28 A priority decree adjudicating a certain amount of water to a particular canal does not determine the rights of consumers except incidentally as against other canal owners, nor does it attempt to attach priorities to any particular lands,29 but such decree is res adjudicata as to all questions determined by it.24 Such decree confers no new rights, but is merely evidence of existing ones,21 and may be sufficient to indicate a new right if acted upon for a considerable period.22 In Colo-rado a priority decree must be assailed within four years.22 In construing a decree, the surrounding conditions are to be considered.24

Footnote 28: A brief review of the results of this paper is given in the following section.

In Idaho where the court orders a survey by the state engineer and the preparation of maps, the cost thereof is properly charged to the parties litigant in proportion to their interest.25

Footnote 28: A brief review of the results of this paper is given in the following section.

Footnote 29: A brief review of the results of this paper is given in the following section.

Footnote 30: A brief review of the results of this paper is given in the following section.

Footnote 31: A brief review of the results of this paper is given in the following section.

Footnote 32: A brief review of the results of this paper is given in the following section.

Footnote 33: A brief review of the results of this paper is given in the following section.

Footnote 34: A brief review of the results of this paper is given in the following section.

Footnote 35: A brief review of the results of this paper is given in the following section.

10 Cur. Law. WATERS AND WATER SUPLYL. SS 15. 2019

irrigate it may be excluded from an irrigation district which is being created.\* In California if the board of directors of an irrigation company refuse to levy an assessment to pay interest on bonds, it may be levied by the county supervisors,47 in which case the expenses of the levy are properly included.48 Mandamus is properly awarded to compel the supervisors to make the assessment, though the petitioner's demand was represented by a judgment against it on its bonds.49 A judgment awarding the writ was not erroneous because it made no provision for other creditors.50 The legality of the formation of an irrigation district and the proposed issue of bonds for the purchase and construction of a canal system are not affected by the fact that the canal system may water lands outside the district.51

SS 15. _Water companies and water supply districts. Water companies._ See s C. L. 2220.--Corporations engaged in supplying water for public use cannot, without legislative sanction, transfer the entire property devoted to such use and the business of carrying it on,52 but where a water company as authorized by statute transfers its property and franchise as a whole, such transfer does not relieve the franchise or property held under it from any liability.53 A consumer who is not prejudiced may not enjoin the transfer of its system by a water company.54 A water company may not, without 46. Comp. St. 1503, SS 6522, 6529, providing the supervisors, the expenses of the levy means by which land may be excluded from an irrigation district, do not apply where BLK, Y. Ker County Supr's, 5 Cal. App. 638, land is at the time of organization of a dis- 49, 50, Nevada Nat. Bk. v. Kern County sufficient capacity to water It. State v. Several Pareels of Land (Neb.) 114 N78 238. The 51, Settlers' Irx. Dist. V. Settlers' Canal Co. provision of Comp. St. 1903, 1, art. s, 0. sha. 1934 that where ditches have been constructed to have and was voted to issue bonds for the capacity to water the lands thereunder such ditches, franchises, and lands shall be ex- 53 such system will supply water to lands out- 54 the benefit and protection of the landowner, as well as for the owner of the ditch Id. Where bonds have been authorized by the electors of the district and benefits accruing the judgment of the county board as to matters committed to it by the statute for its 49, 50, and 51, but the consideration may not be collaterality at- 54, 51, but the question whether land is under a ditch already constructed of sum- 54, 51, and 52, but the question whether land is under a ditch already constructed of sum- 54, the consent of proper authorities, lay its mains in the streets. \[85\] The consent of a town to the laying of pipes in the streets where given without limitation as to period of continuance is not limited to work done within a reasonable time after consent is given and cannot afterwards be limited by the courts. \[86\] A general designation of all streets in a consent to a water company to lay pipes is equivalent to a designation of each and every street by name. \[87\] A water company does not exhaust its right to condemn land by a single exercise of the power of eminent domain. \[88\] It is the duty of a water company to construct its mains and laterals \[89\] and to supply water to property owners who placed pipes and fixtures in his buildings. \[89\] A consumer from a private pipe acquires no greater rights when such pipe is purchased by a water company. \[90\] Where a city has a monopoly on the right to furnish its inhabitants with water, a water company whose conduits are laid in the streets of such city cannot, without its consent, furnish water to such residents, \[82\] and such right does not exist under the laws of New York, \[88\] but such company was held to have a right to supply water to a railroad company on whose right of way its mains were laid. \[84\] The threat-

\\begin{tabular}{l|l} & **vate main.** Petitioners for the extension \\ & \*\*paid the cost of connecting with the extension, a consumer could not enjoin such trans- \\ & \*\*so, but the plaintiff refused to do so and \\ & **for on the ground that it would deprive him** \\ & \*\*issited that the company supply him with \\ & **of his rights.** \\ & **of his rights.** \\ & \*\*the plaintiff could not have completed the \\ & **atve to filing with the secretary of state,** \\ & **consent by corporate authorities of a town** \\ & **public service corporation, to furnish him** \\ & \*\*to be supplied, to the incorporation of a \\ & **water, and he having joined in the petition** \\ & **water company, and the consent of the town** \\ & **for extension, he could not compel the water** \\ & \*\*to the laying of pipes in the streets, the \\ & \*\*is latter consent may be given at the same \\ & **Co. \[Wash.\] 94 P 1080.** \\ & **time as consent to incorporation. Wooddick** \\ & \*\*bridge Tp. v. Middlesex Water Co. \[N. J. Eq. 1\] 68 A 464. A consent to lay pipes in \\ & **city of Rochester a monopoly of the right** \\ & \*\*step. 68 A 464. A consent to lay pipes in \\ & **to furnish water to its residents, prevents** \\ & **streets is not illegal because given before** \\ & **a private company maintaining conduits** \\ & \*\*the corporation was created by filing the \\ & **through the city from furnishing water to** \\ & **organization certificate, since the consent** \\ & \*\*to incorporation being given solely for the \\ & \*\*to incorporation being given solely for the \\ & **purpose of the filing takes effect only on** 10 Cur. Law. WATERS AND WATER SUPPLY SS 15. 2021

ened forfeiture of the contract right of a water company to maintain a dam may be enjoined. \[65\]

The state corporation commission of Virginia has no jurisdiction of a controversy between two water companies resulting from their laying mains in the same streets. \[66\]

\_Water franchises.See $ C. L. 2291--A franchise requiring a certain pressure at a certain hydrant is not violated by a change in the system which reduces the pressure but furnishes an adequate supply. \[67\] An exclusive franchise to furnish water for a certain period is not violated by an ordinance which directs the purchase of the plant or the construction of another, the city having an option to purchase. \[68\] Where the language of an ordinance granting a waterworks franchise is ambiguous and reasonably susceptible of two constructions, the construction most favorable to the public should be adopted. \[69\] The grant by a city to a waterworks company of the exclusive right to the use of its streets and public places for the purpose of constructing a waterworks system does not prevent the city itself from using the street for such purpose. \[70\]

_Water boards and districts._ See $ C. L. 2292--Water departments are created by statute. \[71\] When the meaning of a warrant for the meeting of a water district is unmist-takable, it is sufficient though not in technical form. \[72\]

\_Public ownership.See $ C. L. 2292--The power of a city to establish and maintain a waterworks system is statutory, \[73\] and in exercising such power the statutes must be

without the consent of the city, supply the railroad company water for use within the city under private contract. City of Rochester ver. Rochester & Lake Ontario Water Co., willage prior to its annexation to a city does 185 N. T. 328, 82 NE 154.

**65.** Where a city threatens to declare a forfeiture of the contract right of a water company to maintain a dam. Eau Claire Della Imp. Co. v. Kau Claire \[W1s.\] 115 NW 155.

**66.** Code 1904, $$ 1294b, $$ 131a, and Const. art. 12, $ 156, does not confer on the state corporation commission jurisdiction of a controversy between two water companies resulting from one of them laying mains in streets occupied by the other. Newport Newe Light & Water Co. v. Peninsula Pure Water Co. \[V.A.\] 95 SE 1699.

**67.** A franchise requiring a specified pressure at a certain hydrant is not violated where, with the consent of the city, the system is changed from a pumping to a gravity system, and the pressure was thereby reduced, but it appeared that the present system furnished abundant and a better supply. City of Denver v. Denver Union Water Co. \[Colo.\] 91 P 918.

**68.** Where a waterworks company had an exclusive franchise to maintain and operate waterworks In a city until 1915, the city reserving the right to purchase the plant on paying agreed or appraised value, the fact that in 1906 the city passed an ordinance directing the finance committee to take proceedings to purchase the plant or construct another did not show an intention to violate the franchise. Selma Water Co. v. Selma, 154 F 138.

**69.** Mitchell v. Tulsa Water, L., H. & P. Co. \[OkL.\] 95 P 961. In absence of express provision to that effect, exclusive grant to water company does not prevent city itself from supplying water. Rogers complied with.14 Where a city has a right under the franchise of a water company to purchase its plant at the expiration of certain intervals, the fact that preliminary proceedings are once instituted does not exhaust the power of the city,78 and in such case it was no objection to proceedings for appraisement to enable the city to exercise its option that the city had no funds and the creation of a debt would exceed its constitutional debt limit.79 A city which is authorized to establish and maintain a system of waterworks is authorized to acquire by purchase an existing system constructed by private persons under authority from the city.79 The grant to a city of power to provide water supply for its inhabitants carries with it power to perform acts incidental thereto.78 Where a city with power to do so acquires the property and franchise of a water company, it does so subject to the obligation of the company to furnish water, which obligation the city must perform.79 The remedy to compel the city to furnish water is by mandamus and not injunction.80 A city which takes over the system of a waterworks company is liable for purchases made for its maintenance.81 In the ab sence of charter authority, a city has no power to contract to furnish one not a resident of its territory water for use outside its territory \[82\]. A statute authorizing a city to take private property for its waterworks system contemplates that it shall pay therefor \[83\], but a riparian owner who consents to the taking by a city of land and water rights for water supply purposes can neither obtain damages nor an injunction \[84\]. In the taking of property for waterworks purposes, statutes must be complied with \[85\]. The question of purchase or extension of a waterworks system is discretionary with the city council \[86\] and is not subject to judicial review \[87\]. A resolution of a city council to acquire the plant of a water company, provided the purchase price was fixed at a sum agreeable to the city, is, the water company asserting, a valid resolution \[88\]. The option of a city to acquire the plant of a waterworks company, at a price to be fixed by commissioners to be appointed by the parties, fixes in the statutory sense the terms upon which the plant is to be acquired \[89\]. A city issuing bonds to pay for a waterworks system has power to agree with the purchaser as to the time of payment \[90\]. A borough which undertakes to furnish water for its inhabitants acts in a private and not in a governmental capacity \[91\], though in Kentucky it is held that a city is a political subdivision of a state and is given power to maintain a waterworks system for the comfort, health, and safety of its inhabitants \[92\], and if a city waterworks system be of a governmental and public nature \[93\], the fact that water rents are paid by consystem as authorized by statute is, while it operates the same, liable for purchases made for its maintenance. Improvement Dist No., 1 v. Brown \[Ark.\] 109 SW 1010.

s2. Sayles' Ann. City. St. 1897, art. 418, does not confer such authority, City of Paris v. Sturgeon \[Tex. App.\] 110 SW 459.

s3. A statute authorizing a city to take and hold land and privileges necessary for construction of a waterworks system and to purchase the same, and when it cannot agree with the owners, have damages fixed by appraisers, contemplates that compensation shall be made for land and privileges taken, and water may not be diverted from a stream without the consent of a riparian owner unless he is paid at least nominal damages.

Beckerle v. Danbury \[Conn.\] 67 A 271.

s4. Beckerle v. Danbury \[Conn.\] 67 A 271.

A complaint to restrain a threatened increased diversion, but not alleging that such increase will work an Irreparable injury, does not state facts warranting an injunction. Id.

s5. Under St. 1905, p. 60, c. 91, $ 2, providing that no source of water supply for domestic purposes shall be taken by a town without the consent of the board of health, a taking of land for water supply is not valid in the absence of such consent. Dorr v. Sharon \[Mass.\] 84 NE 446. "Land for holding such water" in St. 1883, p. 469, audermirings a company to take and hold water of designated streams and all lands necessary "for holding and preserving such water," means land for a reservoir. Id. Words "land for preserving such water" as used in St. 1883, p. 469, c. 177, authorizing water company to whose rights a town succeeded, to take certain waters, held to mean land for the preservation of such water as the company or town was authorized to or had acquired. Id. A water company chartered under Act May 16, 1889 (P. L. 226), amending Act April 29, 1874 (P. L. 74), has right of eminent domain. Jacobs V. Clear-view Water Supply Co. \[Pa.\] 69 A 870.

s5. Where a city maintains a waterworks system, the question of the extension of such system must be left to the sound discretion of the city authorities. Crouch v. McKin-

s6. A texpayer cannot sue to.enjoin en-

s7. A texpayer cannot sue to.enjoin en-

s8. A statute authorizing a city to take and hold land and privileges necessary for construction of a waterworks system and to purchase the same, and when it cannot agree with the owners, have damages fixed by appraisers, contemplates that compensation shall be made for land and privileges taken, and water may not be diverted from a stream without the consent of a riparian owner unless he is paid at least nominal damages.

s8. Backerle v. Danbury \[Conn.\] 67 A 271.

s4. Apollant to restrain a threatened increased diversion, but not alleging that such increase will work an Irreparable injury, does not state facts warranting an injunction. Id.

s8. Under St. 1905, p. 60, c. 91, $ 2, providing that no source of water supply for domestic purposes shall be taken by a town without the consent of the board of health, a taking of land for water supply is not valid in the absence of such consent. Dorr v. Sharon \[Mass.\] 84 NE 446. "Land for holding such water" in St. 1883, p. 469, audermirings a company to take and hold water of designated streams and all lands necessary "for holding and preserving such water," means land for a reservoir. Id. Words "land for preserving such water" as used in St. 1883, p. 469, c. 177, authorizing water company to whose rights a town succeeded, to take certain waters, held to mean land for the preservation of such water as the company or town was authorized to or had acquired. Id. A water company chartered under Act May 16, 1889 (P. L. 226), amending Act April 29, 18 8024 WATERS AND WATER SUPLPLY SS 16. 10 Cur. Law.

sumers does not change its public character. \[94\] Revenue derived from a city waterworks system may be devoted to such purposes as the city sees fit, \[95\] and is not a trust fund for the payment of water bonds. \[96\]

_Contracts for public supply_ See 8 C. L. 2294 are governed by the laws in effect at the time they were executed. \[97\] Like other contracts they must be based on a consideration, \[98\] and are subject to modification. \[99\] The general rules of construction apply. \[1\]

SS 16. _Water service and rates._ See 8 C. L. 2295--The power to assess and collect water rents in cities is vested in the directors of public service, and the manner in which they exercise this power is not subject to the control of the city council. \[9\] Authority in a city to provide a waterworks system authorizes the making of a thirty-year contract therefor which cannot be impaired. \[9\]

_Bules and regulations of service._ See 8 C. L. 2296--It is a valid regulation to require that meters be installed in certain classes of buildings. \[4\] A city council is empowered to fix rules and regulations for the use of water by consumers, and such rules having been provided it is the duty of the board of public service to apply them. \[9\]

94. Commonwealth v. Covington \[Ky.\] 107 the water belonging to the city was devoted SVW 231. The fact that the reservoir, pumping station, and a part of the mains lie outside the municipality and in another county, and that the city may incidentally derive some revenue from persons living outside the city, does not alter its public character. Id. The value of water by a city to its inhabitants is for a public purpose and the profits are for the benefit of the city in its public and not in its private capacity. Id. The surplus of the proceeds of a municipal waterworks system remaining after expenses of such sys-term have been paid are current funds which the city may divert to other needs. Crouch v. McKinney \[Tex. Civ. App.\] 104 SWW 578. \[95\] Fall River Ordinance November 4, # 1807, requiring water rents to be paid into the general fund of the city and expenses of the department by general appropriations, held not contrary to public policy of the state. Sinclair v. Brightman \[Mass.\] 84 NB 453. Power of city of Fall River to regulate and control receptions from water rents under St. 1871, p. 514, c. 133, # 17, not exhausted by original ordinance requiring rents to be kept in a special fund, and applied to payment of water bonds and expenses of water department. Id. A taxpayer being under no obligation to take city water, an ordinance requiring payment of water rates into a general fund and for payment of expenses of the water department and water bonds by general appropriations, did not create unequal taxation. Id. \[96\] Under St. 1871, p. 514, c. 133, # 15 16, # 17, the fund raised by the city of Fall River from water rents were not trust funds for payment of water bonds. Sinclair v. Brightman \[Mass.\] 84 NB 453. St. 1802, p. 510, c. \[89\], # 23, held not to deprive city council of Fall River of power to make appropriations for expenses of water board and to dispose of net income of waterworks. Id. \[97\] Under Const. art. 11, # 6, prohibiting leasing of water rights by a city, an ordinance construed and held a continuation of a contract entered into before the constitution was adopted. Brummitt v. Ogden Vakterworks Co. \[Utah\] 93 P 828. Even if it amounted to a new contract, it was not void merely because it was called a lease, because it is not possible to use the law of water to be paid into the general fund of the city. \[10\]

_Bules and regulations of service._ See 8 C. L. 2296--It is a valid regulation to require that meters be installed in certain classes of buildings. \[4\] A city council is empowered to fix rules and regulations for the use of water by consumers, and such rules having been provided it is the duty of the board of public service to apply them. \[9\]

95. Commonwealth v. Covington \[Ky.\] 107 the water belonging to the city was devoted SVW 231. The fact that the reservoir, pumping station, and a part of the mains lie outside the municipality and in another county, and that the city may incidentally derive some revenue from persons living outside the city, does not alter its public character. Id. The value of water by a city to its inhabitants is for a public purpose and the profits are for the benefit of the city in its public and not in its private capacity. Id. The surplus of the proceeds of a municipal waterworks system remaining after expenses of such sys-term have been paid are current funds which not void merely because the company was required under a former contract to furnish such water free. Brummitt v. Ogden Vaterworks Co. \[Utah\] 93 P 828. \[11\] Contract between a city and a water company constructed, and held that the company had not reached the contract by falling to maintain sufficient pressure in hydrants for extinguishing fires without the use of engines, as required by the contract, where, owing to necessary extension of the pipe during the twenty-five years, such pressure could not safely be maintained. Omna W Water Co. V. Omaha \[C. C.\] 156 F 922. \[2\] Hutchins v. Cleveland, 9 Ohio C. C. \[N. S.\] 226. \[N. S.\] 226. \[N. S.\] 33 City of Vicksburg v. Vicksburg Waterworks Co., 206 U. S. 496, # 51 Law. Ed 10 Cur. Law. WATERS AND WATER SUPLPLY SS 16. 2025

_Injuries from deficient supply, equipment, or negligence.See * C. L. 2290--A water company is not liable where loss by fire is solely the result of negligence of the city.\* The question of negligence in allowing a watermain to burst and flood plaintiff's premises is one for the jury.\* A water company is liable for damages caused by its failure to turn off water when so ordered.\* Where loss by fire results from the failure of a water company to observe its contract with the municipality in which it operates, recovery cannot be had by the person who sustained such loss if such person is not a party to the contract in question.\* A city is liable if flooding results from bursting of insufficient mains,10 but is not liable if it exercised due care in the premises.11 Where a citizen's property is injured by the bursting of his private service pipe, the city is not liable,11 especially where such injury results from his own negligence.13_

_Water rates.See * C. L. 2290--Water companies are entitled to charge just and reasonable rates.14 It is presumed that rates agreed upon between a city and a water company are fair and reasonable.15 The fixing of rates is a governmental function_

evidence of waste or other improper use of water. Id.

\*\*6. A water company is not liable where, while a citizen's property was burning, water could not be had because one cistern

**7.** _Overward_ \*\*of\_ \*\*the\_ **by** **the** **by** **by** **the** and cannot be surrendered nor suspended by a city council 16 unless such power is given a city by its charter.17 The primary duty of causing a water rate to be established in the manner prescribed by law rests upon the company.18 A franchise provision requiring rates to be fixed upon an impossible basis is void.19 Buildings may be classified for the purpose of fixing flat rates.20 Rates charged for water for domestic purposes do not include water for sprinkling lawns, for which the company is entitled to extra compensation.21 If rates are agreed upon, they control 22 and may not be altered by the company during the existence of the contract.23 A municipal corporation may by ordinance exempt educational and other like institutions from the payment of water rates,24 and the fact that students are charged for the use of certain portions of the premises does not bring the institution without the operation of such ordinance.25 Water rent is collectible by distress 26 or in any other method

16. Brummitt v. Ogden Waterworks Co. \[Utah\] 93 P 828. Where an ordinance regulating relation of a city with a water manufacturing purposes that all of it went company fixes rates for the entire period into the composition of the beer. American of the contract, that provision cannot be WEBrew. Co. v. St. Louis, 209 Mo. 600, 100 SWV l. 22 Where rates of service were fixed by rates. Such provision held not invalidate the entire ordinance. Id. \[I\]. Under Bessemer City charter (Act to the city, contracts to furnish water con- December 13, 1990, Acts 1900-01, p. 444), the city may contract for water for its citizens at rates to remain in effect for a definite period, suspending the charter provision as to regulation of rates during such period. \[Co.\] 91 P 518. An ordinance which attempts to reduce rates during such period impairs the obligation of the contract. City of Bessemer v. Bessemer V Waterworks \[Ala.\] 44 S 663. \[I\]. Consequently when property owner demands water and tenders the rental fixed by the company, it may not defend on the ground that no rate has been fixed in the manner prescribed by law. Bothwell v. Con-

01. A provision in a franchise requiring the company to fix a schedule of rates to pay for water supply and authorising a equivalent to an average rate existing in certain other cities for like service is void where under the existing conditions it was practically impossible to ascertain an average schedule. Clity of Denver. v. Denver

01. A provision in a franchise requiring a value of rates equiv-

01. A provision in a franchise requiring the company to fix a schedule of rates to pay for water supply and authorising a equivalent to an average rate existing in certain other cities for like service is void where under the existing conditions it was practically impossible to ascertain an average schedule. Clity of Denver. v. Denver

01. A provision in a franchise requiring the company to fix a schedule of rates equiv-

10 Cur. Law. Waters and water supply $ 17. 2037

prescribed by statute. \[27\] Where a claim for water rents is against the occupant and not against the premises, a purchaser is not liable for rents due from a former tenant. \[28\] In New York a tenant is liable for meter charges. \[29\] Mandamus is the proper remedy to enforce the performance by a public board of a plain duty to cancel an illegal water lien against property. \[30\] A water company may refuse to install additional hydrants as required by its contract where a city has purposely defaulted in payment of hydrant rental. \[31\]

SS 17. \_Grants, contracts and licenses.\_See 8 C. L. 2298.-Contracts relative to waters and water supply must possess the essentials of other contracts. \[82\] The usual rules of construction apply to contracts and grants pertaining to water and water rights. \[28\] Terms peculiar to such contracts are given their technical meaning. \[34\] A deed to land

was leased as a mill site, together with suf-

33. Desed of water power construed, and fclient water from the canal to operate the

a reservation therein, and not the right mill, the rental being proportional be-

convexed, held subject to conditions, ob-

tween the land and the water, the compen-

ligations, etc., applicable, contained in an-

sation for the water was rent collectible by

other indenture. Union Water Power Co.

distress. Wickham V. Richmond Standard

V. Libbow & Dingley Co., 102 M6. 489, 67 A

Steel Spike & Iron Co. \[V. J. ST SE 647\], 257. A contract between an trafficking eem.

27. Under Comp. Laws, $ 3276, providing

pany and a consumer construed and held that the board of public works may con-

that a provision that free water should be

tract and provide when and to whom they

shall be paid and collect the same by as-

ment for the period of one year. Twin

sumpath on the common counts, the board.

Falls Land & Water Co. V. Lind \[Lfdaud\] 94

may contract in its own name, though it

P 164. Under a contract providing that the

acts as trustee and may bring suit to com-

consumer should be exempt from payment

pel payment. Board of Public Works of

of water rents for the "first irrigation sea-

Niles V, Pinch \[Michel.\] 15 Det, Leg. N. 289,

soan that water is delivered to him," held it

116 XVV 408. The guarantor of a delibunent

way be such in any form of assumpuit "on

water for a definite period rather than for

the common counts" as used not being man-

any particular crop. Id.

datory. Id.

**28. Hall's Ordinances of the City of**

\*\*fights construed and the rights of the ven-

Covington, $ 1063, providing for the shut-

die stated to be $ 2-8 shares of equalized

ting off of water until back rents rate paid,

diags. Brixen v. Jorgensen \[Utah\] 92 P

reman \[Ky.\] 108 SWV 297.

Under Greater New York Charter, $ 475, amended by Laws 1902, p. 1219, c. 509,

and Laws 1904, p. 1431, a tenant under a

lease requiring him to pay annual water

rent is liable for meter charges. Loewen-

than, $321. 860, 83 NE 917. Where parties

that $ 30. Hoboken MFs', K. Co. v. Hoboken

\*\*fights in the waters of a stream, and re-

\[N. J. Law\] 68 A 1098. Under a statute\*\*

which makes a lien for water depend upon

to waive the right of a riparian owner to

its use, an attempt to impose a lien upon

property where no water has been con-

could not be contended that the agreement

tracted for or furnished upon or for the

positively gave each owner the right to so

benefit of such property is void. Id.

**31. Omaha Water Co. v. Omaha, 156 F**

Canal & Irr, Co. \[CaL\] 92 P 77.

**32.** An agreement by which a water com-

and held to provide for division of the

pany agreed to furnish water for the irr-

water on the theory that all water avail-

gation of certain land held sufficiently defa-

inite, the company having but one canal

under a two-foot head and proportionalable

leading from the river from which the

according to the shares of the parties as to

water was to be taken, and the headates,

such amount. Crane v. McMurtrie \[N. J.

welra and devices by which the water was

Eq. $ 8 A 892. Where one person was en-

to be delivered having been constructed.

Stanislaus Water Co. v. Bachman \[CaL\]. 93

Had head and two others were entitled to

**P 558.** Where evidence shows that a party

who purchased water from an irrigation

fwe, the division should be made by reg-

company has voluntarily paid one year's

ulating the capacity of the turbine wheels

maintenance charges, and there is evidence

used by the first party and by constructing

to show a contract to pay an annual man-

welra which also conveyed a water right and provided that the grantee should pay a proportionate share of the expense of maintaining the dam and raceway is a grant in fee and not a mere license.\[45\] Where certain land was subject to an easement for the maintenance of a water conduit, whether the burden of the easement was being increased depended not on the quantity of water flowing through the conduit but on the size and character of the conduit.\[46\] The rights of the parties under a contract for a water supply rest in the terms of such contract.\[47\] An irrigation company which contracts to furnish water except under certain contingencies is liable if it fails to do so except under the contingencies specified.\[48\] A contract by which an irrigation company sold a consumer the right to a certain amount of water from their ditch does not entitle him to take such water from the ditch of another company in which the vendor of the right was a stockholder.\[49\] One city may contract with another to furnish it water where it will not interfere with the supply to its own inhabitants.\[46\] A certain amount of water from the race-way, it is presumed that the grantors obtained full compensation for such water right in perpetuity. Id. Where a contract for failure to pay rentals, the lapse of such payment for several years, water course provided that in case of fortranster of the land, and other facts, held to estop the company from enforcing for-right should be the same as those guaran- \[10\]. C. \[Colo.\] 94 P 383. Where an irrigation failure was not material. Hutchinson v. \[Vash.\] 95 entitled to ten days' written notice of water required, no damage for failure to furnish water can be recovered unless it is pleaded and proved that such notice was given, un- are either rights reserved by the grantor less it clearly appears that water could not from a prior conveyance or new rights initiated by him. Watts v. Spencer \[Or.\] 44 S 721. The grant of a right to take water from one of several springs and to lay a piece therefrom did not authorize the taking of water from all the springs and the placing of obstructions which caused them to be filled up. Louisville, etc., R. Co. v. HIg- \[11\], ginghotham \[Ala.\] 44 S 872. Where the terms of such grant are clear, panel evidence is not admissible. Id. Where one adjacent owner contracted with another for the right to connect with a drain to discharge surface waters naturally flowing in that direction, evidence held to show that he was entitled to maintain drains already constructed, but should be enjoined from making further extensions. Randau v. \[12\] 115 NW 507. \[13\] 88. Mathieu v. North American Land & Timber Co., 119 La. 896, 44 S 721. In an action by an irrigation company for water rent where there was evidence of lack of care on plaintiff's part in furnishing water, it was proper to charge relative to a counter-claim for damages for such failure. Colorado Canal Co. v. McFarland \[Tex. Civ. App.\] 109 SW 455. \[14\] 89. Lanham v. Wenatchee Canal Co. \[Vash.\] 93 P 522. The fact that the counter was permitted to take water from such ditch for a time as accommodation would not prevent revocation of the permission. Id. \[15\] 40. In making such contract, it acts in a proprietary and not in a governmental capacity. City of Colorado Springs v. Colo- \[16\] 94 P 216. Evidence held to show that one city agreed to furnish another with free water and to its inhabitants at the same rate charged its own, in con 10 Cur. Law. WATERS AND WATER SUPPLY SS 18. 2029 contract for a perpetual supply of water from a ditch is an easement \[41\] and creates a covenant running with the land which is a burden on the ditch.\[42\] An unlimited conveyance of an easement is in law a grant of unlimited reasonable use.\[48\] A water right, if apprutenant, passes with a conveyance of the land to which it is attached.\[44\] The grant of a mill operated by water power carries right to use the watercourse furnishing the water and the canal or raceway which carries water to the mill unless expressly reserved.\[48\] Water applied to a desert entry for the purpose of reclaiming the same does not become inseparable therefrom and may be conveyed separate and apart from the land.\[49\] A transfer of a right to flow land does not divest the grantor of his fee.\[47\] An after-acquired right does not pass under a grant of an existing one only.\[48\] A water right which is of the nature of a profit a prendre may be transferred independent of the land.\[49\] SS 18. _Torts relating to waters.\[50\]_ See S. C. L. 2800.-A riparian owner who suffers damage precisely like that suffered by every other riparian owner has his remedy in an action for tort.\[60\] Where different parties discharge sewage and ditch into a stream which causes an actionable nuisance, they are not jointly liable for damages where there is no common design or concert of action, but each is liable only for his proportionate share of the damages.\[51\] A riparian owner who constructs a dam which /

sideration of being allowed to lay mains in legal and equitable interest in certain lands its streets. Id. Where such contract is made to her children, her estate had no interest and acquessed in for a long period of years, which authorized her administrative to sue the city furnishing the water is equipped to set aside prior deceds to water rights apprutenant to such lands on the ground of other to comply with the law in making fraud. Rinada V. Watsonville Water & the contract. Neither city appeared to have right to C. \[41\] SS 79. Under Civ. Colo, strictly compelled with the law in this re-

s1104, providing that a transfer of land speed. Id.

41. A perpetual contract right to have car-

in a tract over which a ditch was con-

ried by a ditch to certain lands suff-

stiracted for the benefit of other tracts held

ficient water to irrigate them constitutes an

to pass under a partition decree which did

easement in the ditch which is real estate.

ranters' High Line Canal & Reservoir Co.

extent that at the date of the decree such

v. New Hampshire Real Estate Co. \[Coo.\]

ditch was used to irrigate the tracts. An-

s2 P 290.

42. A contract between owners of an tr-

s4 P 613.

rigation ditch and adjoining landowners by

ditch. Legt. N. 226, 118 NWV 387. Conveysance

which the ditch owners coverant to fur-

mlsh water for irrigating the land, and also

of mill and water privileges considered and

providing that the right to water should be

perceptual, held to create an easement and

ditch. Village of Halley v. RHley \[Igaho\] 95.

covenant running with the land and bind-

ing on the owners of the ditch. Farmers' High Line Canal & Reservoir Co. V. New

given rights of flowage to another did not

Hampshire Real Estate Co. \[Coo.\] 92 P.

ditch.

30. Deeds of flowage rights, though ab-

solute in form, convey as against the serv-

terson \[N. J. Eq.1\] 69 A 225.

ient estate right to reasonably necessary

use only. Chapman V. Newmarket Mfg. Co.

\[N. H.\] 68 A 868. In an action involving

flowage rights, a question whether the use

was unreasonable because of improper man-

prevente him one, and where the title con-

agent of the dam was one of fact. Id.

44. Under Code 1904, SS 2443, providing

that a deed shall pass all apprutenances be-

longing to the land, a conveyance of land

passes a water right reserved as an easec-

ment apprutenant to the land in a conveyance of

ance of a railway right of way. Norfolk,

etc., R. Co., v. Obenshain \[Va.\] 59 SE 604.

A parol sale of land and an apprut-

mant water right and a surrender of pos-

session to the purchaser create an equitable

estate in the water righte. Watta v. Brookline \[Mass.\] 82 NE

Spencer \[Or.\] 94 P 83. Where a deceded

shad, prior to her death, conveyed all her

51. City of Mansfield v. Brister, 76 Ohio 2030 WEAPONS SS 10 Cur. Law.

retains water and causes it to percolate through and injure nonriparian land is not liable for injuries resulting unless the use of the stream was unreasonable or it was negligence to fail to prevent such percolation.\[62\] The discharge by a city of sewage into a stream which was carried down and deposited on lower riparian land, producing noxious gases, constitutes an actionable wrong.\[53\] It is no defense to an action for such wrong that the city's charter authorized it to construct the sewers and condemn property.\[54\] Any invasion of the prior rights of the United States to the waters of a stream is a trespass.\[55\] A municipality is not liable where a property owner by his own act causes his premises to be flooded.\[56\] It is no defense to an action against an irrigation company for flooding crops that the crops were destroyed by the natural overflow of waters the year before.\[57\] Nor is the fact that such owner did not exercise ordinary care to protect his crops a complete defense,\[58\] nor is it a defense that the water first flowed over lands of others.\[59\] An action for pollution of a watercourse must be brought within the statutory period.\[60\] The measure of damages for the discharge of water upon land is the depreciation in value.\[61\]

SS 19. _Crimes and offenses relating to waters.\[See 8 C. L. 2301_

WATS, see latest topical index.

**VEAPONS.**

**SS 1. The Crime of Carrying or Pointing $$$ 3. Indictment and Prosecution, 2032, Weapons, 2030.**

**SS 4. Civil Libability for Negligent Use of Weapons, 2032.**

**SS 2. Other Police Regulations Concerning Weapons, 2032.**

\*\*SS 1. _The crime of carrying or pointing weapons.\[See 8 C. L. 2302_--Status prohibiting the carrying of deadly weapons are ordinarily held not to infringe the constitutional guaranty of the right to keep and bear arms.\[62\] The amendment of 1898\_

St. 270, $1 NE 631. Several riparian owners $\\tt$ water was conveyed to plaintiff's land by a may not join in an action against seve to the Georgia penal code is valid." Among the acts denounced as crimes by various statutes are the carrying of weapons on or about the person," the carrying of concealed weapons," and carrying weapons to a place of public resort." Statutory exceptions are often made in favor of officers," persons threatened with violence," or travelers," and statutes are not usually construed to prohibit mere handling " or transportation of weapons with no view to their use." To be within the latter ex-

63. An act directing the insertion after the oath as a peace officer under a written the word "any" and before the word "pistol" the words "kind of metal knucks" is a sufficient description of the amendment. Gnanzales v. State \[Tex. Cr. App.\] Cunningham v. State \[Ga. App.\] 58 SE 23. 110 SV 740. Agreed statement that acoused Following opinion of supreme court on Cer-

was an officer "at the time of arrest" held office. Cunningham v. State, 128 Ga. 55, 57 SE 90.

64. Weapon must have been carried as a 83 NE 1005.

weapon and convenient for immediate use in

68. A person charged with carrying = con-

a fight. Essick v. U. S. \[Ind. T.\] 104 SVV 841. A person is not carrying a bitoi in

8168 (Ahn. St. 1906, p. 1285), show a well that open manner and fully exposed to view

grounded threat to do injury to his person

within the purview of $ 341, of Penal Code

1855, who has it in his pocket in such a manner that those standing in full view of

der Rev. St. 1899, $ 1862, 1863, if done in

acoused's person cannot see it. Brown v.

good faith to prevent a robbery or threat-

State, 2 Ga. App. 417, $ 85 SE 549. One is

end violence. State v. Koan, 128 Mo. App.

gulty of carrying a weapon on or about

in a threatening manner toward intruders

in which a pistol is concealed. Johnson v.

who become abusive but may not be used

State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 852,

to inflict injury in electing them unless done

104 SVV 902. Taking a pistol from another

in self-defense. State v. Lipp \[Mo. App.\] and firing it once or twice and handling it

110 SVV 4. To intentionally point a pistol

back is not such a carrying of a pistol as to

at a person is a misdemeanor unless done

justify a conviction. Fretwell v. State \[Tex.

under a bona fide fear of violence or bodily

Cr. App.\] 107 SVV 887. A man having on

harm. Anderson v. State \[VWis.\] 114 NWV 112.

his person a knife when arrested but which

One who has reasonable ground to fear violence

not discovered until he is lodged in jail

hence upon his person is not amenable to the

cannot be convicted of carrying weapons in

statute prohibiting the carrying of weapons.

vitation of statute. Tucker v. State \[Tex. Cr. App.\] 110 SVV 65.

Cr. App.\] 120 Tex. Ct. Rep., 105 SWV 499. Where

where defendant had been cut with a knife

evidence showed defendant had a pistol on

his person, was not on his own premises at

the time, that he was one of several who had

been threatened, that he had been warned by

arning himself. Johnson v. State \[Tex.

friends and that he had made no effort to

Cr. App.\] 110 SVV 451.

have the person making the threats placed

under a peace bond though he had the opportunity, such evidence was held sufficient

into by flourishing his weapon during an ai-

to sustain a conviction of carrying a pistol

tercation. State v. Cousing \[Mo. App.\] 110

unlawfully. Brodie v. State \[Tex. Cr. App.\] 110

108 SVV 1182. Evidence that pistol was forc-

by taken from defendant as he was in the

adistant carrying weapons who, outside of

act of drawing it from his hip pocket held

to sustain a conviction for unlawfully carry-

way far enough distant to take him being a pistol. Geary v. State \[Tex. Cr. App.\] 120

yond his circle of acquaintances and neigh-

108 SVV 374. Evidence that witness saw acoused place pistol in his pocket and was

Where one reaches his destination and, after

constantly in his company and that he did

not again see pistol held to be sufficient

in the town, and still in possession of his

upon which to base a conviction. James v. State \[Tex. Cr. App.\] 110

State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 316, 103 SVV 334.

65. Anderson v. State \[VWis.\] 114 NWV 112.

01. Under $ 342 of Penal Code, making it

unlawful to carry a pistol to a place of

public worship, it must be shown that pistol

was actually carried there by accused and

that there was a gathering of persons there

at the time. Amorous v. State, 1 Ga. App. 318, 57 SE 999.

ceptions one must ordinarily proceed to his destination with reasonable dispatch and directness,\[72\] but reasonable stops en route for a lawful purpose do not deprive him of the benefit of the statute.\[78\] Carrying of weapons at one's place of business is sometimes permitted,\[74\] but the fact that a person is on his own premises is no defense in the absence of a statutory exception.\[75\] Under some statutes the carrying must have been habitual.\[76\] Whether the weapon carried is within the inhibition of the statute depends upon its character\[77\] and the terms of the statute.\[78\] Criminal intent is essential,\[79\] but may be presumed from the act of use.\[80\]

**SS 2.**\_Other police regulations concerning weapons.\_See * C. L. 2303--Discharging firearms at random,\[81\] or along or across a public highway,\[82\] is prohibited by some laws.

**SS 3.**\_Indictment and prosecution.\_See * C. L. 2303--Under a statute prohibiting the carrying of certain weapons or any other dangerous weapon, an indictment for carrying a weapon not enumerated must name the weapon and allege it to be dangerous.\[83\] If exceptions are made to the enacting part of the statute, it is necessary that the prosecution negative them.\[84\] Proving more than is required under the in-19 Tex. Ct. Rep. 867, 104 SWV 901). A man |08 SWV 379. It being unlawful to carry carrying a pistol to a town for repairs at * knuckles, no proof that the knuckles of a hard substance is necessary. Seelev. smith absent, carries the pistol with him to * State \[Tex. Cr. App.\] 107 SWV 353. A statatum

### 10 Cur. Law. Weights and Measures.

dictment is not fatal. \[68\] The venue of the crime must be proved as laid. \[68\] Details of an altercation may not be shown, \[67\] and facts entirely foreign to a prosecution for carrying a weapon are inadmissible even though the admission would incidentally establish the guilt of accused. \[69\] The jury are the sole judges on the questions of fact \[70\] and the weight of the evidence. \[71\]

SS 4. _Civil liability for negligent use of weapons._\[68\] C. L. 2304--Alleged negligent use of a weapon renders one liable only when the negligence was the cause of injury. \[68\]

## 10 Weights and Measures. \[69\]

In an action to recover the penalty for short weight in selling coal, plaintiff must present the record proof provided by statute or evidence equally satisfactory, \[70\] since the statute contemplates that the right to recover shall be based on the official record of weight. \[68\] The weight of a car \[68\] and its contents may be proved by the testimony of the official weighmaster of the railroad company who weighed the car in the customary manner \[68\] while the shipment was in transit. \[68\] Contracts in unambiguous terms are conclusively presumed to be made in reference to an existing statute relative thereto \[68\] unless it is agreed otherwise in the contract, and extrinsic evidence to show usage is inadmissible. \[68\] But a contract providing for official weights and grades does not require weighing by an officer appointed for that purpose, where no such office exists. \[68\] The ordinance of New York City, inhibiting the sale of coal at a

defendant was not of that kind. Vaughan \[69\] away horse in an effort to stop him, did not v. State, 84 Ark. 332, 105 SWV 576. \[70\] 54. App. 773, 91 P 406. \[71\] 55. Where evidence showed that defendant \[72\] 55. Sec 8 C. L. 2304. \[73\] indictment and further showed that it was carried in .a public assembly, such further proof would not constitute a variance to defeat a conviction under the indictment. \[74\] Weather and scale conditions prevailing at the time, is insufficient to sustain a conviction. \[75\] 55. Sec 10. \[76\] 56. \[77\] 57. \[78\] 58. Under a statute of Texas, one charged with carrying a weapon "within the county" may be convicted who is shown to have had 100. \[79\] 59. Official weighmaster of railroad econ-another county. \[80\] 59. Sec 10. \[81\] 59. Sec 11. \[82\] 59. Sec 12. \[83\] 59. Sec 13. \[84\] 59. Sec 14. \[85\] 59. Sec 15. \[86\] 59. Sec 16. \[87\] 59. Sec 17. In a prosecution for carrying a con-ealed weapon, the state may not draw from witness details of an altercation in connection with which the alleged concealed weapon was shown and later again con-ealed. \[88\] 59. Sec 17. \[88\] 59. Sec 18. It could not be shown that accus d was at a hotel with a certain other person on a question of the guilt or innocence of carrying weapon. \[89\] 59. Sec 19. Sec 10. \[80\] 59. Sec 10. \[81\] 59. Sec 11. \[82\] 59. Sec 12. \[83\] 59. Sec 13. \[84\] 59. Sec 14. \[85\] 59. Sec 15. \[86\] 59. Sec 16. \[87\] 59. Sec 17. Sec 18. \[88\] 59. Sec 19. Sec 19.

greater than the true weight or measure, does not conflict with the statute, inhibiting the sale of coal by the ton at less than the rate of 2,000 pounds to the ton.2

**Wharves.3**

A wharfinger is one who maintains for hire a wharf for the purpose of accommodating vessels in loading and unloading freight and passengers.4 A riparian owner has a right to erect and maintain whaves subject to certain instructions imposed by statute,5 and to charge wharfage for the use thereof,6 unless prohibited by law from so doing,7 either under an express or implied contract.8 The owner of the fee in a street and river front has a right to build a dock over the street to the river,9 but the dock thereupon becomes a part of the street.10 The character of a pier, as determining the amount to be awarded in condemnation proceedings,11 may be determined from stipulations and agreements exacted at the time of granting a license for its alteration.12 The party in control of a dock is liable for injuries resulting from its dangerous condition,13 whether such dangers are known to him or should, by the exercise of reasonable care, have been discovered,14 but this liability extends only to

certificate of weights and grades are generally accepted. Rogers & Co. V. Leach, 127 INL App. 199.

**2.** It is in accord with the purpose of Laws 1900, e. 327, $ 150, which is to provide for the protection of the public. City of New York Y. Marco, 109 NYS 58.

**3.** See **S C.**, 12804.

**4.** Does not include one constructing a pier as contractor. Conklin v. R. P. & J. H. Stasts Co., 156 PS 818.

**5.** Rev. 1905, $ 1696, providing that navigation must not be obstructed, etc. Riddick v. Dunn, 145 N. C. 31, $ 85 EE 439.

**6.** Wharfage is a mere charge by the owner of the soil or shore for the use of a portion of it. Riddick v. Dunn, 145 N. C. 31, $ 85 EE 439.

**7.** Conat. 1901, art. 1, $ 24, provides that no Wharfage shall be charged for use of wharf on a navigable stream unless expressly authorized by law, so no recovery for destruction of a lion for wharfage can be had unless express legal authority to make the charge is shown. Williams v. Alabama Cotton Oil Co. (Ala.) 44 $ 857.

**8.** Riddick v. Dunn, 145 N. C. 31, $ 85 EE 439. A claim for wharfage, to be well founded, must arise from a contract, express or implied, to pay the charges. Williams v. Alabama Cotton Oil Co. (Ala.) 44 S 557. In the absence of an agreement to the contrary.

custom controls in the transportation and delivery of goods, and by it the carrier has the right to unload on wharf and consignee is liable for wharfage, Riddick v. Dunn, 145 N. C. 31, $ 85 EE 439.

**9.** Providing the does not interfere with the public easemment. City of Buffalo v. Deiaware, etc., R. Co., 190 N. Y. 84, $ 82 NE 513.

**10.** And the owner's use thereof is subject to the public right. City of Buffalo v. Delaware, etc., R. Co., 190 N. Y. 84, $ 82 NE 513.

**11.** By Greater New York Charter, Laws 1901, p. 251, c. 466, $ 822, the commissioner of docks is authorized in his discretion, at any time, subject to approval of commissioners of the sinking fund, to acquire property rights In picars, and to negotiate for their purchase, and if a purchase cannot be those dangers which might reasonably be expected to exist,18 and the burden of showing negligence in not discovering and removing them is on the libellant.19 In Virginia, failure of the owner of a steamboat dock to provide suitable accommodations for patrons of boats using the dock is a misdemeanor.17

created by the use of particular words, and the time of resting of these estates,\[20\] are elsewhere given. Trusts as such,\[21\] charitable gifts,\[22\] annuities,\[23\] powers\[24\] equitable conversion,\[26\] and election for or against the will except intent to require election,\[26\] are also discussed at length in other articles, as well as general principles of administration and distribution.\[17\]

SS 1. \_Right of disposal and contracts relating to it.\[See e C. L. 2305--The right to dispose of property by will is purely statutory and may be limited or withdrawn by legislation\[28\] but unless so limited or withdrawn anyone possessing devisable property\[29\] may ordinarily dispose of it in whatever manner he pleases,\[30\] if he has testamentary capacity and exercises his own will and judgment,\[31\] and the burden of showing limitations is on the one who asserts it.\[32\] The statutory rights of a surviving spouse may not, however, he impaired,\[33\] such spouse usually having the right to elect for or against the will,\[34\] and in some states the right of devise or bequest has been restricted where the gift is to charity\[35\] or to strangers or corporations,\[36\] and testator leaves dependents or near relatives,\[37\] or where improper relations exist between him and his beneficiary.\[38\] Statutory provisions for posthumous children,\[39\] or \[20\] See Real Property, 10 C. L. 1448; Prop- 35. Under a statute prohibiting a gift of more than one-half of one's property to malations, 10 C. L. 1167.

21. See Trusts, 10 C. L. 1907.

01. See Charitable Gifts, 9 C. L. 555.

01. See Annuities, 9 C. L. 108.

01. See Powers, 10 C. L. 1258.

01. See Conversion in Equity, 9 C. L. 728.

01. See Election and Walter, 9 C. L. 1037.

01. See Descent and Distribution, 9 C. L. 970: Estates of Deceats, 9 C. L. 1154.

01. Act March 2, 1895, giving widower one-half of wife's estate where wife dies without descendants, held not invalid as depriving wife of power to dispose of property by will. Ferguson v. Gentry, 206 Mo. 189, 104 SW 104.

01. An entryman under United States timber culture act has no discernible and hence no devisable interest before grant of patent. Walker v. Ehresman \[Neb.\] 113 NW 218.

01. No objection that property is given to strangers in absence of incapacity or undue influence. Saxton v. Krumm \[Md.\] 68 A 1056. Equality among children is favored in construing will of parent, but rule does not extend to disposition of property by a husband or wife to the other. Hodgkins v. Hogkins, 108 NYS 172. Testator gave nearly all property to his son and but a small amount to his widow, Lavin v. Thomas, 108 NYS 112.

01. In re Turner's Wull \[Or.\] 93 P 461. See post, 8 Z.

01. Fine v. Wagner \[Iowa\] 113 NW 471.

01. No provision in a will can of itself defeat a widow's dover. Otts v. Otts \[S. C.\]

61 SE 109. A husband may not by will destroy or limit the right of his wife to allowances for maintenance pending admin- \[\] istration of his estate where she elect to take against the will. That will provided that allowances be paid out of property therein given held immaterial. In re Bump's State \[Ca.\] 92 P 643.

34. The doctrine of election in general, see Election and Waiver, 9 C. L. 1037; intent to require election, see post, 8 Zd, effect on distribution, see Estates of Deceats, 9 C. L. 1154.

01. Under a statute prohibiting a gift of more than one-half of one's property to charities, a life estate given to a person should be treated as a legacy the same as amounts given to charities and other legates. Laws 1860, p. 607, c. 360. In re Strang, 121 App. Div. 112, 105 NYS 566. Where testator gave residue of his estate to wife for life and provided that at her death it should be converted into cash, making bequests thereof to certain individuals and charitable institutions, held on settle- \[\] cannot of executors account after wife's death the value of life estate should be deter- \[\] in order to ascertain whether gifts to charitable institutions exceeded statutory limit of one-half of his estate. Laws 1860, p. 607, c. 360. In re Strang, 856 Misc. 478, 106 NYS 851. Request to bishop to be apmin in saying masses for testator's soul is not to a charitable use. In re Lennon's Estate \[Ca.\] 92 P 870.

01. Laws 1903, c. 334, p. 581, amending \[\] 70, c. 46, p. 108, Laws 1889, made it un- \[\] 1056. Equality among children is favored in construing will of parent, but rule does not extend to disposition of property by a husband or wife and entitles surviving spouse to hasband or wife to the other. Hod children omitted from the will by mistake or accident,46 or not mentioned or provided for,41 also indirectly affect the right of testamentary disposition. A married woman may dispose of her separate estate by will without her husband's consent.42 Property may be willed to a corporation to be formed after testator's death provided it vests within the time allowed by law.43

_Contracts to devise or bequequeath_ See _s C. L. 2206_ or to allow one's property to go intestate,44 are valid and binding 45 if sufficiently definite,46 based upon a valuable consideration,47 and delivered,48 and if not objectionable as an attempted sale 49 or as being within the statute of frauds.50 Where legal remedies are inadequate,51 such contracts may be enforced in equity 52 by suit for specific performance,53 if the conditions are present which are essential to the maintenance of such suits in other cases,54 and sometimes a lien may be established or other remedy afforded.55 Where

Evidence sufficient to show existence of re-
not be permitted to revoke a will made purlation. Id.

s9. Where will showed no intent to disin-

dispose of the reality to the detriment of the

herit posthumous child, and widow took un-

son. Schneringer v. Schneringer \[Neb.\] 116 der statute, widow and child are each en-

NWF 491.

titled to one-half of estate. In re Hobson's

**46.** Held too indefinite as to interest be-

\*\*State \[Colo.\] 91 P 929. The circumstances

queached. Sarashoh v. Kamalky, 120 App.

surrounding the testator when the will was

by. 110, 105 NYS 53.

executed may be considered to show the

**47.** Compromise of a suit involving the

\*\*testator's intention with respect to a posthumous child. Evidence held to show

\*\*whilement consideration for contact to per-

**until property to descend intestine. Jones v. V. Peet, 229 Ill. 341, 82 NE 376.**

**48.** C Delivery of contract to devise held not

omitted on statement of reviewer that omis-

sulently shown. Sarashoh v. Kamalky,

ison would not cut off child's share. Bachnik'

**210 App. Div. 110, 105 NYS 53.**

**49.** Contract held not invalid as one for

**116 NNV 556.** Extrinsic evidence may be re-

\*\*sorted to in determining whether testator

v. Smith \[Cal. App.\] 91 P 667.\*\*

omitted by mistake or accident to make

**50.** Contract to devise all property of which

provision for his child. Id. Proof of extent

**of father's estate held inadmissible. Id.**

\*\*Evidence that long after making of will

\*\*child was in house of ill fame held inadismism-

**the invalid as attempted oral sale was really**

**31b.** Id.

**41.** Where will expressed testator's desire

\*\*to make a just distribution among the members of his family and gave all the property

**to the wife and her her heirs forever, after-born**

\*\*children were "mentioned" and "provided

**for" and hence could not take by descent.**

\*\*Wormser v. Groce, 120 App. DIV. 287, 104 NYES 1090. Under a statute giving after-

**NYS 1090.** Under a statute giving after-

\*\*born children the shares of an intestine un-

**less they are provided for in the will, any**

\*\*words are sufficient which show that testator had such children in mind. "After-

**born children are herein provided for" held**

**sufficient. Randall v. Dunlap, 218 Pa. 210, 67 A 208.**

**42.** Or any authority under marriage

**tract. Ferrell v. Gill \[Ga.\] 61 SE 131.**

**43.** St. John v. Andrews Inst. \[N. Y.\] 83 NE 981.\*\*

**44.** Jones v. Abbott, 228 Ill. 34, 81 NE 791.\*\*

**45.** To devise. Oswald v. Nehls, 233 Ill. 438. 84 NE 619.\*\*

**46.** Contract by sole devise to

**device to another held enforceible by latter.**

**Winn v. Schenck \[Ky.\] 110 SVW 827.**

\*\*free of husband to provide by will for sup-

\*\*port of divorced wife after his death in con-

**the alteration of her forbearance to sue for**

\*\*dover held valid. Kundinger v. Kundinger,

**value**

**dover**

**150 Mich. 630, 14 Det. Leg. N 788, 114 NW**

**408.** Where a mother in her last illness

\*\*conveys all her reality to her husband on

\*\*hus promise to will same to their incomplete

\*\*tent son and care for him, the father will

**will**
a devise agrees with testator to devise to another, the latter takes under the first will and not under the second on the question of inheritance tax.\[56\]

SS 2. \_Testamentary capacity, fraud, and undue influence. A. Essentials to capacity.\_See 8 C. L. 2207--Full mental vigor is not essential to capacity,\[57\] it being sufficient if at the time the will is made\[58\] one knows the natural objects of his bounty, the nature and extent of his property, and the disposition he is making of it.\[59\] It follows that while insane delusions may avoid a will,\[60\] mere mental aberrations not entering into its execution,\[61\] eccentricities, prejudices, or lesentment against one or more relatives,\[62\] intoxication,\[63\] or failure of memory, great age, or enfeebled mind or body,\[64\] is not alone sufficient. While one's religious faith is no evidence of in-sanity,\[65\] one who thinks so persistely on the subject of spiritualism as to become a

all his property in consideration of services\[\]

dominated by an unfounded delusion that

with is brought for their reasonable value,

plaintiff is not entitled to a line on specific

property included in a will which was

voked. Johnson v. Myers \[Iowa\] 118 NWV

600. Not subject to law passed between taking effect of the two wills. Winn v. Schenck

\[Ky\] 110 SWV 827.

67. McBride v. Sullivan \[Ala\] 45 S 902.

In e Titres Will, 65 Misc. 151, 106 NYS 362.

58. Where it was clearly shown that testator was competent when he made the will,

incapacity before and after was immate-

ral. Lum v. Lasch \[Miss\]. 48 S 559.

69. McBride v. Sullivan \[Ala\]. 145 S 902;

Owen v. Crumbaugh, 228 Ill. 380, 81 NE 1044;

Terry v. Davenport \[Ind.\] 83 NE 636: Leibpert v. Hatcher, 205 Msc. 83, 102 SWV 962; King

v. Glison, 206 Msc. 264, 104 SWV 521; Holton

v. Cochran, 208 Msc. 314, 106 SWV 1035;

Shayne v. Shayne, 54 Misc. 471; 106 NYS 44; Lavin v. Thomas, 108 NYS 112.

60. Owen v. Crumbaugh, 228 Ill. 380, 81 NE 1044.

What constitutes: Insane delusion exists

where one conceives the existence of some-

thing fanciful and extravagant, having no

foundation in reason or fact, and is dominated and controlled by such imagination.

Riddle v. Gibson, 29 App. D. C. 237. Delusion

to render one incompetent must be a belief

in something impossible which will not yield

to evidence or reason, for if an erroneous

belief has some foundation it is not an in-

same delusion. Bauchens v. Davis, 229 Ill. 567, 82 NE 865. Accordingly, something more

must be shown than a mistaken notion on

testator's part as to the feelings or Inten-

tions of his relatives towards him or his

property, McBride v. Sullivan \[Ala\] 45 S

802. Thus, an erroneous belief that a son

lacked filial affecting (Leffingwell v. Bettinghouse \[Michel\] 115 NWV 731), or anfune

toward children for sympathizing with testator's wife with whom he had trouble

(Bauchens v. Davis, 229 Ill. 567, 82 NE 865),

has been held not to constitute an insane

delusion. The same is held with respect to

erroneous beliefs based on doctrines of

religion (Owen v. Crumbaugh, 228 Ill. 380,

81 NE 1044), and the fact that a childless

woman bequeathed her small estate to her

physical, who had been kind to her, and

excluded indifferent brothers and sisters, did

not show an insane delusion (Riddle v. Gibson, 23 App. D. C. 237). A testator was,

however, held incapacitated where he was

dominated by an unfounded delusion that

children had deprived him of certain stock

plaintiff is not entitled to a line on specific

(Hotion v. Cochran, 208 Msc. 314, 106 SWV

property included in a will which was

voked. Johnson v. Myers \[Iowa\] 118 NWV

600. Not subject to law passed between taking effect of the two wills. Winn v. Schenck

hold to be insane delusions, they should be

charged that the will may be disallowed as

a product of such delusions (In re Mans-

bach's Estate, 150 Meth. 348, 14 Det. Leg. N.

58, 114 NWV 65).

61. Owen v. Crumbaugh, 228 Ill. 380, 81 NE 1044.

NE 1044.

62. Riddle v. Gibson, 29 App. D. C. 237.

01. A drunkend may make a valid will if monomania incapable of reasoning has no testamentary capacity." Incapacity renders the will not merely voidable but void."71

_Admissibility of evidence._\[see & C. L. 2008--Circumstances,88 and the conduct of testator when the will was made,99 the disposition made by the will,70 the conduct and declarations of testator before and after its execution,71 if not too remote,72 and other facts reasonably bearing on the subject of mental soundness,78 may be shown. Nonexperts may give their opinions after stating the facts on which they are based,74

communications from departed ones. Id.

ENCE of truth or falsity of spiritualistic

sumption that his condition was the same

faith held inadmissible. Id.

**60.** O'Dell v. Goff, 149 Mich. 152, 14 Det.

Leg. N. 399, 112 NW 736. Where one is Implied to follow spiritualistic communication

- 72. Evidence of testator's conduct on
- 73. In re Johnson's Estate \[Cal.\] 93 P
- 74. Proponent may show the value and
- 75. Proponent may show the value and
- 76. Proponent may show the value and
- 77. Proponent may show the value and
- 78. Proponent may be considered in connection
- 79. Proponent may be considered in connection
- 70. Reasonableness or unreasonableness of
- 71. Inspection may be considered in connection

but opinions must have reference to some specified time when witness came in contact with testator.\[15\] Testator's communications with his attorney who drew the will and what the latter saw or heard at the time of its execution are admissible.\[76\]

\_Sufficiency of evidence.\[See 8 C. L. 2810.\]\_The right of testamentary disposition, including the right of revocation, should not be imperiled by uncertain testimony.\[77\] The testimony of subscribing witnesses prevails over that of experts based only on hypothetical questions.\[78\] Where conflicting evidence does not clearly prependerate in favor of the theory of insanity, the conclusion of the trial judge will not be disturbed.\[79\]

_Instructions_ See 8 C. L. 2811 should be clear on the burden of proof.\[80\] They should be based on the evidence \[81\] without invading the province of the jury \[82\] or discredit-

trix was incompetent were inadmissible.

Blackman v. Andrews, 150 Mich. 322, 14 Det.

Leg. N. 709, 144 NNY 218. No fixed rule can be laid down as to just what facts are required to lay the proper foundation for expression of opinion as to capacity by lay witnesses (Turner v. American Security & Trust Co., 29 App. D. C. 460), the matter being largely left to the court's discretion, which will not ordinarily be disturbed (Id.). That the witness cannot remember minute details of conversations and incidents will not exclude his opinion. Id. Evidence held sufficient to justify expression of opinions. Id. Opinion of testator's widow as to husband's mental capacity, based on statements of physicians and others, held inadmissible. Id. One may not testify that in his opinion testator was capable of making a will, Garrus v. Davis, 234 Ill. 326, 84 NE 924.

75. Witness who did not see testator on day will was executed could not give opinion as to his condition on that day. Huyck v. Rennie, 161 Cal. 411, 90 P 829, Question calling for opinion as to capacity prior to a specified day held indefinite as to time. Id.

01. Not privileged. In re Young's Estate \[Utah\] 94 P 731, and authorities reviewed.

01. Home of the Aged v. Bantz \[Md.\] 69 A 376. A prima facte case of testamentary capacity can be overcome only by clear and weighty evidence. Where will was written at testator's dictation without outside interference, testimony of experts as to failings of age, etc., held of little weight. In re Morgan's Estate \[Pa.\] 68 A 953.

Evidence Insufficient to show incapacity, Gates v. Cole \[Iowa\] 115 NY 286: Blackman v. Andrews, 150 Mich. 322, 14 Det. Leg. N. 709, 114 NWP 218; In re Palmer's Estate \[Pa.\] 68 A 710; Walker v. Walker \[R.\] 67 A 519. Old age and peculiarities. In re Armstrong's Will, 55 Misc. 487, 106 NYS 671.

Unfair disposition, old age, ill health, traiseibility of temper, etc. In re Stufflebaum's WIII \[Iowa\] 112 NWP 815. Forgetfulness, unditiess, and certain statements of testatrix, and admissions of proponent. Left fingersell v. Bettinghouse \[Mich.\] 115 NWW 731. Disposition to one who had served testator for thirty years did not indicate unsound mind where testator had no relatives except a child of whom he believed he was not father. Lum v. Lasch \[Miss.\] 46 S 559.

Held sufficient to show capacity. Wickes v. Walden, 228 Ill. 56, 81 NE 789; Shubts, 229 Ill. 420, 82 NE 312; Lavin v.

Shubts, 229 Ill. 420, 82 NE 312; Lavin v.

Thomas, 108 NYS 112; In re Atchley's WIII.

108 NYS 877; In re Tredwell's WIII, 110 NYS Leg. N. 709, 144 NWP 218. No fixed rule can be laid down as to just what facts are required to lay the proper foundation for ex-

philepsia and resultant paralysis. Ducasse's

Helfs v. Ducasse \[La.\] 45 S 565. Evidence

held to show that testatrix was not irrational at time will was made, though she might have been later. Succession of Jones \[La.\] 45 S 965. Testatrix's capacity shown by unusual mental capacity up to death, a clear understanding of what property she had and her relationship to objects of her bounty, and understanding of provisions of will. In re Bowman's WIII \[ViVi.\] 113 NWP 956.

Wvidence held to show incapacity. In re

Doolittle's Estate \[Ca.\] 94 P 240; Holton v. Cochran, 208 Mo. 314, 106 SWV 1035; In re Abel's Estate \[Nw.\] 93 P 227. Insufficient to support finding of competency and freedom from restraint. In re Tuttle's WIII, 108 NYS 132. Under evidence held not error to refuse to direct verdict in favor of will. Morgan v. Adams, 29 App. D. C. 198. Evidence held to require submission of question of testamentary capacity to the jury.

In re Eckler's E 10 Cur. Law. WILLS SS 2B. 2041

ing witnesses," and should properly define testamentary capacity " and insane declusions." It is proper to instruct as to the purposes of particular evidence."

(SS 2) \_B. Constituents of fraud, mistake, and undue influence.\_See 8 C. L. 2011. "Undue influence" is such influence as amounts to overpersuasion, coercion, or force, overpowering and destroying the free agency and will power of the testator," but any reasonable influence obtained by acts of kindness on arguments addressed to the understanding," or growing out of natural affection," is not in law undue. To invalidate, the influence must be such as to destroy the free agency of testator," and must be the efficient cause without which the disposition would not have been made."

83. Request that if dissatisfied witta testimony of witnesses to will jury might reject it held calculated to discredit such witnesses. Huyck v. Rennie, 151 Cal. 411, 90 P 829.

01. An instruction is improper which does not recognize that a testator has natural objects of his bounty and owes them a duty, Rasalall v. Brush, 31 Ky. L. R. 1138, 104 SW

01. Instruction not modifying "objects" by word "natural" held defective. Murphy" is "Exr v. Hoagland \[Ky.\] 107 SWW 303. Instructions requiring capacity to "take a rational survey of his property" not erroneous for not saying that testator must have known "the character and value of his estate." Bottom v. Bottom \[Ky.\] 106 SWW 216.

Instructation not erroneous as adding as an element of capacity testator's ability to act and comprehend "without the aid of any other person." Holton v. Cochran, 208 Mo.

814, 106 SWW 1035. Not error to charge that

"It is necessary a person shall have sufficient mental capacity for the transaction of the ordinary affairs of life," when this was followed in a later paragraph by the express statement that "he need not have sufficient capacity to make a contract, but must understand substantially what he is doing and the nature of the act in which he or she is emaggad." Welsh Hills Baptist Church v. Wilson, 9 Ohio C. C. (N. S.) 611.

85. Instruction to find against will if testator had a certain insane delusion, though possessing "many" of the mental faculties essential to testamentary capacity, held not contradictory. Holton v. Cochran, 208 Mo.

814, 106 SWW 1025.

86.\_Held proper to instruct that letters and statements should be considered only as bearing on condition of testator's mind and not as tending to prove their truth. Floto v. Floto, 233 Ill. 605, 84 NE 712.

87. Selbert v. Hatcher, 205 Mo. 83, 102 SWW

01. Undue influence is the use, by one in whom a confidence is reposed in another, of such confidence for the purpose of obtaining an unfair advantage of the weakness of the mind of the latter or of his necessities or distress. In re Welch's WIII \[Cal. App.\] 91 P 836. Any influence obtained over the mind of testator to such an extent as to destroy his free agency and constrain him to do against his will what he would otherwise retuse to do it undue influence, whether obtained directly or indirectly or at one time or another. Murphy's Exr v. Hoagland \[Ky.\] 107 SWW 303. Bill alleging collusive pursuation by legated that husband intended to deprive testarrix of her child held not denurrable. Franklin v. Belt \[Ga.\] 60 SE 146.

01. Murphy's Exr v. Hoagland \[Ky.\] 107 SWW 303. Influence will not be deemed un- due which may reasonably be inferred to have been produced by the kind attentions and services of the beneficiary. Boynes v. Gibson \[N. J. Eq.\] 68 A 756. Advice and so- not recognize that a testator has natural licitation, though insistent, will not invalidate unless it is also shown that testator's will was thereby overcome. Gates v. Cole \[Iowa\] 115 NWW 236.

01. Not shown by proof of influence grow-ling out of natural affections without active exercise of over-persuasion, coercion or force, fraud or deception, impairing testator's will. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 SWW 46. Daughter's protest against disregarding promise that she have a farm held Insnfficient to establish undue influence. In re Bowman's WIII \[VWs.\] 113 NWW 596. Influence of affection or attachment, or the desire of gratifying the wishes of one beloved and trusted, is not undue unless will power of testator is overcome by fraud or imposition. Leibert v. Hatcher, 205 Mo. 83, 102 SWW 962.

01. Teckenbrock v. McLaughlin, 209 Mo., 533, 108 SWW 46. Free agency, liberty to act, and independent volition must have be:n overcome. Hart v. Hart \[Tex. Civ. App.\] 110 SWW 51. Must be such as to overcome testator's free volition or conscious judgment and to substitute the purposes of another. In re Turner's WIII \[Or.\] 92 P 461.

01.

01.

Whether the influence was undue will depend largely upon the physical and mental strength or weakness of the testator at the time.92

_Fraud and mistake_ See * C. L. 2812 may invalidate.\*\* Proof of due execution is ordinarily sufficient to raise the presumption that testator knew the contents of the will,94 but a will executed without reading discussion, or explanation, in the belief that it conformed to testator's directions but in fact disposing of the property in an entirely different manner, is not the will of testator 95 and cannot be upheld as such on the theory that the mistake was merely one of law or fact, as to the effect of provisions intentionally written.96 Where a will is attacked as a forgery, the burden is on proponent to show its genuineness.97

\_Indicia of influence and admissibility of evidence.\_See * C. L. 2812--Evidence bearing on testator's susceptibility to influence 98 and his relations to his kinsfolk and legates,99 if not too remotely connected with the time of execution of the will,1 may be admitted, and, also, evidence showing the financial condition of excluded persons * and explaining failure to provide more liberally for certain relatives.3 While

Footnote 97: Griffin v. Working Woman's Home Ass'n \[Ala.\] 44 S 605.

_98._ That disposition or temperament of testator was mild, peaceable, and nonagressive, and his will power not strong, that he could usually be controlled by those in whom he had confidence, and would be in-bossession of his faculties. In re Hoffman's quiet, held admissible on issue of pandue in-fluence. Hart v. Hart \[Tex. Civ. App.\] 110 SSV 91.

Footnote 99: Evidence as to misunderstandings and disputes between relatives and testatrix is admissible to show that testatrix's change of feeling was not brought about by alleged influence and also to rebut contestant's proof concerning occurrences showing that testatrix was under his control. Selbert v. Hatcher, 205 Mo. 83, 102 SW 962. Testimony concerning conversations in testatrix's presence, in which a legate participated, held admissible as showing his relations with her. Vannest v. Murphy \[Iowa\] 112 NVP 238. Evidence that three nurses did not write the names of beneficiaries on a paper given attorney who drew the will, and that a piece, charged with unduly influence:ng testatrix, had visited her frequently, held admissible. Garrus v. Davis, 234 Ill. 326, 84 NE 924.

Footnote 90: While the use of the testatrix is admissible to show that testatrix's effect is admissible to show the fact that a second will is different from the first is not of itself evidence of undus influence,4 evidence of the contents of the former will may be material on the issues of undue influence and incapacity, and should be admitted, unless it is clear from all the circumstances that it could not affect the result of the contest.40 Where there are several legates, the admissions of one of them tending to show that he unduly influenced testator is not admissible to show that he did so in the absence of proof of common design.5 Testator's communications with his attorney who prepared the will and what the latter heard or saw at the time of its execution are not privileged in favor of either side.4 Nonexperts may testify if the proper foundation is laid.7 On the issue of forgery proponent may show the source of testator's property and the friendly feeling between him and testator.8 The existence of a confidential blood, or other relation,9 mere opportunity to exert undue influence,10 the character of the testamentary disposition,11 that the scrivener was executor and legate,11 or testator's sister made mutual wills and testatrix sur- vived and in her will declared that, owing to flaws in wills of brother and sister, other brothers had taken what she would otherwise have given them, evidence that at exe- ccolo.9 & 721. Cannot be inferred from the fact that from the time of making her survivor was to take property of the other two held admissible in contest of will to explain why other brothers were not more liberally remembered. In re Rogers' Wills, 114 NWS 218. That old testator disposed of property to one who had taken care of him, but who was ignorant of the making of the VII and had no connection with its execution, held properly withdrawn from the jury. Bauchens v. Davis, 229 Ill. 557, S2 NNE 365.

declarations before and after the will was made,\[13\] though proper to be considered,\[14\] do not of themselves establish undue influence.

_Sufficiency of evidence.\[86\]_ & C. L. 2213.--The burden is on contestant,\[18\] but substantial gifts to a confidant is prima evidence.\[16\] Where there is evidence of testa-mentary capacity, undue influence can be shown only by convincing proof that testa-tor's mind was controlled by another\[17\] but undue influence need not be proved by tator knew contents of will and was free from undue influence. Snodgrass v. Smith must disprove undue influence. In re Locke\[Colo.\] 94 P 812. Where draftsman of a will wood \[Conn.\] 69 A 8. If a legate is a child has been an agent or attorney of testatrix and not a stranger, a confidential relation and is made beneficiary under the will, with testator is not of itself sufficient to courts will closely scrutinize the transaction (In re Wilcox's Estate, 56 Misc. 170, starvation ignoring this distinction held harmful. In re Lockewood \[Conn.\] 69 A 8. Influence necessarily arises therefrom (Id.).

Undue Influence will not be presumed by the mere fact that draftsman of will was made executor or trustee. In re Thompson's Villi, 121 App. Div. 470, 106 NYS 111. Declarations of testator made before or after making of the will, though admismis.

McLaughlin, 209 Mo. 538, 108 SV 46. Where stlble as res gestate or as showing testator's affections, are not evidence of the fact of undue influence. Teckenbrock v. McLaughlin, 209 Mo. 538, 108 SV 46. Where stlble as res gestate or as showing testator's affections, are not evidence of the fact of undue influence. Teckenbrock v. McLaughlin, 209 Mo. 538, 108 SV 46. Where stlbl as res gestate or as showing testator's affections, are not evidence of the fact of undue influence. Teckenbrock v. McLaughlin, 209 Mo. 538, 108 SV 46. Where stlbl as res gestate or with disposing of property in a certain manner, burden was on him to show that testatrix read will and understood its pro- (N. J. Eq.1 68 A 756; Wallen v. Wallen v. Wallen v.).

Visions and that she acted freely and with- 57 SE 596; Kultz v. Jaeger, 29 App. D. C. 300. Statement of testatrix that she had given home place to one son and rest of property to other children equally, it.appearing that only a eemetery lot passed to such other children, held not substantial proof of traud.

Vill \[Or.\] 98 P 461. While declarations of the testator, indicating dislike for or dislike, in re Turner's trust of beneficiaries named in his will to the exclusion of others toward whom he would seem to have been better disposed, are entitled to some weight (In re Koh's Estate \[Iowa\] 113 NVP 568), they are not in themselves proof of undue influence (Id.).

and, hence, though a contestant may show such declarations, they must be followed up by proof of undue influence as explaining a contrary disposition of the property (Id.).

Instructions, cautioning against giving declarations too great weight, held proper. Id.

14 Fact that will was natural may be considered on question of undue influence.

Blackman v. Andrews, 150 Mich. 322, 14 Det. Leg. N. 709, 114 NVP 218. Subsequent declarations of testator explanatory of his disposition of his property, though not in themselves proof of undue influence, may be considered in connection with other facts tending to show such influence. Goodloe v. Goodloe v. Goodloe \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 360, 105 SW 538. Testatrix's declarations held admissible as showing condition of her mind and effect of any influence thereon. Vannest v. Murphy \[Iowa\] 112 NVP 286.

15 In re Lockewood \[Conn.\] 69 A 8. Butden on contestants. Snodgrass v. Smith \[Colo.\] 94 P 812; Gates v. Cole \[Iowa\] 115 NW 286; Mowry v. Norman, 204 Mo. 173, 103 SW 15; Byrnes v. Gibson \[N. J. Eq.1 68 A 756; Hart v. Hart \[Tex. Civ. App.\] 110 SW 91.

16 Mowry v. Norman, 204 Mo. 173, 103 SW 15; Byrnes v. Gibson \[N. J. Eq.1 68 A 756; In re Rogers' Will, 80 Vt. 259, 67 A 726. Where a stranger occupying a confidential or trust relation to testator is benefited to 10 Cur. Law. WILLS SS 2A. 2045

direct testimony; it may be inferred from facts in evidence; " nor is it necessary to show that overt acts of undue influence were exercised at the time the will was executed." The confidential relation of husband and wife though not raising a presumption of undue influence is important in weighing the evidence in the case."

\_Instructions.\_See 8 C. L. 2014. The usual rules against confusing and misleading instructions,21 and instructions on the weight of the evidence," apply. The court should properly instruct on the burden of proof 23 and the character of influence necessary to invalidate the will."

\*\*SS 3. _The testamenary instrument or act. A. Requisites, form, and validity._ See 8 C. L. 2014. A will is an instrument whereby a person makes a disposition of his property to take effect after his death,28 which instrument is ambulatory as to all its provisions.26 Statutory rules affecting its validity must be complied with," and it must be the act of testator himself 28 showing final testamenitary intent.29 It may

NWF 218; In re Dowell's Estate \[Mich.\] 115 NWW 24. Instruction that influence must "in 972; Teckenbrock v. McLaughlin, 109 Mo. 538, some measure" destroy free agency though 108 SW 46; Byrnes v. Gibson \[N. J. Eq.\] 68 erroneous held not reversible. Hart v. A. 765; South Side Trust Co. v. McGrew \[Pz.\] 110 SW 91. 69 A 79; Barber v. Allen \[R. L\] 68 A 86. To 25. Noble v. Flickes, 280 Ill. 594, 82 NE 950. show undue influence by husband. Kultz v. Father's letter to son which could not be sustained as creating a truct in stock for Estate, 33 Pa. Super. Cet. 532. By twitext's son's benefit held clearly not sustainable as a testamenary disposition. Paine v. Paine \[R. L\] 45 S 865. Issue deviavit vel \[R. L\] 67 A 127. 26. Revocation revoked revocation therein dence of incapacity or undue influence. In re Moyer's Estate \[Pz.\] 69 A 757. Evidence & 622. 27. Inasmuch as the testamenary disposition: In re Turner's Will (Or.\] 93 P 461. Error to direct verdict against will. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 11. Sondgrass 1.

consist of two testamentary instruments \*0 or of several sheets either detached or loosely fastened together. \[41\] A requirement that the will be in "writing" includes printing, \[41\] and the fact that it is written by lead pencil will not affect its validity. \[41\] The leaving of a space between the testamentary portion and the signature of the testator, sufficient to admit of further dispositions of property or of interpolations by others, has been held fatal, \[41\] but mere failure to fill blanks for names of residuary legatees, \[41\] or the absence of an attestation clause, \[41\] will not invalidate. If the writing manifests the intention of the testator to make a testamentary disposition of his property, the form thereof is immaterial, \[41\] but parol evidence is inadmissible to establish a testamentary intent. \[41\] Whether an instrument is a deed \[41\] or trust contract, \[42\] or is testamentary, \[43\] depends upon its revocability and whether or not it takes effect before the maker's death. A joint will is valid provided it can take effect upon the death of either testator. \[44\] A will though not operative to dispose of property may not be treated as a will unless its contents should be admitted. Mead v. Trustees of impart to it a testamentary character. Noble v. Fickex, 230 Ill. 594, 82 NE 950. Noble v. Fickex, 230 Ill. 594, 82 NE 38. Two wills of different dates may together constitute the last will and testament of the testator. One executed in this country and one in England later. Flinn v. Frank \[De1\]. 68 A 196. Trust deed effective on death of maker and his will affecting assume fund read together as one general scheme of disposition, though not executed at same time or though it was probable when ded was executed that trust fund would not be affected by the will. New York Life Ins. de T. Co. v. Casay, 120 App. Div. 265, 105 NY8 125. \[41\]. A will may be evidenced by several sheets of paper not fastened together (Sehillinger v. Bewek \[1\]12 NW7 210), but where an attempt is made to incorporate into a will an instrument not itself executed as such, the will must refer to it as then in existence, identify it with reasonable certainty, and show testator's intention to make it a part of the will (Id.). Deeds referred to held executed as vllll making general rule of identification inapplicable. Id. Not invalid because written on several sheets, any one of which he capable of being removed, or to which another could be substituted. Palmer v. Owen, 229 Ill. 116, 82 NE 278. A ecdiled need not be physically attached to a will which it unequivocally identifies. Ferrell v. Gill \[Ga.\] 61 SE 131. \[41\]. 82, Rev. St. 1892, 8 5916. Sears v. Sears, 77 Ohio St. 104, 82 NE 1067. \[42\]. That a will is written by lead pencil does not invalidate it. Smith v. Beales, 83 Pa. Super. Ct. 570. The use of a lead pencil in making or altering a will does not show want of final testamentary intent. La Rue v. Lee \[TW. Va.\] 60 SE 388. \[43\]. Space of twenty-three inches. Major v. Apple, 6 Ohio N. P. (N. S.) 592. \[44\]. 83. Kultz v. Jaeger, 29 App. D. C. 800. \[45\]. Will not invalidated by absence of attestation clause if surrounding circumstances indicate genuinness of the document. Where will is drawn in testator's handwriting and the word "witnesses" placed before the signature of the witnesses, and it makes such disposition of his property as would be expected of testator, it be good as an appointment of an executor and as such properly admitted to probate if executed with testamentory intent.\[43\]

(SS 3) _B. Execution of will._ 1. \_Mode of execution.\_See * C. L. 2818--The statute controls as to execution notwithstanding testator's intention.\[44\] It is generally required that testator sign the will "4" at the end "4" or acknowledge his signature \[47\] declaring the instrument to be his will "4" in the presence of two or more "4" credible or competent witnesses "6" who thereupon "51" attest "52" in the presence of the testator,\[33\] and usually in the presence of each other,\[34\] knowing that they are signing a testamentary paper.\[56\] Parol proof of similarity of contents between a destroyed instrument and

43. Kultz v. Jaeger, 29 App. D. C. $00, 44, Sears v. Sears, 77 Ohio St. 104, 82 NE 2388, a will signed by three witnesses, one of whom is devised, is not void but only the devise to the witness, and witness is competent to establish residue of will. Id.

presence. Noble v. Fickes, 230 Ill. $94, 82 NE 950, Under Act April 8, 1833, P. L. 249, a will may be admitted to probate, though owing to extremity of illness it could not be signed by testator where it was otherwise executed in presence of witnesses and approved by decedent. Smith v. Beales, 33 Pa. Super. Ct. $70. The making of a mark by testator is signing within the meaning of the statute, and this though his name, leaving space for his mark, is written at end of will by another without his express direction. In re Tierney's Ekate \[Mian.\]

114 NW 838.

46. Will held not signed at end where line for name at end of testimonium clause was left blank, though name was written in attestation clause. Sears v. Sears, 77 Ohio St. 104, 82 NE 1067. Not error to direct verdict that will was invalid. Id.

01. An acknowledgment of testator's signature to witnesses is sufficient. Signing in their presence is unnecessary where there is such acknowledgment. In re En Enier's WIII, 56 Misc. 218, 107 NYS 222. Sufficient if all witnesses sign in presence of testator and each other on testator's acknowledgment. In re Baldwin's WIII \[N. C.\]

01. _Will_ invalid where signed by witness and it has home in absence of testator who had not yet signed. In re Baldwin's WIII \[N. C.\]

ment of having signed, though they did not see him sign. Brown v. McBride, 129 Ga.

59. _It is not necessary that each witness to a will sign in the presence of the others if they sign in the presence of the testator._

_In re Engler's WIII, 56 Misc. 218, 107 NYS 222. 222._

55. _One who knows that he is signing a testamentary paper and sees testator sign it need not know its contents, Codelli. In re Morgans's Ekate \[Pa.\] 68 A. $93. Not necces-sary that the attesting witnesses know the instrument is a full. Palmer v. Owen, 229 L. 115, 82 NE 276._

01. _It is not necessary that each witness to a will sign in the presence of the others if they sign in the presence of the testator. In re Engler's WIII, 56 Misc. 218, 107 NYS 222._

01. _One who knows that he is signing a testamentary paper and sees testator sign it need not know its contents, Codelli. In re Morgans's Ekate \[Pa.\] 68 A. $93. Not necces-sary that the attesting witnesses know the instrument is a full. Palmer v. Owen, 229 L. 115, 82 NE 276._

01. _It is not necessary that each witness to a will sign in the presence of the others if they sign in the presence of the testator. In re Engler's WIII, 56 Misc. 218, 107 NYS 222._

01. _It is not necessary that each witness to a will sign in the presence of the testator._

\_If we assign to a witness to a the one offered for probate is inadmissible to cure defects in execution by showing that the two papers were one and the same will, there being no physical connection between them.\[56\] The law existing at the time of execution of a will disposing of really governs the formalities of execution and attestation.\[57\]

(SS 3B) 8. _Nuncupative and holographic wills.\[58\]_ * C. L. 2316--Nuncupative wills are generally permitted only when testator is in extremis or in the extremity of his last illness.\[58\] In Louisiana nuncupative wills are by public act or under private signature and differ with reference to form and execution.\[59\] While a holographic will is recognized and properly probated in Arkansas, it cannot alter or revoke an attested one.\[60\] Any presumption of incompleteness arising from an unsigned attestation clause is overcome by evidence showing that testator considered the will executed.\[61\] (SS 3) _C. Revocation and alteration.\[58\]_ * C. L. 2316--One lacking testamentary capacity cannot revoke a will previously made by him.\[62\] A joint will may be revoked by either testator,\[63\] and where by its terms it is to operate as the will of all or neither, a revocation by one testator revokes the will as to all.\[64\] Revocation may be implied of law from subsequent changes in the condition or circumstances of testator,\[65\] or from the execution of a second will.\[66\] Express revocation can be made only

5G. In re Baldwin's WIII \[N. C.\] 59 SE 163. 57. Not that at time of testator's death. 581. Evidence insuffient to overcome pre-Barker v. Hinton \[W. Va.\] 59 SE 614. Chapter 84, p. 194. Acts 1882, requiring witnessa made certain cancellations. Home of the to subscribe in "presence of each other" applies only to wills executed or re-executed or re-executed or re-executed subsequent to its content. Id. 58. Decorte 89. Where only issue was whether testator was in extremis, held error to inform Jury that hun-cupative wills are not favored. Id. Heid 60. The other reason why to be able to detect the effect of witnessa in the rest of the current state is that all died without making an individual will, a subsequent individual will by one testator revokes the joint will. Peoria Hu-dition of decedent on day after alleged will was made. Id. Nuncupative will is made in the "last sickness" as required by the state, though not made In extremis, if made in expectation of death which follows, and though testator thereafter had opportunity to make a written will. In re Miller's Eastate \[Vash.\] 51 P 967. 59. The retails in a nuncupative will by public act that the will was dictated by testator and written by the notary as dictated in the presence of witnesses, and giving the residence of the witnesses, need not be made in any particular part of the instrument, it being sufficient if made in any part thereof. Ducasse's Heirs v. Ducasse's Heirs. V Ducasse's 1033. Ballinger's Ann. Codes & St. \[LA.\] 45 S 565. Where in the presentation form testator heard the will read and declared it to be his will, that some of the clauses were not dictated by him is immaterial. Id. The requirement of present'ation in making a nuncupative will under private signature is compiled with by a declaration by the testator in the presence of the witnesses that the instrument is his will. Id. 60. Though probate of willa is made conclusive by statute until superseded, reversed or amended. Parker v. Hill \[Ark.\] 108 SW 208. 61. Where two witnesses testified that testator told them he had willed his property to person mentioned in will. Anstworth v. Briggs \[Tex. Civ. App.\] 108 SW 153. 62. In re Goldsticker's WIII \[N. Y.\] 84 NE 57. Not that at time of testator's death. 581. Evidence insuffient to overcome pre-Barker v. Hinton \[W. Va.\] 59 SE 614. Chapter 84, p. 194. Acts 1882, requiring witnessa made certain cancellations. Home of the to subscribe in "presence of each other" applies only to wills executed or re-executed in the manner provided by statute," and intention to revoke must accompany the physical act." A holographic will is not revoked by erasures by testator and his writing new portions into the will the same remaining properly signed." The disposition made by the will should not be disturbed by a codicil further than is absolutely necessary to give the codicil effect," and a clear disposition in the will is not revoked by doubtful or inconsistent expressions in the codicil." Alterations made by strangers without testator's knowledge are mere spoliations and have no effect." The doctrine of spoliation does not apply where a will is destroyed by a beneficiary pursuant to testator's instruction to hold it until another should be probated." A will need not be kept in any particular place in order to preserve its validity." Complete revocation destroys the will." Revocation by a writing executed like a will operates presently," but revocation under the same statute, by will, takes effect only on testator's death, regardless of testator's intention," hence the intentional destruction of

and probate of holograph could not give it or partial destruction. Coghlin v. Coghlin, extra, statutory effect. Parker v. Hill 9 Ohio C. C. (N. S.) 385. In suit for re-prostate without certain cancelling lines, evidence held to show testator's intention

an oral agreement that they should be op-

or twelve portions cancelled. Home of Aged

or Methodist Episcopal Church v. Bantz

mained unmarried was not revoked by the

marriage of one of the testators. In re

Glossmatticker's WIII, 108 NYTS 489, 2 Rev. St.

Glossmatticker's WIII, 110 NYTS 185. Bransers by hand of

Glossmatticker in a holographic will is a legal

recocation of portions erased. La Rue v. Lee \[W. Va.\] 60 SE 388.

Lee \[W. Va.\] 60 SE 388. And the words

erased need not be wholly illegible if the intention was to render them nugatory. Home of the Aged v. Bants \[Md.\] 69 A 376.

Reverocation by barning, tearning, etc., by one other than testator and at his request must be proven by at least two witnesses. Code

1896, 4266. Wilson v. Bostic \[Ala.\] 44 8 8 389. A revocation may be made by testator by cancellation or obliteration without attestation. Home of the Aged, etc., by Bantz \[Md.\] 69 A 376. A clause in a will

cannot be revoked by the testatrix drawing link lines through the words. The erasure will be disregarded and such clause will be regarded as a valid part of the will. Porterfield v. Porterfield, 4 Ohio N. P. (N. S.) 654.

**6S. C**: \*\*tore one sheet from his will and then store the sheet into pieces and there it Into the waste basket. The pieces were afterward rescued and put together in proper order, and the sheet in legible condition and without the knowledge of C was restored to its place in the will. At the trial, contesting the will on the ground that it had been revoked by tearing, the attorney of the testator testified as to certain concursations had by him with the testator both prior and subsequent to the tearing of the sheet from the will. Held, to effect a revocation of a will by its destruction, or by its partial destruction, cancellation or obliteration, the intention to revoke must concur with the physical act of destruction

10 Curr. L. - 199.

In the case of a "non-empty" set of events, the event is not revoked by the testator.

the revoking will leaves the former in force.78 Cancellation of portions of a will does not revoke the entire instrument where the remaining parts can stand alone.79 Failure to destroy a will in accordance with a promise is no ground for setting it aside after it has been probated.80

\_Evidence of revocation.--\_Where a will after its execution remains in the possession of the testator until his death, at which time it is found among his papers with his name erased, the presumption is that the testator erased his name and that he did so with the intention of revoking the will.81 The declaration of the testator with reference to the will, before or after an attempt to destroy it, in whole or in part, are competent evidence in determining his intention,82 but his conduct and declarations after the will is executed manifesting a disregard therefor are not competent to question its validity or existence.83

(SS 3) _D. Republication and revival.85e_ C. L. 2317_Revival of a will once revoked must be in writing formally sufficient to satisfy the statute.84 An obliteration intended as a revocation of a devise is effective though it may incidentally increase other devises,88 but the question as to the necessity of republication of a revocation

78 Bates v. Hacking \[R. I.I 68 A. 622, ground that if given effect it would en-Neither elvll law nor St. I Vict, c. 26, $ 22, large the estates of the other devises, on this subject, has been adopted in Rhole and that in such a case it would be "not Island. Id. Oral evidence of contents of simply a revocation, but a new devise or destroyed will held inadmissible to show interaction of revocation. Id.

Corna A revocationary clause in a will destroys at once an earlier will and the earlier will is not revived by the castoruction of the later will and testator's English c. Collins, 61 Md. 478, 48 Am. oral declarations of intention to revoke.

Danley v. Jefferson, 150 Mich. 590, 14 Det. Leg. N. 801, 114 NV 470.

79 Cancellation of disposition after death of life tenant. Home of the Aged v. Bantz \[M.J. 69 A. 376. That remainder would fail into litesagry immaterial. Id.

80. Rev. St. 1895, art. 5837, provides that revocation shall be written or by destruction by testator or by his order in his presence. Locust v. Randle \[Tex. Cir. App.\] 18 Tex. Ct. Rep. 673, 102 SVV 946.

01. Crosby v. Crosby, 10 Ohio C. C. (N. S.) 57.

01. Charge restricting jury's consideration to question of intention held proper. Cognlin v. Cognlin, 9 Ohio C. C. (N. S.) 85.

01. Declarations that he had blocked out will and that his business was unattended. La Rue v. Lee \[V. Ya.\] 60 SSE 388.

01. Will revoked by subsequent will not revived by destruction of later will and oral declarations. Danley v. Jefferson, 160 Mi.h.

850, 14 Det. Leg. N. 801, 114 NV 470.

85. Collard v. Collard \[N. J. Eq.\] 67 A 190.

01.

01.

01. Decreation annouting to new devises a clause of a will gave restator's en-tree estate to his wife, C., for her life, or as long as she remained his widow, remainder to his sons upon her decease or remarriage.

Testator afterwards learned that his supposed wife had a husband living whereupon he erased her name wherever it appeared in the will. The will as admitted to probate by the orphan's court in its entirety, notwithstanding these obliterations made after the wills in the manner provided by the testator should be refused prolate. Collard v. Collard \[N. J. Eq.\] 67 A 190. The lower court refused to recognize the attempted revocation upon the amounting to a new devise cannot arise in the case of a revocation of a devise ineffective in itself.\[88\]

. $ 4. \_Probating, establishing, and recording. A. Place of probate and jurisdiction and powers of courts.\[88\]\_Se & C. L. 2318.--Primary jurisdiction is in the court of testator's domicile at the time of his death.\[87\] It is generally limited by statute \[88\] and cannot be enlarged by consent of the parties.\[89\] Ordinarily probate courts have no power to determine title to real estate \[90\] or to decide issues arising from breach of contract to devise.\[91\] They have power to construe provisions relating to the property disposed of when necessary to the proper exercise of their ordinary powers.\[92\] Foreign wills cannot be admitted to probate in Illinois unless the testator was seised of real estate in that state at the time of his death.\[93\]

. $ 4) \_B. Parties in will cases and the right to contest.\[88\]\_Se & C. L. 2318.--Persons interested may apply for probate.\[94\] In probating a will devising real property, it is unnecessary to cite the tenants of the property.\[95\] Only persons having a present interest in the estate may contest.\[96\] The state claiming by escheat may contest.for incapacity or undue influence.\[97\] Contest of a will for alleged invalidity waives objection to proponent's authority to propound it.\[98\]

devise, that the words erased could have had no force in postponing the enjoyment by the sons of the estate given, since there was no wife nor one who could be his widow, judicial settlement of an executor's account and to distribution. In re Phillips\[99\] the estate is simply the expumping of a void legacy, which, if allowed to stand, could not affect the right of the sons to the immediate possession of the estate.\[99\]-From 6 In this state does not give court jurisdiction. Davis V. Upon, 230 Ill. 327, 82 NE 86. Obliteration of devise to widow, devise, use never having been testator's lawful wife, held not to affect will on ground that it enlarged residue. Collard v. Collard \[N. J. Eq.\] 67 A 190.

. $ 7. In re Walker's VIII, 54 Misc. 177, 105 NYS 880: Godwin v. Godwin, 129 Eq. 67, 68 SE 655. Probate not authorized in country other than that of testator's residence on his death merely because property devised was in that county and all parties in interest resided there. Id. After marriage, a resident of Monroe county moved with husband to Queen's county. About a year before her death she moved to Rochester, 474.

. $ 4. \_Probating, establishing, and recording. A. Place of probate and jurisdiction and powers of courts.\[88\]\_Se & C. L. 2318.--Primary jurisdiction is in the court of testator's domicile at the time of his death.\[87\] It is generally limited by statute \[88\] and cannot be enlarged by consent of the parties.\[88\] Ordinarily probate courts have no power to determine title to real estate \[90\] or to decide issues arising from breach of contract to devise.\[91\] They have power to construe provisions relating to the property disposed of when necessary to the proper exercise of their ordinary powers.\[92\] Foreign wills cannot be admitted to probate in Illinois unless the testator was seised of real estate in that state at the time of his death.\[93\]

. $ 4) \_B. Parties in will cases and the right to contest.\[88\]\_Se & C. L. 2318.--Persons interested may apply for probate.\[94\] In probating a will devising real property, it is unnecessary to cite the tenants of the property.\[95\] Only persons having a present interest in the estate may contest.\[96\] The state claiming by escheat may contest.for incapacity or undue influence.\[97\] Contest of a will for alleged invalidity waives objection to proponent's authority to propound it.\[98\]

(SS 4) \_C. Duty to produce will.\_See 4 C. L. 1890--Contest of a second will may excuse delay in producing the earlier one." Penalties for failure to produce must be enforced within the time prescribed by statute.1

(SS 4) \_D. Probate and procedure in general.\_See 5 C. L. 2819--An unprobated will is not evidence of title to land 2 and by some statutes a foreign will must be probated within the state before land may be recovered thereunder." Probate will, however, relate back and give effect to a conveyance previously made under the will," and title of a legate is not always dependent upon a decree of distribution."

A joint will may be successively probated upon the death of each testator." A copy of the will may not be probated unless the original is lost or destroyed after testator's death or without his consent." While in North Carolina testator's heirs and next of kin may require probate in solemn form after probate in common form," probate in common form is valid until set aside, and the right to require probate in solemn form may be forfeited by acquiescence or unreasonable delay." A law allowing probate on ten days' notice is not unconstitutional as to nonresidents.10 Where the statute prescribes what the application shall contain, other matters need not be alleged.11 Contestants are sometimes required to file a statement of the grounds relied on.12 Irrelevant evidence is properly excluded.13 The will is properly admitted after identification of testator.14 In strict probate proceedings, questions pertaining to the

Ings in chanery court and obtain direction 1899, p. 209, c. 78, repealing as to married State v. Lancaster \[Tenn.\] 105 SWV 868. 98. Hodge v. Rambow \[Ala.\] 45 S 678. 99. Hide v. Rambow \[Ala.\] 45 S 678. 99. H. I left two vhils. The later one was prubated within thirty days and was contested, and after a lapse of more than three years was set aside. Immediately thereafter the beneficiary in whose custody both wills had been placed procured the probate of the earlier will. Held that the custodian of the well was not debarred under $ 543 from taking as a devisee by the fact that more than three years elapsed after the death of the testatrix before he offered it for probate. Avery v. Howard, 7 Ohio N. P. (N. S.) 97. 10. Code Civ. Proc. $ 1303, does not deprive a nonresidential heir who could not re-ure to produce will must be brought within four years from commission of tfense, being purely statutory, and plaintiff's want of knowledge of offense due to testator's con-cealment is immaterial. Richards v. Fletcher \[Vt.\] 63 A 135. 2. Chilsey v. Brookes \[Ga.\] 60 SE 529. 3. Chilsey v. Brookes \[Ga.\] 60 SE 529, overruling Doe v. Doe, 31 Ga. 593. 4. Tudor v. Tudor, 80 Vt. 220, 67 A 53. 5. Element maintainable for chatted real without proof of such decree. Creen v. McMahn \[Md.\] 68 A 265. 6. Peerta Humane Soc. v. McMurtrie, 229 III. 519, 82 NE 319. 7. Godwin v. Gedwin, 129 Ga. 67, 58 SE 652. 652. 653. While proceedings were pending in one county, or after adjudication of merits there, copy could not be probated in another county. Id. 8. In re Beauchamp's Will \[N. C.\] 59 SE 687. 9. Forty years' knowledge of probate in common form, participation in administra-tor's final account, etc. In re Beauchamp's Will \[N. C.\] 59 SE 687. Delay not executed because applicant was from cover, s'e she could have sued without joining hus- and post-selling. 10. Code Civ. Proc. $ 1303, does not deprive a nonresidential heir who could not re-erve to produce will must be brought within four years from commission of tfense, being purely statutory, and plaintiff's want of knowledge of offense due to testator's con-cealment is immaterial. Richards v. Fletcher \[Vt.\] 63 A 135. 11. 2. Chilsey v. Brookes \[Ga.\] 60 SE 529. 3. Chilsey v. Brookes \[Ga.\] 60 SE 529, overruling Doe v. Doe, 31 Ga. 593. 4. Tudor v. Tudor, 80 Vt. 220, 67 A 539. 5. Element maintainable for chatted real without proof of such decree. Creen v. McMahn \[Md.\] 68 A 265. 6. Peerta Humane Soc. v. McMurtrie, 229 III. 519, 82 NE 319. 7. Godwin v. Gedwin, 129 Ga. 67, 58 SE 652. 652. 653. While proceedings were pending in one county, or after adjudication of merits there, copy could not be probated in another county. Id. 8. In re Beauchamp's Will \[N. C.\] 59 SE 687. 9. Forty years' knowledge of probate in common form, participation in administra-tor's final account, etc. In re Beauchamp's Will \[N. C.\] scope and character of the devises or bequests \[18\] or the validity of particular provisions \[16\] are immaterial. The attesting witnesses are competent to testify and give an opinion as to mental capacity, \[17\] and an executor who signed as witness may testify to the execution of the will, including what testator said relevant thereto, though he petitions for the probate. \[18\] After pi proof that a witness is inaccessible, his signature may be proven by others. \[19\] A devisee or legate not an attesting witness may be examined in support of the will \[20\] except in jurisdictions where only the testimony of subscribing witnesses will be received. \[21\] If the evidence shows the will to be in fact different from that alleged, the court may allow amendments to conform to the facts. \[22\] The probate court is not bound by a stipulation by all heirs and legates that probate be denied on the ground of incapacity. \[23\] An agreement by a devisee to join with the other devises in resisting probate so as to cut off remaindermen not parties is against public policy, \[24\] as is also an agreement by the executor to so join. \[24\] Where undue influence is claimed only on the part of proponent to whom a legacy is given and there are other distinct legacies, probate should not be refused in toto without affording the other legates an opportunity to be heard, \[25\] and proponent who is executor as well as beneficiary may urge error in this regard. \[26\] (SS 4) _E. Burden of proof on the whole case._ \[See 8 C. L. \[28,11\] The character and extent of this burden varies somewhat in the different states. \[27\] Proponent must of willi in evidence. Riddle v. Gibson, \[29\] other interests not ascertainable in advance: App. D. C. \[27\]. \[15\] Question whether bequest was conditional or not, immaterial on application for wrote. Ainsworth v. Briss \[Tex. Civ. App.\] \[18\] SWV \[75\]. What property will applies to and how it shall be disposed of held not determinable In proceeding to probate (Clements v. Maury \[Tex. Civ. App.\] \[11\] SWV \[18\]), hence probate of willi disposing of community property was not conclusive as to interests of hers of deceased's first wife, though they contested on ground of attempt to dispose of their interests, especially since heirs did not claim under tis-tator (Id.). \[16\] Void clause in willi of married woman appointing other than husband guardian for infant son does not affect proceeding for probate of willi. In re Walker's Willi, \[5\] Mise. \[17\], \[10\] NYS \[89\]. Validity or ineffectiveness of devises or bequests will not be determined on issues of incapacity or undue influence. Kultz v. Jaeger, \[29\] App. D. C. \[30\]. \[17\], \[18\]. In re Tierney's Ekstate \[Minn.\] \[11\] NNV \[83\]. \[19\]. Testimony falry construed held to mean that witness knew signature of subscribing witness and would recognize it. Brown v. McBride, \[19\] Ga. \[25\] SE \[70\]. Proof of unsuccessful difference in ascertaining the whereabouts of a witness is equivalent to proof that witness is dead or beyond the jurisdiction of the court. Id. \[20\]. On questions relating to manner of execution. Barker v. Hinton \[V. Va.\] \[59\] SE \[61\]. \[21\]. On application for probate of a willi, both parties are confined to the attest'ng witnesses. Mead v. Presbytrian Chu ch ch Trustees, \[29\] III. \[58\], \[82\] NE \[37\]; Hill v. Kehr, \[28\] III. \[20\], \[81\] NE \[84\]. \[22\]. Nunequative will. In re Miller's estate \[Vash.\] \[9\] P \[96\]. \[23\]. Proceedings is in rem and may affect prove due execution,\[28\] after which many courts hold contestant has the burden of showing incapacity or undue influence,\[29\] the usual presumption of sanity obtaining.\[30\] Proof sufficient to establish a codicil is sufficient to establish a will.\[31\] A will is not rendered invalid because attesting witnesses have no recollection of its execution,\[32\] and where the will is old\[33\] or the witnesses dead, less evidence is required to show execution.\[34\] Probate is of right in some states upon prima facie showing of validity and execution.\[35\]

(SS 4) \_F. Establishment of lost will.\[See * 10 Cur. Law. WILLS SS 4G. 2055

(SS 4) G. Judgments and decrees.See & C. L. 2892.--Orders should be properly entered of record 46 and must show the essentials to probate.46 A probate decree is a judicial act binding on all the world until set aside in manner prescribed by law.47 It becomes conclusive by failure to contest within the time prescribed,48 and equity cannot grant relief from fraud, mistake, or forgery unless one was without knowledge of the decree admitting to probate 49 or unless he was prevented from contesting by the fraud of those who procured the probate.50 Fraud extrinsic to the judgment is however, remediable, at least in some states.51 Fraud in obtaining decrees of distribution which are in strict accord with the terms of the will is not ground for relief if the probate cannot be attacked,52 and equitable relief will not be granted where

to execution of will and within a reasonable climate prior to her death, showing will to \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 673, 102 have been deposited with a third person and was there to within a few days of her death.

Sew 946. While ordinarily all that is essentials to probate is proof of due execu- and declarations showing her affection for devices and no change of feeling, when corroborated by direct evidence that there-after she had no opportunity of withdrawing the will, held admissible to show that will had not been returned to her or cancel. In re Miller's Will \[Or.\] 90 P 1002, and authorities cited.

44. In re McCoy's Estate \[Or.\] 90 P 1175.

01. Discrepancies between entry in minute book of probate court of order admitting

thereafter attacked collaterally by suit on will and signed memoraround of judge filed

the entity did not have cap-

will declared invalid (Id.). Testrix's will

tion giving name and place of the court and did not contain the word "said," held not

interest in lands in Missouri. After her invalidate entry so as to extend time for

equal until after making of another entry.

Tracy v. Coffey \[Cal.\] 95 P 160.

office in country, where land was located, but

46. Record in proceeding to prove holo-

graphic will, falling to show that handwriting of testor was generally known by his

helers could not collaterally attack decree acquaintances and proof thereof by three

credible witnesses, held defective. Grier v.

hen v. Herbert, 205 Mo. 537, 104 SW 84. Ten-Canada \[Tenn.\] 107 SW 970. Order reiting

and could not collaterally attack the pro-

proof of contents of will and of testor's

state being presumptive evidence of validity

signature, though irregular, held not void

for failure to literally comply with statute

of will against duty cited parties. Code Civ.

by stating that will was wholly in testor's

Pre. 518 2615, 2627. Drake v. Pechin, 109

handwriting, or if not written by him, that

NYS 474. In subsequent suit between ad-

he or his agent subscribed, etc. Maynard v.

retcher \[Ky.\] 107 SW 241.

produced was not decedents will, or proof

47. Cohen v. Herbert, 205 Mo. 537, 104 SW

01. Judgment of county court admitting

will where such court had jurisdiction is

testor meant by "home farm" could be

conclusive until set aside on appeal or by

shown. Id. Proceeding to have persons

bill in chancery under the statute. Kem-

and judged trustees for having fraudulently

merer v. Kemmerer, 233 Ill. 327, 84 NE 256.

procured administration in accordance with

void trust in a will held a direct and not a

questioning such judgment, held not referr-

mere collateral attack on judgment of pro-

bate court. Campbell-Kawannanakoa v.

Department of Mathematics, University of California, Berkeley, CA 90037, USA
statutory contest is adequate.58 Under the New York code, a decree rejecting a will is as conclusive in subsequent controversies in the surrogate's court relating to personality as one admitting it,54 but matters determined by the surrogate are not concluded in proceedings in the supreme court to establish validity or invalidity.58

(SS 4) _H. Revocation of probate_ See s c. L. 22:28 must be sought within the statutory period 58 and on grounds sufficient to confer jurisdiction.57

(SS 4) \_I. Suits to contest or set aside.See s c. L. 22:23--Jur:sdiction is statutory 58 and must be invoked in time.59 Consent to entry of the probate decree will not ba-the proceeding,60 nor will contestants' dismissal of appeal from an order admitting the will preclude contest it not appearing why the appeal was dismissed.61 That a will violates a restriction of gifts to charitable uses is not ground for revocation of probate where the statute itself provides for distribution to residuary legates or heirs in such case.62 Under the statutes of Ohio the right to contest is in those persons only who were interested in the will at the time of its probate,63 and only such persons are proper parties plaintiff.64 The right does not pass to the heirs or devices of such persons either before or after suit brought.65 An heir may contest under the Illinois act though the will is invalid only as to personally because not executed in

f3. One is not entitled to equitable relief

for fraud in obtaining a decree sustain ng

hill. Tagert v. Fletcher, 232 Ill. 197, SS 3NE

the will where he has a right to contest

805. Statutes considered, and held circuit

within one year. Tracy v. Muir, 151 Cal.

court has no jurisdiction of petition to set

803. #0 P 832.

001. Under Code Civ. Proc., $ 2626. In re

Goldistickers Will \[N. Y.\] 84 NEx 581. As

evidence of revocation, a later will was offered, probate of which had been refused.

fred, probate of which had been refused.

Held inadmissible. In re Goldisticker's Will,

108 NYS 489.

55. In an action to establish invalidity of

robate, under code, before the surreme

court, decrees admitting of reusing W'll

are but prima facie evidence of the validity

of the wills respectively passed upon. In re

Goldistickers's Will, 108 NYS 489. A surro-

gate's decree refusing probate of will devising

reality is not conclusive in action to establish validity in supreme court. Id.

56. Ten-year limitation of Shannon's Code,

$ 4473, applies to petition to revoke probate

on ground of incompetency of testimony,

prostate being valid on its face. Scott v.

Wagstaff \[Tenn.\] 107 SV 976. On collateral

attack of a will in proceedings to establish

title to land, an ancillary though ex parte

proceeding to supply defects in the original

probate will be held authorized, although

brought after the lapse of many years, and

is sufficient to make out a prima facie case

for the beneficiary so as to cast the burden

upon those who assert the invalidity of the

will. Proceeding nineteen years after original probate. Griter v. Canada \[Tenn.\] 107

SSW 970.

57. Probate court had jurisdiction to set

aside probate entered in accordance with

order of circuit court on appeal or where

proponent had intentionally concealed existence and residence of an heir. Schonfeld

v. Thomas, 231 Ill. 114, SS 3NE 121.

58. The jurisdiction of equity to entertain

a bill to contest can be exercised only in

the mode and within the limits prescribed
by the statute. Kemmerer v. Kemmerer, 233

Ill. 827, SS 4NE 265. Partition cannot be

granted in a suit to contest wherein the

statutory jurisdiction is invoked. Demand

therefor held Improperly incorporated in

for fraud in obtaining a decree sustain ng

hill. Tagert v. Fletcher, 232 Ill. 197, SS 3NE

the will where he has a right to contest

805. Statutes considered, and held circuit

count has no jurisdiction of petition to set

803. #0 P 832.

could have no jurisdiction of petition to set

s aside probate in county court, only remezy

s being by appeal. Maynard v. Hatcher \[Ky.\]

bolfolf. SW 241.

107 SV 241.

59. Proceeding commenced within two

years of probate inures to benefit of one

who intervenes after statutory period, re-

two interves after statutory period, re-

from limitations unavailable as defense

against such intervenor. Maurer v. Muller

\[Kan.\] 93 P 586. Action to determine validity of probated will is not limited to one

year after probate where will relates to per-

sonalty only. Code Civ. Proc., $ 2653a,

added by Laws 1892, p. 1136, e. 591. Action

may be brought in supreme court within

two years. Shea v. Bergen, 110 NYS 572.

Under act June 25, 1895, P. L. 305, Ilmiting

to three years' time for contesting probate

will probated in 1883 could not be challenged in ejectment in 19 accordance with the laws of foreign domicile," and hence, if in such case no contest is made within the time prescribed, the probate decree will be held conclusive.67 While the affirmative is on proponents to establish execution and mental capacity,68 the will and its probate is prima facie proof,69 and plaintiff must overcome the presumption in favor of the will by a preponderance of evidence.70 Whether an erasure was made before or after execution is a question of fact to be determined from all the evidence, including probate, aided by all reasonable presumptions and inferences.71 It is improper to instruct on fraud in the absence of any evidence thereof.71 If there is no substantial evidence to sustain the contest, the court may direct a verdict,73 but contestants are entitled to have their evidence taken as true and to every reasonable inference in their favor.74 The New York surrogate has no power to construe the provisions of a will in proceedings to revoke probate.75 If in their effort to establish execution and capacity proponents bring out facts showing that the paper is not the will of decedent, the contrary cannot be adjudged though such facts are not stated in the petition of contestants.76 That a judgment for contestants is reversed because the verdict should have been for proponents does not authorize the trial court on re-mand to dismiss for want of equity without a new trial where the statute requires a verdict of a jury on issues made up for submission to them.77 A judgment for defendants in a suit to contest for undue influence is not a bar to a subsequent proceeding by plaintiffs therein to impress a trust upon the property based on promises of the devisee to the testator.78 In Tennessee, title to land, acquired in good faith, under a will probated in common form, cannot be disturbed though subsequently the probate be annulled and the will set aside.79 (SS 4) \_J. Suits to establish._Bee 5 C. L. 1914_.In a suit to establish a will and for distribution according to its terms, if it is found that a will was made but that nothing passed thereunder, the executor's attorney fees cannot be allowed out of the assets passing to defendants whose interests were adverse.80 (SS 4) \_K. Appeals._See 5 C. L. 2024_.--The time for appeal,81 the orders appealable,82 and procedure essential to review,83 are matters of statutory regulation. An 8311. 83. Bradford v. Blossom, 207 Mo. 177, 105 SWP 289. 86. Probate prima facie evidence of due attestation, execution and validity, Scott v. Thrall \[Kan.\] 95 P 563. A statute providing that in an action to contest, the will and probate thereof shall be prima facie evidence of due execution, and the valid ty of the will does not apply where the will shows that it is not signed. Sears v. Sears, 77 Ohio St. 104, 82 NE 1067. 70. Code Civ. Proc. 2653a. Shayne v. Shayne, 54 Misue, 474, 406 NYS 34. Probate will be set aside only on substantial proof of mental incapacity or undue influence. Id. In suit to contest, burden to explain an erasure is not on defendant, but plaintiff must overcome evidence afforded by probate and show invalidity by preponderance of evidence. Scott v. Thrall \[Kan.\] 95 P 563. 71. Scott v. Thrall \[Kan.\] 95 P 563. 72. Murphy's Ex'r v. Hoagland \[Ky.\] 107 SWP 308. 73. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 SWP 46. 74. In re Welch's Will \[Cal. App.\] 91 P 385. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 SWP 46. 75. In re Wilcox's Estate, 55 Misue. 170, 108 XYS 468. 76. Where instrument was not what test-tativ was made to believe it was when she executed it. Bradford v. Blossom, 207 Mo. 177, 105 SWP 289. 77. Crumbaugh v. Owen, 232 IL 191, 83 NE 803. 78. Smullin v. Wharton, 73 Neb. 667, 112 NWP 622. For former opinion see 106 NWP 577. See, also, 113 NWP 267. 79. State v. Lancaster \[Tenn.\] 105 SWP 858. 80. McCormick v. Elsea \[Va.\] 59 SE 411. 84. Time for appeal from order admitting will runs from entry of order in court's minute book. Tracy v. Coffey \[Cal.\] 95 P 15. Infants held barred by Mye-year limitation from appealing to circuit court, and could not impeach decree in equity after a year from attaining majority. Noland v. Stacy \[Ky.\] 110 SWP 264. Appeal may be granted after the time prescribed thereor where the delay is excusable and justice requires it, as where petitioner was induced to believe that testativ had died intestine and testantantary capacity was doubtful. Hackett v. Murphy \[R. I.\] 69 A 685. 82. Appeal lies to common pleas court from probate order overruling application 2058 WILLS SS 4K. 10 Cur. Law

executor may appeal from a decree denying probate,84 but a widow having ample remedy by election may not appeal from an order probating her husband's will.85 Interested persons not parties to the appeal should be brought in by order of the appellate court.86 Jurisdiction below being ousted by appeal for trial de novo, the district court is powerless to remand for defect of parties.87 Technical rules as to formation and determination of issues do not apply to reasons of appeal from probate.88 A claim that the will offered for probate is not the will of the alleged testator is a sufficient reason for appeal from its allowance.89 On appeal from a judgment denying probate, questions properly arising only after probate will not be considered,80 and where a demurrer to an application for probate is sustained matters outside the application cannot be determined.91 Written statements of the subscribing witnesses made under oath at the preliminary offer of probate are admissible in evidence on trial de novo in the district court on appeal.92 On appeal from grant of probate in Illinois, the evidence is confined to testimony of the attesting witnesses,84 but on app-

to find and establish contents of a lost will (ings on questions of law. Question whether (Roth v. Slefert, 77 Ohio St. 417, 83 NE previous appeal was bad. In re Gurdy \[Mc.\] 611), but an order of court of common pleas 69 A 546. Determination of questions of establishing contents of such will is not reversible on petition in error (Id.). Sess. without fault of petitioner and whether Laws 1901, SS 40, e81, p. 158, does not allow justice required revision. Id. When leave is appeal from interlocutory orders. In re granted to enter and prosecute an app-cial, Gent's Ekstate \[N. M.\] 93 P 702. Order in acadance with verdict that instrument was and determined by justice cannot be heard not decedents will held final though not providing for costs, Wallen v. Wallen \[Va.\] (the appeal, which the granted (Id.). the only question open being that of jurisdiction (Id.). Supreme court of probate may hear criterion for appeal at term later than first script in district court within 10 days thereafter ignition in vacation by agreement of jurisdiction under the statute. In re Powers' Ekstate \[Neb.\] 113 NW 198. Executor in active discharge of official duties at time of vacation of order admitting to probate held not required to give bond on appeal to district court. Marshall v. Stubbs Terex. Civ. App.\] 26 Tex. Ct. Rep. 491, 106 SWV 458. On appeal from order disallowing probate bond should be payable to contestant, not to people of the county. Schodel v. Thomas, 231 III. 114, SS 121. Appeal bond may be approved by clerk as well as by judge of probate. Id. An appeal on an issue of fact in proceedings to prove a will must be heard on a case made and settled by the surrogate as provided by Code Civ. Proc. 8 2575. In re Goldstein's VIII, 54 Misse. 175, 105 NYS 831. Where exceptions are taken to decision of a surrogate in procecd-fings to prove a will as to his findings on the sanity of decedent, all the evidence which any party to the proceeding may claim to be material on the question must be included in the case in order to incorporate them in the record. Id. Where on appeal from a decree in proceedings to prove a will objections were made to receiving by surrogate of testimony of witnesses over objection to their competency, all material evidence must be included in the case on appeal. Id. Where appellant failed to pay appeal fee which was paid by contestant and refunded him by appellant, appellate court properly refused to dismisss \*appeal. Schodel v. Thomas, 231 III. 114, SS 121. On application for leave to appeal from a pro-bate decer, exception must be taken to rule-121.

10 Cur. Law. WILLS $ 5A. 2059

peal from refusal to probate any legitimate evidence is admissible to establish the will.\*\* The rule against disturbing verdicts or findings based on conflicting evidence applies in litigation over the validity of walls,\*\* though in New York the appellate court has the same power to determine questions of fact as the surrogate had.\*\* A finding of incapacity will support a judgment refusing probate, regardless of error below on the issue of undue influence.\*\* Though the parties are usually entitled to a jury trial, the court has 'the same power to direct a verdict as it possesses in ordinary civil actions.\*\* An appeal bond conditioned on paying "all damages" does not include appellee's attorney fees.\*\*

(SS 4) _L. Costs_ See * C. L. 2825 may be allowed out of the estate,1 and allowance to an unsuccessful proponent * or contestant * is largely discretionary, but the court may not ordinarily direct the payment of anticipated expenses out of the estate without specific statutory authority.4 An executor will be allowed his costs and counsel fees where it becomes his duty to defend the will.5

(SS 4) _M. Recording of foreign wills_ See * C. L. 2826 is essential to their use as ruminants of title where required by statute.\*\*

SS 5. _Interpretation and construction._ See * C. L. 2826

_Scope of section._--The first subsection embraces rules which may be called general. The four subsections following indicate four general classes of objects to which the terms of a will are addressed.

(SS 5) \_A. General rules._See * C. L. 2826_--Testator's intention," gathered from the whole instrument," controls if consistent with the law.\*\* The recognized rules of

95. In re Doolittle's Estate \[Ca1.\] 94 P 240, \[ant (IG.), and it will be presumed on app- Conflicting evidence on questions of fact will * pcal that court properly exercised its discretion (Id.). evidence as to whether testator expressly * Grafted draftman to sign his name to will, payment to guardian ad litem of contest- In re Powers' Estate \[Neb.\] 113 N NV 198. * Grote Civ. Proc. $ 2586.

construction should be applied to arrive at this intention,10 but not to subvert it.11 These rules call for a reasonable and natural interpretation,12 and often require or allow the court to disregard technical meanings 13 or inaccurate 14 or inconsistent expressions,18 to supply, ignore, or transpose words, phrases, or punctuation,18 and to consider void provisions.17 Two clauses relating to the disposition of the same property to the same persons should be construed as one.18 It is for the court to construe a will in the light of its language and the circumstances.19

Footnote 18: https://www.cds.org/

\_As to time.\_See s C. L. 2327--A will speaks as of the time of testator's death.20

\_Extrinsic evidence.\_See s C. L. 2327--While the circumstances and conditions surrounding testator at the time of making the will may be shown,21 and extrinsic evidence.

Prather \[Mo.\] 109 SWV 41; In re Froehlich's 14. In apt terms subordinated to clear

\[Kstate, 122 App. Div. 440, 107 NYS 173; intention. Liebmann v. Liebmann, 53 Misc.

Whittle v. Whittle's Exrs \[V.A.\] 69 SE 748, 488, 105 NYS 403. Quarter of "said remain-

All words must be given effect if possible.

\[ dence may be admitted in cases of latent ambiguities,22 such evidence,28 including testator's declarations,24 cannot be allowed to vary, explain, or contradict clear and explicit language. Extrinsic evidence is inadmissible on question whether a provision is in lieu of dover.25 Where a latent ambiguity is established by parol testimony, which itself removes it, the language of the will controls.24

(SS 5) \_B. Of terms designating property or funds.\_See S C. L. 2828--Words will carry such property as in common use they import 27 and all that is incident thereto.21 Property in which testator had no divisible interest will not pass,29 but money apparently held in trust may be shown to in fact belong to testator,30 and a devise of all

leged and proved as an element in determin- made, it could not be shown that wife was ing the intention of the testatrix to prefer to have homesetad. Hollenbeck v. Smith, 231 her. Youtsey v. Bowman, 6 Ohio N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. P. (N. . (N. . .

2062 WILLS SS 5C. 10 Cur. Law.

one's really passes land acquired after the will was made." While words may not be added either to supply description or in lieu of erroneous description," a word may be stricken out if the intention of the testator is thereby effectuated." Where after execution of his will a testator makes a trust deed, the will operates upon what is not disposed of by the trust deed." One entitled to share as legatee if a specified contingency shall happen will be entitled to share if at all, in funds coming into the executor's hands for distribution to legatees before as well as after the contingency happens." Testamentary power in trustees to conclusively determine all doubtful questions of construction in the interpretation of the will authorizes the trustees to determine what property the will applies to.""

(SS 5) \_C. Of terms disignating or describing persons or purposes.\_See 3 C. L. 1328

Intent governs in determining who take " as members of a designated class " and the

SL. "To husband all my real estate " " along with surviving sisters. Hagen v.

of which I am now possessed." After-ac-

Hanks \[S. C.\] 61 SE 245. "Provision that in

quired property passed and word "now" did

case of death of a nephew or nicee without

not extend meaning. 2 Rev. St. (I st. ed.)

chldren his or her share should go to the

pt. 2, e. 6, title 1, e. Hodgkins v. Hodgkins,

survivor or survivors of the other held to

108 NYS 173.

32. Douglas v. Bolinger, 228 IL, 23, 81 NE

re Carys's Ekute \[Y1\] 63 A 736. Provision

787.

001. Where testator owned but one tract of

land and erroneously designated it the north

die childless held to give his entire interst

one-half instead of the west one-half, and

to truste of another son to exclusion of

his intention to leave said property to his

son is manifest, the word "north" will be

Norris' Ekate, 217 Pa, 548, 66 A 996. WIII

stricken out so as to give the gift effect.

Douglas v. Bollinger, 228 IL, 23, 81 NE

v. Angel' \[R. I.\] 68 A 583.

v. Wheeler wife of testator's brother was

untiled to share as legatee if she should

survive her husband, she was entitled to

share in funds coming into executor's hands

school districts of a town, number and size

for distribution before as well as since death

of husband. Cooch v. Clark \[Del.\] 68 A 247.

36. Not limited to determination of disposing

into of property clearly covered. Couts

v. Holland \[Tex. Civ. App.\] 107 SVW 918.

87. Testator's scheme was to leave his

property in trust for different lines of

deconants, and he carefully provided in each

instance save one that in case of death of

the beneficiary without issue his share

which case when will was executed or

should vest in the survivors. Hed, it could

not be presumed he Intended to make an exception in case of his grandchildren, and

hence share of a grandchild vested in surviving

beneficiaries named in the clause.

Dexter v. Watson, 54 Misc. 484, 106 NYS 80.

Devise to "D., deceased," held to D. s child

then. Carroll v. Adams, 105 NYS 967. Real

due to sister J., nephew S., and S.'s sister,

tetaator's piece, all in L., Germany. Codici

on death of sister gave her share "to the

other two residuary legatees therein named,

S., and to his sister, my nicee, whose name

Its K. and whose residence is in S., Germany."

S. had only one sister always reading at

L. Testator had nicee named K. residing at

S.'s, but had been intimate with S. family

and not with K. and her parents. Hed, S.

acquired one-third plus one-half of one-third, and his

third, and his sister one-third, and K.

one-half of one-third. In re Domin-

lot's Ekate, 151 Cal. 181, 90 P 448.

Direction for division "equally, share and

share alike, between all my living sisters

that children of first marriage were not en-

not be living," allowed such heirs to take

that is, in the sense of the 10 Cur. Law. Willls $ 5D. 2063

purposes of a gift,30 if such intent can be ascertained with any reasonable degree of certainly,40 and particular liberality is exercised to sustain charitable or educational requests.41 A residuary devise to "heirs at law" does not show intention to exclude specific legates who may become such heirs.42 The presumption is against an intention to disinherit, but this presumption does not apply where it is clear that the testator intended to favor some to the exclusion of others.48 One not answering the description in a legacy is not entitled thereto,44 and a done must have capacity to take,45 but capacity will be determined as of the date when the contingency happens upon which vesting depends.48 The rights of pretermitted or posthumous children 47 and the construction of the words heirs, issue, children, and the like, are treated elsewhere 48 to avoid confusion and unnecessary repetition.

(SS 5) \_D. Of terms creating, defining, limiting, conditioning, or qualifying the estates and interests created. Particular words and forms of expression.\_See 5 C. L.

\*\*2830--\*\*The words "heirs," 40 "heirs at law," 50 "lawful" or "legal heirs," 51 "issue," 52

contingency among those persons who would another sum in lieu thereof, legateo was have been testator's own right heirs if wife entitled to take also as sole heir at law had predecessor and he had died intestine at time his wife in fact died. Boston Safe Ing residue to "heirs at law." Wilkinson Deposit & Trust Co. v. Blanchard \[Mass.\] 1019.

39. Wills construed to create funds to be used exclusively for homes for two danglers and their families. Coleman v. Grimes \[Ky.\] 110 SW 349. Increase in value of property in which funds were invested held to become part of principal and subject to same trust. Id.

01. A bequest will not be declared void on the ground of uncertainty unless the conditions are such as to make it impossible to ascertain, with any degree of reasonable certainty, what testator's intention was. In re Dickinson's Estate, 56 Misc. 332, 107 NYS 386.

01. Where land was devised for site of a charity and rest of testator's property was given for the purpose of creating a building thereon and supporting the institution, will stating "other aid may be obtained, this bequest being intended as the founding and beginning," trustee of the charity were entitled to receive the property though other property was insufficient, even for erecting necessary buildings. Kenne-dy's Adm'r v. Trustees of Linn Orphan Asylum, 31 Ky. L. R. 766, 103 SW 340. Bequest to religious societies by names which were not their strict corporate names, but plainly identified societies intended, held valid. In re Dickinson's Estate, 56 Misc. 232, 107 NYS 386. Where bequest was to a certain library in Phelps and there were two libraries which might have been intended, the means of knowledge of the testator as to character of the two libraries in connection with names by which they were known should be considered in determining which was the legate intended. Id. Wills construed to authorise distribution to institutions that aided orphans though they were not exclusively orphanages. Jacoby's Estate, 34 Pa. Super. Ct. 355. Wills held to sufficiently identify a missionary association as legate intended. Guild v. Allen \[R. I.\] 67 A 855. Also a missionary society. Id. See, also, Charitable (Gifts, 9 C. L. 556.

01. Where codelli revoked specific bequests made in previous codeli and gave 2061

- "lawful issues," "" "relatives," " "family," "56 children," "share," or "equal shares," "57 will be given their ordinary meaning in the absence of statute or contrary intent. The "child or children" of others than the testator does not include an adopted child.58
- _Gifts by implication._ See 8 C. L. 2331.--No express words of gift are necessary if the intention to give clearly appears in the will.58
- Devise of land, on condition of pay-

\[S. C.\] 60 SE 1105. Request to a daughter, \[ar time. Kernechan v. Whitney, 109 NYB then to her helrs. and if she should die leaving no helrs of her own then to others. The first word "helrs" held to mean any person sons who would succeed to her estate in case 190 N. Y. 458, 83 NE 569. of Intestacy, while "helrs of her own" held to mean issue of her body. Ahileid v. Curstuot of distribution. Thompson v. Thornton \[Mass.\] 83 NZ 880.

- 50. Ordinarily "helrs at law" refers to those who were or will be such at death of testator or ancestor in the absence of a contrary intent. Provision for distribution among testator's helrs at law after death of life tenant referred to hers at testator's death. Boston Safe Deposit & Trust Co. v. Parker \[Mass.\] 83 NZ 807. Term "helrs at law" when considered with all the language of the will held to include the husband and remaining heirs of testator. Harris v. Rhodes, 130 III. App. 238.
- 51. "Lawful heir" does not mean "legitimate helix," but only person designated by law to take by descent \[Harrell v. Hagan \[N. C.\] 60 SE 909\]; hence, where will pro- vided that in event of daughter's death with- out "lawful heirs" property should go to sons, illegitimate issue of daughter took on her death, under statute making illegitimate children heirs of mother in absence but ordinarily and naturally means a of legitimate children (Id.). Where a testator devises a parcel of real estate to his mon by two or more persons. McDaniel v. son for life, with remainder to his lawful heirs, and the son marries after the death of the testator, held that upon the death remainder in fee simple to each of his two of the son the wife takes as her where sons in the first item of his will, and in a there is nothing in the will tending to show that the testator used the words "lawful heirs" in a different sense from their art technical imprt. Miller v. Miller, 9 Ohio C. C. (N. S.) 242. "Legal heirs" means those answering that description under the laws of the state. Harris v. Traganls \[N. H.\] 68 of the deceased son should go to his heirs, A. 34. "May be held to mean children or other near relatives of a person living at testator's death if testator's death if testator so intended. Id. 52. Embraces grandchildren and remoret so descendants (Coyle v. Coyle \[N. J. Eq.\] 68 A. \[224\] unless a restricted meaning was intended (Id.). "Issue" held equivalent to "children" only. Id. Usually means an indefinite succession of lineal descendants who are to take by inheritance; hence hers of body. Harrell v. Hagan \[N. C.\] 60 SE 909. Embraces lineal descendants of every generation and must be so construed when used in a will unless intention is shown !o use word in a restricted sense. "To child or in case of death of child to issue or next of kin of said deceased child." Held son and grandchildren of deceased daughter were entitled to share per capita daughter's share in testator's cstate. Bassett v. Wells, 56 Misc. 81, 105 NYB 1068. Held not used in its strictly techai'n meaning equivalent to "descendants," but applied only to descendants of a particular class at a particu-
- 57. The word "share" does not prima facie apply to an interest in real estate, but ordinarily and naturally means a part or portion of personality held in common by two or more persons. McDaniel v. son for life, with remainder to his lawful heirs, 6 Ohio N. P. (N. S.) 435. Where a heirs, and the son marries after the death remainder in fee simple to each of his two sons in the first item of his will, and in a subsequent item devised the rest and resl- due of his property, consisting largely of personality, equally between them, share and share alike, and then immediately pro- vided that if either of said sons should die before the decease of his wife then the share of the state. Harris v. Traganls \[N. H.\] 68 of the deceased son should go to his heirs, the word "share" does not include the real estate devised in the first item of the w!1, testator's death if testator so intended. Id. 52. Embraces grandchildren and remoret so is by express words given a share. Id. descendants (Coyle v. Coyle \[N. J. Eq.\] 68 A. \["Ine equal shares" will not modify what has 224\] unless a restricted meaning was intended (Id.). "Issue" held equivalent to preted to mean with equal regard to rights "children" only. Id. Usually means an indefinite succession of lineal descendants who are to take by inheritance; hence hers of body. Harrell v. Hagan \[N. C.\] 60 SE 909. Embraces lineal descendants of every generation and must be so construed when used in a will unless intention is shown !o use word in 10 Cur. Law. WILLS SS 5D. 2065

ment to another renders such person a legate, though not otherwise mentioned in the will and though the devise is not accepted by the devise.\[60\]

\_Quality of estate, whether legal or equitable, use, trust or power.\_See s C. L. 2381 -

Hortatory or precatory language may or may not create a mere trust estate.\[61\] A provision that a trustee use property as he may deem best is not a gift to the trustee individually.\[62\] A secret trust may not be impressed upon an absolute devise by parol evidence that the devise promised to devise to another.\[63\]

fully discussed elsewhere.\[64\]

\_Estates and interests created_See s C. L. 2382 by the use of particular words are \_"Interest" and "income."\_See s C. L. 2383--Stock purchased with assets by the corporation which issued it and kept alive in its treasury must be treated and distributed as corpus under the will of a stockholder, and not as income,\[63\] regardless of an attempted distribution thereof as dividends by the corporation after vesting of the interests of the legatees.\[64\]

\_Legacies.\_See s C. L. 2384--"Legacy" is a generic term and includes residuary as well as general, specific, and pecuniary bequests.\[67\] A specific legacy is a bequest of a particular thing or money, or fund designated from all others of the same kind.\[68\] A legacy is general when it is so given as not to amount to a bequest of a particular thing as distinguished from all others of the class.\[69\] A bequest for a valuable consideration made a charge against the estate and to precede all others is a trust, and not a legacy.\[70\] A legacy by direction to cancel debts will not include debts owing by the legate to third persons.\[71\]

\_An annuity.\_See s C. L. 2386

\_Advancements.\_See s C. L. 2383--Where one disposes of his entire estate by will, the doctrine of advancements has no application unless the will specifically refers

\*\*60. Warner v. Bullen, 123 III. App. 138. 64. See Real Property, 10 C. L. 1418: 61. Wife to be soe heft of entire property with free disposal "if same, "only to be held to leave the same to the children of our mar." 398. 65. 66. Pabst v. Goodrich \[Vis.\] I13 NUV. ringe when the time comes." Heft did it.r

\*\*67. Where testator gave sister both money claure did not impair previous absolute gift.\[61\] and one-half of residue, codicil disposing of Bollettin v. Bollentin, 109 NYS 21. First share "to children of my sister Sarah J. Adams, deceased; second share to my sister Rebec:ca A. Dean, deceased; and third share to children of my brother Horace Mead, de-

**68. In re Matthews, 122 App. Div. 605, 107**

\*\*69. The mere possession by the testat:r, at the date of his will, of stock of an equal or larger amount than the legacy, will not share. Carroll v. Adams, 105 NYS 967. To trustees of university cf Rochester, with express desire that it should be used for female education in Rochester, under man-

**62.** Direction that trustee who drew will devote any remainder to expenses "or in

**63.** A better or different manner as he may deem best" held not a provision for benefit

**64.** A better or different manner as he may deem best" held not a provision for benefit

**65.** If trustee individually. Abrey v. Duff'ld. 143 Mich. 248, 14 Det. Leg. N. 417, 112 NUV

**66.** Under 'Revisal 1905, $ 3118, requiring

**67.** Under 'Revisal 1905, $ 3118, requiring

**68.** Direction to prevent operation of the

**62.** Direction that trustee who drew will devote any remainder to expenses "or in

**63.** Under 'Revisal 1905, $ 3118, requiring

**64.** Under 'Revisal thereto," but an agreement that a fund shall be an advance on account of any share of donor's estate which shall "pass" to the done applies to property directly passing by will.18 Where the will expressly requires a legatee to account for a specific sum before taking, he cannot show by parol that he received more or less or nothing.74 A note and'mortgage held by testator against a legatee will be presumed to represent a debt, and not to include an advancement referred to in the will.19 A mere reeital that testator had already advanced a liberal share of his estate to his children does not show that a particular tract of land had been advanced.70 An advancement voluntarily paid by a remainderman to a life tenant cannot be recovered from the life tenant's estate.71

\_Support.\_See s C. L. 2236--Resort may be had to corpus if needed and such intent is shown,18 and a beneficiary who is given the right to use so much as she may find necessary may use so much as in good faith she deems necessary.70 Trustees directed to apply so much of a child's share as may be necessary for his support and education have no discretion as to amount, but the question is one for judicial determination.80 Support may be either for life or for a shorter period.81

\_Release of debts.\_See s C. L. 2237

\_Cumulative legacies.\_See s C. L. 2237

\_Vesting_See s C. L. 2237 is favored,82 and words of survivorship will generally be referred to testator's death,83 but testator's express or implied intention to have dis.

72. Money received under previous con- it was not necessary to sell for maintenance. tract providing that same should be treated as advancement on account of share piece held not authorized. Scott V. Scott \[Iowa\] should acquire from testatrix's estate held not chargeable against request to niece. Bowron v. Kent, 190 N. Y. 423, SS 3NE 472.

"manage" estate "for use and support of respectively so where this would impair if not destroy trust in niece's favor. Id.

73. Where it was agreed that a trust fund should be an advance on any share of estate of settlement which should "pass" to defend on settier's death, share passing directly to defendant under setter's will should be reduced by amount of trust fund, but not life income from another trust created by the will. Bowron v. Kent, 120 App. Div. 14, 106 NYS 188.

01. Dodson v. Fulk \[N. C.\] $1 SE 383.

01. Daughter required to account for advancement of $500 and to pay note and mortgage for $868 before recovering her share. Dodson v. Fulk \[N. C.\] $1 SE 383.

Immaterial whether the $500 went into firm of which her husband was member. Id.

76. Especially where there was evidence of other advances. Meurin v. Kopplin \[Tex. Civ. App.\] 18 Tex. Ct. Rep. 601, 100 SWV 984.

01. Advancements were not payable until sons received their share of estate. Hess v. Zahn, 67 Misc. E15, 107 NYS 951.

01. Real estate belonging to a decedent may be sold and the corpus, as well as the income, used for the support of an imbecile son when the language of the will indicates a purpose on the part of the testatrix to provide for the care and support of such son regardless of the interests of the remainder. Riley v. Riley, 7 Ohio N. P. (N. S.) 100.

**Wldew authorized to use corpus.** Champneys v. Braiford \[Mass.\] $1 NE, 993. Where sale was attacked for want of authority, but, den was on attacking parties to show that 10 Cur. Law. WILLS SS 5D. 2067

tribution later will be upheld." While a few cases determinative of whether an estate is vested or contingent \[85\] and, as incident thereto, the time of vesting," are noted below, these questions are elsewhere more fully discussed."

\_Possession and enjoyment.\_See a C. L. 2338--One for whose benefit property is directed to be held for life does not take in possession." A device in remainder entitled to take subject to power of sale in the executor may convey before death of the life beneficiary, subject to the contingency."

\_Individual rights in gifts to two or more.\_See a C. L. 2338--The extent of the interests given being governed by the particular expressions used," it will often be materially affected according as these direct a per capita or a per stirpes distribution."

84. On death or remarriage of widow. In one to be held for her benefit during life, re Carney's Estate \[Ind. App.\] 84 NE 506. she did not take in possession, but as trust 85. Where income is given until the time beneficiary. Hurat v. Weaver, 76 Kan. 758, of division or payment, legacy is vested. WILLS. WILLS construed to vect certain stock absolutely in son authorizing pledge thereof, session on the death of life beneficiary subwhen he was 21. Stiles v. Easton Nat. Bank, jcet to contingency. Van Norden Trust Co. 33 Pa. Super. Ct. 67. Legacles, though v. O'Donahue, 122 App. Div. 51, 106 NYS 948, charged on reality, will not lapse by death of the legates before the time of payment when such time is postponed merely for the \[Pa.\] 69 A. 46. Devise over, of property son to be benefited, though not bequeated if given to two pieces for life, to "their children to legates "and their heirs." Warren's Adm? v. Bronson \[Vt.\] 89 A 655. Property and not of both as a class. In re Carry's held to vect at death of testator in legates and devises, all of whom were adults at time of execution of will, despite survivors-

plaining that they had already received as ship provision in case of death of any one within five years during which there was to other children, though will provided that be no division. In re Phillips' Estate, 56 Misc. after termination of estate for life property 96, 107 NYS 888. Remander to nephews if should go legal heirs and representatives. life tenant should die without issue and leave

Morris v. Watterson \[Ga.\] 69 SE 1045. Property represented by money, stock, and bonds evs upon death of wife or life tenant leav.

ing him surviving, it not being then known

t's five children after widow's death, whether life tenant would leave a widow through clause directing such division may surviving. Chesterfeld v. Hoskin \[Wis.\] have referred only to the cash, where balance would be so divided under residuary clause. Barnes v. Johnston, 233 Ill. 630, 84

ment of legates and making of certain expenditures to divide proceeds among children and issue of deceased children or aur-

91. The phrase "equally to be divided" or "share equally" calls for a per capita distri-

vivors held to postpone vesting until arrival. Provision that children of testa-

val of time for distribution. Barnes v.

tor's sister should "share equally" with his

Johnston, 233 Ill. 620, 84 NE 610. Where brothers called for per capita, and not per

one child died leaving a daughter, she took

sltps distribution. Kaufman v. Anderson, his share free from any claim by mother if

31 Ky. L. R. 888, 104 SW 340. "Share and daughter survived parid of distribution. Id."

"All property to sister for life, and 'imme-

or the lawful bodily heirs of any who may

diately' at her death all such property * * * * * By another

not be living" was original to such heirs

or proceeds, etc., to * * * * By another

and not substitutional, hence they took per

clause executors were directed, in case they

capita, and not per stripes. Hagen v. Hanks

deemed it advisable, to dispose of any part

\[S. C.\] 61 SE 245. A bequest to several in

of reality and invest proceeds in separitis.

Eternal terms gives equal shares. Whittle

Held discretionary with executors to sell

v. Whittle's Exrs \[Va.\] 60 SE 748. A gift

and that, on death of life tenant, real estate to the remain-irman immedi-

such persons and the children of another is

steply." Stebebins v. Turner, 55 Misc. 687,

105 NYS 945. Wills held to give adopted

Resldue "to be divided between T, and har

daughter the income on her portion of t.e.

daughters, in trust to S, and to B, and her

daughters, Wv., J. B., and S.," gave equal

daughter was then 21 years old or not

Sher 148. To grandson for life, but if he

87. See Real Property, 10 C. L. 1448; Prop

"other half to be equally divided betw:n

ulations, 10 C. L. 1167,

88. Where will provided for payment and

distribution of a fund among children,

but subsequent clause required share of

\[N. J. Err, & 2068 WILLS SS 5D. 10 Cur. Law. The right of survivorship will be recognized if provided for in the will,"22 but it may be dependent upon the happening of a specified contingency."23

\_Conditions.\_See 8 C. L. 2230--Restrictions or limitations upon devises should be enforced unless contrary to law." Whether a condition is precedent or subsequent must be determined not from particular words but from the testator's intent as gathered from the whole instrument."25 Words imposing conditions will be given their usual and ordinary meaning."26 Where conditions precedent are imposed, they must be substantially performed,"27 and nonperformance of a condition which must be performed during the life of testator is not excused by the devisee's ignorance of the condition."28 Waiver of a condition precedent to the resting of a devise must generally be shown either by the will or a codicil."29

\_Intent to require election.\_See 8 C. L. 2240--It is presumed that a devise is in addition to dower and the burden is on those asserting the contrary.1 If there is no express declaration that a provision is in lieu of dower, the question is whether such intention must necessarily be inferred from all the terms of the will and surrounding circumstances.29 Under the Tennessee statute, any provision for the wife in her

a testator left his estate to his widow, with the remainder to her heirs, and the widow had children by a former husband, and at her death these children teamre her heirs, the estate goes to them by cevise and not through an intestine, and they take per stripes and not per capita. Eichenlab v. Heschenong, S Oho N. P. (N. S.) 867. Where gift is to several persons or their children, the children will generally take per stripe. Children of daughter dying before testsa: trik held to take per stripes. Guild v. Allen \[R. I.\] 67 A 855. Devise to brother and sister by name "or their heirs," and heirs of testator's two deceased sisters, held to call for per stripes distribution of one-fourth to each \_glass of heirs. Dunhune v. Hurd \[Tex. Civ. App.\] 109 SW 1145. 92. Under Ccde 1849, c. 116, SS 19, and,Code 1887, p 2431, providing that provision abolishing survivorship between joint tenants shall not apply where will shows intent that interest of one devises dying shall belong to the others, will held to show intent to perpetuate home for benefit of wife and daughters, so that surviving daughter took interest of sister who dels. Drake v. P. Blythe \[Va.\] 60 SE 632. Request of 8100 per annum to each of two sisters "or the survivorsor cf them in case of death of either" did not give $200 to survivor. Diggs v. Plunket \[Ky.\] 105 SW 976. Provision that on death of any child his share should go to survivors unless he had heirs did not apply to child dying, leaving husband and child. In re Barclay's Ekstate \[Cai.\] 92 P 1012. 93. Whole residue to survivor of two "(in event of either dying without issue surviving" held not operative on death of one) leaving Issue during testator's lifetime. Disney's Will, 190 N. Y. 128, 82 NE 1093. 94. Court would not terminate trust where testaritz indented that son should not have possession of property until he was 30. Stier v. Nashville Trust Co. (IC. C. A.) 168 F 61. 95. Fullment of contract for carrying on farm during widow's life held a condition subsequent so that title vested in son on testator's death subject to life estate and payment of legacies. Warren's Adm'r v. Bronson \[Vt.\] 69 A 655.

husband's will, either out of real or personal estate, puts her to her election as to dower," but not as to the homestead unless it plainly appears from will that such was testator's intention." Children may be put to an election where the parent bequeaths property belonging to them."

_Charges, exonerations, and funds for payment._ See 8 C. L. 2340.--The personal estate, after deducting specific legacies therefrom, is the primary fund for payment of debts and general legacies," and legacies are not a charge on the land unless the intention that they shall be clearly appears," though the contrary has been held." Where no express trust is created for the payment of legacies and a general residuary disposition of the whole estate is made, the reality as well as the personality will be charged." Whether testator intended to charge legacies or income," and the extent of a charge," are largely matters of construction. A devise conditioned on the pay-

S. To wife all personal proverty and his real estate so long as she remains single. Heald put to election within year. Shannon's Code, # 4146. Channess v. Parrish, 118 legacies, and indicates the intention of tes- Tenn. 739, 108 SW 822,

4. Under Const. art. 11, % 11, and Shan- non's Code, # 3798, husband cannot by will deprive his widow of her homestead right. Channess v. Parrish, 118 Tenn. 739, 103 SW 822. Intention will not be implied from a mere gift by will. Id.

S. Where testatrix bequeathed stock which she believed was here but which in fact belonged to her children to whom she gave other legacies, children taking legacies could not claim stock. Paulus v. Besch, 127 Mo. App. 255, 104 SWV 1149. That testatrix used words "my stock" did not cause failure of legacy so as to relieve children of obligation to elect. Id.

&. Van Gillurve v. Becker, 56 Misc. 157, 106 NYES 1080.

7. Warner v. Bulletn, 128 Ill. App. 128. General legacies cannot be charged upon lands included in a regulatory clause in absence of shown intention of testator to have them so charged. Banker.' Trust Co. v. Dietz, 54 Misc. 159, 106 NYES 32. Where testator at time of execution had more than enough personally to satisfy his probable personal needs, no intent to charge general legacies on the real estate can be inferred from circumstances attending the execution of will. Van Gillurve v. Becker, 56 Misc. 157, 106 NYES 1080. Intention to charge land with wife's legacy held not to appear. Gotehul v. Rust \[DeL.\] 68 A 404. Burden is upon the legate to show such intention. Id. Direction for payment out of the estate not always controlling. Id. Existence of residuary clause is demonstrative evidence of intention to charge legacy on land. Id. "55,000 to named legatee as soon after decease as possible" and in residuary clause "all the remainder in trust" in one part of which the legatee had a contingent remainder. Where there was no power of sale and nothing to show intention to have legacy charged on the real estate held no charge. Banker' Trust Co. v. Dietz, 54 Misc. 459, 106 NYES 32. Where will was silent as to reality in consequence of which testator died Intestate as to but, parof evidence held inadmissible to show intention to charge reality with legacies. Fries v. Osborn, 190 N. Y. 35, 82 NE 716. When intention is clearly shown, legacies' are a charge on the real estate. In re Jones' Eas-

WILIS SS 5D. 2069

husband's will, either out of real or personal estate, puts her to her election as to dower," but not as to the homestead unless it plainly appears from will that such was testator's intention." Children may be put to an election where the parent bequeaths property belonging to them."

_Charges, exonerations, and funds for payment._ See 8 C. L. 2340.--The personal estate, after deducting specific legacies therefrom, is the primary fund for payment of debts and general legacies," and legacies are not a charge on the land unless the intention that they shall be clearly appears," though the contrary has been held." Where no express trust is created for the payment of legacies and a general residuary disposition of the whole estate is made, the reality as well as the personality will be charged." Whether testator intended to charge legacies or income," and the extent of a charge," are largely matters of construction. A devise conditioned on the pay-

S. To wife all personal proverty and his real estate so long as she remains single. Heald put to election within year. Shannon's Code, # 4146. Channess v. Parrish, 118 legacies, and indicates the intention of tes-Tenn. 739, 108 SW 822,

4. Under Const. art. 11, % 11, and Shan- non's Code, # 3798, husband cannot by will deprive his widow of her homestead right. Channess v. Parrish, 118 Tenn. 739, 103 SWV 822. Intention will not be implied from a mere gift by will. Id.

S. Where testatrix bequeathed stock which she believed was here but which in fact belonged to her children to whom she gave other legacies, children taking legacies could not claim stock. Paulus v. Besch, 127 Mo. App. 255, 104 SWV 1149. That testatrix used words "my stock" did not cause failure of legacy so ment of legacies charges the legacies on the property by way of an equitable lien foreclosable in equity as against the device and his grantees.\[12\] A provision charging certain legacies with the debts and exonerating others is valid as between the legacies,\[13\] but does not effect the rights of creditors.\[14\] A claim against another, in terms charged against a legacy, will be treated as a part thereof where its discharge is negatively by the terms of the will.\[15\] Where legacies are charged against both reality and personality and a subsequent grantee of the land covenants to pay them, they become a charge primarily against the land as against him, and those claiming under him.\[18\] A purchaser under an unauthorized sale by the executor will take subject to charges.\[17\] A deed of gift not mentioning an incumbrance and a contemporaneous will reciting the fact of conveyance "subject to the incumbrance thereon" cannot be considered together as a specific devise free of incumbrance.\[18\] One who takes, as heir on testator's failure to make a valid disposition takes subject to any burden imposed by necessity of carrying out valid provisions of the will to the best advantage.\[19\] Children of a remainderman, to whom the estate is devised on the remainderman's death before that of the life tenant, take as devisees free from the claims of their father's creditors.\[20\] A widow as sole devisee is not liable for a claim against the husband's estate for failure of husband to comply with a decree of specific performance unless she receives assets to amount of the claim.\[21\] The executor is a necessary party in a suit to charge a legacy upon devised land.\[22\] Laches may bar relief.\[23\] _Trust estates and inheres\[s. See s C. L. 234\]_--The general subject of trusts is treated elsewhere.\[24\] _Powers of appointment and beneficial powers of sale.\[ See s C. L. 234\]_--A power of the other children, and such payments would equalize shares of all, son was not required to pay interest therein until termination of life estate. In re Hermann's Estate \[Pa\] 69 A 285, Act Feb. 24, 1834, relating to interest on legacies, did not apply. Id.\[\] **12.** Warren's Admar' v. Pronson \[Vt.\] 69 A 655. Under Ky. St. 1903, SS 2066, where will provided that should either of two devices die without leaving issue then her share should go to surviving devisee upon payment by her to husband of deceased devices of a sum named, the husband of the deceased devisee had a lien upon her share of the land to secure payment of sum named. Hoid's Ex' v. Deshon, 31 Ky. L. R. 744, 103 SW 281. Legacies charged on land held a lien thereon until paid and executrix held to hold itin trust for payment thereof. Humphrey v. Hudanl, 233 III. 185, SS 4 NE 203. Unless a contrary intention appears, a devise on condition that devisee pay a sum to another constitutes that sum a charge on the land devised whether devisee accepts or not. Warner v. Bullen, 128 III. App. 138.\[\] **13.** Whitman v. Whitman \[Ind. App.\] 83 NE 520. Wife held to receive one-third free of debts and expenses. Id. Power of sale was given on a particular part of proprity but nothing more showed intention to exonerate such property to payment of debts. In re Bergen's Estate, 50 Misc. 92, 106 NYS 1038. Stock bequathed in trust for lives of wife and daughter held not exonerated from payment of debts in absence of express direction though really over which executors were given general nowar of disposal was sufficient to pay them. Id.

appointment 25 or beneficial power of sale 26 may be either limited,27 general,28 or implied.29 A devise of remainders to one's children "unless otherwise disposed of by will" creates a power which may be exercised only in favor of persons who do not take under the donor's will.30 Power to appoint to one's children does not authorize the limitation of a life estate to them with remainder to the heirs of their bodies.31 General expressions apparently giving a life tenant unlimited power of disposal confers only such power as the life tenant can make consistently with the estate granted.32 A provision that the widow may sell does not authorize fraudulent and simulated conveyances for the purpose of defeating the rights of residuary legatees.83 Mere power or authority to sell is not equivalent to a mandatory direction.34

\_Lapse, failure, and forfeiture.\_See S. C. L. 2342.--A gift may lapse by failure of property or funds,85 or by death of a device,86 or death without issue,87 but by statute in some states, where no provision is made for the contingency of death, the heirs of the devicee will take.88 A devise over after termination of an interest for life will

Footnote 87: Where a son of a testator is being questioned a life in lands, with the remainder to his legal heirs, and the son dies without issue, the remainder falls and the lands go back as undrevised. Miller v., Miller v.

not lapse by death of the life tenant before that of testator,"9 and failure of a trust in testator's lifetime will not lapse remainders unless the trust and residuary disposition are interdependent."

\_Partial invalidity.\_See 8 C. L. 2344.--The valid provisions may be sustained if the general scheme of disposition is not thereby defeated,41 otherwise they fall with the invalid ones.42 Where a devise is void for remoteness, all limitations ulterior to or expectant on such remote devise are also void,43 but where a limitation is to arise upon an alternative event, one branch of which is within and the other is not within the prescribed limits, it will take effect or not according to the event.44 The legal title to property may be vested in trustees regardless of the invalidity of the disposition made of the proceeds,45 in which case a resulting trust may arise in favor of the heirs.46 Receiving benefits under provisions concededly valid does not estop legates from attacking other provisions as invalid.47

sons, and if other son does not survive the wife his share to go to the surviving sons, held to refer to the death of son after that of testator and before death of wife and isnce of deceased son take his share of the devise. H. R. S. 1905, c. 39, $ 11. Pirrung v. Pirrung, 228 Ill. 441, 81 NE 1065. Issue of deceased legate takes subject to latter's debts to testator. Tilton v. Tilton \[Mass.\] S2 NE 704. The provision of the statute of wills, R. S. $ 5921, providing against the failure of a devise, applies to nephews and nieces as a "class" as well as to children as a class. Portefeld v. Porterfield, & Ohio N. P. (N. S.) 654. A husband is not a rel- atve of his wife within the meaning of Rev. St. $ 5971, and property devised by her to him does not, in the event of his prior death, pass to his children by a former marriage but goes to relatives of the wife by blood. Bernhardt v. Pohnhardt, 7 Ohio C. C. (N. S.) 517; Schaefer v. Bernhardt, 76 Ohio St. 443, 81 NE 640. Under the saving clause of R. S. $ 5971, to prevent the be- quest from lapsing, the legate included within the phrase "or other relatives" must be related by blood to the testator and not by marriage. Portefeld v. Porterfeld, 4 Ohio N. P. (N. S.) 654; Schaefer v. Bernhardt, 76 Ohio St. 443, 81 NE 640.

39 Where remainder was to go to testator's relatives. Thompson v. Thornton \[Mass.\] $ 38 NE 850.

40 Where son for whose minority estate was to be held became of age before testator's death. In re Arensberg, 120 App. Div. 463, 104 NYS 1033.

41. Testatrix bequached trust moneys in hands of a trustee to her daughter with a primary purpose of providing for the welfare of the daughter with a limitation over to her child or children, and this limitation over over was void for remoteness. Request to daughter held valid. Quinlan v. Wickham, 233 Ill. 39, 84 NE 28. Will provided that property should not be sold for less than $50,000 in five years and made provision for sale an disposition of property thereafter, but made no mention of price. Held void suspension could be disregarded and other parts given effect. Stewart v. Woolley, 121 Apr. Div. 581, 108 NYS 99. Clause suspending power of alienation disregarded. In re Phillips' Ekstate, 56 Nisc. 96, 107 NYS 388.

VIII sustained so far as concerning trust for benefit of widow and invalid only as to 10 Cur. Law. WILLS SS 5D. 2073

\_Residuary clauses.\_See 8 C. L. 2343.--No particular mode of expression is necessary to constitute a residuary clause.48 A general residuary clause carries the property not otherwise disposed of,49 and the burden is on him who seeks to establish a contrary construction.50 While a clause appointing a "residuary legatee" standing by itself will give such legatee the remaining personality only,61 the question of whether he also takes the reality is controlled by the testator's intention as gathered from the whole will.62 The operation of a residuary clause is not affected by the fact that no other devise is made.63 The lapse of legacies directed to be paid from a particular fund will not throw such legacies within the operation of a clause disposing of the residue of such fund, as distinguished from a general residuary clause.54 Property disposed of in trust goes to the estate of the beneficiary on his death and will not pass under a residuary request.56

\_Property not effectually disposed of_See 8 C. L. 2343 goes intestine,58 but if possible a construction will be adopted which will avoid partial instecay.57 After-acquired

to show that certain provisions were in contravention of statute. In re Durand, 56

before debate did not happen. Twilley v. Misc. 235, 107 NYS 893. A sole her need not renounce a special legacy as a condition to his right to attack other bequests as illegal. Request to concube. Succession of Ethiol, 119 La. 998, 44 S 843.

18. "I will and bequeath the residue" held sufficient to dispose of reality. Barker v. Petersburg \[Ind. App.\] 82 NE 996. Lan-guage in a clause "then to divide the residue and remainder of my estate equally share and share alike to sons" held to be a residuary clause just as much as if in a separate clause, and hence carried all that fell into the residue by lapse, invalid disposali-stour or other accident. Endress v. Willey, 122 App. Div. 110, 106 NYS 726.

01. Where a bequest is made to a certain hospital in trust for the endowment and maintenance of a free bed therein, and 92 P 184. A residuary clause which before the executors make the allotment the hospital ceases to exist, the amount of the bequest becomes a part of the residuum of the estate and passes to the residuary before the residue as against the heirs where the re-siduary clause. Walton v. Walton \[N. J. Eq.1\]

67 A 397. Where a trust is invalid, the property goes intestine regardless of testeqty's intention to disimberit his heirs, Campbell-Kavannanakoa v. Campbell \[Cal.\]

maintenance of a free bed therein, and 92 P 184. A residuary clause which before the executors make the allotment the hospital ceases to exist, the amount of the bequest becomes a part of the residuum of the estate and passes to the residuary before the residue as against the heirs where the re-siduary clause provides that the "rest and residue of my property of whatever kind"

shall go to the residuary legate. McCrosskey v. McCrosskey, 6 Ohio N. P. (N. S.) 121.

Where will provided for disposition of remainder as provided in another paragraph, which had no provision for disposition of

vild provisions of will to best advantage.

sech property, same passed as residuc. Barnes v. Johnston, 233 Ill. 620, 84 NE 610.

240.

Residuary clause constructed to include and pass testatrix's distributive share in trust

57. Connor v. Gardner, 230 Ill. 258, 82 NE

640; Ross v. Ayrhart \[Iowa\] 115 NWV 906;

fund for sister's life passing an intestate property on sister's death under will of

father. In re Howland, 110 NYS 759.

50. McCrosskey v. McCrosskey, 6 Ohio N. P. (N. S.) 121.

01. Damn v. Canfield \[Mass.\] 84 NE 117.

01. Residuary legatee held to take reality

01. Dann v. Canfield \[Mass.\] 84 NE 117.

01. In the property will pass where this clearly appears to have been testator's intention.\[58\] A widow's renunciation of a provision in lieu of dover does not necessarily render the remaining property intestate.\[59\]

(8 5) E. Of terms respecting administration, management, control, and disposal.\[50\] & C. L. 2344.-The particular terms of the will must be looked to in determining the existence of powers of sale \[60\] and trusteeships,\[61\] their character,\[62\] extent\[63\] and

\[\]
duration,64 and the powers 68 and duties 69 of the executors or trustees. A personal

well as the terms of the will. Will held to require sale of remainder interest only on bond being given by wife. Marx v. Huley \[Mass.\] $3 NE 91L. Codic1 construed to re-quite executors to alate buildings and make ecutore could sell construed. Lembbeck v. Lembbeck \[N. J. Eq.\] $8 A 337. Lembbeck \[N. J. Eq.\] $8 A 337. Lembbeck \[N. J. Eq.\] $8 A 462.

64. Where the corpus of the estate is dItected to go to children at widow's death, power to sell and reinvest for increased income will be limited to widow's lifetime. WIII construed to limit executors' power of sale to lifetime of widow. Tucker V. Baldi-win \[N. J. Eq.\] $6 A 28. Executors held without power to sell after devises had conveyed part of their interests. Van Nor-den Trust Co. v. O'Donohue, 122 App. Div. $51, 106 NYS 948. Power of partition to executors is lodged in them for a reasonable time after testator's death. Action of partition will not lie until executors have had a reasonable time within which to make partition. Fischer v. Butz, 224 Ill. $79, 79 NE 659. Full power and control of all lands until the youngest child became of age gave trustee power to repair and keep premises in good condition and not only use renta and profits for maintenance of minor children. Berry v. Stigall, 125 Mo. App. 264, 102 SW SW 585. Executors held to have no power to make a lease beyond time allowed in will. Lease good during life of life ten-ant, but no longer, although executed for period of twenty years. Van Norden Trust Co. v. O'Donohue, 122 App. Div. $51, 106 NYS 948. Testator devised real estate only and left personality undisposed of, but appointed an executor. Held that by centuring all provisions of will intention was clearly shown that executor should administer personality. In re Maccaffl, 57 Misc. 264, 107 NYS 1115. One clause directs trustees to take charge of real estate, "collect rente and income thereof, etc.", and another di-reacts them to take charge of stove business and "foundry in Brooklyn." Held that clauses should be read together, and since foundry was a necessary incident to business used by trustees, they were not re-quifed to charge business with rental value thereof. In re Froehich's Estate, 122 App. Div. 440, 107 NYS 173. Executors held required to sell all of certain stock (Lembbeck v. Lembbeck \[N. J. Eq.\] $8 A 337), but retain certain stock long enough to guarantee certain income to wife. Will held to require conversion of all property by executors into money as necessary to distribution. Harris v. Ingalls \[N. H.\] $6 A 34. Direction to executor to sell testator's land "as soon as the same can be done without sacrifice" refers to time when land can be sold, and does not leasean executors' means.

Win re Branch's Estate, 123 Mo. App. $73, 100 Every $16. Provision with respect to disposal of dividends by executors. Lem-beck v. Lembbeck \[N. J. Eq.\] $8 A 337. Direction that homeseda, with its furniture and necessary provisions, be held for the use of wife and the other members of the family, held to require trustees to keep up and repair. homesetead and furniture and fur- and discretionary power of sale in the executor may not be exercised by an administrator with the will annexed." The executor is the proper custodian of funds which he is directed to hold and control." After disposition to specified persons, a devise of the same property to the executor for the payment of legacies and debts with discretionary power of sale does not vest title in him." Where a testator directs that on the happening of a designated event there shall be transferred to a legate shares of stock representing a book value of a specified amount, stock of the corporation purchased by itself and held as assets must be included in determining the number of shares necessary to represent the book value called for." A direction that the executor manage and divide the estate without going into court or taking letters is invalid." A provision assuming to appoint attorneys for the executors is not binding on the latter."

(SS 5) _F. Abatement, adaption, renunciation and satisfaction._ See * C. L. 2845. The estate being insufficient to pay legacies in full, they should abate proportionately," but specific legacies are not subject to abatement with general legacies." Specific legacies are not abated by a widow's election against the will where this contemplates their payment in full before division among residuary legatees." In case

Goodridge, 52 Misc. 238, 103 NYS 36, Testitrix by her will gave, besides several spe-

\[Mass.\] 83 NE 880.

cific legacies, two legacies to certain church

\[M. Coann v. Culver, 188 N. Y. 9, 80 NE societies, five legacies to her nephews and

\[82.

nicees, one to her "faithful maid," and one to plaintiff. These legacies were pecuniary

\[83.

\[70.\] \*\*65. Where will constituted executor's trustees to hold and control legacy to an

\[83.

\[71.\] **71.** Sevier v. Woodoon, 205 Mo. 202, 104 pieces) "shall be reduced rably or if

\[83.

\[72.\] **72.** Properly regarded as expression of

\[83.

\[73.\] **83.** O'Donnell v. McCann \[N. J. Eq.\] 68 A

\[83.\] **752.** It is not sufficient to prevent abate-

\[83.\] **83.** O'Donnell v. McCann \[N. J. Eq.\] 68 A

\[83.\] **752.** It is not sufficient to prevent abate-

\[83.\] **83.** O'Donnell v. McCann \[N. J. Eq.\] 68 A

\[83.\] **83.** A.\*\* It is not sufficient to prevent abate-

\[83.\] **83.** O'Donnell v. McCann \[N. J. Eq.\] 68 A

\[83.\] **83.** It is not sufficient to prevent abate-

\[83.\] **83.** O'Donnell v. McCann \[N. J. Eq.\] 68 A

\[83.\] **83.** It is not sufficient to prevent abate-

\[83.\] **83.** O'Donnell v. McCann \[N. J. Eq.\] 68 A

\[83.\] **83.** It is not sufficient to prevent abate-

\[83.\] **83.** O'Donnell v. McCann \[N. J. Eq.\] 68 A

\[83.\] \*\*83.

10 Cur. Law. - WILLS SS 5G. 2007

of devastavit, the loss should be borne stably by specific and residuary legatee.'\* Unbequeathed personalty goes to pay debts before devised reality.\[17\]

\_Ademption.\_See 8 c. L. 2245.--While a subsequent payment to a legatee or a contract made for his benefit is presumed an adaption of the legacy pro tanto where testator stands in loco parentis to the legate,\[18\] such presumption does not obtain where that relation does not exist,\[19\] in the absence of proof that satisfaction was intended.\[80\]

_Renunciation.--A_ devisee may renounce the devise however beneficial it may be to him,\[81\] in which case the renunciation will relate back to the time of the gift.\[82\]

\_Satisfaction of debts by legacies.\_See 8 c. L. 2545.--After judicial reduction of a universal legacy given by a will which does not recognize any debt due the legatee, the latter may not claim as creditor.\[82\]

(SS 5) \_G. Proceedings to construe wills.\_See 8 c. L. 2346.--A court of equity has no inherent power to construe wills,\[34\] such jurisdiction being exercised only to insure the correct administration of some power or trust created by the will;\[38\] hence it will not attach where the time for action has not yet arrived,\[38\] nor where there are no difficult or doubtful questions to be determined.\[87\] Equity will not construe a will

76. Executor with power of sale sold tes-

Jurisdiction on some recognized ground of tator's real estate and converted proceeds,

SAF 590. If in an equity suit a question peculiary legacies, and such proceeds were

arises as to validity of a devise, court may only available fund for payment. Farmers'

Louan & Trust Co. v. McCarthy, 57 Misc. 413,

either by action or by reference, for an

107 NYS 928.

77. Unbequeathed one-ninth of proceeds

of reality. Gilson v. Gilson, 11 Ohio C. C.

(N. S.) 49.

78. In re Youngerman's Estate \[Iowa\] 114

NNV 7.

79. Legacy to testatrix's grandson of $500

a year to complete a course of education

held not adeemed by her contract with

father that if he would pay son's board and

todging at school she would pay for books,

tution and clothing. In re Youngerman's

Esstate \[Iowa\] 114 NWV 7.

80. Intention to satisfy ls sufficiently in-

dicated if subsequent benefit is the same as the testamentary one, or is in terms made

a substitute, or is ejostam generis (In re

Youngerman's Estate \[Iowa\] 114 NW 7), but

a legacy for education generally is not

ademed by a contract with legatee's father to pay for books, tution and clothing at a

particular school (Id.).

81. Bradford v. Calhoun \[Tenn.\] 109 SWV 602.

01. Displacing creditors' levies. Bradford

v. Calhoun \[Tenn.\] 109 SWV 502. Rennnelation not fraudulent as against existing creditors. Id.

83. Where in a litigation between a person named as universal legatee and the hers at law the legacy is reduced to one-

tenth of the estate, payable from the movables, and the will does not purport, and is

not held, to recognise any debt due the legatee, it cannot have that effect attributed to

It in support of a claim afterwards set up

by the legate as a creditor for services

rendered testator. Succession of Landry

\[La.\] 45 S 609.

84. Yoshail v. Clark, 108 NYS 813. Construction of wills is not of itself ground of

equity jurisdiction, but only incident to

76. Executor with power of sale sold tes-

Jurisdiction on some recognized ground of tator's real estate and converted proceeds,

equity jurisdiction. Hart v. Darter \[Va.\] 58 making assets insufficient to pay specific

SE 590. If in an equity suit a question

pecunary legacies, and such proceeds were

arises as to validity of a devise, court may

only available fund for payment. Farmers'

hold bill and have question settled at law,

Loan & Trust Co. v. McCarthy, 57 Misc. 413,

either by action or by reference, for an

107 NYS 928.

97. Unbequeathed one-ninth of proceeds

of reality. Gilson v. Gilson, 11 Ohio C. C.

66 A 1087.

(N. S.) 49.

78. In re Youngerman's Estate \[Iowa\] 114

Equity cannot be compelled to construe a

will except as incident to some relief which

may be afforded by final decree (Kelogg v.

a year to complete a course of education

Burnett \[N. J. Eq.\] 69 A 196), nor will it

give counsel and advice to the parties gen

father that if he would pay son's board and

today the purpose of

boding of such sole would pay for books,

tution and clothing. In re Youngerman's

Esstate \[Iowa\] 114 NWV 7.

80. Intention to satisfy ls sufficiently in-

diated if subsequent benefit is the same as pending proceedings for re-examination of probate,"88 nor where the rights of the parties can be determined in ejecment,"89 nor where a final decree of distribution has been made from which appeal lies."00 A bill not alleging any dispute as to construction, nor containing any prayer therefor, cannot be sustained as one to construre a will."91 The court should, whenever possible under the issues made and presented, finally dispose of all questions relating to the distribution of the property." The rights of contingent remaindermen not in esse may be adjudged where the remaindermen in esse are made parties as representatives of the class."03 Costs may be awarded from the share of an unsuccessful legate," but an order directing costs of appeal to be paid out of the estate is invalid where appellants would receive nothing if the decree should be affirmed and some distribuetes are not parties."05

SS 6. \_Validity, operation and effect in general.\_See & C. L. 2344--Provisions which are contrary to public policy will not be recognized."08 The will passes the property on the death of the testator," but where contest proceedings are compromised pursuant to statute and the property distributed accordingly, the compromise rather than the will must be deemed to have passed the property."08

\_What law governs.\_See & C. L. 2347--The rights of the parties will be governed by the law in force at testator's death."09 The lex rei siae governs as to the construction of a devise,1 the laws of testator's domicile being considered only for the purpose of arriving at testator's intention.2 A will valid and duly probated in one state gives good title to personalty in another state though invalid in the latter state." The Mississippi statute merely dispenses with formal proof of due execution of foreign wills duly probated in other states." The will itself is treated as an original one and the rights of the parties must be derived from its terms administered according to the law of that state so far as affecting property therein."

Winding UP Proceedings; Withdrawing Evidence; Withdrawing Pleadioses on Files, see latest topical index.

88. Gebhard v. Lenox Library \[N. H.\] 68 A into court or taking letters testamentary is vld. Sevier v. Woodoon, 205 Mo. 202, 104 SWV 1.

01. Warren v. Warren \[Mich.\] 14 Det. Leg. N. 869, 114 NWV 867.

01. Hall v. Lawton, 80 Vt. 535, 68 A 657.

01. Partition bill subject to dismissal as involving question trlable at law. Warren v. Warren \[Mich.\] 14 Det. Leg. N. 869, 114 NWV 867.

01. Williams v. Williams \[WIs.\] 115 NWV 842.

01. Sult held purely equitable with view to partition or removal of cloud and res judcata as to son's ability to give good title. Hunt v. Gower \[S. C.\] 61 SE 218.

01. Costs properly allowed from share of unsuccessful legate, sole issue being whether she should take in possession or receive as trust beneficiary. Hurst v. Weaver, 76 Kan. 708, 80 P 297. Widow's share of estate held properly charged with share of litigation to construit will which she unsuccessfully resisted. Giger v. Bishop, 231 III. 472, 83 NB 283.

01. Boyce v. McLeod \[Md.\] 68 A 135.

01. A clause directing executor to manage, hold and divide an estate without going 10 Cur. Law. WITNESSES $ 1. 20079

WITNESSES. ,

- 6 1. Capacity and Competency of Witnesses, in General, 2079. Insanity, 2080. Children, 2080. Persons Accused or Convicted of Crime, 2081. Persons Acting In Official Capacity at Trial, 2081. 2. Disqualification on Ground of Interest, 2081. 2. Disqualification of One Party to Transaction or Communication, on Death or Disability of the Other, 2082. 4. Privileged Communications, and Persons in Confidential Relations, 2089. A. Attorney and Client, 2089. B. Physician and Patient, 2091. C. Husband and Wife, 2092. D. Miscellaneous Relations, 2095.

The competency, materiality, and relevancy of testimony,6 the manner of eliciting same from witnesses,7 and the qualification and examination of experts,8 are treated elsewhere.

$ 1. \_Capacity and competency of witnesses in general.\_See S C. L. 2847_Personal knowledge of the facts to which he is called to testify is essential.9 This question is one addressed largely to the discretion of the trial judge.10 The incompetency or of an assessment for a local improvement is directly attacked in a court of equity, the members of the assessment board are competent witnesses to the method used in fixing the assessments on particular pieces of property. Kirst v. Street Imp, Dist. No. 120 \[Ark.109 SVF 626. In personal injury action, plaintiff is competent to testify to h's condition after the injury. Shav v. High-hand Park Mrg. Co. \[N.C.\] SS 5E 67. Shav-ager of partnership, who was not a member of the firm, competent to testify that certain person was a member, when he had personal knowledge of the fact. Rice v. Muskegon, 150 Mch. 679, 14 Det. Leg. N. 820, spark arresters to make engines steam better. Liftcher Wall Paper Co. v. Pennsylvania is a collection of techniques, but only such knowledge can be found to be used to identify to dutties of subforeman. New England Tel. & T. Co. v. Butler \[C. C. A.\] 156 F 321. Testimony of press. Ident of corporation that a memorandum in his possession showed certain sales inadmissible when he did not make the memorandum at the time of the sales and had no personal knowledge concerning them. Joslas v. Nivolis, 5E Misc. 557, 107 NYS 15. Where, in homolfe case, there was a com-dict as to whether deceased was shot in the back, it was proper to exclude the testimony of a witness on the issue whose only knowledge was based on seeing the undertaker probe the wound. Earles v. plcion against a woman, having lived in State (Tex. Crp. Appl.) 20 Tex, Ct. Rep. 522, same town with her all his life. Smitley 106 SSV 188. Where witnesses offered to prove contents of writing, shows that he does not know its contents, his testimony is properly rejected. Smith v. Texas, etc., 105. C. (Tex. Cyr. Apppl.) 20 Tex. Ct. Rep. 66, 105 SSV 528. Certain witnesses held qualified on question of value of goods destroyed by free. Furlong v. North British & Mercantile Ins. \[Town\] 113 NWP 1084. Where the validity was assessed.

WITNESSES. ,

- 2. Accuation and Conviction of Crime, 2101. C. Interest and Blas of Witnesses, 2102. D. Proof of Previous Contradictory Statements, 2103. E. Foundation for Impeaching Evidence, 2105. F. Corroboration and Sustentation of Witnesses, 2107. S. Privileges, 2109. S. Privileges et Witnesses, 2109. D. Miscellaneous Relations, 2095.

The competency, materiality, and relevancy of testimony,6 the manner of eliciting same from witnesses,7 and the qualification and examination of experts,8 are treated elsewhere.

$ 1. \_Capacity and competency of witnesses in general.\_See S C. L. 2847_Personal knowledge of the facts to which he is called to testify is essential.9 This question is one addressed largely to the discretion of the trial judge.10 The incompetency or of an assessment for a local improvement is directly attacked in a court of equity, the members of the assessment board are competent witnesses to the method used in fixing the assessments on particular pieces of property. Kirst v. Street Imp, Dist. No. 120 \[Ark.109 SVF 626. In personal injury action, plaintiff is competent to testify to h's condition after the injury. Shav v. High-hand Park Mrg. Co. \[N.C.\] SS 5E 67. Shav-ager of partnership, who was not a member of the firm, competent to testify that cerroboration was a member, when he had personal knowledge of the fact. Rice v. Muskegon, 150 Mch. 679, 14 Det. Leg. N. 820, spark arresters to make engines steam better. Liftcher Wall Paper Co. v. Pennsylvania is a collection of techniques, but only such knowledge can, condition after the injury. Shav v. High-hand Park Mrg. Co. \[N.C.\] SS 5E 67. Shav-ager of partnership lack of qualification of a witness may be waived by failure to make timely \[11\] and proper \[12\] objection. A party who has used a witness in making his own case waives objections to the competency of the witness.\[13\]

In Wisconsin a statute provides that no person shall testify in a professional capacity as a physician or surgeon, or insanity expert, unless he has complied with the statutory provisions regulating the practice of medicine.\[14\] This statute is held to apply only to expert testimony, and does not exclude testimony on subjects not within the field of an expert, though the witness has not complied with the statute.\[15\]

_Insanity._ See s C. L. 2351--A person who has been adjudged insane is not of necessity incompetent as a witness.\[16\] His testimony is admissible if he has sufficient understanding to apprehend the obligations of an oath and to be capable of giving a correct account of the matters he has seen or heard in reference to questions at issue,\[17\] and whether he has that understanding is a question to be determined in each case, the weight to be given his testimony if admitted, being finally a question for the jury.\[18\] Where there is nothing in the examination of a witness to indicate insanity, the burden is upon the party against whom he is offered to prove him insane.\[19\]

_Children._ See s C. L. 2349--The capacity of a child to give testimony is a question addressed to the sound discretion of the trial court,\[20\] the tests applied being general intelligence, capacity to receive and convey just and true impressions of facts,\[21\] and appreciation of the distinction between truth and falsehood, and the penalties attaching to a failure to testify truthfully after being sworn.\[22\] It is not essential that the child should understand the meaning of the terms "oath" and "testimony" if otherwise competent.\[23\] It is held that every person over fourteen years of age is

trial court. Sprague v. Wisconsin Cent. R. Co. \[Minn.\] 116 NW 104.

**11.** Objections to qualifications of prosec-eutrix as witness waived, where not raised at trial. Children v. State, 15 Tex. Cr. App. 455, 19 Tex. Cr. Rep. 329, 103 SW 864.

**12.** Evidence may be competent though the witness by whom it is offered to prove it is incompetent; an objection must in such case be made to the competency of the witness when offered, or it is waived. Milburn v. Robinson \[Mo. App.\] 110 SW 588.

**13.** A party who has used a witness in making his own case cannot thereafter object that he is disqualified to give similar testimony for the other party. W. E. Caldwell Co. v. Steckel \[Iowa\] 112 NW 229. If a witness be incompetent, and if the party insisting on his incompetency nevertheless examin~h m on new matter not brought out or touched on in chief, then, as to such new matter, his incompetency is waived. McCune v. Goodwillie, 204 Mo. 306, 102 SW 997.

**14.** Laws 1903, c. 426.\*\* Hocking v. Windsor Sproing Co., 131 Spring Co., 131 Wts. 532, 111 NWW 685.

**15.** Hocking v. Windsor Spring Co., 131 Wts. 532, 111 NWW 685.

**16.** Cuesta v. Goldsmith, 1 Ga. App. 48, 57 SE 983.

**17.** Cuesta v. Goldsmith, 1 Ga. App. 48, 57 SE 983. The degree of insanity required to render a person incompetent as a witness is such as to render the person incapable of receiving or retaining just impressions of the transactions concerning which he is to testify, or of narrating the same Intelligibly, or of understanding the nature and obligation of an oath. Hatterton v. State \[Tex. Cr. App.\] 107 SW 826.

**18.** Cuesta v. Goldsmith, 1 Ga. App. 48, 57 SE 983.

**19.** Court properly so charge. Hatterton v. State \[Tex. Cr. App.\] 107 SW 826.

**20.** People v. Collins, 5 Cal. App. 654, 91 P 158; State v. Meyer \[Iowa\] 113 NW 322.

**21.** People v. Collins, 5 Cal. App. 654, 91 P 158. Child of six competent, when found capable of receiving just impressions. of facts and of understanding them so as to tell her version of them. Id.

**22.** If infants under fourteen have a clear-apprehension of the penalties which may fall upon them in this life and the punishment which will await them after death 1f, after being sworn, they fall to testify truthfully, they should be allowed to testify, if mentally competent. State v. Labriola \[N. J. Err. & App.\] 67 A 386. Child of nine years held competent, it appearing to have sufficient knowledge of character, obliga-tion, and effect of oath. McLaIn v. Ch1-12, 1271. App. 489.

**23.** If a child adequately understands the impropriety of falsehood and is capable of giving an intelligent account of a transaction, she is competent, though she does not understand the meaning of the words "oath" and "testimony." State v. Meyer \[Iowa\] 113 NW 322. See this case for numerous illustrative cases \[Ed.\]. Colored witness fourteen years old, who could read: and write, went to Sunday school, knew presumed to be competent,\[24\] and that, in the case of children under fourteen, there is no presumption as to their competency, but their capacity to testify is to be determined, upon an examination, by the trial court,\[28\] whose decision in regard thereto is not reviewable on error unless it is plainly shown to have been made without evidence to support it.\[24\] The unsworn testimony of a child of tender years is inadmissible in the absence of a statute making such testimony competent.\[27\]

_Persons accused or convicted of crime_,\[See $ C. L. 2350--The common-law disqualification of a person to testify, who has been convicted of an infamous crime, has been removed by statute in many states,\[28\] though conviction for perjury still disqualifies; in some jurisdictions and conviction of crime may be shown in many as affecting the credibility of the witness.\[29\] Statutes disqualifying witnesses on account of conviction of crime have no extra-territorial force,\[30\] and a crime against the statutes of another state does not disqualify the witness in the state where he is offered.\[31\] A statute providing that one convicted of crime shall be competent as a witness is not retrospective in operation so as to make competent person previously incompetent.\[32\] Under the Federal act defining perjury, and disqualifying as a witness one convicted of the crime,\[33\] a conviction must be shown to disqualify a witness; mere proof of facts necessary to convict is not enough.\[34\] In Texas one jointly indicted with another is incompetent in the trial of his codefendant.\[35\] Under the Indiana statute providing that, where two or more persons are included in one prosecution, the court may, at any time before a defendant has entered upon his defense, order his discharge that he may testify for the state, one of two persons charged with conspiracy may be discharged and may testify for the state.\[36\] Conviction of crime must be shown by the record.\[37\]

_Persons acting in official capacity at trial_,\[See $ C. L. 2350--Grand jurors are competent to testify to some matters accruing before them.\[38\] The exemption of common-law jurors is held not applicable to members of the appeal tax court in Maryland.\[39\]

_SS 2. Disqualification on ground of interest_,\[See $ C. L. 2351--Although parties to the suit, and their wives are disqualified by the Illinois statute,\[40\] interest in the event

\\begin{tabular}{l l} State \[Tex, Cr. App.\] 110 SWV 54. & dicted for same offense as defendant, but \\
**24, 25, 26.** State v. Labriola \[N. J. Err. & App.\] 67 A 386. & not tried, was held incompetent as a wit- \\
**27.** Unsworn testimony of child seven and & 19 Tex, Ct. Rep. 701, 103 SWV 1128. \\
**36.** Constrating Acus 1995, & 169, & 241. \\
**37.** Curcial or crime of perjury disqualifies in Washington, in the absence of a reversal or pardon, but there is no other disqualification of this kind. State v. Katon \\
**\[Wash.\] 91 P 250.** Under Civ. Code, 1907, \\
**5** 1795, only conviction of perjury or sub- \\
**ornalon of perjury disqualifies a witness.** \\
\*\*Wyrme v. State \[Ala.\] 46 S 459. & 29. See post, & 5B, 2. \\
**30.** State v. Landrum, 127 Mo. App. 653, & 106 \\
\*\*SWV 1111. & & \\
**S1.** Gen. St. 1865, c. 201, & & 66, disqualifying \\ as witnesses persons convicted of certain \\ offenses, does not disqualify in Missouri one \\ convicted of crime in Indiana. State v. Landrum, 127 Mo. App. 653, & 106 SWV 1111. \\
**32.** One convicted and disqualified under \\ Gen. St. 1865, c. 201, & & 66, is not made complement by Rev. St. 1879, & 1378 and Rev. St. \\
\*\*1899, & & 4680. State v. Landrum, 127 Mo. App. 655, & 106 SWV 1111. \\
**33.** U. S. Rev. St. & 5425. O'Leary v. U. S. \\
\*\*\[C. C. A.\] 158 F 796. & \\
**34.** O'Leary v. U. S. \[C. C. A.\] 158 F 796. & \\
**35.** In nonliedic case, another person in- \\
\*\*10 Curr. L. 131. & \\
**36.** A. C. L. 2350--Grand jurors are comm- \\
**37.** The exemption of common-law jurors is held not applicable to members of the appeal tax court in Maryland.\[39\] \\
**38.** & \\
**39.** & \\
**30.** & \\
**31.** & \\
**32.** & \\
**33.** & \\
\*\* of the suit does not as a general rule, now render a person incompetent as a witness, except in the cases discussed in the following section,\[41\] though interest may be shown to affect the credibility of the witness.\[42\] However, in some states no person shall testify for himself in chief in an ordinary action after introducing other testimony for himself in chief, nor in an equitable action after taking other testimony for himself in chief.\[43\] Spotters, detectives, or hired informers are competent witnesses for the state in criminal prosecutions.\[44\]

SS 3. \_Disqualification of one party to transaction or communication, on death or disability of the other.\_See S. C. L. 2351...The disqualification of a party or other interested person to testify as to conversations or transactions with a person since deceased or who has become insane, or with a minor, is regulated entirely by statutes, which vary in the different jurisdictions. Such statutes should not be extended so as to disqualify persons or testimony not necessarily included within the terms of the statute\[45\] but should be strictly construed in favor of the witness.\[44\] Statutory provisions of this kind apply in suits in equity as well as in actions at law,\[47\] but not in a controversy over the probate of a will, and in such suit devisees are competent witnesses\[48\] and the propounders of the will are competent to prove that it was duly signed and attested.\[49\]

\_The adverse party, or party against whom the witness is offered, must ordinarily represent the decedent, or derive his interest from the decedent, or person under disability.\_See S. C. L. 2351....Illustrative applications of this rule are given in the note.\[50\] A

Wickes v. Walden, 228 Ill. 56, 81 NE 798.

10 Cur. Law. WITNESSES SS 3. 2083

party is not incompetent to give testimony in favor of the estate, \[91\] or aiding proof preliminary to admission of books of original entry. \[62\] It is held that, where there were several parties to the contract out of which the controversy grew, testimony regarding transactions between parties whose rights may be adjudicated without affecting the estate of the deceased, also a party to the contract, is admissible. \[8\] In an action against a corporation, based on the act of one of its employees, the death of the employee does not disqualify the plaintiff. \[9\]

_Persons disqualified_ See 5 C. L. 2852 by statutes of this character are parties to the action, interested therein, \[96\] other persons not parties interested in the event of

1 2, having no application. Oswald v. Nehls, who had received machinery from one of the partners, since deceased, may testify for the adverse party that he purchased the machinery at a certain price, the only is-one being whether he paid a certain sum to deced, and recovery of the machinery not being sought; Civ. Code Proc. 1 606 does not apply, nor does subrec. 7, relating to assignments, apply. Boreing v. Wilson party, is not interested. Code, 8 4604, construed. City Nat. Sk. of Marshaltown v. 52. Heid. In case where defendant is ad-crahan \[Iowa\] 112 NV7 973. \[Miehigan\] Deceded took out an insar-amater, claims mother being beneficiary. After his death, his widow claimed money under alleged agreement of her husband prior to enter. R. Co., 88 Ark. 210, 103 SW7 176. For marriage to take out the policy in her favor. Heid, mother took under deceased, and his widow, complainant, could not testify to contract with husband. Franken v. Supreme Court I. O. F. \[Mich\], 15 Det. Leg. N. 245, 116 NW7 188. \[Montana\]: Where an administrator used to recover a portion of a mining claim on the ground that the intestine's dead was indefinite and inoperative, defendants' claim under the ded was not a claim against the estate so as to make them incompetent to testify to transactions occuring prior to in-tesate's death. Collins v. McKay \[Mont\] 92 P 295. \[New Jersey\]: Where certain parties, if brought in, could be made partless defendant, their testimony-as to transactions will be acknowledged. R. Co. \[Mo. App.\] 107 SWV 478. \[N. J. Eq.\] 68 A 914. \[Texas\]: In a unit of trespass to try title, which had been dismissed as to one defendant, the her and grantee of deceased, state-ments of deceased were admissible. McKeon v. Roan \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 317, 106 SWV 404. \[Wisconsin\]: Under St. 1898, $ 4068, persons from, through, or under whom a party derives his interest or title are precluded from giving evidence of a transaction or communication with a deceased person in a cause of action wherein the other party derives his interest or sustains his liability to the cause of action from, through, or under such deceased person. Dreger v. Budde \[Iwis.\] 113 NW 950. \[S. Continental Casualty Co. v. Maxwell\]: 127 Ill. App. 19. Widow may testify in favor of husband's estate. Gregory v. Essate of Gregory, 129 Ill. App. 96. Heid administrator is competent witness in favor of estate, whether interested in result of suit or not. Continental Casualty Co. v. Maxwell, 127 Ill. App. 19. A defendant in a proceeding to settle partnership accounts, the action,84 and persons from whom a party derives his interest.87 The assignment

up to execution of mortgage. Code, # 4604.

Whilev v. Johnson \[Iowa\] 113 Nwv 550. In partition, defendant denied plaintiff's interest in the property and claimed to have purchased such interest from plaintiff's father, since deceased. Held, defendant could not testify to the alleged transaction with decedent. Hogg v. Combs, 28 Ky. L. R. 559, 93 SWF 670. In action by administrator to recover value of decedent's support from son-in-law, to whom land had been conveyed in consideration of such support, the son-in-law was an incompetent witness against the escalate, and his testimony that he considered the agreement for support as a mere gratuity was not to be considered. Bryson's Adm? r. Biggs \[Ky.\] 104 SWF 982. Under Civ. Code Prac. $ 606, providing that a party may not testify for himself concerning the net or omission of one who is dead, plaintiff, in action for injuries received in runaway caused by train, cannot testify as to acts or omissions of the engineer. Illinois Cent. R. Co. v. Martin \[Ky.\] 110 SWF 815. A claimant against an estate is not competent under Civ. Code Proc., $ 606, subsec., 2 to t:s-tify to any transaction with deceased concerning which he was not questioned by the executor. Preston v. Atkinson \[Ky.\] 106 SWF 213. In a suit by the grantor to rescend her deed after the death of the grantee, the grantor is incompetent to testify as to the consideration for the deed so far as it involves anything said or done or omitted to be done by the grantee. Curd v. Bowron \[Ky.\] 105 SWF 417. Where plaintiff, grandchildren of decedent, sued to enforce a contract made with decedent by their mother for their benefit, they, being parties in interest, were disqualified to testify to transactions or communications with decedent, but their mother, not being interested, was incompetent. Atkinson v. Hardy \[Mo. App.\] 107 SWF 466. Under Laws 1900, p. 363, $ 4, complaminant in an action against the executors of her deceased half-brother on a claim against him arising out of a transaction in connection with their father's will is incompetent to testify to a conversation between the two decedents. Heinisch v. Pennington \[N. J. Eq. \] 68 A 233. In an action against the representative of a deceased person, founded on an alleged contract between plaintiff and deceased, plaintiff is incompetent to prove delivery of conflict, execution and delivery of which is denied. Russell v. Close's Estate \[Neb.\] 112 Nwv 559. Defendant in element claimed possession as tenant by the curtesy of his deceased wife, and plaintiff as dexiese under her will. Held, defendant's claim was adverse to the wife's right, and he was not a competent witness to facts occurring before her death, under Act May 23, 1887 (P. L. 159, $ 6). Munson v. Crookston \[Pa.\] 68 A 882. One sun ; as heir of the grantee to recover land cannot testify to declarations of the grantee that the deed was a deed of gift, though reciding a consideration of $2,000. Wolf v. King \[Tex. Civ. App.\] 107 SWF 617. In suit to quiet title against one who claims an undivided one-half of the land in question as heir of his mother, who became plaintiff's wife prior to his acquial-

## 10 Cur. Law. WITNESSES SS 3. 2085

of a claim by a person who would be incompetent except for the assignment will not render him competent,\[88\] and a stockholder in a bank cannot testify to a transaction with a creditor, since deceased, in an action by the administrator against the bank, notwithstanding the assignment of his stock subsequent to the transaction in question.\[89\] Employes or agents of a corporation which is a party are not usually held disqualified.\[86\] To render a witness incompetent under the Indiana statute, he the wife, who executed the deed with her husband, was held an interested witness and the same was rescended and witness incompetent to testify against the trust as at the time of the trial had no interest in transactions with a deced, since the stock nor the litigation. Held, con-warranty in the deed was a community ob-petent to testify to conversation. Stern v. ligation, though a personal judgment against her, 122 App. Dlv, 821, 107 NYS 900. In an her could not be had thereon. Wuthield v., acting on a claim against the estate, plaintiff s Dialine \[TeX, City, App.\] 19 Tex. Ct. Rep. 935, 105 SW 324.

Witness held competent: In a proceeding to divide land among joint owners, a legate under the will by which parties acquired (tile was not necessarily interested and disqualified, Med Queen v. Grigsby \[Ala.\] 48 of boudancy line, and connected with it only 961. Woman held competent to testify that she worked for her brother and made an agreement with him to hold all her wages, except enough to pay board, for her child, and that he reported that he had deposited his dead. Douglas Land Co. v. Thayer Co. the money in the bank in his name as agent for the child; suit being by the child after the brother's death, against his administtor, to recover the money alleged to have been withdrawn and used by him and his wife. Jackson v. Gallager 128 Qa, 521, 57 SE 750. Woman was neither a party nor (Weese v. Yokum \[W. Va.\] 59 SE 514. Code peculiarity interested and was not excluded by Civ. Code 1895, $ 5269. Ii. In suit involving title to land, plaintiff s relied on dead from husband of a defendant, and defendants claimed deed was vold and that title to the land was and remained in the grantor's wife. Held, her son by the grantor was not disqualified by his relationship to testify to declarations of the grantor prior to making the deed in disparameter of his title. Fiord v. Ricketson, 129 Qa, 668, 59 SE 890. Under Burns Ann. St. 1901, 805, an heir (who was not a party to proceeding by the administrator to have a receiver appointed for one charged with wrongfully detaining property of the estate was not disqualified as a witness to facts occurring in the life-time of decedent. Saillee v., Soulex, 168 Ind. 624, 81 NE 587. In action to recover horses sold to plaintiff by defendants' intestine, a brother of plaintiff was properly allowed to testify that deceased agreed to pay plaintiff s Dialine \[TeX, City, App.\] 108 SV 108.

Witness held incompetent: A claim for solid to plaintiff by defendants' intestine, a brother of plaintiff was properly allowed to testify that deceased agreed to pay plaintiff s Dialine \[TeX, City, App.\] 108 SV 108.

Witness held incompetent: A claim for solid to plaintiff by defendants' intestine, a brother of plaintiff was properly allowed to testify that deceased agreed to pay plaintiff s Dialine \[TeX, City, App.

2086 Witnesses SS 3. 10 Cur. Law. must be a necessary party to the issue as well as to the record, and his interest, adverse to the estate, must be certain and vested, and not remote.\[61\] The Kansas statute excludes only parties.\[62\] The North Dakota statute is held to exclude all parties \[63\] though aligned with the representatives of the decedent.\[64\] In North Carolina it is held that the interest in the result of an action to disqualify a witness must be legal, and not merely sentimental,\[65\] and that the witness must bear such a relation to the controversy that the verdict and judgment in the case may be used against him as a party in another action.\[66\] A devisee or legatee who is not an attesting witness may, in West Virginia, be examined in support of the will like any indifferent person.\[67\] Under some statutes a party to a contract cannot testify in regard thereto after the death of the other party.\[68\] \_Transactions and communications to which disqualification extends.\_See * C. L. 2356 The disqualification extends to all personal transactions and communications between the witness and deceased,\[69\] but not to communications or transactions between decedersersons who are not parties (Id.). The order declaration of such deceased party in an cashier of a national bank which is a party to an action is a competent witness to tes-decensed party and other party to contract. Ifty to the fact of the mailing of a notice to a deceased person whose executor and death of the grant of one of the parties to heirs at law are parties to the action, since a litigation in regard to an alleged private rev. Codes 1905, $ 7253, prohibits evidence of parties only. First Nat. Bk. of Bottiness * Incompetent as a witness, but only incompe-v. LilliWeb \[N. D.\] 114 NYU 1085. In Florida, in an action against a corporation for the negligent death of an employee, other employees are not disqualified to testify in favor representative of a deceased or insane decensed relevant to the issues. Atlantic Coast Line R. Co. v. Mallendar \[FPA.\] 4 A 866. 61. Under Burns' Ann. St. 1901, $ 506, minor children of a claimant for services against an estate were not disqualified as witnesses for claimant. Taylor's Estate v. Lartret \[Ind. App.\] 82 NE 96. 62. Mendenhall v. School Dist. No. 83 \[Kan.\] 90 P 717. 63. The fact that a witness is a proper party to an action in which the executor, administrator or heirs of a deceased person are parties disqualifies such witness from testifying to trans 10 Cur. Law. WITNESSES $ 3. 2087

dent and a third person, in which witness took no part,70 or between witness and a third person,71 or between a party and a representative of a decedent, who is also a party,72 nor to facts occurring after decedent's death.73 Independent physical facts

regard thereto. Id. In action by widow bond was net incompetent to testify to amount against executor and devises of deceased of the indebtedness to deceased. Stewart husband for an accounting, based on alleged v. Ellis \[Ga.\], $1 SE 597. Hurd's Rev. St. theft by the husband from her, she was 1905, c. $, $, $, provides that a party to an incompetent to testify to his presence at the time of the alleged theft. Ten Brocke v. Jackson \[N. J. Eq. 169 A 488. In action by administration to recover bank account, claims of the same kind of defendant under a gift cause in the form of a bank from deceased. Heid, defendant was implemented to prove contents of box and identify gift, thus involving a transaction between him and deceased, under Code Civ. Proc. $ 829. Davis v. Davis, 104 NYS 824. In action on account stated between plaintiff and defendant's testator, plaintiff was incompetent to testify that he had never received any money on a check to his order, funnaction with deceased, under Rev. Codes found in decedent's possession and signed by him. Tillman v. Rayner, 109 NYS 443. Evidence by plaintiff that he had never seen from father to sind been introduced, it the check until after decedent's death was also incompetent. Id. Witness who Is a party cannot testify to contents of lost istes written or received by witness to or from deceded, whose administrator is a party. Cardiff v. Marquis \[N. D.\] 114 NPV 1088. Evidence that witness who is a party wrote and signed letters at the dictation of deceased whose administrator is a party is inadmissible. Id. Contractor of building, pursuant to a contract with the owner, is not a competent witness as to payments made on the contract where the owner has since died, and his executor and heirs at law are made parties defendant with the contractor in a suit by plaintiff to foreclose its Iten as a subcontractor. First Nat. Bk. of Bottineau v. Hilliboe \[N. D.\] 114 NPV 1085. In action on life insurance policy, agent of company was incompetent to testify to an agreement with deceased, whose note for premium he took, that the policy should be warrendered if the note was not paid. Civ. Code Proc. 1902, $ 400. Clarke v. Home Fund Life Ins. Co. \[S. C.\] 61 SE 80. In action by administrative to recover amount overpay defendant by deceased, a question to defendant to state "all that transpredict at the time of the settlement" (on dissolution of partnership) was objectionable as calling for statements of deceased. Ball. Ann. Codes & St. $ 5991. Moylan v. Moylan \[TWash.\] 95 P 271. Trustee of estate of deceased payee of note sued on the note, and maker claimed a second note had been given for the note in suit, and had been paid. Heid, defendant was incompetent to prove that he went into payee store with $400 and came out with the note and $.00. if intended as proof of payment, this involving a transaction with deceased. St. 1898, $ 4068. Jackman v. Inman \[Wis.\] 114 NPV 488.

Statute held inapplicable: Holder of bond for title _Ircm a deceased person sued widow_ and children to have title decreed in him, claiming full amount due had been paid. \[N. D.\] 114 NPV 677.

Vilovov and children claimed as having the land set apart as a year's support. Holder of decedent's interest to plaintiff, plaintiff 2088 WITNESSES SS 3.10 Cur. Law. which do not involve any communication or transaction with decedent are not within the rule.14

\_Viewer or removal of disqualification.\_See & C. L. 2360.\_The disqualification is waived where the adverse party takes the stand and testifies as to matters within the protection of the statute,78 or calls 76 or examines the interested party or witness in regard to such matters.71

is competent to testify to matters occurring between himself and the administrators after their appointment, under Rev. St. 1899, 1897, art. 2392. Scott v. Menly \[Tex. Civ. & 4652. Cobb v. Holloway \[Mo. App.\] 108 App.\] 19 Tex. Ct. Rep. 865, 105 SW 55. 77. An objection that a witness is incumbent to testify to transactions with a where adverse party defends as administrator. Parrish v. Vancall, 132 III. App. 45. 74. In suit respecting alleged private way, independent acts of obstruction by defendant and his servants prior to death of plainif's grantor could be proved by defendant and his employees. Nugent v Watkins, 129 Ga. 382, 58 SE 888. In a suit by heirs to get aside a deced because of the mental incapacity of the grantor, evidence by the heirs as to the decedenary's in-santly, based on their observation during her lifetime, was competent, under Burns's Ann. St. 1901, 8 507. Studebaker v. Faylor \[Ind.\] 83 NE 747. In an action against a railroad company by an administrator for injuries received by his intestine, the administrator, who is decedent's son, may testify for the estate as to the character of the injuries received by decedent. Civ. Code Proc. $ 606, subd. 2, does not exclude him. Chesapeake, etc., R. Co. v. Perkins, 31 Ky. L. R. 1359, 105 SW 148. Proof by the son that his father, since deceased, was in possession of land when he conveyed to the son, does not involve a transaction or communication with a decedent, excluded by the Gedex Civ. Proc. 1902, $ 400. Langston v. Cothran \[S. C.\] 58 SE 956. 75. See 8 C. L. 2361. In 84; 6 C. L. 1984, n. 99. As exception to $ 2, Evidence Act, party in interest is competent, where adverse party defends as administrator, to testify with respect to any conversations as to which such administrator has testified. Parrish v. Vancall, 132 III. App. 45. Under Act June 11, 1891, P. L. 287, where plainif is dead and two witnesses have testified on behalf of the executors as to occurrences in lifetime of deceded, defendant may also testify as to such occurrences. Smith v. Summershill, 31 Pa. Super. Ct. 235. Act of June 11, 1891, P. L. 287, applies only where there 1s one witness living who testifies against surviving party. Id. Contra: The fact that the widow of a decedent testifies fully as to transactions between her husband and a third person does not render competent such third person in an action by him against the widow as administrator (O'Connor v. Slatter \[Vash.\] 93 PS 1078), though such third person may testify to matters not involving any transaction or communication with deceased (Id.). He may testify that widow was not present when he received notes from decedent, but not whether notes had been changed since he received them. Id. 76. In an action on a note by the payee against the executor of the maker, the plain.

10 Cur. Law. WITNESSES SS 4A.

## 4 Privileged communications, and persons in confidential relations

A. Attorney and client,See a C. L. 2008--Confidential communications between attorney and client, and knowledge acquired by the attorney by reason of the relation, are privileged and cannot be testified to by the attorney without the consent of the client,78 but this privilege extends only to communications necessary to enable the attorney to properly serve his client.79 The relation of attorney and client must, however, have existed when the communication was made,80 and the communication must have been in fact confidential.81 Communications between a person and an attorney with a view to the employment of the attorney are privileged.82 An attorney employed by two or more persons to give professional advice or assistance in a matter in which they are mutually interested can, on litigation subsequently arising between such persons or their representatives, be examined as a witness, at the instance of either, as to communications made while he was acting as attorney for all,83 although he could not disclose such communications in a controversy between his clients, or either of them, and third persons.84 The rule of privilege will not be enforced as between attorney and client where the client charges mismanagement of his cause by

fendant was incompetent to testify to transactions and communications with deceased actions. An attorney may be required to fendant by deceased, though executor had testified to admission by defendant that she has money belonging to testitrix, In re Ruos, 159 F 252. One who had been counsel for one of the parties during ne- to84. The taking of the deposition of a defendant by plaintiff, which is quasashed by to testify to a fact necessarily known to reason of defendant's misconduct, is not a walver of an objection to the incompotency \[N. C.\] 61 SE 185. A book of maps showing offered by other defendants. Grieb v. Stahl \[Tex.\] 20 Tex. Ct. Rep. 447, 107 SW 41.

78. Where testitrix's son claimed as a gift money first entusted to 1mA and trustee, attorney who drew paper confirming the gift was not competent to testify concerning, advising him of terms of injunction granted facts surrounding its execution. Grieb v. Stumpf, 110 NYS 712. Communications be- tweaned a witness and his attorney indistible to show notice to the silent of the terms of the injunction. Aaron State, 51 Tex. Cr. App. 559, 19 Tex. Ct. Rep. 231, 103 SW 401. In prosecution of defend, antor murder of his wife, the county attorney was incompetent to testify that defendant had come to him and said him wife had consulted counsel and that defendant wanted him (equuty attorney) to look after his case if trouble arose between him (defendant) and his wife. State v. Bj Bjodenburg \[Iowa\] 112 NW 634.

01. Does not extend to statements of reasons why a will provides for only one heier. Champion v. McCarthy, 228 Ill. 87, 81 NE 808.

01. Communications in the course of ordinary conversation, when the relation of at-732, 105 NYS 713, Fact that communication toney and client does not exist or has terminated, are not privileged. Conversa- tion relating to land oual which had been closed when attorney was met in the street not privileged. Hansen v. Kline \[Iowa\] 118 NW 604. Communications between an attorney and deceased not privileged where third person was present and attorney appeared to act for such third person and not for deceased, subject of discussion being will of deceased. In re Eckler's Senate, 110 NYS 650.

01. Communications concerning indebtedness of client to attorney are not privileged.

the attorney," and where it would be a manifest injustice to allow the client to take advantage of the rule of privilege to the prejudice of his attorney," or when it would be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights."

Both at common law and under statutes which are merely declaratory of the common law, the doctrine of privilege between attorney and client is held inapplicable in will contests where the validity of the will is attacked on the ground of want of testamentary capacity and undue influence." In such cases the attorney may testify to statements and communications of the testator and to what he saw and heard during the preparation of the will." Similarly, in a suit involving the construction of a will, the attorney who drew it may testify to communications made to him by the testator."

At common law the privilege was personal to the client and might be waived by him," and the rule is the same under statutes which are merely declaratory of the common law," But a waiver of the privilege at one trial will not continue to a second trial." Where the client expressly refuses to waive the privileges, he does not waive it by himself giving testimony." The client's privilege is not waived by the fact that the attorney is a witness to a paper drawn by him, the paper not being one requiring witnesses." A waiver may be withdrawn at any time before acted upon." In the case of persons deceased, the general rule is that the right of waiver when the character and reputations of the deceased are not involved, is lodged in the personal representative, that is, the executor or administrator or the heirs of the deceased," The privilege must be claimed, if at all, by the client;" it cannot be claimed for him by the attorney."

While it is not proper for an attorney to testify in a case where he is employed as counsel,1 and while he ought properly to withdraw before becoming a witness,2 he is competent, and the fact that he is the attorney for a party goes only to his credibility.3

Footnote 1: The author is grateful to the anonymous referee for his support.

85. Letters by client to attorney held not

pricesed in action by attorney to recover

per drawn by him did not waive the client's

for services. Stern v. Daniel \[Wash.\] 91

pricesed, where the paper was not one re-
10 Cur. Law. WITNESSES SS 4B. 2091

(SS 4) \_B. Physician and patient.\_See e C. L. 2064.--At common law, communications between physician and patient were not privileged.4 But by statute in most states, information acquired by a physician in his professional capacity for the purpose of treating or prescribing for a patient is privileged.5 Such statutes should not be strictly construed, but should be so applied as to foster and encourage confidence between the patient and physician.6 To be privileged, the communication or knowledge must have been necessary and proper to enable the physician to prescribe for and treat the patient,7 and the information must have been acquired by the physician while acting in his professional capacity,8 during the existence of a confidential relation between himself and his patient.9 When the relation of physician and patient is established, it will be presumed that information gained by the physician was necessary to enable him to treat the patient professionally.10 The privilege extends not only to oral communications but also to information acquired by the physician from his own observation or examination, in the course of his professional duties.11 All physicians and surgeons who attend a patient in a professional capacity are disqualified as to information acquired while so engaged, regardless of the manner in which the relation of physician and patient was established.12 Thus, physicians and surgeons employed by a hospital where the patient is treated 18 and physicians and surgeons who attend and treat patients with the knowledge and consent of the hospital authorities 14 are disqualified. A physician employed by a railroad company who examines an injured passenger in order to prescribe for and treat him cannot testify as to information gained while so acting without the passenger's consent.18 Statutes of this kind do not apply in a criminal prosecution for causing the death of the patient.16 The Colorado statute is not held to apply to physicians practicing in other

of such testimony where the attorney's

8 Smith v. John L. Roper Lumber Co. testimony was of the same general tenor

N. C. J 60 SE 717.

9 In prosecution for statutory rape, held

v. Brown, 233 III. 336, 83 NEW 854.

4 In re Young's Senate \[Utah\] 94 P 721.

woman concerned was pregnant, no conf-

5 In personal Injury action, a physician

until relation being shown to exist be

who attended plaintiff after a previous in-

twenty them. State v. Winnett \[Wash.\] 92

jury was disqualified as to information

P 904. Where a physician was employed by

gained in his professional capacity. Smart

twenty it witness an operation on plaintiff

v. Kansas City, 208 Mo. 162, 105 SW709.

Evidence as to testator's mental and phys-

did not employ him and that he took no part

ical condition, given by physicians,

proj admitted. Evidence as to confidential

potent witness as to what he observed.

communications or tending to disagree

Woods v. Incorporated Town of Lisbon

memory of deceased properly excluded.

Llmpe v. Brandner, 120 App. Div. 280, 105

10 Dambramann v. Metropolitan St. R. Co.,

NYS 225.

6 Rev. St. 1899, $ 4659 (physician and pa-

11, Smith v. John L. Roper Lumber Co.

tentent), though creating an exception to the

common law, should not be strictly con-

12. Immaterial whether patient is in persuoted, but so construed as to give effect

to the purpose of the act, the fostering and

or pay patient. Smart v. Kansas City, 208

encouragement of confidence. Green v.

Mc. 162, 105 SW709.

Terminal R, Assm \[Mo.\] 109 SW715.

13. Assistant physicians disqualified. Smart

01. Smith v. John L. Roper Lumber Co.

\[N. C. J 60 SE 717. Statement by patient

709. Assistant physician In hospital, in

that he was injured because he kicked or

charge of hospital records, disqualified to

"wrange out" a jackscrew, causing an en-

ging to fall on him, not privileged. Id.

P Plaintiff's leg was smashed and he was taken

to a hospital maintained by defendant and

treated by surgeons employed by defendant.

The mode of treatment was obvious. Held,

statements by plaintiff as to his position

between cars when struck, made to surgeons,

were not privileged, not being necessary to

enable them to treat him nor affecting treatment in any way. Green v. Terminal R. Assm'\[Mo.\] 101 SW715,

15. Under 2 Mills' Ann. St. $ 4824, Cl. 4. Colorado Midiand R. Co. v. McGarry \[Coo.\]

92 P 915.

16. Code Civ. Proc. $ 834, prohibiting disclosure by a physician of information obtained by him while attending a patient in a professional capacity, does not apply in states, who have not complied with Colorado statutes regulating the practice of medicine.17 Hence the affidavits of nonresident physicians were held competent.18

The privilege is for the benefit of the patient alone and may be insisted on or waived by him in his discretion, subject only to statutory limitations.19 When the patient has once waived the privilege by permitting a physician to testify, he cannot subsequently prevent the physician from testifying by an objection based solely on the statutory privilege.20 The bringing of a suit for damages for personal injuries is not a waiver of the privilege as to information acquired by physicians who treated and cared for the patient,21 though plaintiff in such action testifies, from his own knowledge, as to the nature and extent of his injuries.22 A patient who brings an action for malpractice against a physician waives the privilege as to the defendant and physicians with whom defendant consulted,23 but does not waive it as to a physician who makes an independent examination subsequently for the purpose of treating plaintiff.24 The right to waive the privilege is usually held to inure to the representatives of a deceased patient,25 but it cannot be waived by an administrator in a suit to remove him as such, since he is sued in his individual and not his representative capacity,26 nor can it be waived by a contestant in a suit to probate the will of the deceased patient.27

(SS 4) C. Husband and wife. In civil cases.See s C. L. 2385--Both at common law and by statute in many jurisdictions, confidential communications between husband and wife are privileged,28 and this privilege is not removed by death or divorce.29 In some states only confidential communications 20 or facts learned by vir * 10 Cur. Law. WITNESSES SS 4C. 2093

tue of the marital relation " are privileged. In others all communications during the existence of the relation are privileged." In many states it is the rule that either spouse may testify to the fact of agency for the other " and in regard to matters in which one acted as agent for the other," though not as to matters outside the scope of the agency."

The competency of one spouse as a witness for or against the other is largely controlled by statute." In Pennsylvania husband and wife may testify against each other in divorce proceedings where there has been personal service of the sub-poena." The Vermont statute does not exclude testimony of the wife in favor of the husband," and in Illinois a husband is a competent witness for his wife in a case concerning her separate property." In New York in an action by the husband for divorce on the ground of the wife's adultery, the husband is a competent witness to prove the marriage." In New Jersey neither husband nor wife is competent or compellable to give evidence for or against the other in any action for criminal conversation except to prove the fact of marriage." In an action for alienation of affections, both husband and wife are competent for all purposes." Where a declara-

ahue \[Key.\] 109 SW78. Rev. St. 1895, art. husband's absence. Monahan V. Schwartz 2301, does not disqualify the husband or wife of a party or person interested except as to confidential communications. Hence, on issue whether certain property was a homestead, wife of owner could testify to declarations at time of purchase or making improvements, indicating an intention of occupying it as a homestead. Steves V. Smith \[Tex. Civ. App.\] 107 SWV 141.

**31.** In action on life insurance policy, insurcd's mental condition when he committed suicide was in issue. Held, wife of insured could testify as to facts surrounding his death and his mental condition, these not being facts learned by virtue of the marital relation. Metropolitan Life Ins. Co. v. Thomas \[Key.\] 108 SW715.

**32.** Under Rev. Laws 1905, $ 4660, communications between husband and wife during the marriage relation cannot be proved by either, whether or not they are confidential in nature. White V. White \[Min.\] 112 NW627.

**33.** Husband of party competent to testify that he acted as agent for his wife. Clity of Joplin v. Freeman, 125 Mo. App. 717, 103 SWV 130; Smith v. Travel \[Okl.\] 94 F 529.

**34.** Relation of principal and agent must exist. Fact that she, at his request, merely engaged in conversation with party with whom he was negotiating, does not render her competent. Donk Bros. Coal Aoke Co. v. Stroetzt, 229 III. 134, 82 NE 250. Letter from husband to wife relating to sale of cattle held not privileged. Lurty's Curator v. Lurty \[Ya.\] 59 SE 405. Husband may testify as to any business transacted by him for w/ie as her agent. Smith v. Travel \[Okl.\] 94 F 529. Where a husband acts as agent for his wife, he may testify to facts occurring when she was not present, thoughts she also testifies in the action. Miller v. Jones \[Key.\] 107 SW78. The wife may testify as to facts becoming known to her when acting as agent for her husband, and the husband may also testify to facts known exclusively by him. So held in foreible entry action where wife made the lease in tion contains a count for criminal conversation and also a count for alienating the affections of the wife, testimony of both husband and wife should be admitted,\[43\] but the court, in its charge, should limit the testimony as to the count for criminal conversation to the proof of the marriage.\[44\] Where the testimony of the husband has been received, and the count on alienation of the wife's affections has been abandoned; it is prejudicial error to refuse to so limit the husband's testimony.\[44\] Where one spouse calls the other as a witness, the adverse party has the right to cross-examine.\[44\]_In criminal prosecutions_\[see $ C. L. 2857 against one spouse, the other is not usually a competent witness.\[47\] Common-law marriages are within the rule,\[44\] and any doubt as to the existence of the relation should be resolved in favor of accused and against the competency of the witness.\[49\] Where several persons are tried together under a joint indictment, the wife of neither of the defendants is a competent witness against a codefendant of her husband where her testimony in any way affects the interests of her husband.\[50\] Similarly, the wife of a person charged with the same offense as defendant and whose case is pending is incompetent to testify, upon defendants' trial, to facts incriminating her husband.\[61\] But in a prosecution for homi-cide it was held that the wife of defendant's brother was competent to testify that her husband, and not defendant, did the killing.\[52\] A wife, testifying in behalf of her husband in a criminal prosecution, may be cross-examined as to the subject-matter of her direct examination, but not as to any new matter.\[63\] In Nebraska the wife may be a competent witness against the husband in statutory rape.\[64\] The Oregon statute making privileged communications between husband and wife is held not to apply in criminal prosecutions.\[65\] The practice of calling the wife to testify against the husband, thereby compelling him to object and prejudice his case is condemned in Washington.\[56\] As is also the practice of compelling the wife, by indirect means, to furnish evidence against her husband.\[67\] A statement which is a part of the res gestae may be proved in a criminal prosecution though the person making it becomes the wife of accused prior to the prosecution.\[68\] * 43. Teestimony of husband admitted, tend-lng to show adultery by wife. Error to exclude testimony of wife. Rust v. Oltmer \[N. J. Err. App.\] 67 A 387. * 44, 45. Rust v. Oltmer \[N. J. Err. & App.\] 67 A 337. * 46. Where a wife calls her husband as a witness, the adverse party may cross-examine him as to all matters brought out on the direct examination. Percival v. Jack, 4 Cal. App.\] 19, 90 P 555. * 47. Allowing wife of accused to testify against him held prejudicial error. Porter v. U. S. \[Ind. T.\] 104 SW 855. A former wife is a competent witness against her former husband in a prosecution of him for perjury in the action in which they were divorced. B. & C. Comp. $ 1401 does not apply. State v. Luger \[Or.\] 95 P 811. Former wife could testify against her former husband, in a prosecution for perjury committed in divorce action, as to location of family dwelline and her actions and that she did not desert him, no confidential communications being involved. Id. 48. Evidence sufficient to show Indian man and woman were living as man and wife so as to constitute common-law marriage, and hence wife could not testify against husband. Porter v. U. S. \[Ind. T.\] 104 SW 855. * 49. Whether accused was husband of female witness, Porter v. U. S. \[Ind. T.\] 104 SW 855. * 50. Woodward v. State, 84 Ark. 119, 104 SW 1109. * 51. Spencer v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 408, 106 SW 386. * 52. Hardin v. State, 51 Tex. Cr. App. 559, 19 Tex. Ct. Rep. 231, 108 SW 401. * 53. Since wife cannot testify against husband under Code Cr. Proc. 1895, art. 775. Stewart v. State \[Tex, Cr. App.\] 20 Tex. Ct. Rep. 592, 106 SW 685. * 54. Harris v. State \[Neb.\] 114 NW 168. * 55. State v. Luger \[Or.\] 91 P 444. Hence, in a prosecution of the husband for perjury for falsely awearing to a complaint for divorce on the ground of desertion by the wife, it was held proper to allow him to testify to statements by her indicating an intention to desert him. Constructing B. & C. Comp. $ 724. State v. Reyner \[Or.\] 91 P 301. * 56. State v. Winnett \[Wash.\] 92 P 904. * 57. In prosecution for rape where state sought to prove pregnancy of woman who had become defendant's wife, and physician had just testified thereto, it was held error to call the wife to court room ostensibly to allow the physician to identify her as the woman he had examined, since the jury could observe her condition, and she was thus compelled to testify against her husband. State v. Winnett \[Wash.\] 92 P 904. * 58. McMichael v. State \[Tex. Cr. App.\] 93 SW 728. * 59.

10 Cur. Law. WITNESSES SS 5A. 3095

(SS 4) \_D. Miscellaneous relations.\_See * C. L. 2008a--The privacy of papers, the private nature of a witness' knowledge, or the fact that disclosure may injure a third person, are not reasons for withholding facts pertinent and material to an investigation, judicial or legislative, once the power to conduct the investigation be established."

SS 5. \_Credibility, impeachment, and corroboration of witnesses. A. Credibility in general.\_See * C. L. 2008a--The credibility of witnesses \*0 and whether they have been successfully impeached \*2 are questions for the jury. The uncorroborated testimony of witnesses believed to have willfully testified falsely to a material fact may be wholly disregarded.\_Footnote \*22

\_Impeaching and disceriding in general.\_See * C. L. 2010--Cross-examination for the 59. Banker cannot withhold name of per-son who deposits securities. Interstate Commerce Commission v. Hartman, 157 F 432. \*60. Competency of witnesses is for the court; the value of weight of their testi- 289, 57 SE 986. \*61. Instruction held not erroneous as taking from the jury the issue whether a witness had been successfully impeached. Atlanta, etc., R. Co. v. Hudson, 5 Ga. App. 352, 58 SE 500. Instruction held improper, but not reversible error, which told jury they were "sole judges of facts and of credit to be given witnesses," etc. American Forwarding & Mercantile Co. v. Lindsay Chair Co., 129 III. App. 548. That a witness on cross-examination testifies to matters slightly inconsistent with his testimony in chief does not warrant the court in rejecting the testimony, its weight and credibility being for the jury. Steele v. State \[Neb.\] 113 NV 798, Charge that, if state's witnesses exhibited bias or anger against defendant and satisfied the jury that they had not testified truly and were not worthy of belief, and the jury thought their testimony should be disregarded, they might disregarded it. held proper. Burkett v. State \[Ala.\] 45 S 682. \*62. Charge on impeachment of witness and duty of court to disregard testimony of illegal witnesses held to conform to City, their appearance, frankness, or lack thereof, Copt, 1895, $ 5295. Harrts v. State, 1 Ga. App. 136, 67 SE 937. Instruction that "the testimony of one credible witness is entitled to more weight than the testimony of many others, if as to those other witnesses the jury have reason to believe and do believe, from the evidence and all the facts before them, that such other witnesses have knowingly testified untruthful, and are not corroborated by other credible witnesses or by circumstances.

Footnote \*22: The author is grateful to the anonymous referee for the 10 purpose of discrediting the witness is proper,63 and the extent of such examination is largely discretionary with the trial court.64 While in general the cross-examination should be confined to the subject of the direct examination,65 considerable latitude is allowed when the purpose is to impeach the witness.66 Impeaching evidence may be admitted out of the usual order of proof under certain circumstances,67 and a witness may in the discretion of the court, be recalled to lay a foundation for impeachment,68 but in Illinois impeaching testimony cannot be introduced in surrebuttal.69 The more usual methods of impeaching or discrediting a witness are more fully discussed in succeeding paragraphs.70 In general, the testimony of a witness may be discredited by proving facts contrary to those testified to by him,71 or tending to show such testimony improbable,72 or by showing acts73 or statements 74 of the witness or

63. That a cross-examination of a witness has the credibility or demonstrates the 396.

Incis Steel Co. v. Ferguson, 129 Ill. App. has the credibility or demonstrated the 396.

Inaccuracy and unreliability of evidence given on the direct examinant is no ground for striking it out. Platt v. Rowand \[Fla.\] claimed by adverse possession and testified that no one had ever before questioned her and testified that he was sick, state could properly cross-examine as to the nature and severity of his sickness, though his answers would tend to show that he had a discreditable disease. Moore v. State \[Tex. Cr. App.\] 107 SV 355. Acts and declinations of a witness, tending to show hostile or inconsistent position, may be injured into on cross-examination and, if denied, may be proved by other witnesses. Hoagland v. Canfield, 166 F 147.

64. Southworth v. State \[Tex. Cr. App.\] 109 SV 132. The extent of the cross-examination for the purpose of impeaching the credibility of a witness must be left largely to the discretion of the trial court. City of Greenville v. Spencer, 77 S. C. 50, 57 SE 638. Discretion not abused in reusing to allow a general question on cross-examination as to some trouble had by witness. Griffin v. Forrester \[S. C.\] 61 SE 389.

01. While the accused should not be cross-examined as to matters not included in the subject-matter of his direct examination, within the limits of such matter are may be asked any question having a tendency to shake the effect of his testimony. People v. Manasse \[Cel.\] 94 P 92.

01. On cross-examination a considerable degree of latitude is permitted for the purpose of testing the memory, bias, accuracy, or sincerity of the witness. People v. Manasse \[Cel.\] 94 P 92.

01. When a witness for the state, called in rebuttal, contradicts the testimony of accused upon a material point, accused should be allowed, if he has laid a proper predicate, to impeach the state's witness. State v. Anderson \[La.\] 45 S 267. Defendant denied having employed an attorney and on cross-examination denied certain conversation with attorney. Held, though attorney had previously testified that he was employed, it was proper to allow him to be recalled to testify to the conversations. Khomeny v. Avenarius \[Iowa\] 112 NW 548.

01. Defense should have been allowed to recall witness for state who had just left the stand to lay foundation for impeaching him. Johnson v. State \[Fla.\] 46 S 154.

01. Evidence held properly excluded. Ill.-

01. The answer is yes other circumstances \[78\] inconsistent with his testimony, \[76\] or tending in some manner to discredit it. Fact that witness is paid for attendance in excess of statutory fees may be shown. \[77\] Facts tending to show motives for falsifying are competent. \[78\] The

sued her to leave the city with her. State v. Katon \[Wash.\] 91 P 250. Where plainIf

I elected because not in conflict with witness' claimed he received certain injuries when

ejected from a train, and it appeared he

v. Crete \[Neb.\] 113 NW 172. Where wittook a certain journey before consulting a

ness had testified that he did not hear a physician, the purpose of such visit could be shown as bearing on the question

vertain person make a certain remark, it

whether he was exaggerating his condition.

canfination whether he heard any person

Schneider v. Grest Northern R. Co. \[Wash.\]

make a remark of the same kind. Interna-

91 P 565. Where two witnesses were introduced by accused to impeach the prosecuted

19 Tex. Ct. Rep. 123, 105 SW 560. Where

ing witness, deputy sheriff, for truth and

defendant in homicide case testified in his

veracity, it was proper to admit a petition

signed by such witnesses stating that such

stating what defendant believed an absent

person was a safe, reliable, truthful and

witness would testify to was inadmissible

honest man, and asking his appointment as

deputy. Norris v. State \[Tex. Cr. App.\] 20

not testify as defendant had stated. Baker

Tex. Ct. Rep. 561, 106 SW 136.

v. State \[Ark.\] 107 SW 983. In personal

74. See, also, post, $ SD. Mother of de-

injury action, testimony by defendant's wit-

fendant in homicide case testified to an

allib, and denied making a statement

was injured, though he had ample opportunity

which she admitted that defendant did the

killing. Held, state could prove that she

with and hence not impeachable by testi-

made the statement. Holder v. State \[Tenn.\]

mony of plaintiff's witness that plaintiff did

104 SW 255. Where witness said he had

on some occasion, not identified as the one

never advised or talked with testatrix about

spoken of by defendant's witness, tell such

her will, proof that he had said the will

witness of his injury. Louisville, etc., R.

was as he told her to make it was compe

Co. v. Varner, 129 Ga. 844, 60 SE 162. Where

tent. Gorham v. Moore \[Mass.\] 84 NE 436.

plaintiff, in personal injury action, said she

75. In an action for injuries to one struck

was injured in March and put her claim for

by a horse and wagon driven by defendant's

and was servant, there was a conflict in the

testimony of the servant and plaintiff's wit-

nesses as to the speed at which he was

her attorney being responsible for the de-

driving. Held proper to prove by the

servant that he was arrested for fast driving on that occasion, this tending to dis-

75. Chicago City R. Co. v. Shreve, 128

credit his testimony. Mattingly v. Montjensv . Montjensv (Md.) 68 A 205. Where witness tes-

a brakeman, it could be shown that he had

ifses that an adopting parent told county

clerk not to record dead of adoption,

victons asked when he was employed, as to

dence that parent intended to adopt the

ehlid and did everything he thought was

Galveston, etc., H. Co. v. Harris \[Tex. Civ,

necessary was admissible to contradict witness. J. M. Guffey Petroleum Co. v. Brooks

lidence that, after witnesses were sworn

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 254, 106

SWV 690. In action for money loansd,

feandant denied having been in needy

img to collect a bill, but in fact to intimu-

cumstances. Held proper to prove that her

church had given a party to aid her, this

held admissible to issue of defendants' cred-

tending to contradict her testimony. Lin-

coln v. Hemenway \[Vt.\] 69 A 453. Where

witness testified that he had examined plain-

Where, in prosecution for homicide, witness

tiff, in personal injury action, proof that

he had arrested the driver of the team

killing, it was proper to show on cross-

which injured plaintiff and took him to the

examination whether witness believed he

station house was admissible to show that

could be prosecuted; also proper to show

he could not have accompanied plaintiff to

that this defense was a fabrication. Hardin

the hospital, or known that he was uncon-

v. State, 51 Tex. Cr. App. 559, 19 Tex. Ct. Rep.

scuola. Hoagland v. Canfield, 160 F 146.

78. In prosecution for rape, certain facts

01. The fact that a litigant has stated his

inconsistent with testimony of prosecutrix

case to several attorneys, who refused to

held admissible as affecting her credibility.

undertake it, may be considered by the jury

People v. Fong Chung, 5 Cal. App.

fact that a witness was intoxated at the time of the happening of the events about which he testifies is relevant and may be shown without first asking the witness upon cross-examination whether he was intoxated," but the religious belief of witness is inadmissible to affect his credibility." Where it is shown that a witness was coached while on the stand, it need not be shown as to what particular questions he was coached." It cannot be shown that a witness refused to testify at a coroner's inquest on the ground that he might incriminate himself." Alleged impeaching evidence must be directed to the testimony of some particular witness."

_A party cannot ordinarily impeach his own witness_ " unless he has been surprised or entrapped by the witness who has given testimony prejudicial to the party calling him," in which case the latter may contradict the witness " by proving facts " or prior statements" inconsistent with his present testimony, but such statements,

\\begin{tabular}{l|l} his testimony should be received with cau- & witness was afterwards called by defend- \\ & . Czermak v. Wetzel, 109 NYS 698. The & ant. Baltimore, etc., R. Co. v. State \[Md.\] \\ presumption that a witness speaks the truth & 69 A 439. A party cannot ordinarily im- \\ may be overcome by the manner in which & pach his own witness unless he has been \\ he testifies, by the character of his testimony, or by evidence affecting his motives, & entrapped by the witness. Alexander v. \\ & . B. & C. Comp. s 695. Pereira v. Star Sand \\ & Co. \[Or.\] 94 P 835. & \\ & . & \\ & . 79. Bliss v. Beck \[Neb.\] 114 N NV 162. & \\ & . 80. Question "Are you of Jewish faith" & \\ & . & \\ & held improper. Starks v. Schlenksy, 128 III. & \\ & . & \\ & App. 1. & \\ & . 81. Witness ceased by nods and shakes & by proof of contradictory statements, it \\ & of the head by her sister. Heath v. Hagan & must appear that witness has given testil- \\ & . \[Iowa\] 113 NW 342. & \\ & . 82. Motorman testifying at trial for defendant, in action for death of child, could & \\ & not be so cross-examined. Masters v. & \\ & St. Louis Transit Co., 204 Mo. 507, 103 SWP 48. & \\ & . & \\ & . & \\ & . 83. Books of an association showing certain dealings between it and an officer held & \\ & . & \\ & . & \\ & . \\ & inadmissible in prosecution for asking and recollyning a brible for securing immunity & \\ & from investigation for such association to & \\ & . & \\ & . \\ & . & \\ & . \\ & .

10 Cur. Law. WITNESSES SS 5A. 2099 so proved, are not substantive evidence for any purpose.\* It is held that the fact that the party has been surprised should preferably be shown by the testimony of sworn witnesses,\*\* but it is not an abuse of discretion for the court to accept the unsworn statement of counsel.\*\* By some courts it is held that the rule against impairment of one's own witness denies the right to impeach the general reputation of the witness for truth \*\* but does not deny the right to show that the whole or part of the testimony of the witness is untrue.\*\* A party may call the attention of his witness to former testimony for the purpose of refreshing his recollection.\*\* In Kentucky it is held that a party is bound by the testimony of an adverse party, necessarily called,\*\* where no effort to impeach or contradict such witness in the mode allowed by statute has been made.\*\* In Wisconsin where a party calls as a witness an officer of a corporation which is the adverse party, under the statute permitting examination of the adverse party, or such an officer,\*\* he may thereafter rebut such witness' evidence by counter or impeaching evidence, including proof of previous inconsistent statements.\*\*

\_A witness cannot ordinarily be contradicted or impeached as to collateral matters,\*\* though the court is sometimes held to have discretionary power to allow such

be reluctant and attorney claimed surprise. | tradict them. Herancourt v. Taylor, 29 Ky. Southworth v. State \[Tex. Cr. App.\] 109 SWV L. R. 1299, 97 SWV 359. | 133. | 98. Under Code Civ. Proc. | 596. Martin v. | came? Casuality Ass'n of America \[Vls.\] 115 Hill, | a course,1 and the fact that incompetent matters are thereby brought to the jury's attention does not render questions as to testimony given by witness at a previous trial inadmissible.2 A witness who has testified to the bad reputation of another may be required to specify the statements of individuals on which his testimony rests,3 though it is generally held that his statement that he heard certain persons make such statements cannot be contradicted.4

(SS 5) \_B. Character and conduct of witnesses. 1. In general._See 8 C. L. 2875_

Proof of the general moral character of a witness is admitted in some jurisdictions and excluded in others.5 Proof of particular acts of wrongdoing not amounting to crimes, connection of which may be shown under some statutes,6 is usually excluded.7 Evidence tending merely to degrade is incompetent.8

Footnote 7: The author is grateful to the anonymous referee for his constructive comments.

Mo. App. 54, 103 SWV 1088. Where cross-examination went outside the scope of the direct examination, the witness became the witness of the party examining him, and the evidence and witness being competent, there was no reversible error. Bispham v. Turner, 83 Ark. 831, 103 SWV 1155. Exclusion of evidence tending to contradict plaintiff on collateral matters held not a ground for new trial. Merwin v. Backer \[Conn.\] 68 A 373. Certain matter held collateral and inadmissible to contradict or impench a witness. Pullman Co. v. Vanderhoven \[Tex. Civ. App.\] 12 Vac. Ct. Rep. 888, 107 SWV 147. Brackman, witness, could not be contradicted by a statement relating to an immaterial matter. Ownersboro City R. Co. v. Allen \[Ky.\] 108 SWV 357. In action by engineer against railway company for injuries received in a collision with a preceding train, the engineer denied, on cross-examination, habitual disregard of signals to stop. Held proper to exclude all questions whether he had disregarded such signals on certain occasions. Galveston, etc., R. Co. v. Quinn \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 825, 104 SWV 397. In prosecution for violating local option law, proof that witnesses for accused kept liquor in lockers for private use was inadmissible to impench them. Ross v. State \[Tex. Civ. App.\] 108 SWV 152, 153.

**L.** The extent of cross-examination on collateral matters rests in the discretion of the trial court. Carey v. Brooklyn Heights R. Co., 108 XYS 1034. Not abuse of discretion to ask witness on cross-examination if he had been drinking at time of injury in question or on day of trial. Armour v. Skene \[C. C. A.\] 153 F 241. The impenchment of the credibility of a witness by proof of contradictory statements is always relevant and material, and it is no objection that the impeaching statement necessarily includes some act or circum-sance not independently admissible in evidence. State v. Mitchell, 119 La. 374, 44 S 182.

**2.** Witness may be asked if he did not testify to a certain effect at a previous criminal action, though the result of that action is inadmissible, Reisch v. People, 229 III. 574, 82 NE 321.

\*\*3.**4.** Harms v. Proehl \[Minn.\] 116 NVV 587.

**5.** Held admissible:\*\* Proof that prin-tpal witness for state visited houses of ill re-pute and consorted with low women held admissible under circumstances of the case People v. Flori, 108 NYS 416. In prosecution for rape, the credibility of the prosecuting witness may be attacked the 10 Cur. Law. WITNESSES $ 5B3. 2101

_The reputation of a witness for truth and veracity See $ C. L. 2375_ may be shown.\* The witness to such reputation must be shown to be qualified.10 While there is no arbitrary rule fixing the limits as to time and locality within which the general reputation of a witness for truth and veracity may be inquired into,11 the proof should, in general, be confined to a reasonably recent period.12\_

($ 5B) 8. _Accusation and conviction of crime.See $ C. L. 2376_.--Conviction of crime may be proved in most jurisdictions as affecting the credibility of a witness.10\_

cannot be discredited by proof of particular -- allow him to add to it on redirect examination. State v. Stewart \[Del.\] 67 A 786. with a woman. Welch v. Com. \[Ky.\] 108 $ NVE 863. A female witness cannot be immediently since not far from his residence at time of critical between her and a third person, not a witness. City of Greenville v. Spencer, man \[Ky13\] 113 NVV 340. 77 S. C. 50, 57 SE 638. Whether witness has been arrested for stealing is not admissible to affect his credibility. State v. Stewart \[Del.\] 67 A 786. In prosecution for assault \[Del.\] 67 A 786. $I$.

with intent to rape, proof of specific acts -- will be used to allow him to add to it on redirect examination. State v. Stewart \[Del.\] 67 A 786. with a woman. Welch v. Com. \[Ky.\] 108 SW 2102 WITNESSES SS 5C. 10 Cur. Law

In some states only such a conviction as would disability at common law may be shown; \[14\] in others the crime must have been a felony or an infamous one; \[15\] while in others the crime must have been one involving moral turpitude. \[16\] The record is the only competent evidence of conviction. \[17\] To discredit a witness by the record of his conviction of an infamous crime, the record must show the indictment and its return into court. \[18\] But the party introducing such record need not prove the identity of the witness with the person convicted, the name being identical, \[19\] although it is erroneous to show incarceration without showing the nature of the crime for which one was convicted. \[20\] In some states the fact of arrest or indictment for crime may be shown, though the facts establishing commission of the offense are excluded. \[21\] In others the fact of indictment cannot be shown. \[22\] In Illinois oral proof of conviction for other than an infamous crime is inadmissible. \[23\]

(SS 5) _C. Interest and bias of witnesses._ See a C. L. 2877\_-Interest in the event of the action \[24\] or in its prosecution, \[25\] and any facts tending to show bias or prejudice

14. If is only such a conviction as under the old law would have rendered a witness incompetent that can be introduced under the law as it is today to discredit him, and \[Tex, Cr. App.\] 108 SW 680.

where, for the purpose of discrediting a witness, a record is offered of conviction of

manoffense which is not made a crime or mis-

murder. Watson v. State \[Ala.\] 46 S 232. A

demeanor under any statute of the state,

witness may not be discredited by proof that

and is in violation of a city ordinance only,

he has been indicted for a misdemeanor.

It is not error to sustain an objection to

Landy v. Moritz \[Ky.\] 109 SW 897.

its admission in evidence. August v. Fin-

23. Pioneer Fire-Proofing Co. v. Clifford,

125 III. App. 352.

15. Hurd's Rev. Stt. 1905, c. 51, permits

proof of conviction of an infamous crime.

On weight of his testimony. Dempster &

Hence proof that witness for adverse party

Co. v. Menge \[C. C. A.\] 160 F 341. Proper had been convicted of rape was admissible,

to permit witness to testify as to his finsn-

Clifford v. Pioneer Fire Proofing Co., 232

all interest in the result of the suit. Steve

III. 150, 83 NE 448. Conviction for either

v. Bonners Ferry Lumber Co., 13 Idaho, 384,

grand or petty lareeny may be shown to

disregedit witness. McLain v. Chicago, 127

the interest or lack of interest of a witness

III. App. 489.

16. Only crime involving moral turpitude can be shown, hence proof of conviction of illegal sale of liquor is not compe-

Gu. App. 487, 57 SE 1042. The fact that a

withess in intersection in the event of the suit

tuned. Wheeler v. State \[Ga. App.\] 61 SE

409. In prosecution for carrying a pistol,

to bring out this fact the witness may be defendant could not be impacached by proof of a former similar charge. Caldwell v.

State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 349,

104 SWP 588. Where, in prosecution for forgr-

106 SWP 343. A question of a witness

my whether he had not been indicted for mur-

dered is proper as against the objection that

the only competent evidence of conviction. \[17\] To discredit a witness by the record of

think conviction of an infamous crime, the record must show the indictment and its return into court. \[18\] But the party introducing such record need not prove the identity of the witness with the person convicted, the name being identical, \[19\] although it

is erroneous to show incarceration without showing the nature of the crime for which

one was convicted. \[20\] In some states the fact of arrest or indictment for crime may

be shown, though the facts establishing commission of the offense are excluded. \[21\] In others the fact of indictment cannot be shown. \[22\] In Illinois oral proof of conviction for other than an infamous crime is inadmissible. \[23\]

(SS 5) _C. Interest and bias of witnesses._ See a C. L. 2877\_-Interest in the event of

the action \[24\] or in its prosecution, \[25\] and any facts tending to show bias or prejudice

14. If is only such a conviction as under

ing his arrest, indictment or imprisonment

the old law would have rendered a witness

from theft, but the fact of commission of the

incompetent that can be introduced under

offense cannot be gone into. Goad v. State

the law as it is today to discredit him, and \[Tex, Cr. App.\] 108 SW 680.

where, for the purpose of discrediting a

22. Witness cannot be asked if he has not

witness, a record is offered of conviction of

been indicted for assault with intent to

an offense which is not made a crime or mis-

murder. Watson v. State \[Ala.\] 46 S on the part of the witness,28 such as his relations with or hostility toward a party,29 may be shown and considered as affecting his credibility. Evidence of the hostility of a witness should be direct and positive.28 The particulars of a difficulty between witness and a party are inadmissible.29

(SS 5) \_D. Proof of previous contradictory statements.\_See # C. L. 2879 --Prior statements of witnesses inconsistent with their testimony 80 upon material issues are suggested a compromise, was competent to \[to send another person (a witness for state) show his interest in defendant's behalf. to the penitentiary was admissible to show Louisville R. Co. v. Williams \[Ky.\] 109 SW SW 874. Daughter of plaintiff in personal in- jury action not interested so as to require instruction to that effect, no financial interest being shown, Hazen v. Bay City Trac. & Elec. Co. \[Mich.\] 16 Det. Leg. N. 304, 116 NWW 364.

25. Wife of person accused of adultery was active in prosecution and had given damage evidence, and was active in pro- to remove or rejectate, and curing conviction. Proof that she had tried to dissuade certain persons from testifying for accused should have been admitted. State v. Koller, 129 Iowa, 111, 105 NWW 391.

That a witness had been asked to contribute to a fund to employ counsel to prosecute the case was immaterial where it did not appear that he in fact contributed. Robinson v. State \[Ala.\] 45 S #16. In prosecution of several defendants for conspiracy in trial of one, evidence that another had made an effort to stop the prosecution was admission by a witness but to deceased, was ad- not competent to show a conspiracy. Napler v. Com. \[Ky.\] 110 SWW 842.

26. Former employee of plaintiff having testified for defendant, plaintiff was properly allowed to testify that he had discharged witness and upgraded him for misappropriating funds and beating a boy. Potter v. Browne, 109 NYS 1076. In action for damages for burning plaintiff's build-in, plaintiff could show, on cross-examination of a witness, what a defective employed by defendant had said to witness about going to the scene of the fire, the purpose being to show bias or interest of the witness. Louieville, etc., R. Co. v. Sherrell \[Ala.\] 44 S #31. Where in trespassing for conversion of timber a witness testified for defendant, plaintiff could show that he had a suit pending against the witness to show bias on the part of the witness. Gosdin v. Williams \[Ala.\] 44 S 611. Evidence tending to show feeling or bias on the part of a witness, es- specially if he be a party, is admissible as affecting his credibility. Goss v. Goss, 102 Minu. 346, 113 NWW 690. Where witness who had testified for plaintiff said she had no interest in the case, it was proper to admit a letter written by witness to defendant practically advising him to settle with plaintiff. Schon v. Harlan, 56 Misc. 518, 107 NYS 113. Proper to show that witness for defendant had said he would testify for the side which paid him the most money. Robinson v. Stahl \[N. H.\] 67 A 577. Efforts of a witness to conceal the fact that he was a material witness may be shown on his cross-examination as tending to discredit his testimony. Rice v. State, 51 Tex. Cr. App. 255, 19 Tex. Ct. Rep. 353, 103 SWW 116. Proof that witness for defendant asked witness for state to give certain testimony in order to show that he had always competent as impeaching evidence when a proper predicate has been laid. \[31\] Thus, oral or written statements out of court, \[32\] statements made as a witness in a former trial \[35\] or before the grand jury, \[34\] statements in pleadings, \[35\] affidavits, though

not contradictory to present testimony. \[Colo.\] 94 P 289. Where servant of defend-

Walker v. Walker \[R. I.\] 67 A 519. Proof of certain statements Improperly admitted

because not central-story to witness' testi-

witness, and the jury properly instructed

Dying declarations of decedent not being

not to consider it as substantive evidence

introduced, and state's witnesses having

testified that accused killed deceased, state-

Brents v. Louisville, etc., R. Co., 31 Ky. L.

ment of decedent on preliminary trial that

R. 1216, 104 SWP 961. Where, on issue of

he did not know who struck him was ir-

relevant and did not contradict the state's

witnesses. State v. Wright, 145 N. C. 490,

59 SE 541.

31. See post, $ 5E.

ble to contradict him. Larkin v. Trammel

32. Paper, signed by witness and contra-

dicting his testimony, admissible. Hogg

552. Where s party on his cross-examina-

land v. Canfield, 160 F 146. Proof of prior

inconsistent statements which witness

helves having made is competent. B. & C.

Suns, it is proper to prove such admissions

Comp. $ 853. Dillard v. Olalla Min. Co.

\[Or.\] 94 P 966. Proof of inconsistent statements admissible. Indian Head Coal Co. v. Miller \[Ky.\] 110 SWP 818. Previous state-

ments inconsistent with testimony and which

witness denied making, admissible. Stone

v. Com. \[Ky.\] 110 SWP 325. Witnesses may

be impeached by proof of previous contra-

dictory statements, but such evidence is not

competent to prove the facts stated. Atoka

Coal & Min. Co. v. Miller \[Ind. T.\] 104 SWP

555. Statements by witness, out of court,

contrary to his testimony, held competent

ness. Becker v. Philadelphia, 217 Pa. 344,

to discredit him. Smith v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 509, 105 SWP 182.

ages for rupture, had made same claim in

Proof of inconsistent statements of witness

admissible. Colorado Midland R. Co. v.

McGarry \[Colo.\] 92 P 915. Statements of

witness for state, just after alleged offense,

may be shown by defendant to contradict

Witness' testimony. Adams v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 953, 105 SWP 197.

In action for injuries to plaintiff who was

stick by a train while walking on the

track, where the engineer and fireman testified that they did not see plaintiff in time

to avoid the accident, it was proper to ask

the fireman if he had not stated on the night

of the accident that the engineer was drank

and that witness had shouted to plaintiff, and

to prove by another witness that the fireman

made such statement. Chesapeake Beach

R. Co. v. Donahue \[Md.\] 68 A 507. If ater

prima facte proof of agency, the agoru de

nies it, proof of prior declarations tendir to

show its existence is competent to impeached

him as a witness. Ham v. Brown, 2 Ga. App.

71, 58 SE 316. Where, in assault cas, a witness

for defendant gave testimony tending to

show defendant acted in self-defense. a

previous statement by witness inconsistent

with his testimony was admissible. Hughes

v. State \[Ala.\] 44 S 694. Where, in contro-

versy between done of chatel and mortar

gage, the morrigor and donor claimed he

had paid off the mortgage, and so testified,

his admissions to the contrary could be

proved. Speakman v. Vest \[Ala.\] 44 S 1021.

Statements of members of train crew inven

sistent with their testimony held admissible

to impeach them, though not part of the

res gestate. Denver, etc., R. Co. v. Mitchell

Witnesses $ 5D.

10 Cur. Law

always competent as impeaching evidence when a proper predicate has been laid. \[31\]

Thus, oral or written statements out of court, \[32\] statements made as a witness in a former trial \[35\] or before the grand jury, \[34\] statements in pleadings, \[35\] affidavits, though

not tcontradictory to present testimony. \[Colo.\] 94 P 289. Where servant of defend-

ant testified that he did not make a certain

statement to a party, testimony of the party

was properly limited to contradicting the

witness, and the jury properly instructed

not to consider it as substantive evidence

of the facts said to have been stated.

Brents v. Louisville, etc., R. Co., 31 Ky

### 10.4.

The _witnesses_ & _5E_.

offered by adverse party as a part of his case,"48 and in depositions," have been held competent. Statements in the presence of a witness not denied by him, may also be proved."48 A previously expressed estimate "9 or opinion 40 cannot be shown. The notes of a judge 41 and the record of a magistrate not authorized by law to reduce testimony to writing 42 have been held incompetent to impeach a witness. Only the testimony of the witness sought to be impeached should be offered."48 Such declarations of a witness are competent only as impeaching evidence.44 A witness, however, may be allowed to explain previous contradictory statements.48

(SS 5) \_E. Foundation for impeaching evidence.\_See a C. L. 2581.--Impeaching evidence is inadmissible unless a proper predicate has been laid,48 though no foundation need be laid for proof that facts testified to by a witness are untrue.47 Unless the witness is a party,48 prior contradictory or inconsistent statements cannot be proved unless the attention of the witness had been called thereto 49 and the circumstances,

verified a pleading makes statements in-consistent therewith, the pleading may be read to the jury (Lexington R. Co. v. Wood-ward \[Ky.\] 106 SWW 853), but this rule does not apply to an unverified pleading which has been expressly withdrawn (Id.).

36. Held error to exclude afflavit because not offered when identified upon cross-examination. Chicago City R. Co. v. Mauger, 128 Ill. App. 512.

01. Statements by witness in a deposition tanken in another cause are admissible to contradict him. Charlton v. Kelly \[C. C. A.\] 156 F 432.

01. Statement of conductor of train in presence of other members of the crew, not denied by them, held admissible as Inconsistent with their testimony. Denver, etc., R. Co. v. Mitchell \[Coo.\] 94 P 289.

01. Prior afflavit of witness contained facts based only on an estimate, not intend-ed to be treated as matters of fact. Held though inconsistent with his testimony, it did not affect his credibility. Southern R. Co. v. McNeill, 155 F 756.

01. Witness in assault case denied having said in justice court trial that he had gone to scene of trouble because he expected there might be trouble. Held, proof that he had made such statement was inadmissible, it being mere opinion. Vannhouser v. State \[Tex. Cr. App.\] 108 SWW 386.

01. A judge's notes are not competent evidence of testimony of a witness on a former trial. Richards v. Com. \[Ya.\] 53 SE 1104.

01. There being no authority for a magistrate to reduce testimony of witnesses to writing, owing to omission by legislature to re-enact Dummy Code, SS 1463, and Code 1892, $ 1463, transcript from justice court was incompetent to contradict a witness. Scott v. State \[Miss.\] 46 S 251,

01. Where particular witness was sought to be impeached by testimony before a magistrate, his testimony only, and not the testimony of all the witnesses before the magistrate, should have been offered. Scott v. State \[Miss.\] 46 S 251.

01. Declarations of a witness may be proved only to impeach the witness after foundation duly laid. State v. Luper \[Or.\] 95 P 811.

01. Whether they are written or oral Cai Hirsch & Sons Iron & Rail Co. v. Coleman. Z27 Ill. 149, $1 NE 21, affg. 128 Ill. App. 245.

01. Inconsistent statements inadmissible, no foundation having been laid. Larsen v. Sedro Woolley \[Wash.\] 94 P 938; Cal Hirsch ward \[Ky.\] 106 SWW 853, but this rule does not apply to an unverified pleading which has been expressly withdrawn (Id.).

01. The 48.

such as time, place, and persons present, placed before him," in order that he may be given a fair opportunity to recollect and explain his former statement, if he made any.\[51\] Documentary evidence sought to be used for purposes of impeachment should be called to the attention of the witness "2" or some notice of its intended use should be given.\[88\] The fact that the witness is not available does not dispense with the necessity for such foundation being laid.\[84\] Where testimony of a witness at the preliminary hearing is read on the trial, and the witness was cross-examined at such hearing but no foundation laid for proof of contradictory statements, such statements cannot be proved on the trial.\[88\] Where it has been admitted that an absent witness will testify as stated in an affidavit for continuance, such witness cannot be impeached by proof of contradictory statements, since the proper foundation cannot be laid.\[88\] The impeaching statement proved should conform to the predicate laid,\[87\] but a variance between the foundation and the statement proved is immaterial if not such as to make the two substantially different.\[88\] If a witness admits having made certain statements, other proof of them is usually excluded.\[89\] A party cannot prove a diffil-

50. A foundation is laid by interrogating the witness in regard to the previous con-

were not shown him, especially where pa-

pers, subsequently introduced, showed veri-

victing statements specifying time, place,

fication by another. Id. Where witness ad-

and person involved. Cal Hirsch & Sons

mitted having signed a paper procured from

Iron & Rail Co. v. Coleman, 227 Ill. 149, 81

him after being called as a witness, it was

NE 21, afg, 128 Ill. App. 245. The time

proper to ask him a question from it to lay

when and place where such statements were

a foundation for impeaching him. Hengaland

made must be fixed. New York, etc., R. Co

v. Flynn \[Ind. App.\] 81 NE 741. Questions

show witness transcript of former testi-

asking witness what he said as to a certain

many where questions were simply preliminary

matter, at a certain time and place, proper

and not by way of direct impeachment. People v, Hart \[Ca.\] 94 P 1042.

boro City R. Co. v. Allen \[Ky.\] 108 SW 357.

53. An affidavit need not be proved by per-

Where a witness admits that he identified

son who made it in order to be competent

at a corner's inquest, a question if he had

made a certain statement at the inquest

be asked concerning it on cross-examina-

le not objectionable as not fixing time and

tion, or some notice of its intended use

place. Coffey v. Omaha, etc., R. Co. \[Neb\]

should be given, in order to lay a foundation

112 NWV 589. Where witness sought to be

contradicted was not asked as to the time,

Noyorkucky v. Brooklyn Heights R. Co., 110

place, and circumstances of the alleged

statement, proof of it could not be made.

Gibson v. Senev \[Iowa\] 116 NWV 325. Question on cross-examination held to have fixed

as required by Civ. Code 1895, $ 528. Where

suitmently the time, place, person, and sub-

ject-matter of statement sought to be proved

to contradict a witness. State v. Hampton

\[S, C.\] 60 SE 669.

51. State v. Hampton \[S. C.\] 60 SE 669.

VWhere witness, on his cross-examination,

was not questioned as to previous statements, inconsistent with his testimony, and

his attention was not called to time, place,

or person, they could not be proved against

him. State v. Meyers \[La.\] 44 S 100S.

Where no foundation was laid for the im-

peachment of a witness, proof that he had

stated, in the presence of plaintiff, to one

who was looking up information for plaintiff, that he was not the man wanted, that

he could not see the crossing, nor within 25

yards of it, was inadmissible; presence of

plaintiff did not dispense with necessity for

foundation being laid. Harbert v. Atlanta,

etc., R. Co. \[S. C.\] 59 SE 644.

52. Not error to exclude contract offered

as impeaching evidence where it was not

shown to witness when on the stand. Tompaph Lumber Co. v. Riley \[Nev.\] 95 P 1001.

Not error to exclude impeaching questions

asked witness concerning statements made

in former suit, where papers referred to

were not shown him, especially where pa-

the witness in regard to the previous con-

pers, subsequently introduced, showed veri-

victing statements specifying time, place,

fication by another. Id. Where witness ad-

and person involved. Cal Hirsch & Sons

mitted having signed a paper procured from

Iron & Rail Co. v. Coleman, 227 Ill. 149, 81

him after being called as a witness, it was

NE 21, afg, 128 Ill. App. 245. The time

proper to ask him a question from it to lay

when and place where such statements were

a foundation for impeaching him. Hengaland

made must be fixed. New York, etc., R. Co

v. Canfield, 186 F 146. Held not necessary to

v. Flynn \[Ind. App.\] 81 NE 741. Questions

show witness transcript of former tes 10 Cur. Law. WITNESSES $ 5F. 2107

culty between a witness and a party to show bad feeling on the part of the witness toward him unless the witness denies that such feeling exists.60

(SS 5) \_F. Corroboration and sustentation of witnesses.\_See * C. L. 2882--Where no attempt has been made to impeach a witness, evidence which is merely corroborative of his testimony is inadmissible 61 though corroborative evidence, relevant on other issues, is proper,62 and, where impeachment evidence has been offered, evidence to re-but it is competent.68 The declarations of a witness, verbal or written, out of court, are inadmissible, as a rule, to corroborate his testimony on the trial,64 even where evidence of contradictory statements has been offered to impeach the witness,68 but where it is sought to be shown that a witness testified under corrupt motives, or that his testimony is a recent fabrication,69 and is the result of some relation to the party or the cause, or of some motive or personal interest,67 statements similar to the testimony of the witness may be shown provided it appears that the statements sought to be shown were made when the alleged motive or interest did not exist.68 Where prior admissions or contradictory statements have been proved, evidence is competent, in

60. Proper to refuse to allow difficulty to be shown when feeling was not denied. * Sabs. Slone v. Com, \[KS.\] 110 SWV 235. It is ordinarily incompetent to sustain a vtt- 61. As a rule the mere cross-examination of a witness will not warrant introduction of testimony to sustain the witness. Var- \[Ind. T.\] 104 SWV 1166. Where a person c.t. Rep. 254, 103 SWV 888. In prosecection for illegal sale of liquor, held improper to add first, and explained the discrepancy and cuing witness. Selsvert v. State, 61 Tex. Cr. App. 404, 19 Tex. Ct. Rep. 135, 103 SWV 932. * g2. Victim of robbery told of force used. * S.D. J. 112 NVP 960. Where character of witness had not been attacked except by tim's testimony. People v. Whitelaw \[Cal. App.\] 95 P 379. Where witness testified to having paid premiums, what she formerly said concerning the matter was admissible in corroboration. Matthews v. Metropolitan Life Ins. Co. \[N. C.\] 61 SE 192. Witness testified that oral partnership agreement had been reduced to writing but not signed. * Held writing admissible cn issue of truth of his statement. Michigan Shso Co. v. Paul, 149 Mich. 695, 14 Det. Leg. N. 554, 113 NVP 310. Where defendants claimed land through a certain conveyance which limits d. nied, certain evidence corroborative of defendants' testimony was admissible. Powers v. Hatter \[Ala.\] 44 S 859. * G3. Defendant sought to show bias of a witness against him by proof of a difficulty between witness and defendants' brother- \[In-law.\] Heid competent for state to show in rebuttal that someone had told witness he had better not testify against defendant. Strong v. State \[Ark.\] 109 SWV 536. Where in criminal prosecection defendant showed by a police officer, a witness, that he was anxious to convict defendant, it was proper for the state to show that his interest arose solely from a desire to discharge his duty as a police officer and his belief in defendant's guilt. People v. Wenzel, 189 N. Y. 275, #2 NE 130. * G4. Written statement inadmissible. Birmingham R., L. & P. Co. v. Hayes \[Ala.\] 44 S 1032. Previous statements by witness * 2108 Witnesses $ 5F. 10 Cur. Law rebuttal, to show that such statements were not made," or to explain them " as by proof of all the circumstances " or the entire testimony or statement of the witness."

The mere cross-examination of a witness," or a mere conflict in the evidence," does not warrant introduction of proof that the reputation of a witness for truth and veracity is good unless the witness is impeached in some manner recognized by the rules of evidence." Evidence of the general reputation of a witness for truth and veracity is said to be admissible in support of the witness in the following cases: First, where there has been a direct or indirect attack on the character of the witness," as by offering evidence tending to show that his general reputation for truth

- Where defendant testified that plaintiff
- why and on what grounds he had verified had made a certa'n statement, a letter con-
- papers in another suit, introduced to imtaining a contrary statement was held a-
- possible as tending to show improvability
- v. Riley \[Nev.\] 95 P 1001.
- 72 Where accused tried to impeach a witness by showing testimony at committing v. Farwell, 80 Vt. 166, 67 A 129. Where accused denied making a statement, an state
- then, verified statement of witness' testiproved it by witnesses, accused should have been allowed to introduce testimony in support of his denial. State v. Constantine \[Vash.\] 93 P 517. Where prosecution's witnesses had been impeached by evidence by a grand juror that they had testified differently to explain the con-
- and the same was competent to corroborate them. Kennedy v. Com. \[Ky.\] 109 SWV 318.
- 70 Defendant having sought to impeach plaintiff by showing inconsistent statements
- out of court, testimony of plaintiff was ad-
- possible in rebuttal to explain the impeach-
- evidence. Long v. Davis \[Iowa\] 114 NWV 197. Held proper in view of evidence concerning the conduct and prior statements of a witness to allow her to state that she had not told what she knew and would testify to, because another had said defendant would kill her if she did, Sasser v. State, 129 Ga. 541, 59 SE 255. Where a written document is offered in evidence for the purpose of impeaching or contradicting a witness, it is error for the court to refuse such witness an opportunity to explain such written document or evidence. Idaho Placer Min. Ce. v. Green \[Idaho\] 93 P 554. Where defendant sought to show a variance between the testimony of the state's witnesses on the trial and that given at the impeached, the state could show by the corner that he did not take down the entire statements of the witnesses but the substance of their testimony. State v. Hampton \[S. C.\] 60 SE 669. Witness testified that testifact was of sound mind, and, to impeach him, a contract executed by witness was introduced reciting that testiadv was non compements. Held proper to allow witness, in explanation, to state that he did not know what "non compements" meant. Brown v. McBride, 123 Ga. 52, 58 SE 702.
- 71 Where witness testified contrary to a written admission previously made by him, the jury were entitled to consider, cn the issue of his credibility, the circumstances under which he signed the writing. Joyce v. Joyce \[Conn.\] 67 A 347. Where letter was introduced tending to contradict the writer's testimony, evidence of her physical condition at the time she wrote it was admissible. Paulkiner v. State \[Tex. Cr. App.\] 109 SWV 199. Proper to allow witness to explain
  and veracity is bad; "" second, where the witness has been impeached by evidence of particular acts of criminal or moral misconduct, either cross-examination or by record of conviction; " third, where impeachment is by evidence of corruption on the part of the witness in connection with the case in which he appears; " fourth, where impeachment is by evidence of contradictory or inconsistent statements, admitted on cross-examination or shown by the testimony of other witnesses." Proof of good reputation must be made by a qualified witness." Proof of general good character is admitted in some states after an attempt to impeach," but is excluded in the absence of impeaching evidence."

SS 6. \_Privileges of witnesses.\_See * C. L. 2885--Under the Federal and state constitutions no person, in a criminal case, can be compelled to give evidence against himself," and no witness in any legal proceeding can be compelled to give evidence

admissible. Watson v. State \[Ala.\] 46 S has not been impeached except by proof of 332. The good reputation for truth and veracity of witnesses who have not been attacked and who have not testified to facts but only to another person's reputation cannot be shown. Pratt v. State \[Tex. Cr. App.\] 109 SVW 138.

77. This rule is unquestioned. First Nat. Bk v. Blakeman \[OoL.\] 51 P 868. Where a witness' reputation for truth and veracity is attacked, testimony of one who had known him in the community where the river is for many years and had never heard his reputation for truth discussed was admissible in support of the witness. Spencer v. State \[VVis.\] 112 NWV 462.

78, 79. Rule supported by weight of authority. Cases cited. First Nat. Bk v. Blakeman \[OoL.\] 51 P 868. Where a witness' reputation for truth and veracity is attacked, testimony of one who had known him in the community where the river is for many years and had never heard his reputation for truth discussed was admissible in support of the witness. Spencer v. State \[VVis.\] 112 NWV 462.

78, 79. Rule supported by weight of authority. Cases cited. First Nat. Bk v. Blakeman \[OoL.\] 51 P 868. Where a witness' reputation for truth and veracity was attacked to be in irrecon-cliable conflict on this class of cases, but rule as stated is said to be better supported by reason. Cases cited. First Nat. Bk v. Glakeman \[OoL.\] 51 P 868. Where in burglary case defendant relied largely on his explanation of being found in a car, and the state attacked this explanation and also tabsight to impeach him directly on one point, proof of his good reputation for truth and veracity was admissible. Butler v. State \[Tex. Cr. App.\] 107 SWV 840. Where accused sought to impeach prosecuting witness in rape case by proof of inconsistent testimony at prejiminary hearing, evidence of her good reputation for veracity was admissible. Brown v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 555, 106 SWV 368.

S1. Error to receive testimony to support plaintiffs reputation for truth and veracity (after an attempt to impeach him) by a witness who did not say that he knew plaintiffs reputation in the community where he lived. Lee v. Andrews \[Mich.\] 14 Del. Leg. N. 811, 114 NWV 672.

82. Where it is sought to impeach a witness by proof of previous contradictory statements as to relevant matters, proof of his good character is admissible. Civ. Code is95, 5292. Bell v. Alken, 1 Ga. App. 36, 57 SE 1001. Where defendant examined witnesses with respect to contradictory statements made by a certain witness for the purpose of impeaching him, the state could sustain the witness by proof as to his general character. Graham v. State \[Ala.\] 45 S 580.

01. Where the character of a defendant that will tend to incriminate him "" or subject him to a criminal prosecution." It is held that the constitutional provision should be applied in a broad and liberal spirit so as to secure immunity from every species of self-accusation." Statutes which infininge the constitutional privilege are of course, invalid." It is immaterial that no criminal prosecution has been instituted against the witness; the constitutional immunity extends to any preliminary investigation, or even collateral or independent proceeding," in which it is sought to elicit evidence which may result in prosecution." The privilege against self-crimination applies in all cases in which punishment may be inflicted." Thus, a court officer cannot be compelled to give testimony which will render him liable to punishment for contempt," but an officer may be compelled to testify to acts outside the scope of his official duties for which he cannot be punished as for contempt or otherwise." Defendant in a criminal prosecution is a competent witness on the issue of former acquittal, and he may testify on that issue without being compelled to testify on the criminal issue."

The privilege is personal to the witness and may be waived by him," and failure to claim it is a waiver." It cannot be claimed for the benefit of another." When the privilege has been waived, the witness may be compelled to make full disclosures." Thus, where accused persons take the stand in their own behalf, they may be fully cross-examined."

October 9, 1906, without extending immunity to be a witness against himself. People v. from criminal prosecution, is not available to corporation which has been fined for con- tectok tax law cannot well be enforced without im falling and absolutely retusing to out some such provision as to inspection is produce any of books and papers called for, no reason for upholding the law. Id. Laws with unimportant exceptions, and has thus prevented court from inquiring into validity superintendent of elections to subpoena wit- of objection. Consolidated Rendering Co. v.

nesses in examination of registration lists, Vermont, 28 S. Ct. 178.

SSS, Discovery of an Instrument alleged to testify shall be guilty of a misdemeanor, contain a libel will not be required, since and one testify falsely shall be guilty of this would compel the holder of the paper to give evidence against himself. Hadle v.

a witness from claiming his privilege against Blackburne, 110 NYS 748. Manager of cor- self-crimination and is not invalid on that portion allowed to claim privilege as to goods of corporation, where object was to determine criminal liability in timber deals, elections power to subpoena and examine and where, it looks showed any criminal wattens in an examination by him of reg- acts, they would involve the manager, as he had charse of the business of the corpora- proceeding and is not invalid as requiring. Ex parte Chapman, 163 BY 571.

86. Where interrogatories are submitted to a party, he may refuss to answer on the ground that he cannot be compelled to give evidence which might subject him to crimin- nal prosecution. Morris v. McClellan \[Ala.\]

48 S 641. Order to produce power of attor-ney authorities one to conduct a saloon in another's name held not to require witness to discriminate himself on the theory that he might be proceeded against for running a saloon without a license. Hilliker v. Farr, 149 Mich. 444, 14 Det. Leg. N. 497, 112 NWV 1116.

87. People v. Reardon, 109 NYS 604.

01. Under New York statutes it is a mis-demeanor to sell, transfer or deliver stock without paying the tax thereon. Laws 1905, c. 241 (Tax Law 321), requires bckers to keep records of all stock transactions handled by them and all purchases and sales by them, and gives the state comptroller power to inspect such books, and makes refusal to permit inspection a misdemeanor. Heid the latter statute violates Const. art. 1. & 6, providing that no person shall be compelled to the same rules as to 10 Cur. Law. WITNESSES SS 6. 2111

It is commonly provided by statute that the failure of accused to testify shall raise no presumption against him, and reference to or, comment upon a failure to testify is prohibited.1 Under such a statute, an instruction to the jury that the failure of the accused to testify does not relieve the state from the obligation to produce evidence which will establish guilt beyond a reasonable doubt is not reversible error.2 Such statutes do not apply in civil actions.8

Where by statute absolute immunity from prosecution is guarantied to the witness in regard to anything concerning which he may testify, he may be compelled to testify,4 but the immunity granted by statute must be as broad as the constitutional exemption itself,5 since the legislature has no power to abridge the constitutional privilege.6 A statute providing that testimony given by a person required to testify shall in no case be used against him is not sufficiently broad,7 since it does not exclude use of evidence which may be discovered by means of such testimony and proved by other witnesses.8 The North Carolina act in regard to lynchings, providing that no person shall be accused from testifying in an investigation but declaring that a witness who is examined is fully pardoned of any and all participation in the crime defined by the act, is held valid.9 Any person examined in such an investigation is thereby pardoned and exempt from prosecution, whether or not the testimony given by him was incriminating.10 A statute requiring witnesses to testify in certain proceedings, and granting immunity from prosecution for crimes disclosed by their tie-timony, does not grant immunity from prosecution for perjury committed in such proceeding.11 If the prosecution for the crime concerning which the witness is interrogated is barred by the statute of limitations, he may be compelled to answer.12

If the answer of a witness may have a tendency to disgrace him and bring him into disrepute, and the proposed evidence be material to the issue on trial, the weight of authority is that he may be compelled to answer,13 but if the answer have no effect upon the case except to impair the credibility of the witness, he may rely upon his privilege.14 :

- \[noitemsep\]
  Where, in a hearing before a master, a witness is apprehensive that some harm may be done his personal or property rights, he may decline to answer a question propounded to him and stand upon his refusal until the court has determined the question," and the failure of the adverse party to press the question to a final determination is a waiver of the right to an answer.16

While it is the policy of the law to protect the secrecy of the ballot, a voter may waive his privilege and testify for whom he voted.17

A refusal to answer cannot be justified on the ground that the proceeding was not the proper one, this being a question for the court.18

In Michigan an assessing officer cannot be compelled to produce a return made by a property owner.19

SS 7. \_Subpoenas, attendance, and fees.\_See * C. L. 2389--Courts have inherent power to compel the attendance of witnesses 20 and the production of evidence.21 Failure to obey subpoena, unless justified, is a contempt of court.22 No-employe of a corporation who may obtain possession of the corporation's books or papers, surreptitiously or otherwise, when not the legal custodian of such books and papers and when they are not in any sense his private property, can lawfully refuse to produce them when legally ordered to do so.23 If such books and papers are turned over by one employe to another for the purpose of evading a subpoena duces teecum, it is proper for the court to order them returned to the proper custodian.24 To entitle a party to a subpoena duces teecum requiring a witness not a party to produce books and documents in his possession, the application must set out facts showing prima facie that the books and documents desired are relevant and material.25 A mere allegation that they are relevant and material is not sufficient.26 The description of the books and documents wanted must be sufficiently specific to enable the witness to identify and produce them.27 Refusal of a witness to produce documentary evidence before

15, 16. Dr. Peter H. Fahrney & Sons Co. and testified before commissioner in his own v. Kuminer \[C. C. A.\] 153 F 735.

17. People v. Wintermute, 122 App. Div. 349, 108 XYS 1076. While the law does not permit the questioning of a legal voter as to how he voted, and an illegal voter might decline to answer cn the ground that his answer might tend to incriminate him, yet where an illegal voter does not claim his privilege of refusing to testify, but voluntarily discloses that he did vote, he may be compelled to tell for whom he voted. State v. Markley, 9 Ohio C. C. (N. S.) 561.

01. Where surviving husband, in a snow cause proceeding relating to property of the estate, refused to answer questions when required to do so, he was guilty of contempt, the court having complete jurisic- tinction. Husband could not determine whether proceeding was proper and thus justify h's refusal. Succession of Desina, 118 La. 278, 42 S 938.

01. Comp. Laws Mich. 1897, $ 3846, provides that statements by property owners to assessing officers shall be filed and shall be used for no other purpose than assessing property, and makes officers liable for damage resulting from their use for any other purpose. Field an officer cannot be compelled to produce such a statement in evidence in a state or Federal court, though no adjection is made. In re Reid, 155 F 933.

01. Court has power to subpoena witness to appear before grand jury. Ferriman v. People, 128 Ill. App. 230. Party to interference proceeding before patent office appeared 10 Cur. Law. WITNESSES SS 7. 2113

the grand jury does not, in Nevada, authorize summary punishment of the witness as for contempt of court.\[28\] The witness has a right to be heard and the proceeding should comply with the statute.\[29\]

A person accused of crime is entitled to compulsory process for witnesses in his favor.\[30\] To require the court to issue compulsory process, accused must not only designate the witness but must show that such witness will testify in favor of accused and that his testimony will be material.\[41\]

There is a conflict of authority as to the right of an expert witness, testifying to matters involving professional knowledge, to recover compensation above the ordinary witness fee.\[32\] In some states it is held that an expert cannot recover extra compensation for services as a witness merely,\[33\] though there may be a recovery for time and services rendered in preparing to give expert testimony.\[44\] It is further held that a contract for extra compensation for expert testimony is invalid as against public policy,\[35\] and the fact that the party calling the witness knew of his custom to charge for services as a witness does not warrant a recovery.\[36\] Under the Minnesota statute relating to fees of expert witnesses, it is held that physicians and surgeons who testify as witnesses concerning facts coming under their observation while professionally attending a patient, and express opinions with reference thereto, are not necessarily entitled to compensation as expert witnesses,\[37\] but where physicians and surgeons are engaged to treat and examine an injured person for the purpose of acquiring the knowledge necessary to qualify them as expert witnesses, they are not necessarily disqualified as such by the fact that they also treated the patient professionally.\[38\]

In Missouri it is h${}^{c}$ld that subpoenas must contain the names of witnesses to be summoned when issued by the clerk in order that witness' fees and fees of service may be recovered as costs.\[39\]

28. Construing Comp. Laws, SS 355E. Such content is not in "presence of court." Ex parto Hedden \[Nev.\] 90 P 137.

01. Affladavit, order to show cause, etc. Order of commitment void because procedure summary. Ex parto Hedden \[Nev.\] 90 P 737.

01. Const. art. 1, SS 18, sufficiently complied with where compulsory process was awarded and witness bound over under recognizance to appear, and bench warrant issued for arrest of witness. State v. Pope \[S. C.\] 58 SE 815. Under Const. SS 8, D. art. 6, SS 7, enttilting accused to compulsory process for witnesses, he is entitled to have his witnesses present, if their presence can be precured, and this includes means to secure their presence or the advantages which would flow therefrom. State v. Wilcox \[S. D.\] 114 NVV 687.

01. Construing Const. art. 1, SS 18. State v. Pope \[S. C.\] 68 SE 815.

01. See authorities cited in Burnett v. Freeman, 125 Mo. App. 683, 103 SW 121.

01. Physican. Burnett v. Freeman, 125 Mo. App. 683, 103 SW 121.

01. App. 683, 103 SW 121. There being no statute on the subject of fees to expert witnesses in Georgia, such witnesses cannot be allowed extra compensation beyond that allowed to ordinary witnesses for mere attendance in court in obededence to a subpoena. Schofield v. Little, 2 Ga. App. 286, 58 SE 666. One who testifies as an expert to facts within his own knowledge, and 10 Cur. L. - 188.

On the question of mileage allowance, statutes are, of course, controlling.\[40\] The allowance of witness' fees as costs is elsewhere discussed.\[41\]

Wounds and FORESTs; WORK AND LABOR; WORKING CONTBACTES; WEECK, see latest topical index.

40. Ann. St. 1906, SS 3259, allows 5 cents per he could have gone by wagon. Ferguson & mile for distance necessarily traveled by McDaris Lumber Co. v. Tiede & Co. \[Mo. witnesses. This does not require use of App.\] 109 SWF 850. shortest route. Mileage properly allowed in full where witness traveled by rail, though

Tennessee citation index digest.

FOR VOLS. 7 TO 10 CURRENT LAW.

(Copyright 1908, by The Keefe-Davidson Co.)

Refers to volume (vol) page (p) and foot-note (n) of Current Law.

A

Transmission, filing, and printing. Vol 7 p 193 n 49.

/

ABSTRACTs OF TITLE.

Amendment and correction. Vol'9 p 180 = 26.

Vol 9 p 9 n 8, 10, 11, 12, 13.

Specifications and averments of error. Vol 7 p 198 n 83. Vol 9 p 184 n 69; p 185 n 70.

Briefs and arguments. Vol 9 p 188 n 94.

Fraud, mistake and duress. Vol 7 p 15 n 82; p 16 n 90, 93, 95.

Pleudings, issues and proof. Vol 7 p 17 n 20.

Vol 7 p 17 n 20.

**ACKNOWLEDGEMENTS.**

Nature, office, and necessity. Vol 9 p 22 n 55.

Offcers who may take. Vol 9 p 23 n 65.

Operation and effect. Vol 7 p 27 n 56, 57.

Vol 9 p 26 n 96.

**ADVERSE POSESSION.**

Definition and essential elements. Vol 7 p 43 n 10.

**AGENCY.**

Competency to act as agent or to employ agents. Vol 7 p 62 n 25.

Ratification by principal. Vol 7 p 83 n 71.

**ANIMALS.**

Estrays and impounding. Vol 7 p 124 n 42.

Regulations as to care; keeping, protection and health. Vol 7 p 126 n 54, 65.

**APPEAL AND REVIEW.**

The right in general. Constitutional and statutory provisions; policy of the law. Vol 7 p 119 n 11.

The common remedies. Vol 9 p 111 n 97.

Reverwabeness may depend on character or value of action, subject-matter or controversy. Vol 9 p 129 n 88.

Time for instituting and perfecting. Vol 9 p 134 n 31.

Transfer of jurisdiction; supersedeas and stay. Vol 9 p 141 n 1; p 143 n 13.

What the recover proper must show. Vol 7 p 164 n 85.

What is part of record proper; necessity of secondary record. Vol 9 p 149 n 74.

Form, requisites, and settlement. The bill of exceptions. Vol 9 p 151 n 86; p 152 n 96; p 155 n 13.

Sufficiency of entire record to present particular questions (Presumptions on appeal). Vol 7 p 184 n 3; p 185 n 3. Vol 9 p 166 n 65; p 169 n 75.

Form and contents of transcript or return. Vol 9 p 176 n 94.

Vol 9 p 176 n 94.

TENNESSEE INDEX DIGEST. 10 Cur, Liaw.

Refers to volume (vol) page (p) and foot-note (n) of Current Law.

**B**

**CAURES OF ACTION AND DEFENSES.**

**BANKING AND FINANCE.**

Vol 7 p 604 n 59, 61.

Depoints and repayment thereof. Vol 7 p 529 n 47.

**CERTERTIES.**

**Losans and discounts. Vol 9 p 340.n 8, 9.**

**SALRKUPTCY.**

**CERTORARI.**

Property and rights passing to trustee in general. Vol 7 p 400 n 95: p 401 n 10, 11.

**Nature**, occasion and propriety of remedy.

\*\*Vol 7 p 609 n 3. Vol 9 p 545 n 82.

**Nature** of trustee's title in general. Vol 7 p 402 n 82.

**CMLEGES AND ACADEMIES.**

\*\*The trustee takes free from liens. Vol 7 p 658 n 3, 13; p 660 n 47: p 661 n 48.

**P Protection of trustee's title and possession.**

**Vol 7 p 414 n 83.**

\*\*Likhil
Refers to volume (vol) page (p) and foot-note (n) of Current Law.

CONFNATS FOR TTLLE

Considering. Vol p p 665 n 72.

Subject-matter or consideration. Vol p p 671 n 30.

Public policy in general. Vol p 781 n 22.

Restraint of trade. Vol 7 p 781 n 83, 85; p 788 n 85.

Interpretation. General rules. Vol 7 p 792 n 20, 64, 65; p 804 n 65. Vol p 684 n 28.

Character; joint or several, entire or divistib-

lbc, etc. Vol 7 p 803 n 61.

Discharge by performance or breach. General rules. Vol 7 p 810 n 11.

Excesses for failure to perform. Vol 9 p 699 n 38.

Time and mode of resession and abandonment. Vol 7 p 821 n 97.

Particular remedies and election between them. Vol 7 p 826 n 37.

Procedure at trial; verdict and judgment. Vol 9 p 719 n 28.

CONVERSION AS TORT.

What constitutes. Vol p p 723 n 75.

Practice and procedure. Vol 9 p 726 n 29;

p 727 n 49.

CONVERSION IN EQUITY.

How effected. Vol 7 p 855 n 80; p 856 n 82.

Effect of conversion. Vol 9 p 729 n 79.

CORFORATIONS.

Definition and nature of corporations. Vol 9 p 735 n 61.

Creation, name and existence of corporations, and the amendment, extension and revival of charters. Vol 9 p 738 n 14.

Effect of irregularities in organization, and of failure to incorporate. Vol 9 p 740 n 32.

Torts, penalties and crlmes. Vol 9 p 747 n 54, 55, 56, 57.

How corporations may be dissolved; forfeit-

urg of charter; effect of dissolution: wind-

msg up under statutory provisions. Vol 7 p 886 n 89, 92; p 888 n 21.

Subscriptions to capital stock and other agreements to take stock. Vol 9 p 759 n 34, 37; p 760 n 38, 91; p 763 n 77.

Corporate meetings and elections. Vol 7 p 912 n 59.

Salary or other compensation of officers. Vol 9 p 778 n 9, 10.

Powers of directors or trustees. Vol 7 p 917 n 35, 36, 37.

CONSTS.

Power to award costs. Vol 9 p 813 n 21.

Costs. In criminal prosecutions. Vol 9 p 822 n 89.

Procedure to tax costs; correction and re-

view. Vol 7. p 973 n 63; p 974 n 69.

Enforcement and payment. Vol 9 p 826 n 85.

CONUTIES.

Officers; personal rights and liabilities. Vol 7 p 978 n 43; p 881 n 55; p 982 n 76; p 983 n 80, 81.

General powers, duties and liabilities. Vol 7 p 984 n 7; p 985 n 23; p 986 n 26; p 988 n 42; p 990 n 72; p 991 n 78, 80; p 994 n 20; p 997 n 73.

Property and funds. Vol 9 p 835 n 24.

3

Iiefers to volume (vol) page (p) and foot-note (n) of Current Law.

**EMINENT DOMAIN.**

Definitions and nature of power. Vol p p 1230 n 3.

1074 n 13.

Who may exercise the right; delegation of power. Vol 7 p 1279 n 52.

Purposes and uses of a public character. Vol 7 p 1282 n 98.

Property liable to appropriation and estates therein which may be acquired. Vol 7 p 1284 n 23; p 1285 n 31.

What is a "taking." "in"in" or "damaging" of property. Vol 7 p 1289 n 78, 80, 81.

Vol 9 p 1082 n 12, 19; p 1083 n 30.

Conditions precedent to the exercise of the power; location of route. Vol 7 p 1291 n 6.

Vol 9 p 1084 n 37, 38.

Measure and sufficiency of compensation. Vol 7 p 1293 n 20; p 1294 n 24. Vol 9 p 1088 n 57.

Applications; petitions; pleadings. Vol 9 p 1095 n 43.

The trial or inquest, and hearings on the question of. damages. Vol p 1098 n 86.

Verdict; report or award: judgment thereon and then or enforcement of judgment. Vol 9 p 1130 n 40.

Review of condemnation proceedings. Vol 9 p 1104 n 54.

Actions for tort, damages, or trespass; recovery of property. Vol 7 p 1317 n 98.

Ownership or interest acquired. Vol 7 p 1320 n 36. Vol p 9 p 1108 n 7.

**EQUITY.**

Occasions for, and subjects of equitable relief. Vol 7 p 1341 n 45.

Practice and procedure in general. Vol 7 p 1351 n 26.

Taking bill as confessed or on default. Vol 7 p 1370 n 19, 22, 24, 25. Vol 9 p 1142 n 93.

Trial by jury or master, their verdiets and findings. Vol 7 p 1371 n 57.

Rehearling. Vol 8 p 1150 n 19, 21.

B1H of review. Vol 7 p 1380 n 70, 79; p 1381 n 80, 88; p 1382 n 98, 2.

**ESCAPE AND RESCUE.**

Vol 7 p 1383 n 23.

**ESTATES OF DECEDENTS.**

Jurisdiction and courts controlling administration. Vol 7 p 1389 n 29.

Procedure to obtain administration and grant of letters. Vol 7 p 1399 n 9.

Removals. Vol 7 p 1401 n 34.

The authority, title, interest, and relationship of personal representatives. In general. Vol 9 p 1168 n 3:

Exhibition, establishment, allowance, and enforcement of claims. Vol 7 p 1423 n 54.

Tlights and liabilities between representative and estate as to management of and dealings with estate. Vol 9 p 1193 n 91.

Prostate orders and decrees. Vol 7 p 1476 n 77.

**ESTOPTEL.**

Estoppel in pais. Vol 9 p 1221 n 46: p 1223 n 63.

Extent of operation of doctrine of estoppel. Vol 7 p 1510 n 75. Vol 9 p 1227 n 62.

To Cur. Law.

Iiefers to volume (vol) page (p) and foot-note (n) of Current Law.

**EVIDENCE.**

Definitions and nature of power. Vol 9 p 1280 n 3.

Preshampions and burden of proof. Vol 9 p 1236 n 75.

Procedure to obtain administration and grant of letters. Vol 7 p 1399 n 9.

Removals. Vol 7 p 1401 n 34.

The authority, title, interest, and relationship of personal representatives. In general. Vol 7 p 1531 n 54.

Explhibition, establishment, allowance, and enforcement of claims. Vol 7 p 1423 n 54.

Tlights and liabilities between representative and estate as to management of and dealings with estate. Vol 9 p 1193 n 91.

Prostate orders and decrees. Vol 7 p 1476 n 77.

**ESTOPTEL.**

Estoppel in pais. Vol 9 p 1221 n 46: p 1223 n 63.

Extent of operation of doctrine of estoppel. Vol 7 p 1510 n 75. Vol 9 p 1227 n 62.

To Cur. Law.

Iiefers to volume (vol) page (p) and foot-note (n) of Current Law.

**EVIDENCE.**

Definitions and nature of power. Vol 9 p 1074 n 13.

Who may exercise the right; delegation of power. Vol 7 p 1279 n 52.

Purposes and uses of a public character. Vol 7 To Cur. Law. TENNESSE INDEX DIGEST.

Refers to volume (vol) page (p) and foot-note (n) of Current Law.

Adjudication as estoppel of facts litigated. Injury to, obstructions of, or encroachment

Vol 0 p 1440 n 95.

Pleading and proof. Vol 7 p 1769 n 28, 29.

**PROMETERNAL MUTUAL DENEFFIT ASSOCIATIONS.**

Rights of surviving spouse, children, helms,

or dependents of homestead tenant. Vol 9 p 1634 n 60; p 1635 n 70.

1451 n 36.

Modification and alteration of contract or

its terms. Vol 9 p 1459 n 11; p 1450 n 11.

The beneficiary. Vol 7 p 1799 n 71, 72; p 1800 n 84, 85; p 1801 n 87; p 1802 n 99.

**PROATD AND UNDUE INFLUENCE.**

Actual fraud. Vol 7 p 1815 n 8. Vol 9 p 1476

Inerences from circumstances and condition

of parties or from intrinsic nature of

transaction. Vol 9 p 1455 n 26.

Remedies. Vol 7 p 1820 n 43; p 1821 n 49, 53.

Vol 9 p 1493 n 90.

**PROADS, STATUTE OF.**

Agreements not to be performed within one

year. Vol 7 p 1827 n 82.

Trusts. Vol 7 p 1838 n 59.

Part performance of contracts for the sale

of land. Vol 7 p 1836 n 1.

**PROATDULENT CONVEYANCES.**

Proceedings to compel support of wife. Vol

Validity and effect. Vol 9 p 1519 n 11.

**GARNISHMENT.**

Claims or interventions. Vol 7 p 1872 n 93.

**PROOD WILL.**

Vol 7 p 1882 n 47: p 1883 n 54.

**PROATD JURY.**

Constitution of juries; qualifications of jur-

ors. Vol 7 p 1884 n 73.

Powers and procedure. Vol 7 p 1886 n 90.

50.

Objections and waiver thereof; estopped to

urge. Vol 7 p 1888 n 18; p 1889 n 24, 29, 30.

**PROATD JURY.**

Constitution of juries; qualifications of jur-

ors. Vol 7 p 1884 n 73.

Refers to volume (vol) page (p) and foot-note (n) of Current Law.

Instructions. Vol 10 p 150 n 73; p 155 n 93;

p 162 n 25; p 163 n 41; p 167 n 60; p 163 n 62.

Verdict. Vol 10 p 173 n 3.

Weessity of objection, motion, or exception. Vol 10 p 189 n 91.

Sufficiency of objection or motion. Vol 10 p 193 n 18.

Harmless or prejudicial error. Vol 10 p 203 n 63; p 207 n 76.

Adiplications which may be reviewed. Vol 10 p 211 n 25.

Practice and procedure in reviewing court. Vol 10 p 218 n 75, 79; p 223 n 13; p 225 n 19; p 229 n 43.

gcope of review. Vol 10 p 230 n 60; p 235 n 99; p 236 n 1.

Decision and judgment of the reviewing court. Vol 10 p 237 n 18.

Summary prosecutions and review thereof. Vol 8 p 266 n 49.

Vol 8 p 266 n 49.

Evidence; questions of law and fact. Pre-

INFANTS.

Statutes for the protection of infants. Vol 10 p 241 n 72.

10 p 241 n 72.

INJUNCTION.

Nature of remedy and grounds therefor. Vol 10 p 248 n 50.

Public, official and municipal acts. Vol 8 p 289 n 83.

INNIKCATING LIQUORS.

INNS, RESTAURANTS AND LODING

Houses.

440 n 94.

Vol 10 p 286 n 65, 70, 71.

General rules of criminal responsibility. Vol 8 p 503 n 29; p 504 n 36.

INSANE PERSONS.

Custody, guardianship, and support. Vol 8

. p 323 n 17, 18.

INSOLVENCY.

Remdition, entry, and docketing. Vol 8 p 540

Adiministration of insolvent estate. Vol 8

Procedure to amend, open, vacate, or enjoin.

p 332 n 42.

Vol 10 p 494 n 30, 36.

INSPECTION LAWS.

Vol 8 p 333 n 52.

Legislative power respecting jurisdiction. Vol 8 p 582 n 68. Vol 10 p 514 n 87.

General or inferior, limited and special jurisdiction. Vol 8 p 585 n 46; p 596 n 46.

Province of court and jury. Vol 8 p 385 n 66.

In 6.

Outty of instructing. Vol 8 p 344 n 97. Vol 10 p 298 n 24; p 304 n 69.

Form and general substance of instructions. Vol 10 p 311 n 98.

Relation of instructions to pleading and evidence. Vol 10 p 316 n 25; p 317 n 25; p 318 n 28.

In 28.

Review. Vol 10 p 334 n 21; p 335 n 28.

INSURANCE.

Agents and solicitors for insurance. Vol 10 p 340 n 40, 44.

The contract of insurance in general and general rules for its interpretation. Vol 8 p 424

p 396 n 67, 68.

Premiums and premium notes, dues and assessments and payment of the same. Vol 8 p 401 n 7.

Warranties, conditions and representations. Vol 8 p 404 n 36, 37. Vol 10 p 357 n 59.

Vol 8 p 404 n 36, 37. Vol 10 p 357 n 59.

The task or object of indemnity. Accident

and health insurance. Vol 8 p 412 n 89.

Vol 10 p 561 n 91.

Options and privileges under policy. Vol 8 p 420 n 56.

Change or substitution of contract or risk or of conditions thereupon. Vol 8 p 424 n 97; p 425 n 97, 4, 5; p 426 n 6.

Resciasion, forfeiture or cancellation for breach of contract, condition, or warranty, or misrepresentation. Vol 8 p 428 n 28, 29, 31; p 430 n 56, 56. Vol 10 p 375 n 6, 9;

376 n 14.

Estoppel or waiver of right to cancel or avoid. Vol 8 p 432 n 8; p 435 n 74.

Relantiatement. Vol 8 p 444 n 29.

The loss or benefits, its extent, and extent of liability therefor. Vol 8 p 445 n 46.

Notice, claim, and proof of loss. Vol 10 p

Vol 8 10 Cur. Law. TENNESSEE INDEX DIGEST.

Refers to volume (vol) page (p) and foot-note (n) of Current Law.

**JUSTICES OF THE PEACE.**

Risks assumed by servant. Vol 10 p 752 n

86; p 766 n 11; p 759 n 15.

The office. Vol 10 p 558 n 76.

Contrutory negligence. Vol 8 p 914 n 69;

P 919 n 81. Vol 10 p 768 n 83; p 770 n 59;

n 52; p 559 n 78; p 563 n 52.

Appeal and error and remedies extraordina-

Pyidence in servant's action for injuries.

ry. Vol 10 p 86 n 27; n 82.

Lability for injuries to third persons. Vol 8 p 945 n 32. Vol 10 p 806 n 6; p 807 n 6,

8, 9, 10, 11, 12.

**MECHANICS' LIENS.**

**Nature of lien and right to lien in general. Vol 10 p 815 n 90.**

**LARCENY.**

Services, materials, and claims for which

Items may be had. Vol 10 p 815 n 95.

Subcontractors and matrilemma. Vol 10 p

818 n 43.

Notice and demand, statement to acquire

Damages and the aggravation and mittiga-

Item. Vol 10 p 819 n 60; p 821 n 82, 83.

tion thereof. Vol 10 p 615 n 37; p 616 n 41.

Remedies to enforce lien. Vol 10 p 824 n 39.

Evidence. Vol 8 p 726 n 85. Vol 10 p 619 n 94.

Parties in proceedings to enforce lien. Vol 10 p 825 n 44, 46.

Pleading, practice and evidence. Vol 10 p

827 n 78, 75, 80.

Interpretation of statutes and ordinances

and persons subject. Vol 10 p 630 n 12.

**LIFE ESTATES, REVERisions AND REMIDRS.**

Construction and effect of mortgages in general. Vol 8 p 1031 n 55.

\[See' the topic Real Property for cases in

**MUNICIPAL CORPorations.**

**Nature and definition. Vol 8 p 768 n 81.**

**LIMICATION OF ACTIONS.**

The territory. Vol 10 p 885 n 5.

Acrnal of cause of action and beginning of

10 p 890 n 57.

period. Vol 8 p 776 n 74.

Polic power and public regulations in gen-

646 n 91.

Polic power and public regulations; for pub-

M

Polic power and public regulations; for pub-

**MALICIOUS Misch MEF.**

**N**

Vol 8 p 797 n 10.

**MANDAMIUS.**

**NavigABLE WATERS.**

**Nature and office of remedy in general. Vol 8 p 812 n 21. Vol 10 p 665 n 26.**

Endrocement of indicated procedure and process. Vol 10 p 669 n 48; p 670 n 62.

Jurisdiction and venue. Vol 8 p 825 n 40.

Parties. Vol 10 p 679 n 37.

**Pleading and procedure in general. Vol 8 p 827 n 67.**

**Trial and hearing. Vol 8 p 830 n 20.**

**Master and !ERVANT.**

\*\*Termination of the relation. Vol 8 p 841 n

65.

Actions for wrongful discharge. Vol 8 p

845 n 4.

Master's liability for injuries to servants in general. Vol 8 p 854 n 83; p 859 n 10.

Tools, machinery, appliances, and places for

work. Vol 8 p 870 n 52. Vol 10 p 714 n

49: p 719 n 64; p 720 n 71; p 724 n 88; p 725 n 99.

Methods of work, rules and regulations. Vol 8 p 847 n

8 p 879 n 99.

Warming and instructing servant. Vol 10 p

734 n 30, 81.

Pellow servants. Vol 8 p 885 n 44; p 889 n 57; p 892 n 79.

**NavigABLE INSTRUMENTS.**

\*\*Elements and indicia. Vol 10 p 964 n 47.

Labilities and discharge of sureties, guarantees, and other anomalous parties. Vol 8 p 1133 n 86.

Accentance. Vol 8 p 1154 n 11; p 1135 n 24.

Indorment. Vol 8 p 1136 n 36.

The doctrine of Refers to volume (vol) page (p) and foot-note (n) of Current Law.

NOTICE AND RECORD OF TITLE.

Bona fide purchaser and doctrine of notice.

Execution of powers. Vol S p 1446 = 90. Vol 10 p I017 n 36.

PRISONS, JAILS, AND REFORMATORIES.

NUIANCE.

Custody, discipline, government, and employment of inmates. Vol 8 p 1448 n 27, n 67; p 1034 n 80.

Abatement and injunction. Vol 10 p 1036 n 94.

PROCESS.

Actual service. Personal. Vol 10 p 1269 n 50, 54.

OFFICERS AND PUBLIC EMPLOYES.

Drilling and distinctions. Vol 8 p 1193 n 9, 15.

Creation and change of offices. Vol 10 p 1045 n 6.

Indicia and evidence of right to office. Vol 10 p 1293 n 86, 87.

S p 1199 n 96.

Rensignation, abandonment, removal, and reinstatement. Vol 8 p 1203 n 66.

Powers and duties. Vol 8 p 1211 n 80, 85, 86.

Civill liability of public officers. Vol 8 p 1211 n 81, 85, 86.

IEEE 1213 n 18; p 1214 n 33.

Aids and bonuses. Vol 10 p 1372 n 44, 45.

P

Constitution and maintenance. Vol 10 p 1380 n 18.

PARTENT AND CHILD.

Indebtedness, insolvency, liens, and securities. Vol 10 p 1385 n 98, 2, 4; p 1386 n 5, 6, 7.

Care required on part of company at cross-tags. Vol S p 1634 n 3; p 1635 n 9, 10.

Contributory negligence at crossings. Vol S p 1640 n 45.

Actions for injuries. Vol 8 p 1664 n 30, 32.

34, 38.

Procedure to obtain partition. Vol 10 p 1093 n 12.

Scope of relief in partition. Vol 8 p 1253 n 77.

Mode of partition and distribution of property or proceeds. Vol 8 p 1256 n 16, 24, 25, 26.

PARTNERSHIP.

Firm name, trade mark, and good will. Vol 8 p 1288 n 66; p 1269 n 66.

PAPUERS.

Liability of municipalities for support and aid. Vol 8 p 126 n 14.

Lit by
Refers to volume (vol) page (p) and foot-note (n) of Current Law.

Rights attendant on change in bed of stream

Damages, pleading and practice in injury

or in shore line. Vol 10 p 1530 n 15, 16, 17,

18, 19, 20, 23.

S

SALES.

Contract requisites of a sale. Vol S p 1754

n 3.

Transition of title. Vol S p 1768 n 47.

Necessity of delivery, time, place, amount,

etc. Vol S p 1769 n 59.

Action for breach. Vol S p 1798 n 80.

Rights of bona fide purchasers and other

third persons. Vol S p 1816 n 64.

Conditional sales. Definition, validity and

formation. Vol S p 1817 n 74; p 1819 n 5.

SAVING QUESTIONS FOR REVIEW.

Acquiescing in error. Vol S p 1827 n 11;

p 1828 n 14.

Necessity of objection. In general. Vol S p 1835 n 84.

Necessity of motion or request. In general. Vol S p 1836 n 85; p 1838 n 1; p 1840 n 16.

Waiver of objections and exceptions taken.

Vol S p 1850 n 98, 1.

SCHOOLS AND EDUCATION.

Right, privilege and duty of attendance. Vol

10 p 1600 n 48.

Funds, revenues and taxes. Vol S p 1860 n 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73.

STATE DECISIS.

Rules of property. Vol S p 1966 n 60. Vol

10 p 1697 n 66.

Federal and state courts. Vol 10 p 1701 n

12.

STATES.

Boundaries, jurisdiction and sovereignty.

Vol 10 p 1702 n 32, 33, 34, 35, 36.

Property. Vol 10 p 1702 n 41; p 1703 n 42.

Actions by and against state. Vol S p 1975 n 92, 88.

STATUTES.

Enactment. Vol S p 1977 n 18; p 1978 n 33,

36. Vol 10 p 1708 n 91, 95.

Special or local laws. Vol S p 1980 n 63. Vol

10 p 1709 n 30, 31; p 1710 n 34.

Subjects and titles. In general. Vol S p 1983 n 92; p 1984 n 92; p 1986 n 15. Vol 15.

p 1710 n 35; p 1711 n 36; p 1712 n 36; p 1713 n 38, 46, 47, 50.

Amendments and revisions. Vol S p 1986 n 31; p 1987 n 24, 38. Vol 10 p 1714 n 63.

General rules of interpretation. Vol 10 p 1716 n 82; p 1717 n 3.

Mandatory or directory acts. Vol 10 p 1721 n 59.

Partial invalidity. Vol S p 1994 n 54. Vol

10 p 1723 n 81.

Repeal in general. Vol 10 p 1725 n 99.

Implied normal. Vol S p 1987 n 85; p 1998 n 89, 92, 97, 99. Vol 10 p 1725 n 10; p 1726 n 10.

STREREAT RAILWAYS.

Acidents to drivers or occupants of wag-

ons. Vol 10 p 1751 n 35.

The numbers of interest are 1000 n 1751 n 35.

Pramishes and licenses, property and contracts and corporate affairs. Vol 8 p 2096 n 95.

n 95.

TENANTS IN COMM AND JOINT TENANTS.

Rights and liabilittes between tenants. Vol

8 p 2116 n 35; p 2136 n 34.

Spedal or local laws. Vol S p 1980 n 63. Vol

Rights and liabilittes as to third persons. Vol

Vol 8 p 2121 n 25.

Subjects and titles. In general. Vol S p 1983 n 92; p 1984 n 92; p 1986 n 15. Vol 15.

Pramishes and licenses. Vol S p 1986 n 63.

Emements of a tort. Vol 10 p 1861 n 78, 79, 81;

Parties in torts. Vol 10 p 1861 n 78, 79
10Tennessee Index Digest. IQ Cur. Law.

Refers to volume (vol) page (p) and foot-note (n) of Current Law.

V
Parties in will cases and the right to contest. Vol 8 p 2318 n 41. Vol 10 p 2052 n 97.

Separate verdicts as to different counts, causes of action, or parties. Vol S p 2251 n 11.

Findings by court or referee. Vol 10 p 1989 n 32.

Appeals. Vol 8 p 2324 n 27.

We

Order terms designating property or funds. Vol 8 p 2228 n 94; p 2329 n 2.

Vol 8 p 2259 n 47, 48.

Vaters and water supply.

Rlights in natural watercourses. Vol 8 p 2267 n 51.

Weapons.

The crime of carrying or pointing weapons. Vol 8 p 2302 n 25.

WILLS.

Essentials to testamentary capacity. Vol 10 p 2039 n 67.

Requisites, form, and validity. Vol 8 p 2315 n 89.
